                                PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ____________

               No. 12-3992
              _____________

    UNITED STATES OF AMERICA

                     v.

         SERGIO VELAZQUEZ,

                                  Appellant


Appeal from the United States District Court
  for the Eastern District of Pennsylvania
  (District Court No. 2-05-cr-00432-003)
 District Judge: Honorable Jan E. DuBois


         Argued October 17, 2013
 Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges

               (Opinion Filed: April 14, 2014)


Jerome Kaplan, Esquire (Argued)
Kaplan, Kenegos & Kadin
9150 Wilshire Boulevard, Suite 175
Beverly Hills, CA 90212

             Counsel for Appellant

Zane David Memeger, Esquire
United States Attorney
Robert A. Zauzmer, Esquire
Assistant United States Attorney
Bernadette McKeon, Esquire (Argued)
Assistant United States Attorney
Joseph T. Labrum, III, Esq.
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

             Counsel for Appellee




        *Honorable Kermit V. Lipez, Senior United States
Circuit Judge for the Court of Appeals for the First Circuit,
sitting by designation.




                             2
                         OPINION


LIPEZ, Circuit Judge:

        We consider whether the right to a speedy trial
guaranteed in the Sixth Amendment is violated when, after an
initial effort to apprehend the defendant, the government’s
effort for nearly five years consists only of running the
defendant’s name a handful of times through the National
Crime Information Center (“NCIC”) database, despite other
available leads. Although the authorities in this case revived
their efforts after the five-year lull, the defendant happened to
be caught when he was arrested on an unrelated matter.
Applying the four-factor test from Barker v. Wingo, 407 U.S.
514 (1972), and the Supreme Court’s elaboration of those
factors in Doggett v. United States, 505 U.S. 647 (1992), we
conclude that the government violated defendant’s speedy
trial right. Thus we reverse the district court’s denial of
defendant’s motion to dismiss on speedy trial grounds, and
remand the case with instructions to dismiss the indictment
with prejudice.

                               I.

      We recount the basic facts of the investigation,
drawing from the testimony and reports before the district




                               3
court detailing efforts to bring defendant Sergio Velazquez to
trial.1
        A.    The drug investigation

       The Drug Enforcement Administration (“DEA”) began
investigating Velazquez in June 2005, after receiving a tip
that he was interested in selling cocaine to a confidential
informant. App. 149a. Velazquez traveled from California to
Philadelphia to meet with co-defendant Pedro Curiel and the
informant. App. 149a-50a. The informant wore a wire to that
meeting, recording discussions of a plan to sell between five
and ten kilograms of cocaine. App. 149a-53a. After the
meeting, the DEA had Philadelphia police stop Curiel and
Velazquez’s car to identify the men. App. 150a-51a. The
DEA learned Velazquez’s name, that he had a California
driver’s license, and that he listed his address as a postal box
in the greater Los Angeles area (P.O. Box 2901, Bell
Gardens, CA, hereafter “Box 2901”). App. 383a. Velazquez
was not arrested. App. 152a. He returned to California.

       The DEA monitored the informant’s calls with
Velazquez. Id. On July 27, 2005, they tracked Curiel as he
met with the informant and then met co-defendant Nelkis
Gutierrez-Gainza at a truck stop. App. 152a-54a. Gutierrez-
Gainza gave Curiel a sack and Curiel drove away. When
agents then stopped Curiel they recovered the sack and
determined it contained nine kilograms of cocaine. Id. They
arrested the two co-defendants.


1
  We borrow the general organization of the district court’s
thorough factual recitation.




                               4
      B.     The initial search for Velazquez and Deputy
             Degan’s report

        The co-defendants were indicted on August 2, 2005; a
complaint and arrest warrant issued for Velazquez the next
day. David Pedrini, a DEA special agent in Philadelphia,
testified before the district court that he had a fellow agent
from Los Angeles, Steve Pascoe, go to 6340 Woodward
Avenue, Bell, California (“Woodward Avenue address”), an
address that Pedrini had learned was “associated with”
Velazquez. App. 155a-56a.2 According to Pedrini, Pascoe
spoke to a man, a woman, and two children “to see if one of
them was Mr. Velazquez and the results were negative, he
was not at that address.” App. 155a. The DEA declared
Velazquez a fugitive, turning over the task of apprehending
him to the United States Marshals Service office in
Philadelphia. App. 155a-56a. They gave the Marshals
Service a personal history report on Velazquez, and told
William Degan, the office’s deputy marshal assigned to the
case, about the Woodward Avenue address. App. 157a.

       In addition to searching for credit applications,
department of motor vehicle reports, and records for any
property or vehicle purchases by Velazquez, Degan entered
the warrant into the NCIC database,3 and into a Marshals

2
  It appears this link was based on registration paperwork for
the postal box. See App. 388a (stating that the Woodward
Avenue address was “[t]he address listed for” Velazquez’s
postal box).
3
 The NCIC is an “electronic clearinghouse of crime data that
can be tapped into by virtually every criminal justice agency




                              5
Service information system called the Warrant Information
Network. App. 277a-280a. Among the various pieces of
information he entered were Velazquez’s name, aliases,4 his
alien registration number, his Social Security number, a
physical description, his driver’s license, and the Box 2901
address. Id. Entering Velazquez into the NCIC would allow
any law enforcement agency, if it encountered Velazquez, to
learn that he was wanted by checking his information against
the database. The law enforcement agent could then take him
into custody after verifying that the government intended to
prosecute.




nationwide, 24 hours a day, 365 days a year.” FBI —
National            Crime        Information         Center,
http://www.fbi.gov/about-us/cjis/ncic (last visited Jan. 23,
2014). The database is organized by “files” that contain sets
of records. For example, Deputy Degan entered Velazquez’s
information into the “Wanted Persons File,” which consists of
records on individuals with outstanding warrants. FBI —
 NCIC Files, http://www.fbi.gov/about-us/cjis/ncic/ncic_files
(last visited Jan. 23, 2014).
4
  The report states that Velazquez was also known as Sergio
Velazquez-Payan and Sergio Payan. App. 385a. These are
permutations of his surname from his father (Velazquez) and
from his mother (Payan). The government does not contend
that these aliases are misleading. They are, in fact, a common
result of using Spanish surnames in the United States. The
report also uses “Velasquez,” but does not acknowledge this
spelling change or label it an alias. See App. 386a.




                              6
        Degan then prepared a collateral request, which is a
request for investigative assistance from a Marshals Service
office in another jurisdiction. App. 175a-76a. The request,
dated October 7, 2005, sought help from the Marshals Service
taskforce in the Los Angeles area, which consisted of
marshals and local law enforcement officers. See App. 284a-
85a, 385a. Degan’s request noted the unfruitful trip to the
Woodward Avenue address, mentioned that DEA agents from
Los Angeles “also checked a number of other addresses” —
without identifying the addresses — and then offered a
number of leads in the form of past addresses for Velazquez,
as listed in databases:

      -   Velazquez’s mother’s name and a possible address
          for her in Pico Rivera, CA
      -   The Box 2901 address
      -   The address of a home in Bell Gardens, CA, that
          Velazquez appeared to have bought in 1999, and
          the name of a woman who bought it with him
      -   The phone number Velazquez used during the DEA
          investigation, with an indication that Velazquez’s
          calls may have been made from a calling card
      -   An address in Paramount, CA
      -   The Woodward Avenue address and its possible tie
          to Velazquez’s brother, Elias
      -   A Huntington Park, CA address associated with
          Cecilio Vasquez (relationship to Velazquez
          unknown)
      -   A further address in Bell, CA, associated with
          Velazquez’s mother

App. 385-86a. The report concluded with this request, in
relevant part: “Contact DEA [Special Agent] Scott Pascoe”




                             7
— the officer who had checked on the Woodward Avenue
home — “regarding their efforts in Los Angeles to locate
[Velazquez]” and “if all leads . . . are exhausted, please
interview his parents” at the Pico Rivera address, “and his
brother, Elias Velasquez.” App. 386a.

      C.     Deputy Degan’s testimony about the response
             to his report

        Degan transferred from his position at the Marshals
Service in the Eastern District of Pennsylvania in late
November 2005, about seven weeks after he sent his report.
App. 290a. At the district court’s hearing, Degan testified
that, based on an exhibit showing that an officer at the Los
Angeles Police Department ran a check for Velazquez
through NCIC on October 31, 2005, it appeared that his
collateral request was received. App. 289a, 403a. According
to Degan, this NCIC check would have been “the first thing I
would do before I’d go out and attempt to find him.” App.
289a. Degan agreed that the exhibit did “not indicate that
they went out and talked to anybody.”5 App. 296a. Degan
said that some communication between the requesting officer
and the officer receiving the request would be by phone, but
that it was standard practice to then make a written record of
work done.        App. 298a.        He did not recall any

5
 The district court stated that Degan “believed that work was
underway on the request” because of the October 31 NCIC
check, United States v. Velazquez, No. 2-05-cr-00432-003,
2012 WL 2094061, at *4 (E.D. Pa. June 11, 2012), but
Degan’s testimony about the NCIC check only pertained to
whether he thought the report was received, see App. 289a.




                              8
communications from the taskforce in Los Angeles about his
request. App. 289a-90a, 300a-02a.

      D.     Communication with Velazquez’s attorney;
             superseding indictment

       On November 1, 2005, an assistant U.S. attorney in
Philadelphia sent a copy of the complaint and warrant to
Velazquez’s counsel in California, Jerome Kaplan, and both
sides stipulated below that Kaplan received these documents.6
App. 232a. The record does not explain how the assistant
U.S. attorney knew Kaplan represented Velazquez, but
Kaplan has represented that Velazquez hired him to contact
the U.S. attorney to discuss a potential surrender. Appellant’s
Reply Br. 11.7 Three weeks later, a superseding indictment
was filed, charging Velazquez with one count of conspiracy
to distribute and to possess with intent to distribute five
kilograms or more of cocaine, and one count of knowingly
and intentionally distributing, and aiding and abetting the
distribution of, five kilograms of more of cocaine. See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A) (underlying drug statutes);
21 U.S.C. § 846 (conspiracy); 18 U.S.C. § 2 (aiding and
abetting). The indictment was not sent to Kaplan. App. 244a.
After the indictment, the government did not communicate

6
 The parties did not explore whether Kaplan told Velazquez
about these documents because they agreed such testimony
would implicate the attorney-client privilege.
7
  The record does not disclose when Velazquez hired Kaplan
for this purpose. Kaplan is also Velazquez’s attorney on
appeal.




                              9
again with Velazquez’s counsel.          Neither Kaplan nor
Velazquez appeared at the arraignment in Philadelphia in
December 2005.        Appointed local counsel entered an
appearance on Velazquez’s behalf, but there is no indication
that this counsel represented Velazquez in any further
capacity, or told him of the indictment. The assistant U.S.
attorney stated at the arraignment that “my understanding
from my last conversation with Mr. Kaplan was that he was
planning to surrender Mr. Velazquez, but that has not
happened. And I have had no further contact with Mr.
Kaplan . . . .” App. 8a-9a (alterations omitted).

      E.      Marshals Service and DEA efforts from
              November 2005 to November 2010

       From November 2005 until November 2010,
authorities checked the NCIC eight times to see if any law
enforcement agency had encountered Velazquez. App. 384a,
392a-403a. At the Marshals Service, someone in the
Philadelphia office or the headquarters in Arlington, Virginia,
checked the NCIC four of those eight times — in November
2007, January 2008, February 2008, and September 2009. Id.
For his part, DEA Agent Pedrini in Philadelphia, one of the
agents who had worked on the initial investigation, checked
with the U.S. Attorney’s Office each year to make sure the
office was still willing to prosecute. He also made sure the
warrant was still active in the NCIC, and he contacted the
Marshals Service to ask if they had any new information.
App. 158a-61a.8 Records show DEA inquiries on the NCIC

8
  The district court stated that the efforts of the Marshals
Service and DEA from November 2005 to November 2010




                              10
in January 2007, September 2007, October 2008, and October
2010. App. 392a-403a. At some point, Pedrini put
Velazquez on the “Most Wanted” section of the website for
the DEA’s office in Philadelphia. App. 160.9 He testified
that he believed “we could” have put Velazquez on the “Most
Wanted” section for Los Angeles, where authorities believed
he was living, but “it didn’t happen.” Id. In 2008, for reasons
unclear from the record, the warrant for Velazquez was
removed from the NCIC. Pedrini noticed the removal and
contacted the Marshals Service, ensuring that the warrant was
restored to the database. See App. 158a-61a.




included periodic checks of commercial databases (such as
those that might reveal vehicle purchases). Velazquez, 2012
WL 2094061, at *4. This observation is not supported by the
testimony from Deputy Marshal Enrico Ilagan that the court
cited. See id.; App. 207a-08a (Ilagan clarifying that the
example discussed happened in August 2005, as part of
Deputy Degan’s work). In an example not cited by the
district court, Ilagan testified that he thought another deputy
ran a check in January 2008 that included a commercial
database. App. 182a. Ilagan was testifying about an exhibit
outlining the investigation, but the relevant descriptions for
two database checks in January and February of 2008 state
only “NCIC Criminal History ran” and “NCIC check/No new
info.” App. 384a. The government conceded in its closing
argument before the district court that these were only NCIC
checks. App. 364a.
9
    It is not clear at what point Pedrini took this step.




                                  11
        There was no testimony or documentation before the
district court to show any further steps taken to find
Velazquez in this five-year period. No law enforcement
agency tried to visit the addresses Deputy Degan identified in
his October 2005 collateral request for assistance; no one
returned to the Woodward Avenue address where
Velazquez’s brother lived; no one contacted his parents; no
one contacted Agent Pascoe, the agent in Los Angeles who
first checked the Woodward Avenue address, to find out what
investigative steps had been taken; no one contacted Kaplan,
Velazquez’s attorney, despite his conversation with a
prosecutor before the indictment was issued; and no one
conducted searches of commercial databases or other
governmental databases beyond the NCIC. Those other
databases could have been particularly helpful. They would
have shown, for example, any new property records, traffic
tickets, birth records, any records from the armed forces, or
any immigration changes. See App. 164a-68a (admission of
Agent Pedrini that such records and databases were
available); see also App. 230a (Deputy Marshal Enrico
Ilagan’s similar testimony with respect to automobile
records).

       Degan testified that it was “standard practice” for an
officer working on a case to make a written record of steps
taken, but that it was not unusual that he had received no
written response from the Marshals taskforce in Los Angeles
before he transferred. App. 298a-99a. He suggested that the
absence of a written response could mean that someone was
still working on the investigation. Id. Nevertheless, there is
no evidence that anyone on the Marshals taskforce in Los
Angeles wrote a response to Degan’s report after Degan’s
departure in November 2005. It is not clear who had




                             12
responsibility for the investigation after Degan until
November 2010, when Deputy Marshal Ilagan, also of the
Philadelphia office of the Marshals Service, began working
on the case. App. 173a. Degan testified that “these cases are
considered a priority and it would have been reassigned to
somebody.” App. 290a.           Ilagan stated that he thought
Deputy Marshal Cardinal, presumably in the same
Philadelphia office,10 was working on the case at the time he
started to work on it, but he did not know “how long she had
the case,” and he could not say she was in charge over the
interim five-year period. App. 339a-40a.

      F.     Efforts from November 2010 to June 2011; new
             collateral request

       Ilagan’s first step was to run an NCIC check, along
with a search of a Lexis-Nexis database that compiles
information from public and commercial records. App. 174a-
75a, 194a-95a.        That search turned up Velazquez’s
application to renew his California driver’s license, with a
postal box address of Box 2037 (“Box 2037”) in Bell
Gardens, CA, as well as a possible job for Velazquez at an
auto repair shop in California. App. 174a.11 Ilagan recalled

10
  It appears Deputy Marshal Cardinal was in the Philadelphia
office, as there is no indication in the record that someone
outside that office was ever in charge of the case.
11
   Ilagan did not recall where in California the shop was
located. App. 174a-75a. The record shows that Velazquez
began using the Box 2037 address at least by 2010. See, e.g.,
App. 129a-31a, 136a. Velazquez has represented that Box
2037 and Box 2901 were in the same post office, Appellant’s




                             13
calling the garage and asking for Velazquez, but the business
“didn’t know anything about him.” Id. Ilagan continued
periodically to check databases. In June 2011, he came
across a possible connection between a phone number listed
on Velazquez’s paperwork for Box 2901 and a new address in
Norwalk, CA. App. 175a, 186a; see also App. 388a.12 This
possible connection led Ilagan to submit a new collateral
request on June 22, 2011, for assistance from the Marshals
Service taskforce in Los Angeles. App. 42a-43a. This
request was the same type of request that Deputy Degan had
written in 2005. Ilagan identified the Norwalk address, noted
that Velazquez was receiving mail at Box 2901, and that the
residential address listed for that box was the Woodward
Avenue address, an “old address” that Velazquez “used in the
past.” App. 388a. Ilagan noted that it was not clear if there
was any connection between Velazquez and the two people
living at the Norwalk address, but that it was possible he was
living there because it “is only 7 miles away from
[Velazquez’s] relatives that live [in the] Bell Gardens, CA
area.” Id.

Br. 12 n.2, and the government does not contest this point. At
some point Ilagan determined that both postal boxes were
connected to the Woodward Avenue address that Velazquez
at times listed for his home, and that turned out to be his
brother’s house. App. 189a; see also App. 388a.
12
   It appears that Ilagan found the phone number Velazquez
provided on the registration form for his postal box, and then
searched phone records for any residence connected to that
phone number. See App. 388a. This phone was different
from the one Velazquez was said to have used during the
DEA investigation. Compare id. with App. 386a.




                             14
      G.     Investigative steps in the summer of 2011

        Ilagan’s request was received by the Marshals Service
taskforce and assigned to Deputy David Dominguez in Los
Angeles.13 On July 7, 2011, Ilagan received an e-mail
notifying him that it appeared Velazquez had applied to
renew his permanent resident card because the FBI received
fingerprint submissions from the application that matched
Velazquez’s prints on file. App. 176a. Ilagan informed
Dominguez and then tried to get United States Citizenship
and Immigration Services (“USCIS”) to help apprehend
Velazquez by arresting him when he went to the USCIS
office to pick up his fingerprint card. App. 177a. The agency
declined to help because of legal liability concerns. Id.

       Ilagan then suggested to Dominguez that he “might
have to sit and do surveillance” at the Woodward Avenue
address. Id. Dominguez did not testify before the district
court, but he did take notes of the steps he took. App. 314a-
15a, 414a. Those notes reflect that he “sat surveillance” at
the Woodward Avenue address on the afternoon of July 15,
2011, noted license plate numbers for two vehicles in the
driveway, but did not find Velazquez. App. 414a. He
contacted Velazquez’s post office and learned that employees
there recognized Velazquez, that Velazquez came often to

13
   The record is silent on which law enforcement agency
employed Deputy Dominguez. This is the first time in the
record that a Marshals Service taskforce officer in Los
Angeles is identified by name as having responded to a
collateral request for help in finding Velazquez.




                             15
collect his mail, but did not do so at a particular time. Id. At
some point that summer Dominguez performed surveillance
for half a day at the post office, without finding Velazquez.
Id. He also surveilled the Norwalk address on July 20, 2011,
and went to an address in Baldwin Park, CA, that he thought
might be connected to Velazquez. Id. None of these steps
taken in the summer of 2011 was fruitful, nor was a search for
payroll tax records for Velazquez. App. 412a-13a, 323a-26a.

       H.     December 2011 apprehension and subsequent
              guilty plea

       Velazquez was apprehended on December 9, 2011,
after police in Glendale, CA, arrested him on an unrelated
narcotics charge. App. 384a, 393a. The DEA in Philadelphia
confirmed that the government remained willing to prosecute
Velazquez for the 2005 charges. App. 161a-62a. Velazquez
was then served with the arrest warrant and extradited to the
Eastern District of Pennsylvania. Id.

       On March 28, 2012, Velazquez filed a motion to
dismiss the indictment on the basis of a speedy trial violation.
App. 62a. The district court denied the motion, Velazquez,
2012 WL 2094061, finding that the government was
reasonably diligent in pursuing Velazquez. Thus Velazquez
had to show specific prejudice to his defense from the long
delay between indictment and arrest, and the court held that
he did not make this showing. Id. at *13 (citing Doggett v.
United States, 505 U.S. 647, 656 (1992)).

       To support its finding of reasonable government
diligence, the court explained that the failed efforts to find
Velazquez at the Woodward Avenue address in August 2005




                              16
and July of 2011 meant that “the government was unlikely to
find defendant based on the information available to it as of
November 2005,” and thus “the government reasonably
elected to conserve its resources and wait for new information
or a change in circumstances.” Id. at *11. The court also
stated that the government’s reasonable efforts would have
found Velazquez earlier if not for his “transient” lifestyle. Id.
at *10 (citing United States v. Mundt, 29 F.3d 233, 236 (6th
Cir. 1994)).

       Velazquez pleaded guilty on June 29, 2012, pursuant
to a plea agreement in which he reserved his right to appeal
the speedy trial issue. He was sentenced in October 2012 to
80 months in prison, with five years of supervised release.
Velazquez then filed this timely appeal.14 We recount further
facts below as needed for our analysis.

                               II.

       Barker established a four-factor test for evaluating
whether the constitutional right to a speedy trial has been
violated. The inquiry focuses on: (1) the length of the delay
before trial; (2) the reason for the delay and, specifically,
whether the government or the defendant is more to blame;
(3) the extent to which the defendant asserted his speedy trial
right; and (4) the prejudice suffered by the defendant. 407
U.S. at 530-31.       “[N]o one factor is dispositive nor
‘talismanic.’” Hakeem v. Beyer, 990 F.2d 750, 770 (3d Cir.
1993) (quoting Barker, 407 U.S. at 533). We review de novo

14
  The district court had jurisdiction over this case under 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.




                               17
the district court's legal conclusion that Velazquez failed to
establish a violation of his constitutional right to a speedy
trial; we apply clear error review to the factual findings
underpinning that legal conclusion. United States v. Battis,
589 F.3d 673, 677 (3d Cir. 2009); Burkett v. Fulcomer, 951
F.2d 1431, 1437 (3d Cir. 1991).

       A.     Length of delay

     The first factor is actually “a double enquiry,”
Doggett, 505 U.S. at 652:

              Simply to 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, since, by definition, he
       cannot complain that the government has denied
       him a “speedy” trial if it has, in fact, prosecuted
       his case with customary promptness. If the
       accused makes this showing, the court must
       then consider, as one factor among several, the
       extent to which the delay stretches beyond the
       bare minimum needed to trigger judicial
       examination of the claim. This latter enquiry is
       significant to the speedy trial analysis because .
       . . the presumption that pretrial delay has
       prejudiced the accused intensifies over time.

Id. (citations omitted). In other words, a court first decides
whether the delay is long enough that it should trigger
analysis of other Barker factors. Id. If it is, the length of the
delay is also separately weighed in the court’s analysis of the




                                18
remaining factors. Id. The Supreme Court has noted that
“the lower courts have generally found ‘postaccusation
delay’” long enough to trigger further review of Barker
factors “at least as that delay approaches one year.” Id. at 652
n.1. This Circuit has concluded that a delay of fourteen
months is “sufficient to trigger review of the remaining
Barker factors,” Battis, 589 F.3d at 678 (citing Hakeem, 990
F.2d at 760), and once that threshold has been passed, “the
state, not the prisoner, bears the burden to justify the delay,”
Hakeem, 990 F.2d at 770.

        The district court correctly found here that the delay
between the November 2005 superseding indictment and
Velazquez’s scheduled trial date of July 2012 crossed the
threshold of prejudicial delay to justify analysis of the
remaining Barker factors. The government concedes this
point, Gov. Br. 25, and understandably so. The Supreme
Court has characterized delays on this scale as
“extraordinary.” See Barker, 407 U.S. at 533 (using that term
to describe a delay between arrest and trial of over five
years); see also Doggett, 505 U.S. at 652 (noting that “the
extraordinary 8 ½ year lag between Doggett’s indictment and
arrest clearly suffices to trigger the speedy trial enquiry”).
Accordingly, we note the strength of Velazquez’s showing on
this factor and move on to the heart of the appeal.

       B.     The reason for the delay

       This factor, the “flag all litigants seek to capture,”
United States v. Loud Hawk, 474 U.S. 302, 315 (1986),
appropriately consumed the bulk of the district court’s
analysis. Doggett described the range of government effort to
pursue an accused as extending from “reasonable diligence”




                              19
to “bad-faith delay.” 505 U.S. at 656. With the former, the
defendant's speedy trial claim will fail “however great the
delay, so long as [the accused] could not show specific
prejudice to his defense.” Id. Bad-faith delay, meanwhile,
“would make relief virtually automatic.” Id. at 657. Between
the two is a “more neutral reason such as negligence,” which
weighs against the government, albeit “less heavily” than a
deliberate or bad-faith delay. Barker, 407 U.S. at 531.
Negligence “still falls on the wrong side of the divide
between acceptable and unacceptable reasons for delaying a
criminal prosecution once it has begun.” Doggett, 505 U.S. at
657. Just as the government has the burden to prosecute a
case, it also has the burden to justify a delay once the Barker
enquiry has been triggered. See Hakeem, 990 F.2d at 770
(citing Barker, 407 U.S. at 527). If “the defendant is not
attempting to avoid detection and the government makes no
serious effort to find him, the government is considered
negligent in its pursuit.” United States v. Mendoza, 530 F.3d
758, 763 (9th Cir. 2008) (citing Doggett, 505 U.S. at 653).

        Negligence over a sufficiently long period can
establish a general presumption that the defendant’s ability to
present a defense is impaired, meaning that a defendant can
prevail on his claim despite not having shown specific
prejudice. See Doggett, 505 U.S. at 658 (finding a speedy
trial violation based on general prejudice where government’s
negligence led to six-year delay). This general presumption
applies because “impairment of one's defense is the most
difficult form of speedy trial prejudice to prove because time's
erosion of exculpatory evidence and testimony ‘can rarely be
shown.’” Id. at 655 (quoting Barker, 407 U.S. at 532). “Thus,
we generally have to recognize that excessive delay
presumptively compromises the reliability of a trial in ways




                              20
that neither party can prove or, for that matter, identify.”
Doggett, 505 U.S. at 655.

        This general presumption may be rebutted, but it is
difficult to do so. The prosecution is essentially put to the test
of proving a negative — the absence of any prejudice to a
defense from the passage of years. See id. at 658 n.4 (noting
the prosecution “ably counter[ed] Doggett’s efforts to
demonstrate particularized trial prejudice [but] it has not, and
probably could not have, affirmatively proved that the delay
left his ability to defend himself unimpaired”) (emphasis
added). As Doggett further noted, such a test is demanding,
but it should not surprise the government:

       [T]he weight we assign to official negligence
       compounds over time as the presumption of
       evidentiary prejudice grows.        Thus, our
       toleration of such negligence varies inversely
       with its protractedness, and its consequent
       threat to the fairness of the accused's trial.
       Condoning prolonged and unjustifiable delays
       in prosecution would both penalize many
       defendants for the state's fault and simply
       encourage the government to gamble with the
       interests of criminal suspects assigned a low
       prosecutorial priority.     The Government,
       indeed, can hardly complain too loudly, for
       persistent neglect in concluding a criminal
       prosecution indicates an uncommonly feeble
       interest in bringing an accused to justice; the
       more weight the Government attaches to
       securing a conviction, the harder it will try to
       get it.




                               21
Id. at 657 (citation omitted).

        With these teachings in mind, we examine the two
primary factual justifications for the district court’s
“reasonable diligence” finding: (1) that the unfruitful trip to
the Woodward Avenue address in 2005 and the investigative
efforts in 2011 show that government inaction in the
intervening years was a reasonable choice to “conserve []
resources,” Velazquez, 2012 WL 2094061, at *11, and thus
comports with the requirements of reasonable diligence; and
(2) that Velazquez had an elusive, if not evasive, lifestyle and
thus bears responsibility for the delay, id. at *10. We review
the trial court’s determination that the government was not
negligent with considerable deference. See Doggett, 505 U.S.
at 652. The factual findings supporting that determination are
reviewed for clear error. “A finding is clearly erroneous
when, although there is evidence to support it, the reviewing
body on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc) (internal
quotation marks omitted).

               1.     Reasonable choice

        In its factual recitation, the district court stated that the
Marshals Service and the DEA efforts to find Velazquez
between November 2005 and November 2010 “were limited
to periodic checks of the NCIC Wanted Persons database and
the commercial databases.” Velazquez, 2012 WL 2094061,
at *4. According to the court, this limited effort reflected a
“choice” to pursue other leads from 2005 to 2010, given that
earlier efforts initiated by Deputy Degan, and later work by
deputies Ilagan and Dominguez, did not succeed. See id. at




                                 22
*10 (finding “the government’s choice to pursue other leads
was reasonable”); see also id. at *11 (“The failure of the
DEA’s efforts in California in 2005 and the inferred failure of
the [Marshal Service’s] October 2005 collateral request show
that the government was unlikely to find defendant based on
the information available to it as of November 2005.
Accordingly, the government reasonably elected to conserve
its resources and wait . . . .”) (emphasis added). In support
of this conclusion, the court first stated that the October 31,
2005, NCIC search, performed by someone at the Los
Angeles Police Department, supported the inference that
“authorities in California exhausted the leads in Deputy
Degan’s collateral request.” Id. at *11. It did not adopt this
inference, however, finding that even if the Los Angeles
Marshals Service taskforce made “only cursory efforts” to
pursue those leads, the fact that investigative efforts in 2011
did not quickly lead to Velazquez meant that any effort to
find Velazquez “would likely have been fruitless.” Id.

        There are two related findings from the district court
here: first, that there was a tactical choice not to pursue
Velazquez; and second, even if there was no tactical choice,
the inaction was effectively “harmless” because later
investigation shows that any earlier effort would have been
fruitless. As an initial matter, we question the pertinence of
either finding to the “reasonable diligence” inquiry here. The
Supreme Court observed in Doggett that even if law
enforcement inaction “may have reflected no more than
[defendant's] relative unimportance in the world of drug
trafficking, it was still findable negligence.” 505 U.S. at 653;
see also id. at 657 (“Condoning prolonged and unjustifiable
delays in prosecution would both penalize many defendants
for the state’s fault and simply encourage the government to




                              23
gamble with the interests of criminal suspects assigned a low
prosecutorial priority.”). We read this language to say that
law enforcement priorities have little role to play in the
negligence calculus. If authorities choose to ignore available
leads about a suspect’s whereabouts in favor of other tasks,
they may nonetheless be found negligent within the context of
the speedy trial right.

       Furthermore, we find no evidence in the record to
support a finding that investigators made an actual “choice”
not to pursue Velazquez or that the failure to pursue him was
in any event harmless. Importantly, the government did not
offer the tactical choice justification in the district court. See
App. 94a-95a (contending that Velazquez was evasive and
fled). The district court cited Deputy Ilagan’s testimony that
his database checks in 2010 “came up with the same things
that we already had” as the apparent reason the Marshals
Service took no action from November 2005 to November
2010 beyond checks in the NCIC. Velazquez, 2012 WL
2094061, at *5 (citing App. 226a). But Ilagan’s testimony on
what he did in 2010 does not shed light on possible tactical
decisions made between 2005 and 2010.

        With respect to that five-year period from November
2005 to November 2010, Ilagan testified only that he worked
with another deputy (Cardinal) when he took over. But he
did not know how long Cardinal had been handling the case
or if anyone else had been in charge for any period since
Degan. Degan testified that “these cases are considered a
priority and it would have been reassigned to somebody,”
App. 290a, but the record does not support a finding that any
particular individual — including Deputy Cardinal — was
that somebody. Consequently, there is no evidence of a




                               24
decision by anyone to forgo pursuit of Velazquez to conserve
resources. Indeed, given the priority status that Degan said
would ordinarily have been given to such a case, the five
years of inaction are more indicative of inattention than an
affirmative judgment about resources.15


15
   Our dissenting colleague would affirm the district court
because the court “heard the law enforcement witnesses and
evidently believed that the limited investigative activity
undertaken from 2005 to 2010 was the product of informed
discretion.” The district court did not hear from any witness
who worked on the case during the five-year lull, nor did it
hear from any witness who even claimed to be able to speak
to decisions taken during that period. Indeed, the government
never advanced a conservation-of-resources argument before
the district court, contending instead that “at no point did the
Government cease in its attempts to locate” Velazquez, App.
247a. Just as it did for the “transient lifestyle” argument, see
Section II.B.2, the government now adopts the district court’s
reasoning on appeal. Our colleague further contends that “[i]t
is not beyond the pale to believe that the person responsible
for the case was making decisions about how to work it.”
Respectfully, we hold the view that such a belief requires
some foundation in the evidence. To the extent our colleague
credits a possibility that Deputy Cardinal was the decision
maker, this is an unsupported possibility that the district court
did not even mention in its opinion. To affirm the reasonable
diligence finding of the district court on the facts of this case
would effectively ignore the burden on the government to
justify the lengthy delay, and would reduce clear error review
to a mere formality. Deferential review is still review.




                               25
       The district court’s finding that attentive pursuit would
have been fruitless was similarly in error. Degan’s collateral
request to the Los Angeles Marshals Service taskforce in
2005 set out multiple avenues for investigation that Degan
considered promising at that time. These included contacting
the local DEA agent familiar with investigative steps already
taken, exhausting the available leads, and interviewing
Velazquez’s parents. None of these actions was taken during
the nearly six years that followed. In the summer of 2011,
however, Deputy Dominguez followed up on the new
collateral request filed by Deputy Ilagan. Among other leads,
Dominguez learned that Velazquez came often to collect mail
from at a postal office in Bell Gardens, and Dominguez
conducted a half day of surveillance there. Although
Velazquez did not appear at the post office during those few
hours, it does not follow that nothing would have come of a
longer effort, or the same surveillance years earlier.
Moreover, the post office lead might have been productive in
2005 if combined with other steps urged by Degan in his
request, such as interviewing family members in an attempt to
gain insight into Velazquez’s daily habits at that time.

       We thus cannot uphold the district court’s “reasonable
diligence” conclusion based either on its finding that the law
enforcement authorities made a reasonable tactical choice to
limit their efforts to find Velazquez or its finding that the
authorities’ limited effort was sufficient because more
ambitious pursuit also would have been unsuccessful. We
therefore consider whether the court’s other articulated
rationale — Velazquez’s lifestyle — adequately supports the
finding of reasonable diligence during the period from 2005
to 2011.




                              26
             2.     Defendant’s conduct

        The government seeks to attribute the delay in
apprehending Velazquez to his own conduct — which it
characterizes as evasive — rather than to the lack of effort by
law enforcement authorities. At one point in its analysis, the
district court appeared to agree that the evidence would
support a finding of evasion. The court reasoned that the
government’s inability to find Velazquez at the Woodward
Avenue address, his lack of employment history, and his
“ability to avoid apprehension until his arrest on unrelated
charges, even after the government intensified its efforts in
2011” all “strongly supports the inference that defendant did
hide.” Velazquez, 2012 WL 2094061 at *10. That inference
would weigh heavily against Velazquez in assessing the
government’s negligence. See Hakeem, 990 F.2d at 766.

       The court refrained from actually finding “evasion,”
however, in favor of characterizing Velazquez’s lifestyle as
“transient.” Velazquez, 2012 WL 2094061 at *10. In the
court’s view, even if Velazquez did not deliberately conceal
his whereabouts, his lack of permanence nonetheless was
responsible for the government’s inability to find him sooner:

      “[W]hether or not defendant was intentionally
      evading authorities, his lifestyle made it
      difficult for authorities to track him down. If
      defendant had not been so transient and if he
      had lived at his mailing address instead of using
      post office boxes, he would have been found
      much earlier as the [government] used
      conventional search methods in a reasonably
      diligent manner.”




                              27
Id. (quoting Mundt, 29 F.3d at 236 (second alteration in
original)). The government did not frame its argument before
the district court in terms of a “transient” lifestyle, see Gov.
Response (App. 94a-96a), but it now adopts the district
court’s reasoning as a separate ground for affirmance in
addition to deliberate evasion, see Appellee’s Br. 31-34.

       Although the district court ultimately refrained from
finding “evasion,” we nonetheless believe we should assess
that characterization because of its centrality to the
government’s position and the court’s favorable view of it.
Hence, we consider both whether the record supports a
finding of deliberate evasion by Velazquez and whether the
government can justify its meager search by blaming
Velazquez’s “transient” lifestyle. As we explain, neither
inquiry favors the government.

        With respect to evasion, the factors cited by the district
court do not support the inference of bad motive that the
government urged and the court almost drew. A lack of
verifiable employment, without more, does not signify an
attempt to evade capture, and an individual’s choice to
receive mail at a post office box or a relative’s home does not
fill the gap. Velazquez had used his brother’s address and
Box 2901 for years before the DEA investigation began,
including when he sought to enlist in the United States Naval
Reserve in 2002-03. Indeed, he used the same addresses in
his 1998 application for a replacement Alien Registration
Card. App. 75a. The duration of this usage negates any
inference that these alternatives to a traditional home address
were designed to protect him from a law enforcement
manhunt.




                               28
        Other evidence also undermines the inference of a
furtive life. Various documents from 2010 onward show that
Velazquez consistently listed Box 2037 as his address, and he
went to retrieve his mail at the post office so frequently that
postal employees recognized him. See, e.g., App. 130a
(motorcycle title); App. 387a (driver’s license renewal).
Velazquez listed the long-used Woodward Avenue address in
paperwork for this postal box. See App. 388a. In addition,
other public documents submitted during the period he was
being sought also contained Velazquez’s name and
identifying information. See, e.g., App. 122a-27a (application
in 2011 to replace alien registration card); App. 78a-82a
(birth records for three children born between October 2005
and February 2007). In brief, we see no correlation between
Velazquez’s lifestyle and an intention to hide.           Most
significantly, there were no changes in his behavior over time
that could be attributed to a deliberate effort after 2005 to
evade detection.

       We note that, as the government argues, the record
would support a finding that Velazquez was aware that he
was being sought in connection with the July 27, 2005 drug
transaction in Philadelphia. Indeed, his lawyer was in touch
with the United States Attorney’s Office in the fall of 2005 —
before Velazquez’s indictment — to discuss surrender.
Velazquez had no duty to bring on his own trial, however,
and his lawyer’s inquiry does not diminish any governmental
negligence in failing to pursue him, or to even contact his
lawyer again. See Barker, 407 U.S. at 527 (“A defendant has
no duty to bring himself to trial; the State has that duty.”)
(citing Dickey v. Florida, 398 U.S. 30, 37-38 (1970)); see
also Dickey, 398 U.S. at 50 (Brennan, J., concurring) (“The
accused has no duty to bring on his trial.”); Mendoza, 530




                              29
F.3d at 763 (noting that “it was not [defendant’s]
responsibility to contact the government during the
investigation”). Although knowledge by Velazquez that he
was being sought could contribute to an inference of evasion,
it does not make the conduct we describe above more
suggestive of hiding. Absent evidence of evasive conduct,
Velazquez’s knowledge does not aid the government’s
argument.

       As for justifying the government’s inaction based on
Velazquez’s “transient” life, we have serious doubts that this
characterization is helpful in the reasonable diligence inquiry.
To be sure, the government can only pursue reasonably
available leads, and the absence of a paper trail for a
defendant might leave the government with fewer avenues for
investigation. Our focus is not the type of life a suspect leads,
however, but whether the government has diligently used the
information available to it. Describing a defendant as
“transient” adds little to this analysis. Indeed, it carries the
risk that the label will be used as a substitute for a detailed
factual assessment of the government’s investigation, diluting
the “serious effort” that Doggett requires of law enforcement
authorities. 505 U.S. at 652. Moreover, this risk would likely
be felt disproportionately by those in more limited economic
circumstances, unfairly lessening the Sixth Amendment
speedy-trial protection for those who are not so fortunate as to
be well-rooted in society.16

16
  We note that the “transient” lifestyle comment in Mundt on
which the district court relied added little to the analysis in
that case. The government periodically checked for the
defendant at two motels and had verified that he occasionally




                               30
        We thus conclude that neither premise for the district
court’s finding that the government did not act negligently —
a supposed alternative allocation of resources and the
defendant’s way of life — withstands scrutiny. Hence, the
court clearly erred to the extent it relied on those findings to
hold that the government satisfied the “reasonable diligence”
prong of the Barker test, and we therefore afford no deference
to the court’s determination on negligence. Nevertheless, we
must still consider whether the record supports the adequacy
of the government’s efforts. See Burkett, 951 F.2d at 1441
(noting that, where district court erroneously attributed delay
to the defendant and, hence, did not make a prejudice finding,
appeals court “must exercise our power of plenary review to
determine if the testimony establishes sufficient qualitative
prejudice to weigh this factor in [defendant’s] favor”). In so
doing, we continue to defer to the district court’s findings of
fact as to the underlying events that are not clearly erroneous.

              3. The reasonable diligence determination

       To satisfy the requirement of reasonable diligence, the
government does not need to make “heroic efforts” to pursue
a suspect, Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir. 1988),
but it must at least make a “serious effort,” Doggett, 505 U.S.
at 652. If “the defendant is not attempting to avoid detection
and the government makes no serious effort to find him, the

stayed at each one. See 29 F.3d at 235. Investigators also
tracked records in two states, leading to surveillance at his
credit union until he showed up and was arrested. Id. The
government thus had shown reasonable diligence in pursuing
the leads it had available.




                              31
government is considered negligent in its pursuit.” Mendoza,
530 F.3d at 763 (citing Doggett, 505 U.S. at 653). Here, it is
essentially undisputed that the government made only
minimal attempts to find Velazquez in the five years between
Degan’s transfer in November 2005 and Ilagan’s assumption
of control over the investigation in November 2010. The sum
total of its activity was limited to checking the NCIC eight
times and, perhaps, placing Velazquez on the “Most Wanted”
list for the Philadelphia DEA office.

       Although we doubt that such negligible effort could be
deemed “serious” in any circumstances, we need not
speculate in this case about how far short of the mark it fell.
Deputy Degan’s collateral request in 2005 detailed the
measures he thought advisable in tracking down Velazquez,
and we believe his prescription for the investigation is a
helpful guidepost in assessing whether the government met
the standard of reasonable diligence.17 In addition to
recommending follow-up with DEA Agent Pascoe, who had
visited the Woodward Avenue home at the request of the

17
   Our dissenting colleague disagrees with our use of Deputy
Degan’s collateral request as guidance in the reasonable
diligence analysis, contending that we turn each suggestion
into a “requirement[].” We do no such thing. The pertinent
point here is not that the taskforce missed a particular
suggestion on Degan’s list, but rather that — as the
government explicitly acknowledges — there is no evidence
that anyone from the Los Angeles Marshals taskforce visited
any of the addresses linked to Velazquez’s close relatives that
were identified in Degan’s 2005 request. See Appellee’s Br.
43.




                              32
Philadelphia DEA office, Degan listed a number of addresses
that the Marshals Service taskforce could explore if DEA
agents had not already done so. He expressly asked that
Velazquez’s parents and brother be interviewed if all other
leads had been exhausted. None of this was done.

       Nor did authorities attempt to reach Velazquez during
this period. They could have sent mail to his PO box or the
Woodward Avenue address or sought out a relative to relay a
request that Velazquez turn himself in. Cf. Mendoza, 530
F.3d at 763 (“Based on its previous success in contacting
[defendant], the government was negligent when it failed to
attempt to inform [him] of the indictment by calling [his
family].”) Additionally, no contact was made with his
attorney throughout the five years.

       On this record, we think it plain that the government
was not reasonably diligent in its pursuit of Velazquez. For
the reasons we have explained, the district court’s contrary
determination was clearly erroneous.18 The second Barker

18
   We recognize, as did the district court, that speedy-trial
cases are intensely fact-bound and thus of limited value as
precedent. Velazquez, 2012 WL 2094061, at *11; see also
Barker, 407 U.S. at 530 (“A balancing test necessarily
compels courts to approach speedy trial cases on an ad hoc
basis.”). Nevertheless, we have reviewed United States v.
Spaulding, 322 Fed. App’x 942 (11th Cir. 2009), and United
States v. Walker, 92 F.3d 714 (8th Cir. 1996), the cases relied
upon by the district court and government respectively. Both
support the finding that the government is responsible for the
delay in finding Velazquez. Spaulding involved government




                              33
factor — the reason for the delay — squarely favors
Velazquez.19


effort far more extensive and consistent than was the case
here, including months of government surveillance, efforts to
trace the defendant’s mail from his postal box, and calls to
him to ask him to return. 322 F. App’x at 944. The
defendant in Walker, unlike Velazquez, had fled after posting
bail on state drug charges, and was on the run at the time he
was indicted for federal drug charges. 92 F.3d at 715. He
also used a false identity, making his evasiveness obvious.
Id. at 716.
19
   Courts have also examined speedy trial claims by assigning
responsibility for specific periods of the delay, and then
weighing the delay attributable to the government. See Battis,
589 F.3d at 680; see also Doggett, 505 U.S. at 657-658
(identifying six years of the delay from indictment to arrest as
attributable to the government and using that portion to find
general presumption of trial prejudice to the defendant). We
have concluded that the government was not reasonably
diligent for the five-year period from November 2005 until
November 2010. See Battis, 589 F.3d at 678 (“[D]elay is
measured from the date of arrest or indictment, whichever is
earlier, until the start of trial[.]”). We can assume the
government was diligent from November 2010 until the arrest
in December 2011, a period of about thirteen months. The
remaining delay from arrest to the projected trial date is
neither side’s fault. Thus, to find the government diligent
here would require finding that thirteen months of diligence
outweighed a period of negligence that was more than four
times as long. We decline to so hold.




                              34
       C.     Defendant’s assertion of the right

        The third Barker factor requires a court to examine
“[w]hether and how a defendant asserts his [speedy-trial]
right,” 407 U.S. at 531, including “the frequency and force”
of such assertions, id. at 529. The district court found it
unnecessary to make any findings on this factor because it
had already rejected Velazquez’s speedy trial motion on the
basis that the government was reasonably diligent and
Velazquez could not show specific prejudice. Hence, the
court simply assumed that Velazquez timely asserted his right
by filing a motion to dismiss within four months of his arrest.
Given this posture of the case, we resolve this factor based on
the undisputed facts in the record.

       The Supreme Court noted in Barker that the
fundamental “right to a speedy trial is unique in its
uncertainty as to when and under what circumstances it must
be asserted or may be deemed waived.” Id. at 529. Barker
attempted to plot a path through this uncertainty by rejecting
a rigid rule that a defendant waives his speedy-trial right “for
any period prior to which he has not demanded a trial.” Id. at
525. The Court observed that such an approach presumed the
“waiver of a fundamental right from inaction,” id. (footnote
omitted), which is inconsistent with the definition of waiver
as “an intentional relinquishment or abandonment of a known
right or privilege,” id. (internal quotation marks omitted).
Given such a high standard for establishing waiver, “[c]ourts
should indulge every reasonable presumption against
waiver . . . [and] not presume acquiescence in the loss of
fundamental rights.” Id. at 525-26 (internal quotation marks
omitted).




                              35
       The Barker Court also rejected the notion that “the
defendant has no responsibility to assert his right.” Id. at 528.
Instead, it held that the issue of waiver — “the defendant’s
assertion of or failure to assert his right to a speedy trial” —
would be one of the factors to consider on a case-by-case
basis in balancing the defendant’s and government’s conduct.
Id. The Court emphasized that while the defendant bears
“some responsibility to assert a speedy trial claim,” the
prosecution retains the burden to show the knowing and
voluntary waiver of a fundamental right. Id. at 529. Thus a
defendant’s limited responsibility to assert his speedy trial
right exists alongside the government’s overarching burden to
prove waiver of that fundamental right. Applying its rule in
Barker, the Court considered the defendant’s failure to object
to eleven continuances lasting a total of more than three-and-
a-half years, followed by the defendant’s motion to dismiss
and his opposition to several further continuances. See 407
U.S. at 517-18. In that setting, where the defendant had
ample opportunity to object in court, the defendant raised a
“close” case, id. at 533, but ultimately a losing one.

        Barker’s teachings necessarily left uncertainty about
when a defendant would be obligated to assert his speedy-trial
right if the defendant is at large. In considering this issue in
Doggett, the Court observed that an at-large defendant’s
knowledge of a pending indictment could weigh heavily
against him on this Barker factor, even if he was not evading
capture. 505 U.S. at 653. In Velazquez’s case, the
government has argued that knowledge of charges, rather than
the subsequent indictment, should weigh heavily against him.
Although the Doggett Court did not explicitly announce that
the defendant’s awareness of the indictment — rather than
knowledge of earlier events, such as an investigation or an




                               36
arrest warrant — was the critical measuring point, such a rule
is consistent with longstanding principles governing a
defendant’s speedy trial rights.

        This proposition is evident from the Court’s
examination of the scope of a Sixth Amendment speedy trial
claim in United States v. Marion, 404 U.S. 307 (1971). In
rejecting the defendants’ contention that their Sixth
Amendment right had been violated by a three-year delay
between the end of their criminal activity and the return of the
indictment, the Court emphasized that “the Sixth Amendment
speedy trial provision has no application until the putative
defendant in some way becomes an ‘accused,’” through
indictment or arrest. Id. at 313. The Court noted that the
“public act” of an arrest “may seriously interfere with the
defendant’s liberty, whether he is free on bail or not, and . . .
may disrupt his employment, drain his financial resources,
curtail his associations, subject him to public obloquy, and
create anxiety in him, his family and his friends.” Id. at 320.
With this impact in mind, the Court observed, “it is readily
understandable that it is either a formal indictment or
information or else the actual restraints imposed by arrest and
holding to answer a criminal charge that engage the particular
protections of the speedy trial provision of the Sixth
Amendment.” Id. Given the concerns arising from an arrest,
“[i]nvocation of the speedy trial provision . . . need not wait
indictment, information, or other formal charge,” but the
Court refused to extend the “reach of the amendment to the
period prior to arrest.” Id. at 321.

        It is thus well established that the constitutional speedy
trial clock does not start for an individual who has not yet
been arrested until an indictment has issued. See id. at 320;




                               37
Battis, 589 F.3d at 678 (“In general, delay is measured from
the date of arrest or indictment, whichever is earlier, until the
start of trial.”). The Speedy Trial Act also looks to arrest or
indictment to start the clock. See 18 U.S.C. § 3161(b)
(requiring that a defendant be charged within thirty days of
the date he was arrested or served with a summons); id.
§ 3161(c)(1) (requiring that trial begin within seventy days of
indictment/information or first court appearance, whichever
occurs later). It would thus be odd to conclude that the
defendant has a duty to assert his speedy trial right before
either indictment or arrest — i.e., at a time when he does not
yet have such a right. Hence, the Court’s focus in Doggett on
the indictment, without an explicit statement that it is the
pivotal event for an at-large defendant’s assertion of his
speedy trial right, undoubtedly stems from the previously
recognized importance of that formal charge.

        We note that, in its discussion of the underlying events
in Doggett, the Supreme Court observed that there was no
evidence the defendant was aware of the pre-indictment
charges against him. See 505 U.S. at 653. Although that
statement has led some courts to look to knowledge of the
charges apart from knowledge of the indictment, see, e.g.,
United States v. Tchibassa, 452 F.3d 918, 926 n.8 (D.C. Cir.
2006) (noting that “[t]he Doggett Court appeared concerned
generally with Doggett’s awareness vel non that charges were
pending against him rather than with his specific knowledge
that a formal indictment had been filed”), we see the Court’s
observation as compatible with a focus on the indictment. If
the defendant did not even know of the charges against him,
he necessarily did not know of the later-rendered formal
indictment that started the speedy trial clock. Indeed, the
Court twice pointed to knowledge of the “indictment” as




                               38
pertinent, and we cannot conclude that the Court meant to
modify this measuring point through its discussion of the
evidence.20 Other circuits also have treated knowledge of the
indictment as the necessary inquiry. See, e.g., United States
v. Molina-Solorio, 577 F.3d 300, 306 (5th Cir. 2009)
(focusing on defendant’s knowledge of the indictment
pending against him); Mendoza, 530 F.3d at 763 (same).

        Having identified knowledge of the indictment as the
appropriate measure for the timely assertion of the speedy
trial right, we turn to the evidence in the record, keeping in
mind the government’s burden to demonstrate Velazquez’s
knowledge. See Barker, 407 U.S. at 529. Although
Velazquez’s attorney contacted the U.S. Attorney’s Office to
discuss a possible surrender, and the attorney stipulated that
he received a copy of the arrest warrant and the pre-
indictment charges, there is no evidence that either he or

20
    However, as we previously noted, supra at 24-25, a
defendant’s knowledge of the investigation or charges, apart
from knowledge of the indictment, might bear on the second
Barker factor, the reason for the lengthy delay, as this
knowledge might inform a finding that the defendant was
evading authorities. This overlap has been noted in the case
law. Justice Brennan combined what later became the second
and third Barker factors in a concurrence in Dickey, reasoning
that consideration of the defendant’s assertion of the speedy-
trial right overlaps with consideration of who was responsible
for the delay. 398 U.S. at 48 n.12 (Brennan, J., concurring).
The Court in Barker noted that “there is little difference
between [Justice Brennan’s] approach and the one” it
adopted. 407 U.S. at 530 n.30.




                             39
Velazquez was later told of the indictment.21 The indictment
was not sent to the attorney, App. 244a, and the government
did not communicate with him after the indictment was
issued. On this record, the most we can say is that Velazquez
learned of the indictment at the time of his arrest. See
Molina-Solorio, 577 F.3d at 306-07 (construing a lack of
evidence that defendant knew of the indictment as weighing
in the defendant’s favor). Velazquez brought his speedy-trial
motion within four months of his arrest, and thus we count
this factor in his favor.

       D.     Prejudice suffered by the defendant

       As noted, the district court found that the government
was reasonably diligent in pursuing Velazquez, and it thus
required Velazquez to show specific prejudice to his defense
from the lengthy delay before trial, or as it happens here, his
conditional guilty plea. Velazquez, 2012 WL 2094061, at *13
(citing Doggett, 505 U.S. at 656). Because the court erred
when it found reasonable diligence, its prejudice analysis
compounded that error. Instead of analyzing whether the
government could overcome the general presumption that
“excessive delay . . . compromises the reliability of a trial in
ways that neither party can prove or, for that matter, identify,”
Doggett, 505 U.S. at 655,22 it found that “defendant failed to

21
  The government argued that he must have known of the
charges.   The court, however, made no findings on
knowledge of the indictment.
22
   Doggett identified three types of harm caused by
“unreasonable delay between formal accusation and trial”:
oppressive incarceration, the accused’s increased anxiety, and




                               40
identify any specific witness or piece of evidence that he now
cannot access,” Velazquez, 2012 WL 2094061, at *14.

       To      “warrant     granting    relief,     negligence
unaccompanied by particularized trial prejudice must have
lasted longer than negligence demonstrably causing such
prejudice.” Doggett, 505 U.S. at 657. The Court in Doggett
found that the durational requirement for relief without
specific prejudice was met where the delay attributable to the
government’s negligence was six years, an amount that “far
exceeds the [one-year] threshold needed to state a speedy trial
claim.” Id. at 658. The defendant was entitled to relief
because the presumption of general prejudice was not
“persuasively rebutted.” Id.

       The government contends that, even if the general
presumption of prejudice applies, it has met its burden of
rebuttal by affirmatively showing that Velazquez’s defense is
unimpaired. The government notes that the critical meetings
and phones calls in the case were all recorded and that
Velazquez’s co-defendants have previously testified about the
pertinent events — leaving the evidence intact, and without
the risk of fabrication, despite the trial delay. App. 163a.
The district court accepted the government’s contentions and

“the possibility that the accused’s defense will be impaired by
dimming memories and loss of exculpatory evidence.” 505
U.S. at 654 (internal quotation marks omitted). Here only the
last harm is at issue. It is “the most serious . . . because the
inability of a defendant adequately to prepare his case skews
the fairness of the entire system.” Id. (internal quotation
marks omitted).




                              41
held, as part of its discussion of specific prejudice, that the
government had rebutted any showing of general prejudice.
Velazquez, 2012 WL 2094061, at *13.

          The government’s reasoning is flawed in two ways.
First, it equates the preservation of evidence the government
would rely on with the materials Velazquez might need to
challenge the government’s case. The Court in Doggett
recognized that “impairment of one’s defense is the most
difficult form of speedy trial prejudice to prove because
time’s erosion of exculpatory evidence and testimony can
rarely be shown.” 505 U.S. at 655 (internal quotation marks
omitted). Not only may Velazquez plausibly claim that his
own recollection of the events at issue has eroded, but he also
has argued that the passage of time makes it harder to
investigate an entrapment defense or find witnesses to “his
whereabouts and involvement.”           Velazquez, 2012 WL
2094061, at *13. Forecasting how faded memories could
harm him is precisely the sort of difficult-to-obtain proof that
supports the finding of general prejudice in a case of
extraordinary delay.

       Second, the government’s argument in effect turns its
burden to disprove general prejudice on its head by
suggesting that its rebuttal effort must be found successful
unless Velazquez can identify prejudice. In Doggett, the
Court noted that the government “ably counter[ed] Doggett’s
efforts to demonstrate particularized trial prejudice [but] it
has not, and probably could not have, affirmatively proved
that the delay left his ability to defend himself unimpaired.”
505 U.S. at 658 n.4 (emphasis added) (citing H. Richard
Uviller, Barker v. Wingo: Speedy Trial Gets A Fast Shuffle,
72 Colum. L. Rev. 1376, 1394-1395 (1972)). The Court thus




                              42
indicated that the government faces a high, and potentially
insurmountable, hurdle in seeking to disprove general
prejudice where the period of delay is extraordinarily long.23

23
   In the passage of Professor Uviller’s article that the
Doggett Court cited as sufficiently analogous to lend support,
Uviller recognized that this burden on the prosecution to
prove a negative could be “unfair since it may require proof
by facts inaccessible to the state.” Uviller, supra at 1394. He
nonetheless argued for such a burden:
      How can the state prove that no evidence for the
      defense was lost or impaired? . . . Proof of a
      negative is always difficult and in this instance,
      it may be contended, the task is impossible
      since the critical facts are known only to the
      defendant. Further, the argument would run,
      where the prosecutor must demonstrate
      harmless error at trial, he may do so from the
      record; but since he cannot show lack of
      prejudice by record citations, a parallel burden
      would be inappropriate to impose.
              The argument is not without merit.
      Realistically, prejudice lies beyond the capacity
      of either side to prove or disprove, except in the
      rare instance where a known defense witness of
      known competence actually disappears or
      reports a recent impairment of memory, and no
      prior testimony from him is available.
      Therefore, the shift of burden actually permits
      the presumption of prejudice to prevail on the
      issue. Since that presumption is well-founded,




                              43
Perhaps the government could make that showing in another
case, but it has not done so here. The presumption of general
prejudice, triggered by the government’s extraordinary delay
in bringing Velazquez to trial, continues to favor the
defendant in the application of the Barker speedy trial test.

                              III.

       We recognize the significance of our decision. A
defendant who pleaded guilty to serious drug charges will no
longer have to answer those charges. But we accept such rare
outcomes as the necessary cost for the protection of the
speedy trial right set forth in the Constitution. Here, with
respect to the first factor in the Barker analysis, the length of
the delay in bringing Velazquez to trial was extraordinary by
any measure. Contrary to the conclusion of the district court,
the government was not reasonably diligent in pursuing the
defendant. Indeed, its pursuit of the defendant was strikingly
inattentive for five years. Hence, the reason for the delay, the


       however, justice is served. The establishment of
       prejudice, albeit presumptively, does not end
       the inquiry; it merely focuses attention on other
       elements wherein impropriety or justification
       may be more meaningfully discerned.
Id. at 1394-95 (emphasis added). We need not resolve in this
case whether general prejudice is irrebutable when the period
of delay is extraordinarily long. We simply note that, in
citing the above passage for support, the Doggett Court was
keenly aware of the practical difficulties for the prosecution
in making such a rebuttal.




                               44
second and most important factor in the speedy trial analysis,
strongly favors the defendant. The third factor — the timely
assertion of the speedy-trial right — benefits the defendant.
As to the fourth factor, the government did not overcome the
presumption of general prejudice that applies with
considerable force in a case of such extraordinary delay.
Under these circumstances, all of the Barker factors support
the defendant's claim of a violation of his speedy trial right.
We must therefore reverse the district court's judgment of
conviction and the related sentence. The indictment against
Velazquez must be dismissed with prejudice. We remand for
that purpose.




                              45
JORDAN, Circuit Judge, dissenting

       Whether Sergio Velazquez’s constitutional right to a
speedy trial was violated is a close question, and, as my
colleagues in the Majority point out, the answer hinges
largely on the reasons for the delay in bringing him to trial.
The primary issue is whether the government exercised
reasonable diligence to find him, or, to phrase it differently,
whether the government was negligent in its investigation.
My colleagues reject the District Court’s determination that
the government was not negligent, although that Court held
an evidentiary hearing, carefully considered all of the
evidence, and thoughtfully explored the factual and legal
disputes. I think the Majority is mistaken. While the
government’s investigative efforts fell well short of
praiseworthy, they were not so lacking that, on this record,
the District Court’s decision should be seen as reversible
error. Given that conclusion, and the District Court’s finding
that Velazquez did not demonstrate specific prejudice from
the delay, we should affirm. I therefore respectfully dissent
from giving Velazquez a pass for dealing in multiple
kilograms of cocaine.

                               I.

       Considering the government’s obligation to exercise
reasonable diligence in bringing a defendant to trial is an
intensely fact-specific inquiry. “[T]he precise amount of
effort that is required is apt to vary depending on the
circumstances of the case,” Rayborn v. Scully, 858 F.2d 84,
90 (2d Cir. 1988), so understanding the facts is particularly
important. That, of course, is something that district courts,
with their fact-finding capacity, are best suited to accomplish,




                               1
and we are thus obliged to view a district court’s
determination of reasonable diligence with, as the Supreme
Court has put it, “considerable deference.” Doggett v. United
States, 505 U.S. 647, 652 (1992). We must review the
District Court’s underlying factual findings regarding a
speedy trial claim for clear error, United States v. Battis, 589
F.3d 673, 677 (3d Cir. 2009), and would be well-advised to
think of “considerable deference” in the same terms, given
the context.1 A finding of fact is, as my colleagues note,
clearly erroneous “only if we are left with a definite and firm
conviction that a mistake has been committed.” United States

       1
         There is a persuasive argument that the “considerable
deference” standard for the reasonable diligence
determination is simply another way of saying “clearly
erroneous review.” In referencing “considerable deference,”
the Supreme Court in Doggett, 505 U.S. at 652, cited Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 401-02 (1990)
(“The [Supreme] Court has long noted the difficulty of
distinguishing between legal and factual issues. … The
considerations involved in the Rule 11 context are similar to
those involved in determining negligence, which is generally
reviewed deferentially.”), and McAllister v. United States,
348 U.S. 19, 20-22 (1954) (finding, in an admiralty case, that
a district court’s findings of negligence were not clearly
erroneous). The Doggett Court also cited a section of Wright
and Miller’s Federal Practice and Procedure discussing
negligence cases and stating that the “natural” reading of
McAllister is that “a determination of negligence is reviewed
under the ‘clearly erroneous’ rule.” 9 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2590 (1st
ed. 1971); see also Doggett, 505 U.S. at 652.




                               2
v. Lessner, 498 F.3d 185, 199 (3d Cir. 2007). It is not enough
to be left with lingering questions.2

        The Majority takes issue with two conclusions of the
District Court: that the few investigative steps taken by the
government between 2005 and 2010 may be excused in light
of the more intense but fruitless efforts that preceded and
followed that period, and that Velazquez’s off-the-grid
lifestyle contributed to the delay. While I acknowledge that
fair-minded people can differ about inferences and
conclusions to be drawn from the record, I do not have a
definite and firm conviction that the District Court erred in its
handling of those essentially factual issues or in its ultimate
conclusion of reasonable diligence.

      My colleagues begin by asserting that “law
enforcement priorities have little role to play in the

       2
         We review legal conclusions regarding a speedy trial
claim, including the balancing of the Barker factors, de novo.
See Battis, 589 F.3d at 677; Hakeem v. Beyer, 990 F.2d 750,
771 (3d Cir. 1993). The Supreme Court has held that no
single factor is “either a necessary or sufficient condition,”
and the factors “must be considered together with such other
circumstances as may be relevant.” Barker v. Wingo, 407
U.S. 514, 533 (1972). Even accepting my colleagues’
conclusions regarding the length of delay in this case and
Velazquez’s assertion of his right to a speedy trial, however, a
defendant’s speedy trial claim will typically fail when the
government has demonstrated reasonable diligence and the
defendant has failed to show specific prejudice. See Doggett,
505 U.S. at 656.




                               3
negligence calculus.” (Maj. Op. at 24.) I disagree and think
it plainly relevant to consider the likelihood that an
investigative step will bear fruit when considering what
actions constitute reasonable diligence. The concept of
“reasonableness” is itself dependent upon circumstances.
“Reasonable diligence” necessarily incorporates the notion
that specific circumstances, including but not limited to the
constraints operating on the government, factor into what
constitutes a reasonable investigative effort. The Majority
relies on the Supreme Court’s statement in Doggett that “even
if law enforcement inaction ‘may have reflected no more than
[defendant’s] relative unimportance in the world of drug
trafficking, it was still findable negligence.’” (Id. at 23
(quoting Doggett, 505 U.S. at 653).) That statement,
however, does not indicate that prosecutorial judgment about
how best to deploy law enforcement resources should be
given little or no weight. It was made in conjunction with the
observation that, had government agents in that case tested
“their progressively more questionable assumption that
Doggett was living abroad, … they could have found him
within minutes.” Doggett, 505 U.S. at 652-53. In other
words, under the specific circumstances of that case, the
lower prosecutorial priority assigned to the defendant did not
offset the government’s utter failure to act on developments
indicating his whereabouts.3 Id. It bears repeating that “the

      3
          I recognize the Supreme Court’s concern that
“[c]ondoning prolonged and unjustifiable delays in
prosecution would both penalize many defendants for the
state’s fault and simply encourage the government to gamble
with the interests of criminal suspects assigned a low
prosecutorial priority.” Doggett, 505 U.S. at 657. However,
for the reasons discussed herein, the delay here was not




                              4
precise amount of effort that is required is apt to vary
depending on the circumstances of the case.” Rayborn, 858
F.2d at 90.

       The Majority claims that there is “no evidence in the
record to support a finding that investigators made an actual
‘choice’ not to pursue Velazquez.” (Maj. Op. at 24.) That is
not entirely true. Notably, the District Court found that, after
Deputy Degan’s departure, someone continued to work the
case, and the Majority acknowledges that that person may
have been Deputy Cardinal. It is not beyond the pale to
believe that the person responsible for the case was making
decisions about how to work it. To the extent my colleagues
demand a clearer record that some “particular individual”
made the decision “to forgo pursuit of Velazquez” (id. at 24-
25), they miss the mark. Government decision-making at its
best is the product of a deliberative process in which costs
and benefits are weighed and reflected in a well-kept record.
But decision-making is not always as carefully done or as
clearly preserved as we would like, and yet we do not assume
that government actions are random. The District Court


unjustifiable. While I do not advocate blind deference to
executive decisions about the allocation of law enforcement
resources, I do believe that requiring constant government
activity in fugitive cases, regardless of the prospects that such
activity will bear fruit, may rightly be perceived as
unwelcome and unnecessary judicial meddling in the
executive sphere. There is ample room to disagree with
executive decisions on resource allocation before one arrives
at the point where a constitutional violation should be
declared.




                               5
heard the law enforcement witnesses and evidently believed
that the limited investigative activity undertaken from 2005 to
2010 was the product of informed discretion. I am not
prepared to say that was clearly erroneous.4 Nor am I willing
to fault the District Court for thinking that later, more
intensive but equally fruitless investigation could be seen as
some vindication of an earlier government decision to do less.
It is true that one cannot say that later failure proves – in a
deductive sense – that earlier efforts would have failed, but

      4
          Although, as my colleagues point out, the District
Court did not hear directly from any law enforcement officer
who worked on the case between 2005 and 2010, there was
certainly circumstantial evidence that somebody worked on it
after Deputy Degan’s departure. For example, Deputy Degan
testified that someone in the Marshals Service would have
been assigned to the case, and somebody in the Marshals
Service did indeed run period NCIC checks between 2005
and 2010. In addition, DEA Agent Pedrini made sure that
Velazquez’s warrant remained active in the NCIC during that
time and was in contact with the Marshals Service to see if
there was any new information on the case. The Majority
seems to think that the level of deference I believe should be
given to the District Court’s “reasonable diligence” ruling
amounts to no review at all. (See Maj. Op. at 25 n.15.) That
is a basic disagreement. I believe a reasonable inference that
someone was assigned and working the case can be drawn
from the record, and, again, under clear error review, I am not
left with a definite and firm conviction that, in light of the
totality of the circumstances, the District Court erred in
concluding that the work done was sufficient to constitute
reasonable diligence.




                              6
those points of failure may add up inductively to allow a
reasonable mind to determine that earlier decisions to do less
were grounded in something better than sheer laziness.

       The Majority makes too much of the fact that there is
no record of the government taking all of the investigative
steps suggested by Deputy Degan in 2005. The District Court
was well aware that there was “no direct evidence that
authorities in California exhausted the leads in Deputy
Degan’s collateral request.” (App. at 20a.) However, it
found that the additional leads were “far more speculative
than [Velazquez’s] connection to the Woodward Avenue
address” (id.), and it credited Deputy Degan’s “belie[f] that
work was underway on [his] request” (id. at 7a). In other
words, the Court accepted the deputy’s understanding of how
the Marshals Service works, and it was entitled to do so.5

      5
          I note parenthetically my disagreement with any
implication in the Majority opinion that Deputy Degan’s
suggested list of investigative steps should be viewed as the
measure of reasonable diligence. (Maj. Op. at 32.) Though
my colleagues disclaim relying on it (see id. at 32 n.17), a
reader might nonetheless conclude that the references to that
list are meant to give it weight. One officer’s investigative
suggestions to another on the opposite side of the country,
however, may vary from what the receiving officer’s local
experience tells him will and will not be worthwhile. That
difference of opinion does not make the receiving officer a
slacker. Moreover, we risk building a perverse incentive into
the system if we turn suggestions into requirements. There
may be fewer suggestions committed to paper if deputy
marshals believe that courts will turn unfollowed leads into
“stay out of jail free” cards for fugitives.




                              7
       There is no dispute that, between August and
November 2005, the government entered information about
the charges against Velazquez into NCIC,6 searched other
databases for information, sent the 2005 collateral request to
authorities in California to seek help, and visited the
Woodward Avenue address, all to no avail. Between
November 2005 and November 2010, the government
periodically ran Velazquez’s name through NCIC and made
sure that the warrant was still in the system.7 No additional
leads surfaced until a database check in November 2010


       6
         “NCIC,” as the Majority notes, is the acronym for the
National Crime Information Center, a database of criminal
justice information.
       7
         Velazquez relies on United States v. Fernandes, 618
F. Supp. 2d 62 (D.D.C. 2009), and United States v. Mendoza,
530 F.3d 758 (9th Cir. 2008), for the proposition that merely
entering names into a database – as he characterizes the
government’s efforts between November 2005 and November
2010 – is insufficient to meet reasonable diligence. As the
District Court noted, however, both cases are distinguishable
because they are extradition cases involving fugitive
defendants who had left the country. Periodically entering a
fugitive’s name into a national warrant database when the
individual is believed to still be in the country, as is the case
here, provides some chance that the fugitive might be found
by authorities somewhere within the United States. It cannot
be compared to doing the same for a fugitive believed to be
outside of the country, in which case extradition is “the most
obvious step” to bring that person promptly back for trial.
Fernandes, 618 F. Supp. 2d at 71.




                               8
revealed a new place of employment for Velazquez. Given
those circumstances, it was not clearly erroneous for the
District Court to conclude that deputies could “infer[] failure”
would have dogged further pre-2010 efforts in California to
find Velazquez. (Id. at 21a.) It was, in turn, not clearly
erroneous to decide that “the government reasonably elected
to conserve its resources and wait for new information or a
change in circumstances.” (Id.)

        My colleagues in the Majority also reject the District
Court’s determination that, purposefully or not, Velazquez’s
decisions made it difficult for the government to find him.
The Majority does acknowledge that “the absence of a paper
trail for a defendant might leave the government with fewer
avenues for investigation” (Maj. Op. at 30), but it gives that
fact short shrift and instead expresses concern that taking
account of a fugitive’s “transient” lifestyle “would likely be
felt disproportionately by those in more limited economic
circumstances” (id.). That concern is more a matter of
speculation than proof at this point, but, assuming it is true,
that does not address the investigative reality confronting the
government both generally and in this case specifically. First,
as a general matter, law enforcement decisions made under
budgetary constraints and without any hint of improper
motivation should not be overturned because of a vague
concern that being hard to find is peculiar to the poor.8 More
specifically, however, in this case there was significant

       8
         There may be significant challenges tracking people
at the other end of the economic scale too, since a person of
means who is constantly traveling or moving among multiple
addresses may be as difficult to find as someone who is not
well-rooted in society.




                               9
evidence indicating that Velazquez was quite deliberately
hard to find, which is understandable since, as the Majority
notes, “the record would support a finding that Velazquez
was aware that he was being sought in connection with the
[underlying] drug transaction.” (Id. at 29.) The District
Court thought it unnecessary to take the final step of
concluding that Velazquez was deliberately evading
authorities, though it did note that the evidence “strongly
supports the inference that [Velazquez] did hide.” (App. at
20a.) That evidence, and the District Court’s comment on it,
should make us leery of overturning the Court’s
determination that the government’s investigative efforts
were reasonably diligent under the circumstances.

       In sum, while law enforcement officers certainly could
have done more to search for Velazquez, particularly between
2005 and late 2010, they were not obligated to take every
possible action and chase every lead. See Rayborn, 858 F.2d
at 90 (noting that the government must exercise only “due
diligence” and not “heroic efforts”). Given the considerable
deference that we must give the District Court’s finding of
reasonable diligence, I would accept it and turn attention to
the question of prejudice.

                             II.

       Because the government sufficiently demonstrated
reasonable diligence, the District Court required Velazquez to
show that he would suffer specific prejudice, not just general
prejudice, from the passage of time in order to prevail on his
speedy trial claim. That decision was in keeping with the
Supreme Court’s instruction in Doggett, in which the Court
held that, when the government has been negligent in its




                             10
investigation and the delay is excessively long, “consideration
of prejudice is not limited to the specifically demonstrable,”
and defendants may claim prejudice without providing
“affirmative proof of particularized prejudice.” Doggett, 505
U.S. at 655. Conversely, if the government can show that it
“pursued [a defendant] with reasonable diligence from his
indictment to his arrest” – as the District Court concluded the
government did here – then the defendant’s right to a speedy
trial claim will fail, regardless of the length of delay, unless
the defendant can show specific prejudice to his defense. Id.
at 656.

       The Majority rightly notes that in general there are
three types of prejudice that can result from delay: (1)
oppressive pretrial incarceration; (2) the defendant’s anxiety
and concern over the outcome of the litigation; and (3)
impairment of the defense. Battis, 589 F.3d at 682. The
prejudice that Velazquez asserts is impairment of his defense.

       “[T]he possibility that the … defense will be impaired
by dimming memories and loss of exculpatory evidence” is
the most important form of prejudice faced by a defendant
when his right to speedy trial is denied. Doggett, 505 U.S. at
654 (internal quotation marks omitted); see also Barker v.
Wingo, 407 U.S. 514, 532 (1972) (“[I]nability of a defendant
adequately to prepare his case skews the fairness of the entire
system.”). Generally, the burden of showing prejudice is on
the individual claiming the violation, see Hakeem v. Beyer,
990 F.2d 750, 760 (3d Cir. 1993), and the mere “possibility of
prejudice is not sufficient to support [the] position that
… speedy trial rights were violated.” United States v. Loud
Hawk, 474 U.S. 302, 315 (1986) (emphasis added). In
Hakeem v. Beyer, one of the defendants argued that he would




                              11
suffer prejudice because the delay prevented him from calling
witnesses to corroborate his alibi defense to robbery. 990
F.2d at 763. We rejected that argument, holding that, absent
extreme circumstances, “[g]eneral allegations that witnesses’
memories have faded are insufficient to create prejudice.” Id.

       As the District Court observed, Velazquez “relies
almost exclusively on the general assertion that he is
prejudiced by the passage of time because witnesses to his
whereabouts and involvements may be impossible to locate
and those witnesses that are available will have impaired
memories.” (App. at 25a (internal quotation marks omitted).)
I agree with the District Court that Velazquez’s claims in this
regard are “too general and too speculative” to demonstrate
specific prejudice. (Id.)

       Velazquez also argues that his ability to investigate an
entrapment defense has been impaired. As the Court pointed
out, however, the informant’s conversations with Velazquez
on July 3, 2005 and those that took place over the phone were
recorded, and the testimony from co-defendants Pedro Curiel
and Nelson Gutierrez-Gainza at Gutierrez-Gainza’s trial is
available. Velazquez “failed to identify any specific witness
or piece of evidence that he now cannot access.” (Id. at 26a.)

       Because Velazquez did not carry his burden of proving
particularized prejudice, the District Court correctly
determined that, under the circumstances of the case, he did
not demonstrate a right to relief.
                               III.

      This case presents a serious question regarding the
unusual delay between indictment and trial, but I believe the




                              12
District Court handled the matter wisely and well, and I
would therefore affirm its decision that Velazquez’s
constitutional right to a speedy trial was not violated. I thus
respectfully dissent.




                              13
