* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

March 23, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20581

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

KENNETH GREEN, also known as Sherrod Sylvester McClain

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas, Houston

No. 4:98-CR-311

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

In August 1998, the defendant-appellant, Kenneth Green, was

charged by indictment as “John Doe” with making a false statement

on a passport application in violation of 18 U.S.C. § 1542. The

indictment specifically alleged that the defendant “stated and

represented in the Form DSP-11, ‘Application for a United States

Passport,’ that he was in fact Sherrod Sylvester McClain when,
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then and there, Defendant knew that he was not Sherrod Sylvester

McClain.” Along with the passport application, Green submitted

an application for a Texas identification card that bore right

and left thumbprints and a photograph, also purporting to be

those of McClain. 

At the time of the indictment, Green was known to law

enforcement officials only by McClain, the alias he had used to

commit the underlying offense of making a false statement on a

passport application. Post-indictment, agents entered the

information they had on Green, including his physical

description, into the National Crime Information Center system. 

Because agents suspected that the defendant was involved in drug 

trafficking, copies of the warrant and photographs of the subject

were given to a Houston police sergeant involved with a drug task

force in December 1998, and to a Drug Enforcement Administration

agent in January 1999. On August 30, 2002, agents ran a records

check using the defendant’s alias, but the effort turned up no

new information. 

In September 2002, agents used fingerprint technology to

match the unknown thumbprints from the Texas identification card

application with those of Green, whose thumbprints were on file

with the FBI. Agents also compared a photograph of Green with

the one on the application and determined they were the same

person. That same month, agents retrieved Green’s arrest records

from Waller County, Texas. 
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In October 2002, agents learned and verified that Green was

incarcerated in the Wisconsin Department of Corrections and had

been there since 2000. In October 2003, agents received Green’s

booking photograph and fingerprint card from Wisconsin

authorities. Thereafter, agents gathered the necessary

documentation and sent Green’s prints to the Immigration and

Customs Enforcement (“ICE”) forensic laboratory for comparison. 

In August 2004, the agents received confirmation from ICE of

Green’s identity.

In September 2004, a detainer was placed on Green at the

Wisconsin facility where he was incarcerated. On November 16,

2004, the United States Attorney filed an application for writ of

habeas corpus ad prosequendum, requesting that Green be brought

before the United States District Court for the Southern District

of Texas. On January 4, 2005, Green made his initial appearance

in the district court. 

On February 18, 2005, Green filed a motion to dismiss the

indictment, arguing that the post-indictment delay violated his

Sixth Amendment right to a speedy trial. On March 8, 2005, the

district court denied Green’s motion. 

Following a stipulated bench trial in March 2005, Green was

convicted and sentenced to one month in prison, to be served

concurrently with an existing state court sentence and to be

followed by three years of supervised release.

Green now appeals his judgment of conviction and sentence,
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arguing that the district court erred in denying his motion to

dismiss the indictment. Green contends that the post-indictment

delay, from the issuance of the indictment in August 1998 to the

filing of the detainer on Green in September 2004, violated his

Sixth Amendment right to a speedy trial. 

Green’s speedy trial claim is controlled by the four-factor

balancing test in Barker v. Wingo, 407 U.S. 514 (1972). Under

that test, the court considers: (1) the length of the delay; (2)

the reason for the delay; (3) the defendant’s diligence in

asserting his Sixth Amendment right; and (4) the prejudice to the

defendant caused by the delay. United States v. Cardona, 302

F.3d 494, 496 (5th Cir. 2002) (citing Barker, 407 U.S. at 530-

33). 

In Doggett v. United States, 505 U.S. 647 (1992), the

Supreme Court clarified how the four factors are to be weighed

and the burden each party carries. The threshold inquiry is

whether the delay is long enough to trigger a speedy trial

analysis. United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir.

2002) (citing Doggett, 505 U.S. at 651-52). Generally, a postaccusation delay approaching one year is sufficient. Id. (citing

Doggett, 505 U.S. at 652 n.1). 

“If a court undertakes a full Barker-analysis, it evaluates

the first three factors (delay-length; reason for it; diligence

in asserting right) in order to determine whether prejudice will

be presumed or whether actual prejudice must be shown.” United
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States v. Frye, 372 F.3d 729, 736 (5th Cir. 2004). “In all of

this, courts do not engage in a rigid analysis, but engage in the

‘functional analysis of the right in the particular context of

the case.’” Id. (quoting Barker, 407 U.S. at 522).

In analyzing Green’s Sixth Amendment claim, the district

court recognized that it was required to engage in a full Barkeranalysis because of the length of the post-indictment delay.

See Tr. of Mot. Hr’g at 43, United States v. Green, No. H-98-CR311 (S.D. Tex. Mar. 8, 2005). Green’s counsel told the district

court that Green was relying entirely on the presumption of

prejudice for his claim. See id. at 4. This statement, along

with the court’s finding that there was absolutely no evidence of

actual prejudice, required the court to balance the first three

factors under Barker and Doggett to determine if prejudice would

be presumed. See id. at 43-47.

In addressing the first two factors, the district court

found that “the Defendant contributed to the problems

significantly because he admittedly used false information and as

a result he was indicted as a John Doe. Clearly, his efforts to

prevent the Government from figuring out who he was contributed

to the delay in the Government’s figuring out who he was.” Id.

at 43. The court also found that “there were periods of time in

which the Government had available to it the means of resolving

that confusion that it did not avail itself of as early as it
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might have done.” Id. The court concluded “that there was a

relatively short period of delay that is attributable to some

degree of governmental negligence[,]” but attributed the “much

longer period of delay . . . to a combination of the Defendant’s

efforts to hide his identity and the Government’s failure,

although they made attempts to find the Defendant, to locate

him.” Id. at 46. The court found that there was “certainly no

degree of culpability [by the Government] that is higher than a

low degree of negligence.” Id. Finally, in addressing the third

factor, the court found that Green had diligently asserted his

constitutional right. Based on these factors, the court

concluded that although “[a] combination of those factors makes

this a relatively close case” on whether it should presume

prejudice, it did not “see a basis for dismissing the

indictment.” Id. at 47. 

Having reviewed the briefs, the district court’s oral

ruling, and the pertinent portions of the record, we find no

errors of law or fact warranting reversal. Essentially for the

reasons stated by the district court, we agree that the length of

the delay attributable to the government’s negligence, even when

considered in light of the defendant’s assertion of his right, is

not sufficient for a presumption of prejudice. Cf. United States

v. Serna-Villarreal, 352 F.3d 225, 232 & 233 n.5 (5th Cir. 2003),

cert. denied, 541 U.S. 981 (2004) (stating that “this Court and
1 Although Green argues that this circuit’s decision in

Serna-Villarreal conflicts with the Supreme Court’s decision in

Barker, it is a well-established rule that one panel of this

court may not overrule a prior panel’s decision, absent an en

banc or intervening Supreme Court decision. See United States v.

Treft, 447 F.3d 421, 425 (5th Cir.), cert. denied, 127 S. Ct. 555

(2006). We therefore decline to consider this argument any

further on appeal.

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others generally have found presumed prejudice only in cases in

which the post-indictment delay lasted at least five years” and

noting that “[t]he portion of the post-indictment delay

attributable to government negligence in Doggett, Bergfeld, and

Cardona, was six years, five years, and five years,

respectively”).1 Accordingly, because Green relied solely on

presumptive prejudice and because he cannot show actual

prejudice, the judgment of the district court is affirmed.

AFFIRMED.