[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-12091

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D.C. Docket No. 1:13-cr-00463-LMM-LTW-2

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

 versus

DAVID LAZARO OLIVA, 

a.k.a. Davisito,

 Defendant–Appellant.

________________________

No. 17-11497

________________________

D.C. Docket No. 1:13-cr-00463-LMM-LTW-1

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

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 versus

RAFAEL GOMEZ URANGA, 

 Defendant–Appellant.

________________________

Appeals from the United States District Court

for the Northern District of Georgia

________________________

(September 18, 2018)

Before WILSON and NEWSOM, Circuit Judges, and VINSON,∗ District Judge.

PER CURIAM: 

This case begins with two large-scale warehouse burglaries in October and 

November of 2011. After a lengthy investigation, David Lazaro Oliva and Rafael 

Gomez Uranga were indicted in November 2013 in connection with those 

burglaries and charged with conspiracy to commit interstate transportation of 

stolen property, in violation of 18 U.S.C. § 371, and aiding and abetting the 

interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314 and 2. 

They were arrested on these charges nearly twenty-three months later, in October 

2015. While in the District Court, Oliva and Uranga moved to dismiss the 

 

∗

Honorable C. Roger Vinson, United States District Judge for the Northern District of 

Florida, sitting by designation.

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indictment based on a Sixth Amendment speedy trial violation. The motions were 

referred to a Magistrate Judge, who held an evidentiary hearing and entered a 

report and recommendation. The Magistrate Judge found that the delay between 

indictment and arrest was the result of the Government’s gross negligence, but she 

ultimately recommended that the motions be denied. The District Court agreed

with the Magistrate Judge’s recommendation. Subsequently, Oliva and Uranga

pled guilty to the conspiracy charge, retaining the right to appeal the District 

Court’s denial of their motions to dismiss. They do so in this consolidated appeal. 

Although the lengthy delay between the indictment and arrest was the result 

of the Government’s negligence, we hold that the delay did not amount to a Sixth 

Amendment violation. Accordingly, we affirm. 

I.

On October 23, 2011, a group of men burglarized a SouthernLinc warehouse 

in Gwinnett County, Georgia. They escaped with a truckload of cellphones valued 

at $1,789,980. Another group of men attempted a similar burglary of a Max Group 

warehouse, also located in Gwinnett County, on November 28, 2011.1

 This group, 

 

1 The extent to which the personnel overlapped between the two burglaries is not clear 

from the record. 

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however, tripped the warehouse’s burglary alarm, causing the police to arrive at

the site. Uranga was arrested in his SUV near the Max Group location.2

The FBI opened an investigation into the burglaries on November 21, 2011.

3

 

On or about March 27, 2012, Michael Donnelly, a Gwinnett County Police 

Department officer serving as an FBI Task Force Officer, was assigned as the sole 

investigator in the case. This was Donnelly’s first time serving as a solo

investigator. His expansive investigation involved, inter alia, twenty-five 

witnesses located across various states, nine suspects, nearly 100 exhibits, shoetread analysis, and numerous search warrants. Donnelly’s investigation continued 

until at least June 2013. 

Oliva and Uranga were indicted by a federal grand jury on November 25, 

2013, about two years after the attempted Max Group warehouse burglary. 

Donnelly was responsible for locating and arresting the Appellants, but he 

mistakenly believed that this was the United States Marshals Service’s (“USMS”) 

 

2 Four other men were in Uranga’s SUV, and they escaped on foot. The record does not 

specify whether Oliva was one of these men. The record indicates only that Oliva rented a UHaul truck shortly before both burglaries and that the person who attempted to sell the stolen 

phones identified Oliva as “part of a robbery crew.” Uranga, on the other hand, was linked to the 

Max Group burglary by video, shoe prints, and proximity; and he was linked to the SouthernLinc 

burglary by a similar modus operandi and cellphone location data and records. 

3 The parties’ briefing, the Magistrate Judge’s report and recommendation, and the 

District Court order at issue all state that the FBI opened the investigation into “both” burglaries 

on November 21, 2011, before the Max Group burglary was attempted. The District Court noted 

that “presumably the investigation began with the first burglary only but then incorporated the 

second burglary once it was committed.” We, too, assume this to be the case. 

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responsibility.

4

 In or around January 2014, Donnelly realized that nothing was 

happening with the case and conferred with Josh Thompson, another FBI Task 

Force Officer who had recently worked with the USMS. Donnelly gave Thompson 

copies of the arrest warrants and possible locations of the Appellants, and asked 

Thompson to communicate with the USMS about locating them. 

According to Thompson’s testimony during the evidentiary hearing before

the Magistrate Judge, he called someone from the USMS within a month after

conferring with Donnelly and learned that Marshals are not responsible for 

executing arrest warrants when the FBI controls the case. Then, not more than a 

month later, in or around February or March 2014, Thompson met with Donnelly 

to return the warrants, and the two discussed some information. Neither could 

recall at the evidentiary hearing exactly what was discussed when Thompson 

returned the warrants. Thompson testified, however, that he did not inform 

Donnelly that the FBI handles its own arrests, and that Donnelly did not ask about 

FBI procedure or whether the USMS would begin locating the Appellants. 

Donnelly testified at the same evidentiary hearing that, after this second meeting 

with Thompson, he was not under the impression that he was responsible for 

arresting the Appellants. Donnelly never followed up with the USMS about the 

 

4 Donnelly believed this because in Gwinnett County, the investigating officer is not 

responsible for locating and arresting defendants—that task falls to the Sheriff’s Department—

and he just assumed that it worked the same way in the federal system with respect to the USMS. 

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matter. There was also no communication between Donnelly and the U.S. 

Attorney’s Office concerning the arrests. The Assistant U.S. Attorney who 

secured the indictment, Karlyn Hunter, left the U.S. Attorney’s Office in 

September 2014 (almost a year after the indictment), and a new prosecutor was not 

assigned to the case until October 2015 (more than a year thereafter). Donnelly 

had no contact with the U.S. Attorney’s Office during this two-year period. 

Donnelly took no further action on the case until late September or early 

October of 2015, when his supervisor informed him that he, not the USMS, was 

responsible for locating and arresting the Appellants. Donnelly began searching 

for them within twenty-four hours after receiving this information. Notably, 

counsel for the Appellants conceded at oral argument that there was no evidence of 

bad faith in this case and that the speed with which Donnelly acted after he learned 

that he was responsible for making the arrests suggested the delay “probably was 

an honest mistake.”5 Uranga was ultimately arrested in the Southern District of 

 

5 In her report and recommendation, the Magistrate Judge stated that it was 

“inexplicabl[e]” and “defie[d] logic” that Donnelly and Thompson did not discuss the FBI’s 

responsibility for handling its own arrests at the time that Thompson returned the warrants in 

February or March 2014. The Appellants argued in their briefs on appeal that this language 

constitutes a finding by the Magistrate Judge—the only judge to hear the testimony—that 

Donnelly’s claim of lack of knowledge of the FBI’s responsibility for making the arrests was not 

credible. We have two things to say about that. First, as the District Court rightly noted, the 

Magistrate Judge did not say that their testimony was not credible. Rather, the language that she 

used (“inexplicabl[e]” and “defie[d] logic”) merely acknowledged that their actions were 

puzzling and not logical. Second, the Appellants’ argument in their briefs on this point is 

difficult to reconcile with the position that they took at oral argument. As just noted in the text 

above, counsel for the Appellants conceded at oral argument that there was no evidence of bad 

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Florida on October 9, 2015,6 and Oliva was arrested in the Southern District of 

New York four days later. 

On December 11, 2015, Uranga moved to dismiss the indictment for lack of 

a speedy trial. Oliva did the same about three months later. 

II.

The Sixth Amendment to the United States Constitution provides that “[i]n 

all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial[.]” 

In light of the “unique policies” underlying the speedy trial right, courts must “set 

aside any judgment of conviction, vacate any sentence imposed, and dismiss the 

indictment” if the right is violated. United States v. Villarreal, 613 F.3d 1344, 

1349 (11th Cir. 2010). 

This Circuit assesses speedy trial claims under the four-factor test derived 

from Barker v. Wingo, weighing (1) the length of the delay, (2) the reason for the 

delay, (3) the defendant’s assertion of his speedy trial right, and (4) actual 

prejudice to the defendant. 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); see 

 

faith and that the delay “probably was an honest mistake.” If, however, Thompson told Donnelly 

in February or March 2014 that the FBI was responsible for making the arrests (which is 

essentially what the Appellants are arguing when they suggest that Donnelly and Thompson did 

not testify truthfully at the evidentiary hearing), then that would indicate there was bad faith and 

that the subsequent delay was not the result of an honest mistake. After reviewing the record, we 

agree with the position that defense counsel took at oral argument and not the one that the 

Appellants argued in their briefs: there is no evidence of bad faith or anything other than an 

honest mistake here. 

6 When Uranga was first arrested after the Max Group burglary, the arresting officers 

took Uranga’s wallet, which contained a driver’s license listing the address where he resided 

throughout this case. It was at this address that he was arrested by the FBI. 

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also Villarreal, 613 F.3d at 1350. The first factor, length of the delay, serves a 

triggering function: it must first be satisfied for the court to analyze the other 

factors. Villarreal, 613 F.3d at 1350; see also United States v. Dunn, 345 F.3d 

1285, 1296 (11th Cir. 2003). A post-indictment delay exceeding one year is 

generally sufficient to trigger the analysis. United States v. Ingram, 446 F.3d 

1332, 1336 (11th Cir. 2006); United States v. Clark, 83 F.3d 1350, 1352 (11th Cir. 

1996). Importantly, if the first three factors “weigh heavily against” the 

Government, the defendant need not show actual prejudice, the fourth factor. 

Ingram, 446 F.3d at 1336. If a defendant proves the length of the delay is 

sufficient to trigger the Barker analysis, however, that does not necessarily mean 

that factor weighs heavily against the Government; the two inquiries are separate. 

See Doggett v. United States, 505 U.S. 647, 651–52, 112 S. Ct. 2686, 2690–91

(1992); Villarreal, 613 F.3d at 1350.

A.

As earlier noted, Oliva and Uranga’s motions to dismiss were referred to a 

Magistrate Judge who, in a report and recommendation, recommended that the 

motions be denied. The Magistrate Judge performed a three-step inquiry: first, she 

analyzed whether the first three Barker factors weighed against the Government; 

next, she separately analyzed whether those factors “weighed heavily” against the 

Government; finally, after concluding that the first three factors did not weigh 

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heavily against the Government, she assessed whether the Appellants could prove 

actual prejudice, the fourth factor.

In her first step, the Magistrate Judge noted that the Government conceded 

that the first and third factors, length of the delay and assertion of the right, 

weighed against it.

7

 The Magistrate Judge then found that the Government was 

“grossly negligent” in failing to procure the Appellants’ arrests, and accordingly 

held that the second factor—reason for the delay—also weighed against the 

Government. 

After determining that the first three factors weighed against the 

Government, the Magistrate Judge next analyzed whether they did so heavily. 

Drawing upon the two most relevant Eleventh Circuit cases—Ingram, 446 F.3d at 

1332, and Clark, 83 F.3d at 1350—the Magistrate Judge concluded that the length 

of the delay, though sufficient to trigger the Barker analysis, did not weigh heavily 

against the Government. In reaching this conclusion, the Magistrate Judge 

factored in only the post-indictment delay period. Although “inordinate preindictment delay” can also weigh heavily against the Government, see Ingram, 446 

F.3d at 1339, the Magistrate Judge concluded that the two-year pre-indictment 

delay here was not “inordinate” given the complexity of Donnelly’s investigation. 

 

7 The Government conceded that the length of the delay was sufficient to trigger the rest 

of Barker’s analysis, but not that it was so long as to be weighed heavily against it. Put another 

way, the concession pertained to the first part of the Magistrate Judge’s analysis, not the second. 

See Doggett, 505 U.S at 651–52, 112 S. Ct. at 2690–91; Villarreal, 613 F.3d at 1350.

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Finally, since the first three factors did not each weigh heavily against the 

Government, the Magistrate Judge assessed whether the Appellants could prove

actual prejudice. She found that they could not, and she recommended that their 

motions be denied. 

The Appellants objected to the report and recommendation. Oliva 

contended that the Magistrate Judge should have factored pre-indictment delay into 

her determination. He also argued, more generally, that the length of the delay 

weighed heavily against the Government in light of its gross negligence. Uranga, 

apparently believing that the Magistrate Judge concluded that the reason for—not 

the length of—the delay did not weigh heavily against the Government, asserted 

that the Magistrate Judge erred in reaching that conclusion.8

 

The Government responded, devoting the majority of its brief to supporting 

the Magistrate Judge’s conclusion that the length of the delay did not weigh 

heavily against it. Unlike Uranga, the Government believed that the Magistrate 

Judge had concluded that the reason for the delay did weigh heavily against it. 

Importantly, the Government did not argue against that purported conclusion, but 

simply acknowledged:

In evaluating the reason for delay, the Magistrate Judge found that the 

Government was “grossly negligent” in failing to procure the 

Defendants’ arrests and, without stating so explicitly, concluded that 

 

8 Uranga, like Oliva, also objected to the Magistrate Judge excluding pre-indictment 

delay time from her Barker analysis. 

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this factor weighed heavily against the Government by stating: “[T]he 

Government’s negligence in this case is every bit as culpable as that 

of the ATF special agent in Ingram.”

B.

The District Court adopted the Magistrate Judge’s report and 

recommendation. But, like Uranga, it operated under the assumption that the 

Magistrate Judge recommended that the motions be denied because the reason for, 

not length of, the delay did not weigh heavily against the Government.9

 The 

District Court held that because the Appellants did not produce evidence of bad 

faith by the Government—the delay between indictment and arrest was proven 

only to result from gross negligence—the reason for the delay did not weigh

heavily against the Government. 

To support this conclusion, the District Court looked to United States v. 

Bibb, 194 F. App’x 619 (11th Cir. 2006), which states that “‘[g]overnment actions 

[which] are tangential, frivolous, dilatory, or taken in bad faith weigh heavily in 

 

9 The District Court stated, “The Magistrate Judge found, and both parties agreed, that the 

length of the delay was presumptively prejudicial, triggering the other three Barker factors. The 

Magistrate Judge did not find that the reason for the delay weighed heavily against the 

Government, as Oliva suggests.” The Court further stated in a footnote that because the 

Government conceded the “length of delay” and “assertion of the right” factors, it assumed 

arguendo that those factors weighed heavily against the Government. Thus, the Court added, if 

it were to find that the reason for the delay weighed heavily against the Government, all three 

factors would weigh heavily against the Government and the Appellants would not have to show 

actual prejudice. 

Contrary to the District Court’s belief, the Government conceded only that the length of 

the delay was sufficient to trigger analysis of the rest of the Barker factors, not that the delay 

weighed heavily against it. See supra note 7. Given this limited concession, the length of the 

delay factor was still at issue. 

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favor of a finding that a speedy trial violation occurred.’” Id. at 622 (quoting 

United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997)). Although the 

Government caused the delay, the District Court held that its conduct could not be 

characterized as “dilatory,” as the Appellants argued, because in context dilatory 

requires intent. Here, the Government caused only unintentional delay through its 

negligence; there was no bad faith. The District Court also refused to factor the 

pre-indictment delay period into its decision, agreeing with the Magistrate Judge 

that the complexity of Donnelly’s investigation justified the delay. 

Thus, the District Court held that the first three Barker factors did not each 

weigh heavily against the Government, and that the Appellants had failed to prove 

actual prejudice, the fourth factor. The District Court accordingly denied their

motions to dismiss. 

Oliva and Uranga appealed. On appeal, they do not challenge the District 

Court’s holding that they failed to prove actual prejudice.10 Rather, they argue that 

the District Court had found that the first and third Barker factors weighed heavily 

against the Government, and that it erred in holding that the reason for the delay, 

the second Barker factor, did not weigh heavily against the Government, rendering 

actual prejudice irrelevant.

 

10 In fact, the Appellants expressly conceded at oral argument that they cannot show 

actual prejudice 

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First, the Appellants contend that this Circuit’s speedy trial right 

jurisprudence does not require intentional delay or bad faith by the Government. 

Instead, they maintain that the term “dilatory,” as used Schlei (and as later quoted 

in Bibb) refers both to unintentional and intentional delay. Therefore, they argue 

that the Government’s gross negligence—Donnelly’s near-complete inaction, 

Thompson failing to relay that the USMS was not assigned arrest responsibility, 

and the U.S. Attorney’s Office failing to check on the Appellants’ arrest status—

weighs heavily against it. The Appellants add that the pre-indictment delay should 

also have been factored into the Court’s analysis, providing more weight to the 

Government’s negligence. See Clark, 83 F.3d at 1353 (“[Our] toleration of 

negligence varies inversely with the length of the delay caused by that 

negligence.”).

Next and alternatively, the Appellants argue that the Government’s attempt 

to arrest them was so minimal that it cannot be characterized as “diligent” or

performed “in good faith,” requiring that the second Barker factor weigh heavily 

against the Government. See United States v. Bagga, 782 F.2d 1541, 1543 (11th 

Cir. 1986) (noting the Government’s “‘constitutional duty to make a diligent, 

good-faith effort’ to locate and apprehend a defendant and bring the defendant to 

trial”) (quoting Smith v. Hooey, 393 U.S. 374, 383, 89 S. Ct. 575, 579 (1969)). 

The Appellants maintain that they did not have to prove actual prejudice because, 

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under either theory, the reason for the delay weighs heavily against the

Government and the Government conceded that the other two factors, length of the 

delay and assertion of the right, did so too. Their motions to dismiss, the 

Appellants argue, should have therefore been granted. 

The Government asserts that the delay in the Appellants’ arrests was due 

only to negligence, not bad faith. The District Court thus properly denied the 

motions, as intent or bad faith is required for the second Barker factor to be 

weighed heavily against the Government. The Government also contends that it 

never conceded that the length of the delay weighs heavily against it. Although it 

did concede that the length of the delay was sufficient to trigger the Barker

analysis, it did not also concede that the delay’s length was so great as to be 

weighed heavily against it. 

III.

A.

Whether the Government violated a defendant’s Sixth Amendment right to a 

speedy trial is a mixed question of law and fact. Villarreal, 613 F.3d at 1349. We 

review a district court’s legal conclusions de novo and its factual findings for clear 

error. Id. 

Here, we are tasked with reviewing the District Court’s application of the 

Barker factors. As noted, the Appellants do not challenge the District Court’s 

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finding of no actual prejudice, the fourth factor. And, the Government concedes 

the third factor, assertion of the right.11 The Government, however, did not 

concede that the length of the delay weighed heavily against it.12 Thus we address 

the first two factors, length of the delay and the reason for it. As discussed below,

these factors overlap to an extent, so we address them together.

Different reasons for delay are accorded different weights. Barker, 407 U.S. 

at 531, 92 S. Ct. at 2192. An intentional attempt to delay trial in order to hinder 

the defense is “weighted heavily against the government.” Id. In contrast, a valid 

excuse, such as a missing witness, justifies reasonable delay. Id. Negligence falls 

between these two extremes. It is “more neutral” and “should be weighted less 

heavily” than bad-faith acts. Id. But negligence “nevertheless should be 

considered since the ultimate responsibility for such circumstances must rest with 

the government rather than with the defendant.” Id. Indeed, “it still falls on the 

wrong side of the divide between acceptable and unacceptable reasons for delaying 

 

11 Although the Government concedes that the Appellants timely asserted their speedy 

trial rights and, thus, it stipulates that the third factor weighs against the Government, it does not 

say whether that factor weighs heavily against the Government. This Court has previously 

determined that the third Barker factor weighed “heavily” against the Government where the 

defendant asserted his right to a speedy trial soon after learning of the indictment and arrest 

warrant. See Ingram, 446 F.3d at 1335, 1338. By contrast, this Court has also determined that, 

where a defendant asserted his right to a speedy trial but also moved for four continuances prior 

to that trial, the third Barker factor did not weigh “heavily” against the Government. See United 

States v. Register, 182 F.3d 820, 828 (11th Cir. 1999). Because the Government does not argue 

this factor, we assume for our analysis that it weighs heavily against the Government and do not 

discuss it further.

12 See supra notes 7, 9.

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a criminal prosecution once it has begun.” Doggett, 505 U.S. at 657, 112 S. Ct. at

2693. Our “toleration of negligence varies inversely with the length of the delay” 

that the negligence causes. Clark, 83 F.3d at 1353. Analyzing the second factor, 

therefore, overlaps some with the first: the length of the delay impacts our 

determination of whether the Government’s negligence weighs heavily against it. 

Two Eleventh Circuit cases involving negligent governmental delay set the 

parameters of our analysis. In the first case, United States v. Clark, 83 F.3d at 

1350, the defendant, Clark, was charged with six counts related to controlledsubstance violations and one count of carrying a firearm during a drug-trafficking 

crime. Id. at 1351. There was a seventeen-month delay between Clark’s 

indictment and arrest, during which he continually resided in the apartment listed 

on the arrest warrant. Id. at 1352. A city police officer attempted to locate Clark 

by visiting his apartment a single time, but no one answered the door. Id. The 

police department then suspended its efforts to locate Clark, mistakenly believing 

that the USMS was taking over. Id. Clark was finally arrested while sitting in a 

college class. Id.

The District Court dismissed the indictment after finding that the first three 

Barker factors weighed heavily against the Government. See id. at 1354. This 

Court reversed, reasoning that although the Government was negligent, it did not 

deliberately cause the delay. Id. at 1353-54. We further reasoned that the 

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seventeen months of negligent Government delay was significantly less than the 

eight and a half years of such delay found intolerable by the Supreme Court in 

Doggett v. United States, 505 U.S. at 651–53, 112 S. Ct. at 2690–91, and was close 

to the fourteen and a half months of negligent Government delay found acceptable 

by the Fifth Circuit in Robinson v. Whitley, 2 F.3d 562, 568–70 (5th Cir. 1993).13 

Id.

The second case, United States v. Ingram, 446 F.3d at 1332, went the other 

way. In that case, the defendant, Ingram, claimed he was not a convicted felon

when applying to purchase a firearm on February 28, 2000. Id. at 1334. The seller 

submitted Ingram’s application to the National Instant Criminal Background Check 

System, and the application came up “denied.” Id. In March of 2000, a special 

agent with the Bureau of Alcohol, Tobacco, and Firearms began investigating the 

transaction. Id. In July of that same year, the agent interviewed Ingram at his 

workplace, where Ingram admitted he was a convicted felon, but inaccurately 

claimed that his civil rights had been restored. Id. at 1335. During the interview,

Ingram gave the agent his home address and phone numbers and told the agent his 

brother was a police officer. Id. The agent turned in his report and heard nothing 

 

13 We also cited United States v. Beamon, 992 F.2d 1009, 1015 (9th Cir. 1993), a case 

holding that a delay of seventeen to twenty months solely attributable to Government negligence 

was insufficient to excuse the defendants from showing actual prejudice. Clark, 83 F.3d at 1354. 

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for over two years. Id. When the agent checked in with the U.S. Attorney’s Office

in 2002, he was told Ingram’s case had been “misplaced.” Id. 

Ingram was eventually indicted in October of 2002—more than two and a 

half years after his attempted firearm purchase—for making false statements to a 

firearms dealer in connection with an attempted acquisition of a firearm. Id. The 

indictment was sealed the same day it was entered and a warrant was issued for 

Ingram’s arrest. Id. The agent made a minimal effort to arrest Ingram. He left 

some voicemails for Ingram between 2002 and 2004. Id. Ingram returned at least 

one call in December of 2002 and left his cellphone number and workplace address 

for the agent to contact him. Id. The agent also drove by Ingram’s residence and 

workplace on several occasions, but did not exit his car. Id. Finally, in July of 

2004, the agent called Ingram’s workplace and a coworker gave the agent another 

number at which to reach Ingram. Id. The agent left a message at this new number 

and Ingram returned his call the next day. Id. Ingram surrendered in court on 

August 3, 2004. Id. 

Ingram moved to dismiss the indictment on speedy trial grounds. The 

District Court denied the motion, but this Court reversed. We noted that 

“inordinate pre-indictment delay” influences “how heavily post-indictment delay 

weighs against the Government,” and held that the pre-indictment delay in 

Ingram’s case qualified as “inordinate.” See id. at 1339. Thus, the nearly two 

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years of post-indictment delay weighed more heavily against the Government in 

light of the two and a half years of inordinate pre-indictment delay. Id. We also 

noted that the agent in Ingram, unlike the one in Clark, knew he was the only law 

enforcement agent responsible for Ingram’s arrest; the Government’s negligence, 

we concluded, was overall more egregious than it was in Clark. Id. So, 

considering the length of the pre- and post-indictment delays, the degree of

Government negligence, the simplicity of the crime for which Ingram was indicted, 

the state of the proof against him when the indictment was entered, and the 

Government’s knowledge of Ingram’s whereabouts, this Court determined that the 

length of and the reason for the delay weighed heavily against the Government. Id. 

at 1340. We then remanded the case to the District Court with instructions to 

dismiss the indictment. Id. 

B.

Before comparing this case to Clark and Ingram, we address the Appellants’ 

argument that the Government’s negligent conduct was “dilatory” and therefore 

must be weighed heavily against it.

As quoted in Bibb, supra, the precedential language relevant to the 

Appellants’ argument provides that “Government actions which are tangential,

frivolous, dilatory, or taken in bad faith weigh heavily in favor of a finding that a 

speedy trial violation occurred.” Schlei, 122 F.3d at 987 (citing United States v. 

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Loud Hawk, 474 U.S. 302, 315–17, 106 S. Ct. 648, 656–57 (1986)). They contend 

that the term “dilatory” does not require intent, and so it covers the Government’s 

negligence. We disagree. The Supreme Court’s Loud Hawk case cited by Schlei

(which was in turn cited by Bibb) for the above proposition used the word 

“dilatory” to describe purposeful action. See 474 U.S. at 316, 106 S. Ct. at 656 

(noting that there was “no showing of bad faith or dilatory purpose on the 

Government’s part”) (emphasis added). Further, dismissing an indictment is an 

“extraordinary remedy.” Villarreal, 613 F.3d at 1349. It is not one to be given to 

defendants each time the Government’s conduct unintentionally causes delay, as 

the Appellants’ interpretation suggests. Finally, Clark and Ingram contemplate 

that negligence alone can be, but not must be, weighed heavily against the 

Government depending upon the circumstances. See Ingram, 446 F.3d at 1339; 

Clark, 83 F.3d at 1353–54. 

The District Court found that the Government was grossly negligent, but not 

that it purposefully caused delay or otherwise acted in bad faith. Nothing in the 

record indicates that this conclusion—one we view with “considerable deference,” 

Doggett, 505 U.S. at 652, 112 S. Ct. at 2691—was clearly erroneous.14 The 

Government’s conduct was therefore not purposefully dilatory as the term is used 

 

14 To the contrary, as earlier noted, the Appellants conceded at oral argument that there 

was no evidence of bad faith here and that the reason for the delay “probably was an honest 

mistake.” 

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in the pertinent case law. We thus turn to whether the Government’s negligence, 

in light of the length of the delay, was so great as to weigh heavily against it, and

we hold that it wasn’t.

The relevant length of delay in this case is twenty-three months, the length 

of the post-indictment delay. The two-year pre-indictment delay is not factored 

into our analysis of whether the first two Barker factors weigh heavily against the 

Government. Pre-indictment delay is accounted for if it is “inordinate.” Ingram, 

446 F.3d at 1339. The two and a half years of pre-indictment delay in Ingram, for 

example, was inordinate given the simplicity of Ingram’s crime and of the 

investigation. See id.; see also Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (“[T]he 

delay that can be tolerated for an ordinary street crime is considerably less than for 

a serious, complex conspiracy charge.”). In Ingram, the defendant committed a 

simple crime and the investigation appeared complete more than two years before 

the indictment. Here, by contrast, the Appellants were convicted of conspiracy for 

actions involving two separate large-scale burglaries carried out by a number of 

participants. Further, Donnelly’s investigation included twenty-five witnesses 

located throughout numerous states, nine suspects, almost 100 exhibits, several 

search warrants, shoe-tread analysis, and more. Donnelly was still collecting 

pertinent evidence until at least June of 2013, fewer than six months before the

Appellants’ November 2013 indictments. 

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Thus, unlike in Ingram, the pre-indictment delay here is not inordinate.15 

With the relevant period of delay at twenty-three months, this case is much closer 

to Clark’s seventeen-month delay than to Ingram’s combined delay of four and a 

half years. Moreover, courts outside this Circuit have consistently rejected 

defendants’ arguments that similar delays excuse them from proving actual 

prejudice.16

The Government’s negligence in the case before us is also more akin to its 

negligence in Clark than in Ingram. Like the investigator in Clark, Donnelly 

believed that the USMS was responsible for arresting the Appellants. Donnelly 

made at least a minimal attempt to follow up on the Appellants’ arrest by 

conferring with Thompson, and he remained under the impression that he was not 

responsible for the arrests. Eventually, once Donnelly realized his mistake, he 

quickly effectuated the Appellants’ arrests. The lack of effort exemplified by the 

 

15 Also underpinning this conclusion is our hesitance to incentivize rushing to indict 

defendants the moment there appears to be just enough evidence to do so. Among other 

maladies, such a practice would “increase the likelihood of unwarranted charges being filed” and 

even “add to the time during which defendants stand accused but untried.” See United States v. 

Lovasco, 431 U.S. 783, 791–92, 97 S. Ct. 2044, 2049–50 (1977). 

16 See, e.g., United States v. Jackson, 473 F.3d 660, 663, 666–68 (6th Cir. 2007) (holding 

that a twenty-two-month post-indictment delay was not enough to excuse the defendant from 

demonstrating actual prejudice where the Government did not give a valid reason for the delay); 

Jackson v. Ray, 390 F.3d 1254, 1263 (10th Cir. 2004) (concluding that an unexplained delay of 

four and one-third years did not excuse the defendant from having to prove actual prejudice);

United States v. Serna-Villarreal, 352 F.3d 225, 232–33 (5th Cir. 2003) (concluding that a threeyear and nine-month delay caused by Government negligence was too short to weigh heavily

against the Government). 

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investigator in Ingram was more egregious, as that investigator knew he was solely

responsible for Ingram’s arrest. 

Ultimately, the delay in this case was the result of a convergence of several 

factors, including: (a) a federal crime being investigated by a state law enforcement 

officer (albeit a federally-deputized one); (b) who was unfamiliar with federal 

indictment and arrest procedure; (c) and who was serving as a solo investigator for 

the very first time; (d) in a case where the prosecutor who secured the indictment 

left the U.S. Attorney’s Office and was not replaced on the case for more than a 

year. Nevertheless, the Government’s negligence here is worrisome. Despite his 

inexperience, Donnelly could have followed up with the USMS, contacted 

someone in the U.S. Attorney’s Office, or reached out to a supervisor during the 

long period between the time that he conferred with Thompson and later learned

that he was responsible for arresting the Appellants. But because the negligence in 

this case is weaker than that in Ingram—though perhaps only slightly—and 

because the relevant length of delay is less than half of Ingram’s, we conclude that 

neither the length of the delay, nor the reason for it, weigh heavily against the 

Government. The Government’s good-faith attempt to arrest the Appellants was 

diligent enough to avoid warranting the “extraordinary remedy” of dismissing their

indictments. See Villarreal, 613 F.3d at 1349.

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IV.

In sum, two of the first three Barker factors do not weigh heavily against the 

Government. The Appellants therefore must prove actual prejudice, which they 

did not do below and do not attempt to do here. Accordingly, we affirm the 

District Court’s denial of their motions to dismiss.

AFFIRMED.

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