           Case: 17-15770   Date Filed: 10/11/2018   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15770
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:17-cr-20233-CMA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


GABRIELLE BARRAGAN,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (October 11, 2018)

Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Gabrielle Barragan appeals her conviction under 18 U.S.C. § 1349 for one

count of conspiring to commit bank fraud and wire fraud affecting a financial

institution. Barragan argues that the district court abused its discretion in denying

her motion to dismiss the indictment for pre-indictment delay. In particular,

Barragan contends that the district court applied an incorrect legal standard that

required her to show both that the government’s delay caused her actual prejudice

and that the government used the delay to obtain a tactical advantage. Barragan

maintains that the district court should have instead balanced the government’s

justification for delaying her prosecution against any prejudice that she suffered as

a result. Under this balancing analysis, Barragan contends that she should prevail.

We disagree and hold that the district court properly applied the correct legal

standard.

      We review a district court’s denial of a motion to dismiss an indictment for

abuse of discretion, United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.

2002), and review all required factual findings for clear error, United States v.

Foxman, 87 F.3d 1220, 1222–23 (11th Cir. 1996).

       “The limit on pre-indictment delay is usually set by the statute of

limitations.” Id. at 1222. The Due Process Clause of the Fifth Amendment may

bar an indictment, however, even when the indictment is brought within the

limitation period. See U.S. v. Lovasco, 431 U.S. 783, 788–91 (1977); United States


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v. Marion, 404 U.S. 307, 323–27 (1971). For a due process bar to apply, the

defendant must show that the pre-indictment delay (1) caused actual prejudice to

the conduct of her defense and (2) was the product of deliberate action by the

government taken in order to gain a tactical advantage. Stoner v. Graddick, 751

F.2d 1535, 1541-42 (11th Cir. 1985). 1

       With regard to the first requirement, we have been clear that “[a] stringent

standard is employed when examining the issue of prejudice.” United States v.

LeQuire, 943 F.2d 1554, 1560 (11th Cir. 1991) (citation omitted). “[A]ctual

prejudice and not merely ‘the real possibility of prejudice inherent in any extended

delay,’ must be demonstrated.” Stoner, 751 F.2d at 1544 (quoting United States v.

McGough, 510 F.2d 598, 604 (5th Cir. 1975)). Thus, a “general allegation of loss

of witnesses and failure of memories [is] insufficient to demonstrate the actual

prejudice required . . . .” United States v. Radue, 707 F.2d 493, 495 (11th Cir.

1983).




1
  The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy . . . trial.” U.S. Const. amend. VI. In Barker v. Wingo, 407 U.S. 514 (1972),
the Supreme Court established a four-factor test to determine when a defendant’s right to a
speedy trial had been violated. The four factors are: (1) the length of the delay, (2) the reason for
the delay, (3) the defendant’s assertion of his speedy trial right, and (4) the prejudice to the
defendant. Id. at 530. But the right to a speedy trial—and the accompanying four-factor
analysis—applies only after an individual becomes an accused by arrest or indictment. See
Marion, 404 U.S. at 321 (“[W]e decline to extend [the] reach of the [Sixth] amendment to the
period prior to arrest.”); see also Lovasco, 431 U.S. at 788 (“[A]s far as the Speedy Trial Clause
of the Sixth Amendment is concerned, such [pre-indictment] delay is wholly irrelevant.”).
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       With regard to the second requirement, government inaction “standing

alone” cannot establish that the government’s actions were motivated by an

attempt to gain a tactical advantage. United States v. Butler, 792 F.2d 1528, 1534

(11th Cir. 1986). Nor is unintentional or negligent delay “deliberate.” Foxman, 87

F.3d at 1223 n.2. We have also held that delays resulting from the government

undertaking additional investigation in good faith, see Stoner, 751 F.2d at 1541, or

from the government directing its resources toward other cases, see Butler, 792

F.2d at 1534, likewise do not demonstrate that the government delayed the

indictment in order to gain a tactical advantage. See also Lovasco, 431 U.S. at

795.

       Barragan argues that the district court should have set these precedents aside

in favor of a footnote in United States v. Brand, 556 F.2d 1312 (5th Cir. 1977).

The Brand Court—in what an en banc decision of the Fifth Circuit subsequently

characterized as “pure dicta,” United States v. Crouch, 84 F.3d 1497, 1509 (5th

Cir. 1996)—suggested that the validity of a claim alleging a violation of the Fifth

Amendment due to prosecutorial delay “depends on the due process balancing

between the extent of the actual prejudice and the governmental interests at stake.”

Brand, 556 F.2d at 1317 n.7. The problem for Barragan is that this balancing

analysis contradicts this Court’s consistent post-Brand precedent, see, e.g., United

States v. Hayes, 40 F.3d 362, 365 (11th Cir.1994); United States v. Benson, 846


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F.2d 1338, 1340 (11th Cir.1988); Stoner, 751 F.2d at 1541, as well as that of the

Supreme Court in Marion, Lovasco, and Arizona v. Youngblood, 488 U.S. 51, 57

(1988).

      The district court did not err in asking whether the pre-indictment delay

caused Barragan actual prejudice and was taken in order to gain a tactical

advantage. Nor did it err in finding that Barragan failed to satisfy either inquiry.

Barragan points to precisely the faulty memories—e.g., “his memory was

useless”—and lost witnesses—e.g., “[t]he other four lenders . . . were all out of

business”—that we have found “insufficient to demonstrate the actual prejudice

required.” Radue, 707 F.2d at 495. Similarly, Barragan contends that the

government “had no satisfying reason” for its delay, but this argument mistakes the

burden of proof and misstates the nature of the testimony presented at Barragan’s

evidentiary hearing. See, e.g., Trial Tr. 167 at 21–25 (Aug. 22, 2017) (describing

government investigators and prosecutors as “inundated” with mortgage fraud

cases).

      The district court therefore did not abuse its discretion by denying

Barragan’s motion to dismiss the indictment. Applying the correct legal standard,

it found that Barragan had neither proven actual prejudice nor shown that the

government’s delay was a deliberate attempt to gain a tactical advantage.

Accordingly, we affirm.


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AFFIRMED.




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