                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Submitted April 17, 2007*
                              Decided April 19, 2007

                                      Before

                 Hon. FRANK H. EASTERBROOK, Chief Judge

                 Hon. WILLIAM J. BAUER, Circuit Judge

                 Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 06-3022

UNITED STATES OF AMERICA,                      Appeal from the United States District
    Plaintiff-Appellee,                        Court for the Northern District of
                                               Illinois, Eastern Division.
      v.
                                               No. 02 CR 416
ANGEL FIGUEROA,
    Defendant-Appellant.                       Wayne R. Andersen,
                                               Judge.

                                    ORDER

        Angel Figueroa was arrested and charged by complaint with conspiracy to
possess heroin with intent to distribute. 21 U.S.C. §§ 846, 841(a)(1). Five months
later, the Grand Jury indicted Figueroa for the conspiracy along with a substantive
possession count, id. § 841(a)(1), and one count of possessing a firearm during the
drug offenses, 18 U.S.C. § 924(c)(1). Eighteen months after indictment Figueroa
proceeded to trial with his third appointed lawyer. The jury found him guilty on the
conspiracy count but acquitted on the firearm count and could not reach a verdict


      *
       After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-3022                                                                       Page 2
on the drug-possession count. After nearly two-and-a-half more years and four
more changes of counsel (Figueroa demanded the withdrawal of the first successor
to his trial lawyer, and the following three lawyers moved to withdraw citing
irreconcilable differences), the district court finally sentenced Figueroa to a total of
240 months’ imprisonment. In the interim, Figueroa had filed an unsuccessful
motion in which he argued for the first time that his statutory and constitutional
rights to a speedy trial had been denied. He presses the same contentions in this
pro se appeal.

       Figueroa argues that because he was not indicted within 30 days from his
arrest, and was not tried within 70 days from his indictment (excluding time
exempted by statute), his indictment must be dismissed under the Speedy Trial Act.
See 18 U.S.C. §§ 3161(b), (c)(1), 3162(a). Figueroa, however, waived his rights
under the Speedy Trial Act because he did not move to dismiss his indictment
before trial. See § 3162(a)(2); United States v. Morgan, 384 F.3d 439, 442-43 (7th
Cir. 2004). Figueroa’s contention that he could not have acted before trial because
he was not aware of the purported statutory violations is frivolous.

       Figueroa also argues that the delay before his trial violated his Sixth
Amendment right to a speedy trial. This argument was not waived by its untimely
assertion, so we consider it. See Barker v. Wingo, 407 U.S. 514, 524-29 (1972)
(stating that constitutional right to speedy trial must be waived knowingly and
intelligently, not by omission); United States v. Alvarez, 860 F.2d 801, 821-22 (7th
Cir. 1988) (considering constitutional speedy trial claim not raised before trial);
United States v. Kinberlin, 805 F.2d 210, 225-26 (7th Cir. 1986) (same). The two-
year delay between Figueroa’s arrest and trial was long enough to be presumptively
prejudicial, and thus the delay triggers the need for constitutional analysis. See
Doggett v. United States, 505 U.S. 647, 651-52 (1992); United States v. White, 443
F.3d 582, 589-90 (7th Cir. 2006); see also United States v. MacDonald, 456 U.S. 1, 7
(1982) (explaining that right to speedy trial under Sixth Amendment commences
with the earlier of arrest or formal accusation). Courts examine four factors in
assessing a constitutional claim: (1) whether the delay before trial was uncommonly
long; (2) whether the government or defendant is more to blame for the delay;
(3) whether the defendant asserted his right to a speedy trial; and (4) whether the
defendant suffered any prejudice in the form of oppressive pretrial incarceration,
anxiety and concern, or the impairment of his defense. See Doggett, 505 U.S. at
651-52; Barker v. Wingo, 407 U.S. 514, 530 (1972); White, 443 F.3d at 589.

       The factors reveal that there was no constitutional violation in this case.
First, though two years is a significant delay, it does not nearly approach the
excessive nine years condemned by the Supreme Court in Doggett or even the
acceptable five years in Barker. Second, the record shows that the government
dealt with pretrial matters in a diligent and timely way, and that Figueroa changed
No. 06-3022                                                                     Page 3
counsel several times. Figueroa has not shown that there was any stalling by the
government or anything other than “neutral” delay due to ordinary procedures and
scheduling conflicts. See Barker, 407 U.S. at 531; White, 443 F.3d at 590. Third,
Figueroa did not raise any speedy-trial objection prior to trial; that decision weighs
heavily against him because it suggests his assent to the delays and the absence of
any resulting prejudice. Barker, 407 U.S. at 531; White, 443 F.3d at 591. Fourth,
Figueroa points to no “tangible impairment” caused by the delays. See White, 443
F.3d at 591. He makes a vague assertion that “memories faded,” but he introduced
no evidence at trial and does not identify any evidence that was tainted by time.
Additionally, he was detained only two-and-a-half months between arrest and
conviction.

       Lastly, Figueroa argues for the first time here that the delay between his
arrest and indictment violated his right to due process under the Fifth Amendment.
The Due Process Clause protects against delay before formal accusation; it has no
relevance to the period after Figueroa was arrested and charged by complaint with
conspiracy. MacDonald, 456 U.S. at 7; United States v. Wallace, 326 F.3d 881, 885-
86 (7th Cir. 2003); United States v. Dickerson, 975 F.2d 1245, 1252 (7th Cir. 1992).

                                                                          AFFIRMED.
