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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 16-11181
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:07-cr-00387-EAK-MAP-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

RODOLPHO CRUZ,
a.k.a. Angel Villegas,
a.k.a. Kilo,

                                                             Defendant-Appellant.

                          ________________________

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

                                (March 7, 2017)

Before MARCUS, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
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         Following a conditional guilty plea, Rodolpho Cruz appeals his conviction

for conspiracy to distribute and to possess with intent to distribute five kilograms

or more of a mixture containing a detectable amount of cocaine. We affirm.

                                      I. BACKGROUND

         In November 2004, as part of an investigation into a drug-trafficking

organization believed to have been transporting large amounts of cocaine and

marijuana from Texas and California to Florida, the Drug Enforcement

Administration (“DEA”) obtained a search warrant for a tracking device for an

implicated black Range Rover. DEA agents began surveilling the Range Rover; on

November 22, 2004, at the request of a DEA agent, the Florida Highway Patrol

conducted a traffic stop of the vehicle. During the traffic stop, a drug dog alerted.

The Range Rover was driven to a gas station, where agents searched it and

discovered approximately $265,000 in United States currency in a hidden

compartment. The DEA seized the Range Rover and currency.

         Cruz was one of the passengers in the Range Rover. He falsely identified

himself to law enforcement officers as “Rodolpho Cruz.”1 The other occupants

were identified as Maria Uriarte (“Uriarte”), Prudencio Uriarte, and Jose Luis

Gutierrez. The occupants of the vehicle were interviewed and photographed; they

were not, however, arrested or fingerprinted.


1
    Cruz’s real name is Angel Villegas.
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      On November 17, 2005, a federal grand jury returned an indictment against

seventeen persons, not including Cruz. United States v. Espinoza-Salazar, No.

8:05-cr-498-T-17AEP (M.D. Fla. Nov. 17, 2005). Two of the defendants pled

guilty and assisted the government in identifying Cruz. On September 25, 2007, a

federal grand jury indicted Cruz with one count of conspiracy to distribute and to

possess with intent to distribute five kilograms or more of a mixture containing a

detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and

846. A warrant for his arrest was issued that day. On March 24, 2015, Cruz was

arrested in California; after entering his initial appearance, his case was removed to

the Middle District of Florida.

      Cruz moved to dismiss the indictment based on a violation of his

constitutional right to a speedy trial; he argued there was a constitutionally

impermissible delay between his indictment and arrest. He attached a report from

the National Crime Information Center (“NCIC”), produced by the government in

discovery, which contained his California arrest record and identified him as

“‘Angel Villegas’ a/k/a ‘Paul Solis.’” R. at 125. The NCIC report showed Cruz

was arrested in Lakewood, California, in June 2007, three months prior to the

filing of the indictment in this case. Using the case number provided in the NCIC

report, Cruz’s counsel stated he had located a three-page document providing

additional information about the case on the Los Angeles County Clerk of Superior

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Court website. Cruz’s counsel obtained photographs of Cruz, information about

his scheduled court dates, and information about the disposition of the case. Based

on the information contained in the NCIC report, which the government possessed,

Cruz argued he could have been found within minutes.

      The district judge held a hearing on Cruz’s motion to dismiss. The

government agreed, because it was undisputed the delay between the indictment

and arrest was too long, which placed the burden on the government to explain the

reason for the delay. The government presented the testimony of DEA Task Force

Officer Derek Pollack and Deputy United States Marshal Jeffery Lavallee. Agent

Pollack and Deputy Marshal Lavallee testified regarding the efforts the

government had undertaken to find Cruz before and after he was indicted and how

his use of aliases and false identifying information had stymied the government’s

efforts. Agent Pollack explained how, even after learning the defendant’s real

name, the government could not run an NCIC criminal-history report on him,

because more identifying information, such as a birthday, Social Security number,

or FBI number, would have been needed. Deputy Marshal Lavallee also explained

how Cruz’s use of multiple aliases had made it more difficult to try to locate him.

      Cruz’s stepdaughter, Sophia Alexandra Valencia Uriarte, testified on Cruz’s

behalf. She testified Cruz had lived with her mother, Uriarte, for the past eleven

years. She confirmed Cruz’s name would not have appeared on any records

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related to her mother’s address, where she claimed Cruz had lived for the past three

to four years.

       The district judge denied Cruz’s motion to dismiss his indictment. She

recognized the four-factor test established in Barker v. Wingo, 407 U.S. 514, 92 S.

Ct. 2182 (1972), and made findings as to each factor. 2 First, the judge found the

length of the post-indictment delay was sufficient to show presumptive prejudice

and weighed this factor against the government. Second, the judge concluded Cruz

was the primary cause of the delay and weighed this factor heavily against him,

because he intentionally had provided inaccurate information to law enforcement

to obscure his connection to the charged crime. The judge acknowledged the

government bore the burden of establishing valid reasons for the delay but

concluded he intentionally had inhibited the government’s efforts to apprehend

him, because Cruz had provided false identifying information to law enforcement.

Third, the judge acknowledged the government had conceded Cruz was not aware

of the indictment or warrant prior to his arrest and weighed this factor against the

government. Fourth, the judge found Cruz’s case did not involve the type of

extreme governmental negligence found in United States v. Doggett, 505 U.S. 647,

112 S. Ct. 2686 (1992), which would have relieved him of the need to show actual
2
  The four Barker factors courts use when analyzing a potential violation of a defendant’s right to
a speedy trial are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s
assertion of his right, and (4) whether the defendant had suffered actual prejudice because of the
delay. Barker, 407 U.S. at 530, 92 S. Ct. at 2192.

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prejudice, given the extent of the delay. Because the delay primarily was caused

by Cruz, the judge concluded the government had overcome the presumption of

prejudice. Therefore, Cruz was required to identify actual prejudice to his case

caused by the length of the delay, which he had not done.

         Cruz subsequently entered a conditional guilty plea to Count One of the

indictment and preserved his right to appeal the denial of his motion to dismiss.

Cruz was sentenced to 120 months of imprisonment followed by 5 years of

supervised release. On appeal, he argues the district judge erred in denying his

motion to dismiss the indictment based on a violation of his constitutional right to

a speedy trial, because the delay in excess of seven years between his indictment

and arrest, combined with the government’s negligence in its attempts to locate

him, eliminated his need to show he had suffered actual prejudice as a result of

delay.

                                  II. DISCUSSION

         Whether the government deprived a defendant of his constitutional right to a

speedy trial is a mixed question of law and fact. United States v. Villarreal, 613

F.3d 1344, 1349 (11th Cir. 2010). We review a district judge’s factual findings for

clear error and legal conclusions de novo. 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.” Id. (citation and internal

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quotation marks omitted). We accord substantial deference to a district judge as

factfinder in credibility determinations regarding witness testimony. Id.

      The Sixth Amendment to the Constitution provides: “In all criminal

prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. Const.

amend. VI. “Because of the unique policies underlying this right, a court must set

aside any judgment of conviction, vacate any sentence imposed, and dismiss the

indictment if it finds a violation of the defendant’s right to a speedy trial.”

Villarreal, 613 F.3d at 1349. In Barker, the Supreme Court established a four-part

balancing test to determine whether delay in a defendant’s trial caused a

deprivation of the constitutional right to a speedy trial. Id. at 1350. “The

balancing test requires us to weigh the following four factors: (1) the length of the

delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a

speedy trial, and (4) the actual prejudice borne by the defendant.” Id.

(citing Barker, 407 U.S. at 530, 92 S. Ct. at 2192).

      If the first three factors uniformly weigh heavily against the government,

then the defendant need not demonstrate actual prejudice. United States v. Dunn,

345 F.3d 1285, 1296 (11th Cir. 2003). Additionally, “[i]n the absence of proof of

particularized prejudice, government negligence and a substantial delay will

compel relief unless the presumption of prejudice is either extenuated, as by the

defendant’s acquiescence, or persuasively rebutted by the Government.” United

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States v. Clark, 83 F.3d 1350, 1353 (11th Cir. 1996) (citation, internal quotation

marks, and alteration omitted). In cases of government negligence, the concern for

actual prejudice decreases as the period of delay increases. Id.; see also Doggett,

505 U.S. at 657, 112 S. Ct. at 2693 (“[T]he weight we assign to official negligence

compounds over time as the presumption of evidentiary prejudice grows.”). In

Doggett, the Supreme Court held a delay of eight and a half years, caused solely by

government negligence, was sufficiently long to eliminate the need for proof of

particularized prejudice. Doggett, 505 U.S. at 657-58, 112 S. Ct. at 2694.

      The first Barker factor, delay, serves a triggering function; unless the length

of the delay is presumptively prejudicial, this court need not consider the

remaining factors. Dunn, 345 F.3d at 1296. A delay of one year is considered

presumptively prejudicial. Id. The delay of over seven years between Cruz’s

indictment and his arrest was significantly greater than one year, which makes it

presumptively prejudicial and weighs heavily against the government. Id.

      Under the second Barker factor, different reasons for delay are accorded

different weights. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. Negligence is a

more neutral act that should not be weighed as heavily as acts done in bad faith.

Id. The burden is on the government to explain the cause of any pretrial delay.

United States v. Ingram, 446 F.3d 1332, 1337 (11th Cir. 2006). Although we have

held defendants were not culpable for post-indictment delay in cases where those

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defendants were not aware of the indictment, neither our court nor the Supreme

Court affirmatively has held knowledge of the indictment is a prerequisite to a

finding of culpability, where a defendant nonetheless intentionally evades law

enforcement. Id. at 1337-38 (holding a district judge erred in holding a defendant

culpable where there was no evidence the defendant knew of the indictment or

warrant; also noting there was no evidence the defendant was aware law

enforcement was looking for him); see Doggett, 505 U.S. at 654, 112 S. Ct. at 2691

(holding a defendant could not be faulted for post-indictment delay, because there

was no evidence he was aware of the indictment or the police had been looking for

him).

        In this case, the government has provided a sufficient explanation for the

delay. Ingram, 446 F.3d at 1337. The district judge did not err in concluding Cruz

was culpable in causing the delay by providing false identifying information to law

enforcement, nor did the judge err in concluding the government had acted with

reasonable diligence in its attempt to locate Cruz. The second factor weighs

against Cruz.

        Regarding the third Barker factor, a defendant’s assertion of his speedy trial

right is often “entitled to strong evidentiary weight in determining whether a

defendant is being deprived of the right,” because a timely demand for a speedy

trial often supports an inference the defendant was not at fault for the delay, and

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the delay prejudiced the defendant. Villarreal, 613 F.3d at 1353-54 (citation and

internal quotation marks omitted). A defendant’s “failure to make a demand can

hardly be counted against the defendant during those periods when he was unaware

charges had been lodged against him.” Id. at 1354 (citation and internal quotation

marks omitted); see also Ingram, 446 F.3d at 1338, 1340 (weighing this factor

“heavily against the Government,” where the defendant asserted his right to a

speedy trial soon after learning of the indictment and arrest warrant but had failed

to do so beforehand). The government concedes Cruz was unaware of the

indictment until after he was arrested in 2015.

      Because the first three Barker factors do not uniformly weigh heavily

against the government, Cruz was required to demonstrate actual prejudice. Dunn,

345 F.3d at 1296. Although Cruz argues the government’s negligence in trying to

locate him, combined with the length of the delay, eliminated the need for

particularized prejudice in his case under Clark and Doggett, this argument is

unavailing. See Clark, 83 F.3d at 1353-54 (citing Doggett, 505 U.S. at 657-58, 112

S. Ct. at 2694) (holding a substantial delay caused solely by government

negligence eliminated the need for proof of particularized prejudice). Any

government negligence in creating the delay in this case was minimal, if it existed

at all, and Cruz contributed to the delay by providing the police with false




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identifying information. Consequently, the district judge correctly denied Cruz’s

motion to dismiss his indictment.

       AFFIRMED.




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