               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0578n.06
                           Filed: August 10, 2007

                                            No. 06-1881

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF MICHIGAN
MORRIS LEE WILLIAMS,                   )
                                       )
      Defendant-Appellant.             )
_______________________________________)


                                             OPINION

Before: MOORE, COOK, Circuit Judges; ACKERMAN, District Judge.*

       HAROLD A. ACKERMAN, District Judge. The sole issue on appeal is whether

Defendant Morris Lee Williams’s Sixth Amendment right to a speedy trial was violated by the

delay between the returning of an Indictment against him and his arraignment in federal court.

We conclude that Williams’s speedy trial right has not been violated and therefore AFFIRM the

District Court’s judgment of conviction.



                                           I. Background



       *
        The Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.

                                                1
       The facts regarding Williams’s crime are undisputed. The parties stipulated in their Plea

Agreement to the following facts regarding the offense Williams committed:

               During the time period of the indictment, from January of 1999 until
               February of 2000, Lawrence Carver Barnes and Morris Williams had
               an arrangement or agreement for Mr. Barnes to supply Mr. Williams
               with heroin and, on occasion, cocaine. The defendants would call
               each other on the telephone and discuss the drug prices, drug quality,
               and the amount of money owed to Mr. Barnes for drugs “fronted” to
               Mr. Williams. Williams would re-distribute to other individuals,
               including Russell Sharp and Joeann Sharp.

               The parties agree that a reasonable, conservative estimate of the
               amount of the controlled drugs the defendant agreed to distribute, and
               personally participated in within the scope of the conspiracy, was
               approximately 70 grams of heroin and 20 grams of cocaine. These
               amounts include 39.6 grams of heroin seized from the residence of
               Morris Williams; 6 grams of heroin seized from a customer of Mr.
               Williams; 24 grams for an “ounce” of heroin purchased by Mr.
               Barnes for $4,000.00; and 20 grams of cocaine purchased by
               defendant Williams for $2,000.00.

(J.A. 48-49, Plea Agreement at § 1.C.)

       On February 18, 2003, a grand jury sitting in the Eastern District of Michigan returned

a three-count Indictment against Williams. The Indictment charged Williams with: one count of

conspiracy to distribute and possess with intent to distribute controlled substances, in violation of

21 U.S.C. §§ 841(a)(1) and 846; and two counts of unlawful use of a communication facility, in

violation of 21 U.S.C. § 843(b).

       The Government immediately moved to seal the Indictment until “the defendants are

arrested and brought before the court for arraignment.” (J.A. 13.) In so moving, the Government

stated that it was “apprehensive that one or more of the defendants may flee the jurisdiction if

they become aware that an indictment has been returned against them” and that it was also



                                                 2
“apprehensive that there is danger of harm to potential government witnesses if the defendants

became aware of the indictment prior to their arrest.” (J.A. 13-14.) Magistrate Judge R. Steven

Whalen entered an order sealing the Indictment on the date of the Indictment’s issuance,

February 18, 2003.

       On May 27, 2003, a Michigan state court bench warrant was issued for Williams in

connection with an unrelated case after Williams failed to appear for sentencing in state court.

Defendant was not arrested by the state authorities until August 2, 2003, when he was

apprehended by the Oak Park, Michigan police for a new, unrelated drug offense. Thus,

Williams was a fugitive from justice from May 27 to August 2, 2003. Williams was incarcerated

in Oakland County (Michigan) Jail from his arrest on August 2, 2003, until November 13, 2003,

when he was sentenced on his last pending state case. During this time, Williams was sentenced

in two state prosecutions. On September 3, 2003, he was sentenced to a term of 3-15 years

imprisonment for a drug conviction. On November 13, 2003, he was sentenced to a term of 3-20

years imprisonment for another unrelated drug conviction. After this second sentence was

issued, Williams was transferred from county jail to the custody of the Michigan Department of

Corrections (“MDOC”) and was assigned to the Southern Michigan Correctional Facility

(“SMCF”) in Jackson, Michigan.

       On October 9, 2003, while Defendant was incarcerated in Oakland County Jail, the

Government filed a motion to unseal the Indictment against Williams in the instant matter.

Magistrate Judge Whalen issued an Order, filed October 9, 2003, unsealing the Indictment, and




                                                 3
an arrest warrant for Williams in this matter was filed the same day.1       It appears that

Williams’s state presentence report presented to the Oakland County Circuit Court in connection

with the sentence issued on November 13, 2003, indicated that there was a federal warrant and

retainer against Williams. (See, e.g., J.A. 73; Tr. 9/7/05 at 4.) The Government concedes that

MDOC records include a letter dated October 29, 2003, from MDOC to the United States

Marshal in which MDOC inquired as to whether the federal authorities intended to pursue the

pending federal charge and enforce the pending federal arrest warrant. Despite the assertion that

the letter was “properly addressed,” (Gov’t Br. at 2) the letter cannot be found in the United

States Marshal’s file and neither the United States Attorney’s Office nor the Federal Bureau of

Investigation knew of the letter until the filing of Defendant’s motion to dismiss for violation of

his right to a speedy trial.

        No further action was taken by the Government in this matter from the issuance of the

arrest warrant and unsealing of the Indictment on October 9, 2003, until June 7, 2004, when the

Government moved for a writ of habeas corpus ad prosequendum to produce Williams’s

appearance in federal court. On the same date, June 7, 2004, Magistrate Judge Mona K. Maloub

entered an Order granting the Government’s motion, and a writ of habeas corpus ad



        1
         The docket entries regarding the Government’s filing of the motion to unseal the
Indictment and the entry of the unsealing Order create some confusion. Although the
Government’s motion was filed via CM-ECF on October 9, 2003, the actual document is dated
October 22, 2003, and was entered on the docket on October 24, 2003. (J.A. 3, 16.) The arrest
warrant, dated February 18, 2003 (the date of the sealed Indictment), was filed on October 9,
2003, and entered on the docket on October 24, 2003. (J.A. 3, 20.) Magistrate Judge Whalen’s
Order unsealing the Indictment was dated October 22, 2003, although the docket indicates that
the Order was filed on October 9, 2003. Despite these peculiar discrepancies in filing dates, the
parties accept October 9, 2003, as the date on which the Indictment was unsealed.


                                                 4
prosequendum was issued. The Government’s initial motion for issuance of the writ stated that

Williams was incarcerated in Oakland County Jail. (J.A. 21, Petition for Writ of Habeas Corpus

Ad Prosequendum at ¶ 2.) Subsequently, the Government apparently learned that Williams was

actually in the SMCF, not in Oakland County Jail. The Government filed an amended, corrected

petition for a writ of habeas corpus on June 16, 2004, and on the same day Magistrate Judge

Virginia M. Morgan issued the writ.

       Williams was transferred to federal custody on July 20, 2004, and appeared in federal

court for arraignment on July 21, 2004. Thus, 17 months and 3 days had passed between the

returning of the sealed Indictment and Williams’s arraignment; 9 months and 12 days had passed

between the unsealing of the Indictment and the arraignment.

       On August 8, 2005, Williams moved to dismiss the Indictment due to violation of his

Sixth Amendment right to a speedy trial. District Judge Bernard A. Friedman held a hearing on

Defendant’s motion to dismiss on September 7, 2005. Much of the argument centered on

Williams’s contention that he was prejudiced by the delay because Williams would have gotten

“a better classification, a better placement [in the MDOC system] had these [federal] charges not

been hanging over him.” (J.A. 77; Tr. 9/7/05 at 8.) At the conclusion of oral argument, Judge

Friedman denied Defendant’s motion. He stated from the bench:

               Although the government has to be faulted for not doing its job in
               relation to having this person arraigned and following it in a much
               more expeditious manner . . . in order to reach the Constitutional
               level of a violation for speedy trial, there has to be some kind of
               actual prejudice and the prejudice has to deal with – not necessarily
               but the traditional ones are – loss of witnesses, loss of documents,
               things of that nature. The fact that he perhaps may have gotten a
               different assignment from the State prison – he was still convicted.
               He was still sentenced. The [state] judge was aware that there was a


                                                5
               federal case outstanding. The punishment aspect of the State case
               may have been different, may have been in a different institution or
               a different environment, but it still would have been punishment. I
               don’t think that reaches the level of a Constitutional violation . . .
               there has been no prejudice or actual prejudice . . . .

(J.A. 80-81, Tr. 9/7/05 at 11-12.) Judge Friedman entered a formal Order denying Defendant’s

motion several months later, on January 25, 2006.

       Subsequent to the denial of his motion to dismiss, Williams entered into a plea agreement

with the Government and pled guilty on November 21, 2005.2 In the plea agreement, Williams

specifically preserved his right to “have an appellate court review the Court’s denial of the

defendant’s motion to dismiss based on an alleged violation of his constitutional right to a speedy

trial.” (J.A. 53; Plea Agreement at § 4.)

       At sentencing on June 15, 2006, Judge Friedman imposed a sentence of 130 months

imprisonment, to run concurrently with Williams’s state court sentences.3 Although Judge

Friedman did not enter judgment in this case until June 23, 2006, Williams appealed his

conviction pro se on June 15, 2006. His appeal, in which he is represented by counsel, is limited

to the speedy trial issue preserved in the plea agreement.

       The District Court had subject matter jurisdiction over this case pursuant to 18 U.S.C. §

3231. This Court has jurisdiction to hear this timely appeal pursuant to 28 U.S.C. § 1291.


       2
         Pursuant to the plea agreement, Williams pled guilty to Count One, the conspiracy to
distribute and possess controlled substances charge, and the Government agreed to dismiss
Counts Two and Three, the unlawful use of a communication facility charges.
       3
        The term of imprisonment ordered by Judge Friedman reflects the low end of the
Guidelines range of 130-162 months estimated by the parties in the Plea Agreement. (J.A. 50;
Plea Agreement at § 2.B.) The Presentence Investigation Report prepared in this matter
calculated Williams’s advisory range to be 188 to 235 months, based on a Total Offense Level of
31 and Criminal History Category VI.

                                                 6
                                             II. Analysis

       The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. The remedy for a speedy

trial violation is dismissal with prejudice. United States v. Jackson, 473 F.3d 660, 664 (6th Cir.

2007). In Barker v. Wingo, the Supreme Court of the United States established an ad hoc

balancing approach to the determination of whether a Sixth Amendment speedy trial violation

has occurred. 407 U.S. 514, 523-30 (1972). Rather than applying rigid bright-line rules, Barker

requires that this Court consider four factors: “(1) whether the delay was uncommonly long; (2)

the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4)

whether prejudice resulted to the defendant.” Maples v. Stegall, 427 F.3d 1020, 1025 (6th Cir.

2005) (citing Barker, 407 U.S. at 530). “None of these factors, standing alone, is sufficient to

establish a Sixth Amendment violation. Rather, a court must conduct a balancing analysis that

considers each of these factors, together with such other circumstances as may be relevant.”

United States v. Watford, 468 F.3d 891, 901 (6th Cir. 2006) (citing Barker, 407 U.S. at 533 and

United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003)).

       Williams asserts a violation of his Sixth Amendment speedy trial right based on the

approximately 17-month delay between the returning of the sealed Indictment and his

arraignment.4 The District Court denied Williams’s motion to dismiss the Indictment on speedy

trial grounds. “We review a district court’s adjudication of a speedy trial claim de novo, and we

review questions of fact for clear error.” Watford, 468 F.3d at 900 (citing Maples, 427 F.3d at

1025). In ruling from the bench, Judge Friedman chastised the Government for its delay but held


       4
           Williams does not assert a speedy trial violation regarding any post-arraignment delay.

                                                   7
that the delay did not rise to the level of a constitutional violation largely because Williams did

not show any actual prejudice. The District Court did not explicitly engage in the careful

balancing of factors required by Barker, or even cite Barker or its Sixth Circuit progeny.

However, Judge Friedman reached the proper conclusion, as Williams was not deprived of his

right to a speedy trial in this case.



        A.      Length of delay

        The length of the delay is a threshold factor for any Sixth Amendment speedy trial claim.

Jackson, 473 F.3d at 664; Watford, 468 F.3d at 901. “That is, if there is no delay that is

presumptively prejudicial, there is no necessity for inquiry into the other factors.” United States

v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007); see also Doggett v. United States, 505 U.S. 647,

651-52 (1992) (“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.”). Thus, this Court must determine, at the outset, whether the delay here was

“uncommonly long” or “extraordinary.” Watford, 468 F.3d at 901 (citations omitted). Generally,

a delay is presumed prejudicial and deemed sufficient to require further analysis when it exceeds

one year. Id. Furthermore, the longer the delay “stretches beyond the bare minimum needed to

trigger judicial examination of the claim,” the stronger the presumption of prejudice to the

defendant from the pretrial delay. Doggett, 505 U.S. at 652.

        Williams claims that the approximately 17-month delay between the returning of the

sealed Indictment and his arraignment in federal court was presumptively prejudicial. We

measure the length of delay “from the date of the indictment or the date of the arrest, whichever


                                                  8
is earlier.” Maples, 427 F.3d at 1026. The 17-month delay here satisfies the one-year threshold

for presumptively prejudicial delay with regard to the first Barker factor, and therefore warrants

consideration of the other factors.

       The Government contended before the District Court that Williams’s speedy trial right

was not triggered until the Indictment was unsealed, which occurred approximately nine months

before Williams’s arraignment. (J.A. 41-43, Gov’t Response to Def.’s Mot. to Dismiss at 3-5.)

This Court does not appear to have specifically addressed whether the Sixth Amendment speedy

trial right attaches while an indictment is sealed, or whether it attaches only when an indictment

is unsealed. If the clock only runs from the date of the unsealing of the indictment, then the delay

here is not seventeen months but nine months. Such a delay, which is less than a year, might not

rise even to the minimal threshold level required to proceed with further analysis.5

       However, on appeal the Government has dropped this argument. As discussed further

below, the Government contends on appeal that some of the delay during the period in which the

Indictment was sealed was justified because the sealing served a legitimate prosecutorial

purpose. But the Government fails to argue on appeal that the pre-unsealing delay should not be

considered at all. Accordingly, this Court need not definitively resolve this question at this time.6


       5
         While the District Court did not discuss the issue in this context, it appears that the
District Court’s analysis focused mostly on the period of post-unsealing delay. (J.A. 80-81.)
       6
         We note that this Court has implied that the speedy trial right is triggered by the filing of
any indictment, whether sealed or not sealed. See, e.g., Watford, 468 F.3d at 901 (“We have
recognized that in most cases, the triggering event will be the filing of an indictment.”). In
Jackson, this Court considered a speedy trial challenge based on “the delays between the issuance
and unsealing of the indictment and [defendant’s] trial.” Jackson, 473 F.3d at 664. Just as here,
in Jackson the total, post-sealed indictment delay was greater than one year but the pre-unsealed
indictment delay was less than one year. Id. at 663. This Court explicitly recognized the
distinction between pre- and post-unsealed indictment delay, but did not find that only post-

                                                  9
We conclude that the 17-month delay from the returning of the sealed Indictment to arraignment

satisfies the constitutional threshold to necessitate further inquiry under the remaining Barker

factors.



           B.     Reason for delay

           In considering the reasons for delay, this Court must consider the justifications offered by

the Government, as “only those periods of delay attributable to the government or the court are

relevant to [defendant’s] constitutional claim.” United States v. Howard, 218 F.3d 556, 564 (6th

Cir. 2000). In Barker, the Supreme Court established a sliding scale of justifications for delay:

                  A deliberate attempt to delay the trial in order to hamper the defense
                  should be weighted heavily against the government. A more neutral
                  reason such as negligence or overcrowded courts should be weighted
                  less heavily but nevertheless should be considered since the ultimate
                  responsibility for such circumstances must rest with the government
                  rather than with the defendant. Finally, a valid reason, such as a
                  missing witness, should serve to justify appropriate delay.

Barker, 407 U.S. at 531 (footnote omitted); see also Maples, 427 F.3d at 1026 (“In considering

this factor, we weigh some reasons more heavily than others. For instance, government delays

motivated by bad faith, harassment, or attempts to seek a tactical advantage weigh heavily

against the government, while ‘more neutral’ reasons such as negligence or overcrowded dockets

weigh against the state less heavily.”). “The purpose of this weighting scheme is to quantify



unsealed indictment delay must be considered. Id. Moreover, the First, Fifth, and Eleventh
Circuits have all rejected a bright-line rule and instead, in accordance with the Supreme Court’s
multi-factor balancing approach in Barker, have held that delay while an indictment is sealed
may be considered. United States v. Casas, 356 F.3d 104, 112-13 (1st Cir. 2004); United States
v. Bergfield, 280 F.3d 486, 489 (5th Cir. 2002); United States v. Hayes, 40 F.3d 362, 365 (11th
Cir. 1994).

                                                    10
‘whether the government or the criminal defendant is more to blame for [the] delay.’” Watford,

468 F.3d at 902 (citations omitted); see also United States v. Tinson, 23 F.3d 1010, 1013 (6th

Cir. 1994) (describing the “time during which [defendants] were not complicit in the delay” as

“actual delay”). The Government bears the burden to explain the delay. Jackson, 473 F.3d at

666 (quoting United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999)).

       In undertaking this analysis, this Court should separate the total 17-month delay between

sealed Indictment and arraignment into smaller periods and scrutinize the reasons proffered by

the Government for delay during each of those periods. See, e.g., Watford, 468 F.3d at 902-05;

Schreane, 331 F.3d at 554-56.

               1.      February 18 to May 27, 2003 (3 months, 9 days)

       The sealed Indictment was returned against Williams on February 18, 2003. From

February 18 to May 27, 2003, no action occurred in this mater. The Government asserts the

delay from February 18 to May 27, 2003, when a state bench warrant was issued for Williams,

was “due to the sealing of the indictment to avoid the risk of flight, in hopes of arresting both

defendants at the same time, which is clearly a legitimate reason for sealing.” (Gov’t Br. at 9.)

The Government is undoubtedly correct that, generally, the sealing of an indictment for the

reasons it proffered serves a “legitimate prosecutorial purpose.” United States v. Wright, 343

F.3d 849, 858 (6th Cir. 2003). A reasonable period of delay due to the sealing of the Indictment

is justified based on the Government’s rational apprehensions, as stated in its motion to seal the

Indictment, that “one or more of the defendants may flee the jurisdiction if they become aware

that an indictment has been returned against them” and that “there is danger of harm to potential

government witnesses if the defendants became aware of the indictment prior to their arrest.”


                                                 11
(J.A. 13-14.)

        At least during the period immediately following the sealing of the Indictment, the delay

had a “valid reason” and thus weighs in favor of the Government. See Schreane, 331 F.3d at 554

(“A ‘valid reason’ for a delay, such as an unavailable witness, weighs in favor of the

government.”) (citations omitted). However, the Government has presented no evidence that it

took any actions during this initial 3-month period to arrest Williams or his co-defendant or to

alleviate any flight risk or risk to witnesses. Thus, at least with regard to the latter portion of the

initial 3-month delay, the sealing of the Indictment provides only a “more neutral reason” for the

Government’s delay, and therefore “should be weighted less heavily but nevertheless should be

considered since the ultimate responsibility for such circumstances must rest with the

government rather than with the defendant.” Barker, 407 U.S. at 531; see also Schreane, 331

F.3d at 553-54. Still, this shorter period of delay does not weigh heavily against the Government

because it does not appear to have been motivated by a “deliberate attempt to delay the trial in

order to hamper the defense,” Barker, 407 U.S. at 531, or by “bad faith, harassment or attempts

to seek a tactical advantage,” Schreane, 331 F.3d at 553.

                2.      May 27 to August 2, 2003 (2 months, 6 days)

        The Government claims that once Williams failed to appear for sentencing on an

unrelated charge in Michigan state court and a state court bench warrant was issued on May 27,

2003, he became an “official, active fugitive from justice.” (Gov’t Br. at 9.) Therefore, the

Government asserts, the delay in this matter from May 27 until August 2, 2003, when Williams

was arrested by local police in Michigan, is not attributable to the Government. In his brief,

Williams alleges that “[h]e did not attempt to evade prosecution,” but he neglects to mention this


                                                  12
period of time in which he failed to respond to the state bench warrant. (Williams’s Br. at 10.)

Williams might be referring to the lack of evidence that he evaded federal prosecution, but he

certainly evaded state prosecution during this period of time. At oral argument, counsel for

Williams forthrightly conceded that the two months during which Williams was a fugitive should

not count against the Government.

       While the Government relies on Williams’s fugitive status, it does not represent that it

made any efforts to locate or arrest Williams during this time. Still, “a defendant who evades

prosecution is culpable in causing the delay.” Brown, 169 F.3d at 349 (discussing defendant who

evaded federal prosecution). Here, the Government proffered evidence that Williams evaded

prosecution in state court for over two months by not responding to the bench warrant, and

Williams has not contested this assertion below or on appeal. As noted, Williams was not

actively evading federal prosecution, as he presumably was unaware of the still-sealed federal

Indictment against him, but it defies logic to hold the Government responsible for delay while

Williams was a fugitive from justice, whether he was a fugitive from federal or state authorities.

This delay due to Williams’s fugitive status was justified and does not weigh against the

Government.

               3.      August 2, 2003 to November 13, 2003 (3 months, 11 days)

       From Williams’s arrest in Michigan on August 2, 2003, to his final sentencing by the

Michigan state court on November 13, 2003, the Michigan authorities were resolving various

unrelated drug charges filed against Williams. The Government properly argues that “[t]he

federal government’s patience in allowing the State . . . to finish prosecuting [the defendant] is a

valid reason for delay that weighs in favor of the government.” (Gov’t Br. at 10 (quoting


                                                 13
Schreane, 331 F.3d at 554-55).) As this Court reiterated in Watford, principles of comity

customarily observed by the Federal Government when interacting with a custodial sovereign

“dictate that respect be accorded to a custodial sovereign’s prerogative ‘to resolve its criminal

proceedings before relinquishing custody to another jurisdiction.’” Watford, 468 F.3d at 903

(quoting Schreane, 331 F.3d at 555). The delay while Michigan resolved its prosecution of

Williams in multiple cases was justified and weighs in favor of the Government.

               4.      November 13, 2003 to June 7, 2004 (6 months, 24 days)

       The Government concedes that the delay between Williams’s last state sentencing and the

Government’s filing of its first petition for a writ to obtain Williams’s appearance in federal

court is “delay attributable to the government.” (Gov’t Br. at 10.) Judge Friedman criticized this

nearly 7-month period of delay, and the Government offers no justification for its negligence

during this period. (Gov’t Br. at 10 (“While federal authorities believed that the State would

contact them when they were finished prosecuting the defendant, it was negligent not to ascertain

the status of the defendant’s state court cases.”).) MDOC records reflect that MDOC sent an

inquiry regarding the federal prosecution on October 29, 2003, but the letter apparently was never

received by the United States Marshal or any other federal law enforcement body. The

Government does not attempt to blame state officials for this lapse. This unjustified period of

delay weighs against the Government. However, because there is no evidence of bad faith on

behalf of the Government with respect to this negligent delay, this delay does not weigh heavily

against the Government.

               5.      June 7, 2004 to July 21, 2004 (1 month, 14 days)

       The Government advances that the delay of approximately one-and-one-half months from


                                                 14
the time of the Government’s filing of its first petition for a writ of habeas corpus ad

prosequendum to the date of Williams’s arraignment was “the usual and customary time that

would be required to obtain the defendant’s presence from State custody.” (Gov’t Br. at 11.) We

find that once the Government filed its initial motion to produce Williams, it acted with

“customary promptness,” Doggett, 505 U.S. at 652, especially in light of the delays inherent in

locating a defendant and transporting a defendant from state to federal custody.

               6.      Summary

       The Government contends that the “actual delay” attributable to it is less slightly less than

seven months and comprises only the unjustified delay between November 13, 2003 and June 7,

2004. We add approximately one month to this period of delay attributable to the Government,

based on a portion of the initial post-sealed Indictment delay. The precise length of the total

“actual delay” is not crucial; what is important is that of the seventeen-month delay between

sealed Indictment and arraignment, at most approximately eight months are attributable to the

Government. This eight-month delay, because it was at most negligent and did not stem from

any bad faith, weighs against the Government but not heavily so. The remaining overall delay of

nine months weighs in favor of the Government as it was justified by valid reasons.



       C.      Whether Williams asserted his Sixth Amendment right

       Williams first filed his motion to dismiss the Indictment based on a violation of his

speedy trial right on August 8, 2005, over a year after his arraignment in July 2004. The

Government argues that Williams did not assert his speedy trial right at any time before the filing

of the motion to dismiss, as no request by the defendant to appear on the federal charges may be


                                                 15
found in any state or federal files. Former counsel for Williams contended before the District

Court that the mysteriously missing letter from MDOC to the United States Marshal, sent in

October 2003, was sent “with the approval and request of Mr. Williams.” (J.A. 75, Tr. 9/7/05 at

75.) Yet no formal record of Williams’s request appears in the files, and no evidence has been

presented on appeal to support this assertion. The pending federal arrest warrant was mentioned

in Williams’s state presentencing report for his November 2003 sentencing, thus notifying both

Michigan authorities and Williams of its existence of the federal matter. The Indictment was

unsealed in October 2003, but again no evidence suggests that Williams himself asserted his

speedy trial right until he filed his motion to dismiss.

       Moreover, as the Government observes, Williams’s “behavior after his initial appearance

in federal court, including seeking the appointment of new counsel on the eve of a scheduled trial

date and stipulating to adjournments while the case was pending for an additional 16 months,

does not suggest a particularly vigorous assertion of his speedy trial rights.” (Gov’t Br. at 11-12.)

Williams’s conclusory assertion in his brief that he “made attempts to exercise his right to a

speedy trial” lacks support. He offers no explanation for his own delay in formally asserting his

Sixth Amendment right for over a year following his arraignment. Therefore, we conclude that

Williams’s delay in asserting his speedy trial right weighs against him and in favor of the

Government. Watford, 468 F.3d at 907 (finding that five-month delay in asserting speedy trial

right weighed against defendant); United States v. Thomas, 167 F.3d 299, 305 (6th Cir. 1999)

(“A defendant’s failure to assert his rights in a timely fashion weighs heavily against his Sixth

Amendment claim.”).




                                                  16
       D.      Prejudice to Williams

       In considering the final Barker prong – prejudice to Williams from the pre-arraignment

delay – “we must heed the Supreme Court’s instruction to consider the possible prejudice

suffered by the defendant in light of the interests safeguarded by the Sixth Amendment’s speedy

trial guarantee.” Watford, 468 F.3d at 907 (citations omitted). “Three interests are paramount:

(i) preventing oppressive pretrial incarceration; (ii) minimizing the anxiety and concern of the

accused; and (iii) limiting the possibility that the defense will be impaired.” Id. (citations

omitted). The third factor, impairment of the defense, is the most important “‘because the

inability of a defendant adequately to prepare his case skews the fairness of the entire system.’”

Id. (quoting Barker, 407 U.S. at 532 and Schreane, 331 F.3d at 557-58).

       The District Court primarily relied on the prejudice factor to reject Williams’s speedy

trial claim. Before the District Court, Williams argued that he was prejudiced in that if his

federal prosecution had been resolved sooner, he might have received more favorable placement

and treatment within the Michigan state correctional system. Judge Friedman rejected this theory

of actual prejudice, and Williams does not raise this theory on appeal.

       Rather, Williams chiefly argues that the total delay here of 17 months was so

extraordinary that prejudice should be presumed and Williams should not be required to show

actual prejudice. Generally, only a truly extraordinary delay, often stemming from bad faith on

behalf of the Government, is sufficient to entitle a defendant to relief absent a showing of actual

prejudice. See Jackson, 473 F.3d at 667-68 (discussing cases from Supreme Court and Sixth

Circuit where thirteen and one half-month, three-year, and five-year delays did not give rise to a

presumption of prejudice). The classic case where such a presumption of prejudice arose is


                                                  17
Doggett, where the Supreme Court held that an eight and one half-year delay warranted a finding

of prejudice without any actual showing. Doggett, 505 U.S. at 657-58. This Court in Jackson

concluded that “neither a ten- nor a twenty-month delay is extraordinary under our precedents”

and therefore defendant had to show some actual prejudice. Jackson, 473 F.3d at 668. The same

reasoning applies here. Whether considering the 17-month total delay or the approximately

eight-month actual delay, neither delay rises to such an extraordinary level that Williams is

excused from showing actual prejudice. This Court has held, as Williams urges, that “when the

government’s negligence caused the delay, the need to prove prejudice diminishes as the delay

increases,” Brown, 169 F.3d at 350-51. Yet the delay here was not so lengthy that Williams is

excused from presenting any evidence of prejudice. Furthermore, Williams’s contention that the

Government’s actions (or lack thereof) constituted “gross negligence, and could be considered

the equivalent of bad faith” (Williams’s Br. at 13-14) lacks merit. A significant portion of the

delay here was justified, and no evidence suggests that the approximately eight-month unjustified

delay stems from bad faith or even “gross” negligence.

       With regard to actual prejudice, Williams does not point to any evidence of prejudice

relating to the “paramount interests” of the Sixth Amendment. He fails to argue that he suffered

any oppressive pretrial incarceration. Because he was properly incarcerated in Michigan state

prison serving his state sentences during most of the period of delay about which he complains,

he clearly cannot claim any oppressive pretrial incarceration resulting from the federal delay. See

Watford, 468 F.3d at 907 (“[B]ecause Watford was already incarcerated on state murder charges,

he had suffered no oppressive pretrial incarceration at the hands of federal authorities.”).

Williams was in the custody of Michigan state authorities for 11 months of the 17-month delay,


                                                 18
from his August 2003 state arrest until the end of the delay upon his arraignment in July 2004.

He simply cannot be heard to complain of any prejudice due to imprisonment resulting from the

federal delay. Relatedly, Williams does not argue that he suffered any anxiety or concern during

his pretrial delay, and even if he had, any such anxiety or concern stemmed from his state

incarceration rather than the pending federal charges. Id.

       Finally, Williams presents no evidence or argument that his defense was impaired by the

delay. This absence of prejudice to his defense severely undermines his claim. The Government

notes that the delay did not affect Williams’s ability to defend himself, as “numerous wiretap

conversations of the defendant were recorded,” cooperating witnesses were prepared to testify

against Williams, and “evidence seized under a search warrant from the defendant’s residence

was part of the proofs.” (Gov’t Br. at 13 n.6.) While these examples offered by the Government

comprise the substantial evidence against Williams and are not part of Williams’s defense, the

continued existence of the testimonial and physical evidence relevant to this case supports the

notion that there was no loss of evidence that would have hampered Williams’s defense.7

        Williams’s failure to present any evidence whatsoever of prejudice from the delay

weighs heavily against him and in favor of the Government.



       E.      Summary


       7
         Williams appears to base his prejudice argument, such as it is, on the delay between the
date of his offenses, in 1999-2000, and his Indictment and eventual arraignment. However, as
the Government states, the Sixth Amendment does not address pre-indictment delay. Rather, the
Due Process Clause of the Fifth Amendment covers such a claim. See, e.g., United States v.
Marion, 404 U.S. 307, 324 (1971). Williams has never raised a due process challenge to his
prosecution, does not bring any due process claim on appeal, and makes no more than passing
reference to pre-indictment delay in his appellate brief.

                                                19
         None of the Barker factors weigh heavily in favor of Williams. The length of the delay

was long enough to trigger further judicial inquiry, but the approximately 17-month delay was

not nearly as extreme as in other cases in which courts have found a violation of the speedy trial

right. The other three Barker factors all weigh against Williams and in favor of the Government.

The Government was rightly criticized by the District Court for its negligent delay, but of the

total 17-month delay, only approximately eight months may be fairly attributed to the

Government, and no evidence suggests that the Government delayed this case in bad faith.

Williams failed to assert his Sixth Amendment right until nearly a year after his arraignment, and

no evidence beyond former counsel’s bald statement supports any earlier assertion of the speedy

trial right. Finally, and quite importantly, Williams has not shown any actual prejudice from the

delay, and the delay was not so extraordinarily long that prejudice may be presumed with regard

to this final factor.

         In balancing the Barker factors, this Court concludes that the pre-arraignment delay did

not deprive Williams of his Sixth Amendment right to a speedy trial, and that the District Court

did not err in denying Williams’s motion to dismiss the Indictment for violation of the speedy

trial right.



                                          III. Conclusion

         For the foregoing reasons, this Court AFFIRMS the judgment of conviction and sentence

in this matter.




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