                      FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                   No. 17-30159
           Plaintiff-Appellee,
                                               D.C. No.
                 v.                      2:15-cr-00045-JLQ-1

 CHRISTOPHER RAY MYERS,
 AKA Christopher Myers,                        OPINION
        Defendant-Appellant.


        Appeal from the United States District Court
           for the Eastern District of Washington
      Justin L. Quackenbush, District Judge, Presiding

           Argued and Submitted February 6, 2019
                    Seattle, Washington

                       Filed July 22, 2019

 Before: Sandra S. Ikuta and Morgan B. Christen, Circuit
       Judges, and Jennifer Choe-Groves,* Judge.

                      Opinion by Judge Ikuta




   *
     The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2                    UNITED STATES V. MYERS

                            SUMMARY**


                            Criminal Law

    The panel vacated the district court’s dismissal of a
criminal defendant’s speedy trial claim and remanded.

    The state and federal governments prosecuted the
defendant for different crimes arising from the same incident.
The federal government delayed commencing its criminal
proceedings until state proceedings had concluded. The
district court rejected the defendant’s claim that this delay
violated his Sixth Amendment right to a speedy trial. He
pleaded guilty to the federal charge but preserved his right to
appeal the speedy trial issue.

    In determining whether the right to a speedy trial has been
violated, courts apply the Barker balancing test, weighing the
length of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.

    Agreeing with the Seventh and Tenth Circuits, and
disagreeing with other circuits, the panel declined to adopt a
rule that the government has a valid reason to delay federal
prosecution when the defendant is subject to concurrent state
proceedings. The panel instead adopted an ad hoc approach
to evaluating delays caused by concurrent state proceedings,
holding that a court must consider the nature and
circumstances of the delay in order to determine whether (and
how much) it weighs against the government.

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. MYERS                     3

    The panel concluded that, here, the length of delay
favored dismissal and the delay was presumptively
prejudicial. In addition, the district court may have erred in
balancing the government’s reasons for the delay. The panel
vacated the district court’s opinion on the speedy trial issue
and remanded for the district court to reweigh the Barker
factors in light of the panel’s decision.

    The panel resolved additional issues in a concurrently
filed memorandum disposition.


                        COUNSEL

Colin G. Prince (argued), Assistant Federal Public Defender,
Federal Defenders of Eastern Washington & Idaho, Spokane,
Washington, for Defendant-Appellant.

James A. Goeke (argued) and Stephanie A. Van Marter,
Assistant United States Attorneys; Joseph H. Harrington,
United States Attorney; Office of the United States Attorney,
Spokane, Washington; for Plaintiff-Appellee.
4                 UNITED STATES V. MYERS

                          OPINION

IKUTA, Circuit Judge:

    The state and federal government prosecuted Christopher
Myers for different crimes arising from the same incident.
The federal government delayed commencing its criminal
proceedings until the state’s proceedings had concluded.
Myers claims that this delay violated his constitutional right
to a speedy trial. Because the Supreme Court directs courts to
take an ad hoc, case-by-case approach to a defendant’s claim
that the right to a speedy trial has been violated, see Barker v.
Wingo, 407 U.S. 514, 530 (1972), we decline to adopt a rule
that delaying a trial in order to allow a concurrent judicial
proceeding to conclude is a valid or neutral reason that does
not weigh against the government. Because we cannot
determine from the district court’s orders whether the district
court here erroneously applied a bright-line rule, we remand
for further proceedings.

                                I

    On January 30, 2015, deputies from the Spokane County
Sheriff’s Office initiated a traffic stop of a vehicle after it
pulled into a gas station. After determining that one of the
occupants of the vehicle had an outstanding warrant, the
deputies placed that occupant under arrest. The deputies then
questioned Christopher Myers, another occupant of the
vehicle. Myers attempted to escape, but tripped and fell a
short distance away. A deputy and his dog tried to subdue
him. During the scuffle, a pistol in Myers’s pocket went off,
and one of the officers responded by shooting Myers in the
stomach.
                     UNITED STATES V. MYERS                                 5

    In the wake of this incident, the state arraigned Myers and
charged him with two counts of first-degree assault and one
count of unlawful possession of a firearm. (The state
subsequently dismissed the felon-in-possession charge.) A
few days later, on May 5, 2015, the federal government
issued an indictment charging Myers with unlawfully
possessing a firearm in violation of 18 U.S.C. § 922(g)(1),
based on the same incident. The federal authorities filed a
detainer with the state authorities.1

    The state proceedings were substantially delayed. From
February 2015 to January 2017, four different attorneys were
appointed for Myers. According to Myers, his second
attorney asked for five continuances, yet failed to take the
steps necessary to prepare for trial. Myers’s two subsequent
attorneys requested several continuances to familiarize
themselves with his case, and then likewise failed to make
progress in preparing for trial. After twelve continuances
requested by Myers’s attorneys, Myers finally entered into a
plea agreement with the state in January 2017.

    In July 2015, Myers learned that the federal government
intended to bring charges against him and had issued a
detainer. Myers testified that this made him stressed and
worried. In April 2016, Myers wrote the district court to
assert his Sixth Amendment speedy trial right under the
Interstate Agreement on Detainers Act (IADA), 18 U.S.C.
app. § 2. Myers claimed he had not been properly served or
notified of the federal charge. In response, the U.S.


    1
       “A detainer is a request filed by a criminal justice agency with the
institution in which a prisoner is incarcerated, asking the institution either
to hold the prisoner for the agency or to notify the agency when release of
the prisoner is imminent.” Carchman v. Nash, 473 U.S. 716, 719 (1985).
6                    UNITED STATES V. MYERS

Attorney’s Office informed the district court that it intended
to wait until the state charges were resolved before
proceeding on the federal charge. Myers then filed his first
motion to dismiss. The district court denied the motion; it
rejected Myers’s speedy trial claim and determined that
IADA did not apply to Myers.2

     In January 2017, Myers pleaded guilty to two counts of
second-degree assault in the state case and was sentenced to
63 months’ imprisonment. One month later, Myers made his
first appearance in federal court pursuant to a writ of habeas
corpus ad prosquendum. A few months later, Myers filed a
renewed motion for dismissal based on a violation of his
speedy trial rights. After an evidentiary hearing, the district
court again denied the motion to dismiss. The court held that
the government’s reason for delay (to allow the state to
complete its prosecution) was valid. Turning to Myers’s
claim that he was prejudiced by the delay, the court held that
the record did not show that the federal charges caused any
oppressive pretrial incarceration, Myers’s condition would
not have been any different in state prison without the federal
detainer in place, and Myers’s “claimed prejudice of anxiety
is not substantive or attributable to the Government.” Nor did
the court find any evidence that Myers’s defense had been
impaired by the delay.




    2
        Myers does not appeal the denial of his IADA claim.
                    UNITED STATES V. MYERS                             7

    Myers then pleaded guilty to the federal charge, but
preserved his right to appeal the speedy trial issue. He now
timely appeals the court’s dismissal of his speedy trial claim.3

                                   II

    The district court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s decision regarding a Sixth
Amendment speedy trial claim. United States v. Manning, 56
F.3d 1188, 1193 (9th Cir. 1995). We review the factual
findings underlying the district court’s speedy trial decision
for clear error. United States v. Tanh Huu Lam, 251 F.3d
852, 855 (9th Cir. 2001).

                                   A

     The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial.” U.S. Const. amend. VI.4 The right to a speedy
trial attaches when a criminal proceeding is initiated,
including when the defendant is indicted. United States v.
Mills, 810 F.2d 907, 909 (9th Cir. 1987).

    In determining when the constitutional right is violated,
the Supreme Court has rejected any rigid approaches or


    3
       Myers also argues that the district court erred in two sentencing
determinations. These claims are resolved in a memorandum disposition
filed concurrently with this opinion. See ___ Fed. App’x ___ (2019).
    4
       Myers alleges a constitutional violation, but he does not allege a
statutory violation of the Speedy Trial Act. Indeed, Myers signed a
limited waiver of his Speedy Trial Act claims.
8                 UNITED STATES V. MYERS

clearly defined rules. Barker, 407 U.S. at 523. Instead, the
Court has adopted “a balancing test, in which the conduct of
both the prosecution and the defendant are weighed.” Id. at
530. As Barker noted, such a “balancing test necessarily
compels courts to approach speedy trial cases on an ad hoc
basis.” Id.

    The Court identified four factors that courts should weigh
as part of their ad hoc balancing analysis: “Length of delay,
the reason for the delay, the defendant’s assertion of his right,
and prejudice to the defendant.” Id. This list is not exclusive.
Id.

     The length of delay is the threshold factor. “[T]o 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, since, by definition, he cannot complain that the
government has denied him a ‘speedy’ trial if it has, in fact,
prosecuted his case with customary promptness.” Doggett v.
United States, 505 U.S. 647, 651–52 (1992) (citation
omitted). “[B]ecause of the imprecision of the right to speedy
trial, the length of delay that will provoke such an inquiry is
necessarily dependent upon the peculiar circumstances of the
case.” Barker, 407 U.S. at 530–31. For instance, “the delay
that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy
charge.” Id. at 531. We have held that “[a]lthough there is
no bright-line rule, courts generally have found that delays
approaching one year are presumptively prejudicial.” United
States v. Gregory, 322 F.3d 1157, 1161–62 (9th Cir. 2003).
The delay is measured from the time of indictment to the time
of trial. Id. at 1162.
                   UNITED STATES V. MYERS                          9

    “Closely related to length of delay is the reason the
government assigns to justify the delay.” Barker, 407 U.S. at
531. The Court again declined to provide a clearly defined
rule, preferring instead to suggest various considerations that
courts should weigh in each case. Among other things, a
court may consider “whether the government or the criminal
defendant is more to blame for th[e] delay.” Doggett, 505
U.S. at 651. When a defendant causes a post-indictment
delay, the defendant is deemed to have waived the right to a
speedy trial. See United States v. Sandoval, 990 F.2d 481,
483 (9th Cir. 1993) (citing Barker, 407 U.S. at 529); see also
Tanh Huu Lam, 251 F.3d at 857. By contrast, if the
government acted in bad faith, for instance, by making “[a]
deliberate attempt to delay the trial in order to hamper the
defense,” such delay must “be weighted heavily against the
government.” Barker, 407 U.S. at 531. If the delay is caused
by negligence, overcrowded courts, or failure of court-
appointed counsel, the delay “should be weighted less heavily
but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant.” Id.; see also Coe
v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990). Finally, a
good-faith, reasonable justification for the delay, such as a
missing witness, Barker, 407 U.S. at 531, or a meritorious
interlocutory appeal, see United States v. Loud Hawk, 474
U.S. 302, 316 (1986), will weigh less heavily against the
government or not weigh against the government at all.

     Courts balance the length of the delay and the reason for
the delay against other factors in the Barker analysis. Barker,
407 U.S. at 531–32. The third factor under Barker is whether
the defendant asserted his right to a speedy trial. Id. at 531.
If the defendant fails to assert the right, it will be “difficult for
a defendant to prove that he was denied a speedy trial.” Id.
10                  UNITED STATES V. MYERS

Nevertheless, the failure to do so is not per se fatal. Id. at
532.

    The fourth factor is whether the defendant was prejudiced
by the delay. Id. In considering this factor, a court should
evaluate the three interests the speedy trial right was designed
to protect: (1) “to prevent oppressive pretrial incarceration”;
(2) “to minimize anxiety and concern of the accused”; and
(3) “to limit the possibility that the defense will be impaired.”
Id. Of these three interests, “the most serious is the last,
because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system.” Id.5

    A court balances all four of these factors in a practical,
case-by-case analysis under Barker. See id. at 533. As the
Court explained, none of the four factors is “either a
necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are
related factors and must be considered together with such
other circumstances as may be relevant.” Id.

                                   B

    In this case, the government’s sole reason for the pretrial
delay (the second factor in the Barker balancing test) is that


     5
        In certain extreme circumstances, “when the delay is great and
attributable to the government,” the defendant need not show prejudice.
Gregory, 322 F.3d at 1162–63 (quoting United States v. Shell, 974 F.2d
1035, 1036 (9th Cir. 1992)). Thus Doggett explained, “[w]hen the
Government’s negligence thus causes delay six times as long as that
generally sufficient to trigger judicial review, and 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.” 505 U.S. at 658 (citations omitted).
                 UNITED STATES V. MYERS                     11

state and federal charges were pending concurrently, and the
government delayed commencing proceedings in order to
allow the state to pursue their charges. We have not yet
considered how the Barker balancing test applies to delays
caused by concurrent state and federal prosecutions. There is
a circuit split on this issue.

    Three of our sister circuits have adopted a rule that the
government has a valid reason to delay federal prosecution
when the defendant is subject to concurrent state proceedings.
In United States v. Thomas, the Fourth Circuit held that delay
is appropriate to allow the defendant to be prosecuted by the
state “without interference by the federal government”
because “[t]o do otherwise would be to mire the state and
federal systems in innumerable opposing writs, to increase
inmate transportation back and forth between the state and
federal systems with consequent additional safety risks and
administrative costs, and generally to throw parallel federal
and state prosecutions into confusion and disarray.” 55 F.3d
144, 150–51 (4th Cir. 1995). Similarly, the Sixth Circuit has
held that “simply waiting for another sovereign to finish
prosecuting a defendant is without question a valid reason for
delay.” United States v. Schreane, 331 F.3d 548, 555 (6th
Cir. 2003) (internal quotation marks and citation omitted); see
also United States v. Brown, 325 F.3d 1032, 1035 (8th Cir.
2003) (holding that the existence of state charges is a
sufficient reason to justify delaying a federal prosecution.)

   By contrast, the Tenth Circuit and Seventh Circuit have
adopted an ad hoc approach to evaluating delays caused by
concurrent state proceedings.        In considering the
government’s “desire to complete the state proceedings on
unrelated drug charges before continuing with federal
charges,” the Tenth Circuit stated “that awaiting the
12                UNITED STATES V. MYERS

completion of another sovereign’s prosecution may be a
plausible reason for delay in some circumstances, but that
does not necessarily mean that it is a justifiable excuse in
every case.” United States v. Seltzer, 595 F.3d 1170,
1177–78 (10th Cir. 2010). Rather, “the government must
make a particularized showing of why the circumstances
require the conclusion of the state proceedings before the
federal proceedings can continue.” Id. at 1178. “The mere
fact that the defendant was incarcerated on a previous charge
for a portion of the delay does not by itself excuse the delay.”
Id.     Similarly, the Seventh Circuit held that “the
administrative difficulties and safety concerns presented by
parallel prosecutions generally justify delaying the second
case,” but nevertheless went on to consider whether the
government “was dragging its feet or was otherwise at fault.”
United States v. Ellis, 622 F.3d 784, 791 (7th Cir. 2010).

     We agree with the Tenth and Seventh Circuits. As noted
above, the Supreme Court has directed us to consider the
reasons for a delay in context. “[A]ny inquiry into a speedy
trial claim necessitates a functional analysis of the right in the
particular context of the case.” Barker, 407 U.S. at 522.
Moreover, the Court has declined to adopt a clear rule for any
category of delay. For example, Loud Hawk considered a
delay in federal proceedings due to the government’s decision
to take an interlocutory appeal. 474 U.S. at 315. Rather than
hold that the government has a valid reason to delay federal
prosecution whenever it takes an interlocutory appeal, the
Court considered the nature and merits of the appeal. Id. at
316–17. If the government had a “bad faith or dilatory
purpose” in bringing an interlocutory appeal, the delay caused
by the appeal would weigh against the government. Id. at
316. But if the government’s position in the interlocutory
appeal was strong and supported by reasonable evidence, the
                 UNITED STATES V. MYERS                      13

delay would not weigh against the government. Id.
Similarly, rather than hold that delays caused by the
government’s negligence always weigh against the
government, the Court directed courts to consider the nature
and circumstances of the negligence. Doggett, 505 U.S. at
657. “[O]ur toleration of such negligence varies inversely
with its protractedness, and its consequent threat to the
fairness of the accused’s trial.” Id. (citations omitted).

    In light of this guidance, we hold that where a delay arises
due to concurrent state and federal proceedings, a court must
consider the nature and circumstances of the delay in order to
determine whether (and how much) it weighs against the
government. For instance, when the state’s charges factually
overlap with the federal charges, such that trying the
defendant concurrently would present administrative hurdles
and safety concerns, a delay may be justified and not weigh
against the government. Cf. Loud Hawk, 474 U.S. at 316–17;
Ellis, 622 F.3d at 791. On the other hand, when state charges
are unrelated to the federal charges, and the government
adduces no evidence that concurrent proceedings would
present administrative difficulties or safety concerns, a court
may weigh the delay against the government. In sum, there
is no bright-line rule for this category of delay.

                               C

   We now consider Myers’s arguments that the district
court erred in applying the Barker balancing test.

                               1

   Myers first argues that the length of delay in his case
favored dismissal, and that the delay in his case was
14                UNITED STATES V. MYERS

presumptively prejudicial. We agree. Because Myers’s trial
did not start until 22 months after the date Myers was
indicted, the length of the delay was sufficient to raise a
presumption of prejudice. See Gregory, 322 F.3d at 1161–62.

                               2

    Myers next argues that there was no reason to delay the
commencement of the federal proceedings under the
circumstances of his case. According to Myers, the
government faced no logistical problems in commencing
Myers’s trial in federal court; among other things, the pretrial
detention center in which he was incarcerated for state
proceedings was close to the federal courthouse and was also
used to hold federal prisoners.

    The government asserts that allowing the state to pursue
its prosecution without interruptions from a parallel federal
prosecution is a justifiable basis for delay, especially where
there is no evidence of any intent to hamper the proceeding.
In this case, the government asserts, the federal and state
charges were factually overlapping, and the same witnesses,
potential experts, and evidence would be required in both
matters. Therefore, the government claims, moving forward
in the federal case while the state case was ongoing would
have led to significant procedural difficulties and hampered
the administration of justice.

    The district court did not directly explain its evaluation of
the government’s reasons for delay. In denying Myers’s first
motion to dismiss, the court acknowledged the existence of a
circuit split on the question whether the presence of
concurrent state charges provides “carte blanche for delaying
a federal case,” and concluded that in Myers’s case, “the
                     UNITED STATES V. MYERS                            15

reason for delay does not vindicate the Government, but
neither does it weigh strongly against the Government.” In
denying Myers’s second motion to dismiss, the court
recognized that the government’s main reason for the delay
was “to allow the state proceedings to complete before
moving forward on the federal charges,” but concluded that
even if this reason was invalid, the delay did not weigh
against the government because it did not act in bad faith and
Myers had not suffered any prejudice. In both orders, the
district court rejected the standard enunciated in United States
v. Seltzer, one of the cases adopting an ad hoc approach to
delays caused by concurrent proceedings. The district court’s
failure to consider or weigh the government’s reasons for
delay and its rejection of the rule in Seltzer raise the concern
that it did not fully embrace the approach we adopt today.
Accordingly, we conclude that the district court may have
erred in balancing the government’s reasons for the delay.

                                    3

    Finally, we turn to Myers’s argument that the district
court erred in determining that he did not suffer prejudice.6
Myers raises three arguments, none of which have merit.
First, Myers claims that he was kept in solitary confinement
while being held for state trial. However, the district court
found that those conditions are not attributable to the federal
government but were related to Myers’s state charges. That
conclusion is not clearly erroneous; Myers produced no
evidence that the state’s decision to keep him in solitary


    6
       There is no dispute that Myers asserted his right to a speedy trial,
the third factor in the Barker analysis. See Barker, 407 U.S. at 531.
Accordingly, this factor weighs in favor of finding a Sixth Amendment
violation. See id.
16               UNITED STATES V. MYERS

confinement was tied to his federal charges. Second, Myers
argues that he was deprived of his right to counsel as a result
of the delay. But as the district court noted, Myers was
represented by counsel in his state proceedings, and Myers
has failed to show how his ability to defend against the
federal charge was impaired by the delay. Based on the
record, the district court’s conclusion was not clearly
erroneous. Myers also testified that he experienced anxiety
and concern due to the delay of the federal indictment.
However, the district court found that he had not suffered
such symptoms, and again, this finding is not clear error.
Indeed, the district court concluded that any anxiety that
Myers experienced was more likely tied to the more serious
state charges he faced, rather than any delay in the federal
proceedings. In short, Myers has failed to establish that his
defense was in any way impaired by the delay.

                              III

     The Barker balancing test requires courts to “approach
speedy trial cases on an ad hoc basis,” 407 U.S. at 530. The
Supreme Court has identified only “some of the factors which
courts should assess,” id., and has rejected bright-line rules.
We conclude that this ad hoc approach also applies to the
category of delays resulting from concurrent judicial
proceedings. In this case, we cannot tell whether the district
court applied a per se rule in concluding that Myers’s speedy
trial right was not violated by the 22-month delay; in any
event, the court has not had an opportunity to consider the
government’s reason for the delay under the rule we adopt
today. Given that the district court must “engage in a
difficult and sensitive balancing process” to consider the four
Barker factors “together with such other circumstances as
may be relevant,” id. at 533, we vacate the district court’s
                  UNITED STATES V. MYERS                       17

opinion on the speedy trial issue and remand for the district
court to reweigh the four Barker factors in light of our
decision today.7

    VACATED and REMANDED.




    7
         Because we remand to the district court to reconsider the
government’s reasons for the delay, we DENY Myers’s motion for
judicial notice as moot.
