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

                                                                            FILED
                                                                         October 20, 2008

                                       No. 08-30244                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellant
v.

EDDIE L STEPHENS

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CR-235-1


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       The judgment of the district court is vacated and the case is remanded for
proceedings on the indictment.
       In June of 2007 this court reversed the judgment of conviction of Eddie L.
Stephens on the grounds of violation of the Speedy Trial Act by the time of his
trial in 2003. United States v. Stephens, 489 F.3d 647 (5th Cir. 2007). The court
left to the district judge the decision of whether that action should be with
prejudice to bar prosecution on a new indictment. The district judge promptly


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30244

and carefully considered the question and ruled on August 21, 2007, that it
would be without prejudice.
      Stephens was reindicted the following day and he immediately filed a
motion to dismiss on Sixth Amendment speedy trial grounds. Judge Brady
granted the motion, holding that the length of delay was the seven years
between the original indictment and the new indictment following the appeal.
Applying the other factors of Barker v. Wingo, 92 S. Ct. 2182 (1972), he held that
Stephens had asserted his rights, that the appeal time should not be held
against him and that the Government had failed to show the absence of
prejudice. We disagree with this holding.
      The Government was not responsible for the four years of the appeal. It
merely defended the conviction. We cannot hold that a defendant may challenge
trial on Sixth Amendment grounds by virtue of the delay of an appeal. The
relevant length of delay is therefore that of the pre-trial delay, i.e., three years.
We note that this pre-trial delay resulted in large part from Stephens’s own
extensive motion practice. Stephens did not assert his right to a speedy trial at
any time. He moved to dismiss and not for trial. That was not an assertion of
the Sixth Amendment right to speedy trial. United States v. Frye, 489 F.3d 201,
211–12 (5th Cir. 2007). As for prejudice, the district judge presumed prejudice
because of the seven years, but a proper delay time of three years would not
impose the burden to prove the absence of prejudice upon the Government. No
actual prejudice is shown by Stephens.
      Judgment REVERSED; cause REMANDED for further proceedings.




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