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

                                                 FILED
                                                                          October 21, 2009
                                     No. 08-31114
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EUGENE FREDRICK,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CR-225-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Eugene Fredrick appeals his conviction and 150-month sentence for
distribution of five or more grams of cocaine base. He argues that the district
court erred in failing to dismiss the indictment based on a Sixth Amendment
violation of the right to a speedy trial. We AFFIRM.
       Fredrick was initially indicted for the offense on February 2, 2006. He was
charged under 21 U.S.C. § 841(a)(1). The indictment remained sealed until
September 14, 2006, but it was read in open court at Fredrick’s August 28

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 08-31114

arraignment. Trial was set for November 20, 2006. On November 14, the
district court dismissed Fredrick’s case without prejudice because there were
more than seventy days between the reading of the indictment in open court (but
not from the later unsealing) and the November 20 trial date. The court found
that informing Fredrick at the arraignment began the Speedy Trial Act
calendar, not the unsealing of the indictment. See 18 U.S.C. § 3164.
      Fredrick was re-indicted on November 29, 2006. On January 16, 2007,
after his initial appearance, he filed a motion to dismiss the indictment based on
a violation of his Sixth Amendment right to a speedy trial. He contended that
both pre-indictment and post-indictment delays prejudiced his defense. The
district court took the motion under advisement. The trial was initially set
without objection for May 14, 2007. In April 2007, the government filed a motion
to authenticate recordings of a confidential informant’s conversations, and
Fredrick filed a motion to disclose the informant’s identity. The district court
denied the government’s motion, and re-set the trial for September 26, 2007.
      The district court granted Fredrick’s motion to disclose the informant’s
identity on September 17, 2007, and the case proceeded to trial on September 26.
A jury found Fredrick guilty of the charges, and a judgment on the verdict was
entered.
      The district court addressed Fredrick’s motion to dismiss at the sentencing
hearing and concluded that the Government did not delay the trial intentionally
for the purpose of seeking an unfair advantage.         The court also found no
prejudice arose from the delay.
      Fredrick argues on appeal that the district court’s denial of his motion to
dismiss the indictment approved a violation of his Sixth Amendment right to a
speedy trial arising from the nineteen-month delay between his original
indictment and his trial. He argues that he suffered actual prejudice because his
only defense witness, who was present at the scene during the relevant drug
transaction, had difficulty recalling details of the incident at trial.

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                                   No. 08-31114

       The Sixth Amendment provides that a criminal defendant “shall enjoy the
right to a speedy and public trial.” U.S. C ONST. amend. VI. This right attaches
when a person is arrested, indicted, or otherwise formally charged. Doggett v.
United States, 505 U.S. 647, 655 (1992). To determine whether a defendant’s
right to a speedy trial has been violated, the 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).
       In reviewing a speedy trial claim, this court reviews factual findings for
clear error. United States v. Molina-Solorio, 577 F.3d 300, 303 (5th Cir. 2009).
We review the district court’s application of the Barker factors de novo. Id. at
304.
       Fredrick insists that his constitutional rights are analyzed beginning with
the first indictment, later dismissed, and ending with his trial under the second
indictment. The constitutional right to a speedy trial attaches upon arrest,
return of the indictment, or filing of the information, whichever occurs first.
United States v. Greer, 655 F.2d 51, 52 (5th Cir. 1981). Here, the parties do not
dispute that there was a nineteen-month delay before trial.
       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). Our de novo review does
not lead us to find that prejudice should be presumed.
       Fredrick concedes that any delay attributable to the Government was not
the result of bad faith but at most of negligence. Further, some of the delay
resulted from the district court’s taking pre-trial motions from both sides.
Fredrick offers no explanation for why he waited more than nine months before
filing his first motion to dismiss.    The record does not reflect that he had
previously asserted his right to a speedy trial.

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                                No. 08-31114

      In any event, Fredrick has failed to make a showing of actual prejudice.
The only prejudicial effect Fredrick alleges is that one witness had trouble
remembering certain facts at trial. Fredrick has offered no compelling argument
that the witness’s testimony was significant or would have altered the outcome
of the trial.
      Fredrick has failed to demonstrate that the delay adversely affected his
witness’s testimony such that the fairness of the trial was undermined or that
his defense was impaired. See id.; see Barker, 407 U.S. at 532.
      The judgment of the district court is AFFIRMED.




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