     Case: 11-60060     Document: 00511632472         Page: 1     Date Filed: 10/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 14, 2011
                                     No. 11-60060
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RANDALL T. THIRSK,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:06-CR-126-1


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judge.
PER CURIAM:*
        Randall T. Thirsk appeals his conviction of one count of submitting a false
claim, two counts of making false statements, and one count of theft of
government funds in violation of 18 U.S.C. §§ 287, 641, 1001. Thirsk’s charges
arose in connection with a claim for assistance from the Federal Emergency
Management Agency (FEMA) for property damage caused by Hurricane Katrina.
He argues that the district court erred by failing to dismiss the indictment based
on a Sixth Amendment violation of the right to a speedy trial.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 11-60060

      Thirsk was indicted for the offense on December 6, 2006, but was not
arrested and arraigned until August 25, 2010. On October 15, 2010, Thirsk filed
an out-of-time motion to dismiss the indictment contending that the delay
impaired his ability to defend himself. Specifically, Thirsk argued that the delay
caused the memories of witnesses to fade and records to be lost, and made it
difficult to track down other witnesses whose whereabouts were unknown. The
district court denied Thirsk’s motion, concluding that he was not entitled to a
presumption of prejudice and could not make a sufficient showing that he was
actually prejudiced by the delay. Following a jury trial, Thirsk was convicted on
all counts. The district court sentenced him to eight months in the custody of
the Bureau of Prisons to be followed by two consecutive two-year terms of
supervised release, and ordered Thirsk to pay a fine and restitution.
      To determine whether a defendant’s right to a speedy trial has been
violated, a court balances four factors: (1) the length of the delay; (2) the reason
for the delay; (3) whether the defendant asserted his right to a speedy trial; and
(4) whether the defendant was prejudiced by the delay. Barker v. Wingo,
407 U.S. 514, 530 (1972). This court reviews the factual findings of the district
court for clear error and the weighing of the Barker factors de novo. United
States v. Bishop, 629 F.3d 462, 466 (5th Cir. 2010) (internal citations omitted).
      When, as in this case, more than one year has passed between indictment
and trial, we “undertake[] a full Barker analysis, looking to the first three factors
to decide whether prejudice will be presumed.” United States v. Parker, 505 F.3d
323, 328 (5th Cir. 2007) (internal citations omitted).          The district court
committed no error in concluding that prejudice should not be presumed. First,
the delay of three years and eight months is not sufficient to warrant a
presumption of prejudice. See United States v. Frye, 489 F.3d 201, 210 (5th Cir.
2011); United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003). With
respect to the reason for the delay, as Thirsk concedes, any delay attributable to
the Government was not intentional or the result of bad faith. Assuming,

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                                  No. 11-60060

without deciding, that the delay fell within the “middle ground,” as the district
court found, we agree with the court that this factor does not weigh heavily in
favor of a presumption. Serna-Villarreal, 352 F.3d at 232-33. As for the timely
assertion of the right, Thirsk’s motion to dismiss the indictment, standing alone,
is not sufficient. See Frye, 489 F.3d at 211-12.
      Finally, Thirsk has failed to make a showing of actual prejudice. His
conclusional assertions on this point are insufficient.        See Goodrum v.
Quarterman, 547 F.3d 249, 262 (5th Cir. 2008). In addition, our review of the
record and the district court’s reasons satisfy us that the district court
committed no error in rejecting Thirsk’s claim of actual prejudice. See Barker,
407 U.S. at 532.
      The judgment of the district court is AFFIRMED.




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