FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-10073 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00050-DWM

JOSEPH F. DRAKE,

OPINION Defendant-Appellant. 

Appeal from the District Court Guam

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

November 1, 2007—Honolulu, Hawaii

Filed September 15, 2008

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge O’Scannlain

12825
COUNSEL

Gretchen Fusilier, Carlsbad, California, argued the cause for

the defendant-appellant and filed the briefs. 

Rosetta L. San Nicolas, Assistant U.S. Attorney, Guam,

argued the cause for the plaintiff-appellee and filed the brief;

Leonardo M. Rapadas, Guam and NMI, was on the brief. 

12828 UNITED STATES v. DRAKE
OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a two-year delay between indictment in the local Guam courts and eventual conviction on different charges in federal district court violated a defendant’s

right to a speedy trial.

I

A

In the early morning hours of September 14, 2003, a Mobil

Mart in Sinajana, Guam, was robbed at gunpoint. The cashier,

Angel Guzman, reported that a man entered the store at about

2:50 a.m. and asked for cigarettes. As Guzman turned to

retrieve the cigarettes, the man “picked up his shirt, pulled out

a gun,” and demanded cash. Guzman opened the register and

turned over $85.00. The robber then “backed out of the store,

alternately pointing the gun at Ms. Guzman and [at the gas

station attendant.]” The store’s digital surveillance system

captured the robbery, which lasted less than one minute. 

After the robber made his escape, Guzman called the Guam

police, who promptly alerted nearby officers that the store had

been robbed. Police officers converged on the Mobil Mart

within minutes. Guzman told police that the robber was “dark

complexioned, male, Guamanian, approximately 30 years old,

wearing a dark short-sleeve shirt, brown shorts, brown baseball cap over a blue shirt, and black slippers with tattoos on

his forearm.” The gas station attendant could not describe the

robber, but described the gun as “silver colored.” Later that

morning, in a written statement, Guzman estimated that the

robber was about five foot one. 

While the officers at the Mini Mart interviewed the

employees, Guam policemen Matthew Cepeda and James

UNITED STATES v. DRAKE 12829
Rosete were hunting for the robber. As Cepeda and Rosete

approached Nelson Road, which leads directly to the store,

the officers saw a “vehicle travelling [sic] at a high rate of

speed” that then “came to an abrupt stop.” No other cars were

in the immediate vicinity. The driver of the car “look[ed] at

[the officers] and slowly [turn[ed] away.” The officers testified that they believed “the vehicle had been driven hard”

because they smelled “burning fluid within the vehicle.”

Thinking they had found the robber, Cepeda and Rosete

stopped the car, drew their weapons, and approached the vehicle. They ordered the driver and the two passengers out of the

car. After discovering two revolvers and a pistol inside the

car, the officers arrested the occupants. One of the passengers

was Joseph Drake. 

At about 3:30 a.m. the officers at the Mobil Mart received

word that their colleagues had a suspect in custody. The officers told Guzman “that they had captured the suspect” and

brought her to the site of the traffic stop to make an identification. When Guzman arrived, Drake was handcuffed and surrounded by uniformed police officers. He was about 30 years

old, had a dark complexion, appeared Guamanian, and was

five foot nine. He was also wearing brown shorts, a dark

short-sleeve shirt, and slippers, and had tattoos on his arm. In

addition, officers found a baseball cap in the car. From “the

back of a patrol car about 10 feet away from the suspect,”

Guzman “positively identified” Drake as the robber. Four

days after the robbery, Guzman was shown a photo lineup of

six men and again selected Drake as the perpetrator. 

Half an hour after Drake’s arrest, police officers watched

the video of the robbery recorded by the store’s surveillance

system. The officers tried to obtain a copy of the recording

from the manager of the Mobil Mart, but instead received a

“floppy disk containing fourteen . . . still images from the surveillance camera, depicting the robbery in commission.” After

thirty days, the original digital recording of the robbery was

automatically deleted and permanently lost.

12830 UNITED STATES v. DRAKE
B

Two weeks later, on September 26, 2003, a grand jury in

the Guam Superior Court indicted Drake on seven charges,

including second degree robbery, theft, and possession of a

concealed weapon.1 A co-defendant, Earl Wusstig, was also

indicted on five of the seven charges. Over the next eight

months, trial dates were set and abandoned several times.2

Almost a year later, on June 1, 2004, another grand jury in

the Guam Superior Court re-indicted Drake on identical

charges. The new indictment dropped Wusstig, the codefendant, but was otherwise identical to the 2003 indictment.

The record is again unclear regarding why the first indictment

was dismissed. 

Over the next year, the court changed Drake’s appointed

counsel several times. Drake filed several motions to dismiss

which further delayed the proceedings. He also waived his

right to a speedy trial four separate times, and asserted the

same right three times.3 The record does not disclose the reasons for the waivers and the reassertions of the right. 

About a year after the second indictment, Drake’s prosecution was turned over to the federal government. On June 15,

2005, a grand jury in the District of Guam indicted Drake on

1Specifically, Drake was charged with (1) second degree robbery with

a special allegation of possession and use of a deadly weapon in the commission of a felony; (2) theft; (3) conspiracy to commit theft; (4) possession of a firearm without an identification card; (5) possession of a

concealed weapon; (6) possession of an unregistered firearm; and (7) possession of a schedule II controlled substance. 

2The reasons for the repeated continuances are not clear from the

record, but Drake’s court-appointed counsel failed to appear at a hearing

at least once. 

3The waivers occurred on October 3, 2003, December 11, 2003, March

9, 2004, and July 2, 2004. Drake asserted his right to a speedy trial on

November 28, 2003, February 25, 2004, and October 6, 2004. 

UNITED STATES v. DRAKE 12831
one count of Hobbs Act robbery conspiracy in violation of 18

U.S.C. § 1951(a), one count of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), one count of using and carrying

a firearm during a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Though the federal charges differed from their state

counterparts, they were based on the same conduct as the

prior Guam Superior Court indictments. Drake appeared in

the district court for arraignment on June 17. 

A month later, on July 20, Drake moved to dismiss on various grounds. He alleged that the nearly two-year delay

between indictments violated his right to a speedy trial. Drake

argued that the delay should be measured from the date of his

first indictment in the Guam Superior Court rather than the

date of his federal indictment because the United States and

the Territory of Guam are a “single sovereignty.” In addition,

Drake claimed that the traffic stop leading to his arrest was

not supported by reasonable suspicion and that all evidence

resulting from the stop should be suppressed as “fruit of the

poisonous tree.” Drake also contended that the indictment

should be dismissed because the Guam police department

failed to preserve the videotape of the robbery. Finally, Drake

claimed that the on site “show up” and photo array identifications were impermissibly suggestive and should be suppressed. 

The district court denied all of Drake’s motions.4“Assuming, without deciding” that the United States and Guam are a

“single sovereignty,” the court nevertheless concluded that the

federal charges were distinct from the state charges. The court

accordingly measured the delay from the federal indictment to

the conviction: four months. In addition, the court pointed out

that the Speedy Trial Act excludes “[a]ny period of delay

4The court disposed of the last of Drake’s motions on September 23,

2005, sixty-six days after Drake filed the motions. 

12832 UNITED STATES v. DRAKE
resulting from other proceedings concerning the defendant,”

which the court interpreted to cover the proceedings in the

Guam Superior Court. The district court also found that the

traffic stop was supported by reasonable suspicion, that neither the show up nor the photo array identifications were

impermissibly suggestive, and that the loss of the videotape

did not violate Drake’s due process rights. 

Drake’s trial began on October 3, 2005 and lasted two days.

He was convicted on all counts. In January 2006 Drake was

sentenced to 235 months imprisonment followed by five years

of supervised release. This appeal followed. 

II

We begin with Drake’s argument that the two-year delay

between the 2003 indictment and the 2005 conviction violated

his constitutional and statutory rights to a speedy trial. We

consider Drake’s constitutional argument first.

A

[1] The Sixth Amendment to the United States Constitution

guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial.” U.S. Const.

amend VI. Although non-fundamental “federal constitutional

rights do not automatically apply to unincorporated territories

[such as Guam],” Congress may extend such rights to an

unincorporated territory by statute. Guam v. Guerrero, 290

F.3d 1210, 1214 (9th Cir. 2002). 

[2] In 1950, Congress enacted the Organic Act, codified at

48 U.S.C. § 1421 et seq., which created a “Bill of Rights” for

Guam paralleling the Bill of Rights in the federal Constitution. 48 U.S.C. § 1421b. The language of the Speedy Trial

Clause in the Organic Act tracks its federal counterpart almost

exactly. See 48 U.S.C. § 1421b(g) (“In all criminal prosecutions the accused shall have the right to a speedy and public

UNITED STATES v. DRAKE 12833
trial . . .”). We interpret the Speedy Trial Clause in the

Organic Act as coterminous with its corresponding provision

in the federal Constitution. See Guerrero, 290 F.3d at 1217-

18. 

[3] As in the fifty states, we analyze a Speedy Trial Clause

claim by applying the four-part test established by Barker v.

Wingo, 407 U.S. 514, 530 (1972). The four Barker factors are

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

Id. We review de novo the district court’s conclusion that

there was no Speedy Trial Clause violation. United States v.

Mendoza, 530 F.3d 758, 762 (9th Cir. 2008). 

[4] We turn to the first Barker factor: the length of the

delay. A central issue raised by this appeal is whether the

length of the delay should be measured from Drake’s 2003

indictment in the Superior Court of Guam or from his 2005

indictment in federal district court. However, we need not

decide this question. Assuming arguendo that the clock began

running when Drake was indicted in September 2003, Drake

has not established that the length of delay, even if inappropriately long, outweighs the other Barker factors. 

[5] Indeed, the second Barker factor — the cause of the

delay — weighs in favor of the government. Though the government bears the “ultimate responsibility” for justifying the

delay, the record here does not disclose any “deliberate

attempt to delay the trial in order to hamper the defense.”

Barker, 407 U.S. at 531. The district court found that “most

of the delay in the Superior Court cases stem from motions

filed on Drake’s behalf, changes in counsel (of which there

had been no less than four), and Drakes’ [sic] several filing

[sic] of waiver [sic] of his right to a speedy trial only to ‘reassert’ the same right in subsequent proceedings.” We agree

with the lower court that the reason for the delay weighs

against finding a Speedy Trial Clause violation. 

12834 UNITED STATES v. DRAKE
[6] The third Barker factor, the defendant’s assertion of his

right to a speedy trial, also weighs in favor of the government.

Though Drake asserted his right to a speedy trial three times,

he also expressly waived the right four times. 

[7] Finally, Drake cannot establish that he was prejudiced.

The Supreme Court has identified three interests the right to

a speedy trial serves: “to prevent oppressive pretrial incarceration . . . to minimize anxiety and concern of the accused . . .

[and] to limit the possibility that the defense will be

impaired.” Id. at 532. The Court emphasized that “the most

serious [form of prejudice] is the last, because the inability of

a defendant adequately to prepare his case skews the fairness

of the entire system.” Id. Though Drake has been incarcerated

since his arrest in 2003 and has suffered anxiety and concern,

there is no showing that the delay impaired his defense. No

witnesses died or disappeared; nothing in the record demonstrates that evidence shown to be helpful to the defense was

lost.5 Drake’s pretrial incarceration was not “oppressive” or

unjustified, and his anxiety and concern were no more than

any criminal defendant experiences before trial. 

[8] Accordingly, we are satisfied that the district court did

not err in concluding that Drake’s right to a speedy trial under

the Guam Organic Act was not violated.

B

Having established that Drake’s claim under the Organic

Act must fail, we next consider whether the pretrial delay violated the federal Speedy Trial Act, 18 U.S.C. § 3161(b)-(c).

We review de novo the district court’s conclusion that there

5One federal agent stated that “[d]ue to the passage of time,” he “d[id]

not expect” that a log book describing the police dispatch still existed.

However, there is no evidence confirming this expectation, and we will

not presume prejudice given Drake’s responsibility for the delay. See

United States v. Lam, 251 F.3d 852, 859-60 (9th Cir. 2001). 

UNITED STATES v. DRAKE 12835
was no violation. United States v. Sears, Roebuck & Co., 877

F.2d 734, 737 (9th Cir. 1989). 

[9] The Speedy Trial Act requires federal indictments to be

filed within thirty days of arrest. § 3161(b). When the defendant pleads not guilty, the trial must begin within seventy

days of (1) the filing of the indictment or (2) the defendant’s

appearance before a judicial officer of the court in which the

charges are pending, whichever occurs later. § 3161(c)(1).

The Speedy Trial Act’s time limits do not apply to proceedings in the Guam Superior Court,6

 but do apply to proceedings

in the District Court of Guam. 48 U.S.C. § 1424-4. 

[10] Certain pre-indictment or pre-trial events, however,

toll the time limits. “Any period of delay resulting from other

proceedings concerning the defendant,” for example, is not

counted when computing delay for purposes of the Speedy

Trial Act. 18 U.S.C. § 3161(h)(1). More specifically, “delay

resulting from trial with respect to other charges against the

defendant” is not counted when determining whether the

thirty-day arrest-to-indictment time limit has run. Id.

§ 3161(h)(1)(D).We have previously held that “[t]his provision encompasses not only . . . the trial itself but also the

period of time utilized in making necessary preparations for

trial.” United States v. Lopez-Osuna, 242 F.3d 1191, 1198

(9th Cir. 2001) (internal quotation marks and citation omit6The Act does not apply to Drake’s proceedings in the Guam Superior

Court at least in part because they did not involve federal claims. At the

time, Drake was charged exclusively with violations of the Guam Code.

Section 3161(a)-(c) of the Speedy Trial Act, however, applies only when

a defendant has been charged with a “Federal criminal offense which is

in violation of any Act of Congress and is triable by any court established

by Act of Congress.” 18 U.S.C. § 3172(2); see also id. § 3161(a)-(c).

Because the Guam Code is passed by the Guam Legislature rather than by

Congress, the requirements of § 3171(a)-(c) do not apply. Cf. Gov’t of Virgin Islands v. Bryan, 818 F.2d 1069, 1071-72 (3d Cir. 1987) (charges

alleging a violation of the territorial law of the Virgin Islands do not trigger the requirements of the Speedy Trial Act). 

12836 UNITED STATES v. DRAKE
ted). Finally, “delay resulting from any pretrial motion” is

also excluded from the computation. § 3161(h)(1)(F). 

[11] Here, approximately twenty-two months separated

Drake’s arrest from his federal indictment, plainly more than

the thirty days permitted by the Speedy Trial Act. However,

we conclude that the proceedings in the local Guam courts

that preceded the filing of the federal indictment qualify as a

“delay resulting from trial with respect to other charges

against the defendant” for Speedy Trial Act purposes.

§ 3161(h)(1)(D). Although Drake was never brought to trial

on the original Guam Superior Court charges, the judicial proceedings count as a “period of time utilized in making necessary preparations for trial.” Lopez-Osuna, 242 F.3d at 1198.

[12] Therefore, the thirty-day time limit was tolled when

Drake was indicted on September 26, 2003, twelve days after

he was arrested. The Guam Superior Court proceedings continued until June 17, 2005, the date the Attorney General of

Guam told the United States Attorney’s office that the 2004

indictment would be dismissed. All of that time is thus

excluded when computing the delay. Since the federal indictment occurred on June 15, 2005, the total non-tolled time

between arrest and indictment was twelve days, well within

the thirty-day limit. 

[13] We likewise conclude that the seventy-day time limit

between indictment and trial was not exceeded. One hundred

and eight days separated Drake’s June 17, 2005 arraignment

and the start of his trial on October 3. But on July 20 and July

24, Drake filed several motions to dismiss, the last of which

was denied on September 23. The trial began on October 3,

ten days later. Therefore, sixty-five days between Drake’s

federal indictment and trial were tolled for purposes of the

Speedy Trial Act as “delay resulting from any pretrial

motion.” 18 U.S.C. § 3161(h)(1)(F). The total non-tolled time

thus was forty-three days, within the seventy-day limit.

UNITED STATES v. DRAKE 12837
Accordingly, Drake’s rights under the Speedy Trial Act were

not violated.

III

Next, we consider Drake’s argument that the traffic stop

was not supported by reasonable suspicion and that all evidence obtained as a result of the stop should be suppressed as

“fruit of the poisonous tree.” Wong Sun v. United States, 371

U.S. 471, 488 (1963). We review the district court’s ultimate

conclusion that there was reasonable suspicion de novo and its

underlying findings of fact for clear error. United States v.

Colin, 314 F.3d 439, 442 (9th Cir. 2002). 

[14] The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend IV. Generally,

police seizures must be supported by probable cause. In limited circumstances, a lower standard, reasonable suspicion,

may justify a police seizure. “In particular . . . law enforcement agents may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in

criminal activity.” United States v. Hensley, 469 U.S. 221,

226 (1985).To constitute reasonable suspicion, the officer’s

belief that criminal activity is afoot must be supported by

“specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant th[e]

intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). The Organic

Act provides equal protection to the residents of Guam. See

48 U.S.C. § 1421b(c) (“The right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”). 

[15] The facts here are close. Nevertheless, we cannot say

that the district court committed error in finding that reasonable suspicion existed. Although the officers could not see the

driver or the passengers clearly, the car was driven “at a high

12838 UNITED STATES v. DRAKE
rate of speed” along a road leading from a store which had

been robbed ten minutes earlier. It was very late at night and

no other cars were on the road. In addition, the officers

smelled “burning fluid,” which indicated that the car had been

driven quickly. Finally, the driver looked at the officer and

slowly turned around, actions which may have conveyed consciousness of guilt to the officers. To be sure, each of these

facts, considered by itself, might not give rise to reasonable

suspicion. Considering the “totality of the circumstances,”

however, we conclude that there was reasonable suspicion for

the stop. See United States v. Sokolow, 490 U.S. 1, 9 (1989)

(“Any one of these factors is not by itself proof of any illegal

conduct and is quite consistent with innocent travel. But we

think taken together they amount to reasonable suspicion.”).

[16] Because we conclude that the traffic stop was supported by reasonable suspicion, we also hold that the subsequent show-up identification was not “fruit of the poisonous

tree.” Accordingly, we affirm the district court’s admission of

the evidence relating to the traffic stop. 

IV

We turn next to Drake’s contention that the show-up and

photo array identifications were impermissibly suggestive.

We first consider the identification that immediately followed

Drake’s arrest.

A

The Due Process Clause of the Fourteenth Amendment provides that “[n]o person shall be deprived of life, liberty, or

property without due process of law.” U.S. Const. Amend.

XIV. A corresponding provision in the Organic Act provides

the same protections. See 48 U.S.C. § 1421b(e). To determine

whether an identification procedure violates a defendant’s due

process rights, a court must consider “whether under the

‘totality of the circumstances’ the identification was reliable

UNITED STATES v. DRAKE 12839
even though the confrontation procedure was suggestive.”

Neil v. Biggers, 409 U.S. 188, 199 (1972). The “factors to be

considered . . . include the opportunity of the witness to view

the criminal at the time of the crime, the witness’ degree of

attention, the accuracy of the witness’ prior description of the

criminal, the level of certainty demonstrated by the witness at

the confrontation, and the length of time between the crime

and the confrontation.” Id. at 199-200; see also United States

v. Jones, 84 F.3d 1206, 1209-10 (9th Cir. 1996). 

[17] Applying these factors here, we hold that the show-up

following the traffic stop was not impermissibly suggestive.

Though the robbery took place in less than one minute, the

district court found that “Ms. Guzman had ample opportunity

to view the robber as they were standing face to face in close

proximity to each other.” The court also found that “it is reasonable to conclude that Ms. Guzman’s attention [was] fully

focused on the robber, especially because she was fully aware

that she was being robbed at gun point.” Though Guzman significantly underestimated Drake’s height, the district court

pointed out that Guzman’s initial description of the robber’s

age, complexion, and clothing matched Drake’s physical

characteristics. In addition, the court emphasized that Guzman

“positively identified” Drake and that the show-up took place

within forty minutes of the robbery. We cannot say that these

factual determinations are “clearly erroneous.” 

Drake argues that the show-up was impermissibly suggestive because “there was a clear directive to Ms. Guzman that

the person she was about to view was the robber. Nothing

could be more suggestive than to have a uniformed officer tell

the victim of a crime that officers have just caught the perpetrator for her to identify.” Drake also emphasizes that he was

handcuffed and surrounded by uniformed police officers

when Guzman arrived to make the identification. 

These facts standing alone, however, do not compel us to

find a pretrial identification impermissibly suggestive. See

12840 UNITED STATES v. DRAKE
United States v. Kessler, 692 F.2d 584, 585-86 (9th Cir. 1982)

(“While it is the better practice not to refer to the subject of

a show-up as a ‘suspect’ . . . the reference by itself is not an

impermissible suggestion. The use of handcuffs or other indicia of custody will not invalidate a show-up, at least where

necessary for the prompt and orderly presentation of the suspect, consistent with protection of the officers and witnesses.”).

B

[18] We likewise conclude that the identification based on

the photo spread was not impermissibly suggestive. As discussed above, “the opportunity of the witness to view the

criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the

criminal, [and] the level of certainty demonstrated by the witness at the confrontation” also weigh in favor of admitting the

photo spread identification. Biggers, 409 U.S. at 199. Only

the last factor identified in Biggers, the length of time

between the crime and the confrontation, differs from the

analysis of the show-up identification. Here, four days separated the robbery from the photo spread identification. This

was not long enough to call the identification’s accuracy into

question. Indeed, Biggers permitted an identification to go to

the jury even when seven months separated the crime from

the confrontation. Biggers, 409 U.S. at 201. 

V

Finally, we address Drake’s claim that the loss of the digital surveillance video violated his due process rights. 

The Supreme Court has long held that police officers must

disclose exculpatory evidence to criminal defendants. Brady

v. Maryland, 373 U.S. 83, 87 (1963). To rise to the level of

a due process violation when potentially exculpatory evidence

is destroyed, the “evidence must both possess an exculpatory

UNITED STATES v. DRAKE 12841
value that was apparent before the evidence was destroyed,

and be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available

means.” California v. Trombetta, 467 U.S. 479, 489 (1984).

[19] Neither of these conditions is met here. The exculpatory value of an item of evidence is not “apparent” when the

evidence merely “could have”exculpated the defendant. Arizona v. Youngblood, 488 U.S. 51, 56 n* (1988). The digital

recording of the robbery here was far from clearly exculpatory; indeed, it is possible that it would have further incriminated Drake. Moreover, comparable evidence was plainly

available: fourteen still images of the robbery were preserved

and the officers were available to testify to the contents of the

recording.

VI

For the foregoing reasons, Drake’s conviction is

AFFIRMED. 

12842 UNITED STATES v. DRAKE