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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

____________

No. 1 2

- 3992

_____________

UNITED STATES OF AMERICA

v.

SERGIO VELAZQUEZ

,

Appellant

Appeal from the United States District Court
for the Ea stern District of Pennsylvania (District Court No. 2

- 05

- cr

- 004 3 2

- 00 3 ) District Judge: Honorable Jan E. DuBois

Argued October 17 , 20132 Before: RENDELL, JORDAN and LIPEZ*

, Circuit Judges

(O pinion Filed : April 14, 2014 )

Je rome Kaplan , Esquire (Argued) Kaplan, Kenegos & Kadin
9150 Wilshire Boulevard

, Suite 175 Beverly Hills, CA 90212

Counsel for Appellant

Zane David Memeger , Esquire United States Attorney Robert A. Zauzmer, Esquire Assistant United States Attorney
Bernad ette McKeon , Esquire (Argued) Assistant United States Attorney Joseph T. Labrum, III, Esq. Assistant United States Attorney Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia , PA 19106

Counsel for Appellee

*Honorable Kermit V. Lipez, Senior United States Circuit Judge fo r the Court of Appeals for the First Circuit, sitting by designation.3 O P I N I O N

LIPEZ

, Circuit Judge :

We consider whether the right to a speedy trial guaranteed in the Sixth Amendment is violated when, after a n initial effort to apprehend the de fendant , the government’s
effort for nearly five years consists only of running the
defendant’s name a handful of times through the National Crime Information Center ( “ NCIC ” ) database , despite other available leads. Although t he authorities in this case r evived
their efforts after th e five

- year lull, the defendant happened to
be caught when he was arrested on an unrelated matter. App lying the four

- factor test from Barker v. Wingo , 407 U.S.
514 (1972), and the Supreme Court’s elaboration of those
factors i n Doggett v. United States , 505 U.S. 647 (1992), we conclude that the government violate d defendant’s speedy trial right

. T hus we reverse the district court’s denial of defendant’s motion to dismiss on speedy trial grounds , and
remand the case with instru ctions to dismiss the indictment with prejudice

.

I.

We recount the b asic facts of the investigation

, drawing from the testimony and reports before the district4 court detailing efforts to bring defendant Sergio Velazquez to
trial. 1

A

. The drug inves tigation

The Drug Enforcement Administration ( “ DEA ” ) began investigating Velazquez in June 2005 , after receiving a tip
that he was interested in sell ing cocaine to a confidential
informant

. App. 149a. Velazquez traveled from California to Philadelphia to meet with co

- defendant Pedro Curiel and the
informant. App. 149a

- 50a. The informant wore a wire to that meeting, record ing discussions of a plan to sell between five and ten kilograms of cocaine. App. 149a

- 5 3 a. After the meeting, the DEA had Philadelp hia police stop Curiel and Velazquez’s car to identify the men

. App. 150a

- 51a. T he DEA learned Velazquez’s name, that he had a California driver’s license, and that he listed his address as a postal box in the greater Los Angeles area (P.O. Box 2901, Bell Gardens, CA, hereafter “ Box 2901 ” ). App. 383a. Velazquez
was not arrested

. App. 152a. H e returned to California.

The DEA monitored the informant’s calls with Velazquez. Id. On July 27, 2005, they tracked Curiel as he
met with the informant and t hen met co

- defendant Nelkis
Gutierrez

- Gainza at a truck stop. App. 152a

- 54a. Gutierrez

Gain za gave Curiel a sack and Curiel drove away. When agents then stopped Curiel they recovered the sack and
determined it contained nine kilograms of cocaine. Id. They
arrested the two co

- defendants.

1 We borrow the general organization of the district court’s thorough factual recitation.5 B

. The initial search for Velazquez and Deputy Degan’s report

T he co

- defendants were indicted on August 2, 2005 ; a complaint and arrest warrant issued for Velazquez the next day . David Pedrini, a DEA special age nt in Philadelphia,
testified before the district court that he had a fellow agent from Los Angeles , Steve Pascoe, go to 6340 Wo odward Avenue, Bell, California ( “ Woodward Avenue address ” )

, an address that Pedrini had learned was “ associated wit h ” Velazquez

. App. 155a

- 56a. 2 According to Pedrini, Pascoe spoke to a man, a woman, and two children “ to see if one of them was Mr. Velazquez and the results were negative, he
was not at that address

. ” App. 155a. The DEA declared Velazquez a fugitive, turning over the task of apprehending
him to the United States Marshal s Service office in Philadelphia

. App. 155a

- 56a. They gave the Marshals Service a personal history report on Velazquez, and told William Degan, the office’s deputy marshal assigned to the

case , ab out the Woodward Avenue a ddress. App. 157a.

In addition to searching for credit applications, department of motor vehicle reports, and records for any property or vehicle purchases by Velazquez

, Degan entered the warrant into the NCIC database, 3 and into a Marshals

2 It appears this link was ba sed on registration paperwork for the postal box. See App. 388a (stating that the Woodward Avenue address was “[t]he address listed for” Velazquez’s postal box).

3 The NCIC is an “electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency6 Service information system called the Warrant Information
Network. App. 277a

- 280a. Among the various pieces of
information he entered w ere Velazquez’s name, aliases, 4 his alien registration number, his Social Security number, a physical d escription, his driver’s licen se, and the Box 2901
address. Id. E ntering Velazquez into the NCIC would allow any law enforcement agency

, if it encountered Velazquez , to
learn that he was wanted by checking his information against
the database. The law e nforcement ag e nt could then take him into custody after verifying that the government intended to
prosecute.

nationwide, 24 hours a day, 365 days a year.” FBI

— National Crime Information Center, http://www.fbi.gov/about

- us/cjis/ncic (last visited Jan. 23, 2014). The database is organized by “files” that contain sets

of records. F or example, Deputy Degan entered Velazquez’s information into the “Wanted Persons File, ” which consists of records on individuals with outstanding warrants. FBI

— NCIC Files, http://www.fbi.gov/about

- us/cjis/ncic/ncic_files (last visited Jan. 23, 2014).

4 The report states that Velazquez was also known as Sergio
Vela zquez

- Payan and Sergio Payan. App. 385a. These are permutations of his surname from his father (Velazquez) and from his mother (Payan). The government does not contend
that these aliases are misleading. They are, in fact, a common result of using Spanish surnames in the United States. The report also uses “Velasquez,” but does not acknowledge this spelling change or label it an alias. See App. 386a.7 Degan then prepared a collateral request , which is a request for investigative assistance from a Marshals Service
office in another jurisdictio n. App. 175a

- 76a. The request

, d ated October 7, 2005, s ought help from the Marshals Service
taskforce in the Los Angeles area , which consisted of
marshals and local law enforcement officers

. See App. 284a

85a , 385a. Degan ’s request noted the unfruitf ul trip to the
Woodward Avenue address, mentioned that DEA agents from Los Angeles “ also checked a number of other addresses ”

— without identifying the addresses

— and then offered a
number of leads in the form of past addresses for Velazquez

, as listed in d atabases :

- Velazquez’s mother’s name and a possible address for her in Pico Rivera, CA

- The Box 2901 address

- The address of a home in Bell Gardens, CA, that Velazquez appeared to have bought in 1999, and the name of a woman who bought it with him

- The phone number Velazquez used during the DEA investigation, with an indication that Velazquez’s calls may have been made from a calling card

- An address in Paramount, CA

- The Woodward Avenue address and its possible tie to Velazquez’s brother, Elias

- A Huntington Pa rk, CA address associated with
Cecilio Vasquez (relation ship to Velazquez unknown)

- A further address in Bell, CA, associated with Velazquez’s mother

App. 385

- 86a. The report concluded with this request

, in relevant part : “ Contact DEA [Special Agent] Scott Pascoe ”8 — the officer who had checked on the Woodward Avenue
home

— “ regarding their efforts in Los Angeles to locate [ Velazquez ] ” and “ i f all leads

. . . are exhausted, please interview his parents ” at the Pico Rivera address, “ and his brother, Elias Vel asquez. ” App. 386a

.

C

. Deputy Degan’s testimony about the response

to hi s report

Degan transferred from his position at the Mars hals
Service in the Eastern District of Pennsylvania in late November 2005, about seven weeks after he sent his report

. App. 290a. At the district court’s hearing, Degan testified that, based on an exhibit showing that an officer at the Los Angeles Police Department ran a check for Velazquez through NCIC on October 31, 2005 , i t appeared that his
collateral request was r eceived

. App. 289a, 403a

. According to Degan, this NCIC check would have been “ the first thing I would do before I’d go out and attempt to find him

. ” App.
289a

. Degan agreed that the exhibit did “ not indicate that they went out and talked to anybody

. ” 5 App. 296a. Degan said that some communication between the requesting officer and the officer receiving the request would be by phone, but that it was standard practice to then make a written record of
work done. App. 298a. He did not recall any

5 The district court stated that D egan “believed that work was underway on the request” because of the October 31 NCIC check, United States v. Velazquez

, No. 2

- 05

- cr

- 00432

- 003,
2012 WL 2094061

, at *4 (E.D. Pa. June 11, 2012)

, but Degan’s testimony about the NCIC check only pertained to
whe ther he thought the report was received

, s ee App. 289a.9 commun ications from the taskforce in Los Angeles about his
request . App. 289 a

- 90a, 300a

- 02a.

D

. Communication with Velazquez’s attorney; superseding i ndictment

On November 1, 2005, an assistant U.S. attorney in Philadelphia sent a copy of the complaint and warrant to Velazquez’s counsel in California, Jerome Kaplan , and both sides stipulated below that Kaplan received these documents

. 6
App. 232a. The record does not explain how the assistant U.S. attorney knew Kaplan represented Velazquez, but Kaplan has represented that Velazquez hired him to contact the U.S. attorney to discuss a potential surrender. Appellant’s Reply Br. 11. 7 Three weeks later , a superseding indictment
was filed , charging Velazquez with one count of conspiracy
to distribute and to possess with intent to distribute five kilograms or more of cocaine

, and one count of knowingly and intentionally distributing, and aiding and abetting the distribution of, five kilograms of more of cocaine. See 21 U.S.C. §§ 841 (a)(1) , 841(b)(1)(A) (unde rlying drug statutes); 21 U.S.C. § 846 (conspiracy); 18 U.S.C. § 2 (aiding and abetting). The indictment was not sent to Kaplan . App. 244a. After the indictment, the government did not communicate

6 The parties did not explore whether Kaplan told Velazquez
about these documents because they agreed such testimony would implicate the attorney

- client privilege.

7 The record does not disclose when Velazquez hired Kaplan for this purpose. Kaplan is also Velazquez’s attorney on appeal.10 again with Velazquez’s counsel. Neither Kaplan nor
Vela zquez appeared at the arraignment in Philadelphia in
December 2005. Appointed local counsel enter ed an appearance on Velazquez’s behalf, but there is no indication that this counsel represented Velazquez in any further capacity, or told him of the indictm ent. The assistant U.S.
attorney stated at the arraignment that “ my understanding from my last conversation with Mr. Kaplan was that he was planning to surrender Mr. Velazquez, but that has not happened. And I have had no further contact with Mr. Kaplan

. . . . ” App. 8a

- 9a (alterations omitted)

.

E

. Marshals Service and DEA efforts from
November 2005 to November 2010

From November 200 5 until November 2010, authorities checked the NCIC eight times to see if any law enforcement agen cy had encountered Velazquez. App. 384a,
392a

- 403a. At the Marshals Service , someone in the Philadelphia office or the headquarters in Arlington, Virginia

, checked the NCIC four of those eight times

— in November 2007, January 2008, February 2008, and September 2009

. Id. For his part, DEA Agent Pedrini in Philadelphia , one of the agents who had worked on the initial investigation, checked with the U.S. Attorney’s Office each ye a r to make sure the
office was still willing to prosecute

. H e also made sure the

warrant was s till active in the NCIC, and he contacted the

Mars hals Service to ask if they had any new information. App. 158a

- 61a. 8 Records show DEA inquiries on the NCIC

8 The district court stated that the efforts of the Marshals
Service and DEA from November 2005 to November 201011 in January 2007, September 2007, October 2008, and Oct ober 2010. App. 392a

- 403a

. At some point

, Pedrini put Velazquez on the “ Most Wanted ” section of the website for
the DEA’s office in Philadelphia. App. 160. 9 He testified
that he believed “ we could ” have put Velazquez on the “ Most
Wanted ” section for Los Angeles, where authorities believed
he w as living, but “ it didn’t happen. ” Id. In 2008, for reasons unclear from the record, the warrant for Velazquez was
removed from the NCIC. Pedrini noticed the removal and
contacted the Marshals Service , ensuring that the warrant was restored to the datab ase. See App. 158a

- 61a.

included periodic checks of commercial databases (s uch as those that might reveal vehicle purchases)

. Velazquez

, 2012
WL 2094061

, at *4. This observation is not supported by the testimony from Deputy Marshal Enrico Ilagan that the court
cited. See id. ; App. 207a

- 08a (Ilagan clarifying that the example discussed happened in August 2005, as part of Deputy Degan’s work). In an example not cited by the district court, Ilagan testified that he thought another deputy ran a check in January 2008 that included a commercial database. App. 182a. Ilagan was tes tifying about an exhibit outlining the investigation, but the relevant descriptions for two database checks in January and February of 2008 state only “NCIC Criminal History ran” and “NCIC check/No new info.” App. 384a. The government conceded in its clo sing argument before the district court tha t these were only NCIC checks. App. 364a.

9 It is not clear at what point Pedrini took this step.12 There was no testimony or documentation before the
district court to show any f urther steps taken to find Velazquez in this five

- year period . No law enforcement agency tried to visit the addresses Deputy Degan identified in
hi s October 2005 collateral request for assistance ; no one returned to the Woodward Avenue address where Velazquez’s brother lived ; no one contacted his parents ; no

one contacted Agent Pascoe, the agent in Los Angeles who
first checked the Woodward Avenue ad dress , to find out what investigative steps had been taken; no one contacted Kaplan, Velazquez’s attorney , despite his conversation with a prosecutor before the indictment was issued ; and no one conducted searches of commercial databases or other

governmen tal databases beyond the NCIC . Those other
databases could have been particularly helpful. They would have shown, for example, any new property records, traffic tickets, birth records, any records from the armed forces, or

any immigration changes

. See A pp. 164a

- 68a ( admission of Agent Pedrini that such records and databases were available ); see also App. 230a ( Deputy Marshal Enrico Ilagan’s similar testimony with respect to automobile records).

Degan testified that it was “ standard practice ” for an

o fficer working on a case to make a written record of steps taken, but that it was not unusual that he had received no written response from the Marshals taskforce in Los Angeles
before he transferred . App. 298a

- 99a

. He suggested that t he
absence of a wri tten response could mean that someone was
still working on the investigation. Id. Nevertheless, t here is no evidence that anyone on the Marshals taskforce in Los Angeles wrote a response to Degan’s report after Degan’s departure in November 2005

. It is not clear who had13 responsibility for the investigation after Degan until November 2010, when Deputy Marshal Ilagan , also of the Philadelphia office of the Marshals Service

, began working on the case. App. 173a

. Degan testified that “ these cases are
consi dered a priority and it would have been reassigned to somebody. ” App. 290a

. Ilagan stated that he thought Deputy Marshal Cardinal , presumably in the same Philadelphia office, 10 was working on the case at the time he started to work on it, but he did not know “ how long she had the case, ” and he could not say she was in charge over the
interim five

- year period. App. 339a

- 40a.

F

. E fforts from November 2010 to June 2011; new
collateral request

Ilagan’s first step was to r u n an NCIC check, along
with a search of a Lexis

- Nexis database that compiles information from p ublic and commercial records. App. 17 4a

7 5a, 194a

- 95a

. That search turned up Velazquez’s application to renew his California driver’s license, with a postal box address of Box 2037 ( “ Box 2 037 ” ) in Bell Gardens, CA, as well as a possible job for Velazquez at an auto repair shop in California

. App. 174a

. 11 Ilagan recalled

10 It appears Deputy Marshal Cardinal was in the Philadelphia office, as there is no indication in the record tha t someone outside that office was ever in charge of the case.

11 Ilagan did not recall where in California the shop was located

. App. 174a

- 75a. The record shows that Velazquez began using the Box 2037 address at least by 2010. See, e.g.

, App. 129a

- 31a, 1 36a. Velazquez has represented that Box
2037 and Box 2901 were in the same post office , Appellant’s14 calling the garage and asking for Velazquez, but the business

“ didn’t know anything about him. ” Id. Ilagan continued

pe riodically to check databases

. I n June 2011 , he came across a possible connection between a phone number listed

on Velazquez ’s paperwork for Box 2901 and a new address in Norwalk, CA. App. 175a, 186a ; see also App. 388a

. 12 This possible connection led Il agan to submit a new collateral request on June 22, 2011, for assistance from the Marshals
Service taskforce in Los Angeles. App. 42a

- 43a. This
request was the same type of request that Deputy Degan had written in 2005. Ilagan identified the Norwalk add ress, noted that Velazquez was receiving mail at Box 2901, and that the
residential address listed for that box was the Woodward Avenue address, an “ old address ” that Velazquez “ used in the
past. ” App. 388a. Ilagan noted that it was not clear if there

wa s any connection between Velazquez and the two people living at the Norwalk address, but that it was possible he was living there because it “ is only 7 miles away from [Velazquez’s] relatives that live [in the] Bell Gardens, CA

area. ” Id.

Br. 12 n.2, and the government does not contest this point . At some point Ilagan determined that both postal boxes were
connected to the Woodward Avenue a ddress that Velazquez at times listed for his home, and that turned o ut to be his brother’s house. App. 189a ; see also App. 388a

.

12 It appears that Ilagan found the phone number Velazquez provided on the registration form for his postal box, and then

sear ch ed phone records for any residence connected to that phone number. See App. 388a. This phone was different from the one Velazquez was said to have used during the DEA investigation. Compare id. with App. 386a

.15 G

. Investigat ive steps in the summer of 2011

Ilagan’s request w as received by the Marshals Service
taskforce and assigned to Deputy David Dominguez in Los Angeles

. 13 On July 7, 2011, Ilagan received an e

- mail
notif ying him that it appeared Velazquez had applied to

re new his permanent resident card because the FBI received fingerprint submissions from th e application that matched Velazquez’s prints on file . App. 176a. Ilagan informed Dominguez and then tried to get United States Citizenship and Immigration Services ( “ USCIS ” ) to help apprehend Velazquez by arrest ing him when he went to the USCIS
office to pick up his fingerprint card. App. 177a. The agency declined to help because of legal liability concerns. Id.

Ilagan then suggested to Dominguez that he “ might
h ave to sit and do surveillance ” at the Woodward Avenue
address. Id. Dominguez did not testify before the district court, but he did take notes of the steps he took . App. 314a

15a, 414a. T hose notes reflect that he “ sat surveillance ” at the Woodward Ave nue address on the afternoon of July 15,
2011 , noted license plate numbers for two vehicles in the driveway , but did not find Velazquez. App. 414a. He contacted Velazquez’s post office and learned that employees there recognized Velazquez, that Velazquez came often to

13 The record is silent on which law e nforcement agency employed Deputy Dominguez. This is the first time in the
record that a Marshals Service taskforce officer in Los Angeles is identified by name as having responded to a
collateral request for help in finding Velazquez.16 collect his mail, but did no t do so at a particular time. Id. At some point that summer Dominguez performed surveillance for half a day at the post office , without finding Velazquez.
Id. He also surveill ed the Norwalk address on July 20, 2011,
and went to an address in Baldwin Park, CA , that he thought mig ht be connected to Velazquez. Id. None of these steps
taken in the summer of 2011 was fruitful , nor was a search for payroll tax records for Velazq uez. App. 412a

- 13a, 323a

- 26a.

H

. D ecember 2011 apprehension and subsequent guilty plea

Velazquez was apprehended on December 9, 2011,
after police in Glendale, CA, arrested him on an unrelated narcotics charge. App. 384a, 393a. The DEA in Philadelphia confirmed that the government r emained willing to prosecute

Ve lazquez for the 2005 charges. App. 161a

- 62a. Velazquez

was then served with the arrest warrant and extradited to the

East ern District of Pennsylvania. Id

.

On March 28, 2012, Velazquez filed a motion to
dismiss the indic tment on the basis of a spee dy trial violat ion. App. 62a. T he district court denied the motion

, Velazquez

, 2012 WL 2094061 , finding that the government was reasonably diligent in pursuing Velazquez. Thus Velazquez had to show specific prejudice to his d efense from the long delay between indictment and arrest

, and the court held that he did not make this showing. Id. at *13 (citing Doggett v.
United States , 505 U.S. 647, 656 (1992)).

To support its finding of reasonable government diligence, the cour t explained that the failed efforts to find Velazquez at the Woodward Avenue address in August 200517 and July of 2011 meant that “ the government was unlikely to
find defendant based on the information available to it as of November 2005, ” and thus “ the gove rnment reasonably
elected to conserve its resources and wait for new information or a change in circumstances. ” Id. at *11. The court also
stated that the government’s reasonable efforts would have
found Velazquez earlier if not for his “ transient ” lifes tyle

. Id.
at *10 (citing United States v. Mundt , 29 F.3d 233, 236 (6th Cir. 1994)).

Velazquez pleaded guilty on June 29, 2012, pursuant to a plea agreement in which he reserved his right to appeal the speedy trial issue. He was sentenced in October 2 012 to 80 months in prison, with five years of supervised release. Velazquez then filed this timely appeal. 14 We recount further
facts below as needed for our analysis

.

II.

Barker established a four

- factor test for evaluating
whether the constitutional right to a speedy trial has been violated. The inquiry focuses on: (1) the length of the delay before trial; (2) the reason for the delay and, specifically, whether the government or the defendant is more to blame; (3) the extent to which the defendant as serted his speedy trial right; and (4) the prejudice suffered by the defendant. 407
U.S. at 530

- 31. “ [N]o one factor is dispositive n or

‘ talismanic. ’ ” Hakeem v. Beyer , 990 F.2d 750, 770 (3d Cir. 1993) (quoting Barker , 407 U.S. at 533). We review de nov o

14 The district c our t had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.18 the district court's legal conclusion that Velazquez failed to establish a violation of his constitutional right to a speedy
trial ; we apply clear error review to the factual findings underpinning that legal conclusion. United States v. Battis

, 589 F.3d 673, 677 (3d Cir. 2009); Burkett v. Fulcomer , 951 F.2d 1431, 1437 (3d Cir. 1991)

.

A

. Length of delay

The first factor is actually “ a double enquiry

, ” Doggett

, 505 U.S. at 652 :

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, since, by definition, he cannot complain that the government has denied
him a “ speedy ” trial if it has, in fact, prosecuted
his c ase with customary promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial
examination of the claim. This latter enquiry is significant to the speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused intensifies over time.

Id

. (citations omitted). In other words, a court first decides
whether the delay is long enough that i t should trigger analysis of other Barker factors. Id. If it is, t he length of the delay is also separately weighed in the court’s analysis of the19 remaining factors. Id. The Supreme Court has noted that

“ the lower courts have generally found ‘ postaccus ation delay ’ ” long enough to trigger further review of Barker
factors “ at least as that delay approaches one year. ” Id. at 652 n.1. This Circuit has concluded that a delay of fourteen
months is “ sufficient to trigger review of the remaining
Barker factor s, ” Battis , 589 F.3d at 678 (citing Hakeem , 990 F.2d at 760) , and once that threshold has been passed, “ the state, not the prisoner, bears the burden to justify the delay, ”
Hakeem , 990 F.2d at 770.

Th e district court correctly found here that the delay between the November 2005 superseding indictment and Velazquez’s scheduled trial date of July 2012 crossed the threshold of prejudicial delay to justify analysis of the remaining Barker factors. The government concedes this point, Gov. Br. 25, and unders tandably so. The Supreme Court has characterized delays on this scale as

“ extraordinary. ” See Barker , 407 U.S. at 533 ( using that term
to describe a delay between arres t and trial of over five

years ); see also Doggett , 505 U.S. at 652 (noting that “ the

e xtraordinary 8 1⁄2 year lag between Doggett’s indictment and

arrest clearly suffices to trigger the speedy trial enquiry” ). Accordingly, w e note the strength of Velazquez’s showing on
this factor and move on to the heart of the appeal.

B. The reason for the delay

This factor, the “ flag all litigants seek to capture, ”
United States v. Loud Hawk , 474 U.S. 302, 315 (1986)

, appropriately consumed the bulk of the district court’s analysis. Doggett described the range of government effort to

pursue an accus ed as extending from “ reasonable diligence ”20 to “ bad

- faith delay. ” 505 U.S. at 656. With the former, the defendant's speedy trial claim will fail “ however great the delay, so long as [the accused] could not show specific prejudice to his defense. ” Id. B ad

- faith delay, meanwhile,

“ would make relief virtually automatic. ” Id. at 657. Between
the two is a “ more neutral reason such as negligence, ” which weighs against the government, albeit “ less heavily ” than a
deliberate or bad

- faith delay. Barker , 407 U .S. at 531. Negligence “ still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. ” Doggett , 505 U.S. at
657 . Just as the government has the burden to prosecute a

case, it also has the burden to justify a delay once the Barker

e nquiry has been triggered

. See Hakeem , 990 F. 2 d at 770 (citing Barker , 407 U.S. at 527). If “ the defendant is not attempting to avoid detection and the government makes no
serious effort to find him, the government is considered negligent in its pursuit. ” United States v. Mendoza , 530 F.3d 758, 763 (9th Cir. 2008 ) ( citing Doggett , 505 U.S. at 653).

N egligence over a sufficiently long period can establish a general pre sumption that the defendant ’s ability to present a defense is impaired , m eaning that a defendant can prevail on his claim despite not having show n specific prejudice

. See Doggett , 505 U.S. at 658 (finding a speedy trial violation based on general prejudice where government’s neglig ence led to six

- year delay). This general presumption applies because “ impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's
erosion of excu lpatory evidence and testimony ‘ can rarely be
shown. ’ ” Id. at 65 5 ( quoting Barker , 407 U.S. at 532). “ Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways21 that neither party can prove or, for that matter, identify. ” Doggett , 505 U.S. at 65 5

.

This gen eral presumption may be rebutted, but it is difficult to do so. The prosecution is essentially put to the test of proving a negative

— the absence of any prejudice to a defense from the passage of years. See id. at 658 n.4 (noting the prosecution “ ably c ounter[ed] Doggett’s efforts to demonstrate particularized trial prejudice [but] it has not, and probably could not have

, affirmatively proved that the delay left his ability to defend himself unimpaired ” ) (emphasis added). As Doggett further noted, such a test is demanding,
but it should not surprise the government:

[T] he weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protrac tedness, and its consequent
threat to the fairness of the accused's trial. Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the
interes ts of criminal suspects assigned a low prosecutorial priority. The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; t he more weight the Government attaches to securing a conviction, the harder it will try to get it.22 Id. at 657 (citation omitted).

With these teachings in mind, we examine the two primary factual justifications for the district court’s

“ reasonable dilig ence ” finding : (1) that the unfruitful trip to the Woodward Avenue address in 2005 and the investigative
efforts in 2011 show that government inaction in the intervening years was a reasonable choice to “ conserve []

resources, ” Velazquez , 2012 WL 2094061

, at *11

, and thus comports with the requirements of reasonable diligence ; and (2) that Velazquez had an elusive, if not evasive, lifestyle and
thus bears r esponsibility for the delay

, id. at *10

. W e review
the trial court ’s determination that the governmen t was not negligen t with considerable deference. See Doggett , 505 U.S.
at 652. The factual findings supporting that determination are
reviewed for clear erro r. “ A finding is clearly erroneous when, although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm
conviction that a mistake has been committed. ” United States

v. Grier , 475 F.3d 556, 570 (3d Cir. 2007 ) (en banc) (internal quotation marks omitted)

.

1

. Rea sonable c hoice

In its factua l recitation, the district court stated that th e Marshals Service and the DEA efforts to find Velaz q uez between November 2005 and November 2010 “ were limited to periodic checks of the NCIC Wanted Persons database and
the comm ercial databases. ” Velazquez, 2012 WL 2094061

, at *4

. According to the court, this limited effort reflected a

“ choice ” to pursue other leads from 2005 to 2010, given that earlier efforts initiated by Deputy Degan, and later work by deputies Ilagan and Dominguez, did not succeed. See id. at23 *10 (finding “ the government’s choice to pursue other leads
was reasonable ” ); see also id. at *11 ( “ The failure of the
DEA’s efforts in California in 2005 and the inferred failure of the [Marshal Service’s] October 2005 collateral request show
that the government was unlikely to find defendant based on
the information available to it as of November 2005. Accordingly, the government reasonably elected to conserve

its resources and wait . . . . ” ) (emphasis added). In support of this conclusion, t he court first stated that the October 31, 2005, NCIC search, performed by someone at the Los Angeles Police Department, supported the inference that

“ authorities in California exhausted the leads in Deputy Degan’s collateral request. ” Id. at *11. It did not adopt this inference, however, finding that even if the Los Angeles
Marshals Service taskforce made “ only cursory efforts ” to pursue those leads, the fact that investigative efforts in 2011 did not quickly lead to Velazquez meant that any effort to
find V elazquez “ would likely have been fruitless. ” Id.

There are two related findings from the district court
here : first, that there was a tactical choice not to pursue Velazquez; and second, even if there was no tactical choice,
the inaction was effectively “ harmless ” because later investigation shows that any earlier effort would have been
fruitless. As an initial matter, w e question the pertinence of either finding to the “ reasonable diligence ” inquiry here . The Supreme Court observed in Doggett that eve n if law
enforcement inaction “ may have reflected no more than [defendant's] relative unimportance in the world of drug trafficking, it was still findable negligence. ” 505 U.S. at 653;
see also id. at 657 ( “ Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to24 gamble with the interests of criminal suspects assigned a low prosecutorial priority. ” ). We read this language to say that law enforcement priorit ies have little role to play in the negligence calculus . If authorities choose to ignore available leads about a suspect’s whereabouts in favor of other tasks, they may nonetheless be found negligent within the context of
the s peedy t rial right

.

Further more, we find no evidence in the record to support a finding that investigators made an actual “ choice ” not to pursue Velazquez or that the failure to pursue him was in any event harmless. Importantly, t he government did not
offer th e tactical choice just ification in the district court

. See App. 94a

- 95a (contending that Velazquez was evasive and fled)

. The district court cited Deputy Ilagan’s testimony that

his database checks in 2010 “ came up with the same things that we already had ” as the apparent rea son the Marshals
Service took no action from November 2005 to November 2010 beyond checks in the NCIC. Velazquez , 2012 WL
2094061

, at *5 (citing App. 226a)

. But Ilagan ’s testimony on what he did in 2010 d oes not shed light on possible tactical
decisions made between 2005 and 2010

.

With respect to that five

- year period from November 2005 to November 2010, Il aga n testified only that he worked with another deputy (Cardinal) when he took over. But he
did not know how long Cardinal had been handling the cas e

or if anyone else had been in charge for any period since Degan

. Degan testified that “ these cases are considered a priority and it would have been reassigned to somebody, ” App. 290a , but th e record does not support a finding that any particular individ ual

— including Deputy Cardinal

— was that somebody. Consequently, there is no evidence of a25 decision by anyone to forgo pursuit of Velazquez to conserve

resources. Indeed, given the priority status that Degan said
would o rdinarily have been given to suc h a case, the five years of inaction are more indicative of inattention than a n affirmative judgment about resources. 15

15 Our dissenting colleague would affirm the district court
because the court “heard the law enforcement witnesses and evidently believed that the limi ted investigati v e activity
undertaken from 2005 to 2010 was the product of informed
discretion.” The district court did not hear from any witness
who worked on the case during the five

- year lull, nor did it
hear from any witness who even claimed to be able t o speak to decisions taken during that period . Indeed, the government
never advanced a conservation

- of

- resources argument before the district court, contending instead that “at no point did the Government cease in its attempts to locate” Velazquez, App.

2 47a. Just as it did for the “transient lifestyle” argument, see Section II.B.2, the government now adopts the district court’s reasoning on appeal. Our colleague further contends that “[i]t is not beyond the pale to believe that the person responsible
fo r the case was making decisions about how to work it

. ” Respectfully, we hold the view that such a belief requires
some foundation in the evidence. To the extent our colleague credits a possibility that Deputy Cardinal was the decision maker, this is an u nsupported possibility that the district court did not even mention in its opinion. To affirm the reasonable diligence finding of the district court on the facts of this case
would effectively ignore the burden on the government to justify the lengthy del ay, and would reduce clear error review

to a mere formality . Deferential review is still review.26 The district court’s finding that attentive pursu it would
have been fruitless was similarly in error

. Degan’s collateral request to the Los Angeles Marshals Service taskforce in
2005 set out multiple avenues for investigation that Degan considered promising at that time. These included contacting
the local DEA a gent familiar with investigative steps already taken, exhausting the availabl e leads, and interviewing Velazquez’s parents. None of these actions was taken during
the nearly six years that followed

. In the summer of 2011, however, Deputy Dominguez followed up on the new

c ollateral request filed by Deputy Ilag a n. Among other lead s, Dominguez l earned that Velazquez came often to collect mail
from at a postal office in Bell Gardens, and Dominguez
conducted a half day of surveillance there . Although Velazquez did not appear at the post office during those few hours, it does not foll ow that nothing would have come of a longer effort, or the same surveillance years earlier. Moreover, the post office lead might have been productive in
2005 if combined with other steps urged by Degan in his
request , such as interviewing family members i n an attempt to gain insight into Velazquez’s daily habits at that time.

We thus cannot uphold the district court’s “ reasonable diligence ” conclusion based either on its finding that the law
enforcement authorities made a reasonable tactical choice to
li mit their efforts to find Velazquez or its finding that the
authorities’ limited effort was sufficient because more ambitious pursuit also would have been unsuccessful

. We
therefore consider whether the court’s other articulated

rationale

— Velazquez ’s li festyle

— adequately support s the finding of reasonable diligence during the period from 2005
to 201 1

.27 2. Defendant’s c onduct

The government seeks to attribute the delay in apprehending Velazquez to his own conduct

— which it
characterizes as evasi ve

— rather than to the lack of effort by
law enforcement authorities. At one point in its analysis, t he
district court appeared to agree that the evidence would support a finding of evasi on . The court reasoned that the government’s inability to find Vel azquez at the Woodward
Avenue address , his lack of employment history, and his

“ ability to avoid apprehension until his arrest on unrelated charges, even after the government intensified its efforts in
2011 ” all “ strongly supports the inference that defend ant did
hide. ” Velazquez , 2012 WL 2094061 at *10. That inference would weigh heavily against Velazquez in assessing the government’s negligence. See Hakeem , 990 F.2d at 766.

The court refrained from actually finding “ evasion

, ” however, in favor of cha racterizing Velazquez’s lifestyle as

“ transient

. ” Velazquez , 2012 WL 2094061 at *10. In the court’s view, e ven if Velazquez did not deliberately conceal his whereabouts, hi s lack of permanence nonetheless was responsible for the government’s inability to find him sooner:

“ [ W ] hether or not defendant was intentionally evading authorities, his lifestyle made it
difficult for authorities to track him down. If
defendant had not been so transient and if he had lived at his mailing address instead of using

po st office boxes, he would have been found
much earlier as the [government] used conventional search methods in a reasonably diligent manner. ”28 Id. (quoting Mundt , 29 F.3d at 236 (second alteration in original) )

. T he government did not frame its argument be fore
the district court in terms of a “ transient ” lifestyle, s ee Gov. Response (App. 94a

- 96a), but it now adopts the district court’s reasoning as a separate ground for affirmance in
addition to deliberate evasion

, see Appellee’s Br. 31

- 34.

A lthough th e district court ultimately refrained from finding “ evasion, ” we nonetheless believe we should assess
that characterization because of its centrality to the government’s position and the court’s favorable view of it. Hence, we consider both whether the re cord support s a finding of deliberate evasion by Velazquez and whether the
government can justify its meager search by blam ing Velazquez’s “ transient ” lifestyle

. As we explain, neither inquiry favors the government.

With respect to evasion

, the factors cited by the district
court do not support the inference of bad motiv e that the government urged and the court almost drew . A lack of
verifiable employment , without more, does not signify an attempt to evade capture , and an individual ’s choice to

re ceive mail at a post office box or a relative’s home does not fill the gap . Velazquez had used his brother’s address and Box 2901 for years before the DEA investigation began, including when he sought to enlist in the United States Naval
Reserve in 2002

- 03

. In deed, he used the same addresses in his 1998 application for a replace ment Alien Registration
Card. App. 75a

. The duration of this usage negates any
inference that these alternatives to a traditional home address were designed to protect him from a law e nforcement
manhunt.29 Other evidence a lso undermines the inference of a furtive life. Various d ocuments from 2010 onward show that Velazquez consistently list ed Box 2037 as his address , and he
went to retrieve his mail at the post office s o frequently that postal employees recognized him. See, e.g. , App. 130a (motorcycle title); App. 387a ( driver’s license renewal). Velazquez listed the long

- used Woodward Avenue address in paperwork for this postal box. See App. 388a. In addition,
other public docum ents submitted during the period he was being sought also contained Velazquez’s name and identifying information

. See, e.g. , App. 122a

- 27a ( a pplication
in 2011 to rep lace alien registration card); App. 78a

- 82a (birth records for three children born betwee n October 2005 and February 2007). In brief, we see no correlation between Velazquez ’s lifestyle and an intention to hide . Most significantly, there were no change s in his behavior over time
that could be attributed to a deliberate effort after 2005 to

e vade detection.

We note that, as the government argues, the record would support a finding that Velazquez was aware that he was being sought in connection with the July 27, 2005 drug transaction in Philadelphia. Indeed, his lawyer was in touch
with the United States Attorney’s Office in the fall of 2005

— before Velazquez’s indictment

— to discuss surrender. Velazquez had no duty to bring on his own trial , however, and his lawyer’s inquiry does not diminish any governmental negligence in failing to purs ue him , or to even contact his lawyer again

. See Barker , 407 U.S. at 527 ( “ A defendant has no duty to bring himself to trial; the State has that duty. ” ) (citing Dickey v. Florida , 398 U.S. 30, 37

- 38 (1970)); see also Dickey , 398 U.S. at 50 (Brennan, J., c oncurring) ( “ The accused has no duty to bring on his trial. ” ) ; Mendoza , 53030 F.3d at 763 (noting that “ it was not [defendant’s] responsibility to contact the government during the investigation ” )

. Although knowledge by Velazquez that he was being sought co uld contribute to an inference of evasion,
it does not make the conduct we describe above more suggestive of hiding

. Absent evidence of evasive conduct, Velazquez’s knowledge does not aid the government’s
argument.

As for justifying the government’s ina ction b ased on Velazquez ’s “ transient ” life, we have serious doubts that this characterization is helpful in the reasonable diligen ce inquiry

. To be sure, the government can only pursue reasonably available leads, and the absence of a paper trail for a
de fendant might leave the government with fewer avenues for investigation. Our focus is not the type of life a suspect leads, however, but whether the government has diligently used the
information available to it. Describing a defendant as

“ transient ” add s little to this analysis . Indeed, it carries the
risk that the label will be used as a substitute for a detailed
factual assessment of the government’s investigation , diluting
the “ serious effort ” that Doggett requires of law enforcement
authorities. 50 5 U.S. at 65 2 . Moreover, th is risk would likely be felt disproportionately by those in more limited economic
circumstances , unfairly lessen ing the Sixth Amendment speedy

- trial protection for those who are not so fortunate as to be well

- rooted in society. 16

16 We note that the “transient” lifestyle comment in Mundt on which the district court relied added little to the analysis in that case. The government peri odically checked for the defendant at two motels and had verified that he occasionally31 We thus conclude that neither premise for the district court’s finding that the government did not act negligently

— a supposed alternative allocation of resources and the defendant’s way of life

— withstands scrutiny. Hence, the court clearly erred to the extent it relied on those findings to hold that the government satisfied the “ reasonable diligence ” prong of the Barker test , and we therefore afford no deference
to the court’s determination o n negligence . Nevertheless, we
must still consider whether the record supports the adequacy of the government’s efforts. See Burkett , 951 F.2d at 1441 (noting that, where district court erroneously attributed delay to the defendant and, hence, did not make a prejudice finding, appeals court “ must exercise our po wer of plenary review to determine if the testimony establishes sufficient qualitative prejudice to weigh this factor in [defendant’s] favor ” ). In so doing, we continue to defer to the district court’s findings of
fact as to the underlying events that are not clearly erroneous

.

3. The r easonable d iligence d etermination

To satisfy the requirement of reasonable diligence, the government does not need to make “ heroic efforts ” to pursue a suspect, Rayborn v. Scully , 858 F.2d 84, 90 (2d Cir. 1988 ),
but it must at least make a “ serious effort, ” Doggett , 505 U.S.
at 652. If “ the defendant is not attempting to avoid detection and the government makes no serious effort to find him, the

stayed at each one. See 29 F.3d at 235. Investigators also tracked records in two states, leading to surveillance at his credit union until he showed up and was arrest ed. Id. The government thus had shown reasonable diligence in pursuing
the leads it had available.32 government is considered negligent in its pursuit. ” Mendoza

, 530 F.3d at 763 ( citing Doggett , 505 U.S. at 653). Here, it is essentially undisputed that the government made only
minimal attempts to find Velazquez in the five years between Degan’s transfer in November 2005 and Ilaga n ’s assumption

of control over the inv estigation in November 2010 . The sum total of its activity was limited to checking the NCIC eight
times and , perhaps, placing Velazquez on the “ Most Wanted ” list for the Philadelphia DEA office.

Although w e doubt that such negligible effort could be
dee med “ serious ” in any circumstances, we need not speculate in this case about how far short of the mark it fell. Deputy Degan’s collateral request in 2005 detailed the measures he thought advisable in tracking down Velazquez, and we believe his prescriptio n for the investigation is a helpful guidepost in assessing whether the government met the standard of reasonable diligence. 17 In addition to recommending follow

- up with DEA Agent Pascoe, who had
visited the Woodward Avenue home at the request of the

17 Our dissenting colleague disagrees with our use of Deputy Degan’s collateral request as guidance in the reasonable diligence analysis, contending that w e turn each suggestion into a “requirement[].” We do no such thing. The pertinent point here is not that the taskforce missed a particular suggestion on Degan’s list, but rather that

— as the government explicitly acknowledges

— there is no evidence
that anyone from the Los Angeles Marshals taskforce visited any of the addresses linked to Velazquez’s close relatives that were identified in Degan’s 2005 request. See Appellee’s Br.

43.33 Phila delphia DEA office

, Degan listed a number of addresses
that the Marshals Service taskforce could explore if DEA agents had not already done so

. He e xpressly asked that Velazquez’s parents and brother be interviewed if all other
leads had been exhausted. None of this was done.

Nor did authorities attempt to reach Velazquez during this period . They could have sen t mail to his PO box or the
Woodward Avenue address or s ought out a relative to relay a request that Velazquez turn himself in. Cf. Mendoza

, 53 0
F.3d at 763 ( “ Based on its previous success in contacting [defendant], the government was negligent when it failed to attempt to inform [him] of the indictment by calling [his family]

. ” ) Additionally, no contact was made with his attorney throughout the five years.

On this record, we think it plain that the government was not reasonably diligent in its pursuit of Velazquez. For the reasons we have explained, t he district court ’s contrary determination was clearly erroneous. 18 The second Barker

18 We recognize, as did the district court, that speedy

- trial

cases are intensely fact

- bound and thus of limited value as precedent. Velazquez , 2012 WL 2094061 , at *11 ; s ee also
Barker , 407 U.S. at 530 (“ A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc
basis

. ”). Nevertheless, we ha ve re viewed United States v. Spaulding , 322 Fed. App’x 942 (1 1th Cir. 2009), and United
States v. Walker , 92 F.3d 714 (8th Cir. 1996), the cases relied upon by the district court and government respectively. Both support the finding that the government is resp onsible for the delay in finding Velazquez. Spaulding involved government34 factor

— the reason for the delay

— squarely favor s Velazquez. 19

effort far more extensive and consistent than was the case here, including months of government surveillance, efforts to trace the defendant’s mail from his postal box, and calls to him to ask him to return. 322 F. App’x at 944. The

defendant in Walker , unlike Velazquez, had fled after posting bail on state drug charges, and was on the run at the time he was indicted for federal drug charges. 92 F.3d at 715. He
also used a false identity, making his evasiveness obvious.
Id. at 716.

19 Courts have also examined speedy trial claims by assigning responsibility for specific periods of the delay, and then weighing the delay attributable to the government. See Battis

, 589 F.3d at 680; see also Doggett , 505 U.S. at 657

- 658 (identifying six years of the delay from indictment to arrest as attributable to the government and using that portion to find general presumption of trial prejudice to the defendant). We
have concluded that the gover nment was not reasonably diligent f or the five

- year period f rom November 2005 until
November 2010. See Battis , 589 F.3d at 678 (“[D]elay is measured from the date of arrest or indictment, whichever is earlier, until the start of trial [.] ”). We can assume the government was diligent from November 2010 until the arrest in December 2011, a period of about thirteen months. The remaining delay from arrest to the projected trial date is neither side’s fault. Thus, to find the government diligen t here would re quire finding that thirteen months of diligence outweighed a period of negligence that was more than four times as long. We decline to so hold.35 C

. Defendant’s assertion of the right

The third Barker factor requires a court to examine

“ [w]hether and how a defendant asserts his [speedy

- trial] right, ” 407 U.S. at 531, including “ the freque ncy and force ” of such assertions, id. at 529. The district court found it

unnecessary to make any findings on this factor because it had already rejected Velazquez’s speedy trial motion on the basis that the government was reasonably diligent and Velazqu ez could not show specific prejudice. Hence, the court simply assumed that Velazquez timely asserted his right by filing a motion to dismiss within four months of his arrest. Given this posture of the case , we resolve this factor based on
the undisputed facts in the record

.

The Supreme Court noted in Barker that the
fundamental “ right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived. ” Id. at 529. Barker attempted to plot a path through this uncertainty by rejecting a rigid rule that a defendant waive s his speedy

- trial right “ for any period prior to which he has not demanded a trial. ” Id. at
525. The Court observed that s uch an approach presumed the

“ waiver of a fundamen tal right from inaction, ” id. (footnote omitted), which is inconsistent with the definition of waiver

as “ an intentional relinquishment or abandonment of a known right or privilege, ” id. (internal quotation marks omitted). Given such a high standard for e stablishing waiver, “ [c]ourts should indulge every reason able presumption against
waiver

. . . [and] not presume acquiescence in the loss of fundamental rights. ” Id. at 525

- 26 (internal quotation marks omitted).36 The Barker Court also rejected the noti on that “ the defendant has no responsibility to assert his right. ” Id. at 528. Instead, it held that the issue of waiver

— “ the defendant’s assertion of or failure to assert his right to a speedy trial ”

— would be one of the factors to consider on a case

- by

- case basis in balancing the defendant’s and government’s conduct.
Id. The Court emphasized that while the defendant bears

“ some responsibility to assert a speedy trial claim, ” the prosecution retains the burden to show the knowing and voluntary waive r of a fundamental right. Id. at 529. Thus a defendant’s limited responsibility to assert his speedy trial right exists alongside the government’s overarching burden to prove waiver of that fundamental right. Applying its rule in
Barker , the Court consi dered the defendant ’s failure to object to eleven continuances lasting a total of more than three

- and

a

- half years, followed by the defendant’s motion to dismiss
and his opposition to s everal further continuances. See 407
U.S. at 517

- 18. In that setting, where the defendant had ample opportunity to object in court, the defendant raised a

“ close ” case, id. at 533, but ultimately a losing one.

Barker ’s teachings necessarily left uncertainty about
when a defendant would be obligated to assert his speedy

- trial right if the defendant is at large. In considering this issue in Doggett , the Court o bserved that an at

- large defendant’s knowledge of a pending indictment could weigh heavily against him on this Barker factor , even if he was not evading
capture

. 5 05 U.S. at 653. In Velazquez’s case, the government has argued that knowledge of charges, rather than the subsequent indictment, should weigh heavily against him. Although the Doggett Court did not explicitly announce that
the defendant’s awareness of th e indictment

— rather than knowledge of earlier events, such as an investigation or an37 arrest warrant

— was the critical measuring point, such a rule is consistent with longstanding principles governing a defendant’s speedy trial rights.

This proposition is evident from the Court’s examination of the scope of a Sixth Amendment speedy trial
claim in United States v. Marion , 404 U.S. 30 7 (1971)

. In rejecting the defendants’ contention that their Sixth Amendment right had been violated by a three

- year delay between the end of their criminal activity and the return of the indictment, the Court emphasized that “ the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused,’ ” through
indictment or arr est. Id. at 313. The Court noted that the

“ public act ” of an arrest “ may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, s ubject him to public obloquy, and create anxiety in him, his family and his friends. ” Id. at 320. With this impact in mind, the Court observed, “ it is readily
understandable that it is either a formal indictment or
information or else the actual restrain ts imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth
Amendment. ” Id. Given th e concerns arising from an arrest

,

“ [i]nvocation of the speedy trial provision . . . ne ed not wait indictment, information, or other formal charge, ” but the
Court refused to extend the “ reach of the amendment to the period prior to arrest. ” Id. at 321.

It is thus well established that the c onstitutional speedy
trial clock does not start f or an individual who has not yet
been arrested until an indictment has issued. See id. at 320 ;38 Battis , 589 F.3d at 678 ( “ In general, delay is measured from the date of arrest or indictment, whichever is earlier, until the
start of trial

. ” ). The Speedy T rial Act also looks to arrest or
indictment to start the clock. See 18 U.S.C. § 3161(b) (requiring that a defendant be charged within thirty days of the date he was arrested or served with a summons); id. § 3161(c)(1) (requiring that trial begin within se venty days of indictment/information or first court appearance, whichever
occurs later ). It would thus be odd to conclude that the defendant has a duty to assert his speedy trial right before
either indictment or arrest

— i.e., at a time when he does not yet have such a right. Hence, the Court’s focus in Doggett on the indictment , without an explicit statement that it is the pivotal event for an at

- large defendant’s asserti on of his speedy trial right

, undoubtedly stems from the previously recognized imp o rtance of that formal charge.

We note that, in its discussion of the underlying events
in Doggett , the Supreme Court observed that there was no
evidence the defendant was aware of the pre

- indictment charges against him. See 505 U.S. at 653. Although th at statement has led some courts to look to knowledge of the charges apart from knowledge of the indictment

, see, e.g., United States v. Tchibassa , 452 F.3d 918, 926 n.8 (D.C. Cir. 2006) (noting that “ [t]he Doggett Court appeared concerned generally with D oggett’s awareness vel non that charges were pending against him rather than with his specific knowledge
that a formal indictment had been filed ” ), w e see the Court’s
observation as compatible with a focus on the indictment. If
the defendant did not even know of the charges against him, he necessarily did not know of the later

- rendered formal
indictment that start ed the speedy trial clock. Indeed, t he Court twice pointed to knowledge of the “ indictment ” as39 pertinent , and we cannot conclude that the Court meant to modify this measuring point through its discussion of the
evidence. 20 Other circuits also have treated knowledge of the
indictment as the necessary inquiry. See, e.g.

, United States
v. Molina

- Solorio , 577 F.3d 300, 306 (5th Cir. 2009) (focusing on defendant’s knowledge of the indictment pending against him); Mendoza , 530 F.3d at 763 (same)

.

Having identified knowledge of the indictment as the appropriate measure for the timely assertion of the speedy trial right , we turn to the evidence in th e record, keeping in mind the government’s burden to demonstrate Velazquez’s knowledge. See Barker , 407 U.S. at 529. Although Velazquez’s attorney contacted the U.S. Attorney ’s Office to discuss a possible surrender, and the attorney stipulated that
he r eceived a copy of the arrest warrant and the pre

indictment charges, there is no evidence that either he or

20 However, as we previously noted, supra at 24

- 25, a defendant’s knowledge of the investigation or charges, apa rt from knowledge of the indictment, might bear on the second
Barker factor, the reason for the lengthy delay, as this knowledge might inform a finding that the defendant was evading authorities. This overlap has been noted in the case
law. Justice Brenn an combined what later became the second
and third Barker factors in a concurrence in Dickey , reasoning that consideration of the defendant’s assertion of the speedy

trial right overlaps with consideration of who was responsible for the delay. 398 U.S. at 48 n.12 (Brennan, J., concurring).
The Court in Barker noted that “there is little difference between [Justice Brennan’s] approach and the one” it adopted. 407 U.S. at 530 n.30.40 Velazquez was later told of the indictment. 21 The indictment

was not sent to the attorney, App. 244a , and the government
did not communicate with hi m after the indictment was
issued

. On this record, the most we can say is that Velazquez
learned of the indictment at the time of his arrest. See
Molina

- Solorio , 577 F.3d at 306

- 07 (construing a lack of
evidence that defendant knew of the indictment as w eighing in the defendant’s favor). Velazquez brought his speedy

- trial motion within four months of his arrest, and thus we count this factor in his favor

.

D

. Prejudice suffered by the defendant

As noted, t he district court found that the government was reasonably diligent in pursuing Velazquez, and it thus required Velazquez to show specific prejudice to his defense from the lengthy delay before trial, or as it happens here, his conditional guilty plea

. Velazquez , 2012 WL 2094061

, at *13 (citing Dog gett , 505 U.S. at 656). Because the court erred when it found reasonable diligence, its prejudice analysis compounded that error. Instead of a nalyz ing whether the government could overcome the general presumption that

“ excessive delay

. . . compromises t he reliability of a trial in ways that neither party can prove or, for that matter, identify

, ” Doggett , 505 U.S. at 655

, 22 it found that “ defendant failed to

21 The government argued that he must have known of the charges . The cou rt, however, made no findings on knowledge of the indictment.

22 Doggett identified three types of harm caused by

“ unreasonable delay between formal accusation and trial”: oppressive incarceration, the accused’s increased anxiety, and41 identify any specific witness or piece of evi dence that he now

cannot access, ” Velazquez , 2012 WL 2 094061

, at *14.

To “ warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice. ” Doggett , 505 U.S. at 657

. The Court in Doggett
found that the duration al requirement for relief without specific prejudice was met where the delay attributable to the

g overnment’s negligence was six years, an amount that “ far exceeds the [one

- year] threshold neede d to state a speedy trial
claim

. ” Id. at 658. The defendant was entitled to relief
because the presumption of general prejudice was not

“ persuasively rebutted. ” Id.

The government contends that

, even if th e general presumption of prejudice applies

, it has met its burden of
rebuttal by affirmatively showing tha t Velazquez’s defense is unimpaired. The government notes that the critical meetings and phones calls in the case were all recorded and that Velazquez’s co

- defendants have previously testified about the pertinent events

— leaving the evidence intact, and without the risk of fabrication, despite the trial delay. App. 163a

. The district court a ccepted th e government’s contentions and

“the possibility that the accused ’ s defense will be impaired by dimming memories and loss of exculpatory evidence.” 505

U.S. at 654 ( internal quotation marks omitted). Here only the
last harm is at issue. It is “the most serious . . . because the inability of a defendant ad equately to prepare his case skews the fairness of the entire system.” Id. (internal quotation marks omitted).42 held, as part of its discussion of specific prejudice, that the government had rebutted any showing of general prejudice.

V elazquez , 2012 WL 2094061

, at *13.

Th e government’s reasoning is flawed in two ways. First, it equates the preservation of evidence the government would rely on with the materials Velazquez might need to challenge the government’s case . Th e Court in Doggett recognized that “ impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown. ” 505 U.S. at 655 (internal quotation marks omitted). Not only may Velazquez plausibly claim that his

own recollection of the events at issue has eroded, but he also
has argued that the passage of time makes it harder to investigate an entrapment defense or find witnesses to “ his
whereabouts and involvement. ” Ve lazquez , 2012 WL
2094061

, at *13. Forecasting how faded memories could harm him is precisely the sort of difficult

- to

- obtain proof that supports the finding of general prejudice in a case of extraordinary delay.

Second, the government ’s argument in effe ct turn s its
burden to disprove general prejudice on its head by suggesting that its rebuttal effort must be found successful unless Velazquez can identify prejudice . In Doggett , the Court noted that the government “ ably counter[ed] Doggett’s
efforts to d emonstrate particularized trial prejudice [but] it has not, and probably could not have , affirmatively proved that the delay left his ability to defend himself unimpaired. ”
505 U.S. at 658 n.4 (emphasis added) (citing H. Richard Uviller, Barker v. Wingo: Speedy Trial Gets A Fast Shuffle

, 72 Colum. L. Rev. 1376, 1394

- 1395 (1972)). The Court thus43 indicated that the government faces a high, and potentially insurmountable, hurdle in seeking to dis prove general prejudice where the period of delay is extraordin ar il y long

. 23

23 In the passage of Professor Uviller’s article that the Doggett Court cited as sufficiently analogous to lend support,
Uviller recognized that this burden on the prosecution to prove a negative could be “u nfair since it may require proof by facts inaccessible to the state

. ” Uviller, supra at 1394

. He
nonethe less argued for such a burden:

How can the state prove that no evidence for the
defense was lost or impaired? . . . Proof of a negative is always difficult and in this instance, it may be contended, the task is impossible since the critical facts are known only to the defendant. Further, the argument would run, where the prosecutor must demo nstrate harmless error at trial, he may do so from the record; but since he cannot show lack of prejudice by record citations, a parallel burden would be inappropriate to impose.

The argument is not without merit. Realistically, prejudice lies beyond the capacity of either side to prove or disprove , except in the
rare instance where a known defense witness of known competence actually disappears or reports a recent impairment of memory, and no prior testimony from him is available. Therefore, the shift of burden actually permits the presumption of prejudice to prevail on the

issue . Since that presumption is well

- founded,44 Perhaps the government could make that showing in another

case, but it has not done so here. The presumption of general prejudice, triggered by the government’s extraordinary delay in bringing Velazquez to trial, continues to favor the
defen dant in the application of the Barker speedy trial test.

III.

We recognize the significance of our decision

. A
defendant who pleaded guilty to serious drug charges will no longer have to answer those charges. But we accept such rare outcomes as the ne cessary cost for the protection of the speedy trial right set forth in the Constitution. Here, with respect to the first factor in the Barker analysis, the length of
the delay in bringing Velazquez to trial was extraordinary by any measure. Contrary to t he conclusion of the district court, the government was not reasonably diligent in pursuing the defendant. Indeed, its pursuit of the defendant was strikingly inattentive for five years. Hence, the reason for the delay, the

however, justice is served. The establishment of prejudice, albeit presumptively, does not end the inquiry; it merely focuses attention on other elements wherein impropriety or justification may be more meaningfully discerned.

Id. at 1394

- 95 (emphasis added). We need not resolve in this case whether general prejudice is irrebutable when the period of delay is extraordinarily long. We sim ply note that, in citing the above passage for support, the Doggett Court was keenly aware of the practical difficulties for the prosecution in making such a rebuttal.45 second and most important fact or in the speedy trial analysis, strongly favors the defendant. T he third factor

— the timely

asse rtion of the speedy

- trial right

— benefits the defendant.

As to the fourth factor

, the government did not overcome the presumption of general prejudice that applies with
considerable force in a case of such extraordinary delay. Under these circumstances, all of the Barker factors support the defendant's claim of a violation of his speedy trial right. We must therefore reverse the district court's judgment o f conviction and the related sentence. The indictment against Velazquez must be dismissed with prejudice. We remand for that purpose

.1 JORDAN, Circuit Judge , dissenting

W hether Sergio Velazquez’s constitutional right to a speedy trial was violated is a close question, and, a s my colleagues in the M ajority point out, the answer hinges largely on the reason s for the delay in bringing him to trial

. The primary issue is whether the government exercised reasonable diligence to find him , or, to phrase it differently, whether the government was negligent in its investigation

. My colleagues reject t he District Court ’s determination that the government was not negligent , although that Court held an evidentiary hearing

, carefully considered all of the evidence, and thoughtfully explo red the factual and legal disputes

. I think the Majority is mistaken. W hile the government’s investigative efforts fell well short of

p raiseworthy, they were not so lacking that, on this record,
the District Court’s decision should be seen as reversible

error

. Given that conclusion, and the District Court’s finding
that Vela zquez did not demonstrate specific prejudice from the delay

, we should affirm

. I therefore respectfully dissent
from giving Velazquez a pass for dealing in multiple kilograms of cocaine

.

I.

Considering the government ’s obligation to exercise
reasonable diligence i n bringing a defendant to trial is a n intensely fact

- specific inquiry. “ [T] he precise amount of effort that is required is apt to vary depending o n the circumstances of the case, ” Rayborn v. Scully , 8 58 F.2d 84, 90 (2d Cir. 1988), so understand ing the facts is particularly important. That, of course, is something that district court s , with their fact

- finding capacity, are best suited to accomplish

,2 and we are thus obliged to view a d istrict c ourt’s
determination of reasonable diligence w ith , as the Supreme Court has put it, “ considerable deference.” Doggett v. United

States , 505 U.S. 647, 652 (1992)

. We must review the
District Court’s underlying factual findings regarding a speedy trial claim for clear error

, United States v. Battis , 589
F.3d 673, 677 (3d Cir. 2009)

, and would be well

- advised to think of “considerable deference” in the same terms, given
the context. 1 A finding of fact is, as my colleagues note, clearly erroneous “only if we are left with a definite and firm
conviction that a mistake has been committed.” United States

1 There is a persuasive argument that the “considerable
deference” standard for the reasonable diligence
determination is simply another way of saying “clearly
erroneous review.” In referencing “considerable deference

, ” the Supreme Court in Doggett , 5 05 U.S. at 652, cited Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 401

- 02 (1990) (“The [Supreme] Court has long noted the difficulty of distinguishing between legal and factual issues. ... The
considerations involved in the Rule 11 context are similar to

t hose involved in determining negligence, which is generally reviewed deferentially.”) , and McAllister v. United States

, 348 U.S. 19, 20

- 22 (1954) (finding, in an admiralty case, that a district court’s findings of negligence were not clearly erroneous) . T he Doggett Court also cited a section of Wright and Miller’s Federal Practice and Procedure discussing negligence cases and stating that the “natural” reading of
McAllister is that “a determination of negligence is reviewed under the ‘clearly erroneous’ ru le.” 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2590 (1st ed. 1971) ; see also Doggett , 505 U.S. at 652

.3 v. Lessner , 498 F.3d 185, 199 (3d Cir. 2007)

. It is not enough to be left with lingering questions. 2

The Majority takes issue with two conclusions of the
District Court : that the few investigative steps taken b y the
government between 2005 and 2010 may be excused in light of the more intense but fruitless efforts that preceded and followed that period, and that Velazquez’s off

- the

- grid lifestyle contributed to the delay. While I acknowledge that
fair

- minded peo ple can differ about inferences and conclusions to be drawn from the record, I do not have a
definite and firm conviction that the District Court erred in its handling of those essentially factual issue s or in its ultimate conclusion of reasonable diligenc e.

M y colleagues begin by asserting that “law enforcement priorities have little role to play in the

2 We review legal conclusions regarding a speedy trial claim, including t he balancing of the Barker factors , de novo.

See Battis , 589 F.3d at 677; Hakeem v. Beyer , 990 F.2d 750,

7 71 (3d Cir. 1993). The Supreme Court has held that no single factor is “either a necessary or sufficient condition,”
and the factors “must be considered together with such other

circumstances a s may be relevant.” Barker v. Wingo , 407
U.S. 514, 533 (1972). Even accepting my colleagues’ conclusions regarding the length of delay in this case and Velazquez’s assertion of his right to a speedy trial, however, a defendant’s speedy trial claim will t ypically fail when the government has demonstrated reasonable diligence and the defendant has failed to show specific prejudice. See Doggett

, 505 U.S. at 656.4 negligence calculus.” (Maj. Op. at 2 4 .) I disagree and think it plainly relevant to consider the likelihood that an investigative step will bear fruit w hen con sidering what
actions constitute reasonable diligen ce

. The concept of
“reasonableness” is itself depend ent upon circumstances. “Reasonable diligence” necessarily incorporates the notion that specific circumstances, including but not limited to the constraints operating on the government , factor into what
constitutes a reasonable investigative effort

. The Majority
relies on the Supreme Court’s statement in Doggett that “ ev en if law enforcement inaction ‘ may have reflected no more than [defendant’s] relative unimportance in the world of drug trafficking, it was still findable negligence.’” ( Id. at 23 (quoting Doggett , 50 5 U.S. at 653 )

. ) That statement

, however, does not indicate that prosecutorial judgment about how best to deploy law enforcement re sources should be given little or no weight. It was made in c onjunction with the
observation that, had gove rnment agents in that case tested

“ their progressively more questionable assumption that Doggett was living abroad, ... they could have found him
with in minutes.” Doggett

, 505 U.S. at 652

- 53 . In other words, under the specific circumstances of that case, the lower prosecutorial priority assigned to the defendant di d not

o ffset the government ’s utter failure to act on developments indicating hi s wherea bouts

. 3 Id. It bears repeating that “the

3 I recognize the Supreme Court’s concern that “[c]ondoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority.” Doggett , 505 U.S. at 657. However,
for the reasons disc ussed herein, the delay here was not5 precise amount of effort that is required is apt to vary depending on the circumstances of the case.” Rayborn , 8 58
F.2d at 90.

T he Majority claim s that there is “no evidence in the record to support a finding th at investigators made an actual ‘choice’ not to pursue Velazquez.” (Maj. Op. at 2 4 .) That is not entirely true

. Notably, the District Court found that, after Deputy Degan’s departure, someone continued to work the case, and the Majority acknowledges tha t that person may have been Deputy Cardinal. It is not beyond the pale to believe that the person responsible for the case was making
decisions about how to work it. T o the extent my colleagues
demand a clearer record that some “particular individual”

ma de the decision “to forgo pursuit of Velazquez” ( i d. at 2 4

- 25 ), they miss the mark. Government decision

- making at its best is the product of a deliberative process in which costs and benefits are weighed and reflected in a well

- kept record.
But decision

- making is not always as carefully done or as clearly preserved as we would like, and yet we do not assume that government action s are random. The District Court

unjustifiable. While I do not advocate blind deference to
executive decisions about the allocation of law enforcement resources, I do believe that requiring constant government activity in fugitive cases, regardless of the prospects that such activity will bear fruit, may rightly be perceived as unwelcome and unnecessary judicial meddling in the executive sphere. There is ample room to disagree with
executive decisions on resource allocation before one arrives at the p oint where a constitutional violation should be
declared.6 heard the law enforcement witnesses and evidently believed
that the limited investigative acti vity undertaken from 2005 to 2010 was the product of informed discretion. I am not prepared to say that was clearly erroneous. 4 Nor am I willing to fault the District Court for thinking that later, more intensive but equally fruitless investigation could be seen as

some vindicat ion of an earlier government decision to do less

. It is true that one cannot say that later failure proves

– in a
deductive sense

– that earlier efforts would have failed, but

4 Although, as my colleagues point out, the District Court did not hear directly from any law enforcement officer
who worked on the case between 2005 and 2010 , there was certainly circumstantial ev idence that somebody worked on it after Deputy Degan’s departure

. For example, Deputy Degan
testified that someone in the Marshals Service would have been assigned to the case, and somebody in the Marshals
Service did indeed r u n period NCIC checks between 2005
and 2010

. In addition, DEA Agent Pedrini made sure that Velazquez’s warrant remained active in the NCIC during that
time and was in contact with the Marshals Service to see if there was any new information on the case. The Majority
seems to think t hat the level of deference I believe should be given to the District Court’s “reasonable diligence” ruling amounts to no review at all. ( See Maj. Op. at 2 5 n.15.) That is a basic disagreement. I believe a reasonable inference that someone was assigned a nd working the case can be drawn from the record, and, again, under clear error review, I am not left with a definite and firm conviction that, in light of the totality of the circumstances, the District Court erred in concluding that the work done was suf ficient to constitute reasonable diligence.7 those points of failure may add up inductively to allo w a reasonable mind to determine that earlier decisions to do less were grounded in something better than sheer laziness.

T he Majority make s too much of the fact that the re is
no record of the government taking all of the investigative steps suggested by Deputy Degan in 2005

. The District Court
was well aware that there was “no direct evidence that authorities in California exhausted the leads in Deputy Degan’s collateral request.” (App. at 20a.) However, it
found that the additional leads were “far mor e speculative than [Velazquez’s] connection to the Woodward Avenue

ad dress” ( id. )

, and it credited Deputy Degan ’s “belie [f] that work was underway on [his] request ” ( id. at 7a )

. In other words, the Court accepted the deputy’s u nderstanding of how
the Mars hal s Service works, and it was entitled to do so. 5

5 I note p arenthetically my disagreement with any implication in the Majority opinion that Deputy Degan’s suggested li st of investigative steps should be viewed as the measure of reasonable diligence. (Maj. Op. at 3 2.) Though my colleagues disclaim relying on it ( see id. at 3 2 n.17), a reader might nonetheless conclude that the references to that list are meant to give it weight. One officer’s investigative suggestions to another on the opposite side of the co untry

, however, may vary from what the receiving officer’s local experience tells him will and will no t be worthwhile. That difference of opinion does not make the receiving officer a slacker. Moreover, we risk building a perverse incentive into the syst em if we turn suggestions into requirements. There

may be fewer suggestions committed to paper if deputy
marshals believe that courts will turn unfollowed lead s into “stay out of jail free” cards for fugitives.8 There is no dispute that, between August and November 2005, the government entered information about the charges against Velazquez into NCIC, 6 searched other databases for information, sent the 2005 coll ateral request to authorities in California to seek help, and visited the Woodward Avenue address, all to no avail. Between November 2005 and November 2010, the government periodically ran Velazquez’s name through NCIC and made
sure that the warrant was s till in the system. 7 No additional
leads surfaced until a database check in November 2010

6 “NCIC,” as the Majority notes, is the acr onym for the
National Crime Information Center , a database of criminal justice information.

7 Velazquez relies on United States v. Fernandes , 618 F. Supp. 2d 62 (D.D.C. 2009), and United States v. Mendoza

, 530 F.3d 758 (9th Cir. 2008), for the proposition that merely entering names into a database

– as he characterizes the government’s efforts between November 2005 and November

2010

– is insufficient to meet reasonable diligence. As the District Court noted, however, both cases are distinguishable
because they are extradition cases involving fugitive defendants who had left the country. Periodically entering a fugitive’s name into a national warrant database when the individual is believed to still be in the country, as is the case here, provides some cha nce that the fugitive might be found by authorities somewhere within the United States. It cannot be compared to doing the same for a fugitive believed to be outside of the country, in which case extradition is “the most obvious step” to bring that person promptly back for trial.
Fernandes , 618 F. Supp. 2d at 71

.9 revealed a new place of employment for Velazquez. Given
th os e circumstances, it wa s not clearly erroneous for the District Court to conclude that deputies could “ in fer [] failure ” would have dogged further pre

- 2010 efforts in California to find Velazquez

. ( Id. at 21a

. ) It was, in turn, not clearly
erroneous to decide that “the government reasonably elected
to conserve its resources and wait for new information or a change in circumstances.” ( Id. )

My colleagues in the Majority also reject the District
Court ’s determination that , purposefully or not, Velazquez ’s
decisions made it difficult for the government to find him

. T he Majority does acknowledge that “the absen ce of a paper trail for a defendant might leave the government with fewer avenues for investigation ” (Maj. Op. at 30 ) , but it gives that
fact short shrift and instead expresses concern that taking account of a fugitive’s “transient” lifestyle “ would likely be felt disproportionately by those in more limited economic circumstances” ( id. )

. That concern is more a matter of speculation than proof at this point, b ut

, assuming it is true

, that does not address the investigative reality confronting the
government both generally and in this case specifically

. First, as a general matter, l aw enforcement decisions made under budgetary constraints and without any hint of improper motivation should not be overturned because of a vague concern that being hard to find i s peculiar to the poor. 8 More specifically, however, in this case there was significant

8 There may be significant challenges tracking people at the other end of the economic scale too, since a person of means who is constantly traveling or moving among multiple addresses may be as difficult to find as someone who is not
well

- rooted in society.10 evidence indicating that V elazquez was quite deliberately hard to find, which is understandable since, as the Majority

notes, “the record would support a finding that Velazquez was aware that he was being sought in connection with the [underlying] drug transaction.” ( Id. at 2 9 .) The District Court thought it unnecessary to take the final step of concluding that Velazquez was deliberately evading authorities, though it did note that the evidence “strongly supports the infe rence that [Velazquez] did hide. ” (App. at 20a.) That evidence, and the District Court’s comment on it, should make us leery of overturning the Court’s determination that the government’s investigati ve efforts were reasonably diligent under the circumstances.

In sum

, while law enforcement officers certainly could
have done more to search for Velazquez, particularly between
2005 and late 2010

, they were not obligated to take every possible action and chase every lead. See Rayborn , 858 F.2d at 90 ( noting that the government must exercise only “ du e diligence” and not “heroic efforts”). Given the considerable
deference that we must give the District Court’s finding of reasonable diligence, I would accep t it and turn attention to the question of prejudice

.

II.

Because the government sufficiently demonstrated reasonable diligence

, the District Court required Velazquez to show that he would suffer specific prejudice , not just general prejudice, from the passage of time in order to prevail on his speedy trial claim. That decision was in keeping with the Supreme Court’s instruction in Doggett , in which the Court held that, when the government has been negligent in its11 investigation and the delay is excessi vely long, “consideration of prejudice is not limited to the specifically demonstrable

, ” and defendants may claim prejudice without providing “affirmative proof of particularized prejudice.” Doggett , 505
U.S. at 655. Conversely , if the government can sho w that it “pursued [a defendant] with reasonable diligence from his
indictment to his arrest”

– as the District Court concluded the government did here

– then the defendant’s right to a speedy
trial claim w ill fail, regardless of the length of delay

, unles s the defendant can show specific prejudice to his defense. Id.
at 656.

The Majority rightly notes that in general t here are

t hree types of prejudice that can result from delay: (1) oppressive pretrial incarceration; (2) the defendant ’s anxiety

and conce rn over t he outcome of the litigation; and (3) impairment of the defense. Battis , 589 F.3d at 682. The prejudice that Velazquez asserts is impairment of his de fense.

“[T]he possibility that the

... defense will be impaired by dimming memories and loss of exculpatory evidence” is the most important form of prejudice faced by a defendant when his right to speedy trial is denied. Doggett , 505 U.S. at 654 (internal quotation marks omitted); see also Barker v. Wingo , 407 U.S. 514, 532 (1972) (“[I]nability of a defendant adequately to prepare his case skews the fairness of the entire system.”). Generally, the burden of showing prejudice is on the individual claiming the violation, see Hakeem v. Beyer

, 990 F.2d 750, 760 (3d Cir. 1993) , and the mere “ possibility of prejudice is not sufficient to support [the] position that

... speedy trial rights were violated.” United States v. Loud
Hawk , 474 U.S. 302, 315 (1986) (emphasis added). In
Hakeem v. Beyer , one of the defendants argued that he would12 suffer prejudice bec ause the delay prevented him from calling witnesses to corroborate his alibi defense to robbery. 990 F.2d at 763. We rejected that argument, holding that , absent extreme circumstances, “[g]eneral allegations that witnesses’
memories have faded are insuff icient to create prejudice.” Id.

As the District Court observed , Velazquez “relie s almost exclusively on the general assertion that he is prejudiced by the passage of time because w itnesses to his whereabouts and involvements may be impossible to locate and those witnesses that are available will have impaired memories.” (App. at 25a ( internal quotation marks omitted ).) I agree with the District Court that Velazquez’s claims in this regard are “too general and too speculative” to demonstrate specific pr ejudice. ( Id. )

Velazquez also argue s that his ability to inves tigate an entrapment defense has been impaired. A s the Court pointed

out, however, the informant’s conversations with Velazquez on July 3, 2005 and those that took place over the phone were
recorded

, and the tes timony from co

- defendants Pedro Curiel
and Nelson Gutierrez

- Gainza at Gutierrez

- Gainza’s trial is
available. Velazquez “failed to identify any specific witness or piece of evidence that he now cannot access.” ( Id. at 26a.)

Becaus e Velazquez did not carry his burden of proving particularized prejudice, the District Court correctly
determined that , under the circumstances of the case, he did
not demonstrate a right to relief

. III

.

This case presents a serious question regarding the
unusual delay between indictment and trial , but I believe the13 District Court handled the matter wisely and well, and I

w ould therefore affirm its decision that Velazquez’s
constitutional right to a speedy trial was not violated

. I thus respectfully disse nt

.