                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3247
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                            Agustin Rodriguez-Valencia

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                              Submitted: April 18, 2014
                                 Filed: June 2, 2014
                                   ____________

Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

     Agustin Rodriguez-Valencia pled guilty to conspiracy to distribute
methamphetamine. The district court1 sentenced him to 70 months’ imprisonment.

      1
       The Honorable Richard E. Dorr, late a United States District Judge for the
Western District of Missouri, presided over the motion to dismiss, and the guilty-plea
hearing. The Honorable Brian C. Wimes, United States District Judge for the
Western District of Missouri, presided over the sentencing hearing.
He appeals, arguing that the six-and-a-half-year delay between indictment and arrest
violates the Sixth Amendment right to a speedy trial. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

                                           I.

      In August 2003, DEA agents interviewed Rodriguez-Valencia at his home in
Springfield, Missouri. He admitted receiving a pound of meth, selling it to
undercover officers, and distributing the rest to a co-conspirator. After the interview,
he disappeared.

      In November 2005, the government indicted Rodriguez-Valencia and four co-
defendants for conspiracy to distribute meth and other drug offenses. The DEA
turned over apprehension responsibility to the United States Marshals Service
(USMS). Deputy Lonnie Nance took the lead in finding Rodriguez-Valencia. The
four co-defendants were arrested within six months. They pled guilty.

      For the next six years, Deputy Nance tried to locate Rodriguez-Valencia.

       In January 2006, Deputy Nance located Rodriguez-Valencia’s mother and sister
in Springfield. They said he was in California or Mexico. Deputy Nance obtained
court orders for their phone records. He asked a USMS officer in Mexico to find the
address associated with their phone calls to Mexico.

      In November 2006, Deputy Nance searched computer databases to locate
Rodriguez-Valencia. He also ran a nationwide driver’s license check.

       In February 2007, Deputy Nance checked for public utility records in
Rodriguez-Valencia’s name. He also visited three prior addresses in Springfield,
interviewing Rodriguez-Valencia’s former neighbors. They informed him that a
woman “Fabiola,” a male relative “Jorge,” and two or three children had lived with

                                          -2-
Rodriguez-Valencia. Deputy Nance found information about Fabiola (later identified
as Fabiola Cuevas, Rodriguez-Valencia’s wife) and Jorge (later identified as Jorge
Rodriguez). He found other addresses where Cuevas and Jorge Rodriguez had lived
together. He gave information about them to United States Immigration and Customs
Enforcement. He searched for welfare benefits in Cuevas’s or Jorge Rodriguez’s
name. Running a nationwide driver’s license check, he found a California license
with Cuevas’s name and birth date, surrendered to Missouri in 2003. He requested
a phone trap-and-trace order.

     In January 2008, Deputy Nance investigated addresses previously occupied by
Cuevas in Whittier, California.

       In December 2008, Deputy Nance found a vehicle that had belonged to
Rodriguez-Valencia in Whittier. He found a California license with Jorge
Rodriguez’s name and birth date, surrendered to Missouri. He checked for California
state benefits received by Cuevas, Rodriguez, or Rodriguez-Valencia.

       In February 2009, Deputy Nance conducted a nationwide identification-card
and driver’s license check for Cuevas, Rodriguez, and Rodrigeuz-Valencia. He
discovered that a vehicle previously registered to Rodriguez-Valencia in Missouri
was registered to someone at the same Whittier address used by Rodriguez-Valencia
to register another vehicle in 2002. Deputy Nance gave all known addresses used by
Cuevas, Rodriguez, and Rodriguez-Valencia to the Pacific Southwest Regional
Fugitive Task Force. He asked them to arrest Rodriguez-Valencia. By May 2009,
the Task Force concluded that Rodriguez-Valencia did not live at any address
provided. The current occupants had no information about his location.

     In July 2010, Deputy Nance searched insurance claim records for Rodriguez-
Valencia.




                                        -3-
      On December 28, 2010, Deputy Randal Aug learned that Rodriguez-Valencia
had been stopped by Customs officials in Managua, Nicaragua. Deputy Aug and the
Springfield United States Attorney’s Office began extradition paperwork. On
December 29, they learned that Nicaragua had released Rodriguez-Valencia.

      In April 2011, Deputy Jessica Schiwitz requested Rodriguez-Valencia’s
fingerprints from the FBI. She received them a month later.

      In December 2011, Deputy Nance and the United States Attorney’s Office
submitted an INTERPOL Red Notice application to the USMS International Fugitive
Investigative Branch.

     In January 2012, Deputy Nance searched the internet for information about
Cuevas and Rodriguez-Valencia. He forwarded his findings to USMS personnel in
Mexico City.

       In February 2012, at the request of the United States Attorney’s Office, the
district court unsealed Rodriquez-Valencia’s indictment for posting with INTERPOL.

       In March 2012, Deputy Nance learned that Rodriguez-Valencia had been
arrested at the Nicaragua-Costa Rica border.

     In April 2012, Rodriguez-Valencia was deported and arrested on arrival in
Houston. He made his initial appearance in this case on April 20, 2012, in the
Western District of Missouri.

      Before trial, Rodriguez-Valencia moved to dismiss the indictment, invoking
the Sixth Amendment right to a speedy trial. The district court denied the motion.
(Rodriguez-Valencia waived any rights under the Speedy Trial Act.)



                                        -4-
       In March 2013, Rodriguez-Valencia pled guilty to conspiracy to distribute
meth, reserving the right to appeal the denial of his speedy-trial motion. The district
court sentenced him to 70 months’ imprisonment.

                                           II.

      Rodriguez-Valencia claims the district court erred in denying his motion to
dismiss for “unconstitutional post-indictment delay” because the government
negligently failed to submit an INTERPOL Red Notice for over six years after
indictment. This court reviews “findings of fact on whether a defendant’s right to a
speedy trial was violated for clear error” and “legal conclusions de novo.” United
States v. Erenas-Luna, 560 F.3d 772, 776 (8th Cir. 2009).

       The Sixth Amendment guarantees a criminal defendant the right to a speedy
trial. U.S. Const. amend. VI; Doggett v. United States, 505 U.S. 647, 651 (1992).
To determine whether the right has been violated, courts balance four factors: (1)
length of delay; (2) reason for the delay; (3) defendant’s assertion of the right; and (4)
prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972). None of the four factors is

      either a necessary or sufficient condition to the finding of a deprivation
      of the right of speedy trial. Rather, they are related factors and must be
      considered together with such other circumstances as may be relevant.
      In sum, these factors have no talismanic qualities; courts must still
      engage in a difficult and sensitive balancing process. But, because we
      are dealing with a fundamental right of the accused, this process must
      be carried out with full recognition that the accused’s interest in a
      speedy trial is specifically affirmed in the Constitution.

Id. at 533.




                                           -5-
                                           A.

      The first Barker factor—length of delay—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.’”
Erenas-Luna, 560 F.3d at 776, quoting United States v. McGhee, 532 F.3d 733, 739
(8th Cir. 2008). “As to the latter inquiry, ‘the presumption that pretrial delay has
prejudiced the accused intensifies over time.’” Id., quoting United States v. Walker,
92 F.3d 714, 717 (8th Cir. 1996).

       The delay between Rodriguez-Valencia’s indictment and arrest was six and a
half years. The government concedes, and this court agrees, that this factor
“unquestionably” favors Rodriguez-Valencia. See Erenas-Luna, 560 F.3d at 776
(three-year delay between indictment and arraignment weighs in defendant’s favor);
United States v. Brown, 325 F.3d 1032, 1035 (8th Cir. 2003) (three-year delay
between indictment and initial appearance weighs in defendant’s favor); Walker, 92
F.3d at 717 (37-month delay between indictment and arraignment weighs in
defendant’s favor). Because the length of delay is presumptively prejudicial, this
court analyzes the other Barker criteria. Doggett, 505 U.S. at 652 (“In this case, the
extraordinary 8½ year lag between Doggett’s indictment and arrest clearly suffices
to trigger the speedy trial enquiry; its further significance within that enquiry will be
dealt with later.”), 505 U.S. at 652 n.1 (“Depending on the nature of the charges, the
lower courts have generally found postaccusation delay ‘presumptively prejudicial’
at least as it approaches one year.”); Barker, 407 U.S. at 530 (“The length of the
delay is to some extent a triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that
go into the balance.”); United States v. Jeanetta, 533 F.3d 651, 656 (8th Cir. 2009)
(“A delay approaching one year may meet the threshold for presumptively prejudicial
delay requiring application of the Barker factors.”); Brown, 325 F.3d at 1034 (If the

                                          -6-
delay is presumptively prejudicial, “then the court conducts the speedy trial analysis
by weighing four factors.”).

                                          B.

       The second Barker factor—reason for the delay—requires determining
“whether the government or the criminal defendant is more to blame.” Doggett, 505
U.S. at 651. Courts accord “different weights . . . to different reasons.” Erenas-
Luna, 560 F.3d at 777 (internal quotations marks omitted). “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 or overcrowded courts 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. See Strunk v. United States, 412 U.S. 434,
436-37 (1973).

       Rodriguez-Valencia argues he did not knowingly cause the delay because he
left the United States before he was indicted. The government counters that his
disappearance after confessing to drug trafficking raises the presumption of flight to
avoid prosecution. The district court did not make a finding on this issue. Over two
years passed between Rodriguez-Valencia’s confession to DEA agents and the
indictment. This factor does not weigh against him.

       Still, as the district court found, the government’s negligence did not cause the
over six-year delay. (Rodriguez-Valencia does not claim the government
intentionally, or in bad faith, caused any delay.) See United States v. Shepard, 462
F.3d 847, 864 (8th Cir. 2006) (“[T]here is no evidence that the Government
intentionally caused any delay or filed pretrial motions to cause delay in order to gain
a tactical advantage.”). The Magistrate’s Report and Recommendation, which the
district court adopted in full, found that “the efforts of the Marshal’s Service and the

                                          -7-
Drug Enforcement Agency . . . require the conclusion that no speedy trial rights were
violated.” This court must accord “‘special deference’ [to a] district court’s
determination concerning whether the government was negligent.” Erenas-Luna,
560 F.3d at 777, quoting Doggett, 505 U.S. at 652.

       For six years, the government searched computer databases, public utilities,
welfare benefits, insurance records, identification-cards, and driver’s licenses;
interviewed family, friends, and neighbors in Missouri and California; monitored
phone records; requested fingerprints; prepared extradition paperwork; and
coordinated with law enforcement in the United States and Mexico. Although most
efforts revealed nothing relevant, the government pursued leads. After locating
Rodriguez-Valencia’s mother and sister, for example, Deputy Nance sought a court
order for their phone records. After learning that Rodriguez-Valencia had previously
lived with Cuevas and Jorge Rodriguez, Deputy Nance searched for them. And, in
2010, when Rodriguez-Valencia was stopped by officials in Nicaragua, the
government prepared extradition paperwork. See Doggett, 505 U.S. at 652 (requiring
the government to make a “serious effort” to find the defendant).

       Rodriguez-Valencia contends that the government was negligent in failing
timely to submit an INTERPOL Red Notice. This notice, he asserts, was likely to
locate him because he “crossed the borders of different countries including Costa
Rica, Honduras, and Nicaragua from 2005 to 2012.” However, the government was
unaware that Rodriguez-Valencia traveled to any INTERPOL country (aside from
Mexico) until December 2010 when they learned of his apprehension in Nicaragua.
(Mexico is an INTERPOL country, but the government used other means of searching
for him there.)

      This is a close case. The government could have submitted an INTERPOL Red
Notice immediately upon learning of Rodriguez-Valencia’s apprehension in
Nicaragua. (In the interim, the government requested and received Rodriguez-

                                         -8-
Valencia’s fingerprints.) However, under this “very deferential” standard of review,
this court agrees with the finding that the government was not negligent. Erenas-
Luna, 560 F.3d at 777. See Doggett, 505 U.S. at 652 (finding negligence where the
defendant was living and working within the United States under his own name);
United States v. Richards, 707 F.2d 995, 997 (8th Cir. 1983) (the reason for the delay
was that the government “was unable to locate the defendant,” but “this delay was not
chargeable to the government”).

                                           C.

       The third Barker factor—defendant’s assertion of the right—considers
“whether in due course the defendant asserted his right to a speedy trial.”
Erenas-Luna, 560 F.3d at 778. There is no evidence that Rodriguez-Valencia knew
of the pending charges. He cannot be faulted for failing to assert his right to a speedy
trial. Doggett, 505 U.S. at 654 (where a defendant is unaware of the indictment, he
cannot “be taxed for invoking his speedy trial right only after his arrest”). This factor
does not weigh against him. Richards, 707 F.2d at 997 (where the defendant was
“unaware of the indictment before his arrest . . . his failure to assert his right to a
speedy trial until [after arrest] cannot be weighed against him”).

                                           D.

       The final Barker factor—prejudice—considers “whether the defendant suffered
prejudice as a result of the delay.” Erenas-Luna, 560 F.3d at 778, quoting Walker,
92 F.3d at 719. This factor is assessed “‘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.’” Id., quoting United States
v. Aldaco, 477 F.3d 1008, 1019 (8th Cir. 2007), quoting Barker, 407 U.S. at 532.


                                          -9-
      Rodriguez-Valencia has not shown actual or specific prejudice for any interest
the speedy trial right protects. He was not incarcerated pretrial. Unaware of the
indictment, he did not suffer anxiety or concern before arrest. He does not allege
impaired defense.

        Rodriguez-Valencia argues that no affirmative demonstration of actual or
specific prejudice is required. Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam)
(“Barker v. Wingo expressly rejected the notion that an affirmative demonstration of
prejudice was necessary to prove a denial of the constitutional right to a speedy
trial.”). Because of the length of delay, he contends the presumption of prejudice
entitles him to recovery. See Doggett, 505 U.S. at 655 (“[E]xcessive delay
presumptively compromises the reliability of a trial in ways that neither party can
prove or, for that matter, identify.”); Richards, 707 F.2d at 997 (A delay that is
“inordinately lengthy” may require an automatic dismissal).

       However, “such presumptive prejudice cannot alone carry a Sixth Amendment
claim without regard to the other Barker criteria.” Doggett, 505 U.S. at 656. “The
extent to which a defendant must demonstrate prejudice under this factor depends on
the particular circumstances.” Erenas-Luna, 560 F.3d at 778. See Doggett, 505 U.S.
at 656 (The court must consider “the role that presumptive prejudice should play in
the disposition of [the defendant’s] speedy trial claim.”). “A showing of actual
prejudice is required if the government exercised reasonable diligence in pursuing the
defendant.” Erenas-Luna, 560 F.3d at 778-79. See Doggett, 505 U.S. at 657 (“If the
Government had pursued Doggett with reasonable diligence from his indictment to
his arrest, his speedy trial claim would fail. Indeed, that conclusion would generally
follow as a matter of course however great the delay, so long as Doggett could not
show specific prejudice to his defense.”). “Where the government has been negligent,
however, prejudice can be presumed if there has been an excessive delay.” Erenas-
Luna, 560 F.3d at 779. See Doggett, 505 U.S. at 657 (“To be sure, to warrant


                                        -10-
granting relief, negligence unaccompanied by particularized trial prejudice must have
lasted longer than negligence demonstrably causing such prejudice.”).

       Here, the delay was “extraordinary.” Barker, 407 U.S. at 533. However, the
government pursued Rodriguez-Valencia with reasonable diligence from indictment
to arrest. He does not show actual or specific prejudice. His speedy trial claim fails.
 See Doggett, 505 U.S. at 657; Erenas-Luna, 560 F.3d at 778-79; Walker, 92 F.3d
at 719 (“We have concluded above that the government pursued Walker with
reasonable diligence. That conclusion requires us to reject Walker’s speedy trial
claim, unless Walker offers proof of specific prejudice.”).

                                    *******

      The judgment is affirmed.
                     ______________________________




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