* The Government’s 10 February 2003 motion to supplement the

record on appeal is GRANTED for the 21 September 2001 status

conference minute entry and the 1 October 2001 continuance order; United States Court of Appeals

Fifth Circuit



## FILED

June 4, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 02-60524

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JAMES EDWARD FRYE,

also known as Sealed Defendant 2,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The Government’s interlocutory appeal presents two points:

our jurisdiction; and the district court’s ruling tha t the

Government may not seek the death penalty aga inst James Frye,

pursuant to finding that, by misrepresenting it would not seek the

penalty, the Government violated Frye’s Sixth Amendment right to a

speedy trial.

We have jurisdiction. And, because there has not been a

speedy trial violation, we need not address the proper remedy.

VACATED and REMANDED

. *it is DENIED for the remainder (three letters and an evaluation

form that are not part of the record in district court).

2 I.

Indicted in February 2001, Frye and Cooper were charged, inter

alia

, with the death-eligibl e offense of carjacking resulting in

death, in violation of 18 U.S.C. § 2119(3). Trial was set for that

May. Because of an April 2001 superseding indictment, it was reset for August.

By an unopp osed motion in early August, the Government was

granted a continuance until October because Cooper was undergoing

a competency examination th at would not be completed until after

the August setting. The order stated: “to deny the Motion would

deny both defendants and the United States adequate time to prepare

for trial and attend to pretrial matters necessitated by [Cooper’s

competency] examination”; “the ends of justice outweigh the right

of defendants and the public to a speedy trial”; and “the

defendants, by agreeing, have waived their rights to a speedy

trial”.

On 26 October 2001, the district court set a 15 January 2002

deadline for the Gove rnment to file its notice of intent to seek

the death penalty against Frye, Cooper, or both. Four days later,

on the joint motion of Frye and the Gover nment, trial was re-set

for 25 February 2002; the order stated that the continuance had

been requested “on grounds all counsel need additional time to3

adequately prepare for trial” and referenced Frye’s waiver of his

rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.

Two weeks later (15 November), the United States Attorney for

the Southern District of Mississippi requested permission from the

Attorney General to seek the death penalty for Frye and Cooper; a

meeting for that purpose was held at the Department of Justice

(DOJ) on 10 December 2001. Cooper’s counsel attended; Frye’s

participated by telephone (following video conference equipment

malfunction).

That same day (10 December), Frye ’s counsel, by motion

unrelated to the death penalty, stated that, if the Government

elected to se ek that penalty for Frye, it would be contrary to

prior representations by t h e Assistant United States Attorney

(AUSA) prosecuting the case; that, as Frye’s counsel had

“previously announced to this Court in a Status Co nference, the

expectation of the Government [and] counsel with regard to this

c ase is that it would not be tried as a death penalty case”.

A week later, this claim was repeated in more detail by

motion, addressed the next day at a hearing. Frye’s counsel

stated: although they had originally begun planning to defend

against the death penalty, the AUSA had assured them the Government

would not seek that penalty; accordingly, Frye’s counse l had not

prepared for tha t defense. Concerning the AUSA’s advising that

seeking the penalty had been recommended to the Attorney General at4

the 10 December meeting, the court’s position was that it had

“understood at [a] status conference that

... [the AUSA was] trying

to negotiate with Frye for a plea in exchange for his testimony as

to Cooper an d on that basis that you were not going to seek the

death penalty against Mr. Frye”.

On 15 January 2002, consistent with the deadline set by the 26

October order, the Government filed its notice of intent to seek

the death penalty for Cooper and Frye. The next day, the district

court severed their trials. (Not long thereafter, Cooper was tried

and found guilty, but the death penalty was not imposed; his

conviction was affirmed. U nited States v. Cooper

, 71 Fed. Appx.

298 (5th Cir. 2003) (unp ublished), c ert. petition filed

, No. 03-

8805 (8 October 2003).)

On 7 February 2002, Frye filed two motions: to dismiss due to

speedy trial violations; and to preclude the death penalty due to

prosecutorial misconduct. Ultimately, Frye’s trial was continued

to late July 2002.

By a comprehensive 20 May 2002 opinion and order, the motion

to dismiss was granted in part. That motion requested the court to

“dismiss the charges” against Frye. The district court understood

the motion as incorporating two requests: “that [for speedy trial

violations] the death penalty and/or the indictment should be

dismissed”.5

The court found: post-superseding indictment in April 2001,

trial had been set for 7 August 2001; because the AUSA represented

to the court and Frye’s counsel that the Government did not intend

to seek the death penalty for Frye, the court had not required the

Government to respond to Frye’s numerous motions filed between 30

May and 12 July 2001; and, based on Frye’s understanding that the

Government was not seeking that penalty, Frye had joined motions to

continue and waived his right to a speedy trial.

Based on these findings, the court found that, under the fourfactor analysis of Barker v. Wingo

, 407 U.S. 514 (1972), Frye’s

Sixth Amendment speedy trial right had been violated. It

recognized Frye’s waivers of the right, but found them only partly

valid. Because Frye’s counsel represented that the waivers had

been made on the basis of the Government’s death penalty

representations, the court found the waivers valid “with regard to

the s ubstantive statutory violations as charged” but not valid

“with regard to the death penalty phase”. The court, considering

the death penalty sentencing hearing prescribed by 18 U.S.C. §

3593, found “allowing such a hearing to proceed would violate

[Frye’s] right to a [speedy] trial under the Sixth Amendment”.

Accordingly, it grante d the motion to dismiss “insofar as the

Government may not seek the death penalty in this case”.

(Hereinafter, “dismiss the death penalty” and “the dismissal” refer

to this relief.) Concerning the other requested relief, the court6

denied the motion, based on claimed prosecutorial misconduct, to

preclude the death penalty; denied, as moot, an unrelated motion to

dismiss the death penalty; and denied or declined to reach all

other requested relief. Among the claims not considered were:

violation of the Speedy Trial Act; preclusion of the death penalty

because of prosecutorial misconduct; and ineffective assistance of

counsel because they relied on the AUSA’s representations (this

claim was ruled premature).

In mid-June 2002, the United States filed a notice of appeal

from the dismissal; Frye cross-appealed shortly thereafter.

(Although the record does not reveal the issues Frye wanted to

raise by his appeal, he later claimed in his motion in our court

seeking to dismiss the Government’s appeal that one issue was the

entire indictment’s not being dismissed on Sixth Amendment speedy

trial grounds.) On 29 July, the district court stayed proceedings

pending appeal. At the hearing on the Government’s stay-motion:

Frye’s counsel opposed a stay and requested a speedy trial; the

court announced that, if the dismissal were reversed, on remand it

would grant a continuance that might be requested by Frye; and his

counsel stated that, during the pendency of this appeal, they would

continue to prepare for a death penalty trial.

In April 2003 (after the Government’s opening brief had been

filed here), pursuant to Frye’s motion and in order to develop the

recor d on the facts underlying the dismissal, our court remanded

this case to district court “to reconstruct status conferences and7

for transmission of that reconstruction to this court to be

included on appeal”. That June, the district court held a hearing

for that purpose.

II.

Before we can address the dismissal, we must address our

jurisdiction.

A.

In October 2002, on motion by the Government, a motions panel

fo r our court dismissed Frye’s cross-appeal for lack of

jurisdiction and denied Frye’s motion to dismiss this app eal for

that same reason. That December, however, the Government filed a

notice with our court, presenting the question of our jurisdiction.

Although maintaining we have jurisdiction, the Government requested

that , if it is lacking, we remand to enable the Government to

remedy the jurisdictional defect. (The motions panel carried that

matter with the case for disposition by this panel in ruling on the

merits. Obviously, the alternative request to remand is rendered

moot by our holding that we have jurisdiction.)

Government appeals in criminal cases are addressed in 18

U.S.C. § 3731; it enumerates categories of actions from which the

Government may appeal. One category includes any “decision,

judgment, or order of a district court dismissing an indictment

...

or granting a new trial after verdict or judgment, as to any one or

more counts, or any part thereof, except that no appeal shall lie

where the double jeopardy clause of the United States Constitution8

prohibits further prosecution”. (The “or any part thereof” phrase

was added on 2 November 2002, subsequent to both the Government’s

notice of appeal and denial of Frye’s motion to dismiss but prior

to the Government’s jurisdictional notice. 21st Century Department

of Justice Appropriations Authorization Act, Pub. L. No. 107-273,

§ 3004, 116 Stat. 1758, 1805 (2002). Neither side has briefed this

addition. In any event, it does not alter our having jurisdiction,

discussed infra . If anything, it is further support for it.)

Section 3731 does not specifically provide for appeals from

orders, as in this case, that there would be no death penalty

sentencing hearing. On the other hand, it concludes: “The

provisions of this section shall be liberally construed to

effectuate its purposes”.

Before turning to quite recent precedent, it is hel pful to

review the development of Government appeals in death penalty

cases. U

nited States v. Woolard

, 981 F.2d 756 (5th Cir. 1993),

considering our jurisdiction to review an order striking the death

penalty, held: the order “effectively removed a discrete basis of

liability”, id

. at 757; and, because this had the practical effect

of a dismissal of an indictment (an order enumerate d in § 3731),

our court ha d jurisdiction, i d

. The Government’s December 2002

notice, however, raises a question of Woolard ’s application here.

In that notice, the Government notes — but does not adopt —

the position that Ring v. Arizona

, 536 U.S. 584 (2002), and United9

States v. Cotton

, 535 U.S. 625 (2002), req uire an indictment

authorizing the death pen alty to allege mental state and

aggr avating factors. According to the Government, Frye’s

indictment did not allege the aggravating factors. See 18 U.S.C.

§ 3592(c) (listing aggr avating factors for homicide, including

death during commission of another crime, as charged in Frye’s

indictment for the carjacking count). Therefore, according to this

position, if aggravating factors must be alleged in order for the

death penalty to be authorized, then dismissing that penalty here

would not effectively dismiss a portion of Frye’s indictment. (In

its notice, the Government urges several bases for jurisdiction in

addition to § 3731.)

Some courts have accepted this position, see United States v.

Allen

, 357 F.3d 745 (8th Cir. 2004), vacated and reh’g granted

, 11

May 2004. On the other hand, both sides recognize that our court

earlier stated: “ R ing did not hold that indictments in capital

cases must all ege aggravating and mental state factors”. U nited

States v. Bernard

, 299 F.3d 467, 488 (5th Cir. 2002), cert. denied

,

539 U.S. 928 (2003). In B erna rd , however, the claim that an

indictment m ust allege such factors was reviewed only for plain

error; arguably, the above quotation is dictum

.

In any event, our very recent decision in United States v.

Robinson

, No. 02-10717, 2004 WL 790307 (5th Cir. 14 Apr. 2004),

makes reliance on Woolard inapposite. In R obinson (in which the10

Government conceded that the factors must be alleged in a death

penalty indictment, id

. at *2), we held: “[T]he government is

required to charge, by indictment, the statutory aggravating

factors it intends to prove to render a defendant eligible for the

death penalty”. I d

. at *3. Because Frye’s indictment did not

allege the factors, the order of the district court may not have

had the practical effect of dismissing a portion of an indictment.

Therefore, we do not decide appealability on the basis of Woolard ’s

reading of orders enumerated in § 3731.

Instead, we have jurisdicti on because § 3731 has been

construed to be broader than the list it enumerates. In reviewing

the history of government appeals in criminal cases, United States

v. Wilson

, 420 U.S. 332 (1975), held: in enacting § 3731,

“Congress intended to remove all statutory barriers to Government

app eals and to allow appeals whenever the Constitution would

perm it”. Id . at 337; s ee 18 U.S.C. § 3731 (as quoted earlier,

authorizes appe als from a “decision ... dismissing an indictment

... except that no appeal shall lie where the double jeopardy

clause of the United States Constitution prohibits further

prosecution”); United States v. Duncan , 164 F.3d 239, 241-42 (5th

Cir. 1999 ). Therefore, our jurisdiction does not depend upon

fitting the dismissal into one of § 3731’s categories.

Again, the relevan t constitutional limitation is the double

jeopardy clause. S ee Wilson

, 420 U.S. at 338-39; 18 U.S.C. § 373111

(barring appeals where prohibited by the double jeopardy clause).

A jury has not been empaneled and sworn; therefore, jeopardy has

not attached. S ee United States v. Mann

, 61 F.3d 326, 330 (5th

Cir. 1995), cert. denied , 516 U.S. 971, 1094, 1118 (1996). There

can be no double jeopardy concern. I d

. As a result, the

Constitution is not violated by this appeal from the order

dismissing the death penalty; we have ju risdiction. S ee United

States v. Quinones

, 313 F.3d 49, 57 (2d Cir. 2002) (citing cases),

cert. denied , 124 S. Ct. 807 (2003).

B.

The Sixth Amendment affords Frye “the right to a speedy

...

trial”. U.S. C O NST

. amend. VI. At issue is that Sixth Amendment

right, not the Speedy Trial Act, 18 U.S.C. § 3161. “[A] claim

under the Speedy Trial Act differs in some significant ways from a

claim under the sixth amendment spe edy trial clause”. U nited

States v. Mehrmanesh

, 652 F.2d 766, 769 (9th Cir. 1981). B arker

did not prescribe specific speedy trial rules for federal

prosecutions; Congress did so with the subsequent Speedy Trial Act,

which was meant to guarantee a trial at least as timely as that

guaranteed by the Sixth Amendmen t. See 18 U.S.C. § 3173 (“No

provision of this chapter shall be interpreted as a bar to any

claim of denial of speedy trial as required by amendment VI of the

Constitution.”).12

I n dismissing the death penalty, the district court found:

the AUSA misrepresented that the Government was not going to seek

it for Frye; and this invalidated Frye’s speedy-trial-right waiver.

The misrepresentation found by the district court must be

considered in determining whether there was a Sixth Amendment

speedy trial violation. (Needless to say, our holding that there

was none does not alter the district court’s findings and concerns

about the not-seeking-death-penalty representations.)

Determining whether the Sixth Amendment speedy trial right has

been v iolated involves evaluating and balancing the earlier

referenced four factors identified in Barker ; they are: “(1) the

length of the delay, (2) the reason for [it], (3) the defendant’s

diligence in asserting his Sixth Amendment right, and (4) prejudice

to the defendant resulting from the delay”. U nited States v.

Cardona , 302 F.3d 494, 496 (5th Cir. 2002) (citing Barker ).

1.

Findings of fact made for Sixth Amendment s peedy trial

analysis are, of course, reviewed only for clear error. U nited

States v. Serna-Villarreal

, 352 F.3d 225, 230 (5th Cir. 2003),

cert. denied

, 124 S. Ct. 1896 (2004). Under that well-known

standard, “we defer to the findings of the district court unless we

are left with a def inite and firm conviction that a mistake has

been committed”. Payne v. United States , 289 F.3d 377, 381 (5th

Cir. 2002).13

The parties dispute our standard of review, however, for the

four -factors balancing. The Government maintains we review d e

novo ; but, it acknowledges our precedent can be read otherwise.

E.g., Davis v. Puckett

, 857 F.2d 1035, 1040-41 (5th Cir. 1988) (“In

evaluating the factors

, the district court w as not clearly

erroneous in deciding that Davis’s constitutional right to a speedy

trial had not been violated.” (emphasis added); “H aving run the

Barker balancing test, we conclude that the district court did not

clearly err in determining that Davis failed to show that his Sixth

Amendment rights were violated .” (emphasis added)); United States

v. Bergfeld

, 280 F.3d 486, 492 n.* ( 5th Cir. 2002) (Garwood, J.,

dissenting in part) (“We review the district court’s application of

the relevant [speedy trial] factors f or c lear error .” (emphasis

added; citing United States v. Lucien , 61 F.3d 366, 371 (5th Cir.

1995)). The Government asserts that these statements are best read

as referring only to the fact finding used for the ultimate

balanci ng decision; Frye, that we utilize the more deferential

clearly erroneous standard for that decision.

The earlier cases stated, without providing reasons, that they

were reviewing for clear error the district court’s decision on

whether the Sixth Amendment speedy trial right had been violated.

Davis

, quoted above, cited no authority in support of this standard

of review. D avis was cited in Robinson v. Whitley

, 2 F.3d 562, 56814

(5th Cir. 1993), cert. denied

, 510 U.S. 1167 (1994), in support of

the conclusion that the district court’s “overa ll evaluation” of

the speedy trial issue was not “clearly erroneous”. Robinson was

cited by the Bergfeld majority in support of the clear error

standard of review for a district court’s “findings in applying the

elements of this balancing test”. 280 F.3d at 488. And, B ergfeld

was cited recently in Serna-Villarreal

, 352 F.3d at 230, to support

reviewing only for clear error “a district court’s findings in

applying the elements of this [ Barker ] balancing test”. None of

the more recent cases which state that the district court’s fact

findings are reviewed for clear error state the standard of review

for the balancing itself.

Against this background, we note that, generally, a district

court’s balancing of factors, resulting in a decision, are akin to,

if not, conclusions of law, or at least rulings on mixed questions

of fact and law, reviewed de novo

. E.g., United States v. Soape

,

169 F.3d 257, 267 (5th Cir.) (claim that denial of subpoena

requests violated Sixth Amendment right to compulsory p r ocess

reviewed de novo )

, cert. denied

, 527 U.S. 1011 (1999).

Accordingly, it is arguable that plenary review should be given a

Sixth Amendment speedy trial decision. On the other hand, because

that decision is so fact specific, the clear error standard may

well fit the bill. We need not now resolve this question. Even15

assuming we review only for clear error, we reach the same result:

Frye’s Sixth Amendment speedy trial right was not violated.

2.

Barker explained that this Sixth Amendment right protected

three interests: “prevent oppressive pretrial incarceration”;

“minimize [accused’s] anxiety”; and “limit the possibility [of his]

defens e [being] impaired”. 407 U.S. at 532. Prejudice v el non

,

the last of the four factors used for balancing and deciding

whether that right has been violated, is to be evalu ated in the

l ight of these interests. I d

. Again, those four factors are:

delay-length; reason for it; diligence in asser ting right; and

prejudice from delay.

The B arker -analysis is undertaken only if delay-length is

sufficient to make it presumptively prejudicial. D oggett v. United

States

, 505 U.S. 647 (1992), explained that this delay-length

factor serves initially to determine whether a full B arker

analysis is required. “Simply to trigger a speedy trial analysis,

an accused must allege that the interv al between accusation and

trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay....” Id . at 651-52. Once that

threshold has been crossed, delay-length is balanced with the other

Barker factors. Delay-length plays an important role in the

balancing because, obviously, “the presumption that pretrial delay

has prejudiced the accused intensifies over time”. Id . at 652.16

If a court undertakes a full Barker -analysis, it evaluates the

first thr ee factors (delay-length; reason for it; diligence in

asserting right) in order t o determine whether prejudice will be

presumed or whether actual prejudice must be shown. S ernaVi llarreal , 352 F.3d at 231; B ergfeld

, 280 F.3d at 488. (If

prejudice is presumed, the Govern ment can overcome that by

“show[ing] that the presumption is extenuated ... or rebut[ting]

the presumption with evidence”. S erna-Villa rreal , 352 F.3d at

231.) Courts “weigh the first three B arker factors

... against any

prejudice suffered by the defendant du e to the delay in

prosecution”. I d

. at 230. In all of this, courts do n ot engage in

a rigid analysis, but engage in the “functional analysis of the

right in the particular context of the case”. B arker

, 407 U.S. at

522.

a.

In its 20 May 2002 dismissal order, the district court found:

for speedy trial purposes, events would be measured from the date

of the indictment (23 February 2001) by which Frye was first

charged with the death-eligible offense; ultimately, trial was set

for 22 July 2002; and, therefore, there was a 17-month delay from

indictment to anticipated trial. The court found this long enough

to be considered presumptively prejudicia l, requiring a full

Barker -analysis.17

The Government challenges this conclusion because the court

included the five and one-half month period between Frye’s two

February 2002 motions (to dismiss and to preclude) and the setting

that July. Absent that period, according to the Government, the

delay-length is only 111⁄2 months, negating the need for a full

Barker -analysis. S ee Knox v. Johnson

, 224 F.3d 470, 477 (5th Cir.

2000) (“delay of less than one year will rarely qualify as

‘presumptively prejudicial’”) (quoting Cowart v. Hargett , 16 F.3d

642, 646 (5th Cir. 1994)), cert. denied

, 532 U.S. 975 (2001). The

Government claims the district court could have set trial at any

point after receiving the February 2002 motions.

In considering this position, we no te that, as for other

speedy trial claims, it would be easier post-trial to evaluate the

merits of the claim. “As is reflected in the decisions of [the

Supreme] Court, most speedy trial claims, therefore, are best

considered only after the relevant facts have been developed at

trial.” U

nited States v. MacDonald

, 435 U.S. 850, 858 (1978).

Again, the July 2002 trial date was only anticipated.

In any event, there is no basis to use an end-point other than

that setting. Apart from the practical difficulty the district

court would have had in promptly setting trial after the February

2002 motions, there was no such request by the Government. “A

defendant has no duty to bring himself to trial; the [Government]

has that duty ....” B arker

, 407 U.S. at 527 (footnote omitted).18

On these facts, the period of time between the February motions and

July setting will not be exclu ded from the delay-length

consideration.

The delay was longer than our one-year guideline. Therefore,

the district court properly undertook a full Barker -analysis.

b.

For the following reasons, prejudice will not be presumed.

Accordingly, Frye must show actual prejudice.

(1)

The first of the factors is delay-length. The delay resulting

from this appeal is not included in this analysis. S ee United

States v. Loud Hawk

, 474 U.S. 302, 315 (1986) (“an interlocutory

appeal by the Governm ent ordinarily is a valid reason that

justifies delay”). Some of that time was consumed by our remand,

at Frye’s request

, to the district cou rt for the supplement-therecord hearing he requested. Moreover, he cross-appealed; but for

its dismissal, he would have had us consider his appeal.

Obviously, when evaluating delay-length, courts must consider

the complexity of, and facts for, each case. Barker , 407 U.S. at

530-31. The period between indictment and the Government’s notice

of appeal (late February 2001 to late June 2002) is approximately

16 months. Although long enough to prompt a full B arker -analysis,

it is not long en ough to weigh heavily in favor of presuming

prejudice. “Indeed, [our] Court and others generally have found19

presumed prejudice only in cases in which the post-indictment delay

lasted at least five years.” S erna-Villarreal

, 352 F.3d at 232

(citing cases). The facts at hand provide no reason to depart from

that guideline. For example, for a significant part of the period

(until mid-January 2002), Frye’s trial was join ed with Cooper’s,

who faced the death penalty.

(2)

The reason for the delay is the second of the factors

evaluated in determi ning whether prejudice is presumed. “A

deliberate attempt to delay the trial in order to hamper the

defen se should be weighted heavily against the government.”

Barker

, 407 U.S. at 531 (empha sis added). In this regard, the

district court found: the primary “reasons for the delay were the

Orders granting continuances”; they were granted because of Frye’s

agreement and waiver of rights; and “Frye and the Court were misled

into granting the con tinuances based on the repeated

representations by the Government that it was not recommending the

death penalty”.

The district court found that the misrepresentations were the

kind of “deliberate attempt to delay the trial in order to hamper

the defense”, including intentionally to delay to gain a tactical

advantage or harass, that concerned the Barker Court. It based

this in part on three additional findings: the misrepresentations

had helped the Government and hurt Frye because the Government20

continued to gather evidence to be used both at the DOJ meeting (to

determine whether death penalty would be sought) and at trial; it

did not provide Fry e with required discovery materials; and Frye

claimed h e had refrained from appealing discovery rulings by the

magistrate judge.

The Government conte nds that these findings are clearly

erroneous. But, they were based, in part, on the court’s

recollection of events and of its reasons for grantin g the

continuances; pursuant to our review of the record, they are not

clearly erroneous. The Government is correct, however, that these

findings do not equate with the kind of willful hampering of the

defense condemned in Barker

.

The first fact from which the district cour t concluded that

this factor weighed against the Government was that the Government

used the time further to investigate. While a delay to permit the

Government further to investigate the case is likely to harm a

defendant (and, in that sense, likely to hamper the defense),

reasonable investigative delay is not the kind of delay with which

the Barker Court was concerned. S ee Doggett

, 505 U.S. at 656. The

Barker Court was concerned with the Government’s delaying in order

to obtain an “ impe rmissible advantage at trial”. I d

. (emphasis

added). Under these facts, the two continuances obtained within

one year of the indictment were a permissible delay.21

The second fact from which the district court concluded this

factor weighed against the Government (not turning over evidence)

is discussed, infra

, as a claim that Frye was actually prejudiced.

As will be discussed, taken as true, it is inadequate to conclude,

pre-trial, that there has been a speedy trial violation.

The third fact from which the district court concluded that

this factor weighed against the Government was that Frye claimed he

had not appealed rulings by the magistrate judge because of the

death penalty representations. The district court’s findings are

inadequate to support it s conclusion for three reasons. First,

there is no finding that Frye actually refrained from such appeals.

Second, there is no finding that such appeals would have altered

the outcome. Third, there was no finding of a nexus between the

alleged misrepresentations, the alleged decision not to appeal, and

the speediness of trial. In the absence of such findings, it was

clearly erroneous for the dist rict judge to conclude that these

facts weighed against the Government.

There is inadequate reason to presume, on the basis of the

improperly induced continuances, that Frye will be prejud iced at

tria l (following this interlocutory appeal). Restated, the

continuances caused delay; but, it cannot be presumed that the

delay prejudiced (or will prejudice) Frye.

(3)22

The third of the factors to be evaluated for possible presumed

prejudice is the diligence with which Frye asserted his speedy

trial right. The district court found that, although there was no

speedy trial motion until February 2002, “it [was the court’s]

recollection

... that the issue was [earlier] raised informally in

at least one of the status conferen ces”; acknowledged the prior

waivers by Frye, but declined to enforce them because, in making

them, Frye had been “misled by the Government”; and found that the

right had been timely asserted.

The Government maintains: the court clearly erred in finding

Frye had been misled; therefore, his waivers are valid; and Frye

only asserted his right when it coul d be used to dismiss “the

charges”. Based on our review of the record, the district court

did not clearly err in finding either that Frye’s counsel had been

misled or that Frye’s waiver had, in part, been invalid; but, the

Government is correct that the court clearly erred when it found

that this factor weighed in Frye’s favor for presuming prejudice.

Under Fry e’s theory, but for the misrepresentations, his counsel

would have opposed the two continuances and demanded an earlier

trial. But, when his counsel determined that Frye had not been

given the benefit of his bargain (by the Government’s deciding to

seek the death penalty), counsel did not claim the speedy trial

right in order to obtain a speedy trial, but in order to have the

indictment dismissed.23

Barker discussed the ways in which the Sixth Amendment right

protects societal interests in general, as well as the defendant in

particular. “[T]here is a societal interest in providing a speedy

trial which exists separate from, and at times in opposition to,

the interests of the accused”. B arker

, 407 U.S. at 519. For this

reason, the amount of time that l apsed before Frye made a formal

request based on his speedy trial right cuts against presuming

prejudice. More importantly, the form in which Frye raised that

right weighs against him in two respects.

First, although the district court found that the “issue was

raised informally” before February 2002, it clearly erred in

finding, based on this, that Frye had then made the request

required of him. The discussion and awareness of the right is not

the relevant factor; the relevant factor is when and how a trial

request is made to the court.

Second, as noted, Frye did not seek a speedy trial in his

February 2002 motions. Rather, he raised the Sixth Amendment right

only when he sought a remedy for its cl aimed violation. “[A]n

assertion that charges be dismissed for a speedy trial violation is

not a value protected under Barker ”. Cowart , 16 F.3d at 647.

c.

Again, because prejudice is not presumed, Frye must show

actual prejudice. In that regard, the district court found Frye

was prejudiced in three ways: without the continuances, he would24

have been tried on 7 August 2001, before the Government could

obtain permission to seek the death penalty; because of the

misrepresentations, Frye had not conducted a mitigation

investigation; and during the period of delay, the Government

continued its preparation for the DOJ meeting to request permission

to seek t he penalty while withholding documents from Frye,

instructing witnesses not to talk to his counsel, and misle ading

counsel into not preparing a mitigation case.

As noted, Barker

identified three interests protected by the

speedy trial right: “to prevent oppressive pretrial

incarceration”; “to minimize anxiety and concern of the accused”;

and “to limit the possibility that the defense will be impaired”.

407 U.S. at 532. The district court found prejudice only with

respect to t he third interest — impairment of Frye’s defense.

Frye, however, now urges prejudice based on the other two interests

as well. We decline to address them; the district court did not

make findings with respect to them because they were not raised

there. (Acknowledging this, Frye claims the prejudice is “selfevident” and “obvious”.)

Again, it is easier for a defendant to show post-trial that he

was prejudiced to the extent necessary for a speedy trial violation

than to do so pre-trial. See Loud Hawk , 474 U.S. at 315

(“ possibility of prejudice is not sufficient to support

[defendants’] position that their speedy trial rights were25

vi olated” (emphasis added)); M acDonald

, 435 U.S. at 858 (“Before

trial, of course, an estimate of the degree to which delay has

impaired an adequate defense tends to be speculative.”). Based in

part on MacDonald (concerning Sixth Amendment), we stated the

following in United States v. Crouch

, 84 F.3d 1497, 1516 (5th Cir.

1996) (en banc) (concerning Fifth Amendment pre-indictment delay),

cert. denied

, 519 U.S. 1076 (1997): “Necessarily, then, a far

stronger showing is requi red to establish the requisite actual,

substantial prejudice pretrial than would be required after trial

and conviction”.

(1)

The Go vernment contends that the first prejudice finding by

the district court (trial would have taken place in August 2001

before Government could obtain permission to seek death penalty) is

speculative and against the procedures provided in the United

States Attorneys’ Manual (Manual). We agree that the court clearly

erred in this finding. (Accordingly, we need not review the fact

finding that Frye could have reached trial on 7 August 2001,

although we note, i nter alia

, numerous then-pending motions.

Moreover, earlier in its opinion, the district court stated that it

“[could not] say whether it would have denied the [pre-7 August]

motion[] for continuance[] had Frye objected to, or not joined in,

[it]”.) It is premature, at best, to find Frye has been prejudiced

by the fact that trial did not commence on 7 August 2001.26 (2)

The Government contends correctly that the second finding of

prejudice (no miti gation investigation because of

misrepresentations) is irrelevant to this speedy trial analys is.

An earlier t rial date w ould not have given Frye any more of an

opportunity for a mitigation investigation than he has had in this

case.

In that regard, the district court did not find Frye was

prejudiced because the Government is seeking the death penalty.

Instead, it found Frye was prejudiced because his attorneys had not

undertaken the mitigation investigation. The resulting prejudice

found was primarily because they were, therefore, unable to present

mitigation material in December 2001 to the DOJ Committee advising

the Attorney General on his death penal ty decision. (It was the

opportunity to present the material, not the outcome of the

presentation.) That Committee functions under procedures provided

in the Manual.

Each of the documents provided in support of a

recommendation to seek the death penalty and

any submissions by defense counsel, shall be

reviewed by a Committee appointed by the

Attorney General. Counsel for the defendant

shall be provided an opportunity to present to

the Committee reasons why the death penalty

should not be sought.

U NITED S TATES A TTORNEYS ’ M ANUAL § 9-10.050. For purposes of the issue

at hand, a latter part of that section provides:27 Subsequent to the initial Department of

Justice review

, the United States Attorney and

the Attorney General’s Committee shall review

any submission defense counsel chooses to

make. After considering the information

submitted, the Committee will make a

recommendati on to the Attorney General

concerning the application of the death

penalty to the case.

Id . (emphasis added).

N either side addresses this latter part of § 9-10. 050,

concerning s ubmittals post-initial review. Arguably, this part

permits the Committee to consider any material Frye chooses to

present, i ncluding subsequent to remand of this case to district

court. It is true another court has held that, consistent with the

disclaimer in the Manual, the protocol found in it does not create

enforceable rights. United States v. Lee , 274 F.3d 485, 493 (8th

Cir. 2001), c ert. denied

, 537 U.S. 1000 (2002). But, because we

are attempting, pre-trial, to evaluate prejudice vel non to Frye,

this latter part may provide him an opportunity to present

mitigation material he was not prepared to present in December

2001. Therefore, at this point in time, we cannot conclude he has

been prejudiced by his being unable to present it then.

The court also found p rejudice because of the delay caused

Frye in preparing to defend against the death penalty at trial. As

discussed, that opportunity remains, following this appeal. Frye

has not shown otherwise.

(3)28

For the third basis on which the district court found

prejudice (di s covery abuses during the delay), the Government

correctly contends that this does not amount to prejudice relevant

to a Sixth Amendment speedy trial analysis. As noted, the

Government’s continuing pr e paration during the delay does not

constitute prejudice. The district court’s finding, therefore, is

that the Government’s discovery abuses caused it. Even assuming

those abuses were prejudicial in some sense, they were not in the

sense of timeliness — of delaying trial.

In other words, if a criminal defendant did not obtain or

discover certain evidence in time for trial on one date, it is

generally most u nlikely that the Government would d elay trial in

order to attempt to prevent him from obtaining it in time for trial

at a later date. Again, Frye has not shown otherwise.

In sum, the district court clearly erre d in finding the

requisite actual prejudice. Frye has not made the strong showing

required to find, pre-trial

, that there has been a Sixth Amendment

speedy trial violation.

III.

For the foregoing reasons, the order prohibiting seeking the

death penalty is VACATED ; and this matter is REMANDED for further

proceedings consistent with this opinion.

VACATED and REMANDED