2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-14-2009

USA v. Germaine Battis

Precedential or Non-Precedential: Precedential

Docket No. 08-2949

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-2949

 

UNITED STATES OF AMERICA

v.

GERMAINE BATTIS,

 Appellant

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 04-cr-00088-001)

District Judge: Honorable Anita B. Brody

 

Argued September 29, 2009

Before: RENDELL and AMBRO, Circuit Judges, 

and McVERRY, District Judge*

 

 *Honorable Terrence F. McVerry, Judge of the United States

District Court for the Western District of Pennsylvania, sitting

by designation.
2

(Filed December 14, 2009 )

 

Robert Epstein, Esq. [ARGUED]

Brett G. Sweitzer, Esq.

Defender Association of Philadelphia

Federal Court Division

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

 Counsel for Appellant

Bernadette A. McKeon, Esq. [ARGUED]

Mark S. Miller, Esq.

Office of the United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

 Counsel for Appellee

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

The Sixth Amendment to the Constitution states that,

“[i]n all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial.” Germaine Battis urges that this

right was violated when forty-five months elapsed between his
 After the denial of his speedy trial motion, Battis proceeded 1

to trial and was convicted on one count of possessing a firearm

as a convicted felon, and one count of possessing ammunition

as a convicted felon, both in violation of 18 U.S.C. § 922(g)(1).

3

indictment and trial. The District Court reasoned through the

four-factor test established by the Supreme Court in Barker v.

Wingo, 407 U.S. 514 (1972), and concluded that there was no

constitutional violation. On appeal, weighing these four factors

anew, we reach a different conclusion and hold that Battis’s

right to a speedy trial was violated. We will therefore reverse

the order of the District Court and remand the case with

instructions to dismiss the indictment and vacate his conviction.1

This case arises out of an altercation between Battis and

other patrons of the Trolley Stop Tavern, a Philadelphia bar, on

March 22, 2003. By the end of the confrontation, which had

moved from the bar to a nearby street, Battis was in possession

of a handgun. According to Battis, the gun belonged to one of

the individuals with whom he was fighting, and Battis took the

gun from him in order to avoid being shot. Battis was

subsequently pursued by police. According to the police, Battis

had the gun all along and tried to shoot an officer at point-blank

range. Battis testified that he did not remember attempting to

shoot the officer.

Battis was arrested by the Philadelphia Police at the scene

and was charged by the District Attorney with attempted

homicide, aggravated assault, and several firearms violations.

Battis’s initial appearance was continued on three occasions, at
4

his request, before he was arraigned in state court on January 20,

2004. The record indicates that Battis was represented by

counsel in the state court case at the time of his arraignment.

On February 24, 2004, Battis was indicted in the Eastern

District of Pennsylvania for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). On the

same day, the Government requested and received a bench

warrant from the District Court. The Government later

explained that it had informed the District Court’s clerk that

Battis was in state custody, and that it is standard practice to use

a bench warrant as a detainer when a defendant is in state

custody. It appears that this information was never formally

noted by the District Court, since on February 18, 2005, it noted

in a “Report of Speedy Trial Act Delay” that proceedings had

been delayed because Battis “is a fugitive.” App. 9-10. Battis

was not brought into the District Court for an arraignment or

initial appearance until November 2006.

The record suggests that the state case was also dormant

during this period. According to the state court docket, fourteen

continuances were requested after the arraignment. At a

scheduling conference with the state court judge on July 18,

2005, Battis’s counsel, Allan Sagot, requested a continuance to

allow the federal trial to proceed first. Sagot reported that he

had spoken to AUSA Mark Miller, that Miller had said that the

Government planned to pursue the federal case “immediately,”

and that Sagot expected the federal trial to begin within sixty

days. Appellee’s Supp. App. 6. The Assistant District Attorney

did not dispute these statements, and the Court adjourned the

case to October 27, 2005. Id. at 7. On October 27, Sagot
 This decision was later reversed by the Superior Court, and 2

the case was remanded for trial.

5

advised the Court that “[t]he feds are still trying [Battis],” and

requested another continuance. Id. at 15-16. During this time,

Battis had no counsel in federal court, and no activity was

occurring in Battis’s federal case.

This record conflicts with the Government’s version of

events. At a 2007 hearing before the District Court, AUSA

Miller explained that the District Attorney’s office had

requested that federal authorities delay their prosecution while

the state court case proceeded. According to Miller, the DA’s

office had also repeatedly stated that “they were ready . . . to try

the case.” App. 44. Miller conceded, however, that, “in several

telephone conversations,” Sagot had advised him that he “would

prefer the federal case to go forward first.” App. 46-47. Thus,

although Sagot had informed the state court in 2005 that Miller

was proceeding in federal court, Miller believed that he was

waiting for the state court case to proceed.

On September 18, 2006, the Court of Common Pleas

dismissed the indictment under Pennsylvania’s speedy trial rule.2

After the dismissal of the state case, federal prosecutors finally

began to proceed with their prosecution, over two and a half

years after Battis was indicted. On October 17, 2006, they

obtained a superseding indictment, which added a charge of

possession of ammunition by a convicted felon, also in violation

of 18 U.S.C. § 922(g)(1). On November 2, Battis was brought

before a federal Magistrate Judge for his initial appearance. The
6

Magistrate Judge appointed counsel, scheduled an arraignment

for November 7, and ordered Battis to be held without bail. At

the November 7 arraignment, Battis pleaded not guilty but did

not contest being held without bail. Battis had not been brought

before the District Court for an arraignment or initial appearance

before November 2006, and had not been represented by counsel

up to that point in the federal case. Although Sagot had been

representing Battis in the state case, Battis had informed Sagot

that he could not afford to retain Sagot to represent him in the

federal case as well. On November 9 and November 17,

respectively, Assistant Federal Defenders Benjamin Cooper and

Mark Wilson entered their appearances.

The District Court set a trial date of January 2, 2007. On

December 4, 2006, defense counsel moved to dismiss the

indictment for violation of Battis’s constitutional right to a

speedy trial. Shortly thereafter, Battis filed an unopposed

motion to postpone the trial, which was granted. The District

Court held a hearing on the motion to dismiss on January 9,

2007, at which Sagot and Miller described the history of their

discussions (which is summarized above) regarding how the

cases would proceed.

On February 15, the District Court denied the motion to

dismiss the indictment. In a written Opinion and Order, the

Court applied the factors set forth by the Supreme Court in

Barker: the length of delay, reason for the delay, extent to

which the defendant asserted his speedy trial right, and the

prejudice suffered by the defendant. In doing so, the Court

made the following determinations. First, a delay of “32 months

is a serious and unusual delay,” and thus “weighs in Battis’s
7

favor.” App. 84. Second, the Government deferred to the state

prosecution as “a matter of policy and discretion,” and not “in

malice, or in an attempt to hamper Battis’s defense,” or out of

“bad faith.” Thus, the delay was “justifiable and does not weigh

significantly against the United States.” App. 85. Third,

although Battis “did make some effort through his state court

attorney, Sagot, to put the AUSA on notice that he wanted the

federal case [to] go forward,” he “certainly did not make the

utmost effort to get himself before this Court and move the

federal case forward.” App. 86. Specifically, he had not

“contacted the Court by informal communication or formal

motion” prior to the December 2006 motion to dismiss, and had

not pursued the matter with the U.S. Attorney’s Office “after the

initial conversation.” App. 86. Thus, “Battis’s assertion of his

right weighs only very slightly in his favor.” App. 86. Fourth,

Battis had not shown that he was prejudiced by the delay,

particularly since, in preparing for his state case, “which

involved the same incident as the federal charges,” “Battis had

[a] full opportunity to” investigate the relevant facts. App. 86-

88. The Court therefore held that Battis’s speedy trial right had

not been violated.

The Court set a new trial date of July 3, 2007. In the

interim, Battis, on his own, despite being represented by counsel

at the time, sent a letter to the Court requesting a speedy trial,

and filed a motion to dismiss the indictment for violations of the

Speedy Trial Act. The motion was denied. On June 26, 2007,

defense counsel moved for another continuance in order to

allow time for certain forensic testing. The Court granted the

continuance and set a new trial date of October 22.
8

Jury selection occurred on October 22, 2007, and opening

statements began two weeks later, on November 5.

The jury found Battis guilty on both counts. On June 23,

2008, the District Court sentenced Battis to concurrent terms of

120 months’ imprisonment on both counts, and five years’

supervised release. This appeal followed.

The District Court had jurisdiction over this case under

18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.

§ 1291.

We review de novo a district court’s legal conclusion

regarding a defendant’s claim that his constitutional right to a

speedy trial was violated. Burkett v. Fulcomer, 951 F.2d 1431,

1437-38 (3d Cir. 1991). We review the factual findings

underpinning that conclusion for clear error. Id.

In Barker, the Supreme Court established a balancing test

for courts to use in evaluating whether the constitutional right to

a speedy trial has been violated. As noted above, Barker

identified four factors for courts to consider in weighing the

prosecution’s conduct against that of the defense: the length of

delay, reason for the delay, extent to which the defendant

asserted his speedy trial right, and the prejudice suffered by the

defendant. 407 U.S. at 530. None of these factors is “either a

necessary or sufficient condition,” and the factors “must be

considered together with such other circumstances as may be

relevant.” Id. at 533. If a defendant’s right to a speedy trial has
 Battis does not claim that his statutory rights under the 3

Speedy Trial Act were violated, presumably because the time

period under that statute starts when the indictment is filed or

the defendant appears before a court, “whichever date last

occurs.” 18 U.S.C. § 3161(c)(1).

9

been violated, the indictment must be dismissed. Id. at 522.3

The first consideration under the Barker test is the length

of the delay. This, in turn, entails a two-part inquiry. “[T]he

delay involved first figures into the speedy trial equation for the

purpose of determining whether it is long enough to trigger

inquiry into the other Barker factors.” Hakeem v. Beyer, 990

F.2d 750, 760 (3d Cir. 1993). If the delay is relatively brief,

then it is not necessary to consider the other Barker factors.

Barker, 407 U.S. at 530-31. If the delay is sufficiently long,

courts assess the extent to which the delay was long enough to

“intensify” the prejudice caused by the delay. Doggett v. United

States, 505 U.S. 647, 652 (1992). We have previously held that

a delay of even fourteen months is sufficient to trigger review of

the remaining Barker factors. See Hakeem, 990 F.2d at 760.

However, we have also noted that “[l]onger delays can be

tolerated, for example, when the crime is very serious or

complex.” Wells v. Petsock, 941 F.2d 253, 257 (3d Cir.

1991); see also Barker, 407 U.S. at 531.

The parties disagree as to how the period of delay in this

case should be measured. Battis argues that the delay ran from

the date of his arrest by state authorities to the date the federal

trial began. The Government argues that the delay ran from the
10

date of Battis’s federal indictment to the date of his initial

appearance in federal court. Battis was arrested by state

authorities on March 22, 2003, and was indicted in the Eastern

District of Pennsylvania eleven months later, on February 24,

2004. Jury selection for his federal trial occurred on October 22,

2007. Thus, approximately fifty-six months elapsed between

Battis’s state arrest and federal trial, and approximately fortyfive months elapsed between his federal indictment and trial.

In general, delay is measured from the date of arrest or

indictment, whichever is earlier, until the start of trial. Hakeem,

990 F.2d at 760. We have not previously considered whether,

as Battis contends, an arrest by state authorities is sufficient to

trigger a defendant’s right to a speedy trial on subsequent

federal charges, and the parties do not cite any authority that

squarely addresses this question. However, in United States v.

MacDonald, the Supreme Court stated in a footnote, which was

clearly dicta, that “an arrest or indictment by one sovereign

would not cause the speedy trial guarantees to become engaged

as to possible subsequent indictments by another sovereign.”

456 U.S. 1, 10 n.11 (1982). Similarly, the other courts of

appeals to have considered this issue have held that an “arrest on

state charges does not engage the speedy trial protection for a

subsequent federal charge.” United States v. Garner, 32 F.3d

1305, 1309 (8th Cir. 1994); see also, e.g., United States v.

Muniz, 1 F.3d 1018, 1024 (10th Cir. 1993); United States v.

Marler, 756 F.2d 206, 211 (1st Cir. 1985). We will adopt this

approach as well. When an arrest on state charges is followed

by a federal indictment, the right to a speedy trial in the federal

case is triggered by the federal indictment, and the time period
 The Government contends that the delay ended when Battis

4

made his initial appearance in federal court on November 2,

2006, but it cites no authority for this proposition. We decline

to follow this approach. To the contrary, the practice of our

court and the Supreme Court has generally been to measure

delay until the start of trial. See, e.g., Barker, 407 U.S. at 533;

United States v. Dent, 149 F.3d 180, 184 (3d Cir. 1998);

Hakeem, 990 F.2d at 760.

We recognize that in Doggett, 505 U.S. at 652, the Court

focused on the period between indictment and arrest. However,

in Doggett, the facts were unique: the Government had failed

to conduct an adequate search for Doggett after his indictment,

leading to a delay of over eight years before he was arrested and

notified of the indictment. Since Doggett ultimately pled guilty,

there was no trial date to which the Court could look.

Moreover, in light of the lengthy delay before Doggett was even

arrested, there was no need for the Court to look past the date of

arrest in order to determine that the delay was excessive. This

may explain why the Court relied on the date of arrest without

commenting on the fact that this approach deviated from its

analysis in Barker.

 We also hold that the speedy trial right was not affected by 5

the filing of a superseding indictment in 2006. The Government

11

under consideration commences on that date.4

The relevant period of delay is thus the forty-five months

between the federal indictment on February 24, 2004, and the

start of trial on October 22, 2007. This is long enough to 5
does not argue otherwise (i.e., that the filing of the superseding

indictment in 2006 restarted the constitutional speedy trial

clock). Our holding is consistent with the approach that we took

in United States v. Dreyer, 533 F.2d 112 (3d Cir. 1976), in

which we calculated the delay between the original indictment

and trial, notwithstanding the intervening filings of two

superseding indictments. It is also consistent with the

approaches taken by the other courts of appeals. See, e.g.,

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

States v. Oriedo, 498 F.3d 593 (7th Cir. 2007); United States v.

King, 483 F.3d 969 (9th Cir. 2007); United States v. Watford,

468 F.3d 891 (6th Cir. 2006); United States v. ArmedoSarmiento, 545 F.2d 785 (2d Cir. 1976); United States v.

DiMuro, 540 F.2d 503 (1st Cir. 1976).

12

require consideration of the remaining Barker factors, especially

in light of the relatively straightforward nature of the charges,

and to intensify any prejudice caused by the delay. We conclude

that the first factor weighs heavily against the Government.

The second Barker factor is the reason for the delay.

Barker grouped possible reasons for delay into three categories.

A deliberate effort by the Government to delay the trial “in order

to hamper the defense” weighs heavily against the Government.

Barker, 407 U.S. at 531. A “more neutral reason such as

negligence or overcrowded courts” also weighs against the

Government, though “less heavily.” Id. This is because

“ultimate responsibility for such circumstances must rest with

the [G]overnment,” since it is the Government’s duty to bring a

defendant to trial. Id. at 527, 531. Finally, “a valid reason, such
13

as a missing witness, should serve to justify appropriate delay.”

Id. at 531. By contrast, “delay caused by the defense weighs

against the defendant,” including “delay caused by the

defendant’s counsel.” Vermont v. Brillon, 129 S. Ct. 1283,

1290-91 (2009). The Government “bears the burden to justify

the delay.” Hakeem, 990 F.2d at 770. 

In evaluating this factor, we subtract the amount of delay

caused by the defendant from the delay caused by the

Government. See, e.g., United States v. Dent, 149 F.3d 180,

184-85 (3d Cir. 1998); Hakeem, 990 F.2d at 770. In this case,

trial was initially set for January 2, 2007. As a result of

continuances sought by Battis, the trial was continued from

January 2 to July 3, and from July 3 to October 22. Excluding

the period between January 2 and October 22, 2007, the length

of delay attributable to the Government is approximately thirtyfive months.

The Government concedes that it intentionally delayed

bringing Battis to trial. However, the Government explains that

it did this not to disadvantage him but, rather, so that the state

prosecutors could try Battis first. Thus, the Government claims

to have been acting “out of deference to the state’s compelling

interest in this case, which involved an allegation that the

defendant attempted to shoot a police officer, and to promote

harmonious relations with the local authorities.” Appellee’s Br.

at 36. The Government also urges that federal prosecutors

believed that the state was diligently pursuing its case.

We are not persuaded that the Government’s justification

for the delay is sufficient to balance the scales. As noted above,
14

even a “neutral” reason weighs against the Government. Unlike

a case where a witness is missing, the Government could have

brought Battis to trial at any time. Prosecutors knew precisely

where Battis was located, yet they failed to bring him before the

District Court for an initial appearance. Once federal

prosecutors bring an indictment against a defendant, they have

a duty to notify the District Court that the defendant should be

arraigned and appointed counsel, and to bring the defendant to

trial expeditiously. See, e.g., Barker, 407 U.S. at 527

(“[S]ociety has a particular interest in bringing swift

prosecutions, and society’s representatives are the ones who

should protect that interest.”). This duty persists even when

state authorities have a strong interest in bringing their own case

against the same defendant. The Government cannot indict a

defendant and then delay a case indefinitely, without any notice

to a federal judge, merely because it is aware of a state

proceeding involving the same defendant. This is true

regardless of how “compelling” the state’s interest in that

proceeding is. While the initial delay to allow the state to

proceed may have been valid, there came a time when the

federal Government should have taken some action to proceed

in light of the state authorities’ inaction. 

The Government’s explanation of the delay is also

undermined by the fact that the state trial was apparently being

delayed in order to facilitate the federal prosecution. This

apparent misunderstanding persisted for as long as thirty-two

months, while the Government did nothing to proceed with the

case. This factor therefore weighs against the Government,

though not as heavily as it would if the Government had been

intentionally undermining the defense.
15

The third factor under Barker is whether the defendant

has asserted his right to a speedy trial. An assertion of this right

provides evidence that the defendant was being deprived of his

constitutional right since “[t]he more serious the deprivation, the

more likely a defendant is to complain.” Barker, 407 U.S. at

531. Thus, a defendant’s claim that the right is being violated

provides strong evidence that it actually was violated. Id. at

531-32. On the other hand, “failure to assert the right will make

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

trial.” Id. Moreover, when a defendant requests a speedy trial,

but “through contrary actions . . . evidences an unwillingness to

commence with the trial requested, [the] request carries minimal

weight.” Hakeem, 990 F.2d at 765.

We have previously described two ways in which a

defendant can show that he asserted his right to a speedy trial.

When a defendant is represented by counsel, he should identify

“a motion or some evidence of direct instruction to counsel to

assert the right at a time when formal assertion would have some

chance of success.” Hakeem, 990 F.2d at 766. By contrast,

“informal correspondence” to the court by a represented

defendant is less convincing. Id. When a defendant is

proceeding pro se, he “does not have to make a procedurally

perfect assertion of his speedy trial rights, but must make a

reasonable assertion of the right so as to put authorities on

notice of his Sixth Amendment claim.” Douglas v. Cathel, 456

F.3d 403, 418 (3d Cir. 2008) (internal quotation marks and

citation omitted). We emphasize, however, that even if a

defendant fails to adequately assert his right to a speedy trial,

that means only that the third Barker factor will be weighed

against him. It does not mean that he cannot claim that his right
It is not clear how many conversations occurred between 6

Sagot and AUSA Miller. Miller said that “several”

conversations had occurred. App. 47. However, Sagot referred

to only one conversation, and the District Court mentioned only

one conversation in its opinion. We do not find clear error in

the determination that only one conversation occurred, and it is

immaterial to our analysis whether there was more than one such

conversation. We will therefore assume that there was only one

conversation.

16

to a speedy trial was violated.

On four different occasions, Battis notified authorities

that he wanted his federal trial to proceed promptly. The first

time, Sagot, his counsel for the state court proceeding, told

AUSA Miller that he preferred that the federal trial occur first.6

At the time, Battis had not yet appeared in federal court, and was

unrepresented for purposes of the federal case. Even though

Sagot had called AUSA Miller on behalf of Battis, Battis had

specifically advised Sagot that he could not afford to retain him

in the federal case. We therefore conclude that Battis was acting

pro se in the federal case at that time. The Government

concedes that AUSA Miller did receive Sagot’s request, but

claims that Miller expected the request to be formalized in some

way. However, we have never required a defendant, much less

a pro se defendant, to make a formal motion to a court, or a

formal request to the Government, in order to demonstrate his

desire to receive a speedy trial.

Battis then addressed three specific requests for a speedy
 Because Battis made the final two requests at a time when 7

the trial had been continued at his counsel’s request, we must

assume that Battis was not ready to proceed to trial at that time,

and we are therefore compelled to give those requests less

weight than his earlier requests. See Hakeem, 990 F.2d at 764

(“Repeated assertions of the right do not . . . balance this factor

in favor of a [defendant] when other actions indicate that he is

unwilling or unready to go to trial.”). At the same time,

however, we note that Battis was understandably not prepared

for trial when he filed these requests in March and June 2007,

just four and seven months, respectively, after federal counsel

was appointed for him, three and a half years after the events

took place. Therefore, under the circumstances of this case,

these requests do provide some evidence that Battis was being

denied a speedy trial.

17

trial to the Court. Within weeks of being appointed, his federal

counsel moved to dismiss the indictment on speedy trial

grounds. The promptness of this motion weighs strongly in

Battis’s favor. After that motion was denied, Battis sent a pro

se letter to the District Court in March 2007 to request a speedy

trial, and then, in May 2007, filed a pro se motion to dismiss the

indictment on statutory speedy trial grounds. These requests

indicate that Battis was concerned that his trial happen promptly,

and provide some evidence that his right to a speedy trial was

being violated.7

Battis faults the District Court for requiring him to have

made “the utmost effort to get himself before this Court and

move the federal case forward.” App. 86. However, we do not
 We note that this is not a situation where the court was 8

given no notice of the defendant’s claimed constitutional

violation, as would have been the case had Battis never asserted

his right in the trial court and then proceeded to trial, only to

claim on appeal that his right had been violated. That situation

would raise the issue of waiver.

18

view the Court’s use of the term “utmost effort” as its

enunciation of the standard that Battis was required to meet.

Surely there is no such standard for a defendant’s “request” for

a speedy trial. We also note that although a formal motion to a

federal court provides strong evidence that a defendant believed

his right to a speedy trial was being violated, a request made

directly to federal prosecutors should also be taken into

account.8

Taken together, the request that Battis’s state court

counsel made to federal prosecutors, the motion to dismiss on

speedy trial grounds that Battis’s federal counsel filed promptly

upon being retained, and, to a lesser extent, the two subsequent

requests for a speedy trial made by Battis on his own are

sufficient to cause the third Barker factor to weigh in his favor.

The final Barker factor is the prejudice to the defendant.

The Supreme Court has outlined two ways in which a defendant

can establish prejudice. In Barker, the Court directed the courts

to assess the prejudice to a defendant “in light of the interests

. . . which the speedy trial right was designed to protect.” 407

U.S. at 532. A defendant can establish specific prejudice by

showing that he was subject to “oppressive pretrial
19

incarceration,” that he suffered “anxiety and concern” about the

impending trial, or that his defense was impaired as a result of

the delay. Id. However, in Doggett, 505 U.S. at 655, the Court

held that “consideration of prejudice is not limited to the

specifically demonstrable,” and allowed defendants to claim

prejudice without providing “affirmative proof of particularized

prejudice.” Given that “time’s erosion of exculpatory evidence

and testimony” can hinder a defendant’s ability to prove that his

defense was impaired by a delay, the Court stated that “we

generally have to recognize that excessive delay presumptively

compromises the reliability of a trial in ways that neither party

can prove or, for that matter, identify.” Id. at 655-56. This

presumption of prejudice can be mitigated by a showing that the

defendant acquiesced in the delay, or can be rebutted if the

Government “affirmatively prove[s] that the delay left [the

defendant’s] ability to defend himself unimpaired.” Id. at 658

& n.1. 

In evaluating whether the period of delay was long

enough to trigger this “presumption of prejudice,” the Doggett

Court considered both the total length of delay (over eight years)

and the portion of that delay attributable to the Government (six

years). Id. at 657-58. It held that this delay was long enough to

presume that the reliability of Doggett’s trial would be

compromised, and that Doggett was prejudiced by the delay. Id.

Although we have had few occasions to consider what period of

time is sufficient to find presumptive prejudice, we have

determined that a fourteen-month period between arrest and trial

is insufficient. Hakeem, 990 F.2d at 764. 

We now hold that prejudice will be presumed when there
20

is a forty-five-month delay in bringing a defendant to trial, even

when it could be argued that only thirty-five months of that

delay is attributable to the Government. After such a long delay,

witnesses become harder to locate and their memories inevitably

fade. As Doggett recognized, the Government may attempt to

rebut this presumption. However, here, as in Doggett, it has not

affirmatively proved that the delay left Battis’s ability to defend

himself unimpaired.

Battis’s preparation for the state case during the delay

does not, as the Government urges, alleviate any prejudice

simply because the charges in the state case were based on

essentially the same facts as the federal charges. First, that does

not address the reason for presuming prejudice—that the delay

undermines the basic reliability of the trial. Second, despite the

fact that the federal and state charges arose from the same

incident, the concerns of Battis’s counsel in the two cases, and

their resulting investigative efforts, would necessarily have been

different. Whereas his federal counsel would be focused on

how Battis came to possess the weapon, that consideration

would be of minimal significance to the broader state charges,

which were more focused on how he used the weapon. We also

note that the Government has not indicated what, if any, work

was being done in connection with the state court case—aside

from work being done by a private investigator, who, as

explained above, would not have focused on the same issues as

an investigator hired by federal counsel. The Government’s

position that the work being done removed any prejudice is

entirely speculative. Lastly, the threat to the reliability of a trial

is especially high where, as here, the delay results in the

defendant’s not being appointed counsel for three years after
 Battis claims that he was prejudiced because a witness to 9

the altercation, Jo-An Vasquez, could not be located at the time

of trial. Vasquez had told a private investigator, who was

working for Battis in connection with the state court case, that

Battis had taken the gun from the person with whom he was

fighting when that person tried to shoot Battis. His testimony

could, therefore, have corroborated Battis’s defense. However,

when he moved to dismiss the indictment, Battis did not inform

the District Court that Vasquez could not be located. This was

presumably because his counsel had not had an opportunity to

determine this. Yet, even after learning about Vasquez’s

statement, Battis never renewed his motion to dismiss. Instead,

he mentioned Vasquez’s unavailability to the Court in passing,

in connection with an evidentiary motion. Nor did Battis put

before the District Court evidence that he had “seriously

attempted to locate” Vasquez, as we required in Dent, 149 F.3d

at 185. Thus, although it is troubling that the lengthy delay in

this case caused a witness favorable to the defense to be

unavailable for trial, it would be difficult to credit this claim on

appeal.

21

indictment.

We therefore conclude that Battis was presumptively

prejudiced by the delay, and that the fourth Barker factor weighs

against the Government. As a result, we need not reach Battis’s

other claims of prejudice. 

9

We believe that all four factors of the Barker test weigh

against the Government, and that Battis was unconstitutionally
 Since we will instruct the District Court to vacate the 10

conviction, we need not address Battis’s alternative argument

that he is entitled to a new trial because the District Court erred

by allowing the Government to impeach him using a prior

conviction that was over ten years old.

22

deprived of his right to a speedy trial. We will therefore reverse

the judgment of the District Court and remand to that Court with

instructions to dismiss the indictment and vacate Battis’s

conviction.10