United States Court of Appeals

For the Eighth Circuit 

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No. 22-2201

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United States of America

 Plaintiff - Appellee

v.

Roger Rachon Cooley

 Defendant - Appellant

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Appeal from United States District Court 

for the District of North Dakota - Eastern

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Submitted: February 15, 2023

Filed: March 28, 2023 

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Before COLLOTON, BENTON, and KELLY, Circuit Judges. 

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BENTON, Circuit Judge.

A grand jury indicted Roger R. Cooley. He moved to dismiss for violation of 

his Sixth Amendment right to a speedy trial. The district court1 denied his motion. 

A unanimous jury found him guilty of conspiracy to possess with intent to distribute 

1

The Honorable Peter D. Welte, United States District Judge for the District 

of North Dakota.
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(and distribute) a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1), 

841(b)(1)(C), and 18 U.S.C. § 2. Cooley appeals. Having jurisdiction under 28 

U.S.C. § 1291, this court affirms.

I. 

On August 21, 2019, a grand jury indicted Roger R. Cooley and eight other 

defendants. Within two days, an arrest warrant for Cooley issued and was entered 

into the National Crime Information Center system by the Federal Bureau of 

Investigation. 

About 14 months later, the FBI discovered that, due either to human or 

technical error, the arrest warrant was removed from the NCIC system around 

February 28, 2020—about six months after the warrant issued. The FBI then 

reentered the warrant into the NCIC system. On October 20, 2020, the United States 

Marshals Service was assigned Cooley’s arrest warrant. In February 2021, the 

USMS confirmed his address. He was arrested March 16, 2021, arraigned March 

20, and scheduled for trial on July 13.

After three continuances—including two by Cooley’s co-defendants (to 

which Cooley did not object)—trial was rescheduled. Cooley moved to dismiss on 

December 28, 2021, asserting his Sixth Amendment right to a speedy trial. The 

district court denied the motion on January 19, 2022, without holding an evidentiary 

hearing. Cooley moved for reconsideration. On January 24, the district court, after 

a “limited evidentiary hearing,” denied reconsideration. The jury trial began on 

January 25. The jury unanimously found Cooley guilty. 

Cooley appeals, alleging the district court erred by not holding an evidentiary 

hearing on his motion to dismiss, and by denying his motion to dismiss for violation 

of his Sixth Amendment right to speedy trial.
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II. 

Cooley argues that the district court abused its discretion by not holding an 

evidentiary hearing on his motion to dismiss. See United States v. Santos-Pulido, 

815 F.3d 443, 445 (8th Cir. 2016) (“We review the district court’s decision to resolve 

the motion to dismiss without a hearing for the abuse of discretion.”). “A district 

court must hold an evidentiary hearing only when the moving papers are sufficiently 

definite, specific, and detailed to establish a contested issue of fact.” United States 

v. Stevenson, 727 F.3d 826, 830 (8th Cir. 2013) (motion to suppress). “A hearing is 

not required if a dispute can be resolved on the basis of the record.” Santos-Pulido, 

815 F.3d at 446, quoting United States v. Polanco-Gomez, 841 F.2d 235, 237-38 

(8th Cir. 1988). 

Denying the motion for reconsideration, the district court found that Cooley’s 

moving papers were not sufficiently definite, specific, and detailed to establish a 

contested issue of fact. He contends that the moving papers established contested 

facts about: (i) the cause for the delay in his arrest, (ii) the oppressiveness of his 

pretrial incarceration, (iii) his anxiety about the charges and possible punishments, 

and (iv) the degree of prejudice due to the delay. But, as the district court observed: 

“The majority of these assertions are unsupported by evidence, either affidavit or 

otherwise.” See United States v. Saucedo, 956 F.3d 549, 554 (8th Cir. 2020) (“On 

appeal, [defendant] does not identify any facts in the record, such as the dates or 

other factual circumstances of his detention, that are actually in dispute. Rather, he 

contests certain inferences that can be drawn from those facts and the district court’s 

legal conclusion . . . . Further, [defendant] does not identify what evidence, if any, 

he would have presented to the district court had it held an evidentiary hearing.”); 

Stevenson, 727 F.3d at 831 (“Where a defendant offers only conclusory allegations 

in support of a motion . . . and where those allegations are unsupported by any 

citation to the record, a district court does not abuse its discretion by refusing to hold 

an evidentiary hearing.”). 
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 The district court, “in the interests of fundamental fairness,” held a limited 

evidentiary hearing on the motion to reconsider. Cooley submitted four factual 

affidavits from his sister, investigator, mother, and himself. According to the 

affidavits, he has a learning disability, lived with his mother in Detroit, Michigan for 

eight years, did not know of the arrest warrant, and law enforcement had not stopped 

by his residence since the indictment. The evidence did not establish a contested 

issue of fact.

 

The motion to dismiss, and even the limited evidentiary hearing, addressed 

only contested inferences and legal conclusions, not facts. See Saucedo, 956 F.3d 

at 554. The district court did not abuse its discretion by not holding an evidentiary 

hearing on Cooley’s motion to dismiss.2

 

III. 

Cooley alleges that the government violated his Sixth Amendment right to a 

speedy trial.3

 “We review the district court’s findings of fact on whether a 

2

The government repeatedly notes that Cooley requested only oral argument, 

not an evidentiary hearing. The government states that the standard of review is 

abuse of discretion; it does not raise “whether the district court’s failure to hold an 

evidentiary hearing sua sponte constitutes plain error.” Bath Junkie Branson, LLC 

v. Bath Junkie, Inc., 528 F.3d 556, 561 (8th Cir. 2008) (applying both abuse of 

discretion and plain error review to a district court’s decision not to hold a sua sponte 

evidentiary hearing on a motion to enforce a settlement). Here, the district court 

neither abused its discretion nor committed plain error by not holding an evidentiary 

hearing. See id. (“[T]he district court had no basis to believe that either party desired 

an evidentiary hearing or had even suggested that the submission of additional 

evidence, beyond that accompanying their motions, would be necessary or helpful. 

Under these circumstances, the district court’s decision not to hold an evidentiary 

hearing was not an abuse of discretion.”) (“Based on the record before the district 

court, there was no substantial factual dispute . . . and the district court did not err 

by deciding not to hold an evidentiary hearing sua sponte.”). 

 3

On appeal, Cooley does not assert a violation of the Speedy Trial Act. See 

18 U.S.C. § 3161; United States v. Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002) 
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defendant’s right to a speedy trial was violated for clear error but review its legal 

conclusions de novo.” United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007).

“The Sixth Amendment right to a speedy trial attaches at the time of arrest or 

indictment, whichever comes first, and continues until the trial commences.” United 

States v. Williams, 557 F.3d 943, 948 (8th Cir. 2009). “Initially, we must determine 

whether the delay between indictment and [defendant’s] motion to dismiss was 

presumptively prejudicial.” United States v. Summage, 575 F.3d 864, 875 (8th Cir. 

2009), citing Doggett v. United States, 505 U.S. 647, 651-52 (1992). “If so, we 

proceed to analyze the four factors governing the Sixth Amendment’s speedy trial 

protections under Barker v. Wingo, 470 U.S. 514 (1972).” Id.

The delay between Cooley’s indictment and motion to dismiss—about 28 

months—is presumptively prejudicial. See United States v. Jeanetta, 533 F.3d 651, 

656 (8th Cir. 2008) (“A delay approaching one year may meet the threshold for 

presumptively prejudicial delay requiring application of the Barker factors.”); 

Doggett, 505 U.S. at 652 n.1 (“Depending on the nature of the charges, the lower 

courts have generally found postaccusation delay ‘presumptively prejudicial’ at least 

as it approaches one year.”). 

The Barker factors present a four-factor test that balances: “Length of delay, 

the reason for the delay, the defendant’s assertion of his [speedy trial] right, and 

prejudice to the defendant.” Barker, 407 U.S. at 530.

Under the first Barker factor, this court considers “whether delay before trial 

was uncommonly long.” Aldaco, 477 F.3d at 1019. A delay of 29 months—the total 

time from indictment to trial—is a lengthy but not extraordinary delay. See United 

States v. Mallett, 751 F.3d 907, 914 (8th Cir. 2014) (“First, we acknowledge 

seventeen months is a lengthy delay. But our court, under the Sixth Amendment, 

(“Sixth Amendment and Speedy Trial Act challenges for delay are reviewed 

independently of one another.”). 
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has permitted even longer delays.”), citing Summage, 575 F.3d at 870, 876 (over 32

months); Aldaco, 477 F.3d at 1018-20 (40 months). See also United States v. 

Walker, 92 F.3d 714, 717 (8th Cir. 1996) (37 months); United States v. Richards, 

707 F.2d 995, 998 (8th Cir. 1983) (35 months). 

The district court properly found, “On balance, the first factor weighs in 

Cooley’s favor, but not heavily.”

“Under the second Barker factor, we consider the reasons for the delay and 

evaluate ‘whether the government or the criminal defendant is more to blame.’” 

United States v. Erenas-Luna, 560 F.3d 772, 777 (8th Cir. 2009), quoting Doggett, 

505 U.S. at 651. “We weigh an intentional delay by the government heavily against 

it. We weigh negligence by the government less heavily but still regard such 

negligence as a considerable factor in the weighing process.” Id. “We weigh delay 

caused by the defense against the defendant.” Id. “In Doggett, the Supreme Court 

indicated that appellate courts are to treat with ‘special deference’ a district court’s 

determination concerning whether the government was negligent.” Walker, 92 F.3d 

718, quoting Doggett, 505 U.S. at 652. 

The period from Cooley’s indictment to his arrest is 19 months of the total 29-

month delay. The 10-month period of post-arrest delay was primarily due to motions 

for continuance submitted by the government and Cooley’s co-defendants (for health 

concerns). For 8 of the first 19 months, Cooley’s warrant had been removed from 

the NCIC database. The district court found no evidence that the government 

negligently or intentionally delayed prosecution. Although this court treats this

finding with special deference, human or technical error resulting in the removal of 

Cooley’s warrant from the NCIC database was the fault of the government.

But this error is attributable only to negligence. There is no evidence that the 

government intentionally caused any delay. See United States v. Shepard, 462 F.3d 

847, 864 (8th Cir. 2006). See also Barker, 407 U.S. at 531 (“A more neutral reason 

such as negligence . . . should be weighted less heavily but nevertheless should be
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considered . . . .”); Williams, 557 F.3d at 949 (“While any negligence is not weighted 

as heavily against the prosecution as deliberately dilatory tactics, it would 

nonetheless fall ‘on the wrong side of the divide between acceptable and 

unacceptable reasons for delaying a criminal prosecution once it has begun.’”), 

quoting Doggett, 505 U.S. at 657. The negligent error accounts for only 8 of the 29 

months of delay. The FBI reentered Cooley’s arrest warrant into the NCIC system 

the same day the error was discovered. Except for that error, there is no evidence in 

the record that the government acted negligently in pursuing Cooley. 

Because government negligence resulted in 8 of the 29 months of delay, the

second Barker factor favors Cooley, but not heavily. 

“The third Barker factor considers whether in due course the defendant 

asserted his right to a speedy trial.” Erenas-Luna, 560 F.3d at 778. “In United 

States v. Richards, where the defendant was unaware of his indictment until his arrest 

but later raised a speedy-trial claim, we similarly held that the third Barker factor 

had no application and merely ‘[could] not be weighed against [the defendant].’” Id. 

(alterations in original), quoting United States v. Richards, 707 F.2d 995, 997 (8th 

Cir. 1983). The district court found that Cooley undeniably asserted his right to a 

speedy trial. This factor is neutral. See id. (“Applying this precedent, we agree with 

the district court that the third Barker [factor] weighs in neither party’s favor.”). 

“The final Barker factor—prejudice—considers whether the defendant 

suffered prejudice as a result of the delay.” United States v. Rodriguez-Valencia, 

753 F.3d 801, 807 (8th Cir. 2014). “The extent to which a defendant must 

demonstrate prejudice under this factor depends on the particular circumstances.” 

Erenas-Luna, 560 F.3d at 778. “A showing of actual prejudice is required if the 

government exercised reasonable diligence in pursuing the defendant.” Id. at 778-

79. See also United States v. Flores-Lagonas, 993 F.3d 550, 565 (8th Cir. 2021) 

(“In cases without government negligence, however, we have required the defendant 

to show actual or specific prejudice.”). “Where the government has been negligent, 
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however, prejudice can be presumed if there has been an excessive delay.” ErenasLuna, 560 F.3d at 779, citing Doggett, 505 U.S. at 656-58. 

This factor is assessed “in the light of the interests of defendants which 

the speedy trial right was designed to protect. . . . (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.” 

Rodriguez-Valencia, 753 F.3d at 807-08 (alteration in original), quoting Barker, 

407 U.S. at 532.

Here, the 8-month delay from government negligence “was not so great that 

we are able to discount [defendant’s] inability to show particularized prejudice from 

that delay.” United States v. Sims, 847 F.3d 630, 636-37 (8th Cir. 2017) (holding a 

12-and-a-half-month delay caused by government negligence insufficient for 

presumption where defendant could not show prejudice). See Williams, 557 F.3d at 

950 (same for 16-month delay caused by government negligence); Doggett, 505 U.S. 

at 657 (“[T]o warrant granting relief, negligence unaccompanied by particularized 

trial prejudice must have lasted longer than negligence demonstrably causing such 

prejudice.”); Rodriguez-Valencia, 753 F.3d at 808 (holding that, even though the 

six-year delay was excessive, “the government pursued [defendant] with reasonable 

diligence” and he failed to “show actual or specific prejudice”). Cf. Erenas-Luna, 

560 F.3d at 780 (remanding a case for application of presumptive prejudice where 

“serious negligence of the government” resulted in “a three-year delay between 

[defendant’s] indictment and arraignment”). Except for the 8-month delay, there is 

no evidence in the record that the government acted negligently in pursuing Cooley. 

These facts do not warrant a presumption of prejudice. 

Cooley alleges actual prejudice in the oppressiveness of his pretrial 

incarceration and his anxiety from the charges and possible punishments. But his 

pretrial incarceration was prolonged, in part, due to his codefendants’ motions for 

continuance, to which he did not object. Cooley offers nothing to demonstrate “that 
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the delay weighed particularly heavily on him in specific circumstances.” Morris v. 

Wyrick, 516 F.2d 1387, 1391 (8th Cir. 1975). See also Shepard, 462 F.3d at 865 

(“Anxiety, without concurrent prejudice to the defendant’s ability to mount a 

defense, is likely the weakest interest served.”). Cooley “has failed to show that the 

delay was unusually burdensome or oppressive to him.” Williams, 557 F.3d at 949-

50. 

Cooley did not offer evidence that the delay resulted in a loss of evidence or 

witness testimony, or any impediment to his ability to mount a defense. See Aldaco, 

477 F.3d at 1019 (“[H]e has not made any showing of how his defense was impaired 

by the lengthy delay.”). The district court properly concluded: “This factor weighs 

heavily against Cooley.”

Based on the Barker factors, the government was negligent in failing to 

maintain Cooley’s arrest warrant in the NCIC system, but the government’s 

negligence accounted for only 8 of the 29 months of delay and did not prejudice 

Cooley’s defense. “Negligence by the government requires toleration by the courts 

that ‘varies inversely with its protractedness . . . and its consequent threat to the 

fairness of the accused’s trial.’” Williams, 557 F.3d at 950, quoting Doggett, 505 

U.S. at 657.

The present case illustrates the Court’s wisdom in establishing a balancing 

test. 

The speedy-trial right is “amorphous,” “slippery,” and “necessarily 

relative.” It is “consistent with delays and depend[ent] upon 

circumstances.” In Barker, the Court refused to “quantif[y] the right 

“into a specified number of days or months” or to hinge the right on a 

defendant’s explicit request for a speedy trial.” Rejecting such 

“inflexible approaches,” Barker established a “balancing test, in which 

the conduct of both the prosecution and the defendant are weighed.”
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Vermont v. Brillon, 556 U.S. 81, 89-90 (2009) (alterations in original), quoting 

Barker, 407 U.S. at 522, 522-25, 529, 530. See also Erenas-Luna, 560 F.3d at 779 

(“‘We cannot definitely say how long is too long,’ and there is ‘no constitutional 

basis for holding that the speedy trial right can be quantified into a specified number 

of days or months.’ As a result, ‘any inquiry into a speedy trial claim necessitates a 

functional analysis of the right in the particular context of the case.’”), quoting 

Barker, 407 U.S. at 521-23.

“Here, because the delay was not of such length to eliminate the need to show 

particularized prejudice and because there is no evidence that the delay impeded 

[Cooley’s] defense or threatened to deprive him of a fair trial, we conclude that there 

was no Sixth Amendment violation.” See Williams, 557 F.3d at 950. The district 

court properly denied Cooley’s motion to dismiss. 

* * * * * * *

The judgment is affirmed. 

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