United States of America v. Germaine Battis

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2949
UNITED STATES OF AMERICA
v.
GERMAINE BATTIS,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 04-cr-00088-001)
District Judge: Honorable Anita B. Brody
Argued September 29, 2009
Before: RENDELL and AMBRO, Circuit Judges,
and McVERRY, District Judge*
*Honorable Terrence F. McVerry, Judge of the United States
District Court for the Western District of Pennsylvania, sitting
by designation.

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2
(Filed December 14, 2009 )
Robert Epstein, Esq. [ARGUED]
Brett G. Sweitzer, Esq.
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Bernadette A. McKeon, Esq. [ARGUED]
Mark S. Miller, Esq.
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
The Sixth Amendment to the Constitution states that,
“[i]n all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial.” Germaine Battis urges that this
right was violated when forty-five months elapsed between his

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After the denial of his speedy trial motion, Battis proceeded1
to trial and was convicted on one count of possessing a firearm
as a convicted felon, and one count of possessing ammunition
as a convicted felon, both in violation of 18 U.S.C. § 922(g)(1).
3
indictment and trial. The District Court reasoned through the
four-factor test established by the Supreme Court in Barker v.
Wingo, 407 U.S. 514 (1972), and concluded that there was no
constitutional violation. On appeal, weighing these four factors
anew, we reach a different conclusion and hold that Battis’s
right to a speedy trial was violated. We will therefore reverse
the order of the District Court and remand the case with
instructions to dismiss the indictment and vacate his conviction.1
This case arises out of an altercation between Battis and
other patrons of the Trolley Stop Tavern, a Philadelphia bar, on
March 22, 2003. By the end of the confrontation, which had
moved from the bar to a nearby street, Battis was in possession
of a handgun. According to Battis, the gun belonged to one of
the individuals with whom he was fighting, and Battis took the
gun from him in order to avoid being shot. Battis was
subsequently pursued by police. According to the police, Battis
had the gun all along and tried to shoot an officer at point-blank
range. Battis testified that he did not remember attempting to
shoot the officer.
Battis was arrested by the Philadelphia Police at the scene
and was charged by the District Attorney with attempted
homicide, aggravated assault, and several firearms violations.
Battis’s initial appearance was continued on three occasions, at

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his request, before he was arraigned in state court on January 20,
2004. The record indicates that Battis was represented by
counsel in the state court case at the time of his arraignment.
On February 24, 2004, Battis was indicted in the Eastern
District of Pennsylvania for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). On the
same day, the Government requested and received a bench
warrant from the District Court. The Government later
explained that it had informed the District Court’s clerk that
Battis was in state custody, and that it is standard practice to use
a bench warrant as a detainer when a defendant is in state
custody. It appears that this information was never formally
noted by the District Court, since on February 18, 2005, it noted
in a “Report of Speedy Trial Act Delay” that proceedings had
been delayed because Battis “is a fugitive.” App. 9-10. Battis
was not brought into the District Court for an arraignment or
initial appearance until November 2006.
The record suggests that the state case was also dormant
during this period. According to the state court docket, fourteen
continuances were requested after the arraignment. At a
scheduling conference with the state court judge on July 18,
2005, Battis’s counsel, Allan Sagot, requested a continuance to
allow the federal trial to proceed first. Sagot reported that he
had spoken to AUSA Mark Miller, that Miller had said that the
Government planned to pursue the federal case “immediately,”
and that Sagot expected the federal trial to begin within sixty
days. Appellee’s Supp. App. 6. The Assistant District Attorney
did not dispute these statements, and the Court adjourned the
case to October 27, 2005. Id. at 7. On October 27, Sagot

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This decision was later reversed by the Superior Court, and2
the case was remanded for trial.
5
advised the Court that “[t]he feds are still trying [Battis],” and
requested another continuance. Id. at 15-16. During this time,
Battis had no counsel in federal court, and no activity was
occurring in Battis’s federal case.
This record conflicts with the Government’s version of
events. At a 2007 hearing before the District Court, AUSA
Miller explained that the District Attorney’s office had
requested that federal authorities delay their prosecution while
the state court case proceeded. According to Miller, the DA’s
office had also repeatedly stated that “they were ready . . . to try
the case.” App. 44. Miller conceded, however, that, “in several
telephone conversations,” Sagot had advised him that he “would
prefer the federal case to go forward first.” App. 46-47. Thus,
although Sagot had informed the state court in 2005 that Miller
was proceeding in federal court, Miller believed that he was
waiting for the state court case to proceed.
On September 18, 2006, the Court of Common Pleas
dismissed the indictment under Pennsylvania’s speedy trial rule.2
After the dismissal of the state case, federal prosecutors finally
began to proceed with their prosecution, over two and a half
years after Battis was indicted. On October 17, 2006, they
obtained a superseding indictment, which added a charge of
possession of ammunition by a convicted felon, also in violation
of 18 U.S.C. § 922(g)(1). On November 2, Battis was brought
before a federal Magistrate Judge for his initial appearance. The

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6
Magistrate Judge appointed counsel, scheduled an arraignment
for November 7, and ordered Battis to be held without bail. At
the November 7 arraignment, Battis pleaded not guilty but did
not contest being held without bail. Battis had not been brought
before the District Court for an arraignment or initial appearance
before November 2006, and had not been represented by counsel
up to that point in the federal case. Although Sagot had been
representing Battis in the state case, Battis had informed Sagot
that he could not afford to retain Sagot to represent him in the
federal case as well. On November 9 and November 17,
respectively, Assistant Federal Defenders Benjamin Cooper and
Mark Wilson entered their appearances.
The District Court set a trial date of January 2, 2007. On
December 4, 2006, defense counsel moved to dismiss the
indictment for violation of Battis’s constitutional right to a
speedy trial. Shortly thereafter, Battis filed an unopposed
motion to postpone the trial, which was granted. The District
Court held a hearing on the motion to dismiss on January 9,
2007, at which Sagot and Miller described the history of their
discussions (which is summarized above) regarding how the
cases would proceed.
On February 15, the District Court denied the motion to
dismiss the indictment. In a written Opinion and Order, the
Court applied the factors set forth by the Supreme Court in
Barker: the length of delay, reason for the delay, extent to
which the defendant asserted his speedy trial right, and the
prejudice suffered by the defendant. In doing so, the Court
made the following determinations. First, a delay of “32 months
is a serious and unusual delay,” and thus “weighs in Battis’s

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favor.” App. 84. Second, the Government deferred to the state
prosecution as “a matter of policy and discretion,” and not “in
malice, or in an attempt to hamper Battis’s defense,” or out of
“bad faith.” Thus, the delay was “justifiable and does not weigh
significantly against the United States.” App. 85. Third,
although Battis “did make some effort through his state court
attorney, Sagot, to put the AUSA on notice that he wanted the
federal case [to] go forward,” he “certainly did not make the
utmost effort to get himself before this Court and move the
federal case forward.” App. 86. Specifically, he had not
“contacted the Court by informal communication or formal
motion” prior to the December 2006 motion to dismiss, and had
not pursued the matter with the U.S. Attorney’s Office “after the
initial conversation.” App. 86. Thus, “Battis’s assertion of his
right weighs only very slightly in his favor.” App. 86. Fourth,
Battis had not shown that he was prejudiced by the delay,
particularly since, in preparing for his state case, “which
involved the same incident as the federal charges,” “Battis had
[a] full opportunity to” investigate the relevant facts. App. 86-
88. The Court therefore held that Battis’s speedy trial right had
not been violated.
The Court set a new trial date of July 3, 2007. In the
interim, Battis, on his own, despite being represented by counsel
at the time, sent a letter to the Court requesting a speedy trial,
and filed a motion to dismiss the indictment for violations of the
Speedy Trial Act. The motion was denied. On June 26, 2007,
defense counsel moved for another continuance in order to
allow time for certain forensic testing. The Court granted the
continuance and set a new trial date of October 22.

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Jury selection occurred on October 22, 2007, and opening
statements began two weeks later, on November 5.
The jury found Battis guilty on both counts. On June 23,
2008, the District Court sentenced Battis to concurrent terms of
120 months’ imprisonment on both counts, and five years’
supervised release. This appeal followed.
The District Court had jurisdiction over this case under
18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291.
We review de novo a district court’s legal conclusion
regarding a defendant’s claim that his constitutional right to a
speedy trial was violated. Burkett v. Fulcomer, 951 F.2d 1431,
1437-38 (3d Cir. 1991). We review the factual findings
underpinning that conclusion for clear error. Id.
In Barker, the Supreme Court established a balancing test
for courts to use in evaluating whether the constitutional right to
a speedy trial has been violated. As noted above, Barker
identified four factors for courts to consider in weighing the
prosecution’s conduct against that of the defense: the length of
delay, reason for the delay, extent to which the defendant
asserted his speedy trial right, and the prejudice suffered by the
defendant. 407 U.S. at 530. None of these factors is “either a
necessary or sufficient condition,” and the factors “must be
considered together with such other circumstances as may be
relevant.” Id. at 533. If a defendant’s right to a speedy trial has

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Battis does not claim that his statutory rights under the3
Speedy Trial Act were violated, presumably because the time
period under that statute starts when the indictment is filed or
the defendant appears before a court, “whichever date last
occurs.” 18 U.S.C. § 3161(c)(1).
9
been violated, the indictment must be dismissed. Id. at 522.3
The first consideration under the Barker test is the length
of the delay. This, in turn, entails a two-part inquiry. “[T]he
delay involved first figures into the speedy trial equation for the
purpose of determining whether it is long enough to trigger
inquiry into the other Barker factors.” Hakeem v. Beyer, 990
F.2d 750, 760 (3d Cir. 1993). If the delay is relatively brief,
then it is not necessary to consider the other Barker factors.
Barker, 407 U.S. at 530-31. If the delay is sufficiently long,
courts assess the extent to which the delay was long enough to
“intensify” the prejudice caused by the delay. Doggett v. United
States, 505 U.S. 647, 652 (1992). We have previously held that
a delay of even fourteen months is sufficient to trigger review of
the remaining Barker factors. See Hakeem, 990 F.2d at 760.
However, we have also noted that “[l]onger delays can be
tolerated, for example, when the crime is very serious or
complex.” Wells v. Petsock, 941 F.2d 253, 257 (3d Cir.
1991); see also Barker, 407 U.S. at 531.
The parties disagree as to how the period of delay in this
case should be measured. Battis argues that the delay ran from
the date of his arrest by state authorities to the date the federal
trial began. The Government argues that the delay ran from the

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10
date of Battis’s federal indictment to the date of his initial
appearance in federal court. Battis was arrested by state
authorities on March 22, 2003, and was indicted in the Eastern
District of Pennsylvania eleven months later, on February 24,
2004. Jury selection for his federal trial occurred on October 22,
2007. Thus, approximately fifty-six months elapsed between
Battis’s state arrest and federal trial, and approximately forty-
five months elapsed between his federal indictment and trial.
In general, delay is measured from the date of arrest or
indictment, whichever is earlier, until the start of trial. Hakeem,
990 F.2d at 760. We have not previously considered whether,
as Battis contends, an arrest by state authorities is sufficient to
trigger a defendant’s right to a speedy trial on subsequent
federal charges, and the parties do not cite any authority that
squarely addresses this question. However, in United States v.
MacDonald, the Supreme Court stated in a footnote, which was
clearly dicta, that “an arrest or indictment by one sovereign
would not cause the speedy trial guarantees to become engaged
as to possible subsequent indictments by another sovereign.”
456 U.S. 1, 10 n.11 (1982). Similarly, the other courts of
appeals to have considered this issue have held that an “arrest on
state charges does not engage the speedy trial protection for a
subsequent federal charge.” United States v. Garner, 32 F.3d
1305, 1309 (8th Cir. 1994); see also, e.g., United States v.
Muniz, 1 F.3d 1018, 1024 (10th Cir. 1993); United States v.
Marler, 756 F.2d 206, 211 (1st Cir. 1985). We will adopt this
approach as well. When an arrest on state charges is followed
by a federal indictment, the right to a speedy trial in the federal
case is triggered by the federal indictment, and the time period

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The Government contends that the delay ended when Battis4
made his initial appearance in federal court on November 2,
2006, but it cites no authority for this proposition. We decline
to follow this approach. To the contrary, the practice of our
court and the Supreme Court has generally been to measure
delay until the start of trial. See, e.g., Barker, 407 U.S. at 533;
United States v. Dent, 149 F.3d 180, 184 (3d Cir. 1998);
Hakeem, 990 F.2d at 760.
We recognize that in Doggett, 505 U.S. at 652, the Court
focused on the period between indictment and arrest. However,
in Doggett, the facts were unique: the Government had failed
to conduct an adequate search for Doggett after his indictment,
leading to a delay of over eight years before he was arrested and
notified of the indictment. Since Doggett ultimately pled guilty,
there was no trial date to which the Court could look.
Moreover, in light of the lengthy delay before Doggett was even
arrested, there was no need for the Court to look past the date of
arrest in order to determine that the delay was excessive. This
may explain why the Court relied on the date of arrest without
commenting on the fact that this approach deviated from its
analysis in Barker.
We also hold that the speedy trial right was not affected by5
the filing of a superseding indictment in 2006. The Government
11
under consideration commences on that date.4
The relevant period of delay is thus the forty-five months
between the federal indictment on February 24, 2004, and the
start of trial on October 22, 2007. This is long enough to5

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does not argue otherwise (i.e., that the filing of the superseding
indictment in 2006 restarted the constitutional speedy trial
clock). Our holding is consistent with the approach that we took
in United States v. Dreyer, 533 F.2d 112 (3d Cir. 1976), in
which we calculated the delay between the original indictment
and trial, notwithstanding the intervening filings of two
superseding indictments. It is also consistent with the
approaches taken by the other courts of appeals. See, e.g.,
United States v. Parker, 505 F.3d 323 (5th Cir. 2007); United
States v. Oriedo, 498 F.3d 593 (7th Cir. 2007); United States v.
King, 483 F.3d 969 (9th Cir. 2007); United States v. Watford,
468 F.3d 891 (6th Cir. 2006); United States v. Armedo-
Sarmiento, 545 F.2d 785 (2d Cir. 1976); United States v.
DiMuro, 540 F.2d 503 (1st Cir. 1976).
12
require consideration of the remaining Barker factors, especially
in light of the relatively straightforward nature of the charges,
and to intensify any prejudice caused by the delay. We conclude
that the first factor weighs heavily against the Government.
The second Barker factor is the reason for the delay.
Barker grouped possible reasons for delay into three categories.
A deliberate effort by the Government to delay the trial “in order
to hamper the defense” weighs heavily against the Government.
Barker, 407 U.S. at 531. A “more neutral reason such as
negligence or overcrowded courts” also weighs against the
Government, though “less heavily.” Id. This is because
“ultimate responsibility for such circumstances must rest with
the [G]overnment,” since it is the Government’s duty to bring a
defendant to trial. Id. at 527, 531. Finally, “a valid reason, such

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as a missing witness, should serve to justify appropriate delay.”
Id. at 531. By contrast, “delay caused by the defense weighs
against the defendant,” including “delay caused by the
defendant’s counsel.” Vermont v. Brillon, 129 S. Ct. 1283,
1290-91 (2009). The Government “bears the burden to justify
the delay.” Hakeem, 990 F.2d at 770.
In evaluating this factor, we subtract the amount of delay
caused by the defendant from the delay caused by the
Government. See, e.g., United States v. Dent, 149 F.3d 180,
184-85 (3d Cir. 1998); Hakeem, 990 F.2d at 770. In this case,
trial was initially set for January 2, 2007. As a result of
continuances sought by Battis, the trial was continued from
January 2 to July 3, and from July 3 to October 22. Excluding
the period between January 2 and October 22, 2007, the length
of delay attributable to the Government is approximately thirty-
five months.
The Government concedes that it intentionally delayed
bringing Battis to trial. However, the Government explains that
it did this not to disadvantage him but, rather, so that the state
prosecutors could try Battis first. Thus, the Government claims
to have been acting “out of deference to the state’s compelling
interest in this case, which involved an allegation that the
defendant attempted to shoot a police officer, and to promote
harmonious relations with the local authorities.” Appellee’s Br.
at 36. The Government also urges that federal prosecutors
believed that the state was diligently pursuing its case.
We are not persuaded that the Government’s justification
for the delay is sufficient to balance the scales. As noted above,

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even a “neutral” reason weighs against the Government. Unlike
a case where a witness is missing, the Government could have
brought Battis to trial at any time. Prosecutors knew precisely
where Battis was located, yet they failed to bring him before the
District Court for an initial appearance. Once federal
prosecutors bring an indictment against a defendant, they have
a duty to notify the District Court that the defendant should be
arraigned and appointed counsel, and to bring the defendant to
trial expeditiously. See, e.g., Barker, 407 U.S. at 527
(“[S]ociety has a particular interest in bringing swift
prosecutions, and society’s representatives are the ones who
should protect that interest.”). This duty persists even when
state authorities have a strong interest in bringing their own case
against the same defendant. The Government cannot indict a
defendant and then delay a case indefinitely, without any notice
to a federal judge, merely because it is aware of a state
proceeding involving the same defendant. This is true
regardless of how “compelling” the state’s interest in that
proceeding is. While the initial delay to allow the state to
proceed may have been valid, there came a time when the
federal Government should have taken some action to proceed
in light of the state authorities’ inaction.
The Government’s explanation of the delay is also
undermined by the fact that the state trial was apparently being
delayed in order to facilitate the federal prosecution. This
apparent misunderstanding persisted for as long as thirty-two
months, while the Government did nothing to proceed with the
case. This factor therefore weighs against the Government,
though not as heavily as it would if the Government had been
intentionally undermining the defense.

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The third factor under Barker is whether the defendant
has asserted his right to a speedy trial. An assertion of this right
provides evidence that the defendant was being deprived of his
constitutional right since “[t]he more serious the deprivation, the
more likely a defendant is to complain.” Barker, 407 U.S. at
531. Thus, a defendant’s claim that the right is being violated
provides strong evidence that it actually was violated. Id. at
531-32. On the other hand, “failure to assert the right will make
it difficult for a defendant to prove that he was denied a speedy
trial.” Id. Moreover, when a defendant requests a speedy trial,
but “through contrary actions . . . evidences an unwillingness to
commence with the trial requested, [the] request carries minimal
weight.” Hakeem, 990 F.2d at 765.
We have previously described two ways in which a
defendant can show that he asserted his right to a speedy trial.
When a defendant is represented by counsel, he should identify
“a motion or some evidence of direct instruction to counsel to
assert the right at a time when formal assertion would have some
chance of success.” Hakeem, 990 F.2d at 766. By contrast,
“informal correspondence” to the court by a represented
defendant is less convincing. Id. When a defendant is
proceeding pro se, he “does not have to make a procedurally
perfect assertion of his speedy trial rights, but must make a
reasonable assertion of the right so as to put authorities on
notice of his Sixth Amendment claim.” Douglas v. Cathel, 456
F.3d 403, 418 (3d Cir. 2008) (internal quotation marks and
citation omitted). We emphasize, however, that even if a
defendant fails to adequately assert his right to a speedy trial,
that means only that the third Barker factor will be weighed
against him. It does not mean that he cannot claim that his right

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It is not clear how many conversations occurred between6
Sagot and AUSA Miller. Miller said that “several”
conversations had occurred. App. 47. However, Sagot referred
to only one conversation, and the District Court mentioned only
one conversation in its opinion. We do not find clear error in
the determination that only one conversation occurred, and it is
immaterial to our analysis whether there was more than one such
conversation. We will therefore assume that there was only one
conversation.
16
to a speedy trial was violated.
On four different occasions, Battis notified authorities
that he wanted his federal trial to proceed promptly. The first
time, Sagot, his counsel for the state court proceeding, told
AUSA Miller that he preferred that the federal trial occur first.6
At the time, Battis had not yet appeared in federal court, and was
unrepresented for purposes of the federal case. Even though
Sagot had called AUSA Miller on behalf of Battis, Battis had
specifically advised Sagot that he could not afford to retain him
in the federal case. We therefore conclude that Battis was acting
pro se in the federal case at that time. The Government
concedes that AUSA Miller did receive Sagot’s request, but
claims that Miller expected the request to be formalized in some
way. However, we have never required a defendant, much less
a pro se defendant, to make a formal motion to a court, or a
formal request to the Government, in order to demonstrate his
desire to receive a speedy trial.
Battis then addressed three specific requests for a speedy

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Because Battis made the final two requests at a time when7
the trial had been continued at his counsel’s request, we must
assume that Battis was not ready to proceed to trial at that time,
and we are therefore compelled to give those requests less
weight than his earlier requests. See Hakeem, 990 F.2d at 764
(“Repeated assertions of the right do not . . . balance this factor
in favor of a [defendant] when other actions indicate that he is
unwilling or unready to go to trial.”). At the same time,
however, we note that Battis was understandably not prepared
for trial when he filed these requests in March and June 2007,
just four and seven months, respectively, after federal counsel
was appointed for him, three and a half years after the events
took place. Therefore, under the circumstances of this case,
these requests do provide some evidence that Battis was being
denied a speedy trial.
17
trial to the Court. Within weeks of being appointed, his federal
counsel moved to dismiss the indictment on speedy trial
grounds. The promptness of this motion weighs strongly in
Battis’s favor. After that motion was denied, Battis sent a pro
se letter to the District Court in March 2007 to request a speedy
trial, and then, in May 2007, filed a pro se motion to dismiss the
indictment on statutory speedy trial grounds. These requests
indicate that Battis was concerned that his trial happen promptly,
and provide some evidence that his right to a speedy trial was
being violated.7
Battis faults the District Court for requiring him to have
made “the utmost effort to get himself before this Court and
move the federal case forward.” App. 86. However, we do not

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We note that this is not a situation where the court was8
given no notice of the defendant’s claimed constitutional
violation, as would have been the case had Battis never asserted
his right in the trial court and then proceeded to trial, only to
claim on appeal that his right had been violated. That situation
would raise the issue of waiver.
18
view the Court’s use of the term “utmost effort” as its
enunciation of the standard that Battis was required to meet.
Surely there is no such standard for a defendant’s “request” for
a speedy trial. We also note that although a formal motion to a
federal court provides strong evidence that a defendant believed
his right to a speedy trial was being violated, a request made
directly to federal prosecutors should also be taken into
account.8
Taken together, the request that Battis’s state court
counsel made to federal prosecutors, the motion to dismiss on
speedy trial grounds that Battis’s federal counsel filed promptly
upon being retained, and, to a lesser extent, the two subsequent
requests for a speedy trial made by Battis on his own are
sufficient to cause the third Barker factor to weigh in his favor.
The final Barker factor is the prejudice to the defendant.
The Supreme Court has outlined two ways in which a defendant
can establish prejudice. In Barker, the Court directed the courts
to assess the prejudice to a defendant “in light of the interests
. . . which the speedy trial right was designed to protect.” 407
U.S. at 532. A defendant can establish specific prejudice by
showing that he was subject to “oppressive pretrial

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19
incarceration,” that he suffered “anxiety and concern” about the
impending trial, or that his defense was impaired as a result of
the delay. Id. However, in Doggett, 505 U.S. at 655, the Court
held that “consideration of prejudice is not limited to the
specifically demonstrable,” and allowed defendants to claim
prejudice without providing “affirmative proof of particularized
prejudice.” Given that “time’s erosion of exculpatory evidence
and testimony” can hinder a defendant’s ability to prove that his
defense was impaired by a delay, the Court stated that “we
generally have to recognize that excessive delay presumptively
compromises the reliability of a trial in ways that neither party
can prove or, for that matter, identify.” Id. at 655-56. This
presumption of prejudice can be mitigated by a showing that the
defendant acquiesced in the delay, or can be rebutted if the
Government “affirmatively prove[s] that the delay left [the
defendant’s] ability to defend himself unimpaired.” Id. at 658
& n.1.
In evaluating whether the period of delay was long
enough to trigger this “presumption of prejudice,” the Doggett
Court considered both the total length of delay (over eight years)
and the portion of that delay attributable to the Government (six
years). Id. at 657-58. It held that this delay was long enough to
presume that the reliability of Doggett’s trial would be
compromised, and that Doggett was prejudiced by the delay. Id.
Although we have had few occasions to consider what period of
time is sufficient to find presumptive prejudice, we have
determined that a fourteen-month period between arrest and trial
is insufficient. Hakeem, 990 F.2d at 764.
We now hold that prejudice will be presumed when there

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is a forty-five-month delay in bringing a defendant to trial, even
when it could be argued that only thirty-five months of that
delay is attributable to the Government. After such a long delay,
witnesses become harder to locate and their memories inevitably
fade. As Doggett recognized, the Government may attempt to
rebut this presumption. However, here, as in Doggett, it has not
affirmatively proved that the delay left Battis’s ability to defend
himself unimpaired.
Battis’s preparation for the state case during the delay
does not, as the Government urges, alleviate any prejudice
simply because the charges in the state case were based on
essentially the same facts as the federal charges. First, that does
not address the reason for presuming prejudice—that the delay
undermines the basic reliability of the trial. Second, despite the
fact that the federal and state charges arose from the same
incident, the concerns of Battis’s counsel in the two cases, and
their resulting investigative efforts, would necessarily have been
different. Whereas his federal counsel would be focused on
how Battis came to possess the weapon, that consideration
would be of minimal significance to the broader state charges,
which were more focused on how he used the weapon. We also
note that the Government has not indicated what, if any, work
was being done in connection with the state court case—aside
from work being done by a private investigator, who, as
explained above, would not have focused on the same issues as
an investigator hired by federal counsel. The Government’s
position that the work being done removed any prejudice is
entirely speculative. Lastly, the threat to the reliability of a trial
is especially high where, as here, the delay results in the
defendant’s not being appointed counsel for three years after

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Battis claims that he was prejudiced because a witness to9
the altercation, Jo-An Vasquez, could not be located at the time
of trial. Vasquez had told a private investigator, who was
working for Battis in connection with the state court case, that
Battis had taken the gun from the person with whom he was
fighting when that person tried to shoot Battis. His testimony
could, therefore, have corroborated Battis’s defense. However,
when he moved to dismiss the indictment, Battis did not inform
the District Court that Vasquez could not be located. This was
presumably because his counsel had not had an opportunity to
determine this. Yet, even after learning about Vasquez’s
statement, Battis never renewed his motion to dismiss. Instead,
he mentioned Vasquez’s unavailability to the Court in passing,
in connection with an evidentiary motion. Nor did Battis put
before the District Court evidence that he had “seriously
attempted to locate” Vasquez, as we required in Dent, 149 F.3d
at 185. Thus, although it is troubling that the lengthy delay in
this case caused a witness favorable to the defense to be
unavailable for trial, it would be difficult to credit this claim on
appeal.
21
indictment.
We therefore conclude that Battis was presumptively
prejudiced by the delay, and that the fourth Barker factor weighs
against the Government. As a result, we need not reach Battis’s
other claims of prejudice.9
We believe that all four factors of the Barker test weigh
against the Government, and that Battis was unconstitutionally

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Since we will instruct the District Court to vacate the10
conviction, we need not address Battis’s alternative argument
that he is entitled to a new trial because the District Court erred
by allowing the Government to impeach him using a prior
conviction that was over ten years old.
22
deprived of his right to a speedy trial. We will therefore reverse
the judgment of the District Court and remand to that Court with
instructions to dismiss the indictment and vacate Battis’s
conviction.10

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