                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3997
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the Western
      v.                                * District of Missouri.
                                        *
Brian Jeffrey Brown,                    *
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: April 15, 2003

                                 Filed: April 21, 2003
                                  ___________

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
                          ___________

FAGG, Circuit Judge.

      Brian Brown appeals the district court’s denial of his motion to dismiss the
indictment based on his Sixth Amendment right to a speedy trial. We affirm.

       In July 1998, the government indicted Brown in the Western District of
Missouri for possessing a false identification document and making false statements
in a passport application. See 18 U.S.C. §§ 1028(a)(4), (b)(1), 1542. At the time,
Brown was in custody awaiting trial on child molestation charges in Arkansas. Not
wanting to disrupt the proceedings in Arkansas on the more serious charges, the U.S.
Attorney’s Office in Missouri did not seek immediate custody of Brown. In March
1999, Brown pleaded nolo contendre to a reduced Arkansas charge of possession of
child pornography. He was sentenced to forty-two months in prison.

       In August 1999, a detainer on the federal charges was personally served on
Brown in the Arkansas Department of Corrections. The detainer advised Brown he
had a right to a speedy trial under the Interstate Agreement on Detainers Act (IADA)
by mailing a written notice of his request to the appropriate U.S. Attorney and the
appropriate district court. The detainer stressed that because the 180-day time limit
may be tolled by delays attributable to the prisoner, he should “periodically inquire
. . . whether [his] written notice of request for a final disposition of the charges
against [him] has been received.” The detainer also stated, “[T] he 180-day time limit
does not commence until your written notice . . . has actually been delivered to the
appropriate U.S. Attorney and the appropriate District Court.” Although Brown
circled the response indicating he desired a speedy trial, the response was not
received by the U.S. Attorney or the district court. The U.S. Attorney’s office first
learned of Brown’s desire for a speedy trial in July 2001 when it received a copy of
a pro se motion Brown had filed with the district court seeking to dismiss the
indictment because of an alleged violation of the IADA. In response, the Government
obtained custody of Brown and Brown appeared in federal court on July 26, 2001.

      In December 2001, Brown was released from state custody and released on
bond on the federal charges. He filed a motion to dismiss the federal indictment
based on the three-year delay between the indictment and initial appearance in federal
court. Brown later acknowledged he had not complied with the technical
requirements of the IADA and sought dismissal of the indictment based solely on the
Sixth Amendment. After an evidentiary hearing, the district court* denied Brown’s
motion to dismiss. Brown pleaded guilty to making a false statement in connection


      *
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

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with a passport application, and the district court sentenced Brown to supervised
probation for forty-eight months.

       The Sixth Amendment guarantees a criminal defendant the right to a speedy
trial. Doggett v. United States, 505 U.S. 647, 651 (1992); United States v. Sprouts,
282 F.3d 1037, 1041 (8th Cir. 2002). “[T]o trigger a speedy trial analysis, an accused
must allege that the interval between accusation and trial has crossed the threshold
dividing ordinary from ‘presumptively prejudicial’ delay.” Doggett, 505 U.S. at 651-
52. This generally occurs if the delay is at least one year long. Id. at 652 n.1. If the
defendant makes this showing, then the court conducts the speedy trial analysis by
weighing four factors: the length of the delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant. Id. at 651-52;
Sprouts, 282 F.3d at 1042-43. The extent to which a defendant must prove prejudice
from a delay in prosecution is directly related to the government’s reasonableness in
its pursuit of the defendant. Wilson v. Mitchell, 250 F.3d 388, 395 (6th Cir. 2001).

       In concluding Brown’s right to a speedy trial was not violated, the district court
found that although the delay was excessive, it was not intentional; Brown’s attempt
to assert his right was half-hearted because he never contacted the U.S. Attorney or
the district court to inquire about the status of his case; and Brown suffered no actual
prejudice from the delay.

       On appeal, Brown contends no proof of prejudice was required because the
three-year delay was presumptively prejudicial. We reject this contention.
“‘[P]resumptive prejudice’ does not necessarily indicate a statistical probability of
prejudice; it simply marks the point at which courts deem the delay unreasonable
enough to trigger the [four-factor] enquiry.” Doggett, 505 U.S. at 652 n.1.
Considering the length and reason for the delay and Brown’s lack of diligence in
asserting his rights, we cannot say Brown was relieved of his burden to show the
delay actually prejudiced him. United States v. Walker, 92 F.3d 714, 716-17 (8th Cir.

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1996). Indeed, in a case involving a thirty-seven month delay, we concluded the
delay was uncommonly long, but went on to consider the four Doggett factors. Id.

       In our view, the district court committed no error in analyzing the four factors
in this case. First, the three-year delay weighs in favor of Brown. Second, the
government did not negligently delay its prosecution or intentionally delay to gain
some impermissible advantage at trial. See Doggett, 505 U.S. at 656-67. Contrary
to Brown’s claim of negligence, the undisputed evidence shows the government
reasonably chose not to obtain immediate custody of Brown to avoid disrupting his
Arkansas prosecution on charges of child molestation. The government was aware
that under the antishuttling provision of the IADA, Brown would have to be kept in
federal custody in Missouri until the federal prosecution was concluded. Further,
soon after the federal authorities learned the Arkansas prosecution had ended (thirteen
or fourteen months after federal indictment), they filed a federal detainer against
Brown informing him of the pending federal charges and how to ensure he received
a speedy trial. Brown did not follow the directions, however. Because Brown did not
contact the U.S. Attorney or the district court to inquire about his case or his request
for a speedy trial, the third factor weighs against Brown. Fourth, because the
government was reasonable in its pursuit of Brown on the federal charges, Brown
must show the delay actually prejudiced him to prevail on his Sixth Amendment
claim. Sprouts, 282 F.3d at 1043; Wilson, 250 F.3d at 395. Brown has not attempted
to do so. The time Brown spent in the Arkansas prison was the result of his Arkansas
charges, not pretrial detention on the federal charges. Further, Brown does not assert
that he was anxious about the federal charges or that the delay impaired his defense
on the federal charges. See Sprouts, 282 F.3d at 1043 (explaining ways delay may
prejudice defendant).

      In sum, the district court correctly rejected Brown’s speedy trial claim by
denying his motion to dismiss the indictment.



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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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