*

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).

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,

Plaintiff-Appellee,

v.

ANGEL FIGUEROA,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 02 CR 416

Wayne R. Andersen,

Judge.

O R D E R

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

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
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 twoyear 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.