                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-11342                 ELEVENTH CIRCUIT
                                                                APRIL 14, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                   CLERK

                     D. C. Docket No. 03-80056-CR-WPD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KARLTON SPAULDING,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (April 14, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Karlton Spaulding (“Spaulding”), a federal prisoner, appeals his convictions
for cocaine offenses and carrying a firearm during a drug trafficking crime.

Spaulding argues that the district court erred in denying his motion to dismiss the

indictment on grounds that the four-year and eight-month delay between his

indictment and trial violated his Sixth Amendment right to a speedy trial. We find

no reversible error and AFFIRM his convictions.

                                I. BACKGROUND

      On 5 September 2002, Spaulding and Marlon Shanahan (“Shanahan”) were

arrested after purchasing seven kilograms of cocaine for $81,000 from an

undercover officer in West Palm Beach, Florida. R10 at 116-117, 120-122, 124.

The transaction was recorded on audio and videotape, as were previous

negotiations. Id. at 118-23; R9 at 63-122. Agents recovered a loaded handgun,

which Spaulding had purchased, from an automobile used during the exchange.

R10 at 56, 60-61, 131. In order to preserve the undercover officer’s identity for

other investigations, authorities pretended to arrest the undercover officer and

released Spaulding and Shanahan. Id. at 122-23; R3 at 45, 84.

      On 22 April 2003, a federal grand jury in the Southern District of Florida

indicted Spaulding and Shanahan for (1) conspiracy to possess with intent to

distribute cocaine and (2) attempted possession with intent to distribute cocaine,

both in violation of 21 U.S.C. §§ 841 and 846. R1-3 at 1-2. Spaulding was



                                          2
charged in a third count with possessing a firearm during a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Id. at 2-3. The indictment was

sealed until Spaulding’s arrest pursuant to the government’s motion. R1-1; R1-2.

Because authorities were unable to locate either Spaulding or Shanahan, both men

were deemed fugitives in July 2003. R1-6.

      Authorities finally arrested Spaulding in DeKalb County, Georgia on 12

October 2007, at which time his indictment was unsealed. R1-8; R1-23 at 2; R3 at

86-87. Spaulding was arraigned on 14 November 2007 and pled not guilty. R1-

15. On 7 December 2007, Spaulding filed a motion to dismiss the indictment on

grounds that he had been deprived of his Sixth Amendment right to a speedy trial.

R1-23.

      Several federal agents testified at a two-day hearing about their efforts to

locate Spaulding. After Spaulding’s 2002 arrest and release, the undercover agent

involved in the drug sale twice called Spaulding to see if he would come back to

Florida. R3 at 84-85. FBI Agent Vincent Dreaden then began looking for

Spaulding at his last known residence in McRae, Georgia, located in Telfair

County. Id. at 4. After several weeks of investigation, Agent Dreaden met with

the Telfair County Sheriff and with Spaulding’s father, a deputy sheriff in Telfair

County. Id. at 5-6. Although Spaulding’s father had no idea where his son was, he



                                          3
promised to assist the FBI. Id. Agent Dreaden then tracked down Shanahan’s wife

and searched her house, her mother’s house, and her grandmother’s house in hopes

of finding Shanahan and Spaulding. Id. at 7. He and FBI Agent Brett Racine also

investigated a residence in Warner Robbins, Georgia, after receiving information

that Spaulding might be living there. Id. at 12, 32. Agent Racine spent several

months surveilling a house in Warner Robbins and showed Spaulding’s

photograph to residents and local law enforcement officers. Id. at 33-35.

Meanwhile, Agent Dreaden continued to keep in contact with the police in McRae

and periodically drove by Spaulding’s listed residence to see if the car Spaulding

used to drive was there. Id. at 18-19, 23. He also sent Spaulding’s photographs to

the FBI office in West Palm Beach. Id. at 12.

      In addition to the FBI agents in the Atlanta Division, the Miami Division

assisted in the hunt for Spaulding. Id. at 42, 49. Special Agent Michael Donohoe

searched public databases for credit cards using Spaulding’s social security

number. Id. at 46-47. Those databases indicated that Spaulding’s address in

McRae had not changed since 2002. Id. at 47. Agent Donohoe also obtained

Spaulding’s driver’s license through the Georgia Department of Motor Vehicles

but it only listed a post office box as his address. Id. The FBI conducted “mail

covers” in 2004 and 2006 where the front covers of all mail sent to various



                                          4
addresses associated with Spaulding were copied and forwarded to the FBI. Id. at

48, 51, 71-72. Moreover, Agent Donohoe subpoenaed phone records to ascertain a

phone number for Spaulding and placed his name in the NCIC database, a national

computer system that would alert police officers to Spaulding’s outstanding arrest

warrant. Id. at 49, 52. He continued to run Spaulding’s name through computer

databases at least twice a year. Id. at 67. Although Agent Donohoe obtained

records for Spaulding’s 1999 conviction for aggravated assault, he did not contact

Spaulding’s probation officer because he determined that Spaulding had been

released early from probation in February 2001.1 R3 at 62-64.

         In October 2007, a DeKalb County police officer arrested Spaulding for

failing to yield to a pedestrian. Id. at 86-87. After Spaulding was fingerprinted,

authorities discovered he had an outstanding arrest warrant. Id. at 87. Spaulding

told police he was living in Decatur, Georgia. Id. at 82. The police called the

residence and learned that Spaulding had been living there sporadically for the last

five years with his mother and grandmother. Id. at 83. The car that Spaulding was

driving was registered to his wife, Kelly Melvin, whom Spaulding had married in

November 2002. Id. at 77-78, 80, 87-88.

         The district court denied Spaulding’s motion to dismiss the indictment. R1-


         1
             Court records indicate that Spaulding’s probation ended in February 2004, however.
R4-34.

                                                   5
31 at 5. The court found there was no presumption of prejudice and that Spaulding

had not shown actual prejudice. Id. A jury convicted Spaulding on all charges and

he was sentenced to a total of 181 months of imprisonment and five years of

supervised release. R1-72 at 1-3. This appeal followed.

                                 II. DISCUSSION

      “Determination of whether a defendant’s constitutional right to a speedy trial

has been violated is a mixed question of law and fact.” United States v. Ingram,

446 F.3d 1332, 1336 (11th Cir. 2006) (quotation marks and citation omitted). We

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

clear error. See id.

      A defendant’s Sixth Amendment right to a speedy trial cannot be quantified

into a specific number of days or months. See Vermont v. Brillon, ___ U.S. ___,

___ S. Ct. ___, No. 08-88, 2009 WL 578642, at *6 (U.S. Mar. 9, 2009). The right

must be evaluated under the particular circumstances of each case using a

balancing test which weighs the conduct of both the government and the defendant.

See id. Relevant factors include the “‘[l]ength of delay, the reason for the delay,

the defendant’s assertion of his right, and prejudice to the defendant.’” Id.

(quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)). The

defendant must prove actual prejudice unless the first three factors all weigh



                                           6
heavily against the government. See Ingram, 446 F.3d at 1336.

       We first evaluate the length of the delay between the date of the indictment

and the trial date. See id. at 1337 n.3. Any delay beyond one year is

“presumptively prejudicial” and triggers further analysis under the Barker test. See

id. at 1336 (quotation marks and citation omitted). The district court correctly

found, and the government concedes, that the length of the four-year, eight-month

delay weighs in Spaulding’s favor and warrants consideration of the remaining

factors.

       Spaulding maintains that the district court erred in concluding that the reason

for the delay, the second Barker factor, only weighed slightly in his favor.

Spaulding agrees with the district court’s finding that he did not actively evade

apprehension. He contends that government agents were not diligent in searching

for him, however, because: (1) they did not contact his mother, grandmother, or

probation officer; (2) they did not check tax records using his social security

number, which would have revealed his employment with an auto dealership in

Decatur, Georgia and his Decatur address2 ; (3) they did not investigate whether he

was married or contact his wife; and (4) they did not search the internet, which



       2
        Although Spaulding apparently did not file any income tax returns from 2002 to 2007,
his employer filed 1099 forms in 2004 and 2005 that listed Spaulding as an employee and listed
Spaulding’s Decatur address. R4 at 15-16, 37-38.

                                               7
would have shown that Spaulding had been fighting professionally under the name

of “Carlton Spaulding” in Atlanta since December 2004 (R4-45).

      The government bears the burden of explaining the reason for the delay. See

Ingram, 446 F.3d at 1337. Invalid reasons include “[g]overnment actions which

are tangential, frivolous, dilatory, or taken in bad faith.” United States v. Schlei,

122 F.3d 944, 987 (11th Cir. 1997) (citation omitted). For example, the

government may not deliberately delay a trial in order to weaken a defendant’s

case. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. On the other hand, a missing

witness is a valid reason justifying a delay. See id., 92 S. Ct. at 2192. Where the

missing individual is the defendant, “the government is not required to exhaust all

conceivable avenues” in finding him. United States v. Bagga, 782 F.2d 1541, 1543

(11th Cir. 1986). The Sixth Amendment mandates only a “diligent, good-faith

effort” on behalf of the government to find the defendant and bring him to trial. Id.

(quotation marks and citation omitted). Accordingly, if the government pursues a

missing defendant with reasonable diligence from his indictment to his arrest, then

no speedy trial violation exists. See Doggett v. United States, 505 U.S. 647, 656,

112 S. Ct. 2686, 2693 (1992). This conclusion generally holds no matter how

great the delay, so long as the defendant cannot show specific prejudice to his

defense. See id., 112 S. Ct. at 2693.



                                           8
      Government negligence falls somewhere in between diligent prosecution

and bad faith delay. See id. at 656-57, 112 S. Ct. at 2693. Negligence is a “more

neutral reason” that counts less heavily against the government. See Barker, 407

U.S. at 531, 92 S. Ct. at 2192. The longer the delay, the more heavily the

government’s negligence weighs against it. See Doggett, 505 U.S. at 657-58, 112

S. Ct. at 2693-94 (concluding that eight-and-a-half year delay between indictment

and trial, six years of which was attributable to the government’s negligence,

violated defendant’s speedy trial right). If the defendant is free and residing

outside the jurisdiction where the indictment was returned, however, the

government’s negligence “does not necessarily tip the scale” in the defendant’s

favor. Bagga, 782 F.2d at 1543.

      The record supports the district court’s finding that the government’s actions

lay “in the middle ground between diligence and bad faith; but closer to diligence

than bad faith.” R1-31 at 4. The evidence established that government agents

consulted with law enforcement agencies in Georgia and Florida; enlisted the help

of Spalding’s father; searched public and law enforcement databases; surveilled

suspected residences; interviewed witnesses and showed them photographs of

Spaulding; monitored mail sent to relatives; subpoenaed telephone records;

contacted the Georgia Department of Motor Vehicles; utilized the NCIC database;



                                           9
and attempted to lure Spaulding back to Florida after his arrest. Based on this

evidence, the district court found that “the [g]overnment continued to periodically

monitor the situation in an effort to locate Spaulding” and “consistently pursued

Spaulding from indictment to arrest.” Id. The district court also found “no

evidence that the government intentionally held back its prosecution to gain some

impermissible advantage at trial.” Id. As for the seven-month delay in indicting

Spaulding, the district court likewise found that no bad faith had been shown

because the government was protecting on-going investigations involving the

undercover agent. Id. at 5. None of these findings are clearly erroneous.

      It is true the government may have been able to do more. Yet its failure to

do so was not egregious given its continuous, good-faith efforts to locate

Spaulding coupled with the fact that Spaulding was living in a different state than

where the indictment was returned. Thus, although the post-indictment delay here

was longer than the two-year delay in Ingram, the government’s concerted efforts

to locate Spaulding greatly exceeded the “less than weak” attempts of the single

law enforcement agent pursuing Ingram. Ingram, 446 F.3d at 1339-40 (concluding

that the government’s negligence weighed heavily against it where the arresting

agent knew where the defendant lived and worked, failed to contact his brother

who was a policeman, and did not refer the case to any other law enforcement



                                         10
agency).3 We therefore conclude that the second factor does not weigh heavily

against the government.

       The third factor is the defendant’s assertion of his right to a speedy trial.

See id. at 1336. If the defendant knew of the indictment years before his arrest but

waited until he was arrested to invoke his right to a speedy trial, then this factor

weighs heavily against him. See Doggett, 505 U.S. at 653, 112 S. Ct. at 2691.

However, if the defendant did not learn about the indictment until his arrest, and

afterwards promptly asserted his speedy trial right, then this factor weighs heavily

against the government. See Ingram, 446 F.3d at 1335, 1340.

       The district court found that Spaulding invoked his speedy trial right within

a month of his initial appearance. R1-31 at 4. Nevertheless, the district court

concluded that this factor did not weigh heavily in his favor because Spaulding

knew of the possible criminal charges before his 2007 arrest. Id. Spaulding

disputes this finding as clearly erroneous. He emphasizes that the indictment

remained sealed until after his 2007 arrest, and insists that he was never informed

that he would be charged or that there were pending charges against him when he

was released in September 2002.

       We need not determine whether the district court clearly erred in finding that


       3
        The two-year post-indictment delay also weighed more heavily against the government
in Ingram because of the added two-and-a-half-year pre-indictment delay. See id. at 1339.

                                             11
Spaulding knew of the possible criminal charges. Even assuming that Spaulding is

correct and that the third factor weighed heavily in his favor, Spaulding would still

be required to show actual prejudice because the reason for the delay did not weigh

heavily against the government. See Ingram, 446 F.3d at 1336 (noting that only if

“all three of these factors weigh heavily against the Government, the defendant

need not show actual prejudice”); see also Schlei, 122 F.3d at 988 (concluding that

the defendant must establish actual prejudice because the reasons for the delay

weighed in the government’s favor).

      In order to prove actual prejudice, the accused must demonstrate one of the

following: (1) oppressive pretrial incarceration, (2) anxiety and concern, or

(3) possible impairment of his defense. See Barker, 407 U.S. at 532, 92 S. Ct. at

2193. Spaulding contends that only the third element, his ability to prepare his

case, was affected by the delay. Prejudice may be shown where a witness dies,

disappears, or is unable to recall distant events. See id., 92 S. Ct. at 2193. On the

other hand, a defendant must proffer more than “conclusory assertions of

prejudice” or “unsubstantiated allegations of witnesses’ faded memories.” United

States v. Hayes, 40 F.3d 362, 366 (11th Cir. 1994).

      No actual prejudice has been shown here. Spaulding submits the delay

hampered his entrapment defense because he could not properly investigate



                                          12
whether two drug dealers, Shanahan and Jose “Primo” Castillo, influenced him to

commit the crimes. Yet Spaulding did not call these (or any) individuals as

witnesses at trial. R11 at 86. Nor does he claim that they were unavailable to

testify or that their memories had faded. It is also unclear how these drug dealers

could have supported an entrapment defense given that neither men were working

for the government or were aware of the undercover agent’s identity. See United

States v. Padron, 527 F.3d 1156, 1160 (11th Cir. 2008) (noting that a successful

entrapment defense requires both government inducement of the crime and the

defendant’s lack of predisposition). In any event, the jury heard the tape

recordings of the September 2002 drug transaction as well as previous

conversations leading up to that incident. Spaulding’s bare assertion of prejudice,

without more, is insufficient to establish actual prejudice. Accordingly, his claim

of a speedy trial violation fails. The district court properly denied his motion to

dismiss the indictment on this basis.

                                III. CONCLUSION

      The record in this case does not establish that Spaulding was deprived of his

Sixth Amendment right to a speedy trial. Although there was a substantial pre-trial

delay, the government made numerous efforts to locate Spaulding in good faith.

The reason for the delay thus did not weigh heavily against the government.



                                          13
Furthermore, Spaulding failed to produce any evidence that the delay impaired his

defense. In the absence of any evidence showing actual prejudice, the district court

correctly concluded that Spaulding’s speedy trial right was not violated and denied

his motion to dismiss the indictment. Finding no error, we AFFIRM Spaulding’s

convictions.

      AFFIRMED.




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