                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1855
                                    ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska.
Luis Alberto Erenas-Luna, also known *
as Miguel Ontiveros-Murrillo,         *
                                      *
            Appellant.                *
                                 ___________

                              Submitted: September 25, 2008
                                 Filed: March 23, 2009
                                  ___________

Before RILEY, BRIGHT, and MELLOY, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

       Miguel Ontiveros,1 a.k.a. Luis Alberto Erenas-Luna, a.k.a. Miguel Ontiveros-
Murillo, appeals his conviction for conspiring to distribute methamphetamine. The
sole issue is whether the district court erred by denying Ontiveros’s motion to dismiss
for unconstitutional post-indictment delay. We vacate the district court’s order
denying Ontiveros’s motion to dismiss and remand for further proceedings consistent
with this opinion.


      1
        The appellant refers to himself as Miguel Ontiveros. We respect appellant’s
preference and refer to him as Ontiveros throughout this opinion.
                                         I.

       In April 2003, police in Grand Island, Nebraska, arrested Ontiveros on an
outstanding warrant. Police searched Ontiveros’s home and found evidence related
to a drug conspiracy. Because Ontiveros, a Mexican citizen, was an undocumented
alien, police contacted federal immigration authorities. Immigration authorities took
custody of Ontiveros and, on April 21, 2003, had him deported. In early June 2003,
a confidential informant notified a Grand Island police officer that Ontiveros had
returned to the United States and was in Lincoln, Nebraska. The officer contacted
authorities in Lincoln who verified seeing someone matching Ontiveros’s description
at the home where the informant reported that Ontiveros was staying.

       On July 24, 2003, approximately three months after his arrest and deportation,
a federal grand jury indicted Ontiveros for conspiring to distribute methamphetamine.
For wider-investigation purposes, the government sealed the indictment. U.S.
Marshals sent a copy of Ontiveros’s federal arrest warrant to the Grand Island Police
Department. They also informed FBI agents in the Grand Island area that a warrant
had been issued for Ontiveros’s arrest.

       Pursuant to a thirty-day waiting policy, the Grand Island police did not
immediately forward Ontiveros’s arrest-warrant information to the FBI to enter into
the National Crime Information Center (“NCIC”) database.2 According to the
evidence, FBI agents and U.S. Marshals aware of the warrant also made no effort to
enter the data. Moreover, despite the arrest warrant, knowledge of Ontiveros’s
contacts in Nebraska, Arizona, and Mexico, and a late-September 2003 tip from an
informant stating that Ontiveros had been in Grand Island within the previous month,

      2
       The NCIC database is an FBI-controlled national database that contains
information for recent and outstanding arrest warrants. Both federal and state law-
enforcement officers, including immigration authorities, can access the system to
determine whether a person has outstanding arrest warrants.

                                         -2-
it appears no federal or state authorities made any attempt to locate and arrest
Ontiveros.

       According to police testimony, by the end of 2003, Ontiveros’s case had
inexplicably “slipped through the cracks” such that no one actively searched for
Ontiveros or realized his information was not in the NCIC database. As a result, when
immigration and border-control officials apprehended Ontiveros on multiple occasions
in 2004, they remained unaware of Ontiveros’s arrest warrant and did not take him
into custody.

       In February 2006, an FBI agent reviewing fugitive listings in Grand Island
discovered Ontiveros’s omission from the NCIC database and entered Ontiveros’s
arrest-warrant information. Approximately four months later, in June 2006, Arizona
police arrested Ontiveros on separate drug charges and discovered Ontiveros’s
outstanding arrest warrant on the NCIC. The Arizona police then notified Nebraska
officials of Ontiveros’s whereabouts. Nebraska FBI agents arranged for Arizona FBI
agents to detain Ontiveros at a court appearance and, in July 2006, pursuant to a court
order, had him transported to Nebraska. According to the district court’s findings,
Ontiveros first learned of the pending Nebraska drug charge when the Arizona FBI
detained him.

      After Ontiveros returned to Nebraska, the district court arraigned Ontiveros and
unsealed the July 2003 indictment. Ontiveros moved to dismiss the charge for
unconstitutional post-indictment delay. A magistrate judge held a hearing on the
matter and filed a report and recommendation that the district court deny the motion.
Over Ontiveros’s objections to the report and recommendation, the district court
adopted the magistrate judge’s findings and denied Ontiveros’s motion.

      In August 2007, Ontiveros proceeded to trial. A jury found Ontiveros guilty.
Following his sentencing, Ontiveros filed a timely notice of appeal.

                                         -3-
                                           II.

      Ontiveros argues that the district court erred in rejecting his claim that the
government violated his Sixth Amendment right to a speedy trial. U.S. Const. amend.
VI. “We review the district court’s findings of fact on whether a defendant’s right to
a speedy trial was violated for clear error but review its legal conclusions de novo.”
United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007).

       The government concedes that the delay in this case was presumptively
prejudicial such that we must apply the four-factor-balancing test set forth in Barker
v. Wingo to evaluate Ontiveros’s claim. Barker v. Wingo, 407 U.S. 514, 530 (1972);
see United States v. Jeanetta, 533 F.3d 651, 656 (8th Cir.), cert. denied, 129 S. Ct. 747
(2008) (“A delay approaching one year may meet the threshold for presumptively
prejudicial delay requiring application of the Barker factors.”). Accordingly, in
analyzing Ontiveros’s claim, we consider: “1) the length of delay; 2) the reason for
delay; 3) whether the defendant asserted the right to a speedy trial; and 4) whether the
defendant suffered any prejudice.” Jeanetta, 533 F.3d at 656 (citing Barker, 407 U.S.
at 530).

                                           A.

       Under the first Barker factor, we consider the length of delay. This factor
requires a “double inquiry”: (1) whether the length of delay was presumptively
prejudicial such that it triggers the Barker analysis, and, if triggered, (2) “the extent
to which the delay stretches beyond the bare minimum needed to trigger judicial
examination of the claim.” United States v. McGhee, 532 F.3d 733, 739 (8th Cir.
2008) (quotation omitted). As to the latter inquiry, “the presumption that pretrial
delay has prejudiced the accused intensifies over time.” United States v. Walker, 92
F.3d 714, 717 (8th Cir. 1996) (quotation omitted). Because the government concedes
the first inquiry, we proceed to the second.

                                          -4-
       The Sixth Amendment right to a speedy trial “attaches at the time of arrest or
indictment, whichever comes first, and continues until the trial commences.” McGhee,
532 F.3d at 739 (quotation omitted). Relying on our decision in Walker, the district
court found that “[t]he three-year time period between indictment and arrest weigh[ed]
in favor of [Ontiveros].” We agree.

       In Walker, a drug-conspiracy case, we applied Barker and held under the first
factor that a 37-month post-indictment delay between indictment and arraignment
weighed in the defendant’s favor. Walker, 92 F.3d at 717; see also Aldaco, 477 F.3d
at 1019 (holding that a three-and-a-half-year delay between arrest and trial was
“uncommonly long”). Here, the delay between Ontiveros’s indictment and
arraignment was approximately three years and the delay between his indictment and
trial was approximately four years. We therefore see no reason to reach a different
conclusion than the district court regarding the weight of this factor.

       In attempt to distinguish Walker, however, the government notes that the
district court suggested that the delay in this case might be calculated more accurately
as only 17 to 28 months, measuring from the times when immigration officials had
Ontiveros in custody in March 2004 and December 20043 to the time when Ontiveros
was arraigned in July 2006. According to the court, those measurements may have
been more accurate because authorities likely would not have been successful in
locating Ontiveros prior to that time, even if they had tried. We reject that conclusion
because it is speculative at best. It also considers responsibility for the delay, which
is a matter we consider in the second Barker factor. For these reasons, we agree with
the district court that the first Barker factor weighs in Ontiveros’s favor.




      3
       We note that the correct measurement from December 2004 to July 2006
would be 19 months, not 17.

                                          -5-
                                          B.

         Under the second Barker factor, we consider the reasons for the delay and
evaluate “whether the government or the criminal defendant is more to blame.”
Doggett v. United States, 505 U.S. 647, 651 (1992). We accord “‘different weights
. . . to different reasons.’” Vermont v. Brillon, No. 08–88, slip op. 1, 7 (U.S. 2009).
We weigh an intentional delay by the government “heavily against it.” Walker, 92
F.3d at 717 (citing Barker, 407 U.S. at 531). We weigh negligence by the government
“less heavily” but still regard such negligence as “a considerable factor in the
weighing process.” Id. (citing Barker, 407 U.S. at 531, and Doggett, 507 U.S. at
652–53). We weigh “delay caused by the defense . . . against the defendant.” Brillon,
No. 08–88, slip op. at 7. The Supreme Court has called this Barker factor “[t]he flag
all litigants seek to capture.” United States v. Loud Hawk, 474 U.S. 302, 315 (1986).

      Here, the district court found no evidence that the government intentionally
delayed Ontiveros’s trial. It concluded, however, that the government was “clearly
seriously negligent” for failing to take appropriate actions to attempt to apprehend
Ontiveros in a timely manner. Conversely, the district court found no evidence that
Ontiveros knew of the indictment prior to July 2006 and, accordingly, that Ontiveros
was not responsible for the delay in his arrest. The district court ultimately found that
this Barker factor “weigh[ed] decidedly against the government.”

       In Doggett, the Supreme Court instructed us to accord “‘special deference’ [to
a] district court’s determination concerning whether the government was negligent.”
Walker, 92 F.3d at 718 (quoting Doggett, 505 U.S. at 652). “[U]nder this very
deferential standard of review,” id., we therefore see no reason to disagree with the
district court where the government readily admits that it “dropped the ball,” let
Ontiveros’s case “slip through the cracks,” made no efforts to locate and arrest
Ontiveros over a three-year period, and missed multiple opportunities to apprehend
Ontiveros in a timely manner. See Doggett, 505 U.S. at 652–53 (upholding a district

                                          -6-
court’s finding of government negligence when the government’s investigators “made
no serious effort” to locate a defendant who it assumed was abroad and stating that
the government’s “lethargy” was “findable negligence”).

       We also find no reason to disagree with the district court’s conclusion that
Ontiveros was unaware of the indictment prior to July 2006 and, thus, deserved no
blame for the delay before that point. It is undisputed that the indictment in question
was sealed until July 2006. Moreover, as the government notes, Ontiveros told
Arizona FBI agents when he was arrested that he would not have appeared in Arizona
court had he known of the Nebraska indictment. Ontiveros did, however, appear in
Arizona court and, over the three-year delay, placed himself in multiple situations that
could have led to his arrest on the Nebraska drug charge. Under a clear-error
standard, this lends sufficient support to the district court’s factual conclusion that
Ontiveros was unaware of the pending indictment and had no responsibility for the
three-year delay between his indictment and arrest.

       Finally, as to the time between Ontiveros’s arrest and trial, that delay was
largely due to Ontiveros’s own motions. Thus, we cannot attribute this delay to
government negligence. See McGhee, 532 F.3d at 739. Nevertheless, because
government negligence resulted in the three-year delay between Ontiveros’s
indictment and arraignment, we agree with the district court that the second Barker
factor weighs decidedly in Ontiveros’s favor.

                                          C.

       The third Barker factor considers “whether in due course the defendant asserted
his right to a speedy trial.” Walker, 92 F.3d at 718; see Barker, 407 U.S. at 531–32
(explaining that the defendant’s assertion of his constitutional speedy-trial right “is
entitled to strong evidentiary weight in determining whether the defendant is being
deprived of [the right]”).

                                          -7-
       Focusing its analysis on the three-year delay between Ontiveros’s indictment
and arraignment, the district court found this factor to be neutral because “[t]here
[was] no evidence [Ontiveros] knew, should have known, or could have known of the
indictment filed against him on July 24, 2003.” While the government agrees with
this finding, Ontiveros argues that this factor should weigh in his favor because he
raised his claim after his arrest. We disagree with Ontiveros’s position.

        Because the delay in this case for which the government was responsible
predated Ontiveros’s arrest, Ontiveros’s post-arrest assertion of his speedy-trial right
has little bearing on his claim. Under similar circumstances in Doggett, the Supreme
Court did not weigh a defendant’s post-arrest assertion of his speedy-trial rights in
the defendant’s favor. Instead, the Court stated only that the defendant “[was] not to
be taxed for invoking his speedy trial right only after his arrest.” Doggett, 505 U.S.
at 654. In United States v. Richards, where the defendant was unaware of his
indictment until his arrest but later raised a speedy-trial claim, we similarly held that
the third Barker factor had no application and merely “[could] not be weighed against
[the defendant].” United States v. Richards, 707 F.2d 995, 997 (8th Cir. 1983).
Applying this precedent, we agree with the district court that the third Barker weighs
in neither party’s favor.

                                           D.

       The final Barker factor considers “whether the defendant suffered prejudice as
a result of the delay.” Walker, 92 F.3d at 719. We assess this prejudice “‘in the light
of the interests of defendants which the speedy trial right was designed to
protect. . . . (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.’” Aldaco, 477 F.3d at 1019 (quoting Barker, 407 U.S. at 532). Of these
interests, prejudice to the last “‘is the most serious . . . because the inability of a
defendant adequately to prepare his case skews the fairness of the entire system.’”

                                          -8-
Walker, 92 F.3d at 719 (quoting Barker, 407 U.S. at 532). Because Ontiveros was not
incarcerated or aware of his indictment prior to his arrest, he claims only that the delay
at issue prejudiced his defense.

        The extent to which a defendant must demonstrate prejudice under this factor
depends on the particular circumstances. A showing of actual prejudice is required
if the government exercised reasonable diligence in pursuing the defendant. Doggett,
505 U.S. at 656; United States v. Brown, 325 F.3d 1032, 1035 (8th Cir. 2003). Where
the government has been negligent, however, prejudice can be presumed if there has
been an excessive delay. Doggett, 505 U.S. at 656–58. Ontiveros claims his defense
suffered both actual and presumed prejudice.

       As to actual prejudice, we agree with the district court that Ontiveros’s vague
claims regarding witness memory loss and lost opportunities to cooperate with the
government are insufficient, without more, to satisfy his burden. See Doggett, 505
U.S. at 655 (agreeing with the government that actual prejudice would not be present
where the defendant “failed to make any affirmative showing that the delay weakened
his ability to raise specific defenses, elicit specific testimony, or produce specific
items of evidence”); cf. United States v. Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002)
(stating, in the Fifth Amendment context, that “[t]o prove actual prejudice [from pre-
indictment delay], the defendant must identify witnesses or documents lost during the
period of delay, and not merely make speculative or conclusory claims of possible
prejudice caused by the passage of time”).

       We disagree, however, with the district court’s finding that it could not presume
prejudice. In Doggett, the Supreme Court held that, under the Sixth Amendment,
“prejudice is not limited to the specifically demonstrable, and . . . affirmative proof
of particularized prejudice is not essential to every speedy trial claim.” Doggett, 505
U.S. at 655 (citations omitted). “Thus, we generally have to recognize that excessive
delay presumptively compromises the reliability of a trial in ways that neither party

                                           -9-
can prove or, for that matter, identify” and that negligence is not “automatically
tolerable simply because the accused cannot demonstrate exactly how [the delay] has
prejudiced him.” Id. at 655, 657. Accordingly, under the fourth Barker factor, when
the delay is excessive, “the weight we assign to official negligence compounds over
time as the presumption of evidentiary prejudice grows,” and our “toleration of . . .
negligence varies inversely with its protractedness and its consequent threat to the
fairness of the accused’s trial.” Id. at 657 (internal citation omitted).

       Citing a Fifth Circuit case, the district court refused to presume prejudice
because it found “courts have generally found presumed prejudice . . . only in cases
in which the post-indictment delay lasted at least five years.” See United States v.
Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003) (collecting cases). As a result, the
district court concluded that the three-year delay in this case was “insufficient to
justify a presumption that the defendant’s right to a fair trial has been jeopardized.”
With respect to the Fifth Circuit’s conclusion, we have not held that a bright line
exists for presuming prejudice for speedy-trial claims, and we refuse to do so here.
As Barker states, “the right to speedy trial is a more vague concept than other
procedural rights.” Barker, 407 U.S. at 521; see also Brillon, No. 08–88, slip op. at 6
(“The speedy-trial right is ‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’”
(quoting Barker, 407 U.S. at 522)). “We cannot definitely say how long is too long,”
and there is “no constitutional basis for holding that the speedy trial right can be
quantified into a specified number of days or months.” Barker, 407 U.S. at 521, 523.
As a result, “any inquiry into a speedy trial claim necessitates a functional analysis of
the right in the particular context of the case.” Id. at 522; see also Brillon, No. 08–88,
slip op. at 6–7 (“[The speedy-trial right] is ‘consistent with delays and depend[ent]
upon circumstances’” (quoting Barker, 407 U.S. at 522)).

      Here, due to the serious negligence of the government, there was a three-year
delay between Ontiveros’s indictment and arraignment. Three years is a time well in
excess of that required to trigger a Barker review. See Doggett, 505 U.S. at 657–58

                                          -10-
(presuming prejudice where “the delay attributable to the Government’s negligence
far exceed[ed] the threshold needed to state a speedy trial claim” and noting it had
“called shorter delays ‘extraordinary’” (quoting Barker, 407 U.S. at 533)); United
States v. Ingram, 446 F.3d 1332, 1339 (11th Cir. 2006) (finding a “two-year post-
indictment delay intolerable” and presuming prejudice where the first three Barker
factors weighed in the defendant’s favor); see also Aldaco, 477 F.3d at 1019 (holding
that a three-and-a-half year delay between arrest and trial was “uncommonly long”).

       Although the delay in this case is shorter than the delay at issue in Doggett, we
believe Doggett’s instruction to vary the weight assigned to the presumption
according to the government’s negligence and the length of delay sufficiently
contemplates this difference. See United States v. Smith, 94 F.3d 204, 212 (6th Cir.
1996) (“[A]ny delay triggering the Barker analysis . . . will generally give rise to a
presumption of prejudice, and the only question is how much ‘importance’ to assign
to that prejudice”). We hold, then, that the district court erred in its application of the
fourth Barker factor because it applied no presumption in Ontiveros’s favor.

                                           III.

       Because the district court failed to apply any presumption of prejudice under
the fourth Barker factor, we remand the case for further proceedings with orders to
apply an appropriate presumption in Ontiveros’s favor. The district court should then
allow the government an opportunity to rebut the presumption. See Doggett, 505 U.S.
at 658; United States v. Reynolds, 231 F. App’x 629, 631–32 (9th Cir. 2007)
(unpublished). If the government is able to do so, the district court should balance the
Barker factors appropriately “with full recognition that the accused’s interest in a
speedy trial is specifically affirmed in the Constitution.” Barker, 407 U.S. at 533. If,
however, the government is unable to rebut the presumption, the Barker factors will
weigh in Ontiveros’s favor, necessitating the “severe remedy of dismissal,” which is



                                           -11-
“the only possible remedy” when a defendant’s speedy-trial right has been denied. Id.
at 522.

       For the foregoing reasons, we vacate the district court’s order denying
Ontiveros’s motion to dismiss and remand for further proceedings consistent with
this opinion.
                       ______________________________




                                        -12-
