IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20750

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GLADYS NELL BISHOP,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before GARZA and BENAVIDES, Circuit Judges, and LYNN , District Judge.

*

EMILIO M. GARZA, Circuit Judge:

Appellant Gladys Bishop (“Bishop”) was indicted on three counts of

making a false statement in a tax return, in violation of 26 U.S.C. § 7206(1). She

was convicted and sentenced to thirty-six months in prison. Bishop appeals from

the district court’s denial of her pre-trial motion for dismissal of her indictment,

the district court’s alleged refusal to permit her to assert the defense of her

choosing, and the district court’s denial, without a hearing, of her motion for a

new trial based on her claim of ineffective assistance of counsel. For the reasons

set forth herein, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

December 29, 2010

Lyle W. Cayce

Clerk

 District Judge of the Northern District of Texas, sitting by designation. *

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I

Bishop was the owner and president of Quality Trucking, Inc. (“Quality

Trucking”). Her son, Travis Bishop, was its vice president. On her 2000, 2001

and 2002 corporate tax returns, Bishop failed to report income she received

through Quality Trucking business. All in all, the unreported income, across the

three-year period, totaled $534,937. In March 2007, following a six-year

investigation of the company's activities, a grand jury indicted Bishop on three

counts of violating 26 U.S.C. § 7206(1). Her indictment was sealed on the

ground that the investigation into the unreported Quality Trucking income was

ongoing and Bishop was a flight risk.

Bishop was arraigned in January 2009. Bishop and the Government

jointly sought two continuances, both of which were granted. Thereafter, Bishop

filed a motion to dismiss the indictment, alleging inter alia that the Government

failed to conduct a speedy trial. The district court denied Bishop’s speedy trial

claim. The trial proceeded, and Bishop was convicted on all three counts.

After her conviction but before her sentencing, Bishop hired new counsel

and filed a motion for a new trial under Rule 33 of the Federal Rules of Criminal

Procedure. In the motion, Bishop argued that her original trial counsel rendered

ineffective assistance in three ways: (1) failing to communicate Bishop’s

acceptance of a proposed plea bargain to either the Government or the district

court; (2) attempting to further negotiate the terms without Bishop’s

authorization; and (3) failing to adequately investigate Bishop’s cognitive

disabilities, despite trial counsel’s own observation of those disabilities

throughout the pretrial decision-making period. The district court denied

Bishop’s motion without a hearing. Bishop was sentenced to a thirty-six month

term on each count, with the sentences to run concurrently, and three

concurrent one-year terms of supervised released. This appeal follows.

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II

Bishop contends that the district court should have concluded that the

delay in trying her was presumptively prejudicial. A defendant’s Sixth

Amendment speedy trial claim is evaluated pursuant to a four-factor balancing

test considering: (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s diligence in asserting her Sixth Amendment right; and (4) any

prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S.

514, 530-33 (1972); see also United States v. Frye, 489 F.3d 201, 209 (5th Cir.

2007). Once a speedy trial analysis is triggered, the court “determines whether

the first three Barker factors weigh so heavily in favor of the defendant that

prejudice is presumed.” Frye, 489 F.3d at 209 (internal quotations and citation

omitted). If the first three factors do not justify a presumption of prejudice,

“then the defendant bears the burden of establishing actual prejudice and

demonstrating that such prejudice is sufficient to outweigh the other three

factors.” Frye, 489 F.3d at 209. We review the trial court’s weighing of the

Barker factors de novo. United States v. Molina-Solario, 577 F.3d 300, 304 (5th

Cir. 2009). We review its underlying findings of facts, however, for clear error.

Id. at 303 (citing United States v. Frye, 372 F.3d 729, 735 (5th Cir.2004)).

A

Bishop contends that the length of her post-indictment delay weighs in

favor of concluding that the delay was presumptively prejudicial. In considering

the length of a delay, this court has generally held that delays of less than five

years are insufficient, by duration alone, to give rise to a presumption of

prejudice and relieve the defendant of satisfying Barker’s fourth prong. See

United States v. Parker, 505 F.3d 323, 328 29 (5th Cir. 2007) (delay of 17 months

insufficient to presume prejudice); see also United States v. Serna-Villarreal, 352

F.3d 225, 233 (5th Cir. 2003) (delay of three years and nine months insufficient).

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Bishop argues, however, that the length of her delay favors a finding that

it was presumptively prejudicial for three reasons: (1) the post-trial delay came

after a six-year delay from the time the investigation began; (2) her advanced

age made her subject to cognitive deterioration and the “other realities of

advanced age”; and (3) the factual complexity of the case demanded a speedier

trial, given the complex transactions and business practices relevant to the case.

She concedes that she has waived her right to assert a claim of unreasonable

pre-indictment delay. Her first argument, therefore, is not that the preindictment delay was unreasonable, but that the context of the pre-indictment

delay renders the post-indictment delay presumptively prejudicial. We disagree.

Claims of pre-indictment delay are considered under the Fifth Amendment,

while claims of post-indictment delay are considered under the Sixth

Amendment. United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994). To the

extent that the pre-indictment delay is relevant to this factor at all, we must

consider it in light of the fact that Bishop had an adequate, independent

constitutional protection through which to protect herself from pre-indictment

delay, and she did not avail herself of it. Understood in those terms, the preindictment delay does not, at least in this instance, render the otherwise

permissible post-indictment delay prejudicial.

We agree that a defendant’s age and health may be relevant to a speedy

trial claim. They will be most relevant, however, in evaluating whether actual

prejudice occurred pursuant to the fourth Barker factor. The same is true for the

complexity of the case. It is true that the length of delay, like the other criteria,

is to be considered on a case-by-case basis. See United States v. Eight Thousand

Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S.

555, 565 (1983) (“Little can be said on when a delay becomes presumptively

proper, for the determination necessarily depends on the facts of the particular

case. Our inquiry is the constitutional one of due process; we are not

establishing a statute of limitations.”). Nevertheless, when considering the

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“length of a delay” factor, the paramount issue is the actual duration itself. The

additional factors identified by Bishop do not rise to the level of tilting this factor

in her favor in this instance.

B

Bishop next contends the reasons for her delay also favor a holding that

it was presumptively prejudicial. We will not presume prejudice “[i]f the

government diligently pursues a defendant from indictment to arrest.” United

States v. Bergfeld, 280 F.3d 486, 489 (5th Cir. 2002) (quoting Doggett v. United

States, 505 U.S. 647, 656 (1992)). In contrast, deliberate, bad-faith delays made

to hamper the defense and gain some impermissible trial advantage do weigh

against the Government. Doggett, 505 U.S. at 656. “Between diligent

prosecution and bad-faith delay, official negligence in bringing an accused to

trial occupies the middle ground.” Id. at 657. The district court determined that

the Government’s post-indictment delay was not a bad-faith, tactical maneuver

to reap litigation advantages. In particular, the district court credited the

Government’s cited reasons for sealing the indictment and delaying the trial,

specifically Bishop’s flight risk and the Government’s continued investigation of

Travis Bishop.

Bishop cites data from the Department of Justice showing that individuals

charged with fraud offenses rarely flee before trial. The conclusion that she was

a flight risk was not, however, based simply on the fact that she faced fraud-type

charges, but rather on the sheer magnitude of her potential liability, as attested

to by IRS Agent Mark Lyons. See United States v. Arroyo)Reyes, 32 F.3d 561,

1994 WL 440654 at *4 (1st Cir. Aug. 15, 1994) (considering severity of penalties

in risk-of-flight analysis). Moreover, the district court’s conclusion that the

Government’s belief that Bishop was a flight risk was valid is subject only to

clear error review.

Bishop further argues that the Government has not shown that it was

diligently pursuing the investigation, and thus any delay based on that

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investigation was the result of official negligence. The record shows that the

ongoing investigation responsible for the delay consisted largely, if not entirely,

of internal discussions regarding whether Travis Bishop would be indicted and

internal consideration of how to proceed. There is a limit, of course, to the

amount of delay that can be reasonably justified by discussions and

consideration alone. The cases on which Bishop relies to allege official

negligence, however, involved considerably longer delays with less justification.

See Bergfeld, 280 F.3d at 490 (delay over five years while taking minimal steps

to apprehend codefendants); Doggett, 505 U.S. at 657-58 (delay over eight years,

six of which while Government was negligently unaware that defendant had reentered the country).

The trial court’s core finding, moreover, that the Government was not

engaging in a deliberate attempt to gain an impermissible advantage at trial,

was based on findings of fact that were not clear error. Therefore, this factor

does not bring this case into the class of cases where the reason for delay is

sufficient, in and of itself, to give rise to a presumption of error.

C

Bishop finally contends that the district court erred in holding that the

third Barker factor—her timely assertion of her speedy trial rights—favored the

Government. The trial court based its conclusion on the fact that, after her

indictment became known to her, Bishop filed two motions for continuances

before raising the speedy trial issue in her motion to dismiss.

Bishop’s argument on this point has more merit than the district court

acknowledged. First, of course, Bishop correctly observes—and the Government

does not dispute—that she had no opportunity to assert her right to a speedy

trial at any time during the first twenty-two months post-indictment because the

case was sealed. Bishop did not acquiesce in the delay in the same manner as

an individual who fails to object to a motion for a continuance filed by the

Government. See Frye, 489 F.3d at 212. The bulk of the delay had already

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occurred when she sought her continuances, and the complex nature of the case

renders the continuances understandable. In light thereof, this factor at most

weakly favors the Government, if at all.

D

None of the first three Barker factors is individually sufficient to give rise

to a presumption of prejudice in this case. Moreover, although our analysis

above differs from the trial court’s in some particulars, we agree with its

ultimate conclusion that the factors are, on balance, insufficient when considered

together. Therefore, Bishop was entitled to a dismissal based on her speedy

trial rights only upon a showing of actual prejudice. Bishop has not challenged

the district court’s finding that no actual prejudice occurred. Therefore, reversal

is not warranted.

III

Bishop also contends that the trial court violated her constitutional right

to present a complete defense by preventing her from arguing that her case was

a “perjury case” rather than a “tax case.” She does not argue that she should

have been charged under some statute other than § 7206(1); rather, her

challenge solely concerns the way in which she sought to characterize the

charge.

As an initial matter, Bishop and the Government disagree regarding the

standard of review applicable to this argument. Bishop suggests that, because

she has presented a question of constitutional law, we should review the issue

de novo. See United States v. Locke, 482 F.3d 764, 766 (5th Cir. 2007) (“[W]e

review issues of constitutional law de novo.” (citations omitted)). The

Government counters that Bishop did not raise her constitutional claim at trial,

and therefore review is for plain error. See United States v. Bourgeois, 423 F.3d

501, 506 (5th Cir. 2005) (noting that the defendant “raised none of the

constitutional challenges in the district court that he now raises on appeal” and

that “[a]ccordingly, we review them for plain error”).

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Bishop’s allegation of error stems from the district court’s ruling

preventing her attorney from asking IRS Special Agent Robert Whalen whether

this case was “basically a perjury case.” The Government objected to the

question, and the court sustained the objection, observing, “This is a tax case.”

Bishop then moved on in her cross-examination. Her counsel took no steps to

inform the district court that barring the question potentially violated Bishop’s

constitutional rights or to clarify the nature of the defense she was pursuing.

Her argument on appeal, therefore, must be reviewed for plain error. To

establish plain error, Bishop must demonstrate: (1) there was an error; (2) the

error is “plain”; and (3) the error affected her substantial rights, was prejudicial

and affected the outcome of the district court proceeding. United States v. Olano,

507 U.S. 725, 731)32 (1993). We will correct a plain error only if the error

“seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at 736.

Bishop’s argument hinges on a misreading of our discussion of § 7206(1)

in State v. Adams, 314 F. App’x 633, 638 (5th Cir. 2009). In that case, we

stressed, in obiter dicta, that a § 7206(1) false return case is “a perjury case,”

unlike, for example, a tax evasion or failure to file case. We interpret those

remarks simply to distinguish a charge under § 7206(1) from other types of taxrelated charges. We did not hold, nor would it make sense to hold, that false

return cases are not “tax cases.” Regardless, even if Bishop’s characterization

1

of Adams were accurate, she could not show that the district court’s ruling

affected the outcome of its proceedings, as is required for a reversal based on

plain error. The court’s lone ruling on her questioning of Whalen did not

prospectively prevent her from emphasizing the elements of the Government’s

case that she considered weakest. Moreover, we see no reason to think that the

In fact, later in the opinion, we made clear that Adams was a “tax case.” 314 F. App’x 1

at 652 (referring to another case as “also a tax case”).

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jury’s verdict would have been any different even if she had emphasized those

points in the manner she says she would have preferred. Reversal on this point

is not warranted.

IV

Bishop contends that the district court erred in denying her motion for a

new trial without granting a hearing to consider her ineffective assistance claims

on the merits. She contends that the court should have granted a hearing in

order to develop the factual record or, in the alternative, should have granted the

motion for a new trial without a hearing. The Government counters that the

district court acted within its discretion, in light of the circumstances of the case

and the general principle that the preferred device for raising a claim of

ineffective assistance of counsel is a federal habeas corpus petition under 28

U.S.C. § 2255.

A defendant may raise a claim of ineffective assistance of counsel in a

motion for a new trial. See United States v. Fuchs, 467 F.3d 889, 910-11 & n.15

(considering ineffective assistance of counsel claim that was raised in motion for

a new trial). However, a motion for relief in habeas corpus pursuant to 28 U.S.C.

§ 2255 “is the preferred method for raising a claim of ineffective assistance of

counsel.” United States v. Gordon, 346 F.3d 135, 136 (5th Cir. 2003) (citing

Massaro v. United States, 538 U.S. 500, 504 (2003)). Regardless of whether an

ineffective assistance of counsel claim is raised in a motion for a new trial, on

collateral review, or on direct appeal, the standard of review is the same.

Strickland v. Washington, 466 U.S. 668, 697 (1984). The defendant bears the

burden of demonstrating that (1) counsel’s performance fell below an objective

standard of reasonableness and that (2) but for counsel’s deficient performance,

the result of the proceeding would have been different. Id. at 687-96.

We review the district court’s denial of a motion for a new trial for an

abuse of discretion. United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983).

The record of a defendant’s criminal trial will rarely be adequately developed for

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the purpose of considering an ineffective assistance of counsel claim. See

Gordon, 346 F.3d at 137 (noting that it is a “rare case” where the record on direct

appeal is adequate to permit consideration of an ineffective assistance claim).

Although Bishop supplemented the trial record with her motion and

attachments, the motion presented a one-sided account of events that took place

2

primarily outside the view of the court. Bishop’s telling of those events has not

been subject to rebuttal or cross-examination. Therefore, it would have been

inappropriate to grant the motion without a hearing.

The decision to conduct an evidentiary hearing on a motion for a new trial

is within the sound discretion of the district court and we will reverse only where

the ruling was so clearly erroneous as to constitute an abuse of discretion.

United States v. Blackthorne, 378 F.3d 449, 455 (5th Cir. 2004); see also United

States v. Demik, 489 F.3d 644, 646 (5th Cir. 2007) (applying abuse of discretion

standard on direct appeal to denial of an evidentiary hearing regarding an

ineffective assistance claim). Bishop argues that she was entitled to a hearing

because her motion for a new trial pleaded material facts that, if true, would

satisfy the requirements for a showing of ineffective assistance of counsel under

Strickland. In Demik, the defendant raised a similar argument. 489 F.3d at

646-47. Because the plaintiff’s allegation of ineffective assistance had been

poorly pled, we affirmed the denial of new trial without setting forth a precise

test for when it would be an abuse of discretion to deny such a hearing.

3

Bishop’s attachment included the following: correspondence from the Department of 2

Justice attempting to finalize a settlement; an affidavit by Bishop detailing her attempts to

plead guilty and her original trial counsel’s responses; an affidavit by Travis Bishop recounting

meetings he attended between Bishop and her original trial counsel as well as his own

observations based on day-to-day interaction with his mother; a bank deposit ticket from June

4, 2009, showing a transfer of funds, allegedly in anticipation of a plea including payment of

her liabilities; an affidavit from her new counsel detailing his investigations into ineffective

assistance rendered at trial; and an affidavit from a licensed psychologist attesting to Bishop's

cognitive difficulties. 

We held that a motion for a new trial’s “conclusional allegations” of ineffective 3

assistance of counsel do not require a trial court to conduct an evidentiary hearing before

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We are now presented with a motion for a new trial in which the

defendant’s claims were raised with greater specificity. In light of the significant

factual issues necessary to the ineffective assistance claim, we hold that it was

not an abuse of the district court’s discretion to deny the motion in favor of

allowing Bishop to raise those issues in § 2255 proceedings. A full hearing of

Bishop’s claims would have required not only a close analysis of her original

counsel’s actions toward Bishop, but also the actions of the Government in

pursuing the plea deal, as well as psychological evidence regarding Bishop’s

mental state. It was within the district court’s discretion to decline to prolong

its original proceedings to consider matters that would be better raised

collaterally. We accordingly affirm the denial of motion for new trial, without

prejudice to Bishop’s raising the ineffective assistance claims in a later

proceeding.

V

For the foregoing reasons, we AFFIRM the judgment of the district court

in all respects.

denying the motion. Demik, 489 F.3d at 646-47.

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