2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-14-2014

USA v. Sergio Velazquez

Precedential or Non-Precedential: Precedential

Docket No. 12-3992

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Sergio Velazquez" (2014). 2014 Decisions. Paper 399.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/399
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3992

_____________

UNITED STATES OF AMERICA

v.

SERGIO VELAZQUEZ,

 Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-05-cr-00432-003)

District Judge: Honorable Jan E. DuBois

Argued October 17, 2013
2

Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges

(Opinion Filed: April 14, 2014)

Jerome 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

Bernadette 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 for 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 an

initial effort to apprehend the defendant, 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 the authorities in this case revived 

their efforts after the five-year lull, the defendant happened to 

be caught when he was arrested on an unrelated matter. 

Applying the four-factor test from Barker v. Wingo, 407 U.S. 

514 (1972), and the Supreme Court’s elaboration of those 

factors in Doggett v. United States, 505 U.S. 647 (1992), we

conclude that the government violated defendant’s speedy 

trial right. Thus we reverse the district court’s denial of 

defendant’s motion to dismiss on speedy trial grounds, and

remand the case with instructions to dismiss the indictment

with prejudice. 

I.

We recount the basic facts of the investigation,

drawing from the testimony and reports before the district 
4

court detailing efforts to bring defendant Sergio Velazquez to 

trial.1 

A. The drug investigation

The Drug Enforcement Administration (“DEA”) began

investigating Velazquez in June 2005, after receiving a tip 

that he was interested in selling 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, recording discussions of a plan to sell between five 

and ten kilograms of cocaine. App. 149a-53a. After the 

meeting, the DEA had Philadelphia police stop Curiel and 

Velazquez’s car to identify the men. App. 150a-51a. The 

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. He 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 then met co-defendant Nelkis 

Gutierrez-Gainza at a truck stop. App. 152a-54a. GutierrezGainza 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

The co-defendants were indicted on August 2, 2005; a

complaint and arrest warrant issued for Velazquez the next 

day. David Pedrini, a DEA special agent in Philadelphia, 

testified before the district court that he had a fellow agent 

from Los Angeles, Steve Pascoe, go to 6340 Woodward 

Avenue, Bell, California (“Woodward Avenue address”), an 

address that Pedrini had learned was “associated with”

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 Marshals 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, about the Woodward Avenue address. 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,3and into a Marshals 

 

2

It appears this link was based 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 agency 
6

Service information system called the Warrant Information 

Network. App. 277a-280a. Among the various pieces of 

information he entered were Velazquez’s name, aliases,4his 

alien registration number, his Social Security number, a 

physical description, his driver’s license, and the Box 2901 

address. Id. Entering 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 enforcement agent 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. For 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 

Velazquez-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 jurisdiction. App. 175a-76a. The request, 

dated October 7, 2005, sought help from the Marshals Service

taskforce in the Los Angeles area, which consisted of 

marshals and local law enforcement officers. See App. 284a85a, 385a. Degan’s request noted the unfruitful 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 databases:

- 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 Park, CA address associated with 

Cecilio Vasquez (relationship 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 “if all leads . . . are exhausted, please 

interview his parents” at the Pico Rivera address, “and his 

brother, Elias Velasquez.” App. 386a.

C. Deputy Degan’s testimony about the response

to his report

Degan transferred from his position at the Marshals 

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, it appeared that his

collateral request was received. 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 Degan “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 

whether he thought the report was received, see App. 289a.
9

communications from the taskforce in Los Angeles about his 

request. App. 289a-90a, 300a-02a.

D. Communication with Velazquez’s attorney; 

superseding indictment

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) (underlying 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 

Velazquez appeared at the arraignment in Philadelphia in 

December 2005. Appointed local counsel entered 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 indictment. 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 2005 until November 2010, 

authorities checked the NCIC eight times to see if any law 

enforcement agency 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 year to make sure the 

office was still willing to prosecute. He also made sure the 

warrant was still active in the NCIC, and he contacted the 

Marshals 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 2010 
11

in January 2007, September 2007, October 2008, and October 

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 was 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 database. See App. 158a-61a. 

 

included periodic checks of commercial databases (such 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 testifying 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 closing 

argument before the district court that 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 further steps taken to find 

Velazquez in this five-year period. No law enforcement 

agency tried to visit the addresses Deputy Degan identified in 

his 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 address, 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 

governmental 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 App. 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 

officer 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 the 

absence of a written response could mean that someone was 

still working on the investigation. Id. Nevertheless, there 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 had 
13

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 

considered 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. Efforts from November 2010 to June 2011; new 

collateral request

Ilagan’s first step was to run an NCIC check, along 

with a search of a Lexis-Nexis database that compiles 

information from public and commercial records. App. 174a75a, 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 2037”) 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 that 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, 136a. Velazquez has represented that Box 

2037 and Box 2901 were in the same post office, Appellant’s 
14

calling the garage and asking for Velazquez, but the business 

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

periodically to check databases. In 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 Ilagan 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 address, 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 

was 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 address that Velazquez 

at times listed for his home, and that turned out 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 

searched 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. Investigative steps in the summer of 2011

Ilagan’s request was 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 

notifying him that it appeared Velazquez had applied to 

renew his permanent resident card because the FBI received 

fingerprint submissions from the 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 arresting 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 

have 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. 314a15a, 414a. Those notes reflect that he “sat surveillance” at 

the Woodward Avenue 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 enforcement 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 not 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 surveilled the Norwalk address on July 20, 2011, 

and went to an address in Baldwin Park, CA, that he thought 

might 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 Velazquez. App. 412a-13a, 323a-26a.

H. December 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 remained willing to prosecute 

Velazquez for the 2005 charges. App. 161a-62a. Velazquez 

was then served with the arrest warrant and extradited to the 

Eastern District of Pennsylvania. Id.

On March 28, 2012, Velazquez filed a motion to 

dismiss the indictment on the basis of a speedy trial violation. 

App. 62a. The 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 defense 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 court explained that the failed efforts to find 

Velazquez at the Woodward Avenue address in August 2005 
17

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 government 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” lifestyle. 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 2012 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 asserted his speedy trial 

right; and (4) the prejudice suffered by the defendant. 407 

U.S. at 530-31. “[N]o one factor is dispositive nor 

‘talismanic.’” Hakeem v. Beyer, 990 F.2d 750, 770 (3d Cir. 

1993) (quoting Barker, 407 U.S. at 533). We review de novo 

 

14 The district court 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 case 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 it should trigger

analysis of other Barker factors. Id. If it is, the length of the 

delay is also separately weighed in the court’s analysis of the
19

remaining factors. Id. The Supreme Court has noted that 

“the lower courts have generally found ‘postaccusation 

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 factors,” 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. 

The 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 understandably 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 arrest and trial of over five 

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

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

arrest clearly suffices to trigger the speedy trial enquiry”). 

Accordingly, we 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 accused 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. Bad-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

enquiry has been triggered. See Hakeem, 990 F.2d 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).

Negligence over a sufficiently long period can 

establish a general presumption that the defendant’s ability to 

present a defense is impaired, meaning that a defendant can 

prevail on his claim despite not having shown specific 

prejudice. See Doggett, 505 U.S. at 658 (finding a speedy 

trial violation based on general prejudice where government’s 

negligence 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 exculpatory evidence and testimony ‘can rarely be 

shown.’” Id. at 655 (quoting Barker, 407 U.S. at 532). “Thus, 

we generally have to recognize that excessive delay 

presumptively compromises the reliability of a trial in ways 
21

that neither party can prove or, for that matter, identify.” 

Doggett, 505 U.S. at 655.

This general 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 counter[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 protractedness, 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 

interests 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; the 

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 diligence” 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 responsibility for the delay, id. at *10. We review 

the trial court’s determination that the government was not

negligent with considerable deference. See Doggett, 505 U.S. 

at 652. The factual findings supporting that determination are 

reviewed for clear error. “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. Reasonable choice

In its factual recitation, the district court stated that the 

Marshals Service and the DEA efforts to find Velazquez 

between November 2005 and November 2010 “were limited 

to periodic checks of the NCIC Wanted Persons database and 

the commercial 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. at 
23

*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, the 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 Velazquez “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, we question the pertinence of 

either finding to the “reasonable diligence” inquiry here. The 

Supreme Court observed in Doggett that even 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 to 
24

gamble with the interests of criminal suspects assigned a low 

prosecutorial priority.”). We read this language to say that 

law enforcement priorities 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 speedy trial right.

Furthermore, 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, the government did not 

offer the tactical choice justification 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 reason 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 does 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, Ilagan 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 case 

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 the record does not support a finding that any 

particular individual — including Deputy Cardinal — was 

that somebody. Consequently, there is no evidence of a 
25

decision by anyone to forgo pursuit of Velazquez to conserve 

resources. Indeed, given the priority status that Degan said 

would ordinarily have been given to such a case, the five 

years of inaction are more indicative of inattention than an 

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 limited investigative 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 to 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. 

247a. 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 

for 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 unsupported 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 delay, and would reduce clear error review 

to a mere formality. Deferential review is still review. 
26

The district court’s finding that attentive pursuit 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 agent familiar with investigative steps already 

taken, exhausting the available 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 

collateral request filed by Deputy Ilagan. Among other leads, 

Dominguez learned 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 follow 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 in 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 

limit 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 lifestyle — adequately supports the 

finding of reasonable diligence during the period from 2005 

to 2011.
27

2. Defendant’s conduct

The government seeks to attribute the delay in 

apprehending Velazquez to his own conduct — which it 

characterizes as evasive — rather than to the lack of effort by 

law enforcement authorities. At one point in its analysis, the 

district court appeared to agree that the evidence would 

support a finding of evasion. The court reasoned that the 

government’s inability to find Velazquez 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 defendant 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 characterizing Velazquez’s lifestyle as 

“transient.” Velazquez, 2012 WL 2094061 at *10. In the 

court’s view, even if Velazquez did not deliberately conceal 

his whereabouts, his 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 

post 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)). The government did not frame its argument before 

the district court in terms of a “transient” lifestyle, see 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. 

Although the 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 record supports a 

finding of deliberate evasion by Velazquez and whether the

government can justify its meager search by blaming

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 motive 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 

receive 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. Indeed, he used the same addresses in 

his 1998 application for a replacement 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 enforcement 

manhunt. 
29

Other evidence also undermines the inference of a 

furtive life. Various documents from 2010 onward show that 

Velazquez consistently listed Box 2037 as his address, and he 

went to retrieve his mail at the post office so 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 documents submitted during the period he was 

being sought also contained Velazquez’s name and 

identifying information. See, e.g., App. 122a-27a (application

in 2011 to replace alien registration card); App. 78a-82a

(birth records for three children born between 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 changes in his behavior over time 

that could be attributed to a deliberate effort after 2005 to 

evade 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 pursue 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., concurring) (“The 

accused has no duty to bring on his trial.”); Mendoza, 530 
30

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 could 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 inaction based on

Velazquez’s “transient” life, we have serious doubts that this 

characterization is helpful in the reasonable diligence inquiry. 

To be sure, the government can only pursue reasonably 

available leads, and the absence of a paper trail for a 

defendant 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” adds 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. 505 U.S. at 652. Moreover, this risk would likely 

be felt disproportionately by those in more limited economic 

circumstances, unfairly lessening 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 periodically checked for the 

defendant at two motels and had verified that he occasionally 
31

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 on 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 power 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 reasonable diligence determination

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 arrested. 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 Ilagan’s assumption 

of control over the investigation 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 we doubt that such negligible effort could be 

deemed “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 prescription 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 we 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

Philadelphia DEA office, Degan listed a number of addresses 

that the Marshals Service taskforce could explore if DEA 

agents had not already done so. He expressly 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 sent mail to his PO box or the 

Woodward Avenue address or sought out a relative to relay a 

request that Velazquez turn himself in. Cf. Mendoza, 530 

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, the 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; see 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 have reviewed United States v. 

Spaulding, 322 Fed. App’x 942 (11th 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 responsible for the 

delay in finding Velazquez. Spaulding involved government 
34

factor — the reason for the delay — squarely favors

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 government was not reasonably 

diligent for the five-year period from 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 diligent 

here would require 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 frequency 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 

Velazquez 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 waives his speedy-trial right “for 

any period prior to which he has not demanded a trial.” Id. at 

525. The Court observed that such an approach presumed the 

“waiver of a fundamental 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 establishing waiver, “[c]ourts 

should indulge every reasonable 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 notion 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 waiver 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 considered the defendant’s failure to object 

to eleven continuances lasting a total of more than three-anda-half years, followed by the defendant’s motion to dismiss 

and his opposition to several 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 observed 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. 505 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 the indictment — rather than 

knowledge of earlier events, such as an investigation or an 
37

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. 307 (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 arrest. 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, subject 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 restraints 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 the concerns arising from an arrest, 

“[i]nvocation of the speedy trial provision . . . need 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 constitutional speedy 

trial clock does not start for 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 Trial 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 seventy 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 assertion of his

speedy trial right, undoubtedly stems from the previously 

recognized importance 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 that 

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 Doggett’s awareness vel non that charges were 

pending against him rather than with his specific knowledge 

that a formal indictment had been filed”), we 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 started the speedy trial clock. Indeed, the 

Court twice pointed to knowledge of the “indictment” as 
39

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 the 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 received a copy of the arrest warrant and the preindictment 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, apart 

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 Brennan 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 speedytrial 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 him 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 weighing 

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, the 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 Doggett, 505 U.S. at 656). Because the court erred 

when it found reasonable diligence, its prejudice analysis 

compounded that error. Instead of analyzing whether the 

government could overcome the general presumption that 

“excessive delay . . . compromises the 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 court, 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, and 
41

identify any specific witness or piece of evidence that he now 

cannot access,” Velazquez, 2012 WL 2094061, 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 durational requirement for relief without 

specific prejudice was met where the delay attributable to the 

government’s negligence was six years, an amount that “far 

exceeds the [one-year] threshold needed 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 the general 

presumption of prejudice applies, it has met its burden of 

rebuttal by affirmatively showing that 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 accepted the 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 adequately 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. 

Velazquez, 2012 WL 2094061, at *13.

 The 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. The 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.” Velazquez, 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 effect turns 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 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.” 

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 thus 
43

indicated that the government faces a high, and potentially 

insurmountable, hurdle in seeking to disprove general 

prejudice where the period of delay is extraordinarily 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 “unfair since it may require proof 

by facts inaccessible to the state.” Uviller, supra at 1394. He

nonetheless 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 demonstrate 

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 

defendant 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 necessary 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 the 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 simply 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 factor in the speedy trial analysis, 

strongly favors the defendant. The third factor — the timely 

assertion 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 of 

conviction and the related sentence. The indictment against 

Velazquez must be dismissed with prejudice. We remand for 

that purpose.
1

JORDAN, Circuit Judge, dissenting

Whether Sergio Velazquez’s constitutional right to a 

speedy trial was violated is a close question, and, as my 

colleagues in the Majority point out, the answer hinges 

largely on the reasons 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 the 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 explored the factual and legal 

disputes. I think the Majority is mistaken. While the 

government’s investigative efforts fell well short of 

praiseworthy, 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 Velazquez 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 in bringing a defendant to trial is an 

intensely fact-specific inquiry. “[T]he precise amount of 

effort that is required is apt to vary depending on the 

circumstances of the case,” Rayborn v. Scully, 858 F.2d 84, 

90 (2d Cir. 1988), so understanding the facts is particularly 

important. That, of course, is something that district courts, 

with their fact-finding capacity, are best suited to accomplish, 
2

and we are thus obliged to view a district court’s 

determination of reasonable diligence with, 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, 505 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 

those 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). The 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’ rule.” 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 by 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 people 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 issues or in its ultimate 

conclusion of reasonable diligence.

My 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 the balancing of the Barker factors, de novo.

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

771 (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 as 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 typically 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 24.) I disagree and think 

it plainly relevant to consider the likelihood that an 

investigative step will bear fruit when considering what 

actions constitute reasonable diligence. The concept of 

“reasonableness” is itself dependent 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 “even 

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, 505 U.S. at 653).) That statement, 

however, does not indicate that prosecutorial judgment about 

how best to deploy law enforcement resources should be 

given little or no weight. It was made in conjunction with the 

observation that, had government agents in that case tested 

“their progressively more questionable assumption that 

Doggett was living abroad, ... they could have found him 

within 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 did not 

offset the government’s utter failure to act on developments 

indicating his whereabouts.

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 discussed herein, the delay here was not 
5

precise amount of effort that is required is apt to vary 

depending on the circumstances of the case.” Rayborn, 858 

F.2d at 90.

The Majority claims that there is “no evidence in the 

record to support a finding that investigators made an actual 

‘choice’ not to pursue Velazquez.” (Maj. Op. at 24.) 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 that 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. To the extent my colleagues 

demand a clearer record that some “particular individual” 

made the decision “to forgo pursuit of Velazquez” (id. at 24-

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 actions 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 point where a constitutional violation should be 

declared.
6

heard the law enforcement witnesses and evidently believed 

that the limited investigative activity 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 vindication 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 evidence 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 run 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 that 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 25 n.15.) That 

is a basic disagreement. I believe a reasonable inference that 

someone was assigned and 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 sufficient to constitute 

reasonable diligence.
7

those points of failure may add up inductively to allow a 

reasonable mind to determine that earlier decisions to do less 

were grounded in something better than sheer laziness.

The Majority makes too much of the fact that there 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 more speculative 

than [Velazquez’s] connection to the Woodward Avenue 

address” (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 understanding of how 

the Marshals Service works, and it was entitled to do so.5 

 

5

I note parenthetically my disagreement with any 

implication in the Majority opinion that Deputy Degan’s 

suggested list of investigative steps should be viewed as the 

measure of reasonable diligence. (Maj. Op. at 32.) Though 

my colleagues disclaim relying on it (see id. at 32 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 country, 

however, may vary from what the receiving officer’s local 

experience tells him will and will not be worthwhile. That 

difference of opinion does not make the receiving officer a 

slacker. Moreover, we risk building a perverse incentive into 

the system if we turn suggestions into requirements. There 

may be fewer suggestions committed to paper if deputy 

marshals believe that courts will turn unfollowed leads 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,6searched other 

databases for information, sent the 2005 collateral 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 still in the system.7 No additional 

leads surfaced until a database check in November 2010 

 

6

“NCIC,” as the Majority notes, is the acronym 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 chance 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 

those circumstances, it was not clearly erroneous for the 

District Court to conclude that deputies could “infer[] 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. 

The Majority does acknowledge that “the absence 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, but, 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, law 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 is 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 Velazquez 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 29.) 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 inference 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 investigative 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 “due 

diligence” and not “heroic efforts”). Given the considerable 

deference that we must give the District Court’s finding of 

reasonable diligence, I would accept 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 its 
11

investigation and the delay is excessively 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 show 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 will fail, regardless of the length of delay, unless 

the defendant can show specific prejudice to his defense. Id.

at 656.

The Majority rightly notes that in general there are 

three types of prejudice that can result from delay: (1) 

oppressive pretrial incarceration; (2) the defendant’s anxiety 

and concern over the 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 defense.

“[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 would 
12

suffer prejudice because 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 insufficient to create prejudice.” Id.

As the District Court observed, Velazquez “relies

almost exclusively on the general assertion that he is 

prejudiced by the passage of time because witnesses 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 prejudice. (Id.) 

Velazquez also argues that his ability to investigate an 

entrapment defense has been impaired. As 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 testimony 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.)

Because 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 the 
13

District Court handled the matter wisely and well, and I 

would therefore affirm its decision that Velazquez’s 

constitutional right to a speedy trial was not violated. I thus 

respectfully dissent.