[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-15770

Non-Argument Calendar

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D.C. Docket No. 1:17-cr-20233-CMA-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

GABRIELLE BARRAGAN, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 11, 2018)

Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM: 

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Gabrielle Barragan appeals her conviction under 18 U.S.C. § 1349 for one 

count of conspiring to commit bank fraud and wire fraud affecting a financial 

institution. Barragan argues that the district court abused its discretion in denying 

her motion to dismiss the indictment for pre-indictment delay. In particular, 

Barragan contends that the district court applied an incorrect legal standard that 

required her to show both that the government’s delay caused her actual prejudice 

and that the government used the delay to obtain a tactical advantage. Barragan 

maintains that the district court should have instead balanced the government’s 

justification for delaying her prosecution against any prejudice that she suffered as 

a result. Under this balancing analysis, Barragan contends that she should prevail. 

We disagree and hold that the district court properly applied the correct legal 

standard.

We review a district court’s denial of a motion to dismiss an indictment for 

abuse of discretion, United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 

2002), and review all required factual findings for clear error, United States v. 

Foxman, 87 F.3d 1220, 1222–23 (11th Cir. 1996). 

“The limit on pre-indictment delay is usually set by the statute of

limitations.” Id. at 1222. The Due Process Clause of the Fifth Amendment may

bar an indictment, however, even when the indictment is brought within the 

limitation period. See U.S. v. Lovasco, 431 U.S. 783, 788–91 (1977); United States 

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v. Marion, 404 U.S. 307, 323–27 (1971). For a due process bar to apply, the 

defendant must show that the pre-indictment delay (1) caused actual prejudice to 

the conduct of her defense and (2) was the product of deliberate action by the 

government taken in order to gain a tactical advantage. Stoner v. Graddick, 751 

F.2d 1535, 1541-42 (11th Cir. 1985).1

With regard to the first requirement, we have been clear that “[a] stringent 

standard is employed when examining the issue of prejudice.” United States v. 

LeQuire, 943 F.2d 1554, 1560 (11th Cir. 1991) (citation omitted). “[A]ctual 

prejudice and not merely ‘the real possibility of prejudice inherent in any extended 

delay,’ must be demonstrated.” Stoner, 751 F.2d at 1544 (quoting United States v. 

McGough, 510 F.2d 598, 604 (5th Cir. 1975)). Thus, a “general allegation of loss 

of witnesses and failure of memories [is] insufficient to demonstrate the actual 

prejudice required . . . .” United States v. Radue, 707 F.2d 493, 495 (11th Cir. 

1983). 

 1 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the 

right to a speedy . . . trial.” U.S. Const. amend. VI. In Barker v. Wingo, 407 U.S. 514 (1972), 

the Supreme Court established a four-factor test to determine when a defendant’s right to a 

speedy trial had been violated. The four factors are: (1) the length of the delay, (2) the reason for 

the delay, (3) the defendant’s assertion of his speedy trial right, and (4) the prejudice to the 

defendant. Id. at 530. But the right to a speedy trial—and the accompanying four-factor 

analysis—applies only after an individual becomes an accused by arrest or indictment. See 

Marion, 404 U.S. at 321 (“[W]e decline to extend [the] reach of the [Sixth] amendment to the 

period prior to arrest.”); see also Lovasco, 431 U.S. at 788 (“[A]s far as the Speedy Trial Clause 

of the Sixth Amendment is concerned, such [pre-indictment] delay is wholly irrelevant.”).

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With regard to the second requirement, government inaction “standing 

alone” cannot establish that the government’s actions were motivated by an 

attempt to gain a tactical advantage. United States v. Butler, 792 F.2d 1528, 1534 

(11th Cir. 1986). Nor is unintentional or negligent delay “deliberate.” Foxman, 87 

F.3d at 1223 n.2. We have also held that delays resulting from the government 

undertaking additional investigation in good faith, see Stoner, 751 F.2d at 1541, or 

from the government directing its resources toward other cases, see Butler, 792 

F.2d at 1534, likewise do not demonstrate that the government delayed the 

indictment in order to gain a tactical advantage. See also Lovasco, 431 U.S. at

795. 

Barragan argues that the district court should have set these precedents aside 

in favor of a footnote in United States v. Brand, 556 F.2d 1312 (5th Cir. 1977). 

The Brand Court—in what an en banc decision of the Fifth Circuit subsequently 

characterized as “pure dicta,” United States v. Crouch, 84 F.3d 1497, 1509 (5th 

Cir. 1996)—suggested that the validity of a claim alleging a violation of the Fifth 

Amendment due to prosecutorial delay “depends on the due process balancing 

between the extent of the actual prejudice and the governmental interests at stake.”

Brand, 556 F.2d at 1317 n.7. The problem for Barragan is that this balancing 

analysis contradicts this Court’s consistent post-Brand precedent, see, e.g., United 

States v. Hayes, 40 F.3d 362, 365 (11th Cir.1994); United States v. Benson, 846 

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F.2d 1338, 1340 (11th Cir.1988); Stoner, 751 F.2d at 1541, as well as that of the 

Supreme Court in Marion, Lovasco, and Arizona v. Youngblood, 488 U.S. 51, 57

(1988). 

The district court did not err in asking whether the pre-indictment delay 

caused Barragan actual prejudice and was taken in order to gain a tactical 

advantage. Nor did it err in finding that Barragan failed to satisfy either inquiry. 

Barragan points to precisely the faulty memories—e.g., “his memory was 

useless”—and lost witnesses—e.g., “[t]he other four lenders . . . were all out of 

business”—that we have found “insufficient to demonstrate the actual prejudice 

required.” Radue, 707 F.2d at 495. Similarly, Barragan contends that the 

government “had no satisfying reason” for its delay, but this argument mistakes the 

burden of proof and misstates the nature of the testimony presented at Barragan’s

evidentiary hearing. See, e.g., Trial Tr. 167 at 21–25 (Aug. 22, 2017) (describing 

government investigators and prosecutors as “inundated” with mortgage fraud 

cases).

The district court therefore did not abuse its discretion by denying 

Barragan’s motion to dismiss the indictment. Applying the correct legal standard, 

it found that Barragan had neither proven actual prejudice nor shown that the 

government’s delay was a deliberate attempt to gain a tactical advantage. 

Accordingly, we affirm.

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AFFIRMED.

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