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1

Defendant’s last name has been spelled “Villareal” and “Villarreal” in the

documents filed with the Court. In response to the Court’s inquiry about the

proper spelling of Defendant’s last name, defense counsel confirmed that the

correct spelling is “Villarreal.” Accordingly, the Clerk is directed to amend the

docket sheet to reflect the correct spelling of Defendant’s last name; the parties are

directed to incorporate the correct spelling in all future filings. 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. CASE NO. 5:98cr28-RS-1

VICTOR GARCIA VILLARREAL1

,

Defendant.

_____________________________/

ORDER ON DEFENDANT’S MOTIONS TO DISMISS

Before me are Defendant’s Motions to Dismiss (Docs. 34 & 35). Both

motions are substantively identical and request dismissal of the indictment on the

ground that the delay of approximately nine-and-a-half years between the filing of

the indictment and Defendant’s arrest violates Defendant’s right to speedy trial

under the Sixth Amendment to the federal Constitution. The Government opposes

the motions (Doc. 37).

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2

A superseding indictment was filed on April 1, 2008, and modifies the

initial indictment only to the extent that it specifies the quantities of marijuana

relating to each charge. Count One of the superseding indictment charges that

Defendant conspired to distribute more than one thousand kilograms of marijuana;

Count Two charges that Defendant possessed with intent to distribute more than

one hundred kilograms of marijuana. 

I. Background

Defendant Victor Garcia Villarreal was charged by indictment filed July 23,

1998, with conspiracy to possess with intent to distribute marijuana, in violation of

21 U.S.C. § 841(a) & (b)(1)(A)(vii), and possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a) & (b)(1)(B)(vii).2

 Defendant was

arrested on January 8, 2008. 

The pending motions to dismiss, both of which are substantively identical,

request dismissal of the indictment on the ground that the delay of approximately

nine-and-a-half years between the filing of the indictment and Defendant’s arrest

violates Defendant’s right to speedy trial under the Sixth Amendment to the federal

Constitution. Defendant contends that the Government was negligent or engaged

in only “routine” activities and “nothing out of the ordinary” in its efforts to find

and arrest Defendant. Defendant further avers that the “extraordinary” and

“unnecessary” delay between the indictment and the arrest has presumptively

prejudiced Defendant’s ability to adequately prepare a defense.

The Government contends that the motions should be denied because the

post-indictment delay was caused by Defendant’s “deliberate efforts to avoid

contact with the government.” The Government asserts that despite its “diligent

efforts,” it was “unable to locate Defendant, “a fugitive who may not even have

been in the United States.” 

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3

Defendant is a citizen of Mexico.

An evidentiary hearing on the motions to dismiss was held on April 14,

2008. At the hearing, Defendant was represented by private counsel, and a

Spanish-speaking interpreter was present.3

 Following the presentation of evidence,

I entered oral orders denying the motions. This written opinion sets forth my

specific findings of fact and conclusions of law. 

II. Analysis

The sole issue is whether the approximately nine-and-a-half year delay

between the filing of the indictment and Defendant’s arrest has violated

Defendant’s right to a speedy trial under the Sixth Amendment. Both parties agree

that the issue is resolved under the legal principles articulated by the Supreme

Court in Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d

520 (1992) and Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101

(1972).

In Barker, the Supreme Court emphasized that “any inquiry into a speedy

trial claim necessitates a functional analysis of the right in the particular context of

the case”:

The right of a speedy trial is necessarily relative. It is

consistent with delays and depends upon circumstances. It

secures rights to a defendant. It does not preclude the

rights of public justice.

Barker, 407 U.S. at 522, 112 S. Ct. at 2188 (quoting Beavers v. Haubert, 198 U.S.

77, 87, 25 S. Ct. 573, 576, 49 L. Ed. 950 (1905)). To clarify the “slippery” and

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4

The Barker Court rejected the following two suggestions: (1) that the right

to speedy trial be quantified into a specific number of days or months during which

a criminal defendant must be brought to trial and (2) that a criminal defendant

waives any consideration of his right to speedy trial for any period prior to which

he has not demanded trial. 407 U.S. at 522-24, 112 S. Ct. at 2188-189.

“amorphous quality of the right” to speedy trial, the Barker Court rejected

inflexible, rigid proposals that would have simplified the analysis of whether a

criminal defendant’s right to speedy trial has been violated4

 and instead adopted a

balancing test. 407 U.S. at 530, 112 S. Ct. at 2191-192. 

Under the balancing test enunciated in Barker, courts are required to weigh

the conduct of both the prosecution and the defendant in determining whether a

defendant has been deprived of his right to speedy trial. Id. The four factors

relevant to that determination are: 

(1) Length of delay;

(2) Reason for the delay;

(3) Defendant’s assertion of his right; and 

(4) Prejudice to the defendant. 

407 U.S. at 530, 112 S. Ct. at 2192. None of the four factors is either a necessary

or sufficient condition to the finding of a deprivation of the right to speedy trial;

“[r]ather, they are related factors and must be considered together with such other

circumstances as may be relevant.” 407 U.S. at 533, 112 S. Ct. at 2193. In

applying the factors, a court must engage in a “difficult and sensitive balancing

process,” while recognizing that “the accused’s interest in a speedy trial is

specifically affirmed in the Constitution.” Id. 

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A. Length of Delay

Under Barker, “[t]he length of delay is to some extent a triggering

mechanism. Until there is some delay which is presumptively prejudicial, there is

no necessity for inquiry into the other factors that go into the balance.” Id. The

parties agree that the delay of approximately nine-and-a-half years between the

indictment and the arrest is presumptively prejudicial. Doggett, 505 U.S. at 652,

112 S. Ct. at 2691 (finding that “the extraordinary 8 1/2 year lag between

Doggett’s indictment and arrest clearly suffices to trigger the speedy trial

enquiry.”). Therefore, it is necessary to assess the remaining three factors.

B. Reason for the Delay

The Barker Court explained:

Closely related to length of delay is the reason the

government assigns to justify the delay. Here, too, different

weights should be assigned to different reasons. A

deliberate attempt to delay the trial in order to hamper the

defense should be weighted heavily against the

government. A more neutral reason such as negligence or

overcrowded courts should be weighted less heavily but

nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the

government rather than with the defendant. Finally, a valid

reason, such as a missing witness, should serve to justify

appropriate delay. 

407 U.S. at 530, 112 S. Ct. at 2192. 

Defendant does not contend that the Government deliberately delayed his

arrest to obstruct his defense; rather, Defendant contends that the Government was

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negligent or engaged in only “routine” activities and “nothing out of the ordinary” 

in its efforts to find and arrest Defendant. A summary of the evidence relevant to

this factor follows: 

Robert Duncan, the case agent with the Drug Enforcement Agency (DEA),

testified that Defendant orchestrated the conspiracy of which he is charged, along

with three co-conspirators. According to Duncan, the co-conspirators were

charged, arrested, and then cooperated with the Government. Duncan stated, and

this Court’s docket confirms, that a warrant for Defendant’s arrest was issued on

July 23, 1998, one day after the indictment was filed on July 22, 1998. 

Duncan testified that the cooperating co-conspirators informed him that

Defendant resided in Mission-McAllen, Texas, which is approximately ten miles,

or just minutes, from the Mexican border. Defendant is a citizen of Mexico. 

Duncan stated that a person attempting to cross the border into Mexico can do so

with relative ease. 

In early August 1998, Duncan, along with another DEA case agent and a

customs agent, traveled to Defendant’s purported residence in Texas. They were

accompanied by an informant, a cooperating co-conspirator, who claimed to know

Defendant well. Duncan, along with the agents and the informant, attempted to

locate Defendant. They visited several locations, including Defendant’s purported

home and place of employment. Defendant was not present at any of the locations. 

Duncan testified that a person at one of the sites informed him that Defendant had

fled to Mexico. 

In 1998, the Government seized a a tractor-trailer owned by Defendant as

property allegedly used in the commission of the crimes charged in the pending

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5

Joanos was assigned to the case in 2005, when he joined the U.S. Marshal

Service satellite office in Panama City, FL. Prior to that time, the case was

assigned to a different deputy U.S. Marshal.

indictment. As part of the forfeiture proceedings, the Government sent Defendant

a notice of the seizure and intended forfeiture. Defendant did not file a claim to the

truck, and the truck was ordered forfeited to the Government in October 1998. 

DEA transferred the case to the United States Marshal Service in February

1999. Deputy U.S. Marshal, Paul Joanos, testified that the Marshal Service entered

the warrant for Defendant’s arrest into the National Crime Information Center

(NCIC) when the case was transferred, in February 1999.5

 NCIC is a national

crime information center run by the Federal Bureau of Investigation. According to

Joanos, “pretty much anything that any of us do[es],” including obtaining a job or

applying for a new social security card, immigration card, or driver’s license in any

state, is cross-referenced by NCIC. Upon entry of the warrant into NCIC, the

McAllen, Texas, division of the Marshal Service, pursuant to its policy, attempted

to find Defendant. DEA and the Marshal Service verified each year that the

warrant for Defendant’s arrest was still active in NCIC. NCIC produced no

information about Defendant’s whereabouts. Defendant’s driver’s license had 

expired on March 12, 1997, a year before the indictment was filed. The license

was not renewed. 

Duncan and Joanos also testified that they monitored a separate database

called “Auto Track” in their efforts to find and arrest Defendant. Auto Track

processes information from the three national credit bureaus. According to Joanos,

any credit-related information about Defendant, including real estate and business

transactions, address changes, and vehicle registrations in any state would appear

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in Auto Track. Each year from the date of the indictment until Defendant was

arrested, the Marshal Service unsuccessfully searched NCIC and Auto Track for

information about Defendant’s whereabouts. 

On two occasions during the post-indictment period, the Marshal Service

identified two subjects, one in Maryland and the other at the Houston International

Airport, who matched Defendant’s information or characteristics. After comparing

the suspects with Defendant’s photographs and fingerprints, however, it was

determined that neither subject was Defendant.

Joanos stated that on January 20, 2005, deputy marshals in Texas again

returned to Defendant’s purported residence. Neighbors conveyed to the marshals

that “they had not seen [Defendant] in quite awhile.”

Joanos then contacted Homeland Security and requested that a “border

lookout” be placed on Defendant. Defendant’s name was included in a list of

fugitives and given to law enforcement patrolling the Texas-Mexico border. 

According to Joanos, persons entering the United States are cross-referenced by

law enforcement against the list. If a fugitive whose name appears on the list

attempts to enter the United States, law enforcement would take that person into

custody. Defendant was arrested on the outstanding warrant when he entered an

office of Homeland Security and applied for a new resident alien card in 2008. 

The final witness who testified on behalf of the Government was Anthony

Koziol, an adjudications officer with the United States Citizenship and

Immigration Services (“USCIS”). Koziol stated that Defendant’s application for

legal residency based on marital status had been denied by USCIS because

Defendant failed to appear twice for the required interview. In addition, then-INS

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mailed a letter to Defendant in 1997 requesting that he appear before its

investigative branch for questioning related to an alleged criminal offense. 

According to Koziol, the post office returned the letter as undeliverable. Koziol

testified that Defendant had no contact with USCIS between December 1997 and

his arrest in 2008.

During the week prior to the evidentiary hearing, Duncan traveled to the

Mission-McAllen, Texas, area. He spoke with Santos Salinas, a former business

acquaintance of Defendant. Salinas conveyed to Duncan that in 2000, he

attempted to contact Defendant to repay a large debt and to re-establish a 

connection for smuggling marijuana. Defendant’s family members, however,

conveyed to Salinas that Defendant now lived in Monterey, Mexico, because he

was wanted by authorities. Duncan stated that Salinas has lived in the MissionMcAllen area continuously since 2000; that Salinas has maintained relationships

with individuals who distribute controlled substances; and that Salinas has not seen

or heard from Defendant since his unsuccessful attempt to contact Defendant in

2000. 

Defendant complains that the Government’s efforts to find Defendant were

negligent. In the alternative, Defendant avers that the Government’s efforts were

“routine” and “nothing out of the ordinary.” 

In support of these contentions, Defendant asserts that on April 23, 2004,

and on March 14, 2005, a notary public in Texas acknowledged Defendant’s

physical presence and signatures on documents in which Defendant conveyed real

estate to his wife. Defendant contends that these documents prove that Defendant

was present in Texas on those dates. 

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In addition, Defendant produced credit card statements, one from 1993, two

from September 2003, and one from July 2005, addressed to Defendant or to

Defendant and his wife at their purported residence in Texas. The statements

indicate that payments were being made on the cards.

Defendant’s nephew and sister testified on Defendant’s behalf. Both stated

that Defendant lived at the Texas residence continuously from the late 1990's to

2005, when Defendant and his wife separated. According to their testimony,

Defendant moved to a border town in Mexico in 2005, but frequently returned to

the Mission-McAllen, Texas, area to visit.

I find that the evidence presented by Defendant fails to support his

contention that the Government acted negligently or is responsible for the delay in

his arrest. In fact, the documents conveying real estate that were signed by

Defendant and acknowledged by a notary public in Texas undermine Defendant’s

position. Both documents list Defendant’s mailing address as Tamaulipas,

Mexico. Thus, although Defendant may have traveled to Texas on two dates in

2004 and 2005, the documents indicate that Defendant resided, or at least

considered his mailing address, to be in Mexico. 

 The credit card statements are equally entitled to little or no weight. As to

the credit card statement dated 1993, that statement was produced five years before

the relevant time period and thus has no bearing on the merits of the motions. As

to the credit card statements dated September 2003, and July 2005, those three

credit card statements, along with a resident alien card and the two documents

conveying real estate that listed Defendant’s mailing address as a Mexican address,

are the sole documentary exhibits introduced into evidence by Defendant. 

Defendant submitted no tax returns, pay stubs, check copies, bank statements,

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6

Defendant’s sister testified that she obtained all the documents that were

presented as evidence and that there were “very few.” 

receipts, bills, records, letters, or any other documents that would have supported

Defendant’s contention that he was living in the United States from 1998 to 2008,

or that the Government, through reasonable efforts, could have located Defendant. 

Indeed, Defendant’s Texas driver’s license expired in 1997, and was not renewed. 

The lack of documentary evidence supporting Defendant’s claimed

whereabouts from 1998 to 2008 is startling. Although it is not improper or illegal

to lead a paperless existence, it is highly unusual in contemporary society that

Defendant could not produce additional records confirming his whereabouts,

particularly when dismissal of a federal criminal indictment hinged upon it. 

Because Defendant did not produce such records, I can only conclude that

Defendant had no such records or that such records, if they existed, would not have

supported Defendant’s position.6

The testimony of Defendant’s nephew and sister that Defendant regularly

resided in Texas is also entitled to little weight. That testimony is contradicted by

the testimony of Duncan and Joanos who stated that individuals familiar with

Defendant, as well as Defendant’s family members, conveyed to their agencies and

their informants that Defendant was aware that he was wanted by law enforcement

and that he had fled to Mexico. In addition, Defendant’s sister conceded, upon

questioning by the Government, that she is a citizen of Mexico, and visits the

United States for short visits and infrequently. When defense counsel asked

Defendant’s sister whether she was able to locate any person unrelated to

Defendant who could serve as a witness and verify Defendant’s whereabouts

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during the period from 1998 to 2008, she answered in the negative. Defendant’s

sister also conceded that Defendant possessed a Mexican driver’s license that

would have permitted him to travel between border towns without incident. 

 Based on the evidence presented, I find that the Government acted with due

diligence in its efforts to find and arrest Defendant and that Defendant is

responsible for the delay in his arrest. It was reasonable for law enforcement to

conclude that Defendant had fled to Mexico or was purposely evading them. A

warrant was issued the day after the indictment was filed. Federal agents searched

the border town in Texas where Defendant purportedly resided. Various

individuals, including Defendant’s family members, conveyed to federal agents

that Defendant was wanted and that he had fled to Mexico. Other individuals

stated that they had not seen or heard from Defendant during the relevant period. 

Defendant’s Texas driver’s license expired in 1997, and was not renewed. Prior

efforts by the USCIS to contact Defendant were unsuccessful. In 1997, USCIS

denied Defendant’s application for legal residency because he failed to appear

twice before it. The seizure and forfeiture proceedings of Defendant’s truck placed

Defendant on notice of his alleged criminal activities. Authorities monitored two

national databases each year from 1999 until 2008 for clues about Defendant’s

whereabouts. Information from the databases led U.S. marshals to two subjects,

one in Maryland, the other in Houston, Texas, thought to be Defendant. Marshals

placed a border lookout on Defendant which ultimately led to his capture in

January 2008. 

Defendant does not dispute that he is a citizen of Mexico and resided in

Mexico at least some of the time during the relevant period. Defendant’s own

evidence indicates that his mailing address, at least in 2004 and 2005, was

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Tamaulipas, Mexico. The meager documentary evidence offered by Defendant in

support of his claimed whereabouts during the entire ten-year period from 1998 to

2008 were three credit card statements, two dated September 2003, and one dated

July 2005. If anything, the lack of evidence produced by Defendant suggests that

Defendant’s connection to the United States during the relevant period was tenuous

at best. 

The dearth of witnesses who could vouch for Defendant’s claimed

whereabouts during a ten-year period equally undermines Defendant’s position.

Only two witnesses, both of them family members, testified in support of

Defendant’s claimed whereabouts. One of the witnesses was Defendant’s sister, a

citizen of Mexico who conceded that she makes short, infrequent trips to the

United States.

The facts of this case are thus distinguishable from the facts in Doggett,

where the Supreme Court found that a simple computer inquiry would have led

authorities to the defendant. The Doggett Court concluded that “[f]or six years, the

Government’s investigators made no serious effort to test their progressively more

questionable assumption that Doggett was living abroad, and, had they done so,

they could have found him in minutes.” 505 U.S. at 652-53, 112 S. Ct. at 2691. In

characterizing the Government’s efforts to find Doggett as “inexcusable

oversights,” the Court relied on the facts that the government had permitted

Doggett’s name to expire and vanish from a national database system; had assumed

that Doggett was living in Panama, although the American Embassy in Panama had

conveyed to the State Department information that was to the contrary; and made

no effort to “track Doggett down, either abroad or in the United States.” 505 U.S.

at 650, 112 S. Ct. at 2689. The Court found that “Doggett remained lost to the

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American criminal justice system [for eight-and-a-half years], when the Marshal’s

Service ran a simple credit check on several thousand people subject to outstanding

arrest warrants and, within minutes, found out where Doggett lived and worked.” 

Id. The Supreme Court noted that upon Doggett’s return to the United States, “he

has married, earned a college degree, found a steady job as a computer operations

manager, lived openly under his own name, and stayed within the law.” 505 U.S.

at 649, 112 S. Ct. at 2689.

Here, Defendant does not contend that a simple computer search would have

revealed his location. Government witnesses testified that they conducted yearly

computer searches; made personal visits to Defendant’s last known address; spoke

with family members and informants; and explored leads. I also note that, unlike

Doggett, no evidence suggests that Defendant has furthered his education, found a

steady job, lived openly under his own name, or stayed within the law during the

intervening nine-year period between the indictment and the arrest. In fact,

Defendant does not hold a U.S. driver’s license and never re-established residence

in the United States after his purported move to Mexico in 2004 or 2005.

In contrast then to the wealth of information about Doggett’s activities in the

United States, the lack of documentary and testimonial evidence produced by

Defendant about his own activities during the nine-year period is both cause for

suspicion and relevant to the analysis. 

A true fugitive, whose location is unknown, or who is

successfully resisting government efforts to bring him into

the jurisdiction, will not be able to obtain dismissal of an

indictment. This is as it should be. Otherwise, the courts

would be sanctioning the playing of games by fugitives.

 

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United States v. Salzmann, 548 F.2d 395, 404 (2d Cir. 1976) (Feinberg, J.,

concurring). A defendant who deliberately avoids arrest waives the right to a

speedy trial. United States v. Sandoval, 990 F.2d 481, 484-85 (9th Cir. 1993). 

Defendant asserts that the Government “could have done more” in its efforts

to find him. According to Defendant, law enforcement “knew that he was out there

in Mission, Texas, close to the border,” and “[the Government] did the normal

things that [it] would do under normal cases, which was not enough specifically for

this case.” Defendant’s arguments are baseless. Defendant does not deserve

special treatment by law enforcement. Defendant’s implication that the

Government should have assumed that he was a flight risk because of his close

proximity to the border undermines his contention that he did not attempt to elude

capture. And while the contention that the Government could have “done more”

might always be raised, the law is clear that “[t]here is no requirement that law

enforcement officials ‘make heroic efforts to apprehend a defendant who is

purposefully avoiding apprehension.’” Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir.

1988). Based on the evidence, I find that the Government acted with due diligence

in its efforts to find Defendant and that Defendant attempted to avoid arrest. 

Therefore, the first factor – the reason for the delay – weighs against Defendant

and in favor of the Government.

C. Defendant’s Assertion of Right

The Barker Court determined that although the primary burden is on the

Government and the courts, not the defendant, to bring the defendant to trial, “this

does not mean, however, that the defendant has no responsibility to assert his

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right” to speedy trial:

Whether and how a defendant asserts his right is closely

related to the other factors we have mentioned. The

strength of his efforts will be affected by the length of the

delay, to some extent by the reason for the delay, and most

particularly by the personal prejudice, which is not always

readily identifiable, that he experiences. The more serious

the deprivation, the more likely the defendant is to

complain. The defendant’s assertion of his speedy trial

right, then, is entitled to strong evidentiary weight in

determining whether the defendant is being deprived of the

right. We emphasize that failure to assert the right will

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

a speedy trial.

 

407 U.S. at 528, 531-32, 112 S. Ct. at 2191-193.

During the nine-year period between the indictment and arrest, Defendant

failed to assert the right to speedy trial. When the tractor-trailor owned by

Defendant was seized and forfeited to the Government as property allegedly used

in the commission of the crimes charged, Defendant was placed on notice of his

alleged criminal activities as early as October 1998. Defendant nevertheless failed

to assert his right to timely answer to the charges. That finding, in conjunction

with my previous findings that the Government acted with due diligence in its

efforts to locate Defendant and that Defendant attempted to avoid arrest, inform my

conclusion on this third factor. I find that the third factor – Defendant’s assertion

of the right to speedy trial – again weighs against Defendant and in favor of the

Government. 

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D. Prejudice to the Defendant 

The Barker Court explained the fourth factor as follows:

Prejudice, of course, should be assessed in the light of the

interests of defendants which the speedy trial right was

designed to protect. This Court has identified three such

interests: (i) to prevent oppressive pretrial incarceration; (ii)

to minimize anxiety and concern of the accused; and (iii) to

limit the possibility that the defense will be impaired. Of

these, the most serious is the last, because the inability of a

defendant adequately to prepare his case skews the fairness

of the entire system. 

407 U.S. at 532, 112 S. Ct. at 2193. 

The first two interests articulated in Barker are inapplicable to this case. No

evidence supports a finding that the prolonged period between the indictment and

the arrest has interfered with Defendant’s liberty, disrupted his employment,

drained his financial resources, curtailed his associations, subjected him to public

obloquy, or caused anxiety for him, his family, or his friends. United States v.

Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971).

As to the third, most important, interest, Doggett held that

if the Government had pursued Doggett with reasonable

diligence from his indictment to his arrest, his speedy trial

claim would fail. Indeed, that conclusion would generally

follow as a matter of course however great the delay, so

long as Doggett could not show specific prejudice to his

defense. 

505 U.S. at 656, 112 S. Ct. at 2693. Defendant identifies no particularized

prejudice to his defense. In contrast, the Government asserts that it, not Defendant,

has been prejudiced by the delay. According to the Government, cooperating

witnesses central to its case against Defendant, including Defendant’s alleged coCase 5:98-cr-00028-RH-GRJ Document 61 Filed 05/07/08 Page 17 of 19
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conspirators, have died, have been deported, or cannot be located. The

Government contends that it will rely on the deposition testimony of those

witnesses at trial. 

Although Defendant generally complains that he will be unable to crossexamine the witnesses, he fails to identify any specific prejudice. Defendant does

not contend that defense witnesses or evidence which might support his defense are

unavailable or missing. The Court in Barker stated:

[D]eprivation of the right [to speedy trial] may work to the

accused’s advantage. Delay is not an uncommon defense

tactic. As the time between the commission of the crime

and trial lengthens, witnesses may become unavailable or

their memories may fade. If the witnesses support the

prosecution, its case will be weakened, sometimes seriously

so. And it is the prosecution which carries the burden of

proof. Thus, unlike the right to counsel or the right to be

free from compelled self-incrimination, deprivation of the

right to speedy trial does not per se prejudice the accused’s

ability to defend itself. 

407 U.S. at 521, 92 S. Ct. at 2187. Because no evidence supports a finding that

Defendant will be prejudiced by the delay, I find that the fourth factor – prejudice

to the defendant – weighs against Defendant and in favor of the Government. 

III. Conclusion

Because I find that Defendant, and not the Government, is primarily

responsible for the delay in his arrest; that Defendant had knowledge of the

indictment and failed to assert his right to speedy trial; and that Defendant is not

prejudiced by the delay, I conclude that Defendant has not been deprived of his

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constitutional right to a speedy trial.

Accordingly, Defendant’s Motions to Dismiss (Docs. 34 & 35) are

DENIED.

ORDERED on May 7, 2008.

/s/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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