                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                          June 29, 2005
                           FOR THE FIFTH CIRCUIT
                           _____________________                     Charles R. Fulbruge III
                                                                             Clerk
                                No. 02-21225
                           _____________________

UNITED STATES OF AMERICA,

                                                       Plaintiff - Appellee,

                                   versus

JULIO CESAR VALENCIA-QUINTANA,

                                            Defendant - Appellant.
__________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                       USDC No. 4:92-CR-270-2
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:1

     The appellant, Julio Cesar Valencia-Quintana (“Valencia”), a

citizen   of   Colombia,     was   convicted     and    sentenced        to    life

imprisonment   for   his    role   (a   major   role,    to   be     sure)    in    a

conspiracy to import approximately 400 kilograms of cocaine into

the United States.         Valencia was indicted after an undercover

investigation by DEA agents.            At trial, the agents and a paid

informant testified that Valencia actively solicited them as drug

couriers, procured the cocaine, arranged the pick-up, and provided




     1
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
their   compensation.         Finding    no    reversible   error,    we    AFFIRM

Valencia’s conviction and sentence.

                                         I

      Of the eight points of error Valencia raises, only one –- his

Sixth Amendment speedy trial argument –- warrants discussion.

Thus, we set forth in some detail the facts relevant to that issue.

      In 1991, the DEA was engaged in an undercover investigation of

an   international     drug    smuggling      operation.    As   part      of   that

investigation, DEA agents posed as drug smugglers capable of

transporting large quantities of narcotics into the United States.

The agents were introduced to Valencia, who indicated that he was

interested in procuring their services.

      After   several    months    of    negotiations,      Valencia    and     the

undercover agents agreed upon a plan to transport several hundred

kilograms of cocaine into the United States.                 In May 1991, the

officers   flew   to    an    airstrip   in    Guatemala    using    coordinates

provided by Valencia, picked up 410 kilograms of cocaine, and

returned to Corpus Christi.         Four days later, as the cocaine was

being driven to Houston, law enforcement officers seized it in a

staged traffic stop.

      In 1992, Valencia was indicted and charged with conspiracy to

import narcotics into the United States, in violation of 21 U.S.C.

§§ 952(a), 960(b)(1)(B)(ii), and 963.              During the investigation

following the indictment, however, it was learned that Valencia had

been arrested in July 1991 by authorities in the Dominican Republic

                                         2
on    charges    relating        to    the    importation    of    cocaine   into    that

country.    Dominican authorities denied the DEA’s request to have

Valencia released into United States custody, but informally agreed

to notify the DEA prior to his release.                     After this agreement was

reached, DEA officials began inquiring into Valencia's status every

six to nine months, but no formal extradition request was ever

filed.

       In January 2000, the DEA began attempts to locate Valencia in

the    Dominican    prison        system      using   marshals      stationed   in   the

Dominican Republic.              The search was slowed by the fact that

prisoners could only be identified by physically entering the

prisons and reading handwritten notes placed on cards assigned to

each prisoner.            In    October       2001,   DEA   officials   learned      that

Valencia had received a presidential pardon and had been released

and deported to Colombia in December 1999.                        It was also learned

that Valencia had been held as a non-sentenced prisoner, meaning

that he was never convicted of a crime.

       In October 2001, the DEA discovered that Valencia recently had

been re-arrested by Dominican authorities for attempting to deposit

counterfeit money into a bank account that he controlled in that

country.        The DEA secured an agreement from Dominican officials

that     they     would        expel    Valencia      from    the    country    as     an

"undesirable."        He was placed on a flight to Colombia with a

stopover in Miami, Florida.                  Upon arrival in Miami on October 18,

2001, Valencia was taken into United States custody.

                                                3
     Valencia received appointed counsel on November 29, 2001, and

filed a motion to dismiss the indictment for violation of the Sixth

Amendment right to a speedy trial on December 21, 2001.     After a

hearing on this motion, the district court found that Valencia's

Sixth Amendment right had not been violated by the delay between

his initial indictment and his arrest by United States authorities.

     The case proceeded to trial and a jury found Valencia guilty

in May 2002.     The district court sentenced Valencia to life

imprisonment on each count, to be served concurrently.

                                 II

     Valencia contends that the nearly nine-year delay between his

indictment in 1992 and his arrest in 2001 violated his Sixth

Amendment right to a speedy trial.    We review the district court’s

determinations regarding speedy trial violations for clear error.

See United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002).

     To determine whether a defendant’s right to a speedy trial has

been denied, we apply a four-factor test derived from the Supreme

Court’s opinion in Barker v. Wingo, 407 U.S. 514 (1972).        The

relevant factors are “(1) the length of the delay, (2) the reason

for the delay, (3) the defendant’s diligence in asserting his Sixth

Amendment right, and (4) prejudice to the defendant resulting from

the delay”.   United States v. Cardona, 302 F.3d 494, 496 (5th Cir.

2002) (citing Barker, 407 U.S. at 530-33).

     The first factor, length of delay, is a “triggering mechanism”

for determining whether the court is required to balance the

                                 4
remaining three factors.   We previously have held that a one-year

delay is sufficient to warrant judicial examination of a speedy

trial claim.   See United States v. Bergfeld, 280 F.3d 486, 488 (5th

Cir. 2002); see also Doggett v. United States, 505 U.S. 647, 652 n.

1 (1992).   In this case, the parties agree that the overall delay

runs from Valencia’s indictment in 1992 until his arrest in 2001.

Accordingly, we must analyze the remaining three Barker factors.

     Our analysis hinges, to a large extent, on the second factor:

the reason for the government’s delay in prosecuting Valencia.   As

explained supra, the first seven years of the delay in this case

resulted from Valencia’s arrest and incarceration in the Dominican

Republic.   As such, Valencia acknowledges that only the remaining

two years –- i.e., the period beginning with his release from

Dominican custody in December 1999 and ending with his arrest in

October 2001 –- are even arguably attributable to a lack of

diligence on the part of the government.

     Nonetheless, Valencia contends that the remaining two-year

delay was the product of government negligence.     Valencia argues

that the government was negligent in failing to file a formal

request for extradition, which ostensibly would have permitted

United States authorities to apprehend Valencia immediately upon

his release from Dominican custody.    We do not agree.

     Although the government did not formally request extradition,

the United States did procure an agreement from Dominican officials

to notify the DEA prior to Valencia’s release.   Not content to rely

                                 5
exclusively on this agreement, the DEA made regular inquiries into

Valencia’s   status   throughout   his    incarceration,     a    task   made

significantly more difficult by the Dominican Republic's antiquated

and unreliable record-keeping system.          In October 2001, the DEA

learned that Valencia had obtained release via a presidential

pardon, and that the Dominican authorities had failed to provide

the promised notice.    Later that month, upon receiving information

that Valencia had again been arrested in the Dominican Republic,

the DEA secured an agreement with Dominican authorities by which he

would be expelled and subsequently arrested.

     In sum, the final two years of delay in this case cannot be

attributed to negligence on the part of the government.            Although

it may be arguable –- but by no means certain1 –- that the

government could have pursued a more aggressive means of securing

Valencia for   trial,   its   efforts    to   that   end   were   reasonably

diligent.    As such, we conclude that the second Barker factor

weighs heavily against a finding that Valencia’s right to a speedy

trial has been violated.

     We need not dwell long on the third Barker factor –- i.e., the

defendant’s diligence in asserting his Sixth Amendment right.             The

record contains no evidence that Valencia was aware of the charges


     1
       As the government notes, given (1) the Dominican Republic’s
failure to comply with the informal notification agreement, and (2)
the poor record-keeping practices of Dominican prisons, there is no
reason to assume that Dominican authorities would have successfully
carried out their obligations under a formal extradition agreement.

                                   6
pending against him in the United States prior to his arrest in

Miami.    Thus, his failure to assert his right to a speedy trial

until    roughly   one   month    after     his   capture   by   United   States

authorities, and nine years after his initial indictment, is not

taxed against him.

     As to the final factor in the Barker analysis –- whether the

delay has prejudiced the defendant –- Valencia concedes that he can

identify no specific instance of prejudice flowing from the delay.

He argues, however, that the length of the delay in this case

entitles him to a presumption of prejudice.

     When evaluating a defendant's claim that prejudice should be

presumed,

              the Supreme Court has held that if the
              government diligently pursues a defendant from
              indictment to arrest, prejudice will never be
              presumed. In contrast, if the government acts
              in bad faith, i.e., intentionally holds back
              in its prosecution of the defendant to gain
              some impermissible advantage at trial, the
              delay will weigh heavily in favor of the
              defendant.     If a case involves neither
              diligent prosecution nor bad faith delay but
              instead official negligence, the case occupies
              a "middle ground" where the weight assigned to
              the factor increases as the length of the
              delay increases. A court's toleration of such
              negligence    varies   inversely    with   its
              protractedness.

United States v. Serna-Villareal, 352 F.3d 225, 232 (5th Cir.

2003)(internal quotations omitted). In this case, although the two

years    of     delay    not     directly     attributable       to   Valencia’s

incarceration in the Dominican Republic are not insignificant, the


                                       7
government’s diligence in pursuing Valencia and the lack of any

evidence of bad faith preclude a presumption of prejudice.

     In   sum,   although   the   nine-year   delay   between   Valencia’s

indictment and arrest was indeed substantial, the causes of that

delay –- i.e., Valencia’s incarceration and the unpredictable

nature of the Dominican penal system –- weigh heavily against a

finding that Valencia’s right to a speedy trial has been violated.

We therefore hold that the district court did not clearly err in

denying Valencia’s motion to dismiss for violation of his Sixth

Amendment right.

                                    III

     With respect to the other issues raised in Valencia’s appeal,

we have reviewed the briefs and the record, and have concluded that

the district court committed no reversible error.2          Accordingly,

the judgment of the district court is, in all respects,

                                                                 AFFIRMED.




     2
       Valencia contends that the district court erred in (1)
admitting two telephone calls and a facsimile into evidence without
proper authentication; (2) failing to overrule an objection to the
prosecutor’s remarks in closing argument regarding the credibility
of a witness; (3) assessing a two-level upward departure in his
sentence for the use of a non-commercial aircraft in the
importation of the cocaine; and (4) relying upon information in the
pre-sentencing report as a basis for assessing a three-level upward
departure for Valencia’s managerial role in the importation
operation. Valencia also raises two issues for the first time on
appeal: an objection to his sentence under United States v. Booker,
      U.S.      , 125 S. Ct. 738 (2005), and a Fifth Amendment
challenge based on “outrageous government conduct”.

                                     8
