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SJC-11705
SJC-11707

                  COMMONWEALTH vs. NICKOYAN WALLACE
                        (and a companion case1).



            Suffolk.    February 4, 2015. - June 30, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
                                  JJ.


Homicide. Constitutional Law, Speedy trial, Delay in
     commencement of prosecution. Due Process of Law, Delay in
     commencement of prosecution. Practice, Criminal, Speedy
     trial, Delay in commencement of prosecution, Capital case.



     Indictments found and returned in the Superior Court
Department on May 22, 2002.

     Motions to dismiss, filed on June 18 and 28, 2010, were
heard by Charles J. Hely, J.

     An application for leave to prosecute an interlocutory
appeal in the companion case was allowed by Gants, J., in the
Supreme Judicial Court for the county of Suffolk, and the
appeals were consolidated and reported by him to the Appeals
Court. After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Norman S. Zalkind (Ruth O'Meara-Costello with him) for Timi
Wallace.

    1
        Commonwealth vs. Timi Wallace.
                                                                     2


     Matthew A. Kamholtz for Nickoyan Wallace.
     Sarah Montgomery Lewis, Assistant District Attorney, for
the Commonwealth.
     J. Anthony Downs, Samuel Sherry, Catherine Curley, Matthew
R. Segal, Jessie Rossman, & Chauncey B. Wood for American Civil
Liberties Union Foundation of Massachusetts & another, amici
curiae, submitted a brief.


     SPINA, J.    In this consolidated interlocutory appeal, we

consider whether the Commonwealth's delay in obtaining custody

of the defendants Nickoyan Wallace (Nickoyan) and Timi Wallace

(Timi),2 brothers, from Federal prison authorities impermissibly

affected their right to a speedy trial.     In considering this

question in motions to dismiss due to delays totaling more than

nine years,3 a judge of the Superior Court found that Timi's

right to a speedy trial had not been violated but that of

Nickoyan had.    A single justice of this court allowed the

interlocutory appeals of Timi and the Commonwealth, consolidated

the cases, and reported them to the Appeals Court.    The Appeals

Court held that the Commonwealth had not violated the speedy

trial right of either brother, affirming the denial of Timi's

motion and reversing the allowance of Nickoyan's.     Commonwealth

v. Wallace, 85 Mass. App. Ct. 123 (2014).    This court granted

     2
       The victim and defendants are brothers and share the same
surname. Accordingly, we refer to them by their first names
where possible to avoid confusion.
     3
       The total delays in these cases are over nine years. To
avoid confusion, at various points in this opinion we focus our
analysis on smaller portions of the total delays. The total
delays for both cases remain the same.
                                                                    3


the brothers' applications for further appellate review.      We

affirm the decision of the trial court to deny Timi's motion and

to allow Nickoyan's motion.4

     1.   Background.   The essential facts are not in dispute,

and we recite them as the motion judge found, reserving further

details for discussion of the specific issues raised.    On

March 26, 2000, the victim, Tasfa Wallace, was shot to death

through the door of his apartment.   Moments before the shooting,

the victim's girl friend had answered knocking at the door and

had seen Timi and Nickoyan, the victim's brothers, through the

door's peephole.   Other witnesses saw Timi and Nickoyan entering

and leaving the building at the time of the shooting.    The next

day, March 27, criminal complaints accusing Nickoyan and Timi of

murder in the first degree issued from the Dorchester Division

of the Boston Municipal Court Department.   Boston police

officers searching for Timi and Nickoyan could not find them and

subsequently learned that both brothers had fled the

Commonwealth.

     In April, 2000, the United States District Court for the

District of Massachusetts issued Federal fugitive warrants

naming the defendants and accusing them of the Federal charge of

unlawful interstate flight to avoid prosecution.   As a result of

     4
       We acknowledge the amicus brief filed by the American
Civil Liberties Union Foundation of Massachusetts and the
Massachusetts Association of Criminal Defense Lawyers.
                                                                      4


the entry of Federal officials into the search, the focus

quickly narrowed on the possibility that the defendants were in

Providence, Rhode Island.   On September 25, the defendants

committed an armed robbery of a gun store in Providence.       Days

later, on October 5, law enforcement officials arrested Nickoyan

at an apartment in Providence.    As police surrounded the

apartment to arrest him, Nickoyan was able to telephone Timi.

Timi fled and was not arrested until July 20, 2004.     Both

defendants were indicted for armed robbery and related charges

by a Federal grand jury on October 18, 2000.

    Nickoyan was arraigned on the Federal armed robbery charges

on October 26, 2000, and placed in pretrial custody.     Nickoyan's

trial ended in a conviction on November 8, 2001, and his

sentence of seventeen years began on March 19, 2002.    Nickoyan

immediately appealed from his convictions.     The United States

Court of Appeals for the First Circuit affirmed his conviction

in August, 2003.   United States v. Wallace, 71 Fed. Appx. 868

(1st Cir. 2003).

    Timi's arrest, arraignment, and trial in Federal court came

soon thereafter.   Timi was convicted and began his sentence of

twenty-five years on January 21, 2005.    He also immediately

appealed from his conviction.    The First Circuit affirmed his

convictions in August, 2006.     United States v. Wallace, 461 F.3d

15 (1st Cir. 2006).   Both defendants also pursued appeals
                                                                     5


collaterally attacking the propriety of their sentences.     See

United States v. Wallace, 573 F.3d 82 (1st Cir.), cert. denied,

558 U.S. 1036 (2009); United States vs. Wallace, No. 06-2606

(1st Cir. May 23, 2008).

    Following Nickoyan's Federal trial, a Massachusetts grand

jury issued indictments against Nickoyan and Timi accusing them

of the murder of Tasfa.    Electronic mail messages obtained from

the district attorney's office demonstrate that prosecutors were

aware that both Nickoyan and Timi were in Federal custody.     The

case was assigned to several assistant district attorneys over

the period from 2000 until 2007.   Not until 2009 did prosecutors

initiate the necessary steps to gain custody of Nickoyan and

Timi from Federal prison authorities under the Interstate

Agreement on Detainers (IAD).    St. 1965, c. 892, § 1.   Detainers

against both Nickoyan and Timi were issued on July 16, 2009.

Nickoyan was arraigned in Superior Court on December 9, 2009,

and Timi on November 25, 2009.

    2.    Interstate Agreement on Detainers.   As we previously

have explained, the IAD establishes the "procedures by which one

jurisdiction may obtain temporary custody of a prisoner

incarcerated in another jurisdiction for the purpose of bringing

that prisoner to trial."   Commonwealth v. Copson, 444 Mass. 609,

611 (2005), quoting Cuyler v. Adams, 449 U.S. 433, 436 n.1

(1981).   The IAD only applies to persons who have "entered upon
                                                                     6


a term of imprisonment in a penal or correctional institution of

a party state."   St. 1965, c. 892, § 1, art. III (a).   The

Federal government is a party State.    Id. at § 1, art. II (a).

    The necessary first step to applicability of the IAD is the

filing of a detainer by the jurisdiction seeking custody.      See

St. 1965, c. 892, § 1, art. I (regulating determination of

status of any and all detainers).    A detainer is "a legal order

that requires a State in which an individual is currently

imprisoned to hold that individual when he has finished serving

his sentence so that he may be tried by a different State for a

different crime."   Copson, supra at 611 n.1, quoting Alabama v.

Bozeman, 533 U.S. 146, 148 (2001).   Once a detainer is filed,

the IAD governs the procedures by which either a party State or

a prisoner may request the disposition of any untried charges.

Copson, supra at 611.   If a party State requests custody of a

prisoner to pursue untried charges, trial must commence within

120 days of arrival of the prisoner in the receiving State.      St.

1965, c. 892, § 1, art. IV (c).   If a prisoner against whom a

detainer is filed requests disposition of untried charges, the

party State filing the detainer must bring the detainer to trial

within 180 days of the delivery of the prisoner's request to the

prosecuting officer and the appropriate court.    Id. at § 1, art.

III (a).   Failure to abide by either of these time limits
                                                                     7


requires that the party State filing the detainer dismiss the

charges with prejudice.     Id. at § 1, art V (c).

    3.   Discussion.     The defendants allege that their right to

a speedy trial under the Sixth Amendment to the United States

Constitution and art. 11 of the Massachusetts Declaration of

Rights has been violated by the years-long delays between the

issuance of the criminal complaints accusing them of the murder

of their brother and their arraignments for that crime.     In

reviewing a motion to dismiss because of a speedy trial

violation, we give deference to the findings of the motion

judge, but we may reach our own conclusions.     See Commonwealth

v. Martin, 447 Mass. 274, 280 (2006).     "Simply to trigger a

speedy trial analysis, an accused must allege that the interval

between accusation and trial has crossed the threshold dividing

ordinary from 'presumptively prejudicial' delay."     Doggett v.

United States, 505 U.S. 647, 651-652 (1992), citing Barker v.

Wingo, 407 U.S. 514, 530-531 (1972).     When a defendant has

demonstrated an unreasonable delay giving rise to the

possibility of prejudice, we utilize the four-factor balancing

test first set out in Barker to determine whether the

defendant's constitutional right to a speedy trial has been

violated by the delay.     Doggett, supra at 651, citing Barker,

supra at 530.   The presumption of prejudice derived from a delay

cannot be the sole basis of a speedy trial claim but rather is
                                                                       8


"part of the mix of relevant facts."      Doggett, supra at 655-656.

In determining whether the right to a speedy trial has been

violated, we must weigh (i) the length of the delay, (ii) the

reasons for the delay, (iii) the defendants' assertions of their

right to a speedy trial, and (iv) the prejudice to the

defendants (through the lens of Doggett).       See Commonwealth v.

Butler, 464 Mass. 706, 714-715 (2013).     See also Barker, supra

at 530-533.    While we ultimately decide this case under the

right to a speedy trial enshrined in art. 11, the analysis is

analogous to that of the Federal right.      Butler, supra at 709

n.5.

       a.   Length of the delays.   Length of delay "is actually a

double enquiry."     Doggett, 505 U.S. at 651.   An unreasonable

delay is the trip wire giving rise to speedy trial analysis.

Id.    In Massachusetts, we calculate this time beginning from the

moment of formal accusation -- in this case, from the moment the

criminal complaints issued from the Boston Municipal Court on

March 27, 2000.    Butler, 464 Mass. at 713.5    The almost ten-year

delays certainly are sufficient to trigger a speedy trial

       5
       Less clear in this instance is whether the clock tolls at
the filing of the detainer for both defendants in July, 2009, as
urged by the Commonwealth, or their arraignments in late 2009,
as the defendants would have it. The nearly six month
difference is immaterial in our analysis given the total delays
of over nine years, and we need not decide this question on
these facts. We note that the Interstate Agreement on Detainers
(IAD) itself does not set a time limit on when a detainer must
be filed. See St. 1965, c. 892, § 1.
                                                                    9


analysis under Barker.   See Doggett, supra at 652 (delay of

eight and one-half years); Butler, supra at 715 (ten-year

delay).

     We additionally weigh them independently as a factor.

Doggett, supra at 651-652.   The delays are weighted according to

the reasons put forth for their justification under the second

factor.   Barker, 407 U.S. at 531.    In any instance, these delays

weigh against the Commonwealth.6

     b.   Reasons for the delays.    The reason for the delay is

the "flag all litigants seek to capture."     United States v. Loud

Hawk, 474 U.S. 302, 315 (1986).     Weighing most heavily against

the government are deliberate attempts at delay.     Barker, 407

U.S. at 531.   Of equal weight but opposite import to a defendant

are "delays requested or otherwise orchestrated by the

defendant, such as evading capture by authorities."

Commonwealth v. Carr, 464 Mass. 855, 861 (2012).     The more

neutral reasons "such as negligence or overcrowded courts should

be weighed less heavily but nevertheless should be considered

since the ultimate responsibility for such circumstances must




     6
       As noted by the defendants, this factor measures the total
delay from formal accusation. The assignment of reasons for a
particular part of the delay remains the second prong of the
analysis under Barker v. Wingo, 407 U.S. 514, 530 (1972). See
Commonwealth v. Carr, 464 Mass. 855, 861 (2013) (measuring
entirety of delay caused by defendant's flight).
                                                                   10


rest with the government rather than with the defendant."

Barker, supra at 531.

    The defendants both urge that the only part of the delays

that should be attributed to them is the period between the

issuance of the complaints and their individual arrests.     For

Nickoyan, this period is about six months, and for Timi, this

period is just over four years.   The brothers urge that the

reason for the remaining delays is wholly attributable to the

Commonwealth.

    We do not interpret the delays as the defendants urge.

While we agree that the delays between issuance of the

complaints and their arrests are attributable to the defendants

due to their flight, we do not think their complicity in the

orchestration of the delays stops there.   Both Timi and Nickoyan

claim that because they were arrested on fugitive warrants

issued due to Massachusetts charges but were first subjected to

trial on the Federal armed robbery indictments, the delays from

Federal arraignment to Federal sentencing should not count

against them.   Rather, they argue, the reason for the delays

rests with the Commonwealth because the Commonwealth failed to

assert its primacy in prosecuting the brothers.

    We will not fault the Commonwealth for not insisting on

being the first in line to prosecute a fugitive in out-of-State

Federal custody who has committed additional serious crimes
                                                                  11


while in flight.   Instead, we view the defendants' Federal trial

as an extension of their conscious decision to flee prosecution

and commit the intervening crime.   Indeed, were we to view the

situation in the light now urged by the defendants and require

the Commonwealth to bring its case before the Federal

prosecution, it is difficult to see how they would not attempt a

similar claim of a violation of the speedy trial right at the

Federal level in this scenario because Federal authorities would

have relinquished in-hand custody of the defendants only to try

them at a later date after their Massachusetts trial.

Furthermore, the judge took judicial notice from personal

experience of the difficulty of obtaining prisoners in Federal

custody while Federal authorities were actively prosecuting

those prisoners.   The period between Federal arraignment and

Federal sentencing must weigh against the defendants.   Cf.

United States v. Grimmond, 137 F.3d 823, 828 (4th Cir.), cert.

denied, 525 U.S. 850 (1998) ("Simply waiting for another

sovereign to finish prosecuting a defendant is without question

a valid reason for delay").   Cf. also Commonwealth v. Domanski,

332 Mass. 66, 72 (1954); Ableman v. Booth, 62 U.S. (21 How.)

506, 524 (1858) ("No judicial process, whatever form it may

assume, can have any lawful authority outside of the limits of

the jurisdiction of the court or judge by whom it is issued . .

.").
                                                                   12


    More difficult to weigh is the period after the defendants'

Federal sentencing when they became subject to the IAD.   The

motion judge found this period to be characterized by a

"cumulative lack of attention by the [d]istrict [a]ttorney's

[o]ffice to the duty to file detainers in this case within a

reasonable time."   In Nickoyan's case, this cumulative lack of

attention lasted over seven and one-half years, enough for the

judge to determine Nickoyan's right to a speedy trial had been

violated.   Nickoyan, of course, urges that the motion judge was

correct in this finding.   Timi's delay between sentencing and

the filing of the detainer was shorter, just over four years.

The motion judge found that Timi's right to a speedy trial had

not been violated because the part of the delay caused by Timi's

deliberate flight was longer than that caused by the

government's neglect in filing a detainer.

    Timi argues that this delay should weigh heavily enough

against the Commonwealth to warrant reversal.   He points out

that the years-long failure to gain custody indicates the low

prosecutorial priority to bring him to trial and that the

failure of each successive assistant district attorney to act

should compound the failure of the previous one.   Moreover, he

disputes the motion judge's calculations of the length of delay
                                                                   13


weighing against him and the Commonwealth.7   Finally, he says

that the Commonwealth's failure even to attempt to procure him

prior to his Federal sentencing should cause the delay after

sentencing to weigh even more heavily against the Commonwealth.

     While we acknowledge the validity of Timi's arguments with

the exception of the judge's calculations of the delay, we do

not grant them the weight he would have us give them.    We have

already stated that the moment of formal accusation marks the

beginning of the calculation of delay.    Likewise, we have

discussed the issue of Federal authorities pursuing a

prosecution prior to the Commonwealth.    The delay caused by Timi

from his flight through his Federal sentencing is roughly

commensurate with the Commonwealth's delay in filing a detainer.

These comparable delays are not weighed equally, however.

Timi's deliberate orchestration of the delay weighs more heavily

than the Commonwealth's mere neglect.    Accordingly, the reason

for the entirety of the delay -- as set out in Barker -- must

ultimately lie at Timi's feet due to the greater weight placed

on his contribution to the delay.




     7
       Timi argues that the period of about eight months between
the vacation of his sentence by the Federal Court of Appeals and
his resentencing should not be weighed against him as the motion
judge did. We agree with the motion judge that this time should
count against him, as it is a consequence of his deliberate
action while fleeing the Massachusetts charges.
                                                                  14


    The reason for delay in Nickoyan's case does not require

such fine balancing of weights.   The delay of seven and one-half

year between Federal sentencing and the detainer seems excessive

and the motion judge counted the length of time heavily.    The

Commonwealth argues that the explanation of this delay lies in a

confluence of individual factors that make the Commonwealth's

delay less egregious, if not outright excusable.   While we do

agree with the Commonwealth that the fault is not so indivisible

and uniform as Nickoyan would have us view it, we look with

extreme disfavor on a delay of this length.

    The Commonwealth puts forth the initial premise that its

intent throughout the entirety of this case was to try both

defendants together.   The judge recognized that such a desire

could permit some delay.   Indeed, from a case management

perspective, such a desire would seem eminently logical.    The

brothers are accused of acting in concert at the same place and

at the same time.   A prosecution of one would involve almost

entirely the same evidence that could be used against the other.

The idea that the delay in attempting to coordinate the custody

of codefendants so that the government might jointly prosecute

them for substantially the same criminal offense arising from

the same set of facts has some support in Sixth Amendment

jurisprudence.   See United States v. Casas, 425 F.3d 23, 34 (1st

Cir. 2005), cert. denied, 547 U.S. 1061 (2006) ("the joint
                                                                   15


prosecution of defendants involved in the same drug trafficking

conspiracy is justified as a means of serving the efficient

administration of justice").   Cf. Parker v. United States, 404

F.2d 1193, 1196 (9th Cir. 1968) (substantial public interest in

joint trials because joinder "expedites the administration of

justice, reduces the congestion of trial dockets, conserves

judicial time, lessens the burden upon citizens who must

sacrifice both time and money to serve upon juries, and avoids

the necessity of recalling witnesses who would otherwise be

called upon to testify only once").    We do not go so far as to

say that the interest in jointly trying codefendants should or

can rationalize a seven-year delay.    Rather, we recognize that

some delay may sometimes be justified when seeking to satisfy

the public interest in this respect.   It is not so justified

here.

    Having accepted the premise that serving the public

interest through a joint trial was the Commonwealth's

overarching goal, we can analyze its actions with more nuance.

The Commonwealth stresses that its major concern with filing a

detainer was the invocation of the speedy trial provisions of

the IAD by one of the defendants.   In such a circumstance, the

Commonwealth understood that it had to commence trial within 120

days of the receipt of a request by a prisoner to dispose of the

detainer or risk dismissal of the charges with prejudice.   With
                                                                    16


such a drastic scenario of dismissal hanging in the balance of

the decision of when to file a detainer, the Commonwealth acted

cautiously in proceeding against the defendants.    A hasty or

ill-timed move on the part of the prosecution would result in

the complete inability to pursue the serious charge of murder in

the first degree.    Barker itself recognized that the underlying

charge can have an effect on the leeway a reviewing court will

give the government in analyzing a speedy trial challenge.

Barker, 407 U.S. at 531 ("To take but one example, the delay

that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy

charge").

    Yet the important fact remains that the Commonwealth could

have filed a detainer against Nickoyan at any time

postsentencing because he was serving a "term of imprisonment"

under the IAD but did not do so.    St. 1965, c. 892, § 1, art.

III (a).    Notwithstanding the early applicability of the IAD,

the Commonwealth operated under a legally mistaken impression

that a request for the transfer of custody of the defendants

from the Federal authorities was not a practical option until

the dust from the posttrial motions and appeals had settled.      If

the Commonwealth was waiting for a moment when it could be

reasonably certain it would gain custody of both defendants at

the same time to try them within the time prescribed by the IAD,
                                                                   17


we can certainly entertain that the Commonwealth erred on the

side of what it viewed as reasonable caution, especially in

light of, as further urged by the Commonwealth, the more

immediate and pressing caseload of the assistant district

attorneys.   While we appreciate Nickoyan's implicit assertion

that the delay attributed to Timi cannot also weigh against him,

the fact remains that their cases are essentially the same and

the degree of fault attributable to the Commonwealth cannot be

viewed through a lens that does not take into consideration the

confusion that flowed from the defendants' efforts to avoid

prosecution.

       None of these factors individually or collectively,

however, can change the fact that the reason for the delay after

Federal sentencing in Nickoyan's case is ultimately the

Commonwealth's negligence.   We emphasize this point.   As we have

explained, determining the ultimate reason for the delay in

Nickoyan's case requires us to balance a two-year delay

resulting from deliberate flight and a Federal trial with the

seven-year long negligence of the Commonwealth to bring charges.

This balance is not the simple math that seven is greater than

two.   Nickoyan's deliberate actions weigh far more heavily than

the Commonwealth's failures, but even accepting the

Commonwealth's justifications, the seven years of prosecutorial

inaction are excessive and outweigh that part of the delay
                                                                        18


attributable to Nickoyan.      We agree with the trial judge,

however, that the delay occasioned by the Commonwealth was not

deliberate, but negligent.      The reason for the delay in

Nickoyan's case lies at the Commonwealth's feet.

       c.   Defendants' assertion of their speedy trial right.

"[A] defendant's assertion of his speedy trial right . . . is

entitled to strong evidentiary weight," but "the failure to

assert the right will make it difficult for a defendant to prove

that he was denied a speedy trial."      Barker, 407 U.S. at 531-

532.    While it is not necessary that "a defendant must storm the

courthouse and batter down the doors to preserve his right to a

speedy trial," we do require some affirmative action.         Butler,

464 Mass. at 716.     We keep in mind the presumption that inaction

cannot constitute waiver of a constitutional right.      See Barker,

supra at 525-526.     The parties do not dispute that neither Timi

nor Nickoyan asserted a right to a speedy trial prior to the

motion to dismiss.

       The motion judge found that Timi and Nickoyan never took

any steps consistent with an assertion of a right to a speedy

trial.      Both defendants were aware that the Boston police were

looking for them when they fled the Commonwealth in 2000.

Additionally, Timi was informed on the record at both his

Federal arraignment and sentencing of the existence of murder

charges in Massachusetts.      Furthermore, Timi and Nickoyan
                                                                   19


refused to sign a form requesting a speedy disposition of the

charges after the detainer had been filed.

    Timi and Nickoyan argue that the failure of each to assert

his right to a speedy trial should not weigh against him until

he had formal notice of the indictment against him, a moment

that occurred much later in the period in question.    Judging the

defendant's assertion of the right to a speedy trial only after

formal notice of the indictment creates a standard that elevates

form over substance.    We decline to adhere to a rule requiring

receipt of formal notice, nor do we think the defendants'

position finds support in case law.    The right to a speedy trial

attaches upon formal accusation, Butler, 464 Mass. at 713, here,

the issuance of the complaints of which the defendants had

notice.   From his flight to evade prosecution after the murder

of his brother as well as the multiple times he was informed of

the existence of murder charges in Massachusetts during the

process of his Federal trial, we reasonably can infer that Timi

had sufficient notice of the charges against him to weigh his

failure to assert his right to a speedy trial in the

Commonwealth's favor.

    Similarly unavailing is Nickoyan's claim that he lacked

formal notice of the indictment against him and that the

Commonwealth deliberately withheld information of the charge

from him.   We see no evidence in the record before us that the
                                                                   20


Commonwealth deliberately hid the fact of the indictment from

Nickoyan as he argues.   At his arraignment on the Federal armed

robbery charges in October, 2000, the fact that Nickoyan was

wanted as a fugitive from a murder charge in Massachusetts was

part of the government's argument as to why Nickoyan should not

be released from pretrial custody.   We again reject the argument

that the lack of formal notice of the indictment relieves a

defendant of the impact of a failure to assert the right to a

speedy trial for the length of time at issue here.8

     Timi and Nickoyan counter that they still should not be

faulted because they were unrepresented on the murder charges

and were unaware of the right to a speedy trial.   In weighing

the impact of the defendants' failure to assert their right to a

speedy trial, representation by counsel and awareness of the

right are factors in the analysis but not prerequisites.   The

     8
       It is important to understand that in the circumstances
here, a complaint for murder in the Boston Municipal Court has
functional significance under the IAD on detainers. For
example, if a murder complaint were pending in the Boston
Municipal Court or a District Court, a defendant would be
entitled, upon notice under the IAD, to a probable cause hearing
under Mass. R. Crim. P. 3 (f), as appearing in 442 Mass. 1502
(2004), within the time provided for trial under the IAD. If,
after hearing, no probable cause were found, the defendant would
have to be returned to the host State. If after hearing
probable case were found, the Commonwealth would have to obtain
an indictment and commence trial thereon conformably with the
IAD. Alternatively, in lieu of a probable cause hearing, the
Commonwealth could satisfy the requirements of the IAD by
obtaining an indictment and dismissal of the murder complaint,
and by commencing trial on the indictment within the time
provided under the IAD.
                                                                   21


defendants would have the Commonwealth affirmatively demonstrate

that they were aware of the right to a speedy trial in order for

the failure to assert it to weigh against them.    See

Commonwealth v. Blaney, 5 Mass. App. Ct. 96, 98 (1977) (no

indication defendant was aware of right to speedy trial).

    In this case, we think such an inquiry unnecessary, and

thus, we decline to accept the defendants' contention.    At his

Federal arraignment, the judge acknowledged Nickoyan's oral

request for a speedy trial.   Nickoyan was not unfamiliar with

the legal process -- he filed a private suit against one of the

assistant district attorneys in this case.    Nickoyan also

refused to sign a form requesting prompt disposition of the

charges after the detainer had been filed.    In these

circumstances, we think it unlikely that Nickoyan was so naive

as to the legal process that his lack of counsel on the State

charges and claimed ignorance of the right to a speedy trial

should obviate his failure to assert the right.

    Similarly, Timi was not unaware of his right to a speedy

trial.   He chose not to exercise it.   At his Federal

resentencing following a successful appeal, Timi's counsel

argued that the pendency of a seven year old murder charge

should not impact any new sentence imposed.    Counsel

specifically referenced the IAD and its speedy trial provision.

When finally confronted with the opportunity to address the
                                                                    22


murder charges after a detainer had been filed, Timi refused to

sign the form.   If we can draw any inference from his actions,

we cannot conclude that Timi acted with the caution that he

claims might be expected from an unrepresented defendant but

that Timi hoped to avoid prosecution for as long as possible.

    To emphasize, the failure by the defendants to assert their

speedy trial right is not a waiver of the right itself but

simply a factor to be weighed.   "The speedy trial right is not

one which may be kept in reserve in the event that one's belief

that the prosecution has overlooked or decided not to pursue his

case proves to be erroneous."    Commonwealth v. Look, 379 Mass.

893, 901, cert. denied, 449 U.S. 827 (1980).    Here, we find it

difficult to accept the defendants' claims of ignorance as the

source of their failure to assert the right.    Instead, we infer

an effort to "fly under the radar."     Butler, 464 Mass. at 717.

Accordingly, this factor weighs against the defendants more than

the Commonwealth but not heavily so.    We reiterate that weighing

the failure to assert the right is not akin to wholesale waiver.

    d.   Prejudice to the defendants.    This case fundamentally

turns on the characterization of the Commonwealth's conduct from

the time of the defendants' Federal sentencing until their

arraignment in Superior Court and the effect of this delay on

the basic interests the Sixth Amendment and art. 11 were

designed to protect.   The motion judge likened the
                                                                    23


Commonwealth's failure to file a detainer under the IAD to

neglect.    This determination is entitled to deference.   See

Commonwealth v. Martin, 447 Mass. 274, 284 (2006).    The Supreme

Court has noted that prosecutorial negligence falls in the

middle ground of the spectrum bookended by prosecutorial

diligence and bad faith delay.    See Doggett, 505 U.S. at 656-

657.    However, official negligence "falls on the wrong side of

the divide between acceptable and unacceptable reasons for

delaying a criminal prosecution once it has begun."     Id. at 657.

"[S]uch is the nature of the prejudice presumed that the weight

we assign to official negligence compounds over time as the

presumption of evidentiary prejudice grows."    Id.   Judicial

tolerance of such negligence "varies inversely with its

protractedness . . . and its consequent threat to the fairness

of the accused's trial" (citation omitted).    Id.

       Here the only time in question possibly attributable to the

Commonwealth -- and thus giving rise to the presumption of

prejudice -- is the time between Federal sentencing and

arraignment in this case.    For Timi, this period was over four

years.    For Nickoyan, it was approximately seven years and three

months.    The motion judge characterized this delay as the

"result of a cumulative lack of attention by the [d]istrict

[a]ttorney's [o]ffice to the duty to file detainers in this case

within a reasonable time."
                                                                      24


    In Doggett, Federal officials attempted to arrest the

defendant by going to his parents' residence.    505 U.S. at 649.

Informed that the defendant had left the country a few days

earlier, the government placed the defendant's name in a

database designed to alert when he reentered the country.       Id.

Subsequently, the investigating officers discovered that the

defendant was serving a sentence in a foreign prison.     Id.

Despite a promise to expel the defendant to the United States

upon his release, officials in the foreign jurisdiction allowed

the defendant instead to go to a different country.     Id.

Meanwhile, the alerts in the central database had expired.       Id.

One year later, the defendant returned to the United States,

earned a college degree, married, lived openly under his own

name, and stayed within the law.   Id.    Federal officials,

meanwhile, had learned of his entry into the third country but

not of his return to the United States.     Id. at 649-650.    It was

only after officials ran a credit check on persons named in

outstanding warrants that the defendant was discovered,

arrested, and arraigned.   Id. at 650.

    This discovery, arrest, and arraignment took place eight

and one-half years after his indictment and six years after his

return to the United States and subsequent adoption of a law-

abiding lifestyle.   The defendant moved for a dismissal of the

charges against him based on a violation of his Sixth Amendment
                                                                       25


right to a speedy trial.    Id.   The Federal District Court denied

his motion because, although the defendant was blameless for the

delay and the government's negligence was entirely to blame, the

defendant could not show any particular prejudice to his

defense.    Id.

    The Supreme Court disagreed.      Id. at 651.   Although the

defendant could not show any particularized prejudice, the lapse

of time had entitled him to the rebuttable presumption of

prejudice.    Id. at 657-658.   The unreasonable delay between

formal accusation and trial can produce more than one sort of

harm, "including oppressive pretrial incarceration, anxiety and

concern of the accused, and the possibility that the accused's

defense will be impaired by dimming memories and the loss of

exculpatory evidence" (quotations and citations omitted).        Id.

at 654.    Accord Commonwealth v. Hanley, 337 Mass. 384, 387,

cert. denied, 358 U.S. 850 (1958) (giving same rationale for

speedy trial right).   "Of these forms of prejudice, 'the most

serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the entire

system.'"    Doggett, supra, quoting Barker, 407 U.S. at 532.      The

court held that the government had not persuasively rebutted the

presumption of prejudice.    Doggett, supra at 658 n.4.

    The defendant in Doggett had been unaware of the

indictments against him.    Id. at 653-654.   It was this lack of
                                                                  26


awareness coupled with the delay that impacted one of the

interests protected by the speedy trial right -- the impairment

of the accused's defense.   In explaining how delay and lack of

knowledge can impair a defense, Justice Douglas, in a concurring

opinion discussing the application of the right to a speedy

trial to delays that occur before formal accusation, quoted the

following explanation:

         "Indeed, a suspect may be at a special disadvantage
    when complaint or indictment, or arrest, is purposefully
    delayed. With no knowledge that criminal charges are to be
    brought against him, an innocent man has no reason to fix
    in his memory the happenings on the day of the alleged
    crime. Memory grows dim with the passage of time.
    Witnesses disappear. With each day, the accused becomes
    less able to make out his defense. If during the delay,
    the Government's case is already in its hands, the balance
    of advantage shifts more in favor of the Government the
    more the Government lags. Under our constitutional system
    such a tactic is not available to police and prosecutors."

United States v. Marion, 404 U.S. 307, 331 n.3 (1971) (Douglas,

J., concurring in the result), quoting Nickens v. United States,

323 F.2d 808, 813 (1963) (Wright, J., concurring in the result).

    This explanation starkly underscores the conflict the

presumption of prejudice seeks to overcome.   To maintain the

relative positions of the parties as if no delay had occurred,

there exists a presumption of prejudice to balance against a

recognized but unquantifiable governmental advantage growing
                                                                       27


with the passage of time.9   See Dickey v. Florida, 398 U.S. 30,

54-55 (1970) (Brennan, J., concurring) ("Because potential

substantial prejudice inheres in the denial of any of these

safeguards, prejudice is usually assumed when any of them is

shown to have been denied").   With this goal in mind, we can

easily recognize that the contours of the various concerns that

affect prejudice are dynamic and fact-specific.

     The Supreme Court recognized that the presumption of

prejudice may not always carry the day for a defendant.     The

prosecution may yet still persuasively rebut the presumption of

prejudice.   See Doggett, 505 U.S. at 658 ("when the presumption

of prejudice, albeit unspecified, is neither extenuated, as by

the defendant's acquiescence . . . nor persuasively rebutted,

the defendant is entitled to relief" [footnotes omitted]).        We

defer to the motion judge's determination that the defendants

did not suffer oppressive pretrial incarceration or anxiety and

concern due to the delay.    Therefore, the Commonwealth

persuasively must rebut the presumption that the delay has

prejudiced the ability to present a meaningful defense.




     9
       Clearly, a delay also can impair the prosecution's case.
In a speedy trial analysis, a necessary precondition is that the
Commonwealth feels its evidence is strong enough to bring the
case forward. In considering the existence -- whether actual or
presumed -- of prejudice, therefore, we need not account for the
effect of the delay on the Commonwealth's evidence.
                                                                    28


    The Commonwealth argues that it persuasively has rebutted

the presumption of prejudice because much of the Commonwealth's

evidence has been preserved.   All of the witnesses but one are

still available to testify.    However, this assertion is only

half of the analysis because "the passage of time is a double-

edged sword."   Butler, 464 Mass. at 717-718.   To rebut

persuasively a presumption of prejudice, the Commonwealth not

only must demonstrate that its case has not been impacted by the

passage of time, but also must show that the defendant's case

has not suffered any prejudice.   See United States v. Molina-

Solorio, 577 F.3d 300, 307 & n.4 (5th Cir. 2009).    This bar is

difficult to meet.   See Uviller, Barker v. Wingo:   Speedy Trial

Gets a Fast Shuffle, 72 Colum. L. Rev. 1376, 1394-1395 (1972).

    The Commonwealth has failed to -- and likely cannot --

demonstrate that the defendants have suffered no prejudice.

This fact, however, is not dispositive of our analysis of the

fourth Barker factor.   Instead, the weight of this factor also

is affected by any circumstances that may extenuate the

prejudice.   See Doggett, 505 U.S. at 658.   Timi's time in

flight, nearly half of the total delay and attributable wholly

to his deliberate action, is a circumstance that extenuates the

prejudice caused by the entirety of the nine-year delay and

accordingly lessens the weight of this factor in the final

summation of the Barker test in his case.    Nickoyan's much
                                                                      29


shorter flight and longer postsentencing delay does not

extenuate the prejudice as much as in Timi's case.      We therefore

place greater weight on the fourth Barker factor in Nickoyan's

favor and less in Timi's.

    e.    Weighing the Barker factors.     No single factor nor

specific combination thereof is a "necessary or sufficient

condition to the finding of a deprivation of the right of speedy

trial."   Barker, 407 U.S. at 533.     The balancing of the factors

is "difficult and sensitive."    Id.    We discuss the balancing of

the factors for Nickoyan and Timi in turn.

    The total delay of nine years weighs against the

Commonwealth in Timi's case but is heavily mitigated by the fact

nearly half of the delay was caused by Timi's flight and Federal

trial.    Furthermore, Timi took no action consistent with

asserting his speedy trial right.      Any presumption of prejudice

weighing in Timi's favor is extenuated by his flight.     In the

totality of the circumstances, we are confident in saying that

Timi's right to a speedy trial has not been violated, as the

motion judge determined.

    Nickoyan faced the same total nine-year delay as Timi, and

thus that factor must weigh in his favor.     As we have stated,

the reason for the delay post-Federal sentencing is due to the

negligence of the Commonwealth in bringing Nickoyan to trial.

That factor must also weigh in Nickoyan's favor.      Although
                                                                    30


Nickoyan also took no action consistent with asserting his

speedy trial right, this factor is offset by the presumption of

prejudice for which we must account and which is neither

otherwise extenuated nor persuasively rebutted.     In the final

weighing, the Barker factors clearly point to a violation of

Nickoyan's right to a speedy trial as the motion judge also

determined.

    f.   Rule 36 (d) (3).    The defendants argue that the delay

in filing the detainer by the Commonwealth should result in the

dismissal of the charges under Mass. R. Crim. P. 36 (d) (3), 378

Mass. 909 (1979).    The IAD does not govern when a detainer

should be filed against a prisoner.     Rather it deals with the

proper resolution of detainers once they are filed.      See St.

1965, c. 892, § 1, art. I.     The duty to file detainers for

defendants incarcerated outside the Commonwealth is explained in

rule 36 (d) (3).    The rule requires that a prosecutor diligently

seek to file a detainer.     Id.   If the prosecutor has delayed

unreasonably, the defendant must show actual prejudice from the

failure to file a detainer in order for the charges to be

dismissed with prejudice.    See Commonwealth v. Roman, 470 Mass.

85, 95 (2014) (requiring showing of actual prejudice under rule

36 [c]); Commonwealth v. Ferreira, 26 Mass. App. Ct. 67, 69-71

(1988) (declining to dismiss absent showing of prejudice under

rule 36 [d]).   The defendants argue that this court should adopt
                                                                    31


the constitutional rule of presumptive prejudice in analyzing

the failure of prosecutors to timely file a detainer.    We

decline to do so.   The defendants have not demonstrated any

actual prejudice arising from the delay in filing the detainer.10

We therefore decline to dismiss the charges pursuant to rule 36.

     4.   Conclusion.   For the aforementioned reasons, we affirm

the denial of Timi's motion to dismiss and the allowance of

Nickoyan's.

                                     So ordered.




     10
       Timi additionally argues that this court should consider
dismissal under Mass. R. Crim. P. 36 (c), 378 Mass. 909 (1979).
Such an analysis also requires a showing of particular
prejudice. See Commonwealth v. Roman, 470 Mass. 85, 95 (2014).
We accordingly decline to dismiss the charges against Timi
because of a violation of rule 36 (c).
