     Case: 16-11119      Document: 00514185290         Page: 1    Date Filed: 10/05/2017




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

                                      No. 16-11119
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         October 5, 2017

UNITED STATES OF AMERICA,                                                 Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellee

v.

BOBBY LEE WHITLOCK, also known as Uncle,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:08-CR-152-16


Before DAVIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       In 2007, law enforcement agents in Dallas, Texas began an undercover
investigation of a group of individuals distributing large quantities of illegal
drugs near a school. The investigation led to an indictment on May 21, 2008,
which named multiple individuals, including FNU LNU a.k.a “Uncle.” On
August 20, 2008, the government filed a superseding indictment, which named
Bobby Whitlock a.k.a “Uncle.” The superseding indictment charged Whitlock


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11119
with conspiracy to possess with the intent to distribute PCP, MDMA, and
marijuana, and with distribution of PCP near a school.
      Law enforcement agents identified a home address for Whitlock in
Ennis, Texas. Agents made two attempts to locate and arrest Whitlock at the
address; both attempts failed. Then, in 2009, Whitlock’s fugitive status was
erroneously removed from the National Crime Information Center database.
This caused the U.S. Marshals Service (“USMS”) to end its efforts to find
Whitlock. The USMS identified the error in 2015 and located and arrested
Whitlock on November 6, 2015. Whitlock was released on bond.
      Whitlock moved to dismiss the indictment for an alleged violation of his
Sixth Amendment right to a speedy trial. The district court held that the
government “has affirmatively shown that the delay did not impair Whitlock’s
ability to defend himself” because all of the government’s evidence, including
recorded conversations of controlled drug buys and the undercover police
detective’s testimony, is still available and intact. The district court also noted
that “Whitlock has not made an effort to demonstrate any particularized trial
prejudice that resulted from the delay.” The only issue is whether the district
court correctly determined that the government affirmatively rebutted the
presumption that Whitlock was prejudiced.
                                         I
      “The standard of review for Sixth Amendment claims is bifurcated.”
United States v. Harris, 566 F.3d 422, 431 (5th Cir. 2009) (quoting United
States v. Parker, 505 F.3d 323, 328 (5th Cir. 2007)). “We review findings of fact
for clear error, but, with respect to the constitutional test articulated in Barker
v. Wingo, 407 U.S. 514 (1972), it is unsettled whether our review is de novo or
for clear error.” Harris, 566 F.3d at 431-32.




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                                  No. 16-11119
                                        II
      The Sixth Amendment guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy . . . trial.” U.S. CONST. amend. VI.
In analyzing a defendant’s Sixth Amendment speedy trial claim based on post-
indictment delay, courts consider four factors: (1) the length of the delay, (2)
the reason for the delay, (3) the defendant’s diligence in asserting his Sixth
Amendment right, and (4) prejudice to the defendant resulting from the delay.
See Barker, 407 U.S. at 530-33.
      Doggett v. United States explained how the four factors used to analyze
a defendant’s Sixth Amendment speedy trial claim based on a post-indictment
delay are weighed, and the burden each party carries. 505 U.S. 647 (1992). “If
‘the first three factors weigh heavily in the defendant’s favor,’ prejudice may
be presumed.” Harris, 566 F.3d at 432 (quoting Parker, 505 F.3d at 328). Here,
“[t]he government concedes that the first three factors weigh heavily in favor
of Whitlock, thereby creating a presumption of prejudice.” See Doggett, 505
U.S. at 657-58; United States v. Cardona, 302 F.3d 494, 498-99 (5th Cir. 2002).
This presumption shifts the burden to the government for rebuttal. See
Doggett, 505 U.S. at 657; United States v. Bergfeld, 280 F.3d 486, 490 (5th Cir.
2002) (“[N]othing in Doggett endorses the district court’s performing the
analysis the other way around, i.e., using the absence of specific evidence of
prejudice to reduce the weight of the other three factors.”).
      Where, as here, the three Barker factors weigh so heavily in the
defendant’s favor, the government bears the burden to show that prejudice does
not exist. The defendant does not have to show that any particular prejudice
resulted from the delay, because courts must presume that it does. See Doggett,
505 U.S. at 655-56. Furthermore, when courts presume prejudice, Doggett
requires courts to focus on general prejudice, “recogniz[ing] that excessive
delay presumptively compromises the reliability of a trial in ways that neither
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                                  No. 16-11119
party can prove or, for that matter, identify.” Id. at 655. The district court erred
when it turned Doggett’s warning about presumptive general prejudice on its
head by effectively placing the burden on the defendant to particularize
prejudice, instead of on the government to rebut the presumptive general
prejudice. See id.; Cardona, 302 F.3d at 499 (holding that the government
lacked “any evidence” to rebut the presumption of general prejudice even
though the government argued that the strength of its own evidence showed
that the defendant did not suffer any impairment to his defense).
                                        III
      Accordingly, the district court’s denial of Whitlock’s motion to dismiss is
REVERSED. We vacate the judgment of conviction and sentence and dismiss
the indictment against Whitlock.




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