United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50043

____________

United States of America, 

Plaintiff—Appellee, 

versus

Carl Monroe Gordon, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:20-CR-226-1 

______________________________

Before Stewart, Clement, and Ho, Circuit Judges.

Carl E. Stewart, Circuit Judge: 

Following a series of ends-of-justice continuances related to COVID19, Carl Monroe Gordon was convicted by a jury on counts of aggravated 

sexual abuse of a child, traveling to engage in illicit sexual conduct, and 

abusive sexual contact with a child. Gordon argues that delaysin bringing him 

to trial and the district court’s denial of his motion to dismiss the indictment 

violated his statutory and constitutional rights to a speedy trial. 18 U.S.C. § 

3161; U.S. Const. amend. VI. For the reasons that follow, we AFFIRM

the judgment of the district court.

United States Court of Appeals

Fifth Circuit

FILED

February 16, 2024

Lyle W. Cayce

Clerk

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2

I. Factual and Procedural History

Gordon was arrested at the Hartsfield-Jackson Atlanta International 

Airport on December 23, 2019, on allegations of committing a sexual act on 

a minor. On January 22, 2020, a grand jury indicted Gordon on counts of 

aggravated sexual abuse of a child (count one), traveling to engage in illicit 

sexual conduct (counts two and three), sexual abuse of a minor (count four), 

and abusive sexual contact with a child (count five). Gordon filed a waiver of 

personal appearance at arraignment and entered a plea of not guilty on 

January 28, 2020.

On January 31, 2020, the district court entered an order (1) granting 

Gordon’s motion for a continuance; (2) setting the docket call for March 4, 

2020; and (3) stating that the time period of the continuance was excludable 

under the Speedy Trial Act (“STA”), 18 U.S.C. § 3161. On March 4, 2020, 

Gordon again requested a continuance. The district court granted the 

request, stating that the time period of the continuance was excludable from

the STA calculation.

On February 12, 2020, Gordon filed a motion to revoke his detention 

order and for pretrial release.1 The district court orally denied the motion 

after a hearing on March 13, 2020. The district court then set Gordon’s trial 

for May 4, 2020. The district court subsequently issued a written order 

memorializing its previous denial of Gordon’s motion on March 18, 2020.

_____________________

1 Gordon renewed his motion to revoke his detention order and for pretrial release

two additional times. On March 31, 2020, Gordon filed a motion for reconsideration of the 

denial of the motion to revoke detention. The district court issued an order denying the 

motion for reconsideration of pretrial detention on April 14, 2020. On October 5, 2020, 

Gordon filed a motion for reconsideration of his pretrial detention. The district court issued 

an order denying the motion for reconsideration of pretrial detention on November 16, 

2020.

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A. Chief Judge issues a series of orders, and the district court vacates existing 

trial date

Beginning in early 2020, Chief Judge Orlando L. Garcia of the United 

States District Court for the Western District of Texas issued a series of 

orders, on ends-of-justice grounds related to the COVID-19 pandemic,

continuing all criminal jury trials in the district from March 16, 2020 to a date 

to be reset by the presiding judges.

2 On March 13, 2020, the chief judge 

issued the initial district-wide order announcing “the recent outbreak of 

novel coronavirus in the United States and the State of Texas” and “several 

confirmed cases of coronavirus within the Western District of Texas.” See

Order Regarding Court Operations Under the Exigent Circumstances 

Created by the COVID-19 Pandemic (W.D. Tex. Mar. 13, 2020), 

https://www.txwd.uscourts.gov/wp-content/uploads/2020/03/Order-ReCOVID-19.pdf. More specifically, the order detailed the Western District’s 

concern “with the health and safety of the public, Court employees, staff of 

other entities with whom Court personnel interact, litigants, counsel, 

interpreters, law enforcement officials, and jurors, who must work in close 

quarters to hear evidence and to deliberate.” Id. Each subsequent order

concluded that “[d]ue to the [Western District’s] reduced ability to obtain

an adequate spectrum of jurors and due to the reduced availability of 

attorneys and Court staff to be present in courtrooms . . . the time period of 

the continuances implemented by this Order are excluded under the Speedy 

Trial Act[.]” See, e.g., Supplemental Order Regarding Court Operations 

Under the Exigent Circumstances Created by the COVID-19 Pandemic 

_____________________

2 See U.S. Dist. Ct. for the W. Dist. of Tex., Coronavirus 

(COVID-19) Guidance: District Wide, 

https://www.txwd.uscourts.gov/coronavirus-covid-19-guidance/ (last visited Feb. 6, 

2024).

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(W.D. Tex. Apr. 15, 2020), https://www.txwd.uscourts.gov/wpcontent/uploads/2020/03/SupplementalOrderCOVID19-041520.pdf 

(citing 18 U.S.C. § 3161(h)(7)(A)). 

Following the first district-wide order, the presiding district court 

judge, acting sua sponte on March 24, 2020, issued an order in Gordon’s case 

(1) vacating the existing May 4, 2020 trial date; (2) issuing an ends-of-justice 

continuance relying on the exigent circumstances and district-wide orders 

related to COVID-19; and (3) stating that the time period of the continuance 

was excludable from the STA calculation. In issuing the order, the district 

court incorporated the facts and findings of the then-issued district-wide 

orders concerning COVID-19 and concluded that “the ends of justice are 

best served by continuing the proceedings because of the exigent 

circumstances created by the COVID-19 pandemic [including] the severity 

of the risk to those who would otherwise be required to work in close quarters 

absent a continuance, and the public-health matters that weigh in favor of 

reducing the size of public gatherings and travel,” citing the STA, 18 U.S.C. 

§3161(h)(7)(A). On March 24, 2020, the district court also issued an order 

resetting the docket call to May 6, 2020, stating that the time period during 

the continuance was excludable from the STA calculation.

i. Gordon’s trial continued to June 1 

On April 13, 2020, the district court issued a case-specific order 

resetting the jury selection and trial date to June 1, 2020, holding that the 

interests of justice outweighed the public need for a speedy trial because

Gordon needed more time to prepare and stating that the time period of the

continuance was excludable from the STA calculation. By May 12, 2020, two 

additional district-wide orders were issued further suspending trials. 

Accordingly, the district court issued an additional case-specific order 

resetting the trial date, docket settings, and all other deadlines, including 

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Ellis3 deadlines, filing of jury instructions, and motions in limine, to a date on 

or after June 1, 2020.

ii. Gordon’s trial continued to July 13 

At the docket call on May 11, 2020, the district court noted that the 

chief judge had asked the district courts to move all trials to July 2020. The 

district court expressed concern that the pandemic would dilute the jury pool 

due to prospective jurors’fears of COVID-19 but proposed ways that it could 

safely hold jury selection. On May 21, 2020, the district court issued an order 

setting trial for July 13, 2020, stating that the time period between June 1 and 

July 13, 2020 was excludable from the STA calculation.

iii. Gordon’s trial continued to August 3

On June 9, 2020, the district court, acting sua sponte, issued an order 

vacating the July 13 trial setting, relying on the exigent circumstances and 

district-wide orders related to COVID-19. On June 15, 2020, the district 

court held a status conference at which it (1) noted that all trials in the district 

were being delayed until at least August; (2) expressed concerns as to the 

speedy trial rights of defendants in the district; (3) and reset trial for August 

3, 2020. On July 14, 2020, the district court issued an order canceling the 

August 3, 2020 trial, relying on the exigent circumstances and district-wide 

orders related to COVID-19.

B. Gordon moves to dismiss the indictment and trial is continued to May 3

On December 9, 2020, Gordon filed a motion to dismiss his 

indictment for violations of the STA and his Sixth Amendment right to a 

_____________________

3 The deadline fixed by the court for plea negotiations. “The court [has] the 

prerogative to make and strictly enforce a deadline on plea bargaining.” United States v. 

Ellis, 547 F.2d 863, 864 (5th Cir. 1977).

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speedy trial. He further alleged that he would suffer irreparable harm because 

the Government’s evidence against him was weak. Finally, he argued that the 

Government failed to show that suspending his speedy trial rights would 

“result in the lessening of the spread of” COVID-19 or “that public health 

would be imperiled if less restrictive measures were imposed.” On January 

12, 2021, the district court issued an order setting a May 3, 2021 trial date, 

stating that the ends of justice outweighed the need for a speedy trial because 

Gordon needed more time to prepare his defense and the period of delay from 

January 11 through May 3, 2021 was excludable from the STA calculation.

C. The district court denies Gordon’s motion to dismiss

At the January 25, 2021 hearing on Gordon’s motion to dismiss, 

defense counsel argued that the district court could not suspend Gordon’s 

statutory or constitutional right to a speedy trial based on the circumstances 

created by the pandemic. The district court explained that it did not see the 

delay as impacting Gordon’s statutory rights because the periods of time 

during the district-wide extensions were exempted from the STA calculation. 

As for whether the delay violated Gordon’s constitutional rights, the district 

court reasoned: “[I]n order to have a jury trial [which Gordon had 

requested], we need jurors. And if we bring in a panel that large to pick a jury

in this kind of case, we would be violating every [Centers for Disease Control 

and Prevention (CDC)] guideline of the COVID restrictions.” It further 

noted that it would have difficulty getting grand jurors and jurors to show up 

at jury selection due to public fear of COVID-19. It stated that it was going to 

deny Gordon’s motion, but it expressed concern as to whether the delay 

might eventually violate Gordon’s constitutional rights if the pandemic 

continued. The district court stated that Gordon’s trial would be its first 

post-COVID trial. On February 9, 2021, the district court issued a written 

order denying Gordon’s motion to dismiss.

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D. Gordon is convicted 

At the docket call on March 1, 2021, Gordon’s counsel explained that 

he needed time to respond to the Government’s pretrial motions and to 

object to proposed expert witnesses. The district court stated that it would 

continue the docket call until April 2021 and that the time period until the 

next docket call was excludable from the STA calculation. On March 4, 2021, 

the district court issued a written order granting Gordon’s motion for a 

continuance on grounds that he needed more time to prepare his defense and 

setting the next docket call for April 5, 2021. A period of motions practice 

ensued. 

Gordon’s trial began as scheduled with a pretrial conference and voir 

dire on May 3, 2021. At the start of the proceeding, Gordon re-urged his 

motion to dismiss on speedy trial grounds. The district court responded that 

it had previously denied his motion to dismiss because “COVID made it 

impossible to have trials sooner,” noting that Gordon was having the first 

post-COVID trial at the courthouse. After trial, the jury convicted Gordon

on four of the five counts. The district court dismissed count four of the 

indictment on the Government’s motion. Gordon was sentenced to a total of 

fifty years of imprisonment and a lifetime term of supervised release. Gordon 

timely appealed. 

II. STANDARD OF REVIEW

A. Speedy Trial Act

“We review the district court’s factual findings supporting its Speedy 

Trial Act ruling for clear error and its legal conclusions de novo.” United 

States v. Perry, 35 F.4th 293, 351 (5th Cir. 2022) (quoting United States v. 

Stephens, 489 F.3d 647, 652 (5th Cir. 2007)). “Factual findings are ‘clearly 

erroneous only if, based on the entire evidence, we are left with the definite 

and firm conviction that a mistake has been committed.’” United States v. 

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Barry, 978 F.3d 214, 217 (5th Cir. 2020) (quoting United States v. Akins, 746 

F.3d 590, 609 (5th Cir. 2014)). “There is no clear error if the district court’s 

finding is plausible in light of the record as a whole.” Id. (quoting United 

States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).

B. Sixth Amendment 

A court evaluates a claimed violation of the constitutional right to a 

speedy trial by applying the four-factor balancing test articulated in Barker v. 

Wingo, 407 U.S. 514 (1972). “[W]e hold that the appropriate standard of 

review of the district court’s application of the Barker factors is de novo.” 

United States v. Molina-Solorio, 577 F.3d 300, 304 (5th Cir. 2009). “[T]he 

court reviews fact-finding for clear error.” Id. (citing United States v. Frye, 

372 F.3d 729, 735–36 (5th Cir. 2004)). 

III. DISCUSSION

Gordon contends that that the district court erred in denying his 

motions to dismiss because the delay in his trial violated the STA and his 

Sixth Amendment right to a speedy trial. We discuss each issue in turn.

A. Speedy Trial Act

Gordon contends that the pretrial delay of “approximately 468 days” 

violated the STA because there were more than seventy non-excludable days 

between his indictment and his trial on the merits. However, the 

Government avers that the STA clock began to run when Gordon filed his 

waiver of personal appearance, not six days earlier when the indictment was 

filed. Hence, we take a moment now to clarify that the triggering event for 

Gordon’s STA clock took place on January 28, 2020, the day of his initial 

appearance before a judicial officer, which was the later of that date and the 

filing of the indictment against him. See 18 U.S.C. § 3161(c)(1); United States

v. Burrell, 634 F.3d 284, 287 (5th Cir. 2011); United States v. Westbrook, 119 

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F.3d 1176, 1186 (5th Cir. 1997) (noting that courts should not include the date 

of the triggering event when calculating the STA’s 70-day limit). Gordon 

proceeded to trial 461 days after his initial appearance. 

“The Speedy Trial Act of 1974 . . .requires that a criminal defendant’s 

trial commence within [seventy] days after he is charged or makes an initial 

appearance, whichever is later, see [18 U.S.C.] § 3161(c)(1), and entitles him 

to dismissal of the charges if that deadline is not met, § 3162(a)(2).” Bloate v. 

United States, 559 U.S. 196, 198–99 (2010). “If more than seventy nonexcludable days pass between the indictment and the trial, the indictment 

shall be dismissed on motion of the defendant.” Stephens, 489 F.3d at 652 

(internal quotation marks and citation omitted). Notwithstanding this 

timeline, the STA excludes certain periods of delay from this calculation. 18 

U.S.C. § 3161(h). 

Relevant here, the STA exempts from the seventy-day clock: (1) 

delays resulting from the filing of pretrial motions, § 3161(h)(1)(D), and (2)

delaysresulting from continuances based on a judge’s “findings that the ends 

of justice[,] served by taking such [a delay] action[,] outweigh the best 

interest of the public and the defendant in a speedy trial,” also known as 

ends-of-justice continuances. § 3161(h)(7)(A). This circuit has not yet 

addressed whether the COVID-19 pandemic provided an appropriate basis 

for granting ends-of-justice continuances. Therefore, we first turn to address 

Gordon’s statutory speedy trial act claim. 

From February 5, 2020 to May 3, 2021, the district court granted the 

following continuances, totaling 454 days:

(1) district-wide orders for continuances (March 13, 2020–April 30, 

2021);

(2) district court’s January 2020 continuance (February 5–March 4, 

2020); 

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(3) district court’s March 2020 continuance (March 4–May 6, 2020); 

(4) district court’s April 2020 continuance (April 13–June 1, 2020); 

(5) district court’s May 2020 continuance (June 1–July 13, 2020); 

(6) district court’s June 2020 continuance (July 13–August 3, 2020); 

(7) district court’s July 2020 continuance (August 3, 2020–January 

12, 2021); 

(8) the motion-to-dismiss continuance (December 9, 2020–February 

9, 2021); and

(9) district court’s January 2021 continuance (January 11–May 3, 

2021).4

For the reasons that follow, our review of the record indicatesthat 454

of the 461 days between Gordon’s initial appearance and trial are properly 

excludable from the speedy trial calculation on trial-related motions and 

ends-of-justice grounds. Consistent with the statute, seven non-excludable

speedy trial days accumulated between Gordon’s initial appearance, on 

January 28, 2020, and trial commencing, on May 3, 2021. We now turn to the 

district court’s motion-to-dismiss continuance to determine whether that 

time was properly characterized as a delay resulting from other proceedings 

involving Gordon under § 3161(h)(1)(D) and thus properly excluded for STA 

purposes. 

_____________________

4 In its order setting the eventual May 3, 2021 trial date, the district court attributed 

the delay between January 11, 2021 and May 3, 2021 to the fact that “more time [was] 

needed by [Gordon] for preparation of the defense of this case.” However, the district 

court stated at the January 25, 2021 hearing on Gordon’s motion to dismiss that May 2021 

was the earliest trial could be set due to the pandemic and that the time period of the 

continuance was excludable due to the chief judge’s district-wide orders which continued 

trials until April 30, 2021.

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(1) Delays attributable to motions

Gordon does not directly dispute that the delays otherwise 

attributable to resolving his pretrial motions tolled the STA clock. Rather, 

Gordon challenges the district court’s determination that the Government’s 

extension request, from December 20, 2020 to January 22, 2021, ahead of 

the motion-to-dismiss hearing, tolled the STA clock. We conclude that this 

period of delay is attributable to the resolution of Gordon’s motion to 

dismiss. Such a determination properly comports with the statutory 

command of this provision. Section 3161(h)(1)(D) excludes “[a]ny period of 

delay resulting from other proceedings concerning the defendant, including . 

. . any pretrial motion, from the filing of the motion through the conclusion 

of the hearing on, or other prompt disposition of, such motion.”

On December 9, 2020, Gordon filed a motion to dismiss the 

indictment for violations of the STA and his Sixth Amendment right to a 

speedy trial. Subsequently, the Government requested an extension to 

respond to Gordon’s motion, from December 20, 2020 until January 22, 

2021, while the ends-of-justice continuances remained pending. During this 

motion-to-dismiss continuance period, on January 12, 2021, the district court 

also issued an order setting a May 3, 2021 trial date, stating that the ends of 

justice outweighed the need for a speedy trial. The district court held an

evidentiary hearing on January 25, 2021, where Gordon’s defense counsel 

argued that the district court could not suspend Gordon’s statutory or 

constitutional right to a speedy trial based on the circumstances created by 

the pandemic. At the January 25, 2021 motion-to-dismiss hearing, the district 

court denied Gordon’s motion. On February 9, 2021, it issued a written order 

denying Gordon’s motion to dismiss.

The district court properly characterized this continuance as a delay 

resulting from other proceedings concerning the defendant under § 

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3161(h)(1)(D). Hence, the portion of the motion-to-dismiss continuance 

attributable to the Government’s extension request, from December 20, 

2020 to January 22, 2021, was properly excluded from the STA calculation. 

See United States v. Green, 508 F.3d 195, 199 (5th Cir. 2007) (holding that the 

speedy trial clock was automatically tolled during the pendency of the 

Government’s motion for a special trial setting). We now turn to analyze the 

remaining excludable, ends-of-justice continuances under § 3161(h)(7)(A).

(2) Delays attributable to ends-of-justice continuances

Gordon avers that the Government failed to satisfy its burden to show 

that the ends-of-justice continuances were justified. Notably, the district 

court issued the majority of the pandemic-related continuances sua sponte. 

For this reason, it was not the Government’s burden to support them. Cf. 

Burrell, 634 F.3d at 287 (explaining that the Government has the burden to 

justify an ends-of-justice continuance where it seeks the benefit of it). In 

making its balancing determination of the § 3161(h)(7)(B) factors, the district 

court met the requisite standard of memorializing its reasons for concluding 

that the ends of justice outweigh the need for a speedy trial.

Although Gordon maintains that the district court failed to make the 

requisite on-the-record determinations specific to the facts of his case, we 

disagree. Specifically, he maintains that (1) some of the district court’s endsof-justice continuances failed to specifically reference § 3161(h)(7)(A); (2) 

the continuances were impermissibly “automatic” based on the chief judge’s 

general orders; and (3) the general district-wide orders, which did not relate 

to the specific facts of his case, conflicted with federal law and the 

Constitution. Our review of the ends-of-justice continuance orders reveals 

that the district court properly complied with the STA by providing reasons 

that “can be fairly understood as being those that actually motivated the 

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court at the time it granted the continuance.” United States v. Bieganowski, 

313 F.3d 264, 283 (5th Cir. 2002). 

Distinctly, ends-of-justice continuances only toll the STA when “the 

court sets forth, in the record of the case, either orally or in writing, its 

reasons for finding that the ends of justice served by the granting of such 

continuance outweigh the best interests of the public and the defendant in a 

speedy trial.” § 3161(h)(7)(A); see United States v. Blackwell, 12 F.3d 44, 47 

(5th Cir. 1994) (holding that a continuance did not pause the speedy trial 

clock where the district court did not make requisite determinations). The 

Supreme Court has recognized that “the [STA] is ambiguous on precisely 

when those findings must be ‘se[t] forth, in the record of the case.’” Zedner 

v. United States, 547 U.S. 489, 506–07 (2006) (quoting § 3161(h)(7)(A)). The 

Court further observed that, while “[t]he best practice, of course, is for a 

district court to put its findings on the record at or near the time when it 

grants the continuance,” the district court must at the very least put those 

determinations on the record by the time it rules on a defendant’s motion to 

dismiss under § 3162(a)(2). Id. at 507 & n.7. Moreover, “failure to make any 

express finding on the record cannot be harmless error.” United States v. 

Dignam, 716 F.3d 915, 921 (5th Cir. 2013) (citing Zedner, 547 U.S. at 506–07). 

In Bieganowski, this court held that “[t]he only requirements for [an 

ends-of-justice continuance] are that the order memorializing the 

continuance indicate when the motion was granted, and that the reasons 

stated be and can be fairly understood as being those that actually motivated 

the court at the time it granted the continuance.” 313 F.3d at 283. The 

Supreme Court has explained that the ends-of-justice provision “gives the 

district court discretion—within limits and subject to specific procedures—

to accommodate limited delays for case-specific needs.” Zedner, 547 U.S. at 

498–99. The STA also provides a list of non-exclusive factors that the district 

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court should consider in determining whether an ends-of-justice continuance

is warranted. § 3161(h)(7)(B). 5

In the several orders it issued, the district court explicitly incorporated 

the findings referenced in the district-wide orders issued by the chief judge, 

which in turn explained “the continued severity of the risk to the [the public 

and those involved in trials] by the spread of COVID-19 in the Western 

District of Texas” and made findings related to the ends of justice under 

§ 3161(h)(7)(A). See, e.g., Supplemental Order Regarding Court Operations 

Under the Exigent Circumstances Created by the COVID-19 Pandemic 

(W.D. Tex. May 8, 2020), https://www.txwd.uscourts.gov/wpcontent/uploads/2020/03/SupplementalOrderCOVID19%20050820.pdf 

(citing 18 U.S.C. § 3161(h)(7)(A)). Aside from reference to the district-wide

orders, the court also made findings related to Gordon’s individual case. In 

_____________________

5 In determining whether to grant an ends-of-justice continuance, the court shall 

consider a non-exhaustive list of factors, including:

(i) Whether the failure to grant such a continuance in the proceeding 

would be likely to make a continuation of such proceeding impossible, or 

result in a miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due to the number of 

defendants, the nature of the prosecution, or the existence of novel 

question of fact or law, that it is unreasonable to expect adequate 

preparation for pretrial proceedings or for the trial itself within the time 

limits established by this section.

. . .

(iv) Whether the failure to grant such a continuance in a case which, taken 

as a whole, is not so unusual or so complex as to fall within clause (ii), 

would deny the defendant reasonable time to obtain counsel, would 

unreasonably deny the defendant or the Government continuity of 

counsel, or would deny counsel for the defendant or the attorney for the 

Government the reasonable time necessary for effective preparation, 

taking into account the exercise of due diligence.

18 U.S.C. § 3161(h)(7)(B).

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its sua sponte orders granting ends-of-justice continuances, the district court 

made specific findings related to the risks to the public posed by COVID-19.

Moreover, at Gordon’s motion-to-dismiss hearing, the district court 

explained why it could not hold a trial in Gordon’s case. It noted that Gordon 

had demanded a jury trial and that holding such a trial would be impossible 

due to district-wide orders, CDC guidelines, and prospective jurors’ fears. 

And, when Gordon renewed his motion to dismiss at the commencement of 

trial, the district court again explained that a jury trial could not be held before 

May 2021 due to the pandemic.

The remaining periods of delay were properly excluded as ends-ofjustice continuances under § 3161(h)(7)(A). The district-wide ends-of-justice 

continuances and the district court’s case-specific ends-of-justice 

continuances were based on valid on-the-record reasons—primarily those 

related to the COVID-19 pandemic—and ergo properly tolled the STA clock. 

See, e.g., District Court Order, March 24, 2020 (issuing the first pandemicrelated, case-specific order resetting Gordon’s trial and explaining that the 

circumstances at that time necessitated the continuance). Similarly, our 

sister circuits that have addressed the issue have uniformly upheld district 

court decisions to stop the STA clock during ends-of-justice continuances 

that were based on the COVID-19 pandemic. See, e.g., United States v. Keith, 

61 F.4th 839, 850–51 (10th Cir. 2023) (holding that district court’s ends-ofjustice continuances did not violate the STA); United States v. Olsen, 21 F.4th 

1036, 1047 (9th Cir. 2022) (same); United States v. Leveke, 38 F.4th 662, 670 

(8th Cir. 2022) (same); United States v. Roush, No. 21-3820, 2021 WL 

6689969, at *2 (6th Cir. Dec. 7, 2021), cert. denied, 142 S. Ct. 1187 (2022)

(same); United States v. Pair, 84 F.4th 577, 583–86 (4th Cir. 2023) (same). 

Consequently, it is evident the district court considered the factors in § 

3161(h)(7)(B) and did not err in continuing Gordon’s jury trial under § 

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3161(h)(7)(A). Thus, we affirm the judgment on statutory speedy-trial 

grounds. 

B. Sixth Amendment 

The Sixth Amendment states that “[i]n all criminal prosecutions, the 

accused shall enjoy the right to a speedy and public trial.” U.S. Const. 

amend. VI. The only remedy for a violation of the right is dismissal of the 

indictment. Barker, 407 U.S. at 522. “It will be the unusual case, however, 

where the time limits under the Speedy Trial Act have been satisfied but the 

right to a speedy trial under the Sixth Amendment has been violated.” 

Bieganowski, 313 F.3d at 284. 

A court evaluates a claimed violation of the constitutional right to a 

speedy trial by applying a four-factor balancing test examining: (1) the 

“length of delay,” (2) “the reason for the delay,” (3) “the defendant’s 

assertion of his right,” and (4) “prejudice to the defendant.” Barker, 407 

U.S. at 530. The court balances the factors by “weigh[ing] the first three 

Barker factors . . . against any prejudice suffered by the defendant due to the 

delay in prosecution. Obviously, in this balancing, the less prejudice a 

defendant experiences, the less likely it is that a denial of a speedy trial right 

will be found.” United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir. 

2003) (internal citations omitted). When more than one year has passed 

between indictment and trial, “this court undertakes a full Barker analysis, 

looking to the first three factors to decide whether prejudice will be 

presumed.” United States v. Parker, 505 F.3d 323, 328 (5th Cir. 2007) 

(internal citations omitted). We discuss each factor in turn.

(1) Length of Delay

“Barker’s first factor, length of delay, functions as a triggering 

mechanism.” United States v. Duran-Gomez, 984 F.3d 366, 374 (5th Cir. 

2020). The Government concedes that because more than one year passed 

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before the commencement of trial, a full Barker analysis is triggered.

6 We 

conclude that this first factor favors Gordon. The other Barker factors, 

however, favor the Government.

(2) Reason for the Delay

In analyzing the second factor, the reason for delay, this court asks, 

“whether the government or the criminal defendant is more to blame.”

Duran-Gomez, 984 F.3d at 374 (quoting Doggett v. United States, 505 U.S. 

647, 651 (1992)). Under the second factor, “pretrial delay is often both 

inevitable and wholly justifiable.” Doggett, 505 U.S. at 656. “[D]ifferent

weights should be assigned to different reasons” for delay. Barker, 407 U.S. 

at 531. And “a valid reason . . . should serve to justify appropriate delay.” Id.

“A more neutral reason . . . should be weighted less heavily but nevertheless 

should be considered.” Id. Here, the record shows that the primary reason 

for the pretrial delay in this case was the COVID-19 pandemic. These delays 

cannot fairly be attributed to the Government or to Gordon. See Keith, 61 

F.4th at 853 (deciding “to treat COVID-19 as a truly neutral justification—

not favoring either side” because the “extenuating circumstances brought 

about by the pandemic prevented the government from trying [the 

defendant] in a speedy fashion”); see also United States v. Strother, No. 21-

40592, 2023 WL 7399550, at *2 (5th Cir. Nov. 8, 2023) (holding that the 

“COVID-19 continuance is a neutral reason that weighs in [the defendant’s]

favor, but not heavily” while also concluding that other reasons for delay, 

_____________________

6 The Government, however, does not concede that the delay of 467 days between 

the date of indictment and the date of trial is presumptively prejudicial. The Government 

cites United States v. Harris for the proposition that “delays of less than five years are not 

enough, by duration alone, to presume prejudice.” 566 F.3d 422, 432 (5th Cir. 2009).

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specifically the defendant’s numerous pretrial motions, “do not weigh in his 

favor”). 7

As noted, the district court provided justifications at the motion-todismiss hearing for why it could not hold a trial in Gordon’s case. 

Furthermore, at a prior status conference on June 15, 2020, the district court 

also suggested the possibility of moving the trial to a different county where 

it might be safer for jurors, but Gordon’s counsel rejected the proposal.

Gordon’s rejection of a change in venue—prolonging the trial delay—weighs 

against him. Thus, we hold that the second Barker factor weighs mostly

against Gordon.

(3) Assertion of Right

Under the third factor, the “defendant’s assertion of his speedy trial 

right” receives “strong evidentiary weight,” while “failure to assert the right 

will make it difficult for a defendant to prove that he was denied a speedy 

trial.” Barker, 407 U.S. at 531–32. This court has noted that “mere 

assertion” of the right does not automatically cause this factor to weigh in a 

defendant’s favor, and a defendant who waits too long to assert his right will 

have his silence weighed against him. E.g., Parker, 505 F.3d at 329–30 

(observing that the eight-month delay in asserting the right weighed against 

the defendant).

“An assertion of [a speedy trial right] is a demand for a speedy trial, 

which will generally be an objection to a continuance or a motion asking to go 

to trial.” Frye, 489 F.3d at 211. This court has held that a defendant’s 

_____________________

7 Because this issue is res nova in this circuit, we consider persuasive authority from 

other circuits. As a prior panel of this court has released an unpublished, per curiam opinion 

addressing this Sixth Amendment speedy trial claim, we also consider the unpublished 

decision as persuasive. See Strother, 2023 WL 7399550. 

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“repeated motions for dismissal of [charges] are not an assertion of the right

[to a speedy trial], but are an assertion of the remedy. A motion for dismissal 

is not evidence that the defendant wants to be tried promptly.” Id. at 212. 

Rather, “a defendant’s assertion of his speedy trial rights should manifest his 

desire to be tried promptly.” Id. at 211–12 (internal quotation marks 

omitted); see also United States v. Harris, 566 F.3d 422, 432 (5th Cir. 2009). 

This court assesses the totality of the proceedings in considering the amount 

of time that passed before a defendant should have raised his speedy trial 

rights. Parker, 505 F.3d at 330.

In this case, Gordon’s assertion of his speedy trial right was delayed

as a result of his own actions. On December 9, 2020, Gordon filed a motion 

to dismiss on speedy trial grounds—322 days after his indictment. On 

January 7, 2021, Gordon objected to the Government’s request for an 

extension to respond to his motion to dismiss—351 days after his indictment. 

Gordon concedes that he took no position on the Government’s only other 

motion for a continuance, which it filed on May 6, 2020, relying on the 

district-wide orders related to COVID-19. Because “an assertion of speedy 

trial rights generally takes the form of ‘an objection to a continuance or a 

motion asking to go to trial,’” we conclude that both Gordon’s delayed 

assertion of his right and his delayed objection to continuances did not evince 

a desire to go to trial. See Harris, 566 F.3d at 432.

Outside of the district-wide orders and case-specific orders related to 

COVID-19, many of the trial continuances, resulting in part from pretrial 

motions and requests for continuances, can be attributed to Gordon.

Moreover, as the Government notes, Gordon’s requests for release were not 

accompanied by a demand for a speedy trial. Under these circumstances, 

Gordon’s many motions, regarding continuances and reconsideration of 

pretrial detention, contradict his argument that he was a defendant 

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aggressively asserting his desire to be tried promptly. Accordingly, we hold 

that the third Barker factor weighs heavily against Gordon.

(4) Prejudice

The fourth factor is the prejudice suffered by the defendant due to the 

delay. Gordon argues that prejudice should be presumed here. Ordinarily, the 

burden is on the defendant to demonstrate actual prejudice. Serna-Villarreal, 

352 F.3d at 230–31. However, “there is a scenario in which prejudice can be 

presumed.” Duran-Gomez, 984 F.3d at 379. “Prejudice may be presumed 

where the first three factors weigh ‘heavily’ in the defendant’s favor.”

United States v. Hernandez, 457 F.3d 416, 421 (5th Cir. 2006). But as we have 

noted, although the length of delay weighs against the Government, the 

second and third factors weigh against Gordon. Thus, prejudice against 

Gordon is not presumed under the Serna-Villarreal framework. 352 F.3d at 

231–33.

Alternatively, Gordon argues that he suffered actual prejudice, which 

he bears the burden of showing. “Actual prejudice is assessed in light of the 

three following interests of the defendant: (1) to prevent oppressive pretrial 

incarceration; (2) to minimize anxiety and concern of the accused; and (3) to 

limit the possibility that the defense will be impaired.” Harris, 566 F.3d at 

433 (internal quotation marks omitted).

First, Gordon argues that he has suffered “oppressive pretrial 

incarceration” and “anxiety and concern.” However, Gordon’s claims fail 

to sufficiently allege “oppressive pretrial incarceration” and “anxiety and 

concern” because they are too speculative. See United States v. Crouch, 84 

F.3d 1497, 1515–16 (5th Cir. 1996). “Speculative prejudice does not suffice.” 

Id. at 1515 (internal citation omitted). And here, Gordon failed to support his 

allegations with evidence (1) that he was affected by any failure of the 

detention facility to follow proper COVID-19 safety protocol; (2) that he was 

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actually deprived of water, medical care, or any other necessities; (3) that he 

had suffered distinctive anxieties beyond those experienced by any inmate 

detained pending trial; or (4) that he was actually subjected to abusive 

treatment by other inmates. 

Next, Gordon contends that the delay adversely impacted his defense. 

“The Supreme Court has stated that limiting the defendant’s ability to 

prepare his case is the most serious of the three types of prejudice.” Frye, 489 

F.3d at 212 (citing Barker, 407 U.S. at 532). Still, we conclude that Gordon’s

claims—alleging that his defense was impaired simply because he was 

detained—are not compelling. Gordon argues that his defense was impaired 

and therefore he suffered actual prejudice because the year-long detention (1) 

purportedly made him look guilty in the eyes of potential witnesses and (2) 

prevented him from personally assisting in his defense by directly contacting 

witnesses. However, “vague assertions of lost witnesses, faded memories, or 

misplaced documents are insufficient. A mere loss of potential witnesses is 

insufficient absent a showing that their testimony would have actually aided 

the defense.” Crouch, 84 F.3d at 1515 (quoting United States v. Beszborn, 21 

F.3d 62, 66–67 (5th Cir. 1994)) (internal quotation marks, brackets, and 

citation omitted). Because there is an “absence of serious prejudice,” we 

hold that the fourth Barker factor weighs against Gordon. Barker, 407 U.S. at 

534.

In sum, Gordon has failed to show that the delays in his case have 

violated the Constitution. Thus, we hold that the district court did not err in 

denying Gordon’s motion to dismiss on constitutional speedy-trial grounds.

IV. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district 

court.

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