United States Court of Appeals

For the Eighth Circuit 

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No. 23-1266

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United States of America

 Plaintiff - Appellee

v.

Derik Ashley Otero

 Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Eastern

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Submitted: October 20, 2023

Filed: December 28, 2023 

[Unpublished]

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Before GRUENDER, STRAS, and KOBES, Circuit Judges. 

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PER CURIAM.

On October 7, 2020, a federal grand jury indicted Otero on one count of being 

a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). At that time, Otero 

was in the custody of the Iowa Department of Corrections, serving a state sentence 

for a parole violation.
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On November 10, 2020, Otero informed prison staff that he had received a 

letter regarding a federal detainer. Otero was confused by the reference to a detainer 

and asked prison staff “what’s that mean?” Prison staff advised Otero that a federal 

detainer refers to pending federal charges. Otero then sent a letter to the Johnson 

County Clerk of District Court in Iowa, stating: “I have been made aware that I have 

[a] detainer in your county.” The Johnson County Clerk of District Court responded 

to Otero on January 26, 2021, informing him that there was not a detainer on him 

from Johnson County. On January 6, 2022, the United States Marshals Service 

provided a copy of the detainer to Otero. The detainer stated that Otero had “the 

right to demand speedy trial.” Otero refused to sign the document.

On March 4, 2022, Otero was released from state prison. His initial 

appearance on his federal charge occurred thirteen days later. Trial was scheduled 

for May 2, 2022, approximately eighteen months after his indictment. Otero filed a 

motion to dismiss the indictment, asserting that his Sixth Amendment right to a 

speedy trial had been violated. The district court1 denied the motion. Otero 

eventually conditionally pleaded guilty, wherein he preserved the right to appeal the 

denial of the motion to dismiss. See Fed. R. Crim. P. 11(a)(2). The district court 

then sentenced Otero to 84 months’ imprisonment. Otero appeals. 

In speedy-trial challenges, we review the district court’s findings of fact for 

clear error and its legal conclusions de novo. United States v. Cooley, 63 F.4th 1173, 

1177 (8th Cir. 2023). The defendant’s 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. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). When 

evaluating a defendant’s speedy-trial claim, we balance the four Barker factors:

“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and 

prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972).

1

The Honorable Rebecca Goodgame Ebinger, United States District Judge for 

the Southern District of Iowa.
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We first consider the length of delay. Our consideration “requires a double 

inquiry: (1) whether the length of delay was presumptively prejudicial such that it 

triggers the [remainder of the] Barker analysis, and, if triggered, (2) the extent to 

which the delay stretches beyond the bare minimum needed to trigger judicial 

examination of the claim.” United States v. Johnson, 990 F.3d 661, 670 (8th Cir. 

2021). Here, there was a delay of approximately eighteen months between Otero’s 

indictment and scheduled trial. This delay was presumptively prejudicial. See 

United States v. Walker, 840 F.3d 477, 485 (8th Cir. 2016) (holding that a delay of 

approximately eleven and a half months was presumptively prejudicial). However, 

the delay did not stretch far beyond the bare minimum needed to trigger judicial 

examination of the claim. See United States v. Mallett, 751 F.3d 907, 914 (8th Cir. 

2014) (“[W]e acknowledge seventeen months is a lengthy delay. But our court, 

under the Sixth Amendment, has permitted even longer delays.”); Cooley, 63 F.4th 

at 1178 (finding a delay of twenty-nine months to be “lengthy but not 

extraordinary”). This factor, therefore, weighs only slightly in Otero’s favor.

We next consider the reason for the delay, evaluating “whether the 

[G]overnment or the criminal defendant is more to blame.” Doggett v. United States, 

505 U.S. 647, 651 (1992). Otero does not contend that the Government intentionally 

delayed the federal proceedings; rather, he argues that the Government was negligent 

for failing to commence the federal proceedings while he was in state custody. The 

Government does not appear to dispute its negligence, arguing instead that this factor 

should not be weighted heavily against it. We agree that this factor weighs only 

slightly in Otero’s favor. See Barker, 407 U.S. at 531 (holding that a “deliberate 

attempt to delay the trial . . . should be weighted heavily against the [G]overnment,” 

while a “more neutral reason such as negligence . . . should be weighted less heavily 

but nevertheless should be considered”). 

We next consider whether Otero asserted his right to a speedy trial. Otero

inquired about the detainer to prison staff and the Johnson County Clerk of District 

Court. However, he failed to assert his right when presented with the detainer in 

January 2022 even though the detainer informed Otero that he had “the right to 
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demand speedy trial.” Otero also did not object to the scheduled trial date at his 

arraignment. See United States v. Shepard, 462 F.3d 847, 864 (8th Cir. 2006) 

(weighing the third Barker factor against the defendant where the defendant “made 

no attempt to have his case brought to trial sooner”). Although Otero later raised a 

speedy-trial claim, this fact alone has little bearing on the third Barker factor. See

Mallett, 751 F.3d at 914 (holding that the defendant’s “substantial contributions to 

the pretrial delay belie[d] his later attempts to assert his speedy trial rights”). This 

factor weighs in the Government’s favor.

We lastly consider whether Otero suffered prejudice due to the eighteenmonth delay. Otero contends that no actual proof of prejudice is required because 

the eighteen-month delay was presumptively prejudicial. We reject this contention. 

See Doggett, 505 U.S. at 652 n.1 (holding that presumptive prejudice “does not 

necessarily indicate a statistical probability of prejudice”); United States v. Brown, 

325 F.3d 1032, 1035 (8th Cir. 2003) (requiring the defendant to show proof of actual 

prejudice even when the delay was presumptively prejudicial). Thus, Otero must 

show that the delay actually prejudiced him.

In evaluating a defendant’s claim of actual prejudice, we must consider the 

need “(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.” Barker, 407 U.S. at 532. Otero did not suffer oppressive pretrial 

incarceration as he was incarcerated in state prison until March 4, 2022. His initial 

appearance on the federal charge occurred only thirteen days later. Although Otero 

claims he suffered stress and anxiety due to the delay, he fails to show that the delay 

weighed particularly heavily on him in specific instances. See Morris v. Wyrick, 516 

F.2d 1387, 1391 (8th Cir. 1975) (“Anxiety and concern of the accused are 

undoubtedly present to some degree in every case. However, that alone does not 

establish prejudice where . . . the defendant neither asserts nor shows that the delay 

weighed particularly heavily on him in specific instances.” (citation omitted)). 

Furthermore, Otero does not claim that his defense was impaired by the delay. This 

factor, therefore, weighs heavily in the Government’s favor.
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Although two of the Barker factors weigh slightly in Otero’s favor, we 

conclude that the district court did not err in denying Otero’s motion to dismiss. 

Otero failed to assert his right to a speedy trial, and, importantly, suffered little to no 

prejudice due to the delay. Accordingly, we affirm.

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