[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

A u g u s t 24, 2006

N o . 05-16869 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 03-00620-CR-JHH-TMP

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES CLARK BIBB,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Northern District of Alabama

(A u g u st 24, 2006)

B efo re DUBINA, HULL and KRAVITCH, Circuit Judges.

P E R CURIAM:

Jam es Clark Bibb appeals the district court's denial of his motion to dismiss

h is indictment, on the grounds that he suffered violations of the Sixth Amendment r ig h t to a speedy trial and his rights under Federal Rule of Criminal Procedure 5 ("R u le 5"). The district court properly denied the motion. Therefore, we affirm.

I. Background O n December 30, 2003, Bibb was indicted in the Northern District of A lab am a for possession of a firearm by a convicted felon, in violation of 18U.S.C.

§ 922(g). The indictment alleged that Bibb, a convicted felon, was found in p o ssessio n of a firearm in July 2003. A federal arrest warrant issued on January 2, 2004.

On July 15, 2005, during an unrelated traffic stop, Bibb was arrested on the o u tstan d in g federal warrant. The stop occurred at about 11:00 p.m. on Friday in a to w n in the Southern District of Alabama. Bibb was arraigned the following M o n d ay afternoon in the Northern District of Alabama. Shortly thereafter, Bibb m o v ed to dismiss the indictment, alleging: (1) a violation of his Sixth Amendment rig h t to a speedy trial because more than two years elapsed between the date of the alleg ed offense and his arrest and arraignment, and (2) a violation of Rule 5 (a)(1 )(A ) and (c)(2) because of an unnecessary delay between his arrest and a r r a ig n m e n t.

T h e government conceded that the length of time between the indictment a n d arrest was presumptively prejudicial but argued that dismissal was improper b ecau se the government did not delay to gain an advantage and because Bibb did n o t suffer actual prejudice. The government further asserted that the delay b e tw e en arrest and arraignment was not unreasonable.

A t a hearing on Bibb's motion, the government presented testimony from A T F Agent Edward Grays Hull. Hull recounted the following facts to explain the d elay between the indictment and arrest: He learned of the federal warrant on Jan u ary 2, 2004 and faxed the warrant to ATF headquarters. The warrant in fo rm atio n was posted on the National Crime Information Center database on J an u a ry 5, 2004. Hull subsequently went to the address that Bibb gave when arrested in July 2003 and where Bibb's vehicle was registered. Although Hull w e n t to the address at different times and on several different days between Jan u ary 2004 and early April 2005, Hull never saw Bibb or Bibb's vehicle.

Furthermore, Hull testified that he believed Bibb lived elsewhere because the b lin d s at the house were closed, no lights were on, the grass was overgrown, and tw o abandoned cars sat in the backyard. Hull also testified that he had reason to b eliev e Bibb may have lived at a different address because Bibb filed a domestic v io len ce report that listed another address as the location of the alleged incident, an d because in a domestic violence report filed by Bibb's girlfriend, she gave d ifferen t address for Bibb. Hull checked both addresses but did not locate Bibb.

Hull admitted that the July 2003 arrest report listed Bibb's work address but te stif ie d that he overlooked that information and never attempted to locate Bibb at w o r k . In any event, ATF normal policy discouraged arresting someone at work b ecau se it put the public in harm's way.

O n Saturday, July 16, 2005, Hull learned that Bibb had been arrested late the n ig h t before in the Southern District of Alabama. The ATF agents involved b e lie v e d that Bibb had to be taken before a magistrate judge in the Southern D istrict where he was arrested, rather than the Northern District where the warrant issu ed . Because of this confusion and the inability of the ATF office in the S o u th e r n District to provide agents to transport Bibb on Saturday, Bibb was arraig n ed on Monday when ATF agents brought him before a magistrate judge in th e Northern District of Alabama.

T h e magistrate judge recommended denying Bibb's motion, finding that p r e ju d ic e could be presumed from the length of the delay, but that the evidence sh o w ed that the government had attempted to arrest Bibb, and that, although the g o v ern m en t could have been more diligent, the reason for the delay did not weigh h eav ily against the government, nor did Bibb suffer actual prejudice from the d elay. The court noted that Bibb had not been incarcerated for any length of time d u rin g the period and Bibb did not identify any evidence or testimony lost as a resu lt of the delay. As for the Rule 5 argument, the magistrate judge found that the p r o p e r remedy for a violation would be suppression of any evidence obtained d u rin g the delay, not dismissal of the indictment. Because the authorities did not o b ta in any evidence during that period and because Bibb did not suffer substantial h a r m from the delay, the magistrate judge rejected Bibb's argument. The district co u rt adopted the recommendation and denied Bibb's motion.

B ib b entered a conditional guilty plea but reserved his right to appeal the d en ial of the motion to dismiss.

I I. Standard of Review "D e te rm in a tio n of whether a defendant's constitutional right to a speedy trial h a s been violated is a mixed question of law and fact. Questions of law are rev iew ed de novo, and findings of fact are reviewed under the clearly erroneous stan d ard ." United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006). We rev iew a district court's denial of a motion to dismiss an indictment on nonco n stitu tio n al grounds for abuse of discretion. United States v. Pielago, 135 F.3d 7 0 3 , 707 (11th Cir. 1998). III. Discussion A . Speedy Trial T h e Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . ." U.S. Const. amend. VI, I f the government violates this right, the available rem ed y is dismissal of the indictment. Barker v. Wingo, 407 U.S. 514, 522 (1972).

In Barker, the Supreme Court set forth four factors that a court should assess when d eterm in in g whether a defendant has been deprived of his Sixth Amendment right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the d e f en d a n t's assertion of the right; and (4) prejudice to the defendant. Id. at 530. In th is circuit, unless the first three factors weigh heavily against the government, the d efen d an t must show actual prejudice. United States v. Harris, 376 F.3d 1282, 1 2 9 0 (11th Cir. 2004).

T h e government concedes that the delay of approximately eighteen months b e tw e en indictment and arrest was presumptively prejudicial, Ingram, 446 F.3d at 1 3 3 6 (holding that delays over one year are presumptively prejudicial), and that B ib b asserted his right in a timely manner, United States v. Clark, 83 F.3d 1350, 1 3 5 3 (11th Cir. 1996). The government disputes, however, that the first three f ac to r s weigh heavily against it or that Bibb suffered actual prejudice. A s for the reason for the delay, we have noted that "[g]overnment actions th at are tangential, frivolous, dilatory, or taken in bad faith weigh heavily in favor o f a finding that a speedy trial violation occurred. Conversely, delays that occur f o r valid reasons, such as overcrowded courts or strongly contested interlocutory a p p e a ls , will not be accorded heavy weight against the Government." United S tates v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997). Furthermore, the Supreme C o u r t has reasoned that negligence is a more neutral act that should not be weighed as heavily as bad faith. Barker, 407 U.S. at 531.

Here, the district court found that the government's delay was "somewhat n e g lig e n t" and that this factor "weighs against the government, but not heavily." Bibb concedes that the district court properly characterized the government's actio n s as negligent, as opposed to having been in bad faith. We agree that the g o v e r n m e n t could have been more diligent in trying to locate and arrest Bibb. In th e absence of bad faith, however, the district court properly determined that this facto r did not weigh heavily against the government. United States v. Davenport, 9 3 5 F.2d 1223, 1239-40 (11th Cir. 1991). Nor do we believe that the second and th ird factors weigh heavily against the government. Therefore, Bibb must show a ctu a l prejudice. Ringstaff v. Howard, 885 F.2d 1542, 1543 (11th Cir. 1989) (en b an c). T h e Supreme Court has noted that whether prejudice resulted from the delay sh o u ld be considered in light of the interests in: "(i) prevent[ing] oppressive p retrial incarceration; (ii) minimiz[ing] anxiety and concern of the accused; and (iii) limit[ing] the possibility that the defense will be impaired." Barker, 407 U.S. a t 533. Bibb asks us to focus on the third interest, which the Supreme Court has ca lled "the most difficult form of speedy trial prejudice to prove because time's ero sio n of exculpatory evidence and testimony `can rarely be shown.'" Doggett v. U n ite d States, 505 U.S. 647, 655 (1992). Although the Doggett Court recognized th at "affirmative proof of particularized prejudice is not essential to every speedy tr ia l claim," the Court also stated that "to warrant granting relief, negligence u n a cc o m p a n ie d by particularized trial prejudice must have lasted longer than n eg lig en ce demonstrably causing such prejudice." Id. at 655, 656.

Here, Bibb fails to identify what evidence was lost or what witnesses he c o u ld not locate. He merely makes a general allegation that the delay prejudiced h is defense. This case differs greatly from Doggett, in which the delay lasted eight a n d one-half years and the Court characterized the government's actions as "in ex cu sab le" and "egregious." Id. at 656. It also differs from our decision in I n g r a m , in which we called the government's negligence in delaying two years b etw een the indictment and arrest "egregious" and considered significant the two- year delay between the dates of the offense and the indictment. Ingram, 446 F.3d a t 1339. The negligence here was far from egregious, and Bibb does not argue that th e pre-indictment delay is relevant to his claim, and at any rate, that delay was o n ly six months. Id. (noting the limited circumstances in which pre-indictment d elay is relevant to a Sixth Amendment speedy trial claim). Considering that the g o v e r n m e n t's delay between the indictment and arrest was merely negligent, as o p p o sed to in bad faith, and lasted only eighteen months, we are convinced that the d efen d an t can prevail only by showing a more particularized trial prejudice.

Doggett, 505 U.S. at 655, 656. Because Bibb failed to show a more particularized trial prejudice, the district court properly denied the motion to dismiss the in d ictm en t on Sixth Amendment grounds.

B. Rule 5 In determining whether the government violated Rule 5,1 which relates to the tim in g of the defendant's initial appearance, we look at the reason for the delay.

United States v. Purvis, 768 F.2d 1237, 1239 (11th Cir. 1985). Here, Agent Hull testified that confusion over where Bibb was required to appear and the difficulty 1 Rule 5 provides: "A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise." Fed. R. Crim. P. 5(a)(1).

Under Rule 5(c), when the defendant is arrested in a district other than the one in which the offense allegedly occurred, the "initial appearance must be: (A) in the district of arrest; or (B) in an adjacent district if: (i) the appearance can occur more promptly there." Fed. R. Crim. P.

5(c)(2). in finding agents to transport him caused the delay between Bibb's late Friday n ig h t arrest and Monday afternoon arraignment. Even assuming that this delay v io la te d Rule 5, Bibb's requested relief, dismissal of his indictment, is improper fo r a delay of less than seventy-two hours caused by, at worst, the government's n eg lig en ce. United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000) (holding th at a delay of one week between arrest and first appearance did not violate Rule 5 ) . In fact, we have never recognized dismissal of the indictment as a proper rem ed y for a Rule 5 violation. Purvis, 768 F.2d at 1238. Accordingly, we hold th at the district court did not abuse its discretion in denying Bibb's motion to d ism iss the indictment on this ground.

Because we conclude that the district court properly denied both grounds of B ib b 's motion to dismiss the indictment, we AFFIRM Bibb's conviction.

A F F IR M E D .