UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                  No. 98-4246

EARL FRITH, a/k/a F. Earl Frith,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                    No. 98-4591
JULIO ROBERTO CASTELLANOS, a/k/a
J.R.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                    No. 98-4653
JULIO ROBERTO CASTELLANOS, a/k/a
J.R.,
Defendant-Appellee.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-91-82-R)

Argued: May 6, 1999

Decided: June 14, 1999
Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Ernest Booth, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant. David Dennis
Walker, DAVID C. WALKER, P.C., Salem, Virginia; Joaquin N.
Fernandez, Coconut Grove, Florida, for Appellees. ON BRIEF: Rob-
ert P. Crouch, Jr., United States Attorney, Joseph W. H. Mott, Assis-
tant United States Attorney, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The United States appeals an order of the district court dismissing
the indictment against Earl Frith on the basis that a seven-year delay
between indictment and trial violated Frith's Sixth Amendment right
to a speedy trial. Additionally, the Government appeals the sentence
imposed on Frith's codefendant, Julio Roberto Castellanos, arguing
that the district court erred in awarding Castellanos a downward
adjustment for acceptance of responsibility. See U.S. Sentencing
Guidelines Manual § 3E1.1 (1997). Castellanos cross appeals, raising
several challenges to his convictions and sentence. For the reasons
that follow, we reverse the dismissal of the indictment against Frith.

                    2
And, although we affirm Castellanos' convictions, we vacate his sen-
tence and remand for resentencing.

I.

The facts, viewed in the light most favorable to the Government,
are as follows. Beginning in the fall of 1988, Leonardo Rivera-Ruiz
began importing and selling cocaine for the Cali Cartel, a narcotics
syndicate based in Colombia, South America. The drugs were trans-
ported to the United States in large quantities, and Rivera-Ruiz sold
them in New York and Philadelphia. Approximately a year later,
Rivera-Ruiz decided to retire from the drug trade and disbanded his
distribution operations. Shortly thereafter, a member of the Cartel per-
suaded him to sell additional cocaine. Lacking an outlet for the drugs,
Rivera-Ruiz contacted Castellanos, who agreed to sell the narcotics in
Houston. Attempts to deliver the proceeds of the sale of the cocaine
to the Cartel were foiled by federal agents, who seized large sums of
money from couriers. In order to satisfy the resulting debt to the Car-
tel, Rivera-Ruiz returned to the business of selling cocaine with Cas-
tellanos as a partner. At that point--in the fall of 1990--Rivera-Ruiz
employed Javier Cruz to transport cocaine from Phoenix and Los
Angeles to New York for sale.

At approximately the same time as he began working for Rivera-
Ruiz, Cruz moved to Salem, Virginia and opened a used automobile
dealership. He contacted Frith, a local real estate agent, about pur-
chasing a dairy farm. In addition to purchasing the property, Cruz
bought 30 head of cattle, on which he made a cash deposit of $16,000
in drug proceeds. Frith structured the deposit of the money in order
to avoid federal reporting requirements, dividing it into two deposits
of $8,000 and making each at a different branch of his bank.

On May 12, 1991, a sealed indictment was returned naming, inter
alia, Rivera-Ruiz, Cruz, and Frith. Frith was not aware of the indict-
ment, but Cruz, who had been arrested in April 1991, immediately
began cooperating with authorities. In August 1992, the Drug
Enforcement Administration sent Cruz to Colombia in an undercover
capacity, where he remained until February 1996. After further inves-
tigation, the Government obtained a superseding sealed indictment in
January 1997, which was unsealed as to Frith the following month.

                    3
The superseding indictment named 28 defendants, including Castel-
lanos and Frith, both of whom were charged with conspiracy to pos-
sess with the intent to distribute cocaine, see 21 U.S.C.A. § 846 (West
Supp. 1999), and conspiracy to import cocaine, see 21 U.S.C.A. § 963
(West Supp. 1999). Additionally, Frith was charged with structuring
a currency transaction with a domestic financial institution to evade
a reporting requirement, see 31 U.S.C. § 5324(3) (1988), and money
laundering, see 18 U.S.C. § 1956(a)(3)(B), (C) (1988 & Supp. III
1992). Trial commenced in January 1998. Castellanos was convicted
of both conspiracy counts. Frith was acquitted of the conspiracy
charges but was convicted of structuring; the jury was unable to reach
a verdict as to the charge of money laundering.

A few days before trial, Frith moved to dismiss the indictment on
the basis that the delay following the initial indictment violated his
Sixth Amendment speedy trial right. The district court took this
motion under advisement and after trial dismissed the indictment. In
making this ruling, the court noted that the delay in prosecution was
not due to the Government's negligence but rather was a product of
its diligent efforts to investigate other members of the conspiracy.
Additionally, the court found that any actual prejudice to Frith was
minimal at best. Nevertheless, the court concluded that it was required
to presume prejudice after such a lengthy delay and dismissed the
indictment against Frith.

At sentencing, the district court granted Castellanos a two-level
downward adjustment for acceptance of responsibility, see U.S.S.G.
§ 3E1.1, over the Government's objection. The court noted that Cas-
tellanos had appeared for trial even though he faced a potential life
sentence and was a significant flight risk. The court also stated that
it would "never ... punish anyone for taking a trial" and observed that
Castellanos, who did not testify at trial, "didn't get on the stand and
lie or ... [say he] didn't do it." J.A. 1030. It declined, however, to
grant Castellanos a two-level reduction pursuant to U.S.S.G.
§ 2D1.1(b)(6).

II.

We first consider the Government's contention that the district
court erred in dismissing the indictment against Frith on the basis that

                    4
the delay of almost seven years between the initial indictment and
trial violated his Sixth Amendment right to a speedy trial. See U.S.
Const. amend. VI (guaranteeing an accused "the right to a speedy ...
trial"). The question of whether Frith's constitutional right was vio-
lated is a legal one subject to de novo review, although we review the
factual findings of the district court for clear error. See United States
v. Brown, 

, 348 (6th Cir. 1999); see also Doggett v.
United States, 

, 651-58 (1992) (conducting de novo
review of Sixth Amendment speedy trial claim); United States v.
Grimmond, 

, 827-31 (4th Cir.) (same), cert. denied, 

(1998).

In determining whether a Sixth Amendment speedy trial violation
has occurred, a court must balance four considerations: the "[l]ength
of delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant." Barker v. Wingo, 

,
530 (1972); see 

. The length-of-delay factor
serves two functions in the speedy trial inquiry. First, it operates as
a preliminary requirement: It is unnecessary to conduct an analysis of
a speedy trial claim unless the defendant first demonstrates "that the
interval between accusation and trial has crossed the threshold divid-
ing ordinary from `presumptively prejudicial' delay." 

-52 (quoting 

). Once this hurdle
is overcome, the length of delay is relevant to the remainder of the
speedy trial analysis because "the presumption that pretrial delay has
prejudiced the accused intensifies over time." 

is no question that the delay in this case is sufficiently long
to require further inquiry into whether Frith's Sixth Amendment
speedy trial right was violated. See 

"extraordi-
nary 8 1/2-year lag between ... indictment and arrest clearly suffices
to trigger the speedy trial enquiry"); 

(noting that "the
lower courts have generally found postaccusation delay `presump-
tively prejudicial' at least as it approaches one year"); 

(determining that a delay of 35 months satisfied the
threshold requirement). Accordingly, we must proceed to an analysis
of all of the relevant considerations.

We begin by addressing the reason for the delay. As the Supreme
Court has noted, various reasons for a lag between indictment and

                     5
trial are accorded different weights in the speedy trial analysis. See

. For example, "[a] deliberate attempt to delay
the trial in order to hamper the defense should be weighted heavily
against the government." 

such as govern-
mental negligence or an overcrowded court docket, are still weighed
against the Government (because it bears the ultimate responsibility
for bringing a defendant to trial), but less heavily. See 

such as the need to obtain a missing witness, are
weighed in favor of the Government. See 

court found that the Government delayed prose-
cuting Frith so that it could continue to investigate the wide-ranging
conspiracy in which Frith was tangentially involved, a purpose the
court termed "noble." J.A. 936. Prosecuting Frith shortly after the
return of the original indictment could have jeopardized the ongoing
investigation of the Cali Cartel, which involved some of the defen-
dants named in the indictment. Moreover, Frith does not contend that
the Government was dilatory in its investigation of the Cartel or in its
pursuit of a superseding indictment once the investigation was con-
cluded. Accordingly, we determine that the reason for the delay
should be weighed in favor of the Government.

We next consider whether Frith asserted his right to a speedy trial
in a timely fashion. "The defendant's assertion of his speedy trial
right ... is entitled to strong evidentiary weight in determining whether
the defendant is being deprived of the right." 

-
32. Of course, a defendant who is unaware that he is under indictment
cannot be held to account for failing to assert his right to a speedy
trial. See 

.

The Government does not dispute that Frith was unaware that he
had been indicted in 1991. And, he did not learn that he had been
charged until after the superseding indictment was unsealed in late
February 1997. Under Doggett, Frith is not responsible for failing to
assert his speedy trial right during the six years that passed before he
became aware that he had been indicted. However, we cannot ignore
the fact that Frith waited nearly a year after the unsealing of the
superseding indictment to assert his right to a speedy trial. Under the
circumstances, we are inclined to give this factor little weight in our
analysis.

                     6
Lastly, we must consider the prejudice suffered by Frith. The dis-
trict court found this factor dispositive, reasoning that the seven-year
delay between indictment and trial mandated an irrebuttable presump-
tion that Frith had been prejudiced in his ability to defend against the
charges.1 The court based its ruling on Doggett, in which the Supreme
Court held that a delay of eight and one-half years between indict-
ment and trial violated the Sixth Amendment despite the defendant's
inability to establish actual prejudice. See 

conclude that the district court misunderstood the holding and
rationale of Doggett. Although the court was correct that a showing
of actual prejudice is not required in all speedy trial cases, see 

that "affirmative proof of particularized prejudice is not
essential to every speedy trial claim" because"impairment of one's
defense is the most difficult form of speedy trial prejudice to prove"),
Doggett specifically noted that "presumptive prejudice cannot alone
carry a Sixth Amendment claim," but rather must be considered in the
context of the other factors, particularly the reason for the delay, 

delay is justified by a legitimate governmental purpose,
such as the need to obtain a missing witness, a speedy trial claim will
fail absent a demonstration of actual prejudice. See 

lengthy bad faith delay by the Government may "present an over-
whelming case for dismissal" even without a showing of actual preju-
dice. See 

Court concluded that a delay of eight and
one-half years caused by the Government's negligence in locating the
defendant mandated dismissal "when the presumption of prejudice,
albeit unspecified, is neither extenuated, as by the defendant's acqui-
escence, nor persuasively rebutted." 

& citation
omitted). Thus, Doggett did not hold, as the district court apparently
believed, that a sufficiently lengthy delay may be dispositive of a
speedy trial claim irrespective of the other criteria for evaluating such
a claim.
_________________________________________________________________
1 The Supreme Court has identified three relevant forms of prejudice in
speedy trial cases: "`oppressive pretrial incarceration,' `anxiety and con-
cern of the accused,' and `the possibility that the [accused's] defense will
be impaired' by dimming memories and loss of exculpatory evidence."

(quoting 

) (alteration
in original). The parties agree that since Frith was not incarcerated prior
to trial and was unaware of the indictment for the majority of its pen-
dency, only the third form of prejudice is relevant here. See 

prejudice factor in light of the reason for the delay
as Doggett instructs, we conclude that the district court erred in
weighing this factor in favor of Frith. Here, unlike in Doggett, the
delay in bringing Frith to trial was justifiable. Thus, his speedy trial
claim can succeed only if he makes a showing of actual prejudice. See

the district court found that the prejudice to Frith
resulting from the delay was minimal at best; indeed, the court specif-
ically discredited Frith's trial testimony that he had forgotten the
details of the transaction that was the subject of the structuring
charge.

In sum, our consideration of the factors relevant to an analysis of
a speedy trial claim leads us to conclude that Frith's Sixth Amend-
ment right was not violated by the seven-year delay between indict-
ment and trial. Accordingly, we reverse the dismissal of the
indictment against Frith.

III.

The Government next contends that the district court erred in
awarding Castellanos a reduction in his offense level for acceptance
of responsibility. See U.S.S.G. § 3E1.1. The determination by the dis-
trict court concerning whether a defendant has accepted responsibility
"`is entitled to great deference on review'" and will be overturned
only if we conclude that the court committed clear error. United
States v. Dickerson, 

, 469 (4th Cir. 1997) (quoting
U.S.S.G. § 3E1.1, comment. (n.5)).

We have little difficulty in concluding that the district court clearly
erred in finding that Castellanos accepted responsibility for his
offense. The district court offered three reasons for awarding the
reduction: that Castellanos, who faced a potential life sentence, had
voluntarily appeared for trial in spite of being a significant flight risk;
that the court would "never ... punish anyone for taking a trial"; and
that Castellanos "didn't get on the stand and lie or ... [say he] didn't
do it." J.A. 1030. None of these justifications provides any support for
the factual conclusion that Castellanos accepted responsibility.

The commentary to § 3E1.1 makes clear that the adjustment gener-
ally is not available to those, like Castellanos, who contest factual

                     8
guilt at trial. See U.S.S.G. § 3E1.1, comment. (n.2).2 Furthermore,
merely appearing for trial is a far cry from the affirmative acceptance
of personal responsibility that is a prerequisite to an adjustment for
acceptance of responsibility. See United States v. Nale, 

, 1005 (4th Cir. 1996) (explaining that "in order to receive a
reduction under § 3E1.1 ... the defendant must prove by a preponder-
ance of the evidence that he has clearly recognized and affirmatively
accepted personal responsibility for his criminal conduct"); see also
U.S.S.G. § 3E1.1(a) (stating that a defendant must "clearly demon-
strate[ ] acceptance of responsibility for his offense" in order to
receive a two-level reduction). Also, the denial of an adjustment for
acceptance of responsibility does not constitute punishment for exer-
cising the right to a trial. See United States v. Guadagno, 

, 225-26 (7th Cir. 1992). Finally, the mere fact that a defendant
does not testify--and thus does not testify falsely--at a trial during
which he contests his factual guilt does not amount to an acceptance
of responsibility. See United States v. Ivy, 

, 1293-94
(10th Cir. 1996); see also United States v. Castner, 

,
1279 (4th Cir. 1995) (observing that "[a] defendant ... is not entitled
to a reduction for acceptance of responsibility merely because he did
not obstruct the administration of justice during his trial").3 Accord-
_________________________________________________________________
2 The guideline commentary does provide that "[i]n rare situations a
defendant may clearly demonstrate an acceptance of responsibility for
his criminal conduct even though he exercises his constitutional right to
a trial," as when "a defendant goes to trial to assert and preserve issues
that do not relate to factual guilt (e.g., to make a constitutional challenge
to a statute or a challenge to the applicability of a statute to his conduct)."

does not apply here.
3 The district court also noted that Castellanos acknowledged his guilt
after the trial. However, post-trial remorse does not generally support a
reduction for acceptance of responsibility. See United States v. Martinez,

, 377-78 (4th Cir. 1990) (affirming denial of adjustment for
acceptance of responsibility when defendant did not acknowledge his
guilt until four days before sentencing). Moreover, we note that Castel-
lanos' purported acceptance of responsibility consisted of a written state-
ment that simply recited, almost verbatim, the portion of the presentence
report that recounted the offense conduct; another statement in which
Castellanos claimed to "fully accept responsibility for [his] conduct,"
J.A. 1100; and testimony at the sentencing hearing. In both statements
and in his testimony, Castellanos consistently attempted to minimize the
extent of his participation in the conspiracy.

                   9
ingly, we conclude that the district court committed clear error in
reducing Castellanos' offense level for acceptance of responsibility.

IV.

On cross appeal, Castellanos contends that the district court erred
in refusing to impose a two-level downward adjustment pursuant to
U.S.S.G. § 2D1.1(b)(6). The Government concedes, and we agree,
that the district court erroneously refused to consider whether this
adjustment was appropriate.

Section 2D1.1(b)(6) directs a district court to apply a two-level
downward adjustment when "the defendant meets the criteria set forth
in subdivisions (1)-(5) of § 5C1.2 (Limitation on Applicability of
Statutory Minimum Sentences in Certain Cases) and the offense level
... is level 26 or greater." The district court refused to grant this
adjustment to Castellanos on the basis that the reduction was not
available because the guideline range exceeded the statutory manda-
tory minimum. In so ruling, the court appears to have confused
§ 2D1.1(b)(6) with U.S.S.G. § 5C1.2, which requires the court to "im-
pose a sentence in accordance with the applicable guidelines without
regard to any statutory minimum sentence[ ] if" certain criteria are
met. The latter provision applies only when the applicable statutory
mandatory minimum exceeds the defendant's guideline range. Sec-
tion 2D1.1(b)(6), on the other hand, applies whenever a defendant
meets the criteria enumerated in § 5C1.2 and his offense level is
greater than 25. See United States v. Leonard , 

, 345-46
(5th Cir. 1998) (per curiam). We therefore reverse the ruling of the
district court and remand for it to make findings regarding whether
Castellanos satisfied the requirements of § 5C1.2.4
_________________________________________________________________
4 Castellanos raises several other issues, all of which we have carefully
considered and have determined to be without merit. Of these, only his
contention that the district court erred in refusing a request of the jury to
review the 1991 indictment, which had been admitted into evidence dur-
ing trial, warrants any discussion. "The transmittal of exhibits to the jury
is ordinarily a matter within the discretion of the trial court and will not
be reversed in the absence of clear prejudice to the defendant[ ]." United
States v. De Hernandez, 

, 1308 (10th Cir. 1984). Castel-
lanos has not specified any possible harm that may have resulted from
the failure of the district to transmit the 1991 indictment to the jury, and
our review of the record reveals none. Accordingly, we reject this argu-
ment.

                    10
V.

Because we conclude that the district court erred in conclusively
presuming prejudice to Frith as a result of the seven-year delay
between indictment and trial, we reverse the dismissal of the indict-
ment as to Frith. We affirm Castellanos' convictions, but reverse the
award of a downward adjustment for acceptance of responsibility. We
further hold that the district court erred in refusing to consider
whether Castellanos was entitled to a two-level reduction under
§ 2D1.1(b)(6).

Accordingly, we reverse as to Frith. As to Castellanos, we affirm
in part, reverse in part, and remand for resentencing.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

                    11