                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 11a0298p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       No. 09-5903
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 JOHN FERREIRA,
                                                  -
                                                 N
                   Appeal from the United States District Court
              for the Eastern District of Tennessee at Chattanooga.
                      Nos. 05-00092-003; 09-00016-001—
                      Curtis L. Collier, Chief District Judge.
                                     Argued: July 22, 2011
                          Decided and Filed: November 30, 2011
 Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*

                                      _________________

                                           COUNSEL
ARGUED: Steven G. Moore, Fort Oglethorpe, Georgia, for Appellant. Scott A. Winne,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
ON BRIEF: Steven G. Moore, Fort Oglethorpe, Georgia, for Appellant. Scott A.
Winne, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for
Appellee.
       MARBLEY, D. J., delivered the opinion of the court, in which MOORE, J.,
joined. KETHLEDGE, J. (pp. 12–15), delivered a separate dissenting opinion.




        *
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                  1
No. 09-5903        United States v. Ferreira                                       Page 2


                                 _________________

                                       OPINION
                                 _________________

       ALGENON L. MARBLEY, District Judge. Defendant-Appellant John Ferreira
is serving a term of imprisonment of 110 months following a plea of guilty to conspiracy
to distribute 500 grams or more of methamphetamine. On appeal, Ferreira argues that
the district court erred in four respects: (1) by finding that Ferreira’s Sixth Amendment
right to a speedy trial was not violated; (2) by finding that the Speedy Trial Act did not
authorize dismissal of his indictment; (3) by finding that dismissal without prejudice was
the appropriate remedy for the violation of the Interstate Agreement on Detainers Act;
and (4) by ordering that Ferreira’s federal sentence be served consecutively to his state
term of imprisonment for voluntary manslaughter. Because the district court erred by
finding that Ferreira’s Sixth Amendment right to a speedy trial was not violated, we
reverse the district court’s denial of Ferreira’s speedy trial motion and remand for
dismissal of the indictment with prejudice.

                                           I.

       On September 13, 2005, the Government charged Ferreira with conspiracy to
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A). At the time of the federal indictment, Ferreira was in the custody of the
state authorities in Bartow County, Georgia, on unrelated charges. On October 5, 2005,
the Government filed a petition for a writ of habeas corpus ad prosequendum directing
the Bartow County Sheriff’s Department to bring Ferreira to the Eastern District of
Tennessee for an initial appearance scheduled for October 19, 2005. A second
Superceding Indictment was filed on October 12, 2005, and the Government filed a
second petition for a writ of habeas corpus ad prosequendum on October 21, 2005. On
that date, the district court entered an Order granting a writ of habeas corpus ad
prosequendum for Ferreira.
No. 09-5903         United States v. Ferreira                                         Page 3


        Although Ferreira had initially been in the Bartow County, Georgia Jail, at some
point he was transferred to the Cobb County, Georgia Jail, to answer unrelated charges
in that jurisdiction. The United States Marshals Service notified the Government of
Ferreira’s transfer to Cobb County before the Government filed the second petition for
a writ on October 21, 2005. The Government misplaced the notification and directed the
second petition for a writ to Bartow County. The United States Marshals lodged federal
detainers with Georgia authorities in December of 2006 and February of 2007. On
September 6, 2007, Ferreira filed a pro se motion requesting appointment of counsel and
included a copy of his executed detainer and a request for a speedy trial. On July 8,
2008, Ferreira filed a pro se motion to dismiss the indictment for speedy trial violations.

        On July 17, 2008, the Government requested a third writ of habeas corpus ad
prosequendum. The district court issued the writ on July 21, 2008, directing it to the
Mason State Prison in Georgia where Ferreira was serving his state sentence. On August
25, 2008, Ferreira appeared in the United States District Court for the Eastern District
of Tennessee, at Chattanooga, for an initial appearance and arraignment. Ferreira was
appointed counsel, who filed a Motion to Dismiss the Indictment with prejudice, alleging
violations of the Sixth Amendment right to a speedy trial, the Speedy Trial Act, the
Interstate Agreement on Detainers Act (“IADA”), and Rule 48(b) of the Federal Rules
of Criminal Procedure. The Government responded by conceding that it violated the
IADA but arguing that the indictment should be dismissed without prejudice.

        On February 6, 2009, the district court denied Ferreira’s motion with respect to
the Sixth Amendment, Speedy Trial Act, and Rule 48(b) claims. It granted Ferreira’s
motion to dismiss the case for a violation of the IADA, but did not dismiss the case with
prejudice because Ferreira failed to show how the delay actually harmed him. On
February 10, 2009, the Government filed a new one-count indictment charging Ferreira
with conspiracy to distribute 500 grams or more of methamphetamine, alleging the same
facts as in the indictment in the prior case. Ferreira subsequently pleaded guilty pursuant
to a conditional plea agreement, reserving the right to appeal the issues raised in the prior
case.
No. 09-5903        United States v. Ferreira                                        Page 4


       At sentencing, the district court adopted the conclusions in the Presentence
Investigation Report that Ferreira’s Guidelines range was 151 to 188 months of
imprisonment with a ten-year mandatory minimum. The court then granted the
Government’s motion for a downward departure, see 18 U.S.C. § 5K1.1, reducing the
Guidelines range to 108 to 135 months. Ferreira urged the district court to run the federal
sentence concurrently with Ferreira’s undischarged state sentence. The Government
argued that the sentence should be served consecutively to the state sentence because a
concurrent sentence would be akin to imposing no punishment for the federal offense
committed by Defendant. The district court imposed a sentence of 110 months
consecutive to the state undischarged term of imprisonment, and this appeal followed.

                                            II.

       We have jurisdiction over Ferreira’s appeal of his convictions pursuant to
28 U.S.C. § 1291 because the district court entered a final judgment, and Ferreira timely
filed a notice of appeal. This Court has jurisdiction to review the district court’s
sentencing determination pursuant to 18 U.S.C. § 3742(a) as a result of the final
judgment entered by the district court and Ferreira’s timely filing of a notice of appeal
pursuant to 28 U.S.C. § 1291.

                                           III.

       As we have noted, “[i]n determining whether a defendant’s right to a speedy trial
has been violated, this court reviews questions of law de novo and questions of fact
under the clearly erroneous standard.” United States v. Robinson, 455 F.3d 602, 607 (6th
Cir. 2006).

       Criminal defendants possess a Sixth Amendment right to a speedy trial. U.S.
Const. amend. VI. Courts must balance four factors to determine whether a delay
violated the Sixth Amendment: (1) the “[l]ength of the delay”; (2) “the reason for the
delay”; (3) “the defendant’s assertion of his right”; and (4) “prejudice to the defendant.”
Barker v. Wingo, 407 U.S. 514, 530 (1972). “No one factor is determinative; rather, they
No. 09-5903        United States v. Ferreira                                     Page 5


are related factors which must be considered together with such other circumstances as
may be relevant.” Robinson, 455 F.3d at 607.

                                           A.

       The length of the delay “is a threshold requirement, and if the delay is not
uncommonly long, judicial examination ceases.” Id.; see also Barker, 407 U.S. at 530
(“The length of the delay is to some extent a triggering mechanism.”). The delay must
“cross[] the threshold dividing ordinary from ‘presumptively prejudicial’ delay.” Girts
v. Yanai, 600 F.3d 576, 588 (6th Cir. 2010) (quoting Doggett v. United States, 505 U.S.
647, 651–52 (1992)). If it does not, then “judicial examination ceases.” Robinson, 455
F.3d at 607. A delay of one year or more crosses the threshold and triggers analysis of
the remaining Barker factors. Id.

       The district court found that the delay in this case was “nearly three years”
long—from September 13, 2005 until August 25, 2008, or thirty-five months—a length
that satisfies the threshold requirement. We therefore continue our analysis of the
remaining three Barker factors.

                                           B.

       Courts assign “different weights . . . to different reasons” for the government’s
delay. Barker, 407 U.S. at 531. “Governmental delays motivated by bad faith,
harassment, or attempts to seek a tactical advantage weigh heavily against the
government, while neutral reasons such as negligence are weighted less heavily, and
valid reasons for a delay weigh in favor of the government.” Robinson, 455 F.3d at 607.

       As the district court found, the Government was solely responsible for causing
the delay, which the district court rightly characterized as “beyond simple negligence.”
Neither party offers a reason for finding either that the Government was less or more
than grossly negligent, as the district court found, and we conclude that this factor
weighs in Ferreira’s favor.
No. 09-5903         United States v. Ferreira                                         Page 6


                                             C.

        As both parties agree, Ferreira properly and repeatedly asserted his right to a
speedy trial. This factor, therefore, weighs in Ferreira’s favor.

                                             D.

        The final factor requires a defendant to “show that ‘substantial prejudice’ has
resulted from the delay.” United States v. Schreane, 331 F.3d 548, 557 (6th Cir. 2003)
(quoting United States v. White, 985 F.2d 271, 276 (6th Cir. 1993)). Prejudice “should
be assessed in the light of the interests of defendants which the speedy trial right was
designed to protect,” of which there are three: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired.” Barker, 407 U.S. at 532. The possibility
that the defense will be impaired is “the most serious” of these interests. Id.

        Because Ferreira was incarcerated in state prison during the delay at issue, he
claims only the third type of prejudice. He argues on appeal, as he did in the district
court, that the passage of time generally impaired his defense by causing the evidence
to go stale. The Sixth Circuit has recognized that “extreme” delays may, on their own,
“give rise to a strong presumption of evidentiary prejudice affecting the fourth Barker
factor.” United States v. Smith, 94 F.3d 204, 209 (6th Cir. 1996) (quotation omitted); see
also Doggett, 505 U.S. at 655 (“[E]xcessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or, for that matter, identify.”).
“When a defendant is unable to articulate the harm caused by delay, the reason for the
delay (factor 2) will be used to determine whether the defendant was presumptively
prejudiced.” United States v. Mundt, 29 F.3d 233, 236 (6th Cir. 1994). Where the delay
has been caused by negligence, “our toleration of such negligence varies inversely with
its protractedness.” Doggett, 505 U.S. at 657.

        The Sixth Circuit has not previously ruled in a published disposition upon
whether a three-year pre-trial delay due to the government’s negligence generates a
No. 09-5903            United States v. Ferreira                                                    Page 7


presumption of prejudice under the fourth Barker prong.1 Rather, three years falls
between delays that we have found nonprejudicial, see United States v. Jackson, 473
F.3d 660, 667 (6th Cir. 2007) (holding a nearly two-year delay between a defendant’s
indictment and his arrest, attributable to the government’s negligence, did not satisfy the
actual prejudice prong), and those that we have found prejudicial, see United States v.
Brown, 169 F.3d 344, 351 (6th Cir. 1999) (holding an over five-year delay attributable
to the government’s negligence to be prejudicial). Cf. Doggett, 505 U.S. at 657 (holding
six-year delay attributable to government’s negligence to be “clearly sufficient” for
finding prejudice warranting dismissal).

         In an unpublished opinion reversing a denial of a petition for habeas corpus,
however, we held that a petitioner whose trial was delayed by three and a half years had
shown a violation of his right to a speedy trial. Dixon v. White, 210 F. App’x 498, 499
(6th Cir. 2007). The petitioner in that case was arrested and charged on January 16,
1994. He filed a demand for a speedy trial seven months later, moved to dismiss the
information five months after that, renewed the motion in another eight months, renewed
it again in seven more months, and renewed it one final time on the day his trial began,
June 20, 1997. Id. The Michigan Court of Appeals applied Barker and concluded that
there was no speedy trial violation because the petitioner had not shown prejudice from
the delay. Id. at 501. We concluded otherwise, holding that the Michigan court
unreasonably applied Doggett, a “materially indistinguishable” case. Id. at 501–02. Both
cases involved an “uncommonly long” delay attributable to the government, a defendant
who raised his right to a speedy trial, and no showing of actual prejudice. Id. at 502.
Notably, only approximately thirty-three of the forty-one months of the delay could be
attributed to the government, id. at 502 n.5, placing Ferreira’s thirty-five month delay
beyond a period that we have previously concluded violated the Sixth Amendment. Cf.
Sykes v. Stephens, 652 F.2d 59, 59 (6th Cir. 1981) (unpublished) (“[A] three year delay
is suspicious . . . .”).


         1
          In Smith, we held that a three-year delay in a defendant’s appeal was “negligible at best.” 94
F.3d at 212. Smith is distinguishable because the interests on appeal are distinct from those prior to trial,
the delay was justified, and the government rebutted the presumption of prejudice. See id.
No. 09-5903         United States v. Ferreira                                         Page 8


        Dixon’s holding that a three-and-a-half-year delay necessitates a finding of
presumptive prejudice is in keeping with decisions from two of our sister circuits. In
United States v. Erenas-Luna, the Eighth Circuit applied Doggett and concluded that a
three-year delay between indictment and arraignment caused by “the serious negligence
of the government” was excessive enough to trigger a presumption of prejudice. 560
F.3d 772, 780 (8th Cir. 2009). Likewise, in United States v. Ingram, the Eleventh Circuit
held that a two-year, post-indictment delay caused by egregious government negligence
allowed the court to presume prejudice in the fourth Barker prong. 446 F.3d 1332, 1339
(11th Cir. 2006).

        Dixon, Erenas-Luna, Ingram, and the policy behind the speedy trial right support
a conclusion that both the negligence that the district court found the Government
committed and the significant length of the delay warrant dismissal of the indictment
with prejudice. As stated in Barker, the effect delay has on a defendant’s ability to mount
a defense is “the most serious” of the interests protected by the right, as “the inability of
a defendant adequately to prepare his case skews the fairness of the entire system.” 407
U.S. at 532. The Supreme Court subsequently elaborated as follows:

        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.

Doggett, 505 U.S. at 657. In light of the Supreme Court’s admonition not to condone
“prolonged and unjustifiable delays,” id., we can only conclude that the district court
erred by not presuming prejudice in the fourth Barker prong.

        The dissent, unable to point to any precedent we have neglected to follow,
criticizes the Barker four-factor balancing test announced by the Supreme Court nearly
four decades ago, characterizing it as “an enigma.” Yet absent from the dissent’s analysis
is any suggested alternative. This is not surprising, as Justice Powell, writing for the
No. 09-5903         United States v. Ferreira                                        Page 9


Court in Barker, rejected alternative, more rigid approaches prior to adopting the
balancing test, despite those methods having “the virtue of clarifying when the right is
infringed and of simplifying courts’ application of it.” 407 U.S. at 523.

        Justice Powell first rejected the suggestion that a criminal defendant be offered
a trial within a finite period of time, reasoning that there is “no constitutional basis for
holding that the speedy trial right can be quantified into a specified number of days or
months.” Id.; accord The Supreme Court, 1971 Term: II. Constitutional Law: H. Right
to a Speedy Trial: Definition of the Right, 86 Harv. L. Rev. 164, 168 (1972) (“[I]t would
indeed be an onerous undertaking for the Court to formulate fixed time-limit rules which
would satisfactorily take into account the varying difficulties of preparing prosecution
for different crimes, as well as the varying administrative burdens on prosecutors in
different jurisdictions.”). Justice Powell also declined to adopt a demand-waiver
doctrine, which provides that a defendant waives consideration of his right to a speedy
trial for any period in which he has not demanded a trial. Barker, 407 U.S. at 525. “Such
an approach, by presuming waiver of a fundamental right from inaction, is inconsistent
with this Court’s pronouncement on waiver of constitutional rights.” Id. The balancing
test was necessary to weigh both the conduct of the prosecution and the defendant. Id.
at 530. Although the balancing process would be “difficult and sensitive,” it was
nevertheless essential because the courts were dealing with “a fundamental right of the
accused.” Id. at 533.

        The dissent also criticizes Doggett’s presumption of prejudice. Arguing that “the
analysis in the lower courts . . . has devolved into a numbers game,” the dissent suggests
that before we apply the presumption, “we should at least ask whether there is a reason
to believe that the defendant has suffered significant, albeit unidentifiable, prejudice as
a result of the government’s delay in bringing him to trial.” But the dissent offers no
recommendation as to how we should determine if there is “reason to believe” a
defendant suffered significant prejudice. And how could we make such a determination
if the prejudice is often unidentifiable, as the dissent concedes? Such an approach would
undermine the reasoning articulated in Doggett for creating a presumption in the first
No. 09-5903         United States v. Ferreira                                      Page 10


place. The government’s negligence cannot be tolerated “simply because the accused
cannot demonstrate exactly how it has prejudiced him.” Doggett, 505 U.S. at 657; see
Barker, 407 U.S. at 532 (explaining that a witness’s “[l]oss of memory . . . is not always
reflected in the record because what has been forgotten can rarely be shown”).

                                            IV.

        In sum, all four factors weigh in favor of finding that the Government violated
Ferreira’s Sixth Amendment right to a speedy trial. The length of the delay is sufficient
to cross the first, threshold question; the delay was caused by the Government’s gross
negligence; Ferreira clearly asserted his right to a speedy trial on numerous occasions;
and the length of the delay is, in light of the Government’s negligence, sufficient to
create a presumption of prejudice.

        In so holding, we do not impose a bright-line rule that every three-year delay will
constitute a violation of a defendant’s right to speedy trial—or will generate a
presumption of prejudice. As the Supreme Court has said, “any inquiry into a speedy
trial claim necessitates a functional analysis of the right in the particular context of the
case.” Barker, 407 U.S. at 522; accord Erenas, 560 F.3d at 779 (“[W]e have not held
that a bright line exists for presuming prejudice for speedy-trial claims, and we refuse
to do so here.”). Rather, we presume the prejudice because we give greater weight to
those delays for which the government is at fault, see Mundt, 29 F.3d at 236, and we
conclude that the right has been violated only by considering the four factors in
conjunction with one another.

        Where a defendant’s right to a speedy trial has been violated, “dismissal of the
indictment is the only available option even when it allows a defendant who may be
guilty of a serious crime to go free.” Brown, 169 F.3d at 348; accord Jackson, 473 F.3d
at 664 (“The remedy for a Sixth Amendment speedy trial violation is dismissal with
No. 09-5903          United States v. Ferreira                                             Page 11


prejudice.”). Accordingly, we REVERSE the district court’s denial of Ferreira’s motion
and REMAND for an entrance of a dismissal of the indictment with prejudice.2




        2
         Because our conclusion on the speedy trial claim is dispositive, we do not reach Ferreira’s
remaining three contentions of error.
No. 09-5903        United States v. Ferreira                                      Page 12


                                  _________________

                                      DISSENT
                                  _________________

       KETHLEDGE, Circuit Judge, dissenting. The law’s clarity with respect to the
issue we decide today is not nearly commensurate with its stakes. The stakes are that,
if the government violates a defendant’s constitutional right to a speedy trial, he goes
free, forever unpunished even for serious felonies that he openly admits he committed.
Such is the case here: John Ferreira was caught red-handed with nearly 900 grams of
methamphetamine (which, like crack, is an enormously destructive drug), and admitted
in open court that he conspired to sell more than 500 grams of it. And yet he will serve
not a single day of the 110-month sentence that the district court thought he should
serve—because, in our court’s view, the government took too long to bring him to trial.

       Society surely pays a price for decisions like this one. But the law that we apply
in making them is an enigma. We apply a four-factor balancing test, three factors of
which are of uncertain significance.            The one factor that certainly does
matter—prejudice—is in turn divided into three subfactors, two of which are
overshadowed by the third, which is whether the government’s delay in bringing a
defendant to trial actually prejudiced his ability to defend himself there. Such is the law
as handed down to us by Barker v. Wingo, 407 U.S. 514 (1972).

       Actual prejudice is often easy enough to measure, so if the law had been left
there the courts could have muddled through their application of this test. But the law
has not been left there. In Doggett v. United States, 505 U.S. 647 (1992), the Supreme
Court overlaid all these factors and subfactors with something it called a “presumption
of prejudice[.]” Id. at 658. Once this presumption applies (or to the extent it does; I do
not know which characterization is more accurate), the government bears the burden of
proving the absence of actual prejudice, rather than the defendant bearing the burden of
proving its existence. And at that point the defendant typically has one foot out the
courthouse door, given the government’s difficulty in proving a negative.
No. 09-5903        United States v. Ferreira                                      Page 13


       The question of when this presumption shall apply, then, is consequential for
both the defendant and society alike. And that is a question, I respectfully submit, on
which Doggett provides little guidance. We are told that “such is the nature of the
prejudice presumed that the weight we assign to official negligence compounds over
time as the presumption of evidentiary prejudice grows.” Id. at 657. I confess I do not
know what this passage means. Only marginally more helpful is the statement that “our
toleration of such negligence varies inversely with its protractedness[.]” Id. Neither of
these statements, and nothing else in Doggett, provides the lower courts with much
guidance as to when the presumption of prejudice should apply.

       But one thing about Doggett is clear: the Court chose to apply the presumption
there when the government’s delay in bringing the defendant to trial was more than six
years. And thus the analysis in the lower courts—at least in the usual case where the
government’s delay is the result of negligence, rather than bad faith—has devolved into
a numbers game. In the Ninth Circuit, five years is enough to trigger the presumption.
See United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992). In the Fifth Circuit too,
five years is enough, see United States v. Bergfeld, 280 F.3d 486, 491 (5th Cir. 2002),
but “three years and nine months, considerably less than the delay in the cases cited
above[,]” is not. United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003).
In the Eighth Circuit, however, three years is enough, see United States v. Erenas-Luna,
560 F.3d 772, 780 (8th Cir. 2009); and in the Eleventh Circuit it seems that two years
will do. See United States v. Ingram, 446 F.3d 1332, 1339-40 (11th Cir. 2006). Our
court has previously said that five years is enough to trigger the presumption, see United
States v. Brown, 169 F.3d 344, 351 (6th Cir. 1999), but that “a twenty-month delay” is
not. United States v. Jackson, 473 F.3d 660, 668 (6th Cir. 2007). The majority’s
decision today likely puts us in the three-year camp.

       This whole line of analysis strikes me as arbitrary. That is not surprising:
Doggett gives the lower courts little more than a number to work with; and so the
analysis in most cases that apply Doggett is, at bottom, simply a conclusion—that one
number is enough and another is not. This is a deeply unsatisfying way of deciding
No. 09-5903         United States v. Ferreira                                         Page 14


issues as important as this one. A better way of deciding these cases would be to look
beyond the numbers, to the reason why Doggett announced a presumption of prejudice
in the first place. As I understand it, that reason is that the particulars of actual prejudice
can be increasingly hard to prove over time. See Doggett, 505 U.S. at 655 (“time’s
erosion of exculpatory evidence and testimony can rarely be shown”) (internal quotation
marks omitted). But it is one thing to waive proof of particulars; it is quite another to
waive the need to show any indication of prejudice at all. And thus, before applying the
presumption, we should at least ask whether there is reason to believe that the defendant
has suffered significant, albeit unidentifiable, prejudice as a result of the government’s
delay in bringing him to trial. Only if we are confident that the answer to that question
is yes—that there is, in fact, significant prejudice in there somewhere—should we take
the drastic step of ordering the defendant set free. Perhaps this is what the Court meant
when it said that “negligence unaccompanied by particularized trial prejudice must have
lasted longer than negligence demonstrably causing such prejudice.” Id. at 657. But if
so, the point has been lost on the lower courts.

        This case strikes me as precisely the kind in which the presumption should not
apply. Because here it is transparently a fiction. Ferreira was already incarcerated in the
Georgia state prison on an unrelated charge (homicide) during the entire 35 months he
waited for trial in federal court, so he did not suffer the anxiety and “oppressive pretrial
incarceration” that other federal defendants do. Barker, 407 U.S. at 532. In federal
court he was charged with only a single count of conspiracy to distribute more than 500
grams of methamphetamine. He has not even attempted to offer any proof of actual
prejudice as to his defense against that charge, other than the vaguest speculation that
some unnamed witnesses might have become unavailable or forgetful. The record
largely refutes that speculation, since Ferreira’s codefendants—and, the government
says, co-conspirators—are in federal prison, and thus sober and available to testify. And
it is hard to imagine what Ferreira’s defense to the charge against him would be, given
the undisputed fact that he possessed 898 grams of methamphetamine when arrested—an
amount vastly larger than he could consume himself, and almost twice the amount he
was charged with conspiring to distribute—in addition to various meth-cook
No. 09-5903        United States v. Ferreira                                      Page 15


paraphenalia. Suffice it to say that there is not a whiff of actual prejudice in this case.
The extraordinary remedy of dismissing a criminal indictment with prejudice should be
reserved for cases more extraordinary than this one.

       There are few doctrines in criminal procedure as potent as Doggett’s presumption
of prejudice. So far as I can tell, in most cases where it has applied, the defendant has
gone free. We need more guidance than we now have in applying it. What the lower
courts need, I respectfully submit, is a rule of law—so that, before we set a guilty man
free on account of prejudice, we first determine whether there actually is some.

       I respectfully dissent.
