         Case: 17-12091   Date Filed: 09/18/2018   Page: 1 of 24


                                                                   [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 17-12091
                     ________________________

             D.C. Docket No. 1:13-cr-00463-LMM-LTW-2



UNITED STATES OF AMERICA,

                                                           Plaintiff–Appellee,

                                versus


DAVID LAZARO OLIVA,
a.k.a. Davisito,
                                                       Defendant–Appellant.



                     ________________________

                           No. 17-11497
                     ________________________

             D.C. Docket No. 1:13-cr-00463-LMM-LTW-1



UNITED STATES OF AMERICA,

                                                           Plaintiff–Appellee,
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                                             versus


RAFAEL GOMEZ URANGA,

                                                                       Defendant–Appellant.

                               ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                   (September 18, 2018)

Before WILSON and NEWSOM, Circuit Judges, and VINSON,∗ District Judge.


PER CURIAM:

       This case begins with two large-scale warehouse burglaries in October and

November of 2011. After a lengthy investigation, David Lazaro Oliva and Rafael

Gomez Uranga were indicted in November 2013 in connection with those

burglaries and charged with conspiracy to commit interstate transportation of

stolen property, in violation of 18 U.S.C. § 371, and aiding and abetting the

interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314 and 2.

They were arrested on these charges nearly twenty-three months later, in October

2015. While in the District Court, Oliva and Uranga moved to dismiss the



       ∗
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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indictment based on a Sixth Amendment speedy trial violation. The motions were

referred to a Magistrate Judge, who held an evidentiary hearing and entered a

report and recommendation. The Magistrate Judge found that the delay between

indictment and arrest was the result of the Government’s gross negligence, but she

ultimately recommended that the motions be denied. The District Court agreed

with the Magistrate Judge’s recommendation. Subsequently, Oliva and Uranga

pled guilty to the conspiracy charge, retaining the right to appeal the District

Court’s denial of their motions to dismiss. They do so in this consolidated appeal.

       Although the lengthy delay between the indictment and arrest was the result

of the Government’s negligence, we hold that the delay did not amount to a Sixth

Amendment violation. Accordingly, we affirm.

                                               I.

       On October 23, 2011, a group of men burglarized a SouthernLinc warehouse

in Gwinnett County, Georgia. They escaped with a truckload of cellphones valued

at $1,789,980. Another group of men attempted a similar burglary of a Max Group

warehouse, also located in Gwinnett County, on November 28, 2011.1 This group,




       1
         The extent to which the personnel overlapped between the two burglaries is not clear
from the record.
                                               3
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however, tripped the warehouse’s burglary alarm, causing the police to arrive at

the site. Uranga was arrested in his SUV near the Max Group location.2

       The FBI opened an investigation into the burglaries on November 21, 2011. 3

On or about March 27, 2012, Michael Donnelly, a Gwinnett County Police

Department officer serving as an FBI Task Force Officer, was assigned as the sole

investigator in the case. This was Donnelly’s first time serving as a solo

investigator. His expansive investigation involved, inter alia, twenty-five

witnesses located across various states, nine suspects, nearly 100 exhibits, shoe-

tread analysis, and numerous search warrants. Donnelly’s investigation continued

until at least June 2013.

       Oliva and Uranga were indicted by a federal grand jury on November 25,

2013, about two years after the attempted Max Group warehouse burglary.

Donnelly was responsible for locating and arresting the Appellants, but he

mistakenly believed that this was the United States Marshals Service’s (“USMS”)



       2
         Four other men were in Uranga’s SUV, and they escaped on foot. The record does not
specify whether Oliva was one of these men. The record indicates only that Oliva rented a U-
Haul truck shortly before both burglaries and that the person who attempted to sell the stolen
phones identified Oliva as “part of a robbery crew.” Uranga, on the other hand, was linked to the
Max Group burglary by video, shoe prints, and proximity; and he was linked to the SouthernLinc
burglary by a similar modus operandi and cellphone location data and records.
       3
          The parties’ briefing, the Magistrate Judge’s report and recommendation, and the
District Court order at issue all state that the FBI opened the investigation into “both” burglaries
on November 21, 2011, before the Max Group burglary was attempted. The District Court noted
that “presumably the investigation began with the first burglary only but then incorporated the
second burglary once it was committed.” We, too, assume this to be the case.
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responsibility. 4 In or around January 2014, Donnelly realized that nothing was

happening with the case and conferred with Josh Thompson, another FBI Task

Force Officer who had recently worked with the USMS. Donnelly gave Thompson

copies of the arrest warrants and possible locations of the Appellants, and asked

Thompson to communicate with the USMS about locating them.

       According to Thompson’s testimony during the evidentiary hearing before

the Magistrate Judge, he called someone from the USMS within a month after

conferring with Donnelly and learned that Marshals are not responsible for

executing arrest warrants when the FBI controls the case. Then, not more than a

month later, in or around February or March 2014, Thompson met with Donnelly

to return the warrants, and the two discussed some information. Neither could

recall at the evidentiary hearing exactly what was discussed when Thompson

returned the warrants. Thompson testified, however, that he did not inform

Donnelly that the FBI handles its own arrests, and that Donnelly did not ask about

FBI procedure or whether the USMS would begin locating the Appellants.

Donnelly testified at the same evidentiary hearing that, after this second meeting

with Thompson, he was not under the impression that he was responsible for

arresting the Appellants. Donnelly never followed up with the USMS about the


       4
         Donnelly believed this because in Gwinnett County, the investigating officer is not
responsible for locating and arresting defendants—that task falls to the Sheriff’s Department—
and he just assumed that it worked the same way in the federal system with respect to the USMS.
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matter. There was also no communication between Donnelly and the U.S.

Attorney’s Office concerning the arrests. The Assistant U.S. Attorney who

secured the indictment, Karlyn Hunter, left the U.S. Attorney’s Office in

September 2014 (almost a year after the indictment), and a new prosecutor was not

assigned to the case until October 2015 (more than a year thereafter). Donnelly

had no contact with the U.S. Attorney’s Office during this two-year period.

       Donnelly took no further action on the case until late September or early

October of 2015, when his supervisor informed him that he, not the USMS, was

responsible for locating and arresting the Appellants. Donnelly began searching

for them within twenty-four hours after receiving this information. Notably,

counsel for the Appellants conceded at oral argument that there was no evidence of

bad faith in this case and that the speed with which Donnelly acted after he learned

that he was responsible for making the arrests suggested the delay “probably was

an honest mistake.”5 Uranga was ultimately arrested in the Southern District of



       5
          In her report and recommendation, the Magistrate Judge stated that it was
“inexplicabl[e]” and “defie[d] logic” that Donnelly and Thompson did not discuss the FBI’s
responsibility for handling its own arrests at the time that Thompson returned the warrants in
February or March 2014. The Appellants argued in their briefs on appeal that this language
constitutes a finding by the Magistrate Judge—the only judge to hear the testimony—that
Donnelly’s claim of lack of knowledge of the FBI’s responsibility for making the arrests was not
credible. We have two things to say about that. First, as the District Court rightly noted, the
Magistrate Judge did not say that their testimony was not credible. Rather, the language that she
used (“inexplicabl[e]” and “defie[d] logic”) merely acknowledged that their actions were
puzzling and not logical. Second, the Appellants’ argument in their briefs on this point is
difficult to reconcile with the position that they took at oral argument. As just noted in the text
above, counsel for the Appellants conceded at oral argument that there was no evidence of bad
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Florida on October 9, 2015,6 and Oliva was arrested in the Southern District of

New York four days later.

       On December 11, 2015, Uranga moved to dismiss the indictment for lack of

a speedy trial. Oliva did the same about three months later.

                                                II.

       The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial[.]”

In light of the “unique policies” underlying the speedy trial right, courts must “set

aside any judgment of conviction, vacate any sentence imposed, and dismiss the

indictment” if the right is violated. United States v. Villarreal, 613 F.3d 1344,

1349 (11th Cir. 2010).

       This Circuit assesses speedy trial claims under the four-factor test derived

from Barker v. Wingo, weighing (1) the length of the delay, (2) the reason for the

delay, (3) the defendant’s assertion of his speedy trial right, and (4) actual

prejudice to the defendant. 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); see

faith and that the delay “probably was an honest mistake.” If, however, Thompson told Donnelly
in February or March 2014 that the FBI was responsible for making the arrests (which is
essentially what the Appellants are arguing when they suggest that Donnelly and Thompson did
not testify truthfully at the evidentiary hearing), then that would indicate there was bad faith and
that the subsequent delay was not the result of an honest mistake. After reviewing the record, we
agree with the position that defense counsel took at oral argument and not the one that the
Appellants argued in their briefs: there is no evidence of bad faith or anything other than an
honest mistake here.
       6
        When Uranga was first arrested after the Max Group burglary, the arresting officers
took Uranga’s wallet, which contained a driver’s license listing the address where he resided
throughout this case. It was at this address that he was arrested by the FBI.
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also Villarreal, 613 F.3d at 1350. The first factor, length of the delay, serves a

triggering function: it must first be satisfied for the court to analyze the other

factors. Villarreal, 613 F.3d at 1350; see also United States v. Dunn, 345 F.3d

1285, 1296 (11th Cir. 2003). A post-indictment delay exceeding one year is

generally sufficient to trigger the analysis. United States v. Ingram, 446 F.3d

1332, 1336 (11th Cir. 2006); United States v. Clark, 83 F.3d 1350, 1352 (11th Cir.

1996). Importantly, if the first three factors “weigh heavily against” the

Government, the defendant need not show actual prejudice, the fourth factor.

Ingram, 446 F.3d at 1336. If a defendant proves the length of the delay is

sufficient to trigger the Barker analysis, however, that does not necessarily mean

that factor weighs heavily against the Government; the two inquiries are separate.

See Doggett v. United States, 505 U.S. 647, 651–52, 112 S. Ct. 2686, 2690–91

(1992); Villarreal, 613 F.3d at 1350.

                                          A.

      As earlier noted, Oliva and Uranga’s motions to dismiss were referred to a

Magistrate Judge who, in a report and recommendation, recommended that the

motions be denied. The Magistrate Judge performed a three-step inquiry: first, she

analyzed whether the first three Barker factors weighed against the Government;

next, she separately analyzed whether those factors “weighed heavily” against the

Government; finally, after concluding that the first three factors did not weigh


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heavily against the Government, she assessed whether the Appellants could prove

actual prejudice, the fourth factor.

       In her first step, the Magistrate Judge noted that the Government conceded

that the first and third factors, length of the delay and assertion of the right,

weighed against it.7 The Magistrate Judge then found that the Government was

“grossly negligent” in failing to procure the Appellants’ arrests, and accordingly

held that the second factor—reason for the delay—also weighed against the

Government.

       After determining that the first three factors weighed against the

Government, the Magistrate Judge next analyzed whether they did so heavily.

Drawing upon the two most relevant Eleventh Circuit cases—Ingram, 446 F.3d at

1332, and Clark, 83 F.3d at 1350—the Magistrate Judge concluded that the length

of the delay, though sufficient to trigger the Barker analysis, did not weigh heavily

against the Government. In reaching this conclusion, the Magistrate Judge

factored in only the post-indictment delay period. Although “inordinate pre-

indictment delay” can also weigh heavily against the Government, see Ingram, 446

F.3d at 1339, the Magistrate Judge concluded that the two-year pre-indictment

delay here was not “inordinate” given the complexity of Donnelly’s investigation.

       7
         The Government conceded that the length of the delay was sufficient to trigger the rest
of Barker’s analysis, but not that it was so long as to be weighed heavily against it. Put another
way, the concession pertained to the first part of the Magistrate Judge’s analysis, not the second.
See Doggett, 505 U.S at 651–52, 112 S. Ct. at 2690–91; Villarreal, 613 F.3d at 1350.
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       Finally, since the first three factors did not each weigh heavily against the

Government, the Magistrate Judge assessed whether the Appellants could prove

actual prejudice. She found that they could not, and she recommended that their

motions be denied.

       The Appellants objected to the report and recommendation. Oliva

contended that the Magistrate Judge should have factored pre-indictment delay into

her determination. He also argued, more generally, that the length of the delay

weighed heavily against the Government in light of its gross negligence. Uranga,

apparently believing that the Magistrate Judge concluded that the reason for—not

the length of—the delay did not weigh heavily against the Government, asserted

that the Magistrate Judge erred in reaching that conclusion.8

       The Government responded, devoting the majority of its brief to supporting

the Magistrate Judge’s conclusion that the length of the delay did not weigh

heavily against it. Unlike Uranga, the Government believed that the Magistrate

Judge had concluded that the reason for the delay did weigh heavily against it.

Importantly, the Government did not argue against that purported conclusion, but

simply acknowledged:

       In evaluating the reason for delay, the Magistrate Judge found that the
       Government was “grossly negligent” in failing to procure the
       Defendants’ arrests and, without stating so explicitly, concluded that

       8
         Uranga, like Oliva, also objected to the Magistrate Judge excluding pre-indictment
delay time from her Barker analysis.
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       this factor weighed heavily against the Government by stating: “[T]he
       Government’s negligence in this case is every bit as culpable as that
       of the ATF special agent in Ingram.”

                                                B.

       The District Court adopted the Magistrate Judge’s report and

recommendation. But, like Uranga, it operated under the assumption that the

Magistrate Judge recommended that the motions be denied because the reason for,

not length of, the delay did not weigh heavily against the Government. 9 The

District Court held that because the Appellants did not produce evidence of bad

faith by the Government—the delay between indictment and arrest was proven

only to result from gross negligence—the reason for the delay did not weigh

heavily against the Government.

       To support this conclusion, the District Court looked to United States v.

Bibb, 194 F. App’x 619 (11th Cir. 2006), which states that “‘[g]overnment actions

[which] are tangential, frivolous, dilatory, or taken in bad faith weigh heavily in

       9
          The District Court stated, “The Magistrate Judge found, and both parties agreed, that the
length of the delay was presumptively prejudicial, triggering the other three Barker factors. The
Magistrate Judge did not find that the reason for the delay weighed heavily against the
Government, as Oliva suggests.” The Court further stated in a footnote that because the
Government conceded the “length of delay” and “assertion of the right” factors, it assumed
arguendo that those factors weighed heavily against the Government. Thus, the Court added, if
it were to find that the reason for the delay weighed heavily against the Government, all three
factors would weigh heavily against the Government and the Appellants would not have to show
actual prejudice.
        Contrary to the District Court’s belief, the Government conceded only that the length of
the delay was sufficient to trigger analysis of the rest of the Barker factors, not that the delay
weighed heavily against it. See supra note 7. Given this limited concession, the length of the
delay factor was still at issue.
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favor of a finding that a speedy trial violation occurred.’” Id. at 622 (quoting

United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997)). Although the

Government caused the delay, the District Court held that its conduct could not be

characterized as “dilatory,” as the Appellants argued, because in context dilatory

requires intent. Here, the Government caused only unintentional delay through its

negligence; there was no bad faith. The District Court also refused to factor the

pre-indictment delay period into its decision, agreeing with the Magistrate Judge

that the complexity of Donnelly’s investigation justified the delay.

       Thus, the District Court held that the first three Barker factors did not each

weigh heavily against the Government, and that the Appellants had failed to prove

actual prejudice, the fourth factor. The District Court accordingly denied their

motions to dismiss.

       Oliva and Uranga appealed. On appeal, they do not challenge the District

Court’s holding that they failed to prove actual prejudice. 10 Rather, they argue that

the District Court had found that the first and third Barker factors weighed heavily

against the Government, and that it erred in holding that the reason for the delay,

the second Barker factor, did not weigh heavily against the Government, rendering

actual prejudice irrelevant.



       10
          In fact, the Appellants expressly conceded at oral argument that they cannot show
actual prejudice
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      First, the Appellants contend that this Circuit’s speedy trial right

jurisprudence does not require intentional delay or bad faith by the Government.

Instead, they maintain that the term “dilatory,” as used Schlei (and as later quoted

in Bibb) refers both to unintentional and intentional delay. Therefore, they argue

that the Government’s gross negligence—Donnelly’s near-complete inaction,

Thompson failing to relay that the USMS was not assigned arrest responsibility,

and the U.S. Attorney’s Office failing to check on the Appellants’ arrest status—

weighs heavily against it. The Appellants add that the pre-indictment delay should

also have been factored into the Court’s analysis, providing more weight to the

Government’s negligence. See Clark, 83 F.3d at 1353 (“[Our] toleration of

negligence varies inversely with the length of the delay caused by that

negligence.”).

      Next and alternatively, the Appellants argue that the Government’s attempt

to arrest them was so minimal that it cannot be characterized as “diligent” or

performed “in good faith,” requiring that the second Barker factor weigh heavily

against the Government. See United States v. Bagga, 782 F.2d 1541, 1543 (11th

Cir. 1986) (noting the Government’s “‘constitutional duty to make a diligent,

good-faith effort’ to locate and apprehend a defendant and bring the defendant to

trial”) (quoting Smith v. Hooey, 393 U.S. 374, 383, 89 S. Ct. 575, 579 (1969)).

The Appellants maintain that they did not have to prove actual prejudice because,


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under either theory, the reason for the delay weighs heavily against the

Government and the Government conceded that the other two factors, length of the

delay and assertion of the right, did so too. Their motions to dismiss, the

Appellants argue, should have therefore been granted.

      The Government asserts that the delay in the Appellants’ arrests was due

only to negligence, not bad faith. The District Court thus properly denied the

motions, as intent or bad faith is required for the second Barker factor to be

weighed heavily against the Government. The Government also contends that it

never conceded that the length of the delay weighs heavily against it. Although it

did concede that the length of the delay was sufficient to trigger the Barker

analysis, it did not also concede that the delay’s length was so great as to be

weighed heavily against it.

                                         III.

                                          A.

      Whether the Government violated a defendant’s Sixth Amendment right to a

speedy trial is a mixed question of law and fact. Villarreal, 613 F.3d at 1349. We

review a district court’s legal conclusions de novo and its factual findings for clear

error. Id.

      Here, we are tasked with reviewing the District Court’s application of the

Barker factors. As noted, the Appellants do not challenge the District Court’s


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finding of no actual prejudice, the fourth factor. And, the Government concedes

the third factor, assertion of the right.11 The Government, however, did not

concede that the length of the delay weighed heavily against it.12 Thus we address

the first two factors, length of the delay and the reason for it. As discussed below,

these factors overlap to an extent, so we address them together.

       Different reasons for delay are accorded different weights. Barker, 407 U.S.

at 531, 92 S. Ct. at 2192. An intentional attempt to delay trial in order to hinder

the defense is “weighted heavily against the government.” Id. In contrast, a valid

excuse, such as a missing witness, justifies reasonable delay. Id. Negligence falls

between these two extremes. It is “more neutral” and “should be weighted less

heavily” than bad-faith acts. Id. But negligence “nevertheless should be

considered since the ultimate responsibility for such circumstances must rest with

the government rather than with the defendant.” Id. Indeed, “it still falls on the

wrong side of the divide between acceptable and unacceptable reasons for delaying


       11
            Although the Government concedes that the Appellants timely asserted their speedy
trial rights and, thus, it stipulates that the third factor weighs against the Government, it does not
say whether that factor weighs heavily against the Government. This Court has previously
determined that the third Barker factor weighed “heavily” against the Government where the
defendant asserted his right to a speedy trial soon after learning of the indictment and arrest
warrant. See Ingram, 446 F.3d at 1335, 1338. By contrast, this Court has also determined that,
where a defendant asserted his right to a speedy trial but also moved for four continuances prior
to that trial, the third Barker factor did not weigh “heavily” against the Government. See United
States v. Register, 182 F.3d 820, 828 (11th Cir. 1999). Because the Government does not argue
this factor, we assume for our analysis that it weighs heavily against the Government and do not
discuss it further.
       12
            See supra notes 7, 9.
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a criminal prosecution once it has begun.” Doggett, 505 U.S. at 657, 112 S. Ct. at

2693. Our “toleration of negligence varies inversely with the length of the delay”

that the negligence causes. Clark, 83 F.3d at 1353. Analyzing the second factor,

therefore, overlaps some with the first: the length of the delay impacts our

determination of whether the Government’s negligence weighs heavily against it.

      Two Eleventh Circuit cases involving negligent governmental delay set the

parameters of our analysis. In the first case, United States v. Clark, 83 F.3d at

1350, the defendant, Clark, was charged with six counts related to controlled-

substance violations and one count of carrying a firearm during a drug-trafficking

crime. Id. at 1351. There was a seventeen-month delay between Clark’s

indictment and arrest, during which he continually resided in the apartment listed

on the arrest warrant. Id. at 1352. A city police officer attempted to locate Clark

by visiting his apartment a single time, but no one answered the door. Id. The

police department then suspended its efforts to locate Clark, mistakenly believing

that the USMS was taking over. Id. Clark was finally arrested while sitting in a

college class. Id.

      The District Court dismissed the indictment after finding that the first three

Barker factors weighed heavily against the Government. See id. at 1354. This

Court reversed, reasoning that although the Government was negligent, it did not

deliberately cause the delay. Id. at 1353-54. We further reasoned that the


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seventeen months of negligent Government delay was significantly less than the

eight and a half years of such delay found intolerable by the Supreme Court in

Doggett v. United States, 505 U.S. at 651–53, 112 S. Ct. at 2690–91, and was close

to the fourteen and a half months of negligent Government delay found acceptable

by the Fifth Circuit in Robinson v. Whitley, 2 F.3d 562, 568–70 (5th Cir. 1993).13

Id.

       The second case, United States v. Ingram, 446 F.3d at 1332, went the other

way. In that case, the defendant, Ingram, claimed he was not a convicted felon

when applying to purchase a firearm on February 28, 2000. Id. at 1334. The seller

submitted Ingram’s application to the National Instant Criminal Background Check

System, and the application came up “denied.” Id. In March of 2000, a special

agent with the Bureau of Alcohol, Tobacco, and Firearms began investigating the

transaction. Id. In July of that same year, the agent interviewed Ingram at his

workplace, where Ingram admitted he was a convicted felon, but inaccurately

claimed that his civil rights had been restored. Id. at 1335. During the interview,

Ingram gave the agent his home address and phone numbers and told the agent his

brother was a police officer. Id. The agent turned in his report and heard nothing




       13
          We also cited United States v. Beamon, 992 F.2d 1009, 1015 (9th Cir. 1993), a case
holding that a delay of seventeen to twenty months solely attributable to Government negligence
was insufficient to excuse the defendants from showing actual prejudice. Clark, 83 F.3d at 1354.
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for over two years. Id. When the agent checked in with the U.S. Attorney’s Office

in 2002, he was told Ingram’s case had been “misplaced.” Id.

      Ingram was eventually indicted in October of 2002—more than two and a

half years after his attempted firearm purchase—for making false statements to a

firearms dealer in connection with an attempted acquisition of a firearm. Id. The

indictment was sealed the same day it was entered and a warrant was issued for

Ingram’s arrest. Id. The agent made a minimal effort to arrest Ingram. He left

some voicemails for Ingram between 2002 and 2004. Id. Ingram returned at least

one call in December of 2002 and left his cellphone number and workplace address

for the agent to contact him. Id. The agent also drove by Ingram’s residence and

workplace on several occasions, but did not exit his car. Id. Finally, in July of

2004, the agent called Ingram’s workplace and a coworker gave the agent another

number at which to reach Ingram. Id. The agent left a message at this new number

and Ingram returned his call the next day. Id. Ingram surrendered in court on

August 3, 2004. Id.

      Ingram moved to dismiss the indictment on speedy trial grounds. The

District Court denied the motion, but this Court reversed. We noted that

“inordinate pre-indictment delay” influences “how heavily post-indictment delay

weighs against the Government,” and held that the pre-indictment delay in

Ingram’s case qualified as “inordinate.” See id. at 1339. Thus, the nearly two


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years of post-indictment delay weighed more heavily against the Government in

light of the two and a half years of inordinate pre-indictment delay. Id. We also

noted that the agent in Ingram, unlike the one in Clark, knew he was the only law

enforcement agent responsible for Ingram’s arrest; the Government’s negligence,

we concluded, was overall more egregious than it was in Clark. Id. So,

considering the length of the pre- and post-indictment delays, the degree of

Government negligence, the simplicity of the crime for which Ingram was indicted,

the state of the proof against him when the indictment was entered, and the

Government’s knowledge of Ingram’s whereabouts, this Court determined that the

length of and the reason for the delay weighed heavily against the Government. Id.

at 1340. We then remanded the case to the District Court with instructions to

dismiss the indictment. Id.

                                          B.

      Before comparing this case to Clark and Ingram, we address the Appellants’

argument that the Government’s negligent conduct was “dilatory” and therefore

must be weighed heavily against it.

      As quoted in Bibb, supra, the precedential language relevant to the

Appellants’ argument provides that “Government actions which are tangential,

frivolous, dilatory, or taken in bad faith weigh heavily in favor of a finding that a

speedy trial violation occurred.” Schlei, 122 F.3d at 987 (citing United States v.


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Loud Hawk, 474 U.S. 302, 315–17, 106 S. Ct. 648, 656–57 (1986)). They contend

that the term “dilatory” does not require intent, and so it covers the Government’s

negligence. We disagree. The Supreme Court’s Loud Hawk case cited by Schlei

(which was in turn cited by Bibb) for the above proposition used the word

“dilatory” to describe purposeful action. See 474 U.S. at 316, 106 S. Ct. at 656

(noting that there was “no showing of bad faith or dilatory purpose on the

Government’s part”) (emphasis added). Further, dismissing an indictment is an

“extraordinary remedy.” Villarreal, 613 F.3d at 1349. It is not one to be given to

defendants each time the Government’s conduct unintentionally causes delay, as

the Appellants’ interpretation suggests. Finally, Clark and Ingram contemplate

that negligence alone can be, but not must be, weighed heavily against the

Government depending upon the circumstances. See Ingram, 446 F.3d at 1339;

Clark, 83 F.3d at 1353–54.

       The District Court found that the Government was grossly negligent, but not

that it purposefully caused delay or otherwise acted in bad faith. Nothing in the

record indicates that this conclusion—one we view with “considerable deference,”

Doggett, 505 U.S. at 652, 112 S. Ct. at 2691—was clearly erroneous.14 The

Government’s conduct was therefore not purposefully dilatory as the term is used


       14
          To the contrary, as earlier noted, the Appellants conceded at oral argument that there
was no evidence of bad faith here and that the reason for the delay “probably was an honest
mistake.”
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in the pertinent case law. We thus turn to whether the Government’s negligence,

in light of the length of the delay, was so great as to weigh heavily against it, and

we hold that it wasn’t.

      The relevant length of delay in this case is twenty-three months, the length

of the post-indictment delay. The two-year pre-indictment delay is not factored

into our analysis of whether the first two Barker factors weigh heavily against the

Government. Pre-indictment delay is accounted for if it is “inordinate.” Ingram,

446 F.3d at 1339. The two and a half years of pre-indictment delay in Ingram, for

example, was inordinate given the simplicity of Ingram’s crime and of the

investigation. See id.; see also Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (“[T]he

delay that can be tolerated for an ordinary street crime is considerably less than for

a serious, complex conspiracy charge.”). In Ingram, the defendant committed a

simple crime and the investigation appeared complete more than two years before

the indictment. Here, by contrast, the Appellants were convicted of conspiracy for

actions involving two separate large-scale burglaries carried out by a number of

participants. Further, Donnelly’s investigation included twenty-five witnesses

located throughout numerous states, nine suspects, almost 100 exhibits, several

search warrants, shoe-tread analysis, and more. Donnelly was still collecting

pertinent evidence until at least June of 2013, fewer than six months before the

Appellants’ November 2013 indictments.


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       Thus, unlike in Ingram, the pre-indictment delay here is not inordinate. 15

With the relevant period of delay at twenty-three months, this case is much closer

to Clark’s seventeen-month delay than to Ingram’s combined delay of four and a

half years. Moreover, courts outside this Circuit have consistently rejected

defendants’ arguments that similar delays excuse them from proving actual

prejudice.16

       The Government’s negligence in the case before us is also more akin to its

negligence in Clark than in Ingram. Like the investigator in Clark, Donnelly

believed that the USMS was responsible for arresting the Appellants. Donnelly

made at least a minimal attempt to follow up on the Appellants’ arrest by

conferring with Thompson, and he remained under the impression that he was not

responsible for the arrests. Eventually, once Donnelly realized his mistake, he

quickly effectuated the Appellants’ arrests. The lack of effort exemplified by the


       15
          Also underpinning this conclusion is our hesitance to incentivize rushing to indict
defendants the moment there appears to be just enough evidence to do so. Among other
maladies, such a practice would “increase the likelihood of unwarranted charges being filed” and
even “add to the time during which defendants stand accused but untried.” See United States v.
Lovasco, 431 U.S. 783, 791–92, 97 S. Ct. 2044, 2049–50 (1977).
       16
          See, e.g., United States v. Jackson, 473 F.3d 660, 663, 666–68 (6th Cir. 2007) (holding
that a twenty-two-month post-indictment delay was not enough to excuse the defendant from
demonstrating actual prejudice where the Government did not give a valid reason for the delay);
Jackson v. Ray, 390 F.3d 1254, 1263 (10th Cir. 2004) (concluding that an unexplained delay of
four and one-third years did not excuse the defendant from having to prove actual prejudice);
United States v. Serna-Villarreal, 352 F.3d 225, 232–33 (5th Cir. 2003) (concluding that a three-
year and nine-month delay caused by Government negligence was too short to weigh heavily
against the Government).


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investigator in Ingram was more egregious, as that investigator knew he was solely

responsible for Ingram’s arrest.

      Ultimately, the delay in this case was the result of a convergence of several

factors, including: (a) a federal crime being investigated by a state law enforcement

officer (albeit a federally-deputized one); (b) who was unfamiliar with federal

indictment and arrest procedure; (c) and who was serving as a solo investigator for

the very first time; (d) in a case where the prosecutor who secured the indictment

left the U.S. Attorney’s Office and was not replaced on the case for more than a

year. Nevertheless, the Government’s negligence here is worrisome. Despite his

inexperience, Donnelly could have followed up with the USMS, contacted

someone in the U.S. Attorney’s Office, or reached out to a supervisor during the

long period between the time that he conferred with Thompson and later learned

that he was responsible for arresting the Appellants. But because the negligence in

this case is weaker than that in Ingram—though perhaps only slightly—and

because the relevant length of delay is less than half of Ingram’s, we conclude that

neither the length of the delay, nor the reason for it, weigh heavily against the

Government. The Government’s good-faith attempt to arrest the Appellants was

diligent enough to avoid warranting the “extraordinary remedy” of dismissing their

indictments. See Villarreal, 613 F.3d at 1349.




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                                         IV.

      In sum, two of the first three Barker factors do not weigh heavily against the

Government. The Appellants therefore must prove actual prejudice, which they

did not do below and do not attempt to do here. Accordingly, we affirm the

District Court’s denial of their motions to dismiss.

      AFFIRMED.




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