United States v. Garcia

59 F.4th 1059

Opinion

Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 8, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 20-1386

JOSHUA OMAR GARCIA,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00358-CMA-1) _________________________________

J. Bishop Grewell, Assistant United States Attorney (Matthew T. Kirsch, Acting United States Attorney, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.

Shira Kieval, Assistant Federal Public Defender, (Virginia L. Grady, Federal Public Defender, Jacob Rasch-Chabot, Assistant Federal Public Defender, and Joshua Omar Garcia with her on the brief), Denver, Colorado, for Defendant-Appellee. _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

CARSON, Circuit Judge. _________________________________

Violating a defendant’s Sixth Amendment speedy-trial right compels a severe

remedy: dismissing the indictment with prejudice. But a defendant cannot avail

himself of that protection when he did not diligently assert that right. After a Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 2

shoplifting incident at a Colorado Kmart and a shootout two days later, the federal

and state governments both indicted Defendant Joshua Garcia. The federal

government waited nearly twenty-three months to prosecute Defendant, while the

state prosecution ran its course. The district court held the delay violated

Defendant’s Sixth Amendment right to a speedy trial and dismissed the federal

indictment against him. Exercising jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3731, we reverse.

I.

On July 3, 2017, Defendant allegedly shoplifted from a Kmart in Aurora,

Colorado. When he exited the store, Kmart employees, who had been watching him,

confronted him. While talking with the employees outside the store, Defendant

brandished and discharged a firearm at the ground before fleeing. Authorities did not

apprehend Defendant until two days later, when they responded to a complaint of a

man with a gun in a trailer. During his arrest, Defendant allegedly shot at law-

enforcement officers. The District Attorney’s Office filed a complaint against

Defendant on July 11 based on the July 5 incident.

Then, on September 27, a federal grand jury returned a three-count indictment

against Defendant based on the July 3 events. The indictment alleged that Defendant

possessed a weapon in violation of 18 U.S.C. § 922(g)(1), robbed a Kmart store in

violation of 18 U.S.C. § 1951(a), and knowingly used, brandished, or discharged a

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

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§ 924(c)(1)(A)(i), (ii), and (iii). The indictment remained sealed for almost two years

while Colorado’s case against Defendant proceeded in state court.

In state court, Defendant pleaded guilty to first-degree assault, and the court

sentenced him to twenty-three years’ imprisonment on August 16, 2019. The day

before, the government moved for a writ of habeas corpus ad prosequendum,

requesting authorities bring Defendant from the state detention facility into the

United States Marshal’s custody to begin prosecuting the federal case.1 The district

court granted that motion, unsealed the federal indictment, and on August 20, 2019,

Defendant made his initial appearance in federal court.2

Defendant filed three motions to exclude 210 days from the speedy-trial clock,

all of which the district court granted. And, eight months after his initial appearance

in federal court, Defendant moved to dismiss the indictment with prejudice for

violation of his Sixth Amendment right to a speedy trial. The district court granted

Defendant’s motion and dismissed the indictment against him, finding that all factors

set forth in Barker v. Wingo, 407 U.S. 514, 530–32 (1972), favor Defendant and that

the government violated his right to a speedy trial. The district court determined that

the delay prejudiced Defendant because it resulted in lost evidence and an

1 Defendant contends that he spent the entire twenty-three-month pretrial period incarcerated only because of the federal detainer preventing him from bonding out of state custody, because though he could not afford the bond at first, his family committed to raising the money. 2 Defendant also asserts that he did not learn of the sealed federal indictment against him pending in the District of Colorado until May 2019. 3 Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 4

unnecessary two years’ pretrial incarceration for him. The government then moved

for reconsideration, but the district court denied that too because the government had

not shown that the court “misapprehended the facts, a party’s position, or the law.”

United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014). The government

appeals both the indictment’s dismissal and the denial of its motion for

reconsideration.

II.

“The Sixth Amendment guarantees that ‘[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial.’” United States v. Jumaev,

20 F.4th 518, 532 (10th Cir. 2021) (quoting United States v. Medina, 918 F.3d 774,

779 (10th Cir. 2019)). Although we have described the speedy-trial right as

“somewhat amorphous,” the remedy for violating that right is “severe: dismissal of

the indictment with prejudice.” United States v. Black, 830 F.3d 1099, 1111 (10th

Cir. 2016) (cleaned up). To determine whether a delay violates a defendant’s Sixth

Amendment speedy-trial right, we apply the four-part balancing test set forth by the

Supreme Court in Barker. Jumaev, 20 F.4th at 532. “The four factors are: ‘(1) the

length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right;

and (4) prejudice to the defendant.’” Medina, 918 F.3d at 780 (quoting United States

v. Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006)).

We review the legal question of whether the government violated a

defendant’s Sixth Amendment right de novo “and any underlying district court

factual findings for clear error.” United States v. Frias, 893 F.3d 1268, 1272 (10th

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Cir. 2018) (citing Black, 830 F.3d at 1111). “Clear error exists when a factual

finding lacks any factual support in the record, or after reviewing the evidence, the

record convinces us the district court made a mistake.” United States v. Rico, 3 F.4th

1236, 1238 (10th Cir. 2021) (citing United States v. Hooks, 551 F.3d 1205, 1216

(10th Cir. 2009)).

III.

Under Barker’s test to determine whether a delay violates the Sixth

Amendment, “[n]o single factor is determinative or necessary”; we consider “all

four . . . to determine whether a violation has occurred.” Black, 830 F.3d at 1111

(quoting United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010)).

A.

The district court correctly determined that the first factor favors Defendant;

and the government agrees. The length-of-delay factor typically serves as a

gatekeeper. Frias, 893 F.3d at 1272. “We examine the other factors only when the

delay is presumptively prejudicial,” Jumaev, 20 F.4th at 532 (quoting Frias, 893 F.3d

at 1272)—a requirement that “[d]elays approaching one year generally satisfy,”

United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) (citing Doggett v.

United States, 505 U.S. 647, 652 n.1 (1992); Jackson v. Ray, 390 F.3d 1254, 1261

(10th Cir. 2004)). “The delay period starts with the indictment or arrest, whichever

comes first.” Jumaev, 20 F.4th at 533 (quoting United States v. Nixon, 919 F.3d

1265, 1269 (10th Cir. 2019)). And it ends at conviction. Id. (citing Betterman v.

Montana, 578 U.S. 437, 441 (2016)).

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The grand jury returned the indictment against Defendant on September 27,

2017, and federal authorities arrested him on August 20, 2019, when the district court

unsealed the indictment. The parties do not contest the district court’s determination

that Defendant’s rights attached when the government filed the sealed indictment on

September 27, 2017—twenty-three months before Defendant’s arrest. Twenty-three

months is presumptively prejudicial. See Batie, 433 F.3d at 1290 (“Delays

approaching one year generally satisfy the requirement of presumptive prejudice.”).

And the district court determined that “the delay stretche[d] beyond the bare

minimum needed to trigger judicial examination of the claim.” Seltzer, 595 F.3d at

1176 (quoting Doggett, 505 U.S. at 652) (stating that when the accused makes a

showing that the delay is presumptively prejudicial, “the court must then consider, as

one factor among several, the extent to which the delay stretches beyond the bare

minimum needed to trigger judicial examination of the claim.) The government does

not dispute this determination. Thus, the length of delay favors Defendant.

B.

The second Barker factor focuses on the reason for the delay. This factor is

especially important. Seltzer, 595 F.3d at 1177 (citing United States v. Loud Hawk,

474 U.S. 302, 315 (1986)). Both the prosecutor and the court have an affirmative

constitutional obligation to timely try a defendant. Jumaev, 20 F.4th at 533 (citing

United States v. Muhtorov, 20 F.4th 558, 639 (10th Cir. 2021)). Thus, the

prosecution must explain the cause of the pretrial delay. Id. (citing Muhtorov, 20

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F.4th at 639). A deliberate attempt to delay trial to hinder the defense weighs heavily

against the government. Seltzer, 595 F.3d at 1177 (citing Barker, 407 U.S. at 531).

A more neutral reason, such as negligence or overcrowded courts, weighs less

heavily against the government—though the government still bears responsibility for

“such circumstances.” Id. (quoting Barker, 407 U.S. at 531). But a valid reason, like

a missing witness, justifies appropriate delay. Id. (citing Barker, 407 U.S. at 531).

The government asserts it delayed prosecuting Defendant until Colorado

completed its case against him for, among other things, reasons of comity. Waiting

for the completion of another sovereign’s prosecution can justify a delay in some—

but not all—cases. See id. at 1178. The government must explain why it needed to

wait in a particular case. Frias, 893 F.3d at 1272. Three subfactors can tip the

second Barker factor in favor of the government: when (1) the charges or proceedings

overlap, (2) “concurrent proceedings would . . . be logistically cumbersome,” or (3)

the defendant faces complex charges. Medina, 918 F.3d at 781 (quoting Seltzer, 595

F.3d at 1178).

The district court determined the government failed to show this case’s

circumstances necessitated the delay. It found: (1) the federal and state proceedings

minimally overlapped because only Defendant’s involvement and discharge of the

same firearm linked the July 3 and 5 incidents; (2) prosecuting both cases

simultaneously would not unduly burden the government because each sovereign

could work together to transfer Defendant from its custody and document the

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firearm’s chain-of-custody transfers; and (3) the charges were not complex because

the facts surrounding the July 3 incident are straightforward.

The government argues Defendant’s state and federal charges significantly

overlapped because the first count—possession of a firearm by a felon—included

Defendant’s possession of the firearm on July 5 when he fired at the police officers,

the event underlying Colorado’s case. And the government notes that if the state had

prosecuted Defendant for illegal gun possession, the United States likely would not

have needed to bring its own gun-possession charge. The government also contends

that concurrent state and federal proceedings would have caused logistical difficulties

due to the possibility of competing hearings, trials, and demands for witnesses and

custody of Defendant, along with chain-of-custody issues with the firearm and the

potential for inconsistent testimony. Last, the government asserts that Defendant’s

attempted murder charge in the state case was complex because murder cases are

inherently complex. See Nixon, 919 F.3d at 1272. And attempt crimes add the

requirement of proving a substantial step “strongly corroborative of the firmness of

the actor’s purpose to complete the commission of the offense,” Colo. Rev. Stat.

Ann. § 18-2-101(1), making an attempted-murder charge arguably more complex.

The district court erred in finding minimal overlap between the federal and

state cases against Defendant. It detailed that, because the federal charges relate only

to the July 3 shoplifting incident and the state charges involve only the July 5

shooting-at-law-enforcement incident, the two cases have little in common. But

count one of the federal indictment charges Defendant with unlawfully possessing a

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firearm in violation of 18 U.S.C. § 922(g)(1) from July 3, 2017, up to and including

July 5, 2017. So the district court incorrectly determined that the federal charges did

not involve the July 5 firearm possession.

The district court also gave insufficient weight to the difficulties that

prosecuting Defendant’s federal and state cases simultaneously would place on the

state and federal governments. In this Circuit, the undue burden inquiry has focused

on varying factors, including the avoidance of jurisdictional conflicts and the burden

of transporting the defendant to federal court. So, where dual court proceedings will

require “ping-ponging [the defendant] between state and federal custody,” we have

held that the government could permissibly delay proceedings. Nixon, 919 F.3d at

1270. Similarly, where concurrent proceedings will pose a “logistical ordeal”

because the defendant is in state custody many miles from the federal courthouse, we

have upheld a delay in proceedings. Medina, 918 F.3d at 789. But where the state is

holding a defendant only five blocks from the federal courthouse, we have found the

burden of making a defendant appear in federal court less compelling. Seltzer, 595

F.3d at 1178.

In this case, the state held Defendant twenty-four miles from the federal

courthouse. So, if the government sought to justify the delay based upon the

difficulty of transport from state custody to the federal courthouse, it might be a close

call. But the government’s justification in this case rests more on jurisdictional

conflicts, issues of comity, and the logistical ordeal of transporting not only

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defendant, but evidence critical to both cases.3 And that argument makes the case

more akin to Nixon, where the state defendant resided within one and a half miles of

the federal courthouse, but the “federal authorities weren’t waiting on the state case

to save on mileage or time; they were waiting in order to avoid jurisdictional

conflicts over custody.” Nixon, 919 F.3d at 1271. Thus, like we did in Nixon, we

conclude the delay caused by the government’s decision to wait until the state

prosecution finished to avoid jurisdictional conflicts was permissible.

And the district court also erred in finding the charges against Defendant were

not complex. Our authorities demonstrate that determining whether charges are

complex can require a detailed inquiry. In Seltzer, we determined the defendant’s

charges—“felon in possession of a firearm and four counts of counterfeiting (all of

which arose out of a single incident)”—lacked complexity. Medina, 918 F.3d at 789

(citing Seltzer, 595 F.3d at 1173, 1175, 1178). But in Medina, which involved

“multiple and different federal financial crimes that occurred in several states,”

including bank fraud, mail theft, identify theft, and possession of a firearm by a

felon, we held the charges were complex. Id. at 778, 789. And we have generally

recognized that state murder cases are inherently complex and can support the federal

government deferring to the state proceeding. Nixon, 919 F.3d at 1272.

3 Physical possession of the firearm would have been necessary for both prosecutions; and transporting the firearm between jurisdictions would lead to chain- of-custody issues and an increased logistical burden on both sovereigns. True, custody logs could mitigate the potential for harm stemming from the transfers. But the fact that a burden can be, in part, mitigated, does not undermine its legitimacy. 10 Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 11

The district court distinguished Nixon because the state charged Defendant

with attempted murder (as opposed to murder) and Defendant ultimately pleaded

guilty to assault. But the crime to which Defendant pleaded is not relevant to the

complexity inquiry in this case because his plea did not take place until twenty-one

months into the twenty-three-month delay. During the delay, the government could

not have known that either the state or Defendant would agree to Defendant pleading

to assault. So, for purposes of our inquiry, we must analyze the complexity issue

based upon the crime with which the state charged him: attempted murder.

Though attempted murder does not fall squarely within Nixon’s categorization

of murder charges as complex, we conclude the charge at least minimally meets the

definition of complex as described in Nixon. Indeed, attempted murder is arguably

more complex because to prove an attempt crime, the government must show the

intent to commit the substantive offense plus the “commission of an act which

constitutes a substantial step towards commission of the substantive offense.” United

States v. Vigil, 523 F.3d 1258, 1267 (10th Cir. 2008) (quoting United States v.

Smith, 264 F.3d 1012, 1015 (10th Cir. 2001)); see also Colo. Rev. Stat. Ann. § 18-2-

101(1). Thus, we hold the second factor weighs in the government’s favor.

C.

The district court also erred when it determined the assertion-of-his-right

factor favors Defendant. “Under the third Barker factor, we look to ‘whether the

defendant has actively asserted his right to a speedy trial.’” Black, 830 F.3d at 1120

(quoting Batie, 433 F.3d at 1291). While it matters that a defendant asserted the

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right, we also consider “the frequency and force of the objections.” Id. (quoting

United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975)). “The third Barker

factor weighs against a defendant who weakly asserts his speedy-trial right long after

he could have, but the factor weighs in favor of a defendant who early, frequently,

and forcefully asserts his right.” Id.

Frias illustrates the type of assertion that results in weighing this factor in

favor of the defendant. There, the defendant’s federal indictment remained sealed for

two years after her state-court sentencing and she moved to dismiss the indictment

less than two months after her initial appearance in federal court. We held this factor

slightly favored the defendant because we doubted she could have asserted her

speedy-trial rights earlier. Frias, 893 F.3d at 1271, 1273. But in Nixon, we held this

factor favored the government, even though it waited nearly a year to arraign the

defendant, because he knew within two weeks of his federal indictment that the

federal government was charging him but waited almost a year after indictment to

invoke his right to a speedy trial. 919 F.3d at 1269, 1272–73.

In this case, though the federal grand jury indicted Defendant on September

27, 2017, the federal indictment remained sealed until August 20, 2019, while

Colorado’s case against Defendant proceeded in state court. But Defendant’s

attorney in the state-court proceedings contacted the U.S. Attorney’s Office

(“USAO”) on May 17, 2019 to inquire about the existence of a federal case. The

USAO did not provide any details about the substance of the federal charges, but it

explained that the federal case would begin when the state court case ended. Still,

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Defendant did not move to dismiss the federal indictment against him for violation of

his speedy-trial rights until nearly a year after the discussion—and eight months after

his initial appearance in federal court.

The district court determined this factor favored Defendant because he only

had a general impression that he could face federal charges and he could not have

gained any additional information because the indictment was sealed. But the

government does not challenge Defendant’s decision not to file a speedy-trial motion

before the district court arraigned him in August 2019. Rather, the government

argues that this factor favors it because, after appearing in federal court, Defendant

waited eight months to file his speedy-trial motion and filed three continuances

seeking to exclude 210 days from the speedy-trial clock.

At bottom, the third “factor weighs against a defendant who requests

continuances and waits for months to assert his speedy trial right.” United States v.

Larson, 627 F.3d 1198, 1208 (10th Cir. 2010) (citing United States v. Toombs, 574

F.3d 1262, 1274–75 (10th Cir. 2009)). And, as in Nixon, where the defendant waited

nearly a year to file his speedy-trial motion even though the indictment was available

to him, Defendant waited eight months and requested three continuances before filing

his motion after the court unsealed the indictment. Thus, we conclude the third

Barker factor weighs in favor of the government.

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D.

Finally, the district court erred in determining that the fourth Barker factor

weighed in Defendant’s favor. As the individual claiming the Sixth Amendment

violation, Defendant must prove the delay prejudiced him. See Black, 830 F.3d at

1121 (citing Seltzer, 595 F.3d at 1179). Most of the time, failing to specify prejudice

will “eviscerate the defendant’s claim.” United States v. Margheim, 770 F.3d 1312,

1329 (10th Cir. 2014). We evaluate prejudice by considering the interests that the

speedy-trial right protects: (i) preventing oppressive pretrial incarceration; (ii)

minimizing the accused’s anxiety and concern; and (iii) minimizing the possibility of

impairing the defense. Seltzer, 595 F.3d at 1179 (citing Toombs, 574 F.3d at 1275).

The third interest—impairing the defense—is the most serious “because the

inability of a defendant to adequately prepare his case skews the fairness of the entire

system.” Id. at 1179–80. And “[b]ecause the seriousness of a post-accusation delay

worsens when the wait is accompanied by pretrial incarceration, oppressive pretrial

incarceration is the second most important factor.” Id. at 1180 (quoting Jackson, 390

F.3d at 1264). Some cases of extreme delay excuse the defendant’s obligation under

this factor to show specific evidence of prejudice, but generally the court requires at

least a six-year delay before allowing the delay itself to constitute prejudice. Id. at

1180 n.3 (citing Jackson, 390 F.3d at 1263).

The district court determined that Defendant suffered prejudice because:

(1) the delay caused the loss of relevant evidence; and (2) Defendant experienced an

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unnecessarily prolonged period of pretrial incarceration. We conclude that neither

determination was correct.

1.

The district court determined that the government’s delay caused the loss of

video evidence because the Kmart where the shoplifting incident occurred closed

during the two years that the federal indictment was sealed. We evaluate whether the

loss of evidence during a delay amounts to prejudice by considering “(1) the

defendant’s ability to demonstrate with specificity how the evidence would have

aided his defense; (2) whether the government’s delay in bringing the defendant to

trial caused the evidence to be actually lost; and (3) whether the defendant took

appropriate steps to preserve the evidence.” Medina, 918 F.3d at 781–82 (citing

Jackson, 390 F.3d at 1264–66).

Here, Defendant fails to carry his burden at the second element: “whether the

government’s delay . . . caused the evidence to be actually lost.” Id. at 781 (citing

Jackson, 390 F.3d at 1264–66). To satisfy the second element, “the defendant must

show the government’s delay caused evidence to be unavailable” and that “the

evidence was actually irretrievable for trial.” Id. at 782 (citing Jackson, 390 F.3d at

1266; United States v. Vaughan, 643 F. App’x 726, 732 (10th Cir. 2016)). “This

showing can include the defendant’s efforts to locate the evidence and why those

efforts were unsuccessful.” Id.

The Kmart where the incident took place closed approximately four months

after the July 3 incident. And, based in part on this fact, the district court presumed

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(and ultimately determined) that the loss was attributable to the government’s delay

because of the likelihood the video recordings would have been available as evidence

if this case had been prosecuted promptly.

But Defendant never put forth evidence showing the video evidence would

have been available at any time, even if the Kmart had not closed—and this was his

burden. See Black, 830 F.3d at 1122. Contrary to the manner in which the district

court considered the issue, it was not the government’s burden to disprove the loss of

video evidence. Relatedly, Defendant makes no assertion that the lost footage would

have been available if the government did not violate the speedy trial clock. The

only assertion he makes is how the evidence—if available—could have helped his

case. Those are distinct claims. As our case law makes clear, “the defendant must

show the government’s delay caused evidence to be unavailable.” Medina, 918 F.3d

at 782 (citing Jackson, 390 F.3d at 1266). Defendant did not make that showing.4

2.

The district court also determined that Defendant experienced an unnecessarily

prolonged period of incarceration because the federal detainer prevented him from

bonding out in his state case. According to the district court, Defendant presented

4 Indeed, neither side presented evidence to the district court on the motion to dismiss regarding the availability of the video footage. Then, on the motion for reconsideration of the district court’s grant of the motion to dismiss, the only evidence before the district court suggested that Defendant could not show the government’s delay caused the evidence to be unavailable, because the video evidence was deleted thirty-six days after the July 3 incident and before the federal grand jury returned the indictment. 16 Appellate Case: 20-1386 Document: 010110810027 Date Filed: 02/08/2023 Page: 17

compelling evidence that his family started gathering funds to post bond when they

learned that the federal detainer prevented him from bonding out of state custody.

Thus, by waiting for the state case to conclude before beginning the federal

prosecution and placing a federal detainer on him, the government assured that

Defendant would be in custody until he was brought into federal custody. Relying on

Seltzer and our recognition that “prolonged pretrial incarceration is a well-

established type of prejudice that a defendant may rely upon,” the district court

determined the fourth Barker factor weighed heavily in Defendant’s favor. Seltzer,

595 F.3d at 1180. We disagree.

In our view, the district court’s determination overlooks two key items that

distinguish this case from Seltzer: (1) a twenty-three-month delay does not constitute

presumptively extreme delay, see Toombs, 574 F.3d at 1275; and (2) the state court

gave Defendant credit for his pretrial incarceration against his twenty-three-year state

sentence, thus mitigating the potential oppressive effects of incarceration, see, e.g.,

Hakeem v. Beyer, 990 F.2d 750, 762 (3d Cir. 1993) (“Credit for time served cannot

cure every unexcused delay but where the defendant has not pointed to any evidence

of additional, specific prejudice flowing from the delay, we are unwilling to infer

prejudice based on incarceration that the defendant would ultimately have had to

serve solely because fourteen and one-half months had elapsed between arrest and

trial.”); Gray v. King, 724 F.2d 1199, 1204 (5th Cir. 1984) (explaining “credit for the

time so served” “mitigate[s] the potential oppressive effects of this incarceration”).

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Moreover, as in Toombs, “[e]ven assuming . . . prevention of oppressive

pretrial incarceration and minimization of the accused’s anxiety and concern[] weigh

in [Defendant’s] favor, the third, and most important [interest (impairing the

defense)], does not.” 574 F.3d at 1275. That is, pretrial detainment alone (that is not

presumptively extreme) is insufficient proof of prejudice. Under these

circumstances, without evidence that the defense was hindered as a result of the

delay, the fourth Barker factor simply cannot weigh in Defendant’s favor.

E.

In sum, the parties concede that the first factor, the length of the delay, favors

Defendant. But the second factor, reason for the delay, and third factor, assertion of

the speedy-trial right, favor the government because the government justified the

delay and Defendant waited eight months and requested three continuances before

moving to dismiss the indictment for violation of his Sixth Amendment speedy-trial

right. The fourth factor, prejudice, also favors the government because Defendant

failed to carry his burden of showing that evidence was lost because of the delay.

Although no single factor is dispositive, “[a]bsent extraordinary circumstances,

Barker counsels us not to find a violation of the right to a speedy trial when the

defendant’s actions indicate he had no desire for a speedy trial.” Larson, 627 F.3d at

1211 (quoting Toombs, 574 F.3d at 1276); see also Jumaev, 20 F.4th at 545–46

(holding that the defendant’s speedy-trial claim fails where factors one and four

weigh in his favor and factors two and three weigh against him because “with the

third factor weighing against Jumaev, his speedy trial claim fails”). Here, the

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balance of factors favors the government and—more importantly—we echo the

Supreme Court’s reluctance to find a constitutional speedy-trial-right violation when

the defendant failed to adequately assert that right. See Barker, 407 U.S. at 536.

Thus, we hold that the delay did not violate Defendant’s speedy-trial right and the

district court improperly dismissed his indictment.

V.

The other issue on appeal is whether the district court erred in denying the

government’s motion for reconsideration of the grant of Defendant’s motion to

dismiss. But because we reverse and remand on the grant of the motion to dismiss in

the first instance, we do not reach the government’s appeal of the denial of its motion

for reconsideration.

For these reasons, we REVERSE the district court’s decision dismissing

Defendant’s indictment and REMAND for further proceedings consistent with this

opinion.