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                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17063
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:10-cr-20614-MGC-6


UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,


                                   versus


JOSE NEDA,

                                                      Defendant - Appellant.

                       ________________________

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

                            (September 27, 2017)

Before HULL, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Jose Neda appeals his convictions stemming from a multi-defendant drug

smuggling conspiracy. He argues that the district court erred in denying his

motion to dismiss the indictment based on a violation of his Sixth Amendment

right to a speedy trial. Although five years passed between the indictment and

Neda’s arrest, the district court concluded that Neda’s knowledge of the criminal

charges and his failure to demonstrate actual prejudice precluded the indictment’s

dismissal. After careful review, we affirm.

                                  I.      BACKGROUND
A.     Factual History

       In August 2010, Neda and his codefendants were indicted for multiple

charges stemming from an attempt to smuggle cocaine into the United States and

launder the sales proceeds. Neda’s purported role in the conspiracy was to ensure

the cocaine was loaded onto the plane in Maiquetia, Venezuela.1 Because an

informant indicated that Neda, a Venezuelan national, was living in Venezuela, the

government’s efforts to locate Neda were limited to a yearly check of his name in

the Treasury Enforcement Communication System (“TECS”) database, which

tracks individuals entering and exiting the United States.

       The government failed to check other available databases, such as the

Florida Driver and Vehicle Information Database (“DAVID”), or contact Customs


       1
         It is unclear if Neda followed through on his part of the conspiracy. The drugs
intercepted in Miami arrived from Maracaibo, Venezuela, not Maiquetia.

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and Border Protection. Had it performed these extra steps, it might have located

Neda, who moved to the United States in June 2010.

      From 2010 to 2015, Neda lived openly under his real name in the Miami

area. He married, received traffic tickets, applied for credit, filed an adjustment of

status application with the United States Citizenship and Immigration Services, and

even requested a copy of his criminal history report from the police department—a

report that indicated Neda had no local criminal record. In 2011, an attorney

entered an appearance on Neda’s behalf in the federal case in which he had been

indicted. The appearance occurred months after the charges against one of Neda’s

codefendants were dismissed. Nevertheless, no progress was made on Neda’s

case. Officers did not arrest Neda until December 2015, more than five years after

the indictment was issued, when by chance they encountered him at the airport

picking up his brother and codefendant, Luis Neda.

B.    Procedural History

      After his arrest, Neda moved to dismiss the indictment, claiming that the

five-year post-indictment delay violated his Sixth Amendment right to a speedy

trial. The district court held a hearing on the issue.

       At the hearing, the government admitted that the five-year delay was

presumptively prejudicial. But it claimed to have reasonably believed that Neda

was in Venezuela, which it argued justified its performing only an annual check on


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a single database to see if Neda had entered the United States. The government

argued that Neda’s retention of an attorney demonstrated his early knowledge of

the criminal proceedings. The government also suggested that Neda had

purposefully evaded law enforcement, pointing to traffic tickets with different

addresses, variations of his name on those tickets, and his receipt of three failure-

to-appear notices for those tickets. Finally, the government questioned Neda’s

ability to demonstrate any actual prejudice caused by the delay.

       Neda presented evidence to rebut the government’s argument that he had

purposefully evaded law enforcement: multiple papers with his name on them

(including car insurance documents, a marriage record, and mail from U.S.

Customs and Immigration Services) and testimony from his wife that they had

taken his traffic tickets to a legal clinic to be resolved.

       The district court asked Neda to identify any actual prejudice he suffered. In

response, Neda asserted that prejudice should be presumed and suggested that

because “five years is just over the top . . . . [T]he indictment should be dismissed.”

Doc. 134 at 61.2

       The district court denied Neda’s motion. On the one hand, the court found

that the government was “at best” negligent because Neda “was living open[ly]

and notoriously in the United States, . . . making [no] effort to hide at all,” and
       2
        Unless otherwise specified, all citations in the form “Doc. __” refer to the district court
docket entries.

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“law enforcement sort of dropped the ball.” Id. at 72. On the other hand, the court

found that Neda was aware of a criminal proceeding against him, citing his

retention of an attorney in 2011, after his codefendant’s charges were dropped.

Because the court concluded that Neda was aware of the case against him, Neda

was required to demonstrate actual prejudice. He failed to do so, and the district

court denied his motion.

      After a jury trial, Neda was convicted on two counts—conspiracy to import

five kilograms or more of cocaine into the United States, in violation of 21 U.S.C.

§ 963, and conspiracy to possess with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. § 846—and acquitted on the remaining charges.

He was sentenced to 150 months’ imprisonment. This is his appeal.

                        II.    STANDARD OF REVIEW

      Whether a defendant’s constitutional right to a speedy trial has been violated

is a mixed question of law and fact. United States v. Ingram, 446 F.3d 1332, 1336

(11th Cir. 2006). We review de novo questions of law; we review findings of fact

for clear error. Id. “A factual finding is clearly erroneous only if, after we review

the evidence, we are left with the definite and firm conviction that a mistake has

been committed.” United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir.

2010) (internal quotation marks omitted).




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                                    III.    DISCUSSION

       Neda argues that the delay between his indictment and arrest deprived him

of his Sixth Amendment “right to a speedy and public trial.” 3 U.S. Const. amend.

VI. We apply a balancing test to determine whether Neda’s speedy trial right has

been violated, considering four factors: 1) the length of the delay, 2) the reason for

the delay, 3) Neda’s assertion of his right, and 4) prejudice to Neda. Barker v.

Wingo, 407 U.S. 514, 530-31 (1972). “In this circuit, a defendant generally must

show actual prejudice unless the first three factors in Barker all weigh heavily

against the government.” United States v. Davenport, 935 F.2d 1223, 1239 (11th

Cir. 1991). Although the delay—due, at best for the government, to its own

negligence—lasted over five years, the district court found that Neda knew of the

charges but waited to assert his speedy trial right until after his arrest. We cannot

say this finding was clearly erroneous. Further, the district court correctly

concluded that Neda failed to demonstrate actual prejudice. Thus, we must reject
       3
          In his brief on appeal, Neda also asserts that the trial court erred in permitting the
government to introduce at his criminal trial evidence of a 2007 drug importation scheme. Neda
argues this evidence “made the speedy trial violation [ ] more egregious since it made the post
trial delay almost 9 years.” Appellant’s Br. at 20. To the extent Neda intends to challenge the
admission of this evidence at trial, his passing reference to it is insufficient; he therefore has
abandoned any such challenge. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th
Cir. 2003) (“Under our caselaw, a party seeking to raise a claim or issue on appeal must plainly
and prominently so indicate. Otherwise, the issue—even if properly preserved at trial—will be
considered abandoned.”).

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Neda’s argument that the district court erred in denying his motion to dismiss the

indictment. We will look to each factor in turn before balancing. 4

A.     The Barker Factors

       1.      Length of the Delay

       The first Barker factor requires that we undertake a dual inquiry. First, we

must determine if the length of the delay is presumptively prejudicial, which acts

as a triggering mechanism to proceed with the speedy-trial analysis. “Until there is

some delay which is presumptively prejudicial, there is no necessity for inquiry

into the other factors that go into the balance.” Barker, 407 U.S. at 530. Neda’s

speedy trial clock began ticking in August 2010, when he was indicted. It ran for

over five years, until officers arrested Neda in December 2015 and Neda filed his

speedy trial motion in early 2016. The government concedes that this five-year

delay was presumptively prejudicial, and we agree. See Ingram, 446 F.3d at 1336

(explaining that a delay of more than 12 months is presumptively prejudicial).

       Second, since the length of delay was presumptively prejudicial, we must

consider “the extent to which the delay stretches beyond the bare minimum needed

to trigger judicial examination of the claim.” Doggett v. United States, 505 U.S.

647, 652 (1992). “[T]he presumption that pretrial delay has prejudiced the

accused intensifies over time.” Id. Thus, the longer the delay, the more heavily it
       4
        The district court did not clearly separate its factual findings for each factor, but it
provided a sufficient record for our review to proceed.

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weighs against the government. We previously have found that delays lasting

close to five years weigh heavily against the government. See Ingram, 446 F.3d at

1338-39 (reasoning that a 2 year post-indictment delay, coupled with a 2.5 year

pre-indictment delay, weighed heavily against the government). So too here.

Neda’s pretrial delay was more than five times the length of the threshold required

to establish presumptive prejudice; therefore, this factor weighs heavily against the

government.

      2.      Reason for the Delay

      The second Barker factor we must consider is the government’s reason for

the delay. Here, the reason for the delay primarily stemmed from the

government’s negligence in searching for Neda, who lived openly in Miami from

his indictment until his arrest.

      We assign different weights to this second factor, depending on the reason

for the delay:

      A deliberate attempt to delay the trial in order to hamper the defense
      should be weighted heavily against the government. A more neutral
      reason such as negligence . . . should be weighted less heavily but
      nevertheless should be considered since the ultimate responsibility for
      such circumstances must rest with the government rather than with the
      defendant.

Barker, 407 U.S. at 531 (footnote omitted). Indeed, the longer the delay, the

heavier the government’s negligence must be weighted. See Doggett, 505 U.S. at



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657 (“[T]he weight we assign to official negligence compounds over time as the

presumption of evidentiary prejudice grows.”).

      The district court concluded that the government was “at best” negligent. 5

Doc. 134 at 72. We agree. The government has the duty to bring a defendant to

trial, Barker, 407 U.S. at 527, a duty it appears to have taken rather lightly in

Neda’s case. The government checked the TECS database once a year to see if

Neda had entered the United States. Although other databases, such as DAVID,

were available, the government failed to check those. Neda was listed as a fugitive

from justice, but the warrant apparently was not relayed to other law enforcement

offices, because Neda received traffic tickets under his own name and obtained his

criminal history report directly from a police station. As the district court noted,

the government seems to have failed to perform “law enforcement 101” in Neda’s

case. Doc. 134 at 53-54.

      The government argues that Neda purposefully evaded law enforcement,

thus contributing to the delay. The district court rejected this argument, finding

instead that Neda made “[no] effort to hide at all.” Id. at 72. In support of its

argument, the government points to records indicating that Neda provided

variations of his full name to state officers and thrice failed to appear on traffic

summonses.

      5
          Neda does not argue that the government acted in bad faith.

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      The government has failed to show that the court’s finding of fact was

clearly erroneous. First, the records in DAVID refer to Neda as both “Jose Rafael

Neda Boza” (his full name) and “Jose Rafael Boza,” (no great stretch from his full

name). Second, Neda’s wife testified that they had taken Neda’s traffic tickets to a

legal clinic and believed they had been resolved. Third, Neda provided documents

such as car insurance, a marriage record, and mail from U.S. Customs and

Immigration Services, all with his full name. On these facts, the district court did

not clearly err in finding that Neda made no effort to hide.

      Although the district court determined that Neda was living openly and not

as a fugitive, it also suggested that Neda might have contributed to the delay by

being difficult to locate. The court found that Neda’s attorney—who was retained

in 2011 and withdrew in 2013—withdrew not because he lacked “the physical or

mental capacity to perform as a lawyer because of illness,” but rather because he

was “having trouble finding” Neda. Id. at 62-63.

      This finding was clearly erroneous. Neda’s attorney’s motion to withdraw

indicated that he sought to withdraw because he would be receiving long-term

treatment for health problems and was unable to continue to practice law. To be

fair, the motion also stated that his office was attempting to reach Neda to inform

him of his attorney’s status but had not yet been successful, but that was not

provided as the reason for the withdrawal. Still, the district court clearly erred in


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its finding that Neda’s attorney withdrew because Neda was missing, rather than

because of a long-term illness; we therefore will not consider this evidence when

weighing the Barker factors. 6

       In sum, because the reason for the delay between indictment and arrest was

caused by the government’s negligence, this factor weighs against the government.

Though not weighted as heavily as a deliberate and bad faith delay, the

government’s negligence in this case spanned years and must be counted against

the government.

       3.     Assertion of Right

       The third Barker factor requires us to consider when and how often Neda

asserted his speedy trial right. The district court found that Neda first raised his

right in February 2016, two months after his December 2015 arrest, but years after

learning about his pending case. If a defendant asserts his right in a timely manner,

then he raises an “inference that [he] was not at fault for the delay and that the

delay prejudiced [him].” Villarreal, 613 F.3d at 1354. A defendant who is

unaware that charges were pending against him cannot be faulted for a failure to

make a demand. Id. But if a defendant knows of the charges and does not assert



       6
          At the hearing the district court relied on the government’s proffer of the motion to
withdraw. It appears that the government may have misled the court by relaying only the portion
of the motion that mentioned the efforts to notify Neda, omitting the portion about counsel’s
illness, and staying silent when the district court made the finding above.

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his right, it will be “difficult . . . to prove that he was denied a speedy trial.”

Barker, 407 U.S. at 532.

       For example, in Villarreal, the defendant argued that he had timely asserted

his speedy trial right because he raised it shortly after arrest. We rejected his

argument, however, because the district court had found he had known for years

that the government was seeking to prosecute him, as evidenced by his taking steps

to evade the police to avoid detection. Thus, we found that this factor weighed

heavily against the defendant. Villarreal, 613 F.3d at 1354-55.

       Like the defendant in Villarreal, Neda argues that this factor should weigh in

his favor because he asserted his right shortly after arrest. His argument similarly

fails, however, because the district court found that Neda was aware much earlier

of his case—if not of the actual indictment, of some sort of “criminal action against

him.” Doc. 134 at 73. The court based its finding on the fact that an attorney

made an appearance on Neda’s behalf in 2011. We cannot say this finding was

clearly erroneous. Thus, even though Neda did not intentionally evade law

enforcement, his failure to assert his speedy trial right earlier—despite knowledge

of the criminal proceeding—weighs heavily against him. See Doggett, 505 U.S. at

653 (noting that if the defendant had known of his indictment years before he was

arrested, the third factor would weigh heavily against him).




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      Neda argues that the trial court erred in weighing his hiring of counsel

against him, noting that the burden is on the government to bring the defendant to

trial. He is correct: the right to a speedy trial “places the primary burden on the

courts and the prosecutors to assure that cases are brought to trial.” Barker, 407

U.S. at 529. Nevertheless, a defendant who is aware of the charges against him but

does not assert his speedy trial right will find that this factor weighs against him.

Id. at 531-32.

      Because there is evidence that Neda knew about the charges as early as

2011, but did not raise his speedy trial right until February 2016, factor three

weighs heavily against Neda.

      4.     Prejudice

      The fourth Barker factor requires us to examine what prejudice, if any, Neda

suffered as a result of the delay. The Supreme Court has identified three interests

that may be prejudiced by a pretrial delay: 1) preventing pretrial incarceration, 2)

minimizing the accused’s anxiety and concern, and 3) limiting the possibility of the

defense’s impairment. Id. at 532. As to the first interest, Neda was not

incarcerated during the five years between indictment and arrest. As regards the

second, he does not allege that he suffered anxiety or concern (indeed, his

argument necessarily rests on the premise that he was unaware his case had not




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been resolved). Our focus, then, will be on the third interest: the potential

impairment of Neda’s defense.

       We recognize that “impairment of one’s defense is the most difficult form

of speedy trial prejudice to prove because time’s erosion of exculpatory evidence

and testimony ‘can rarely be shown.’” Doggett, 505 U.S. at 656 (quoting Barker,

407 U.S. at 532). Nevertheless, our precedent requires Neda to show actual

prejudice because the first three Barker factors do not all weigh heavily against the

government. See Villarreal, 613 F.3d at 1355 (“If . . . the first three factors do not

weigh heavily against the government, the defendant generally must demonstrate

actual prejudice to succeed on his speedy trial claim.”). Unfortunately, Neda has

failed to meet this burden.

      In his motion to dismiss the indictment, Neda asserted that the delay

“weakened [his] ability to see and hear the original evidence, raise specific

defenses and elicit specific testimony.” Doc. 77 at 5. Such conclusory allegations

are insufficient to establish actual prejudice, however. United States v. Clark, 83

F.3d 1350, 1354 (11th Cir. 1996). At the hearing on the motion, the district court

gave Neda a chance to elaborate, asking directly: “[W]hat is your actual

prejudice?” Doc. 134 at 59. Neda failed to respond to the question, instead

returning to his argument that a five-year delay should result in presumed

prejudice. Without any evidence of actual prejudice before it, the district court was


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bound to conclude that Neda suffered none. Thus, this factor weighs heavily

against Neda.7

B. Balancing the Factors

       Having considered each Barker factor, we now balance them. In this case,

factor one weighs heavily against the government. Factor two weighs against the

government, but less heavily. Factors three and four weigh heavily against Neda.

Additionally, because the first three factors do not all weigh heavily against the

government, Neda must show actual prejudice. See Davenport, 935 F.2d at 1239.

As explained above, Neda has failed to do so. The district court thus committed no

error in concluding that Neda’s Sixth Amendment right to a speedy trial was not

violated.




       7
          On appeal, Neda provides for the first time details indicating that the delay actually
prejudiced his defense, pointing to the destruction of original recordings and his inability to
locate alibi witnesses due to the worsening political situation in Venezuela. The district court
lacked an opportunity to pass on these specific theories, so we cannot do so now. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332-35 (11th Cir. 2004) (explaining that
absent exceptional circumstances, we will not consider arguments that are raised for the first
time on appeal). In the alternative, we may review for plain error issues not raised before the
district court. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.”). “[Neda] can succeed [on
plain error review] only if he can show that there was error, that the error was plain, and that it
affected his substantial rights, i.e., the error affected the outcome of the district court
proceedings.” United States v. Hayes, 40 F.3d 362, 364 (11th Cir. 1994). Neda does not identify
how access to original recordings would have benefitted him (indeed, he argued at the closing of
his criminal trial that the absence of recordings cast doubt on the government’s case), nor does
he provide the names of his missing witnesses or what their testimony would have shown.
Therefore, we find no plain error.

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                               IV.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s order denying the

motion to dismiss Neda’s indictment for a violation of his Sixth Amendment

speedy trial right.

      AFFIRMED.




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