FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 06-10073
                 Plaintiff-Appellee,
               v.                             D.C. No.
                                           CR-05-00050-DWM
JOSEPH F. DRAKE,
                                               OPINION
             Defendant-Appellant.
                                       
          Appeal from the District Court Guam
        Donald W. Molloy, District Judge, Presiding

                 Argued and Submitted
           November 1, 2007—Honolulu, Hawaii

                 Filed September 15, 2008

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
           Milan D. Smith, Jr., Circuit Judges.

               Opinion by Judge O’Scannlain




                            12825
12828               UNITED STATES v. DRAKE


                         COUNSEL

Gretchen Fusilier, Carlsbad, California, argued the cause for
the defendant-appellant and filed the briefs.

Rosetta L. San Nicolas, Assistant U.S. Attorney, Guam,
argued the cause for the plaintiff-appellee and filed the brief;
Leonardo M. Rapadas, Guam and NMI, was on the brief.
                    UNITED STATES v. DRAKE                 12829
                          OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide whether a two-year delay between indict-
ment in the local Guam courts and eventual conviction on dif-
ferent charges in federal district court violated a defendant’s
right to a speedy trial.

                                I

                               A

   In the early morning hours of September 14, 2003, a Mobil
Mart in Sinajana, Guam, was robbed at gunpoint. The cashier,
Angel Guzman, reported that a man entered the store at about
2:50 a.m. and asked for cigarettes. As Guzman turned to
retrieve the cigarettes, the man “picked up his shirt, pulled out
a gun,” and demanded cash. Guzman opened the register and
turned over $85.00. The robber then “backed out of the store,
alternately pointing the gun at Ms. Guzman and [at the gas
station attendant.]” The store’s digital surveillance system
captured the robbery, which lasted less than one minute.

   After the robber made his escape, Guzman called the Guam
police, who promptly alerted nearby officers that the store had
been robbed. Police officers converged on the Mobil Mart
within minutes. Guzman told police that the robber was “dark
complexioned, male, Guamanian, approximately 30 years old,
wearing a dark short-sleeve shirt, brown shorts, brown base-
ball cap over a blue shirt, and black slippers with tattoos on
his forearm.” The gas station attendant could not describe the
robber, but described the gun as “silver colored.” Later that
morning, in a written statement, Guzman estimated that the
robber was about five foot one.

  While the officers at the Mini Mart interviewed the
employees, Guam policemen Matthew Cepeda and James
12830               UNITED STATES v. DRAKE
Rosete were hunting for the robber. As Cepeda and Rosete
approached Nelson Road, which leads directly to the store,
the officers saw a “vehicle travelling [sic] at a high rate of
speed” that then “came to an abrupt stop.” No other cars were
in the immediate vicinity. The driver of the car “look[ed] at
[the officers] and slowly [turn[ed] away.” The officers testi-
fied that they believed “the vehicle had been driven hard”
because they smelled “burning fluid within the vehicle.”
Thinking they had found the robber, Cepeda and Rosete
stopped the car, drew their weapons, and approached the vehi-
cle. They ordered the driver and the two passengers out of the
car. After discovering two revolvers and a pistol inside the
car, the officers arrested the occupants. One of the passengers
was Joseph Drake.

   At about 3:30 a.m. the officers at the Mobil Mart received
word that their colleagues had a suspect in custody. The offi-
cers told Guzman “that they had captured the suspect” and
brought her to the site of the traffic stop to make an identifica-
tion. When Guzman arrived, Drake was handcuffed and sur-
rounded by uniformed police officers. He was about 30 years
old, had a dark complexion, appeared Guamanian, and was
five foot nine. He was also wearing brown shorts, a dark
short-sleeve shirt, and slippers, and had tattoos on his arm. In
addition, officers found a baseball cap in the car. From “the
back of a patrol car about 10 feet away from the suspect,”
Guzman “positively identified” Drake as the robber. Four
days after the robbery, Guzman was shown a photo lineup of
six men and again selected Drake as the perpetrator.

   Half an hour after Drake’s arrest, police officers watched
the video of the robbery recorded by the store’s surveillance
system. The officers tried to obtain a copy of the recording
from the manager of the Mobil Mart, but instead received a
“floppy disk containing fourteen . . . still images from the sur-
veillance camera, depicting the robbery in commission.” After
thirty days, the original digital recording of the robbery was
automatically deleted and permanently lost.
                       UNITED STATES v. DRAKE                       12831
                                    B

   Two weeks later, on September 26, 2003, a grand jury in
the Guam Superior Court indicted Drake on seven charges,
including second degree robbery, theft, and possession of a
concealed weapon.1 A co-defendant, Earl Wusstig, was also
indicted on five of the seven charges. Over the next eight
months, trial dates were set and abandoned several times.2

   Almost a year later, on June 1, 2004, another grand jury in
the Guam Superior Court re-indicted Drake on identical
charges. The new indictment dropped Wusstig, the co-
defendant, but was otherwise identical to the 2003 indictment.
The record is again unclear regarding why the first indictment
was dismissed.

   Over the next year, the court changed Drake’s appointed
counsel several times. Drake filed several motions to dismiss
which further delayed the proceedings. He also waived his
right to a speedy trial four separate times, and asserted the
same right three times.3 The record does not disclose the rea-
sons for the waivers and the reassertions of the right.

   About a year after the second indictment, Drake’s prosecu-
tion was turned over to the federal government. On June 15,
2005, a grand jury in the District of Guam indicted Drake on
  1
     Specifically, Drake was charged with (1) second degree robbery with
a special allegation of possession and use of a deadly weapon in the com-
mission of a felony; (2) theft; (3) conspiracy to commit theft; (4) posses-
sion of a firearm without an identification card; (5) possession of a
concealed weapon; (6) possession of an unregistered firearm; and (7) pos-
session of a schedule II controlled substance.
   2
     The reasons for the repeated continuances are not clear from the
record, but Drake’s court-appointed counsel failed to appear at a hearing
at least once.
   3
     The waivers occurred on October 3, 2003, December 11, 2003, March
9, 2004, and July 2, 2004. Drake asserted his right to a speedy trial on
November 28, 2003, February 25, 2004, and October 6, 2004.
12832                UNITED STATES v. DRAKE
one count of Hobbs Act robbery conspiracy in violation of 18
U.S.C. § 1951(a), one count of Hobbs Act robbery in viola-
tion of 18 U.S.C. § 1951(a), one count of using and carrying
a firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii), and one count of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Though the federal charges differed from their state
counterparts, they were based on the same conduct as the
prior Guam Superior Court indictments. Drake appeared in
the district court for arraignment on June 17.

   A month later, on July 20, Drake moved to dismiss on vari-
ous grounds. He alleged that the nearly two-year delay
between indictments violated his right to a speedy trial. Drake
argued that the delay should be measured from the date of his
first indictment in the Guam Superior Court rather than the
date of his federal indictment because the United States and
the Territory of Guam are a “single sovereignty.” In addition,
Drake claimed that the traffic stop leading to his arrest was
not supported by reasonable suspicion and that all evidence
resulting from the stop should be suppressed as “fruit of the
poisonous tree.” Drake also contended that the indictment
should be dismissed because the Guam police department
failed to preserve the videotape of the robbery. Finally, Drake
claimed that the on site “show up” and photo array identifica-
tions were impermissibly suggestive and should be sup-
pressed.

   The district court denied all of Drake’s motions.4 “Assum-
ing, without deciding” that the United States and Guam are a
“single sovereignty,” the court nevertheless concluded that the
federal charges were distinct from the state charges. The court
accordingly measured the delay from the federal indictment to
the conviction: four months. In addition, the court pointed out
that the Speedy Trial Act excludes “[a]ny period of delay
  4
   The court disposed of the last of Drake’s motions on September 23,
2005, sixty-six days after Drake filed the motions.
                    UNITED STATES v. DRAKE                12833
resulting from other proceedings concerning the defendant,”
which the court interpreted to cover the proceedings in the
Guam Superior Court. The district court also found that the
traffic stop was supported by reasonable suspicion, that nei-
ther the show up nor the photo array identifications were
impermissibly suggestive, and that the loss of the videotape
did not violate Drake’s due process rights.

  Drake’s trial began on October 3, 2005 and lasted two days.
He was convicted on all counts. In January 2006 Drake was
sentenced to 235 months imprisonment followed by five years
of supervised release. This appeal followed.

                               II

   We begin with Drake’s argument that the two-year delay
between the 2003 indictment and the 2005 conviction violated
his constitutional and statutory rights to a speedy trial. We
consider Drake’s constitutional argument first.

                               A

   [1] The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial.” U.S. Const.
amend VI. Although non-fundamental “federal constitutional
rights do not automatically apply to unincorporated territories
[such as Guam],” Congress may extend such rights to an
unincorporated territory by statute. Guam v. Guerrero, 

, 1214 (9th Cir. 2002).

   [2] In 1950, Congress enacted the Organic Act, codified at
48 U.S.C. § 1421 et seq., which created a “Bill of Rights” for
Guam paralleling the Bill of Rights in the federal Constitu-
tion. 48 U.S.C. § 1421b. The language of the Speedy Trial
Clause in the Organic Act tracks its federal counterpart almost
exactly. See 48 U.S.C. § 1421b(g) (“In all criminal prosecu-
tions the accused shall have the right to a speedy and public
12834               UNITED STATES v. DRAKE
trial . . .”). We interpret the Speedy Trial Clause in the
Organic Act as coterminous with its corresponding provision
in the federal Constitution. See 

-
18.

   [3] As in the fifty states, we analyze a Speedy Trial Clause
claim by applying the four-part test established by Barker v.
Wingo, 

, 530 (1972). The four Barker factors are
the “[l]ength of delay, the reason for the delay, the defen-
dant’s assertion of his right, and prejudice to the defendant.”

de novo the district court’s conclusion that
there was no Speedy Trial Clause violation. United States v.
Mendoza, 

, 762 (9th Cir. 2008).

   [4] We turn to the first Barker factor: the length of the
delay. A central issue raised by this appeal is whether the
length of the delay should be measured from Drake’s 2003
indictment in the Superior Court of Guam or from his 2005
indictment in federal district court. However, we need not
decide this question. Assuming arguendo that the clock began
running when Drake was indicted in September 2003, Drake
has not established that the length of delay, even if inappro-
priately long, outweighs the other Barker factors.

   [5] Indeed, the second Barker factor — the cause of the
delay — weighs in favor of the government. Though the gov-
ernment bears the “ultimate responsibility” for justifying the
delay, the record here does not disclose any “deliberate
attempt to delay the trial in order to hamper the defense.”

. The district court found that “most
of the delay in the Superior Court cases stem from motions
filed on Drake’s behalf, changes in counsel (of which there
had been no less than four), and Drakes’ [sic] several filing
[sic] of waiver [sic] of his right to a speedy trial only to ‘re-
assert’ the same right in subsequent proceedings.” We agree
with the lower court that the reason for the delay weighs
against finding a Speedy Trial Clause violation.
                       UNITED STATES v. DRAKE                      12835
   [6] The third Barker factor, the defendant’s assertion of his
right to a speedy trial, also weighs in favor of the government.
Though Drake asserted his right to a speedy trial three times,
he also expressly waived the right four times.

   [7] Finally, Drake cannot establish that he was prejudiced.
The Supreme Court has identified three interests the right to
a speedy trial serves: “to prevent oppressive pretrial incarcera-
tion . . . to minimize anxiety and concern of the accused . . .
[and] to limit the possibility that the defense will be
impaired.” 

The Court emphasized that “the most
serious [form of prejudice] is the last, because the inability of
a defendant adequately to prepare his case skews the fairness
of the entire system.” 

has been incarcerated
since his arrest in 2003 and has suffered anxiety and concern,
there is no showing that the delay impaired his defense. No
witnesses died or disappeared; nothing in the record demon-
strates that evidence shown to be helpful to the defense was
lost.5 Drake’s pretrial incarceration was not “oppressive” or
unjustified, and his anxiety and concern were no more than
any criminal defendant experiences before trial.

   [8] Accordingly, we are satisfied that the district court did
not err in concluding that Drake’s right to a speedy trial under
the Guam Organic Act was not violated.

                                    B

   Having established that Drake’s claim under the Organic
Act must fail, we next consider whether the pretrial delay vio-
lated the federal Speedy Trial Act, 18 U.S.C. § 3161(b)-(c).
We review de novo the district court’s conclusion that there
  5
   One federal agent stated that “[d]ue to the passage of time,” he “d[id]
not expect” that a log book describing the police dispatch still existed.
However, there is no evidence confirming this expectation, and we will
not presume prejudice given Drake’s responsibility for the delay. See
United States v. Lam, 

, 859-60 (9th Cir. 2001).
12836                   UNITED STATES v. DRAKE
was no violation. United States v. Sears, Roebuck & Co., 

, 737 (9th Cir. 1989).

   [9] The Speedy Trial Act requires federal indictments to be
filed within thirty days of arrest. § 3161(b). When the defen-
dant pleads not guilty, the trial must begin within seventy
days of (1) the filing of the indictment or (2) the defendant’s
appearance before a judicial officer of the court in which the
charges are pending, whichever occurs later. § 3161(c)(1).
The Speedy Trial Act’s time limits do not apply to proceed-
ings in the Guam Superior Court,6 but do apply to proceedings
in the District Court of Guam. 48 U.S.C. § 1424-4.

   [10] Certain pre-indictment or pre-trial events, however,
toll the time limits. “Any period of delay resulting from other
proceedings concerning the defendant,” for example, is not
counted when computing delay for purposes of the Speedy
Trial Act. 18 U.S.C. § 3161(h)(1). More specifically, “delay
resulting from trial with respect to other charges against the
defendant” is not counted when determining whether the
thirty-day arrest-to-indictment time limit has run. 

have previously held that “[t]his provi-
sion encompasses not only . . . the trial itself but also the
period of time utilized in making necessary preparations for
trial.” United States v. Lopez-Osuna, 

, 1198
(9th Cir. 2001) (internal quotation marks and citation omit-
   6
     The Act does not apply to Drake’s proceedings in the Guam Superior
Court at least in part because they did not involve federal claims. At the
time, Drake was charged exclusively with violations of the Guam Code.
Section 3161(a)-(c) of the Speedy Trial Act, however, applies only when
a defendant has been charged with a “Federal criminal offense which is
in violation of any Act of Congress and is triable by any court established
by Act of Congress.” 18 U.S.C. § 3172(2); see also 

Because the Guam Code is passed by the Guam Legislature rather than by
Congress, the requirements of § 3171(a)-(c) do not apply. Cf. Gov’t of Vir-
gin Islands v. Bryan, 

, 1071-72 (3d Cir. 1987) (charges
alleging a violation of the territorial law of the Virgin Islands do not trig-
ger the requirements of the Speedy Trial Act).
                    UNITED STATES v. DRAKE                12837
ted). Finally, “delay resulting from any pretrial motion” is
also excluded from the computation. § 3161(h)(1)(F).

   [11] Here, approximately twenty-two months separated
Drake’s arrest from his federal indictment, plainly more than
the thirty days permitted by the Speedy Trial Act. However,
we conclude that the proceedings in the local Guam courts
that preceded the filing of the federal indictment qualify as a
“delay resulting from trial with respect to other charges
against the defendant” for Speedy Trial Act purposes.
§ 3161(h)(1)(D). Although Drake was never brought to trial
on the original Guam Superior Court charges, the judicial pro-
ceedings count as a “period of time utilized in making neces-
sary preparations for trial.” 

.

   [12] Therefore, the thirty-day time limit was tolled when
Drake was indicted on September 26, 2003, twelve days after
he was arrested. The Guam Superior Court proceedings con-
tinued until June 17, 2005, the date the Attorney General of
Guam told the United States Attorney’s office that the 2004
indictment would be dismissed. All of that time is thus
excluded when computing the delay. Since the federal indict-
ment occurred on June 15, 2005, the total non-tolled time
between arrest and indictment was twelve days, well within
the thirty-day limit.

   [13] We likewise conclude that the seventy-day time limit
between indictment and trial was not exceeded. One hundred
and eight days separated Drake’s June 17, 2005 arraignment
and the start of his trial on October 3. But on July 20 and July
24, Drake filed several motions to dismiss, the last of which
was denied on September 23. The trial began on October 3,
ten days later. Therefore, sixty-five days between Drake’s
federal indictment and trial were tolled for purposes of the
Speedy Trial Act as “delay resulting from any pretrial
motion.” 18 U.S.C. § 3161(h)(1)(F). The total non-tolled time
thus was forty-three days, within the seventy-day limit.
12838               UNITED STATES v. DRAKE
Accordingly, Drake’s rights under the Speedy Trial Act were
not violated.

                               III

   Next, we consider Drake’s argument that the traffic stop
was not supported by reasonable suspicion and that all evi-
dence obtained as a result of the stop should be suppressed as
“fruit of the poisonous tree.” Wong Sun v. United States, 

, 488 (1963). We review the district court’s ultimate
conclusion that there was reasonable suspicion de novo and its
underlying findings of fact for clear error. United States v.
Colin, 

, 442 (9th Cir. 2002).

   [14] The Fourth Amendment to the United States Constitu-
tion protects the “right of the people to be secure in their per-
sons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend IV. Generally,
police seizures must be supported by probable cause. In lim-
ited circumstances, a lower standard, reasonable suspicion,
may justify a police seizure. “In particular . . . law enforce-
ment agents may briefly stop a moving automobile to investi-
gate a reasonable suspicion that its occupants are involved in
criminal activity.” United States v. Hensley, 

,
226 (1985).To constitute reasonable suspicion, the officer’s
belief that criminal activity is afoot must be supported by
“specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant th[e]
intrusion.” Terry v. Ohio, 

, 21 (1968). The Organic
Act provides equal protection to the residents of Guam. See
48 U.S.C. § 1421b(c) (“The right of the people to be secure
in their persons, houses, papers, and effects, against unreason-
able searches and seizures, shall not be violated . . .”).

   [15] The facts here are close. Nevertheless, we cannot say
that the district court committed error in finding that reason-
able suspicion existed. Although the officers could not see the
driver or the passengers clearly, the car was driven “at a high
                    UNITED STATES v. DRAKE                12839
rate of speed” along a road leading from a store which had
been robbed ten minutes earlier. It was very late at night and
no other cars were on the road. In addition, the officers
smelled “burning fluid,” which indicated that the car had been
driven quickly. Finally, the driver looked at the officer and
slowly turned around, actions which may have conveyed con-
sciousness of guilt to the officers. To be sure, each of these
facts, considered by itself, might not give rise to reasonable
suspicion. Considering the “totality of the circumstances,”
however, we conclude that there was reasonable suspicion for
the stop. See United States v. Sokolow, 

, 9 (1989)
(“Any one of these factors is not by itself proof of any illegal
conduct and is quite consistent with innocent travel. But we
think taken together they amount to reasonable suspicion.”).

   [16] Because we conclude that the traffic stop was sup-
ported by reasonable suspicion, we also hold that the subse-
quent show-up identification was not “fruit of the poisonous
tree.” Accordingly, we affirm the district court’s admission of
the evidence relating to the traffic stop.

                              IV

  We turn next to Drake’s contention that the show-up and
photo array identifications were impermissibly suggestive.
We first consider the identification that immediately followed
Drake’s arrest.

                               A

   The Due Process Clause of the Fourteenth Amendment pro-
vides that “[n]o person shall be deprived of life, liberty, or
property without due process of law.” U.S. Const. Amend.
XIV. A corresponding provision in the Organic Act provides
the same protections. See 48 U.S.C. § 1421b(e). To determine
whether an identification procedure violates a defendant’s due
process rights, a court must consider “whether under the
‘totality of the circumstances’ the identification was reliable
12840               UNITED STATES v. DRAKE
even though the confrontation procedure was suggestive.”
Neil v. Biggers, 

, 199 (1972). The “factors to be
considered . . . include the opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the
criminal, the level of certainty demonstrated by the witness at
the confrontation, and the length of time between the crime
and the confrontation.” 

see also United States
v. Jones, 

, 1209-10 (9th Cir. 1996).

   [17] Applying these factors here, we hold that the show-up
following the traffic stop was not impermissibly suggestive.
Though the robbery took place in less than one minute, the
district court found that “Ms. Guzman had ample opportunity
to view the robber as they were standing face to face in close
proximity to each other.” The court also found that “it is rea-
sonable to conclude that Ms. Guzman’s attention [was] fully
focused on the robber, especially because she was fully aware
that she was being robbed at gun point.” Though Guzman sig-
nificantly underestimated Drake’s height, the district court
pointed out that Guzman’s initial description of the robber’s
age, complexion, and clothing matched Drake’s physical
characteristics. In addition, the court emphasized that Guzman
“positively identified” Drake and that the show-up took place
within forty minutes of the robbery. We cannot say that these
factual determinations are “clearly erroneous.”

   Drake argues that the show-up was impermissibly sugges-
tive because “there was a clear directive to Ms. Guzman that
the person she was about to view was the robber. Nothing
could be more suggestive than to have a uniformed officer tell
the victim of a crime that officers have just caught the perpe-
trator for her to identify.” Drake also emphasizes that he was
handcuffed and surrounded by uniformed police officers
when Guzman arrived to make the identification.

   These facts standing alone, however, do not compel us to
find a pretrial identification impermissibly suggestive. See
                    UNITED STATES v. DRAKE                12841
United States v. Kessler, 

, 585-86 (9th Cir. 1982)
(“While it is the better practice not to refer to the subject of
a show-up as a ‘suspect’ . . . the reference by itself is not an
impermissible suggestion. The use of handcuffs or other indi-
cia of custody will not invalidate a show-up, at least where
necessary for the prompt and orderly presentation of the sus-
pect, consistent with protection of the officers and witness-
es.”).

                               B

   [18] We likewise conclude that the identification based on
the photo spread was not impermissibly suggestive. As dis-
cussed above, “the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of atten-
tion, the accuracy of the witness’ prior description of the
criminal, [and] the level of certainty demonstrated by the wit-
ness at the confrontation” also weigh in favor of admitting the
photo spread identification. 

. Only
the last factor identified in Biggers, the length of time
between the crime and the confrontation, differs from the
analysis of the show-up identification. Here, four days sepa-
rated the robbery from the photo spread identification. This
was not long enough to call the identification’s accuracy into
question. Indeed, Biggers permitted an identification to go to
the jury even when seven months separated the crime from
the confrontation. 

.

                               V

   Finally, we address Drake’s claim that the loss of the digi-
tal surveillance video violated his due process rights.

   The Supreme Court has long held that police officers must
disclose exculpatory evidence to criminal defendants. Brady
v. Maryland, 

, 87 (1963). To rise to the level of
a due process violation when potentially exculpatory evidence
is destroyed, the “evidence must both possess an exculpatory
12842               UNITED STATES v. DRAKE
value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available
means.” California v. Trombetta, 

, 489 (1984).

   [19] Neither of these conditions is met here. The exculpa-
tory value of an item of evidence is not “apparent” when the
evidence merely “could have”exculpated the defendant. Ari-
zona v. Youngblood, 

, 56 n* (1988). The digital
recording of the robbery here was far from clearly exculpa-
tory; indeed, it is possible that it would have further incrimi-
nated Drake. Moreover, comparable evidence was plainly
available: fourteen still images of the robbery were preserved
and the officers were available to testify to the contents of the
recording.

                               VI

  For the foregoing        reasons,   Drake’s    conviction    is
AFFIRMED.