                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                             No. 01-20974




                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                VERSUS

          JUAN ALBERTO CARDONA, also known as Juancho,

                                                  Defendant-Appellant.



          Appeals from the United States District Court
                For the Southern District of Texas
                          August 16, 2002



Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.

PER CURIAM:

     Juan Alberto Cardona appeals following his conviction for a

cocaine conspiracy.    He argues that the government violated the

Speedy Trial Clause of the Sixth Amendment by waiting over five

years to execute the warrant for his arrest.       The district court

found no speedy trial violation and denied defendant’s motion to

dismiss the indictment.   We hold that the district court erred in

its speedy trial analysis.     We vacate the judgment of conviction

and sentence and remand for dismissal of the indictment.

                                 I.
     On April 23, 1995, Cardona and others were indicted in Texas

for a cocaine conspiracy and related charges.                 The next day a

warrant was issued for his arrest.                 Over five years later, on

October   28,    2000,     Cardona    was    arrested    on   the    warrant    in

Connecticut.     On January 8, 2001, Cardona moved to dismiss the

indictment, arguing that the delay in the execution of the warrant

violated his right to a speedy trial.              In response, the Government

argued that it had been diligent in its attempt to arrest Cardona,

describing its efforts to locate him.

     The district court denied Cardona’s motion for dismissal and

a motion for reconsideration without giving reasons.                At Cardona’s

request   it    then     set   a   hearing    on    defendant’s     request    for

reconsideration.       At that hearing Cardona presented evidence that

he had several contacts with law enforcement agencies between 1995

and 2000, and had lived openly for several years in New York and

Connecticut without ever having been questioned about the warrant

for his arrest.          Cardona also testified that an alleged co-

conspirator, William Gomez, would have testified on his behalf if

he had not been deported and was still available to testify.

     The district court then denied the motion, finding that

Cardona had had several addresses and concluding “I don’t see

anything that contradicts or suggests that the Government’s failing

to arrest him was out of negligence.”              Further, the court noted it

“doesn’t find . . . that Mr. Gomez would necessarily testify on his

behalf and there is no reason necessarily for Mr. Gomez to, as far

                                        2
as the Court has determined, testify on behalf of Mr. Cardona.”              VI

R. 18-19.    After a jury trial Cardona was convicted and sentenced

and timely appealed.

                                    II.

     In analyzing a defendant's Sixth Amendment speedy trial claim

based on post-indictment delay, we consider four factors:               (1) the

length of the delay, (2) the reason for the delay, (3) the

defendant's diligence in asserting his Sixth Amendment right, and

(4) prejudice to the defendant resulting from the delay.              Barker v.

Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 33 L. Ed. 2d 101

(1972).     The district court addressed factors two and four, the

reason for the delay and prejudice.             We review for clear error a

district court's factual findings in applying the elements of this

balancing test.     United States v. Bergfeld, 280 F.3d 486, 488 (5th

Cir. 2002).

                                   III.

     Doggett v. United States explained how the four factors used

to analyze a defendant's Sixth Amendment speedy trial claim based

on a post-indictment delay are weighed, and the burden each party

carries.    505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992).

     The threshold inquiry is whether the delay was long enough to

trigger a "speedy trial" analysis.               If the delay reaches the

threshold level of one year, it is “presumptively prejudicial” and

requires    the   court   to   engage   in     the   speedy   trial   analysis,

balancing the remaining factors.            Robinson v. Whitley, 2 F.3d 562,

                                        3
568 (5th Cir. 1993), cert. denied, 510 U.S. 1167, 114 S.Ct. 1197,

27 L.Ed.2d 546 (1994); Doggett, 505 U.S. at 651-52 & n. 1, 112 S.

Ct. 2686, 2690-91.        This delay of over five years certainly

suffices to raise the presumption of prejudice and trigger the

analysis.

     Bergfeld explains the next inquiry:

     Next, the length of the delay, the reason for the delay,
     and defendant's diligence in asserting his or her rights
     is weighed against the prejudice to the defendant.
     Depending on how heavily the first three factors weigh
     for or against the defendant, prejudice is presumed in
     some cases, relieving the defendant of any burden to show
     actual prejudice. One lesson from Doggett is that the
     longer the delay, the greater the presumption of
     prejudice.

Bergfeld, 280 F.3d at 488 (citations omitted).

     The district court did not weigh these factors on the record.

It is not apparent whether the district court even considered the

first element, length of the delay, as part of its speedy trial

analysis.    Because of the extraordinary delay of over five years,

this factor weighs heavily in Cardona’s favor.         Id. at 489 (five

years).

     As for the second factor, reason for the delay, "’different

weights [are to be] assigned to different reasons for delay.’"

Doggett, 505 U.S. at 657, 112 S.Ct. 2686 (quoting Barker).       “If the

government   diligently   pursues   a   defendant   from   indictment   to

arrest, a speedy trial claim will always fail without a showing of

actual prejudice.”   Bergfeld, 280 F.3d at 489.      On the other hand,

if the Government intentionally held back in its prosecution “to

                                    4
gain some impermissible advantage at trial," that fact weighs

heavily against the Government.       Doggett, 505 U.S. at 565.   The

middle ground between diligent prosecution and bad-faith delay is

government negligence in bringing an accused to trial.     Id.

      Cardona did not allege bad faith and suggested only negligence

on the part of the Government by showing his open presence in New

York and Connecticut without having been contacted about the

warrant.   The Government argued in its opposition that it was

diligent, offering reasons for its delay and explaining efforts to

track Cardona down, but did not support its memorandum with a

single shred of evidence then or at the later hearing.    The record

provides no evidence of the Government’s diligence in attempting to

locate Cardona, as it contains no evidence whatsoever of the

Government’s intentions and efforts. The Government’s arguments in

brief are not evidence.

      We therefore find that the district court clearly erred in

concluding from defendant’s evidence that the government was not

negligent in failing to arrest Cardona sooner.      Without deciding

who bears the burden of proof of showing the reason for delay,1 we

conclude that this factor would either weigh in defendant’s favor

  1
   United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999), held
the Government to the burden of proving that defendant was actually
culpable in causing the delay in his case, evaded arrest on the
indictment, or was aware of the issuance of the indictment and
intentionally hid himself from law enforcement agents.     See also
Barker, 407 U.S. at 531, 92 S.Ct. at 2192 (calling this factor “the
reason the government assigns to justify the delay”) (emphasis
added).

                                  5
or at the very least be a neutral one.         See Barker, 407 U.S. at

531, 92 S.Ct. at 2192 (“A more neutral reason such as negligence

. . . should be weighted less heavily [against the Government than

bad faith] but nevertheless should be considered since the ultimate

responsibility    for   such   circumstances   [as   judicial     delay    or

negligence] must rest with the government rather than with the

defendant.”).

      The third factor of the Doggett balancing test is whether the

“defendant, in due course, asserted his right to a speedy trial.”

Doggett, 505 U.S at 651.       It is not clear whether the district

court considered this factor since it was not addressed.            Having

been arrested October 23, 2000, Cardona moved to dismiss for speedy

trial violation on January 8, 2001, just over a month after his

initial appearance.     The defendant’s assertion of his speedy trial

right is “entitled to strong evidentiary weight.” Barker, 407 U.S.

at 531-32, 92 S.Ct. at 2192.

      There is no evidence that he knew of the charges against him

until his arrest;2 thus this factor weighs heavily in Cardona’s

favor.    See Doggett, 505 U.S. at 653-54, 112 S.Ct. at                 2691

(defendant “is not to be taxed for invoking his speedy trial right

only after his arrest” where Government introduced no evidence

challenging     testimony   that   defendant   did   not   know    of     the

  2
     On cross examination, Cardona testified that he learned about
a co-conspirator’s 1995 arrest only after his own arrest (in 2000);
he was not questioned about when he learned that he had been
indicted.

                                    6
indictment); Bergfeld, 280 F.3d at 489 (concluding that defendant’s

lack of knowledge of the indictment until after it was unsealed

meant   this     factor   weighed      exclusively         in    defendant’s   favor).

Cardona timely raised his right to a speedy trial, and the district

court erred in not weighing this factor in Cardona’s favor.

     Finally, a court must consider whether the defendant was

prejudiced by the delay in his arrest.                      Cardona testified that

Gomez, a co-conspirator now deported, would have testified that

Cardona had nothing to do with the conspiracy, although Cardona did

admit that Gomez might have implicated him to get a reduced

sentence. The court intimated that it was finding no prejudice, in

declaring that Cardona had presented no evidence that Gomez would

“necessarily” testify as Cardona asserted.                      Based on Bergfeld and

Doggett,    we    conclude      that   the       district    court's    analysis      was

incorrect.

     Under Doggett and Bergfeld, the first three factors “should be

used to determine whether the defendant bears the burden to put

forth specific evidence of prejudice (or whether it is presumed).”

Bergfeld, 280 F.3d at 490. Cardona’s assertion of his speedy trial

right   and    the   unreasonable       five-year       delay      weigh    heavily   in

Cardona’s     favor.      The    presumption        that    a    pretrial    delay    has

prejudiced the accused intensifies over time. Doggett, 505 U.S. at

652, 112 S.Ct. at 2691.           The reason for the delay either favors

Cardona further or is a neutral factor.                 We conclude that under a



                                             7
correct application of Doggett, the weight of these facts warrants

a presumption of prejudice.            Id. at 657-58, 112 S. Ct. at 2686

(presuming prejudice with an eight-year delay after the indictment,

the   defendant    unaware     of   the    indictment,      and    the   government

negligent in pursuing the defendant); Bergfeld, 280 F.3d at 491

(holding that five-year delay caused by government’s negligence

entitled defendant to presumption of prejudice).

      Under   Doggett,    if   “the    presumption        of    prejudice,    albeit

unspecified,      is   neither      extenuated,      as    by     the    defendant's

acquiescence, nor persuasively rebutted,” then the defendant is

entitled to relief."      505 U.S. at 658, 112 S.Ct. at 2694 (footnotes

and citations omitted).          Here, the presumption of prejudice was

neither extenuated by the defendant’s acquiescence nor rebutted by

any evidence on behalf of the Government.

      In view of this presumption, we hold that the district court’s

finding that Cardona did not suffer prejudice from the delay

between   his     indictment     and   arrest   to    be       clearly    erroneous.

Weighing the presumed prejudice against the other factors, we find

Cardona entitled to relief for violation of his right to a speedy

trial.

                                          IV.

      Based on the balancing test described in Bergfeld and Doggett,

we hold that Cardona’s Sixth Amendment right to a speedy trial was

violated. Dismissal of the indictment is the only possible remedy.

Barker, 407 U.S. at 522, 92 S. Ct. At 2188.               Accordingly, we vacate

                                           8
the   judgment   of   conviction   and   sentence   and   remand   with

instructions to dismiss the indictment.

      VACATED; REMANDED for DISMISSAL OF INDICTMENT.




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