                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 August 24, 2006
                               No. 05-16869                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                   D. C. Docket No. 03-00620-CR-JHH-TMP

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JAMES CLARK BIBB,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                               (August 24, 2006)

Before DUBINA, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     James Clark Bibb appeals the district court’s denial of his motion to dismiss
his indictment, on the grounds that he suffered violations of the Sixth Amendment

right to a speedy trial and his rights under Federal Rule of Criminal Procedure 5

(“Rule 5”). The district court properly denied the motion. Therefore, we affirm.

                                    I. Background

        On December 30, 2003, Bibb was indicted in the Northern District of

Alabama for possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g). The indictment alleged that Bibb, a convicted felon, was found in

possession of a firearm in July 2003. A federal arrest warrant issued on January 2,

2004.

        On July 15, 2005, during an unrelated traffic stop, Bibb was arrested on the

outstanding federal warrant. The stop occurred at about 11:00 p.m. on Friday in a

town in the Southern District of Alabama. Bibb was arraigned the following

Monday afternoon in the Northern District of Alabama. Shortly thereafter, Bibb

moved to dismiss the indictment, alleging: (1) a violation of his Sixth Amendment

right to a speedy trial because more than two years elapsed between the date of the

alleged offense and his arrest and arraignment, and (2) a violation of Rule

5(a)(1)(A) and (c)(2) because of an unnecessary delay between his arrest and

arraignment.

        The government conceded that the length of time between the indictment



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and arrest was presumptively prejudicial but argued that dismissal was improper

because the government did not delay to gain an advantage and because Bibb did

not suffer actual prejudice. The government further asserted that the delay

between arrest and arraignment was not unreasonable.

      At a hearing on Bibb’s motion, the government presented testimony from

ATF Agent Edward Grays Hull. Hull recounted the following facts to explain the

delay between the indictment and arrest: He learned of the federal warrant on

January 2, 2004 and faxed the warrant to ATF headquarters. The warrant

information was posted on the National Crime Information Center database on

January 5, 2004. Hull subsequently went to the address that Bibb gave when

arrested in July 2003 and where Bibb’s vehicle was registered. Although Hull

went to the address at different times and on several different days between

January 2004 and early April 2005, Hull never saw Bibb or Bibb’s vehicle.

Furthermore, Hull testified that he believed Bibb lived elsewhere because the

blinds at the house were closed, no lights were on, the grass was overgrown, and

two abandoned cars sat in the backyard. Hull also testified that he had reason to

believe Bibb may have lived at a different address because Bibb filed a domestic

violence report that listed another address as the location of the alleged incident,

and because in a domestic violence report filed by Bibb’s girlfriend, she gave



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different address for Bibb. Hull checked both addresses but did not locate Bibb.

Hull admitted that the July 2003 arrest report listed Bibb’s work address but

testified that he overlooked that information and never attempted to locate Bibb at

work. In any event, ATF normal policy discouraged arresting someone at work

because it put the public in harm’s way.

      On Saturday, July 16, 2005, Hull learned that Bibb had been arrested late the

night before in the Southern District of Alabama. The ATF agents involved

believed that Bibb had to be taken before a magistrate judge in the Southern

District where he was arrested, rather than the Northern District where the warrant

issued. Because of this confusion and the inability of the ATF office in the

Southern District to provide agents to transport Bibb on Saturday, Bibb was

arraigned on Monday when ATF agents brought him before a magistrate judge in

the Northern District of Alabama.

      The magistrate judge recommended denying Bibb’s motion, finding that

prejudice could be presumed from the length of the delay, but that the evidence

showed that the government had attempted to arrest Bibb, and that, although the

government could have been more diligent, the reason for the delay did not weigh

heavily against the government, nor did Bibb suffer actual prejudice from the

delay. The court noted that Bibb had not been incarcerated for any length of time



                                           4
during the period and Bibb did not identify any evidence or testimony lost as a

result of the delay. As for the Rule 5 argument, the magistrate judge found that the

proper remedy for a violation would be suppression of any evidence obtained

during the delay, not dismissal of the indictment. Because the authorities did not

obtain any evidence during that period and because Bibb did not suffer substantial

harm from the delay, the magistrate judge rejected Bibb’s argument. The district

court adopted the recommendation and denied Bibb’s motion.

      Bibb entered a conditional guilty plea but reserved his right to appeal the

denial of the motion to dismiss.

                              II. Standard of Review

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

has been violated is a mixed question of law and fact. Questions of law are

reviewed de novo, and findings of fact are reviewed under the clearly erroneous

standard.” United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006). We

review a district court’s denial of a motion to dismiss an indictment on non-

constitutional grounds for abuse of discretion. United States v. Pielago, 135 F.3d

703, 707 (11th Cir. 1998).




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                                    III. Discussion

A. Speedy Trial

      The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial

. . . .” U.S. Const. amend. VI. If the government violates this right, the available

remedy is dismissal of the indictment. Barker v. Wingo, 407 U.S. 514, 522 (1972).

In Barker, the Supreme Court set forth four factors that a court should assess when

determining whether a defendant has been deprived of his Sixth Amendment right

to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of the right; and (4) prejudice to the defendant. Id. at 530. In

this circuit, unless the first three factors weigh heavily against the government, the

defendant must show actual prejudice. United States v. Harris, 376 F.3d 1282,

1290 (11th Cir. 2004).

      The government concedes that the delay of approximately eighteen months

between indictment and arrest was presumptively prejudicial, Ingram, 446 F.3d at

1336 (holding that delays over one year are presumptively prejudicial), and that

Bibb asserted his right in a timely manner, United States v. Clark, 83 F.3d 1350,

1353 (11th Cir. 1996). The government disputes, however, that the first three

factors weigh heavily against it or that Bibb suffered actual prejudice.



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         As for the reason for the delay, we have noted that “[g]overnment actions

that are tangential, frivolous, dilatory, or taken in bad faith weigh heavily in favor

of a finding that a speedy trial violation occurred. Conversely, delays that occur

for valid reasons, such as overcrowded courts or strongly contested interlocutory

appeals, will not be accorded heavy weight against the Government.” United

States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997). Furthermore, the Supreme

Court has reasoned that negligence is a more neutral act that should not be weighed

as heavily as bad faith. Barker, 407 U.S. at 531.

         Here, the district court found that the government’s delay was “somewhat

negligent” and that this factor “weighs against the government, but not heavily.”

Bibb concedes that the district court properly characterized the government’s

actions as negligent, as opposed to having been in bad faith. We agree that the

government could have been more diligent in trying to locate and arrest Bibb. In

the absence of bad faith, however, the district court properly determined that this

factor did not weigh heavily against the government. United States v. Davenport,

935 F.2d 1223, 1239-40 (11th Cir. 1991). Nor do we believe that the second and

third factors weigh heavily against the government. Therefore, Bibb must show

actual prejudice. Ringstaff v. Howard, 885 F.2d 1542, 1543 (11th Cir. 1989) (en

banc).



                                           7
      The Supreme Court has noted that whether prejudice resulted from the delay

should be considered in light of the interests in: “(i) prevent[ing] oppressive

pretrial incarceration; (ii) minimiz[ing] anxiety and concern of the accused; and

(iii) limit[ing] the possibility that the defense will be impaired.” Barker, 407 U.S.

at 533. Bibb asks us to focus on the third interest, which the Supreme Court has

called “the most difficult form of speedy trial prejudice to prove because time’s

erosion of exculpatory evidence and testimony ‘can rarely be shown.’” Doggett v.

United States, 505 U.S. 647, 655 (1992). Although the Doggett Court recognized

that “affirmative proof of particularized prejudice is not essential to every speedy

trial claim,” the Court also stated that “to warrant granting relief, negligence

unaccompanied by particularized trial prejudice must have lasted longer than

negligence demonstrably causing such prejudice.” Id. at 655, 656.

      Here, Bibb fails to identify what evidence was lost or what witnesses he

could not locate. He merely makes a general allegation that the delay prejudiced

his defense. This case differs greatly from Doggett, in which the delay lasted eight

and one-half years and the Court characterized the government’s actions as

“inexcusable” and “egregious.” Id. at 656. It also differs from our decision in

Ingram, in which we called the government’s negligence in delaying two years

between the indictment and arrest “egregious” and considered significant the two-



                                           8
year delay between the dates of the offense and the indictment. Ingram, 446 F.3d

at 1339. The negligence here was far from egregious, and Bibb does not argue that

the pre-indictment delay is relevant to his claim, and at any rate, that delay was

only six months. Id. (noting the limited circumstances in which pre-indictment

delay is relevant to a Sixth Amendment speedy trial claim). Considering that the

government’s delay between the indictment and arrest was merely negligent, as

opposed to in bad faith, and lasted only eighteen months, we are convinced that the

defendant can prevail only by showing a more particularized trial prejudice.

Doggett, 505 U.S. at 655, 656. Because Bibb failed to show a more particularized

trial prejudice, the district court properly denied the motion to dismiss the

indictment on Sixth Amendment grounds.

B. Rule 5

       In determining whether the government violated Rule 5,1 which relates to the

timing of the defendant’s initial appearance, we look at the reason for the delay.

United States v. Purvis, 768 F.2d 1237, 1239 (11th Cir. 1985). Here, Agent Hull

testified that confusion over where Bibb was required to appear and the difficulty

       1
          Rule 5 provides: “A person making an arrest within the United States must take the
defendant without unnecessary delay before a magistrate judge, or before a state or local judicial
officer as Rule 5(c) provides, unless a statute provides otherwise.” Fed. R. Crim. P. 5(a)(1).
Under Rule 5(c), when the defendant is arrested in a district other than the one in which the
offense allegedly occurred, the “initial appearance must be: (A) in the district of arrest; or (B) in
an adjacent district if: (i) the appearance can occur more promptly there.” Fed. R. Crim. P.
5(c)(2).

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in finding agents to transport him caused the delay between Bibb’s late Friday

night arrest and Monday afternoon arraignment. Even assuming that this delay

violated Rule 5, Bibb’s requested relief, dismissal of his indictment, is improper

for a delay of less than seventy-two hours caused by, at worst, the government’s

negligence. United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000) (holding

that a delay of one week between arrest and first appearance did not violate Rule

5). In fact, we have never recognized dismissal of the indictment as a proper

remedy for a Rule 5 violation. Purvis, 768 F.2d at 1238. Accordingly, we hold

that the district court did not abuse its discretion in denying Bibb’s motion to

dismiss the indictment on this ground.

      Because we conclude that the district court properly denied both grounds of

Bibb’s motion to dismiss the indictment, we AFFIRM Bibb’s conviction.

AFFIRMED.




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