United States v. Adan Flores-Lagonas

U
                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-3108
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                          Adan Margritos Flores-Lagonas

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                  ____________

                            Submitted: October 23, 2020
                               Filed: April 2, 2021
                                 ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

SMITH, Chief Judge.

       Adan Margritos Flores-Lagonas pleaded guilty to being a felon in possession
of a firearm and ammunition in June 2019. See 18 U.S.C. § 922(g)(1). Law
enforcement was investigating a drug trafficking operation when Flores-Lagonas fled
the scene of a controlled delivery. Officers then arrested and searched him. Evidence
obtained in the search implicated him in the drug trafficking. Flores-Lagonas was
indicted in July 2015. Nearly four years elapsed between his indictment and his
conditional guilty plea.

       Flores-Lagonas moved to suppress evidence obtained in the search on Fourth
Amendment grounds, moved to dismiss the indictment for alleged police perjury, and
moved to dismiss the indictment for Sixth Amendment and Speedy Trial Act
violations. The district court1 denied each motion. On appeal, Flores-Lagonas argues
that the district court (1) erred in concluding that there was no Fourth Amendment
violation, (2) erred in denying his motion to dismiss for police perjury, and (3) erred
in concluding that there was no Sixth Amendment or Speedy Trial Act violation. We
affirm.

                                      I. Background
      Flores-Lagonas directed an individual to meet him and deliver
methamphetamine. Flores-Lagonas did not know, however, that the individual was
a cooperating individual (CI). On May 13, 2015, police set up a controlled delivery
between Flores-Lagonas and the CI in a shopping center parking lot in Rochester,
Minnesota.2 The CI, under police surveillance, was to deliver four kilograms of
methamphetamine to Flores-Lagonas. When the delivery time neared, Flores-Lagonas
arrived in the parking lot by car, accompanied by Perez-Juarez and another passenger.



      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
      2
       Flores-Lagonas caught the police’s attention on March 31, 2015, when police
stopped the car of Jonathan Perez-Juarez. Flores-Lagonas was a passenger in the car.
Perez-Juarez had an outstanding warrant and was arrested on the scene. During that
stop, police found a loaded handgun, a loaded magazine, and 5.8 grams of
methamphetamine in the car. They found an additional 3.6 grams on Perez-Juarez.
Perez-Juarez is a co-defendant in this case.


                                         -2-
       Law enforcement stationed surveillance units in various places around the
parking lot. Officer Brian Green and three other law enforcement officers were
positioned around the corner from the parking lot in an unmarked squad vehicle. The
officers in that vehicle could not see the parking lot, but they received information
from the surveillance officers via phone and radio. Sergeant James Schueller and
another officer were stationed in the parking lot in an unmarked Jeep Grand
Cherokee.

      Surveillance officers observed Flores-Lagonas and Perez-Juarez exiting a blue
Chrysler Pacifica and entering a Target store. Inside Target, Flores-Lagonas gave
Perez-Juarez a cell phone. Perez-Juarez used the phone to communicate with the CI.
Perez-Juarez and the CI coordinated a meeting in the parking lot

       While Perez-Juarez approached the CI’s car by foot, surveillance officers
observed Flores-Lagonas returning to the Pacifica. After getting into the car, he drove
slowly around the parking lot before parking across from where the CI and Perez-
Juarez were meeting. A police surveillance camera began capturing the incident at
this point.3 Perez-Juarez then left the CI and walked back towards the Pacifica.

       Before Perez-Juarez reached the Pacifica, Officer Green and his team received
instructions to arrest Flores-Lagonas and his passenger. The officers pulled up to the
Pacifica in the unmarked squad car and emerged in unison with their weapons drawn.4
In the meantime, Sergeant Schueller had driven the Jeep towards the other side of the
Pacifica to block its path. Officer Green later testified that he was wearing a marked


      3
      The surveillance camera was positioned in the adjoining parking lot, and its
view of the events was partially obstructed by a sign and other vehicles.
      4
        The weapons are not visible in the surveillance video, but it is undisputed that
the officers had their weapons drawn as they approached the Pacifica.


                                          -3-
tactical vest with the word “Police” written across the front. Sergeant Schueller
testified that at least two of the officers were wearing marked tactical vests.5 Both
Officer Green and Sergeant Schueller testified that the officers who emerged from the
unmarked car loudly identified themselves as law enforcement.6

       Seeing the officers approach, Flores-Lagonas attempted to flee in the Pacifica.
On his way out of the parking lot, his vehicle struck Sergeant Schueller’s Jeep. A car
chase ensued. Several officers, including Sergeant Schueller, pursued the Pacifica.
Sergeant Schueller testified that he turned on his hazard lights, sounded his horn, and
activated emergency police lights as he pursued Flores-Lagonas. He also testified that
Flores-Lagonas accelerated to 90 miles per hour in a 55 miles-per-hour zone and that
he saw Flores-Lagonas discard what appeared to be “white powder” out of the car
window.

Id. at 45.

Flores-Lagonas eventually lost control of his car, which skidded
off the road and into a field. Sergeant Schueller and his partner got out of their
vehicle, drew their weapons, and yelled commands as they approached the Pacifica.7
Flores-Lagonas then exited the Pacifica and began to run across the field. Sergeant
Schueller pursued Flores-Lagonas by foot and ultimately apprehended him.

     After other officers arrived on the scene, Sergeant Schueller conducted a pat-
down of Flores-Lagonas and found two loaded handgun magazines. The other

      5
      Only one officer is fully visible in the surveillance footage; he appears to be
wearing a police uniform and badge.
      6
        Officer Green said he shouted “Stop. Police.” Crim. Mots. Hr’g Trans. at 22,
United States v. Flores-Lagonas, No. 0:15-cr-00210-MJD-DTS (D. Minn. 2019),
ECF No. 618. Sergeant Schueller testified that the officers said “something to the
effect of, [‘]You’re under arrest, put your hands up, sheriff’s office,[’] those types of
commands.”

Id. at 40.
7

        Sergeant Schueller testified that he shouted, “Sheriff’s Office. You’re under
arrest. Get on the ground.”

Id. at 48.

-4-

officers searched the Pacifica and recovered a handgun and another loaded magazine
by the driver’s seat. Flores-Lagonas, who was a convicted felon at the time, admitted
to possessing the gun.

       Flores-Lagonas was indicted on July 14, 2015, for conspiracy to distribute and
intent to possess methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846;
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); being
a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1); and
carrying and using a firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A). Nearly four years later, on June 4, 2019,
Flores-Lagonas pleaded guilty. Because of the lengthy procedural background in this
case, we recite only the dates and events most relevant to this appeal.

       Flores-Lagonas moved to suppress the evidence found in his car, arguing that
the officers lacked reasonable suspicion or probable cause to stop, arrest, and search
him. The court conducted an evidentiary hearing on October 14, 2015. Officer Green
and Sergeant Schueller testified. The magistrate judge issued a report and
recommendation (“report”), recommending the denial of the motion to suppress. The
magistrate judge concluded that the officers had reasonable suspicion to stop Flores-
Lagonas in the parking lot but noted that the Pacifica did not actually stop. The
magistrate judge also concluded that even in the absence of reasonable suspicion for
the initial stop, the officers eventually had probable cause to arrest Flores-Lagonas
on multiple grounds, including his “attempt to flee from law enforcement and
subsequent traffic violations.” United States v. Flores-Lagonas, No.
0:15-cr-00210-MJD-DTS, 

2015 WL 9313516

, at *5 (D. Minn. Nov. 12, 2015), report
and recommendation adopted, 0:15-cr-00210-MJD-DTS, 

2015 WL 9294288

(D.
Minn. Dec. 21, 2015). The district court adopted the report in its entirety and denied
the motion to suppress.




                                         -5-
      Between August 2015 and January 2016, Flores-Lagonas’s attorney moved for
several continuances for personal exigencies.8 The court granted the motions and
excluded the relevant time under the Speedy Trial Act (“Act”).9

       On February 1, 2016, the government filed a superceding indictment adding
three new co-defendants: Nicole Angela Davis, Epifanio Salgado Flores, and Felix
Nacedo Flores. One month later, Flores-Lagonas filed a pretrial motion for severance.
Salgado Flores was the last of the new co-defendants to make his initial appearance;
he appeared on March 29, 2016. The government and Salgado Flores filed various
pretrial motions in April 2016. Flores-Lagonas withdrew his motion for severance in
early May 2016. On May 4, 2016, the government moved to exclude time under the
Speedy Trial Act. Flores-Lagonas did not object. As of that date, the pretrial motions
filed by the government and Salgado Flores were still pending. The district court
granted the motion on May 13, 2016, and excluded the time from February 1, 2016,
through May 13, 2016, from the calculation of the Act’s seventy-day trial deadline.

      Salgado Flores’s pretrial motions were still pending when he pleaded guilty on
June 6, 2016. The government and Flores-Lagonas filed motions in limine on June
6, 2016, and June 7, 2016, respectively. The district court ruled on those motions on
June 17, 2016.



      8
       The attorney was hospitalized with a serious illness in August 2015; his father
passed away in September 2015; and he had several medical appointments in January
2016.
      9
       Under the Act, a federal criminal defendant must be brought to trial within
seventy days of the filing of his indictment or his arraignment, whichever is later. 18
U.S.C. § 3161(c)(1). “Certain days, however, may be excluded from the seventy-day
calculation.” United States v. Yerkes, 

345 F.3d 558

, 561 (8th Cir. 2003). 18 U.S.C.
§ 3161(h) covers the periods of time that a judge shall exclude.


                                         -6-
       Trial was set to begin on June 20, 2016. That morning, however, the district
court granted Flores-Lagonas’s motion for a competency evaluation after Flores-
Lagonas “failed to respond to the [c]ourt’s comments and spoke incoherently about
the jurisdiction of the [c]ourt.” Order Granting Def.’s Mot. Psych. Eval. at 1, United
States v. Flores-Lagonas, No. 0:15-cr-00210-MJD-DTS (D. Minn. 2019), ECF No.
302. Flores-Lagonas’s counsel had “represent[ed] that he [was] unable to
communicate with [Flores-Lagonas] based on [Flores-Lagonas’s] increasing
insistence on only discussing incoherent jurisdictional issues.”10

Id. at 1–2.

       Flores-Lagonas went through multiple competency proceedings over the next
year and a half. The magistrate judge twice found him incompetent to stand trial.
Each time, he was committed to the custody of the Attorney General to restore his
competency. On December 4, 2018, after a third competency proceeding, the
magistrate judge determined that Flores-Lagonas was mentally competent to stand
trial.

      Over the course of his competency proceedings, Flores-Lagonas requested and
was appointed new counsel. His new attorney moved to dismiss the superceding
indictment, arguing that the court should have suppressed evidence and alleging that
Officer Green and Sergeant Schueller provided false testimony during the suppression
hearing. The district court construed this as a motion to reconsider its ruling on the
suppression issue:

      10
         The initial motion for a competency determination—filed by Flores-
Lagonas’s attorney on March 7, 2016—explained that Flores-Lagonas told his
attorney that he is a sovereign citizen, that “an agency which he describes a[s] the
‘Federal Dot’ will investigate his case at the appellate level,” and that he “believes
that this agency is certain to dismiss his case.” Def.’s Mot. Psych. Eval. at 2, United
States v. Flores-Lagonas, No. 0:15-cr-00210-MJD-DTS (D. Minn. 2019), ECF No.
169. Flores-Lagonas’s attorney orally renewed his motion for a competency
determination on June 20, 2016.


                                         -7-
      The [c]ourt has already ruled on the suppression issues that Defendant
      now raises—including whether law enforcement had reasonable
      suspicion to justify the Terry stop and whether law enforcement
      developed multiple independent bases to stop Defendant during the
      encounter. Thus, Defendant is, in fact, moving the [c]ourt to reconsider
      its previous order on the motion to suppress.

United States v. Flores-Lagonas, No. 0:15-cr-00210-MJD-DTS, 

2019 WL 7495401

,
at *1 (D. Minn. May 17, 2019). It denied the motion after concluding that
Flores-Lagonas provided no persuasive basis for granting reconsideration.

        On December 6, 2018, two days after the court found him competent to stand
trial, Flores-Lagonas filed a motion to exclude time through March 4, 2019. The
motion explained that he and his new attorney needed time to confer regarding the
competency finding and to prepare for trial. The court granted the motion. On January
18, 2019, Flores-Lagonas again moved to exclude time through April 22, 2019. The
court granted this motion as well.

       On May 21, 2019, Flores-Lagonas filed a motion to dismiss based on Sixth
Amendment and Speedy Trial Act violations. He argued that his prior counsel
violated his right to a speedy trial by requesting continuances and that he coerced
Flores-Lagonas into signing a statement supporting the exclusion of time. Also on
May 21, 2019, Flores-Lagonas moved to exclude more time under the Act in order
to further prepare for trial.

       The district court denied the motion, concluding that no Speedy Trial Act or
Sixth Amendment violations occurred. It rejected Flores-Lagonas’s argument that his
prior counsel violated his right to a speedy trial by filing motions for continuances
and coercing him into signing waivers of his right to a speedy trial. The court
explained that “there has been no time excluded due to a motion for a continuance by
Defendant’s previous defense counsel, because Defendant’s speedy trial clock was

                                         -8-
reset with the filing of the Superseding Indictment.” United States v. Flores-Lagonas,
No. 0:15-cr-00210-MJD-DTS, 

2019 WL 2249724

, at *3 (D. Minn. May 24, 2019).
It also rejected his argument that the government violated his right to a speedy trial,
finding that the government “diligently sought to take this case to trial” and that
“[t]here is no evidence that the Government has sought to delay this case.”

Id.

The court also

denied Flores-Lagonas’s request to exclude more time because
of the “substantial length of time that this case has been pending.”

Id. The court set

trial for June 17, 2019.

      On June 4, 2019, Flores-Lagonas pleaded guilty to one count of being a felon
in possession of a firearm and one count of being a felon in possession of
ammunition.11 He preserved his right to appeal the denial of his motion to suppress
and motions to dismiss. He received a sentence of 156 months’ imprisonment. Flores-
Lagonas timely appeals.


                                  II. Discussion
       Flores-Lagonas argues that the district court erred in denying his motion to
suppress, his motion to dismiss based on officer perjury, and his motion to dismiss
for Sixth Amendment and Speedy Trial Act violations.

                            A. Fourth Amendment Claims
       Flores-Lagonas maintains that the district court should have suppressed the
evidence found in his car because the officers violated his Fourth Amendment rights
in obtaining that evidence. The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable


      11
         The government dismissed the two other counts—conspiracy to distribute and
intent to possess methamphetamine and carrying and using a firearm during and in
relation to a drug trafficking crime.
                                         -9-
searches and seizures.” U.S. Const. amend. IV. “[E]vidence obtained in violation of
the Fourth Amendment cannot be used in a criminal proceeding against the victim of
the illegal search and seizure.” United States v. Calandra, 

414 U.S. 338

, 347 (1974).
“When reviewing the denial of a motion to suppress, we review questions of law de
novo and the district court’s factual findings for clear error.” United States v.
Chartier, 

772 F.3d 539

, 543 (8th Cir. 2014) (quotation omitted). We will affirm the
district court’s decision “unless it is unsupported by substantial evidence, based on
an erroneous interpretation of the law, or, based on the entire record, it is clear that
a mistake was made.” United States v. Stachowiak, 

521 F.3d 852

, 854 (8th Cir. 2008)
(quotation omitted).

       We first address whether the officers seized Flores-Lagonas in the parking lot.
A Fourth Amendment seizure occurs “when the officer, by means of physical force
or show of authority, has in some way restrained the liberty of a citizen.” Terry v.
Ohio, 

392 U.S. 1

, 19 n.16 (1968). A seizure does not occur unless the individual
actually submits to the “show of authority.” California v. Hodari D., 

499 U.S. 621

,
628 (1991). It is not sufficient for the police to only attempt to stop the individual;
police must actually stop him.

Id. at 626

(“The word ‘seizure’ . . . . does not remotely
apply . . . to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a
fleeing form that continues to flee. That is no seizure.”); see also Johnson v. City of
Ferguson, 

926 F.3d 504

, 506 (8th Cir. 2019) (“[T]here is no seizure without actual
submission.” (alteration in original) (quoting Brendlin v. California, 

551 U.S. 249

,
254 (2007))).

       The officers did not actually stop Flores-Lagonas in the parking lot. They
announced themselves and approached his vehicle with their weapons drawn, but
Flores-Lagonas did not submit to this show of authority. Quite the opposite; he sped
away. Because the officers merely attempted to stop Flores-Lagonas as he continued
to flee, see Hodari 

D., 499 U.S. at 626

, they did not seize him in the parking lot. Put



                                         -10-
simply, there was no stop. Without a stop, a reasonable suspicion analysis is
unnecessary.

       Next, Flores-Lagonas argues that the officers did not have probable cause to
arrest him. We disagree. “A police officer may, consistent with the Fourth
Amendment, arrest someone without a warrant if the officer has probable cause to
believe the person has committed a crime.” Peterson v. Kopp, 

754 F.3d 594

, 598 (8th
Cir. 2014). This is so even “[i]f [the] officer has probable cause to believe that an
individual has committed even a very minor criminal offense in his presence.”
Atwater v. City of Lago Vista, 

532 U.S. 318

, 354 (2001). “Probable cause exists
‘when the totality of the circumstances at the time of the arrest are sufficient to lead
a reasonable person to believe that the defendant has committed or is committing an
offense.’” 

Peterson, 754 F.3d at 598

(quoting Ulrich v. Pope Cnty., 

715 F.3d 1054

,
1059 (8th Cir. 2013)). “Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.” Devenpeck v. Alford, 

543 U.S. 146

, 152 (2004).

       We have consistently held that a defendant’s response to an arrest or Terry
stop—even an invalid one—may constitute independent grounds for arrest. See
United States v. Smith, 

789 F.3d 923

, 929 (8th Cir. 2015); United States v. Blackmon,

662 F.3d 981

, 985–86 (8th Cir. 2011); United States v. Sledge, 

460 F.3d 963

, 966 (8th
Cir. 2006). In Smith, for example, we concluded that the defendant’s “resistance by
fleeing the scene provided independent grounds for his arrest” after he “fled from the
scene of a lawful traffic stop, led officers on a high-speed chase, and abandoned the

vehicle.” 789 F.3d at 929

(quotation omitted).

      Flores-Lagonas’s actions furnished independent grounds for arrest. It is
undisputed that he sped off the moment the officers tried to stop him. The government
argues that the officers had probable cause to arrest him for the following violations
of Minnesota law: (1) fleeing a peace officer by motor vehicle under Minn. Stat.

                                         -11-
§ 609.487(3); (2) fleeing a police officer on foot under Minn. Stat. § 609.487(6);
(3) failing to stop after a collision under Minn. Stat. § 169.09(2); and (4) reckless
driving under Minn. Stat. § 169.13(1)(a). We conclude that Flores-Lagonas’s fleeing
the police and reckless driving provided sufficient probable cause to arrest.

        Flores-Lagonas fled from police officers twice—first by car and then by foot
when his car went off the road. This gave the officers probable cause to believe that
he violated §§ 609.487(3) and (6). Flores-Lagonas responds that he did not know they
were officers and, as a result, that his flight did not give them probable cause to arrest
him. He contends that he fled because he feared for his life when he saw unknown
men with weapons drawn. Even if true, Flores-Lagonas’s perception of the officers
is not relevant because we draw our conclusion from the facts known to the arresting
officer at the time of the arrest. See 

Devenpeck, 543 U.S. at 152

. The officers knew
the following facts at the time of arrest: they were acting in the lawful discharge of
their official duties; they identified themselves as law enforcement; they shouted at
Flores-Lagonas to stop; and they were wearing either police attire, visible police
badges, or tactical vests with the word “Police” written across the front. Further,
Officer Green and Sergeant Schueller each testified that Flores-Lagonas looked
directly at them before driving away. The district court adopted these findings by the
magistrate judge, and Flores-Lagonas cites no evidence suggesting that the court
clearly erred in doing so.

      The officers also had probable cause to arrest Flores-Lagonas for reckless
driving, in violation of § 169.13(1)(a). Officer Green and Sergeant Schueller testified
that when exiting the parking lot, Flores-Lagonas collided with the Jeep driven by
Sergeant Schueller. Police surveillance footage corroborated the collision. Sergeant
Schueller also testified that Flores-Lagonas drove over 90 miles per hour, made
“[s]everal evasive maneuvers,” and “[s]werv[ed] in between . . . cars.” Crim. Mots.
Hr’g Trans. at 44. Ultimately, Flores-Lagonas lost control of the car, which skidded



                                          -12-
off the side of the road, “went about 15 to 20 feet out into [a] field and then came to
a stop.”

Id. at 46–47.

       Considering the totality of the circumstances and drawing on the facts known
to the officers at the time of the attempted stop, car chase, and ultimate arrest, we hold
that the officers had probable cause to believe Flores-Lagonas was engaged in
criminal activity. Consequently, the arrest and subsequent search of Flores-Lagonas’s
vehicle did not violate his Fourth Amendment rights. Therefore, the district court did
not err by denying his motion to suppress the guns and ammunition.

                                   B. Perjury Claims
       Flores-Lagonas argues that the district court erred in denying his motion to
dismiss. The motion alleged that Officer Green and Sergeant Schueller perjured
themselves during the suppression hearing. The district court construed this as a
motion to reconsider its ruling on the suppression issue. We review a district court’s
decision to reconsider its ruling for an abuse of discretion. United States v. Laws, 

819
F.3d 388

, 396 (8th Cir. 2016). Flores-Lagonas urges us to view his motion as a
motion to dismiss, arguing that he makes due process arguments that his first attorney
did not raise. We review the denial of a motion to dismiss de novo. United States v.
Turner, 

842 F.3d 602

, 604 (8th Cir. 2016). Because Flores-Lagonas’s perjury claims
fail under either standard of review, we affirm the district court’s denial.12

       Flores-Lagonas argues that he suffered a due process violation because the
officers provided false statements during his suppression hearing. “[I]t is established
that a conviction obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth Amendment. The same
result obtains when the State, although not soliciting false evidence, allows it to go


      12
        We do not express an opinion on whether a pretrial motion to dismiss could
be granted for alleged perjury at a pretrial suppression hearing.
                                          -13-
uncorrected when it appears.” Napue v. Illinois, 

360 U.S. 264

, 269 (1959) (citations
omitted). “[K]nowing use of perjured testimony requires that a conviction be set aside
‘if there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury.’” United States v. Runge, 

593 F.2d 66

, 73 (8th Cir. 1979)
(quoting United States v. Agurs, 

427 U.S. 97

, 103 (1976)). This is true even if false
testimony “merely impeaches a witness’[s] credibility.”

Id.

To establish a

due process violation based on the prosecutorial use of
      false testimony, a defendant must show that “(1) the prosecution used
      perjured testimony; (2) the prosecution should have known or actually
      knew of the perjury; and (3) there was a reasonable likelihood that the
      perjured testimony could have affected the jury’s verdict.”

United States v. Bass, 

478 F.3d 948

, 951 (8th Cir. 2007) (quoting United States v.
Funchess, 

422 F.3d 698

, 701 (8th Cir. 2005)). This means that the defendant must
show not only that there was an actual perjury, but also that the government knew or
should have known about it.

Id. Additionally, the defendant

must show that the
perjury was material. See United States v. Bigeleisen, 

625 F.2d 203

, 208 (8th Cir.
1980) (“Materiality is the key, and the mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome of the
trial, does not establish ‘materiality’ in the constitutional sense.” (cleaned up)).

      Flores-Lagonas presents no convincing evidence that the officers perjured
themselves during the suppression hearing. He principally argues that the surveillance
footage does not show what the officers described in their testimony. But that does
not perforce render their assertions false. He does not show that the officer’s
testimony and the video conflict in any meaningful way. The surveillance video
provided only a limited view of the events in the parking lot.

      The only finding that potentially conflicts with the surveillance video is the
magistrate judge’s conclusion that “the officers were wearing marked tactical vests

                                         -14-
with the word ‘Police’ clearly displayed across the front.” Flores-Lagonas, 

2015 WL
9313516

, at *5. In the video, the only clearly visible officer emerging from the car
does not appear to be wearing such a vest. This does not prove perjury, however. As
the magistrate judge explained elsewhere in the report, Sergeant Schueller testified
that at least two members of the primary arrest team wore the vests. He stated, “I
believe they were. I know at least two of them that I saw immediately were wearing
them. I can’t for sure say all four were . . . .” Crim. Mots. Hr’g Trans. at 39–40.
Further, Officer Green testified that he was wearing “a tactical vest . . . that said,
‘Police’ across the front in large white letters.”

Id. at 22.

He did not say that they all
were.

                                 C. Speedy Trial Claims
       Finally, we turn to Flores-Lagonas’s speedy-trial claims. He alleges a violation
of his Sixth Amendment right to a speedy trial because approximately four years
passed between his indictment and guilty plea. He also alleges a violation of his rights
under the Speedy Trial Act. We address each claim in turn, reviewing the district
court’s findings of fact for clear error and its legal conclusions de novo. United States
v. Aldaco, 

477 F.3d 1008

, 1016 (8th Cir. 2007).

                                   1. Sixth Amendment
       The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. This “right
‘attaches at the time of arrest or indictment, whichever comes first, and continues
until the trial commences.’” 

Aldaco, 477 F.3d at 1019

(quoting United States v.
Perez-Perez, 

337 F.3d 990

, 995 (8th Cir. 2003)). Courts balance the following four
factors to determine whether a defendant’s Sixth Amendment right to a speedy trial
was violated: “[l]ength of delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.” Barker v. Wingo, 

407 U.S. 514

, 530 (1972).




                                          -15-
      The first factor favors Flores-Lagonas. “To trigger speedy trial analysis, the
defendant must allege the interval between accusation and trial has crossed a line
dividing ordinary from presumptively prejudicial delay.” 

Aldaco, 477 F.3d at 1019

(quotations omitted). We have held that a delay of one year is presumptively
prejudicial. United States v. Jeanetta, 

533 F.3d 651

, 656 (8th Cir. 2008); see also
United States v. Mallett, 

751 F.3d 907

, 913–14 (8th Cir. 2014) (“assum[ing] the
nearly seventeen-month delay between [the defendant’s] original indictment and trial
was presumptively prejudicial”). The government concedes the four-year delay in this
case crosses the line from ordinary to presumptively prejudicial.

      “The second factor involves determining who is responsible for the delay, the
defendant or the government.” United States v. Walker, 

92 F.3d 714

, 717 (8th Cir.
1996). We must “consider the reasons for the delay and evaluate whether the
government or the criminal defendant is more to blame.” 

Mallett, 751 F.3d at 914

(quoting United States v. Summage, 

575 F.3d 864

, 876 (8th Cir. 2009)). There
typically will be no Sixth Amendment violation when the defendant “was responsible
for most of the delay, which was occasioned by his motions to suppress evidence, for
a competency evaluation, and to dismiss.” United States v. Walker, 

840 F.3d 477

, 485
(8th Cir. 2016). When assessing a delay caused by the government, we look at the
government’s justification for the delay:

      A deliberate attempt to delay the trial in order to hamper the defense
      should be weighted heavily against the government. A more neutral
      reason such as negligence or overcrowded courts should be weighted
      less heavily but nevertheless should be considered since the ultimate
      responsibility for such circumstances must rest with the government
      rather than with the defendant. Finally, a valid reason, such as a missing
      witness, should serve to justify appropriate delay.

Barker, 407 U.S. at 531

(footnote omitted).



                                        -16-
        The defense caused most of the delay in this case. The competency evaluation
process alone—which included three competency hearings—took over two years.
Flores-Lagonas also requested multiple continuances. Two days after the district
court found him competent to stand trial, on December 6, 2018, he moved to exclude
time until March 4, 2019, so that he and his new attorney could confer and prepare
for trial. He again moved to exclude time from January 18, 2019, through April 22,
2019, for the same reason. The district court granted both motions. When Flores-
Lagonas moved for yet another continuance in May 2019, however, the district court
denied the request. Flores-Lagonas also filed many other pretrial motions.

      Flores-Lagonas argues that his first attorney caused any delay for which the
defense is responsible. His first attorney sought continuances for his own medical and
personal reasons, but Flores-Lagonas acquiesced to those continuances. He presents
no evidence that his lack of objection was attributable to coercion by counsel or to
government action.

       The government also caused some delay in this case. Specifically, the
superceding indictment added three new co-defendants on February 1, 2016, nearly
seven months after Flores-Lagonas was first indicted. But it had a valid reason, and
such a reason “should serve to justify appropriate delay.” 

Barker, 407 U.S. at 531

.
The addition of several co-defendants in this multi-count drug conspiracy is a valid
reason. There is no evidence to suggest that the government attempted to delay the
trial in an effort to hamper the defense or that it was negligent in obtaining
indictments against the three new co-defendants.13 In fact, as the government points


      13
         Furthermore, we “must accord special deference to a district court’s
determination concerning whether the government was negligent.” United States v.
Rodriguez-Valencia, 

753 F.3d 801

, 806 (8th Cir. 2014) (cleaned up). On this issue,
the district court expressly concluded the following: “The Government has diligently
sought to take this case to trial. There is no evidence that the Government has sought
to delay this case.” Flores-Lagonas, 

2019 WL 2249724

, at *3.
                                        -17-
out, it would have been ready for trial in June 2016. But, Flores-Lagonas was not
competent to proceed at that point. If the trial had occurred in June 2016, about
eleven months would have elapsed between his initial indictment and the trial.
Accordingly, we conclude that the second factor cuts against Flores-Lagonas because
he caused most of the delay, and the government’s delay was reasonably justified.

       The third factor, assertion of the right, favors Flores-Lagonas. He asserted his
right to a speedy trial when he filed his motion to dismiss for speedy-trial violations
on May 21, 2019. We note, however, that Flores-Lagonas simultaneously requested
another continuance.

       We assess the fourth factor, prejudice, “in the light of the interests of
defendants which the speedy trial right was designed to protect.” 

Rodriguez-Valencia,
753 F.3d at 808

(quotations omitted). Promptly bringing defendants to trial prevents
excessive incarceration before trial, with its attendant evils, and avoids harming the
defendant’s ability to fairly defend himself due to the potential loss of evidence and
witnesses. See 

Barker, 407 U.S. at 532

–33. Flores-Lagonas asserts that he was
prejudiced because of oppressive pretrial incarceration, his anxiety, and impairment
to his defense. But these assertions lack specific facts.

      We will therefore review Flores-Lagonas’s claim as involving “presumptive
prejudice,” which the Supreme Court described as follows:

      [W]e 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. While such presumptive prejudice cannot
      alone carry a Sixth Amendment claim without regard to the other Barker
      criteria, it is part of the mix of relevant facts, and its importance
      increases with the length of delay.




                                         -18-
Doggett v. United States, 

505 U.S. 647

, 655–56 (1992) (citation omitted). When a
defendant establishes only presumptive prejudice, but not particularized prejudice,
he can still prove a Sixth Amendment violation if he has help from the other Barker
factors. For example, a defendant may be entitled to relief if he has shown
presumptive prejudice and that the government’s negligence caused the delay.

Id. at
658

(“When the Government’s negligence causes delay six times as long as that
generally sufficient to trigger judicial review, and when the presumption of prejudice,
albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, nor
persuasively rebutted, the defendant is entitled to relief.” (cleaned up)); see also
United States v. Erenas-Luna, 

560 F.3d 772

, 780 (8th Cir. 2009) (holding that
prejudice could be presumed because the government’s negligence caused the
three-and-a-half-year delay). In cases without government negligence, however, we
have required the defendant to show actual or specific prejudice. 

Rodriguez-Valencia,
753 F.3d at 808

.14 As discussed, Flores-Lagonas has not made such a showing.

        Four years is an undeniably long time to await trial in detention. Still, we
conclude that an analysis of the Barker factors favors the government in this case.
Flores-Lagonas caused most of the delay, nearly half of which was due to his
competency proceedings. Further, he cannot rely on presumptive prejudice alone and
has failed to show actual or specific prejudice. These factors outweigh the length of
the delay and his assertion of the right.

                                   2. Speedy Trial Act
       The Speedy Trial Act requires that a federal criminal defendant be brought to
trial within seventy days of the filing of his indictment or his arraignment, whichever


      14
        We acknowledge that the present case is distinguishable from Rodriguez-
Valencia because, unlike Flores-Lagonas, the defendant in that case was not detained
for the duration of the delay. 

Rodriguez-Valencia, 753 F.3d at 808

. Still, Flores-
Lagonas does not allege how this pretrial detention prejudiced him in any
particularized way.
                                         -19-
is later. 18 U.S.C. § 3161(c)(1). The Act provides that certain “periods of delay shall
be excluded . . . in computing the time within which the trial . . . must commence.”


Id. § 3161(h). These

excluded periods include the following: “delay resulting from
any proceeding, including any examinations, to determine the mental competency or
physical capacity of the defendant”; “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the hearing on, or other prompt
disposition of, such motion”; “[a]ny period of delay resulting from the fact that the
defendant is mentally incompetent or physically unable to stand trial”; “[a] reasonable
period of delay when the defendant is joined for trial with a codefendant as to whom
the time for trial has not run and no motion for severance has been granted”; and

      [a]ny period of delay resulting from a continuance granted by any judge
      . . . at the request of the defendant or his counsel . . . , if the judge
      granted such continuance on the basis of his findings that the ends of
      justice served by taking such action outweigh the best interest of the
      public and the defendant in a speedy trial.

Id. § 3161(h)(1)(A), (1)(D),

(4), (6), (7)(A).

       Flores-Lagonas argues that the district court erred when it excluded time for
his first attorney’s continuances, the addition of co-defendants in the superceding
indictment, and his competency proceedings. This argument lacks merit because each
of these periods of delay falls under § 3161(h) of the Act. First, a party’s continuances
are properly excluded so long as the judge ruling on the motion “find[s] that the ends
of justice served by the granting of such continuance outweigh the best interests of
the public and the defendant in a speedy trial.”

Id. § 3161(h)(7)(A).

Judges

must consider certain factors in making this determination, including
“whether the failure to grant the continuance ‘would deny counsel for the defendant
. . . the reasonable time necessary for effective preparation, taking into account the
exercise of due diligence.’” United States v. Harlan, 

960 F.3d 1089

, 1093 (8th Cir.

                                          -20-
2020) (alteration in original) (quoting 18 U.S.C. § 3161(h)(7)(B)(iv)). Here, the court
ruled on each continuance after receiving a detailed explanation from Flores-
Lagonas’s attorney. These explanations gave justifications for the continuances as
necessary to effectively represent his client. The record reveals that the court had
before it, and considered, sufficient information to conclude “that the ends of justice
served . . . outweigh[ed] the best interests of the public and [Flores-Lagonas].” 18
U.S.C. § 3161(h)(7)(A).

      Second, the addition of three newly indicted co-defendants did not violate
Flores-Lagonas’s right to a speedy trial. We have held:

      Pursuant to § 3161(h)(7), when a newly indicted or arraigned defendant
      is joined with a defendant whose speedy trial clock has already started
      running, the latter defendant’s speedy trial clock will be reset so that it
      reflects the speedy trial clock of the newly added codefendant.
      Thereafter, all of the defendants are subject to one controlling speedy
      trial clock and any time periods excluded from the speedy trial
      calculations for one defendant will be applicable to the other defendants.

United States v. Lightfoot, 

483 F.3d 876

, 885–86 (8th Cir. 2007) (citation omitted).
“This insures that speedy trial considerations will not hamper the joinder of
defendants who have different amounts of time left on their respective speedy trial
clocks.”

Id. at 886.

Flores-Lagonas’s speedy-trial clock reset on February 1, 2016,
when the superceding indictment was filed. On that date, his clock became tied to
those of his newly added co-defendants. His clock again reset on March 29, 2016,
when the last of the three new co-defendants made his initial appearance. In addition,
any pretrial motions by his co-defendants had the effect of pausing the communal
clock. See 18 U.S.C. § 3161(h)(1)(D).

     Finally, the court properly excluded the time that elapsed during Flores-
Lagonas’s competency proceedings. The Act clearly states that the court shall exclude


                                         -21-
“delay resulting from any proceeding, including any examinations, to determine the
mental competency or physical capacity of the defendant.”

Id. § 3161(h)(1)(A). The

court also shall exclude “[a]ny period of delay resulting from the fact that the
defendant is mentally incompetent or physically unable to stand trial.”

Id.
§ 3161(h)(4). The

district thus correctly excluded the time from June 20, 2016, when
it granted the motion for a competency determination, through December 4, 2018,
when Flores-Lagonas was restored to competency.

      After excluding all times permitted by the Act, seventy days had not run at the
time Flores-Lagonas pleaded guilty.


                                  III. Conclusion
      For the foregoing reasons, we affirm the district court opinion.
                       ______________________________




                                        -22-

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