IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11119

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

BOBBY LEE WHITLOCK, also known as Uncle, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:08-CR-152-16

Before DAVIS, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

In 2007, law enforcement agents in Dallas, Texas began an undercover 

investigation of a group of individuals distributing large quantities of illegal 

drugs near a school. The investigation led to an indictment on May 21, 2008,

which named multiple individuals, including FNU LNU a.k.a “Uncle.” On 

August 20, 2008, the government filed a superseding indictment, which named 

Bobby Whitlock a.k.a “Uncle.” The superseding indictment charged Whitlock 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 5, 2017

Lyle W. Cayce

Clerk

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No. 16-11119

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with conspiracy to possess with the intent to distribute PCP, MDMA, and 

marijuana, and with distribution of PCP near a school.

Law enforcement agents identified a home address for Whitlock in 

Ennis, Texas. Agents made two attempts to locate and arrest Whitlock at the 

address; both attempts failed. Then, in 2009, Whitlock’s fugitive status was 

erroneously removed from the National Crime Information Center database.

This caused the U.S. Marshals Service (“USMS”) to end its efforts to find 

Whitlock. The USMS identified the error in 2015 and located and arrested

Whitlock on November 6, 2015. Whitlock was released on bond. 

Whitlock moved to dismiss the indictment for an alleged violation of his 

Sixth Amendment right to a speedy trial. The district court held that the 

government “has affirmatively shown that the delay did not impair Whitlock’s 

ability to defend himself” because all of the government’s evidence, including 

recorded conversations of controlled drug buys and the undercover police 

detective’s testimony, is still available and intact. The district court also noted 

that “Whitlock has not made an effort to demonstrate any particularized trial 

prejudice that resulted from the delay.” The only issue is whether the district 

court correctly determined that the government affirmatively rebutted the 

presumption that Whitlock was prejudiced.

I

“The standard of review for Sixth Amendment claims is bifurcated.” 

United States v. Harris, 566 F.3d 422, 431 (5th Cir. 2009) (quoting United 

States v. Parker, 505 F.3d 323, 328 (5th Cir. 2007)). “We review findings of fact 

for clear error, but, with respect to the constitutional test articulated in Barker 

v. Wingo, 407 U.S. 514 (1972), it is unsettled whether our review is de novo or 

for clear error.” Harris, 566 F.3d at 431-32.

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II

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

the accused shall enjoy the right to a speedy . . . trial.” U.S. CONST. amend. VI. 

In analyzing a defendant’s Sixth Amendment speedy trial claim based on postindictment delay, courts consider four factors: (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) prejudice to the defendant resulting from the delay. 

See Barker, 407 U.S. at 530-33. 

Doggett v. United States explained how the four factors used to analyze 

a defendant’s Sixth Amendment speedy trial claim based on a post-indictment 

delay are weighed, and the burden each party carries. 505 U.S. 647 (1992). “If 

‘the first three factors weigh heavily in the defendant’s favor,’ prejudice may 

be presumed.” Harris, 566 F.3d at 432 (quoting Parker, 505 F.3d at 328). Here, 

“[t]he government concedes that the first three factors weigh heavily in favor 

of Whitlock, thereby creating a presumption of prejudice.” See Doggett, 505 

U.S. at 657-58; United States v. Cardona, 302 F.3d 494, 498-99 (5th Cir. 2002). 

This presumption shifts the burden to the government for rebuttal. See 

Doggett, 505 U.S. at 657; United States v. Bergfeld, 280 F.3d 486, 490 (5th Cir. 

2002) (“[N]othing in Doggett endorses the district court’s performing the 

analysis the other way around, i.e., using the absence of specific evidence of 

prejudice to reduce the weight of the other three factors.”). 

Where, as here, the three Barker factors weigh so heavily in the 

defendant’s favor, the government bears the burden to show that prejudice does 

not exist. The defendant does not have to show that any particular prejudice 

resulted from the delay, because courts must presume that it does. See Doggett, 

505 U.S. at 655-56. Furthermore, when courts presume prejudice, Doggett

requires courts to focus on general prejudice, “recogniz[ing] that excessive 

delay presumptively compromises the reliability of a trial in ways that neither 

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party can prove or, for that matter, identify.” Id. at 655. The district court erred 

when it turned Doggett’s warning about presumptive general prejudice on its 

head by effectively placing the burden on the defendant to particularize 

prejudice, instead of on the government to rebut the presumptive general 

prejudice. See id.; Cardona, 302 F.3d at 499 (holding that the government 

lacked “any evidence” to rebut the presumption of general prejudice even 

though the government argued that the strength of its own evidence showed 

that the defendant did not suffer any impairment to his defense).

III

Accordingly, the district court’s denial of Whitlock’s motion to dismiss is 

REVERSED. We vacate the judgment of conviction and sentence and dismiss 

the indictment against Whitlock.

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