            Case: 16-11392   Date Filed: 05/30/2017   Page: 1 of 8


                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11392
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:14-cr-00027-RWS-JCF-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

EDWARD TREISBACK,

                                               Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (May 30, 2017)

Before HULL, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
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      Edward Treisback appeals his convictions for receipt of child pornography,

in violation of 18 U.S.C. § 2252(a)(2), (b)(1), and possession of child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). Mr. Treisback argues that the

district court erred in denying his motion to dismiss his fourth indictment for

violation of his constitutional right to a speedy trial. Upon review of the record and

consideration of the parties’ briefs, we affirm.

                                           I

      Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

      In May of 2011, agents executed a search warrant for Mr. Treisback’s

residence, where they found multiple laptops, DVDs, and hard drives depicting

images of preteen girls engaging in sexual acts with adult males. In June of 2011, a

federal grand jury indicted Mr. Treisback on counts relating to child pornography.

The district court subsequently dismissed a total of three indictments without

prejudice for violation of the Speedy Trial Act, 18 U.S.C. § 3161.

      On June 11, 2014, Mr. Treisback was indicted for a final time on one count

of receiving child pornography in September of 2010, in violation of 18 U.S.C.

§§ 2252(a)(2), (b)(1), and one count of possessing child pornography in May of

2011, in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). His trial was scheduled to

begin on August 25, 2014.


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      On the day trial was to start, Mr. Treisback, through counsel, moved to

dismiss the fourth indictment for violations of the Speedy Trial Act and of his

constitutional right to a speedy trial. That same day, the district court announced

that Mr. Treisback was being treated for self-inflicted wounds. Mr. Treisback’s

counsel then requested that Mr. Treisback undergo a competency evaluation before

proceeding to trial, and stated that Mr. Treisback understood the evaluation would

delay the trial. The district court granted an indefinite continuance of the trial, and

tolled the speedy-trial clock until further order by the court.

      On January 5, 2015, the district court denied Mr. Treisback’s motion to

dismiss the indictment that had been filed on August 25, 2014. When the parties

appeared for trial the next day, the district court stated that Mr. Treisback had

again inflicted wounds upon himself. Mr. Treisback’s counsel requested an

additional evaluation for competency, and the district court agreed to grant another

continuance of the trial, again stating that the delay would be excluded from

speedy-trial calculations.

      The district court held a competency hearing on July 30, 2015, and found

Mr. Treisback competent to stand trial, which it scheduled to begin on

September 8, 2015. The district court again continued the trial, however, after

Mr. Treisback successfully moved for appointment of substitute counsel.

Mr. Treisback acknowledged that the grant of his motion would result in the trial


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being continued for several months. The district court denied Mr. Treisback’s two

subsequent requests for appointment of substitute counsel.

      On the first day of trial on December 14, 2015, Mr. Treisback’s counsel

stated that, “just for the sake of the record,” he was renewing his motion to dismiss

the indictment. The district court responded “[v]ery well,” and proceeded with the

two-day trial.

      The jury found Mr. Treisback guilty of receipt and possession of child

pornography, and the district court imposed concurrent sentences of 150 months’

imprisonment and 120 months’ imprisonment, respectively. The district court,

however, reduced each of the sentences by 50 months for the time Mr. Treisback

had spent in custody, making the actual sentences 100 months and 70 months,

respectively. Mr. Treisback now appeals the district court’s denial of his motion to

dismiss the indictment.

                                          II

      We review de novo a district court’s denial of a defendant’s motion to

dismiss based upon his constitutional right to a speedy trial. See United States v.

Harris, 376 F.3d 1282, 1286 (11th Cir. 2004). “Whether the government deprived

a defendant of [this] constitutional right . . . presents a mixed question of law and

fact.” United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir. 2010). We review




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the district court’s legal conclusions de novo and its factual findings for clear error.

See id.

                                           III

      The Sixth Amendment guarantees a defendant the right to a speedy trial. See

U.S. Const. amend. VI. The Supreme Court has instructed courts to evaluate

speedy trial cases on an ad hoc basis using a balancing test, and has identified four

factors to consider in determining whether a particular defendant has been deprived

of this right. These factors include (1) the length of delay, (2) the reason for the

delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the

defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972). None of these four

factors, however, is “either a necessary or sufficient condition to the finding of a

deprivation of the right of speedy trial.” Id. at 533.

                                           A

      Mr. Treisback argues that the district court abused its discretion in denying

his August 2015 motion to dismiss because it failed to make any factual findings or

legal conclusions regarding whether his constitutional rights had been violated, and

instead referred back to a prior order dismissing the indictment without prejudice

on statutory speedy trial grounds. He asks that we remand the case with an order

instructing the district court to dismiss the indictment on constitutional speedy trial

grounds.


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       Although the district court did not provide a detailed analysis in support of

its denial of the motion, and did not explicitly refer to the Barker factors, the

district court made findings related to those factors. To the extent Mr. Treisback

argues that the district court did not make a separate ruling on his renewed motion

to dismiss the indictment made on the first day of trial, we may treat this failure to

rule as an implicit denial of the motion. See United States v. Stefan, 784 F.2d 1093,

1100 (11th Cir. 1986). Accordingly, we have a sufficient record from which to

conclude that the government did not deprive Mr. Treisback of his constitutional

right to a speedy trial.

                                          B

       “The length of delay is to some extent a triggering mechanism”—“[u]ntil

there is some delay which is presumptively prejudicial, there is no necessity for

inquiry into the other factors[.]” Barker, 407 U.S. at 530–31. Here, a grand jury

first indicted Mr. Treisback in June of 2011, and the district court subsequently

dismissed three indictments. The grand jury indicted Mr. Treisback for the final

time in June of 2014, and the district court held a jury trial in December of 2015.

Although we consider only the time elapsed between the final indictment and trial,

see United States v. McDaniel, 631 F.3d 1204, 1209 n.2 (11th Cir. 2011) (noting

that the Sixth Amendment speedy trial guarantee was no longer effective for

original indictment once the district court dismissed it), the trial delay was still


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more than one year, and was therefore presumptively prejudicial. See United States

v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006) (“Delays exceeding one year are

generally found to be ‘presumptively prejudicial.’”).

      Our review of the record, however, reflects that the trial was delayed

primarily due to Mr. Treisback’s actions. Different reasons for delay are given

different weight. See Barker, 407 U.S. at 531. For instance, “[a] deliberate attempt

to delay the trial in order to hamper the defense should be weighted heavily against

the government[,]” whereas “a valid reason, such as a missing witness, should

serve to justify appropriate delay.” Id. In the nearly 18 months between the final

indictment and the trial, Mr. Treisback requested two continuances for competency

evaluations following his self-inflicted injuries, and made several requests for

appointment of substitute counsel. On at least two occasions—which account for

nearly all of the delay between the final indictment and the trial—Mr. Treisback

requested district court action that he acknowledged would delay the trial. See id.

at 525 (stating that a defendant waives a known constitutional right by

intentionally relinquishing or abandoning it). These valid reasons therefore justify

the delay.

      As for the prejudice factor, we assess it “in the light of the interest of

defendants which the speedy trial right was designed to protect.” Barker, 407 U.S.

at 532. These interests include the prevention of oppressive pretrial incarceration;


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minimization of anxiety and concern of the defendant; and limitation of the

possibility that the defense will be impaired. See id.

      The record does not indicate that Mr. Treisback suffered prejudice beyond

spending an extended period of time in custody awaiting trial, which the district

court accounted for by reducing the sentence imposed following his conviction.

Mr. Treisback argued that he was prejudiced because a favorable witness—his

father—had become unavailable to testify during the delay. He, however, did not

explain what his father would have testified to or how his defense was impaired by

not having the testimony. Indeed, the district court previously concluded that,

“[b]ased upon statements made by [Mr. Treisback] himself at [an] ex parte

hearing[,] the testimony of [his] father appeared to be more related to the

circumstances of the search of his residence than to [his] culpability for the crimes

charged[.]” D.E. 38 at 2. The potential prejudice against Mr. Treisback therefore

does not weigh heavily against the government.

                                          IV

      On balance, the Barker factors establish that the government did not deprive

Mr. Treisback of his constitutional right to a speedy trial. Accordingly, we affirm

the district court’s denial of his motion to dismiss the fourth and final indictment.

      AFFIRMED.




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