MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Before the Court is Defendant Juan Guajardo's Motion to Dismiss ("Motion") [Doc. # 805]. The Government responded,1 and Guajardo replied.2 The Motion is ripe for decision. Based on the parties' briefing, pertinent matters of record, and relevant legal authority, the Court denies Guajardo's Motion.3

I. BACKGROUND

On February 7, 2007, Defendant Juan Guajardo was indicted, along with nineteen other defendants, by a federal grand jury of conspiracy to distribute a controlled substance, namely cocaine. Guajardo is a United States citizen, and on or about July 24, 2019, he was deported from Mexico to the United States and turned over to the U.S. Marshals Service.4 He is set to be tried on the conspiracy charge on September 27, 2019.

Guajardo moves to dismiss the Indictment, asserting his prosecution violates the Speedy Trial Clause of the Sixth Amendment.5

II. LEGAL STANDARD

The Sixth Amendment to the United States Constitution guarantees criminal defendants "the right to a speedy . . . trial." U.S. CONST. amend. VI. The guarantee is "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself." United States v. Marion, 404 U.S. 307, 320 (1971) (quoting United States v. Ewell, 383 U.S. 116, 120 (1966)). Consequently, the speedy trial right attaches when "a defendant is arrested or formally accused." See Betterman v. Montana, 136 S.Ct. 1609, 1613 (2016) (emphasis added); Marion, 404 U.S. at 320 ("[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.").

"In analyzing a Sixth Amendment speedy trial claim," courts in the Fifth Circuit "balance, among other relevant circumstances, (1) the length of the delay;

(2) the reason for the delay; (3) whether the defendant timely asserted his right; and (4) any prejudice resulting to the defendant because of the delay." United States v. Bieganowski, 313 F.3d 264, 284 (5th Cir. 2002) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). "The court balances the factors by `weigh[ing] the first three Barker factors . . . against any prejudice suffered by the defendant due to the delay in prosecution.'" United States v. Molina-Solorio, 577 F.3d 300, 304 (5th Cir. 2009) (quoting United States v. Serna-Villarreal, 352 F.3d 225, 230-31 (5th Cir. 2003)).

The first factor, length of delay, is a "threshold requirement" courts must consider before examining the other factors. See Laws v. Stephens, 536 F. App'x 409, 412 (5th Cir. 2013) (per curiam) (quoting United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003)). Only if the delay between the indictment and trial is greater than one year must the Court "undertake[] a full Barker analysis, looking to the first three factors to decide whether prejudice will be presumed." Molina- Solorio, 577 F.3d at 304 (quoting United States v. Parker, 505 F.3d 323, 328 (5th Cir. 2007)).

III. DISCUSSION

The lag between Guajardo's 2007 indictment and his 2019 arrest and trial date does not violate his Sixth Amendment right to a speedy trial. Accordingly, the Court denies Guajardo's Motion to Dismiss.

Threshold Requirement.— Guajardo satisfies the "threshold requirement" for a speedy trial claim; his indictment and putative trial are separated by more than one year. See Laws, 536 F. App'x at 412; Molina-Solorio, 577 F.3d at 304. Accordingly, the Court will "undertake[] a full Barker analysis." See Molina-Solorio, 577 F.3d at 304.

Length of Delay.— The length of delay, 12 years, weighs in favor of Guajardo's speedy trial claim. See Doggett v. United States, 505 U.S. 647, 652 (1992) (labeling an eight-and-a-half "lag between [the defendant's] indictment and arrest" as "extraordinary"). A lengthy delay by itself, however, is not enough to establish a speedy trial clause violation. Cf. Barker, 407 U.S. at 523 ("We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.").

Reason for Delay.— The reason for delay weighs heavily in the Government's favor. "Any `delays explained by valid reasons or attributable to the conduct of the defendant weigh in favor of the state.'" See Divers v. Cain, 698 F.3d 211, 218 (5th Cir. 2012) (quoting Amos v. Thornton, 646 F.3d 199, 207 (5th Cir. 2011)).

Courts have repeatedly held that a defendant typically may not prevail on a speedy trial claim when the delay between the indictment and arrest is due to the defendant's status as a fugitive and the Government was reasonably diligent in attempting to locate and arrest the defendant. See United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002) ("If the government diligently pursues a defendant from indictment to arrest, a speedy trial claim will always fail without a showing of actual prejudice." (quoting United States v. Bergfeld, 280 F.3d 486, 489 (5th Cir. 2002))); United States v. Sandoval, 990 F.2d 481, 483 (9th Cir. 1993) ("[W]hen the defendant seeks to `avoid detection by American authorities' and any post-indictment delay can be attributed to him, he waives the right to a speedy trial." (quoting United States v. Wangrow, 924 F.2d 1434, 1437 (8th Cir. 1991))); United States v. Blanco, 861 F.2d 773, 780 (2d Cir. 1988) ("Coming from a former fugitive, [the defendant's] claim that her right to a speedy trial was denied carries almost no weight.").

Here, the record evidence indicates that soon after his 2007 indictment, Houston Police Department Officers attempted to execute an arrest warrant for Guajardo at his residence.6 Guajardo was not present, but several of his family members were. After the failed arrest attempt, law enforcement began collecting information on Guajardo and entered his name into the National Crime Information Center ("NCIC"). Entering Guajardo's information into the NCIC alerted law enforcement across the country, as well as the border ports of entry, that Guajardo was wanted on a federal warrant, and that the Marshals Service should be contacted if law enforcement encountered Guajardo. From 2007 until Guajardo's arrest in 2019, law enforcement made annual checks of the NCIC database and other databases for information about Guajardo.7

In 2008, the U.S. Marshals Service received a tip Guajardo was residing at a specific residence in Mexico. Two Deputy Marshals were sent to the residence, but the person residing there was not Guajardo.8 Again, in 2013, the Marshals Service received an anonymous tip that Guajardo was living in Pharr, Texas.9 Deputy Marshals set up surveillance at the address, and eventually made contact with an individual who was similar in appearance to Guajardo. The Deputy Marshals determined this individual was not Guajardo after a comparison of fingerprints.

After Guajardo's arrest, he informed a probation officer that he had lived in Mexico for approximately 12 years with his wife and children.10 He stated that he had not reentered the United States since he emigrated. Guajardo further stated that he had infrequent contact with his United States-based family, approximately once every two years when they would visit him in Mexico. Guajardo also stated to the probation officer that he was hesitant to contact his family in the United States due to his absconder status.11

The record evidence demonstrates law enforcement repeatedly took various steps to locate and apprehend Guajardo, such as surveillance of and interviewing Guajardo's family members and neighbors; checking credit records for any government identification issued to Guajardo; checking criminal databases to ensure Guajardo's arrest if encountered by a law enforcement officer; and alerting border authorities to effectuate an arrest if Guajardo attempted to enter the United States. Courts have found these types of actions to be indicia of diligence by the Government. See United States v. Villarreal, 613 F.3d 1344, 1352-54 (11th Cir. 2010); United States v. Lamar, 562 F. App'x 802, 805 (11th Cir. 2014) (per curiam); United States v. Bagga, 782 F.2d 1541, 1544 (11th Cir. 1986).

In sum, the record evidence establishes that Guajardo intentionally left the United States to avoid arrest and stayed in Mexico to avoid detection for 12 years. The evidence also establishes that law enforcement's efforts to locate Guajardo periodically during these years were sufficient and reasonable. Guajardo's conclusory argument that the Government failed to pursue diligently his arrest is unpersuasive. This factor weighs heavily in favor of denial of Guajardo's speedy trial claim.

Timely Assertion of the Right.— This factor weighs against Guajardo. When a defendant's speedy trial demand is untimely, it will be "difficult for [him] to prove that he was denied a speedy trial." See Barker, 407 U.S. at 532. "Simply asserting this right, though, `does not automatically cause this factor to weigh in a defendant's favor,' as a `defendant who waits too long to assert his right will have his silence weighed against him.'" Divers, 698 F.3d at 219 (quoting Molina-Solorio, 577 F.3d at 306). A defendant's "failure to make a demand can hardly be counted against the defendant during those periods when he was unaware that charges had been lodged against him." United States v. Villarreal, 613 F.3d 1344, 1354 (11th Cir. 2010). When a defendant, however, knows of the indictment and avoids arrest, this factor "weigh[s] heavily against him." See Doggett, 505 U.S. at 653.

The Court finds it is likely that Guajardo knew of his indictment during the entire 12 years he was a fugitive. His family was alerted to the indictment on February 28, 2007, when law enforcement executed a warrant at Guajardo's residence. Despite reasonable efforts by U.S. law enforcement, Guajardo could not be located. When he was eventually apprehended, it was by Mexican authorities in Mexico. Guajardo admitted to the U.S. probation officer that he was hesitant to contact his family living in the United States because of his absconder status. This is strong evidence that Guajardo knew of the indictment and was attempting to avoid detection by law enforcement.

Prejudice.— The fourth and final Barker factor weighs against Guajardo's claim. "Prejudice accounts for at least three interests: `(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.'" Divers, 698 F.3d at 219 (quoting Barker, 407 U.S. at 532). "Ordinarily, the burden of demonstrating . . . prejudice rests on the defendant." United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir. 2003). "[A] defendant can be relieved from bearing this burden in circumstances where the first three Barker factors weigh so heavily in favor of the defendant that prejudice is to be presumed." Id. at 231. Where, as here, a defendant "can claim only one [Barker] factor in his favor, the burden [to demonstrate prejudice] rests with him." See Divers at 219; Amos, 646 F.3d at 208 n.42 (stating the Fifth Circuit has previously found no presumption of prejudice warranted despite "two of the first three Barker factors weigh[ing] heavily in the defendant's favor"). Guajardo has the burden of demonstrating "actual prejudice." See Serna-Villarreal, 352 F.3d at 231.

Guajardo does not demonstrate actual prejudice as a result of delay. Guajardo was not subject to pretrial incarceration until his 2019 arrest. Moreover, Guajardo "points to nothing specific" to demonstrate his defense has been impaired by delay. See Divers, 698 F.3d at 221. Instead, he asserts, without citation to any record evidence, that given the 12-year delay, "many of the witnesses and codefendants . . . who could testify as to the relevant events are unavailable, either having completed their sentences, released to disappear into society, or, are now deceased."12 This conclusory assertion does not suffice. Guajardo has not demonstrated "actual prejudice" as a result of the delay. See Serna-Villarreal, 352 F.3d at 231. This factor favors the Government.

IV. CONCLUSION AND ORDER

Three of the four Barker factors weigh against Guajardo's speedy trial claim. Most significantly, the 12-year lag between indictment and arrest was attributable largely to Guajardo's flight from the United States. The Government pursued reasonably diligent efforts to effect Guajardo's arrest. It is therefore

ORDERED that Defendant Juan Guajardo's Motion to Dismiss [Doc. # 805] is DENIED.