                                                                           FILED
                                                                           AUG 26 2013
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                     No. 11-50510

             Plaintiff-Appellee,              D.C. No. 2:07-cr-00914-GW-1

 v.
                                              MEMORANDUM*
XUE CHENG DONG,

             Defendant-Appellant.




                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                      Argued and Submitted October 12, 2012
                               Pasadena, California



Before: PREGERSON and W. FLETCHER, Circuit Judges, and PIERSOL, Senior
District Judge.**



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, sitting by designation.
      Xue Cheng Dong appeals his conviction, pursuant to a conditional guilty

plea, for conspiracy in violation of 18 U.S.C. § 371. Dong reserved the right to

appeal the denial of his motion to dismiss for post-indictment delay in violation of

his Sixth Amendment right to a speedy trial. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      We review Sixth Amendment speedy trial claims de novo and factual

findings for clear error. United States v. Corona-Verbera, 509 F.3d 1105, 1114

(9th Cir. 2007). We evaluate such claims under the four-part inquiry announced by

the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Under the Barker

test, we balance (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the

defendant. Id. at 530. None of these four factors, however, is “either a necessary or

sufficient condition to the finding of a deprivation of the right of speedy trial.” Id.

at 533. Rather, we must consider them “together with such other circumstances as

may be relevant” and “engage in a difficult and sensitive balancing process.” Id.

      When considering whether the length of delay will trigger a Barker speedy

trial inquiry, we must first find the delay passed the one-year threshold point for

being presumptively prejudicial. See United States v. Beamon, 992 F.2d 1009,

1012 (9th Cir. 1993). Here, the nearly three-year delay between Dong’s indictment

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and his arrest is sufficient to trigger our Barker inquiry. Therefore, we must

consider the extent to which the delay exceeded the threshold point in light of the

degree of diligence exercised by the government and the prejudice to Dong. Id.

      After reviewing the record, we conclude that the government was negligent

in causing the delay because, three weeks before Dong was indicted, the

government deported him to China, a country with no extradition treaty with the

United States. Furthermore, the government made no effort to locate Dong in

China. We have held that “where the government is negligent . . . prejudice will be

presumed and its weight in defendant's favor will depend on the length of the

delay.” United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir. 1993) (citing

Doggett v. United States, 505 U.S. 647, 657 (1992)). “While such presumptive

prejudice cannot alone carry a Sixth Amendment claim without regard to the other

Barker criteria, it is part of the mix of relevant facts, and its importance increases

with the length of delay.” Doggett, 505 U.S. at 655-56 (internal citation omitted).

“Accordingly, under the fourth Barker factor, when the delay is excessive, the

weight we assign to official negligence compounds over time as the presumption of

evidentiary prejudice grows, and our toleration of . . . negligence varies inversely

with its protractedness and its consequent threat to the fairness of the accused’s

trial.” United States v. Erenas-Lunas, 560 F.3d 772, 779 (9th Cir. 2009) (quoting

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Doggett, 505 U.S. at 657) (internal quotation marks omitted).

      Despite the presumption of prejudice, we hold that the district court did not

err when it found that the post-indictment delay suffered by Dong did not violate

the Sixth Amendment. The delay was only negligently brought on by the

government and was not of such substantial length and severity as to necessitate a

dismissal. It is unlikely that Dong would have voluntarily returned to the United

States to be subjected to a criminal trial had he been made aware of the indictment.

In addition, there is no suggestion that the delay prejudiced Dong’s ability to

mount a defense to the charges. Furthermore, Dong does not name any witnesses

who were lost to him or allege there was some evidence he was unable to offer to

rebut the charges against him.

      After examining the four Barker factors, we do not find a violation of

Dong’s Sixth Amendment right to a speedy trial.

      AFFIRMED.




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