The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1742
_____________
UNITED STATES OF AMERICA
v.
LUIS FIGUEROA,
Appellant
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:14-cr-00672-001)
District Judge: Honorable Julien X. Neals
_____________
Argued: December 2, 2025
______________
Before: CHAGARES, Chief Judge, FREEMAN and
MASCOTT, Circuit Judges.
(Filed: August 25, 2026)
_____________
Julie A. McGrain
Office of Federal Public Defender
800 Cooper Street
Suite 350
Camden, NJ 08102
Timothy M. Shepherd [ARGUED]
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609
Counsel for Appellant
Sabrina G. Comizzoli [ARGUED]
Mark E. Coyne
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellee
_____________
OPINION OF THE COURT
_____________
CHAGARES, Chief Judge.
Following three successive indictments, the negotiation
of a plea agreement, the entry and withdrawal of a guilty plea,
and nearly eight years of pretrial delay, a jury in the District of
2
New Jersey convicted defendant Luis Figueroa of kidnapping,
aggravated sexual abuse, use of and brandishing a firearm
during a crime of violence, possession of a firearm by a felon,
assault of a federal employee, and arson. Figueroa now appeals
his judgment of conviction and sentence, arguing that the
withdrawal of his guilty plea nullified the statute of limitations
waiver in his plea agreement such that his brandishing and
possession charges are untimely. For the reasons set forth
below, we disagree.
We also address Figueroa’s additional claims of error,
including that the District Court incorrectly excluded “force”
from the elements of kidnapping by “kidnap” under 18 U.S.C.
§ 1201(a), that the nearly eight years of pretrial delay violated
his constitutional right to a speedy trial, and that the District
Court improperly directed the jury that the alleged assault
victim held federal employment for the purposes of 18 U.S.C.
§ 111(a)(1). We are not persuaded, however, that any error
occurred or affected the outcome of Figueroa’s trial.
For these reasons, we will affirm the District Court’s
judgment.
I.
Figueroa went on a revenge spree on June 6, 2014.
Armed with a shotgun, a copy of the most recent protection
order obtained against him by his ex-girlfriend (“Victim 1”),
and a handwritten manifesto detailing his desire to make those
who had wronged him “pay,” he drove from his home in
Bronx, New York, to Victim 1’s apartment in Hazleton,
Pennsylvania. Appendix (“App.”) 1804. Victim 1 lived there
3
with her two sisters, her niece, and the seven-year-old son she
shared with Figueroa.
Once Figueroa arrived at Victim 1’s apartment, he
waited for her to open the door before attacking her —
fracturing her eye socket with the butt of his shotgun, punching
her repeatedly until she passed out multiple times, calling her
profane names, and threatening to kill her and her loved ones.
He then grabbed her arm and dragged her down the street
before shoving her into the backseat of his car and placing the
shotgun next to him. As he recklessly sped away, Figueroa
again threatened to kill Victim 1 and forced her to perform oral
sex on him.
Figueroa eventually drove across the state border into
New Jersey and pulled into a rest stop area at the Kittatinny
Point Visitor’s Center (part of the Delaware Water Gap
National Recreation Area). After parking the car, Figueroa
forcibly raped Victim 1 in the backseat. Victim 1 managed to
escape Figueroa once it was over by suggesting to him that he
needed to dispose of the shotgun. She then fled in the car while
he hid the gun in the nearby woods.
When Figueroa returned and realized that both Victim
1 and the car were gone, he set upon a nearby National Park
Service (“NPS”) maintenance worker (“Victim 2”) who was
blowing leaves in the Visitor’s Center parking lot. Figueroa
punched Victim 2 in the ribs, slammed his skull into a
doorhandle, threatened to kill him, and forced him to give
Figueroa the keys to his car. Figueroa then drove to a used car
dealership owned by his former business partners who had
recently served him an eviction notice for a car lot which he
had sublet. There, Figueroa set fire to their office and departed.
4
He was later spotted by law enforcement as he crossed the
George Washington Bridge and initiated a car chase that ended
with his apprehension in New York.
A grand jury in the District of New Jersey consequently
returned a six-count indictment (“First Indictment”) on
November 19, 2014, which charged Figueroa with: (1)
kidnapping in violation of 18 U.S.C. § 1201(a)(1); (2) use of
and brandishing a firearm during a crime of violence
(kidnapping) in violation of 18 U.S.C. § 924(c)(1)(A)(ii); (3)
possession of a firearm by a felon in violation of 18 U.S.C. §
922(g)(1); (4) aggravated sexual abuse in violation of 18
U.S.C. §§ 2241(a)(1) and (a)(2); (5) assault of a federal
employee in violation of 18 U.S.C. §§ 111(a)(1) and (b); and
(6) malicious damage and destruction of property by fire in
violation of 18 U.S.C. § 844(i).
The case was repeatedly continued for nearly four years
while the parties engaged in plea negotiations and the District
Court addressed Figueroa’s competency, his attempted
invocations of an insanity defense, his requests to change
counsel, and his numerous pro se motions.1 In April 2018, the
parties entered into a plea agreement pursuant to Federal Rule
of Criminal Procedure 11(c)(1)(C) wherein Figueroa agreed to
plead guilty to kidnapping, felon in possession, assault of a
federal employee, and arson in exchange for the dismissal of
the brandishing and aggravated sexual abuse charges. The
parties further agreed to a binding sentence of 312 months of
1
Although Figueroa was always represented by counsel, he
occasionally attempted to file pro se motions or raise
arguments of his own.
5
imprisonment and five years of supervised release. The
District Court accepted the plea.
Figueroa moved pro se in July 2018 to withdraw his
plea, claiming that he was innocent of kidnapping and assault
of a federal employee, had been coerced into signing the plea
agreement, and was misled by his attorney into believing that
the Presentence Investigation Report would not reference the
sexual assaults. His attorney consequently withdrew, and
Figueroa continued to file similar motions, both pro se and
through his new attorney, for the next sixteen months.
Figueroa also filed multiple pro se motions to dismiss the
indictment for speedy trial violations during this same time
period, which the District Court struck. The Government
eventually agreed that Figueroa should be permitted to
withdraw his plea, and the District Court agreed. The court
scheduled trial for June 2020.
The trial date was continued several times over two
years pursuant to a series of standing orders suspending all
trials on account of the COVID-19 pandemic and the parties’
joint requests. During this time, the Government obtained a
superseding indictment in September 2020 (“Second
Indictment”), which charged Figueroa with: (1) kidnapping in
violation of 18 U.S.C. § 1201(a)(1); (2) aggravated sexual
abuse (vaginal rape) in violation of 18 U.S.C. §§ 2241(a)(1)
and (a)(2); (3) aggravated sexual abuse (oral rape) in violation
of 18 U.S.C. §§ 2241(a)(1) and (a)(2); (4) use of and
brandishing a firearm during a crime of violence (aggravated
sexual abuse – vaginal rape) in violation of 18 U.S.C. §
924(c)(1)(A)(ii); (5) use of and brandishing a firearm during a
crime of violence (aggravated sexual abuse – oral rape) in
violation of 18 U.S.C. § 924(c)(1)(A)(ii); (6) possession of a
6
firearm by a felon in violation of 18 U.S.C. § 922(g)(1); (7)
assault of a federal employee in violation of 18 U.S.C. §§
111(a)(1) and (b); and (8) malicious damage and destruction of
property by fire in violation of 18 U.S.C. § 844(i). Figueroa’s
attorney responded by filing an omnibus motion, arguing, inter
alia, that the aggravated sexual abuse (oral rape), brandishing,
and felon in possession charges were time-barred and should
be dismissed. The District Court declined to do so, finding that
the statute of limitations had been tolled by a waiver provision
in Figueroa’s plea agreement. Figueroa also filed several
additional pro se motions to dismiss for speedy trial violations
during this time, which the District Court dismissed as
improperly filed in light of his represented status.
Figueroa subsequently obtained a new attorney, who
filed another omnibus motion, arguing, among other things,
that: (1) the sexual abuse counts were multiplicitous; (2) the
brandishing counts were multiplicitous; and (3) the District
Court should hold a Speedy Trial Act hearing. The District
Court dismissed the aggravated sexual abuse (oral rape) count
and the brandishing a firearm during a crime of violence
(aggravated sexual abuse – oral rape) count at the
Government’s request and thus found the multiplicity
argument to be moot. The District Court further denied
Figueroa’s request for a Speedy Trial Act hearing, explaining
that no underlying speedy trial motion had been filed.
The Government consequently obtained an amended
superseding indictment in line with those decisions (“Third
Indictment”) in April 2022, charging Figueroa with:
(1) kidnapping in violation of 18 U.S.C. § 1201(a)(1); (2)
aggravated sexual abuse in violation of 18 U.S.C. §§
2241(a)(1) and (a)(2); (3) use of and brandishing a firearm
7
during a crime of violence (aggravated sexual abuse) in
violation of 18 U.S.C. § 924(c)(1)(A)(ii); (4) possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1); (5)
assault of a federal employee in violation of 18 U.S.C. §§
111(a)(1) and (b); and (6) malicious damage and destruction of
property by fire in violation of 18 U.S.C. § 844(i).
Jury selection began on April 25, 2022. Immediately
thereafter, Figueroa pled guilty without a plea agreement to
felon in possession and arson. Trial then proceeded as to the
remaining counts. After the close of the Government’s case,
Figueroa moved for a judgment of acquittal under Federal Rule
of Criminal Procedure 29, arguing, among other things, that he
should be acquitted of assault of a federal employee because
Victim 2’s position as a maintenance worker did not constitute
federal employment within the meaning of 18 U.S.C. §
111(a)(1). The District Court reserved judgment on the
motion.
The District Court then held a charge conference.
Although the parties discussed the jury instructions for assault
of a federal employee at length, they ultimately agreed that the
District Court should instruct the jury that “[Victim 2] was a
federal employee of the National Park Service” pending the
court’s decision on the Rule 29 motion. App. 1854. Figueroa
also raised several pro se objections to the jury instructions,
including to the omission of a “forcible” element from the
definition of “kidnap” under 18 U.S.C. § 1201(a). App. 1866.
Although the District Court did not initially note this pro se
objection for the record, it later addressed it sua sponte,
explaining that it did not believe that the Government was
required to prove that the kidnapping was forcible. The
8
District Court then instructed the jury. The jury ultimately
returned a guilty verdict on each of the remaining counts.
Following the verdict, the District Court denied the Rule
29 motion, explaining that Victim 2’s position as an NPS
maintenance worker legally constituted federal employment
within the meaning of 18 U.S.C. § 111(a)(1). The District
Court sentenced Figueroa to 516 months of imprisonment,
followed by five years of supervised release. Figueroa timely
appealed.2
II.3
Figueroa raises four arguments on appeal: (1) that his
brandishing and felon in possession charges were untimely
under the statute of limitations; (2) that the jury instructions
improperly excluded a “forcible” element from the definition
of kidnapping by “kidnap” under 18 U.S.C. § 1201(a); (3) that
the almost eight-year delay between his arrest and trial violated
his Sixth Amendment right to a speedy trial; and (4) that the
District Court improperly directed the jury that Victim 2 was a
federal employee for the purposes of 18 U.S.C. § 111(a)(1).
We consider each argument in turn.
2
The District Court entered an amended judgment on June 12,
2024, which does not affect any of the issues on appeal.
3
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
9
A.
Figueroa first challenges his convictions for
brandishing a firearm during a crime of violence and
possession of a firearm by a felon as untimely under the statute
of limitations. Because Figueroa previously moved to dismiss
these charges on statute of limitations grounds, we review de
novo. United States v. Schneider, 801 F.3d 186, 195 (3d Cir.
2015). In general, “a statute-of-limitations defense becomes
part of a case only if the defendant puts the defense in issue.”
Musacchio v. United States, 577 U.S. 237, 248 (2016). If he
does, “the Government then bears the burden of establishing
compliance with the statute of limitations by presenting
evidence that the crime was committed within the limitations
period or by establishing an exception to the limitations
period.” Id. (emphasis omitted).
There is no dispute here that the operative brandishing
and possession charges were first brought in the Second
Indictment in September 2020 — more than a year outside of
the applicable statute of limitations. 4 The Government,
however, contends that these charges were nevertheless timely
because Figueroa’s attack on his possession charge is barred
by his unconditional guilty plea to the same and his 2018 plea
agreement contained a waiver, which tolled the limitations
period.5 We agree on both grounds.
4
The general statute of limitations for non-capital federal
criminal offenses is five years and would have expired on June
6, 2019. See 18 U.S.C. § 3282(a).
5
The Government argues in the alternative that the charges are
timely because the Second Indictment did not substantially
10
1.
As an initial matter, we are persuaded that Figueroa’s
unconditional guilty plea to his felon in possession charge
during trial now bars his statute of limitations attack on that
conviction. This Court has not yet had occasion to consider
this issue explicitly, but has recognized that “[i]t is well
established that a criminal defendant’s unconditional, knowing
and voluntary plea of guilty waives all non-jurisdictional
issues.” Washington v. Sobina, 475 F.3d 162, 165 (3d Cir.
2007). It is likewise equally well established that the federal
statute of limitations “provides a nonjurisdictional defense, not
a jurisdictional limit.” Musacchio, 577 U.S. at 248. We
therefore hold that an unconditional guilty plea waives
appellate review of an otherwise preserved statute of
limitations challenge.6 As a result, we decline to consider the
amend the versions of those charges brought in the First
Indictment, which was timely filed in 2014. Because we
conclude that Figueroa has waived his challenge to his felon in
possession charge and his brandishing charge was timely due
to the statute of limitations waiver in his plea agreement, we
need not and do not address that argument.
6
This conclusion is consistent with the decision of nearly
every other Court of Appeals to have addressed this issue. See,
e.g., United States v. Sanfilippo, 91 F.4th 1380, 1383 (11th Cir.
2024); United States v. Baca-Arias, 590 F. App’x 221, 222 (4th
Cir. 2015) (per curiam); United States v. Hsu, 669 F.3d 112,
117–18 (2d Cir. 2012); United States v. Mendez-Santana, 645
F.3d 822, 829 (6th Cir. 2011); United States v. Hawkinson, 210
F. App’x 527, 529 (7th Cir. 2006); United States v. Soriano-
Hernandez, 310 F.3d 1099, 1103–04 (8th Cir. 2002); United
States v. Littlefield, 105 F.3d 527, 528 (9th Cir. 1997);
11
merits of Figueroa’s statute of limitations attack on his felon in
possession conviction.
2.
The Government next contends that Figueroa’s
remaining statute of limitations challenge to his brandishing
conviction must fail because the statute of limitations was
tolled by a waiver in his 2018 plea agreement. That waiver
states:
in the event that a guilty plea in this matter is not
entered for any reason or the judgment of
conviction entered as a result of this guilty plea
does not remain in full force and effect, LUIS
FIGUEROA agrees that any dismissed charges
and any other charges that are not time-barred by
the applicable statute of limitations on the date
this agreement is signed by LUIS FIGUEROA
may be commenced against him,
notwithstanding the expiration of the limitations
period after LUIS FIGUEROA signs the
Acevedo-Ramos v. United States, 961 F.2d 305, 307–09 (1st
Cir. 1992). But see United States v. Cooper, 956 F.2d 960,
961–62 (10th Cir. 1992) (holding, pre-Musacchio, that the
statute of limitations is a jurisdictional bar to prosecution
which can only be waived by express agreement); United
States v. Broome, 628 F.2d 403, 404–05 (5th Cir. 1980) (per
curiam) (holding, pre-Musacchio, that while a nolo contendere
plea waives all non-jurisdictional challenges, it permits a
defendant to argue that “the statute of limitations bars
prosecution”).
12
agreement.
App. 70. Figueroa now argues, however, that the waiver is no
longer binding because this Court set forth a general rule in
United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013) that
statute of limitations waivers contained in plea agreements are
unenforceable where, as here, the underlying plea is later
withdrawn. This supposedly “accords with the general
principle that plea agreements are void if a party withdraws.”
Figueroa Br. 34. Because his entire plea agreement, including
his statute of limitations waiver, is thus purportedly “null[]”
pursuant to Ciavarella, Figueroa claims that we must vacate his
brandishing conviction as time-barred. Figueroa Br. 33.
We do not read our opinion in Ciavarella to establish so
broad a rule. In that case, the defendant’s statute of limitations
waiver set forth in the plea agreement applied only if he
“successfully vacates or sets aside any conviction or sentence
of incarceration imposed pursuant to this plea agreement.”
Ciavarella, 716 F.3d at 733 (emphasis added). We relied
heavily on that language in finding the waiver inapplicable,
explaining that while it “clearly contemplates a conviction that
was achieved due to that plea agreement . . . Ciavarella’s
conviction . . . was achieved not as a result of the plea
agreement, as Ciavarella withdrew his plea and proceeded to
trial, but as a result of the jury’s verdict.” Id. at 734. We
further noted that because Ciavarella’s Rule 11(c)(1)(C) plea
agreement contained a provision which allowed the parties to
withdraw from the agreement if the District Court rejected the
stipulated sentence, “even if we found the agreement regarding
the statute-of-limitations waiver to include this type of
situation, the waiver was nullified by the [District] Court’s
rejection of, and the parties’ withdrawal from, the agreement.”
13
Id. Thus, far from establishing a general principle that all plea
agreements and statute of limitations waivers are
“automatically invalidate[d]” once a defendant withdraws his
guilty plea, Figueroa Br. 36, we simply concluded that based
on the language of his particular plea agreement and the
parties’ deliberate withdrawal from the same, “Ciavarella did
not waive his statute-of-limitations defense,” Ciavarella, 716
F.3d at 734.7
In any event, this case is readily distinguishable from
Ciavarella. Figueroa’s statute of limitations waiver is broadly
worded unlike the waiver in Ciavarella, applying “in the event
that a guilty plea in this matter is not entered for any reason,”
including a withdrawal of the plea. App. 70 (emphasis added).
7
A rule automatically invalidating statute of limitations
waivers set forth in plea agreements upon the defendant’s
withdrawal of his underlying plea would also make little sense
in light of our previous acknowledgment that:
the government may foreclose [the possibility
that defendants will strategically delay
withdrawing their pleas to run out the statute of
limitations on dismissed charges] by including in
future plea agreements a clause that requires the
defendant to waive the statute of limitations
defense as to dismissed counts if the defendant,
after the period of limitations has expired on the
original charges, withdraws or challenges the
guilty plea.
United States v. Gilchrist, 215 F.3d 333, 339 (3d Cir. 2000).
14
And while Figueroa urges otherwise, the District Court did not
invalidate the plea agreement and statute of limitations waiver
by permitting him to withdraw his plea. Although Figueroa’s
Rule 11(c)(1)(C) plea agreement, like Ciavarella’s, contained
a provision that permitted the parties to withdraw from the plea
agreement if “the Court at any time reject[s] the plea . . . or
act[s] contrary to its terms,” the District Court here accepted
Figueroa’s plea. App. 70. To the extent that Figueroa’s
withdrawal of his plea can be considered “contrary” to the
terms of the plea agreement, it was unilaterally initiated by him
— not the District Court. App. 70. The District Court’s
permission did not transform Figueroa’s conduct into its own.
And even if it did, there is no indication that either party ever
exercised its consequent right to withdraw from the plea
agreement.
Because we have no reason to conclude that the statute
of limitations waiver did not survive the withdrawal of
Figueroa’s guilty plea, we hold that it remains enforceable. We
therefore will not disturb Figueroa’s brandishing conviction on
this ground.8
8
Figueroa further argues that even if his statute of limitations
waiver remains valid, we should decline to enforce it because
he did not knowingly and voluntarily enter into the plea
agreement, and it would be unfair to selectively enforce its
terms only against him. But the record shows that Figueroa
knew exactly what the plea agreement involved and willingly
chose to enter into it. And tolling the statute of limitations
during the pendency of the plea agreement (as the parties
agreed) does not prejudice Figueroa — it simply puts both
parties back into the position they were in prior to signing the
agreement and prevents Figueroa from benefitting from his
15
B.
Figueroa next challenges his kidnapping conviction
pursuant to 18 U.S.C. § 1201(a)(1), claiming that the District
Court erred by omitting a “forcible” element from the jury
instructions on that count.9 Title 18 of the United States Code,
section 1201(a) provides, in relevant part, that “[w]hoever
unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or
otherwise any person . . . shall be punished by imprisonment
for any term of years or for life.” Each of these methods is a
specific factual means of violating the statute. See United
States v. Gillis, 938 F.3d 1181, 1203–05 (11th Cir. 2019). The
Government charged Figueroa with committing kidnapping by
three of these means: (1) kidnap; (2) abduction; and (3)
carrying away. The jury instructions mirrored this and further
defined “‘kidnap’” as “to unlawfully hold, keep, detain, and
confine a person against her will.” App. 1904.
decision to renege. See United States v. Erwin, 765 F.3d 219,
230–31 (3d Cir. 2014).
9
The parties dispute the standard of review that applies to this
issue. Although Figueroa acknowledges that his attorney did
not raise this issue during the charge conference, he
nevertheless argues that our review should be plenary because
he raised the issue pro se and the District Court later addressed
it sua sponte. The Government, however, urges us to apply
plain error review because Figueroa’s counsel agreed to the
instruction. We will assume without deciding that Figueroa is
correct and thus exercise plenary review. See United States v.
Smukler, 991 F.3d 472, 482 (3d Cir. 2021).
16
Figueroa suggests that this was error because the
specific means of “kidnap,” as opposed to abducting or
carrying away, refers to the common-law offense of
kidnapping — that is, “the crime of forcibly abducting a
person.” Kidnapping, Black’s Law Dictionary (12th ed. 2024)
(emphasis added). Because the jury instructions’ definition of
“kidnap” was thus missing the crucial element of force,
according to Figueroa, his § 1201(a)(1) conviction must be
vacated.
We will assume without deciding that Figueroa is
correct and that kidnapping by “kidnap” under § 1201(a)
requires the use of force. Even so, the District Court’s failure
to include such an element in its jury instructions was harmless
error that does not merit vacating Figueroa’s § 1201(a)(1)
conviction. See Neder v. United States, 527 U.S. 1, 15 (1999)
(“[T]he omission of an element is an error that is subject to
harmless-error analysis.”). The Government introduced
evidence through multiple witnesses that upon showing up to
Victim 1’s apartment on June 6, 2014, Figueroa brutally
attacked her, shattering her eye socket with the butt of his
shotgun and “punching [her] nonstop” until she passed out
multiple times. App. 1084. He then “grabbed [Victim 1] by
the arm” while still holding the shotgun in his other hand,
dragged her to his car as she struggled to break free, told her to
“‘[g]et in, bitch,’” and pushed her into the backseat before
speeding away. App. 1087, 1097. Given this overwhelming
and uncontroverted evidence of force, we easily conclude
“beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” Neder, 527 U.S. at 15
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Any
District Court error in not including force in the definition of
kidnapping by “kidnap” pursuant to 18 U.S.C. § 1201(a) was
17
therefore harmless.
C.
Figueroa further attacks his conviction on all counts,
contending that the nearly eight-year delay between his arrest
and trial was “extraordinarily long” and violated his
constitutional right to a speedy trial. 10 Figueroa Br. 26.
Because Figueroa’s attorneys failed to raise this issue before
the District Court,11 we review only for plain error.12 United
10
Notwithstanding his broad challenge to “all counts,”
Figueroa Br. 53, Figueroa’s unconditional guilty plea to the
arson and felon in possession counts waived any constitutional
speedy trial claim he might have with respect to those
convictions, see Washington, 475 F.3d at 166 (“[T]he right to
a speedy trial is non-jurisdictional, and is therefore waived by
an unconditional and voluntary guilty plea.”).
11
Although Figueroa attempted to raise this issue several times
pro se, the District Court declined to rule on it because
Figueroa was represented by counsel.
12
Under ordinary circumstances, a defendant who fails to raise
a constitutional speedy trial argument prior to trial is barred
from receiving appellate review unless he can demonstrate
“good cause” for us to consider it. See Fed. R. Crim. P.
12(b)(3)(A)(iii), (c)(3); see also United States v. Sok, 115 F.4th
251, 259 (3d Cir. 2024) (“Rule 12’s good-cause standard of
review trumps Rule 52(b)’s plain-error standard for issues that
must be raised before trial under Rule 12.”). The Government,
however, forfeited entitlement to the application of the “good
cause” standard here by failing to raise it in its opening brief,
18
States v. Shaw, 891 F.3d 441, 454 (3d Cir. 2018). Under that
standard, the defendant bears the burden of proving: (1) an
error; (2) which is plain; and (3) which affects his or her
substantial rights. Greer v. United States, 593 U.S. 503, 507–
08 (2021). If all three elements are met, we may grant relief so
long as “the error had a serious effect on the fairness, integrity
or public reputation of judicial proceedings.” Id. at 508
(quotation marks omitted).
The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” U.S. Const.
amend. VI. In considering the merits of a defendant’s
constitutional speedy trial challenge, we apply the factors set
forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514
(1972). These include: (1) the length of the delay; (2) the
reason for the delay; (3) the defendant’s assertion of his speedy
trial right; and (4) the prejudice to the defendant. Id. at 530.
No single factor is “either a necessary or sufficient condition
to the finding of a deprivation of the right of speedy trial.” Id.
at 533. Rather, we must “engage in a difficult and sensitive
balancing process” and consider the factors “together with
such other circumstances as may be relevant.” Id. If we
conclude that “a defendant’s right to a speedy trial has been
violated, the indictment must be dismissed.” United States v.
Battis, 589 F.3d 673, 678 (3d Cir. 2009).
instead raising it for the first time in response to a letter
submitted by Figueroa pursuant to Federal Rule of Appellate
Procedure 28(j). See Barna v. Bd. of Sch. Dirs. of Panther
Valley Sch. Dist., 877 F.3d 136, 145–47 (3d Cir. 2017). We
will therefore apply plain error review.
19
The first Barker factor — the length of the delay — “is
to some extent a triggering mechanism.” 407 U.S. at 530.
Unless the defendant demonstrates that “there is some delay
which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance.” Id.
While this is ordinarily a fact-intensive inquiry, id. at 530–31,
here, the Government concedes that the almost eight-year
delay between Figueroa’s arrest and trial is sufficiently
extensive.
We agree and pause to note that we are deeply troubled
by the extent of the delay. See United States v. Velazquez, 749
F.3d 161, 174 (3d Cir. 2014) (noting that a delay of as little as
fourteen months is ordinarily sufficient to trigger a Barker
analysis). Although we note the intervening circumstances of
the pandemic years and Figueroa’s contributions to the delay
of the trial date, a nearly eight-year lag is especially notable
and “extraordinary,” particularly where, as here, the defendant
was incarcerated pending trial. See Doggett v. United States,
505 U.S. 647, 652, 654 (1992). Because this delay thus
“clearly suffices to trigger the speedy trial enquiry,” id. at 652,
the burden consequently shifts to the Government to justify the
delay, Velazquez, 749 F.3d at 174.
The second Barker factor is “[t]he flag all litigants seek
to capture . . . the reason for delay.” United States v. Loud
Hawk, 474 U.S. 302, 315 (1986). The Supreme Court has
instructed that in considering this factor, “different weights
should be assigned to different reasons.” Barker, 407 U.S. at
531. For instance, while 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
20
heavily,” and “a valid reason, such as a missing witness, should
serve to justify appropriate delay.” Id. Any “‘delay caused by
the defense weighs against the defendant,’ including ‘delay
caused by the defendant’s counsel.’” Battis, 589 F.3d at 679–
80 (quoting Vermont v. Brillon, 556 U.S. 81, 90–91 (2009)).
The delay in this case appears predominantly
attributable to Figueroa or to “valid reason[s]” such as the
COVID-19 pandemic which “justify appropriate delay.” See
Barker, 407 U.S. at 531. In the nearly four years between
Figueroa’s arrest in 2014 and his initial guilty plea in 2018, the
District Court granted twenty continuances — each of which
was jointly requested to permit defense counsel time to prepare
properly for the case, enable Figueroa to be evaluated by a
psychiatrist to establish competency and the availability of an
insanity defense, 13 or allow the parties to engage in plea
negotiations.14 And while the District Court further continued
trial for nearly 2 ½ years after Figueroa withdrew his guilty
plea in 2019, each of those continuances was likewise jointly
requested to permit Figueroa’s attorneys additional time to
13
These evaluations found strong evidence of malingering and
Figueroa was deemed competent to stand trial.
14
Figueroa urges us to look beyond the stated reasons for the
continuances, suggesting that this delay was in fact caused by
the Government and District Court’s need to prepare for
another trial during that period. But while he is correct that the
District Judge presided over a four-month trial in 2016,
Figueroa has provided no evidence to indicate that the
continuances — which were jointly requested by his attorney
— were entered for that reason, rather than their stated
purposes, and we will not engage in such speculation.
21
prepare for a complex and lengthy trial,15 consider an insanity
defense, or file additional pre-trial motions, or was issued sua
sponte while regular courtroom operations were intermittently
paused between March 2020 and January 2022 on account of
the COVID-19 pandemic. Thus, while some of these delays
may well have encompassed “issues like scheduling, the
government’s delay in responding to motions, [or] the
government’s efforts to correct errors by superseding
indictments,” Figueroa Br. 58, the majority of this time is
attributable to continuances which were requested, at least
jointly, by Figueroa for reasons that overwhelmingly favored
him. Those periods consequently weigh against Figueroa. See
Brillon, 556 U.S. at 92–93.
As for the COVID-19 continuances, such delays appear
to be “valid” and “justif[iable]” in light of the extenuating
circumstances caused by a global pandemic and the consequent
suspension of all jury trials within the District of New Jersey.
See Barker, 407 U.S. at 531. We will treat pandemic-related
delays as favoring neither side.16
Figueroa can therefore rely, at best, only upon the
15
Figueroa changed counsel several times, necessitating time
for new counsel to get up to speed each time.
16
This approach accords with that of several of our sister
Courts of Appeals. See, e.g., United States v. Huertas, 148
F.4th 1, 28 n.24 (1st Cir. 2025); United States v. Gordon, 93
F.4th 294, 307 (5th Cir. 2024); United States v. Allen, 86 F.4th
295, 305 (6th Cir. 2023); United States v. Pair, 84 F.4th 577,
589 (4th Cir. 2023); United States v. Snyder, 71 F.4th 555, 578
(7th Cir. 2023), rev’d on other grounds, 603 U.S. 1 (2024);
United States v. Keith, 61 F.4th 839, 853 (10th Cir. 2023).
22
sixteen months between when he first sought to withdraw his
plea in late July 2018, and when the District Court finally
permitted him to do so in December 2019. Although Figueroa
was adjudged guilty during this time, the only continuance
entered was jointly requested to permit the Government to hire
a doctor to examine Figueroa in response to his claim that his
guilty plea was the result of mental illness. That continuance
was not entered until November 2019 — more than a year after
Figueroa filed his initial pro se withdrawal motion — and the
Government has provided no explanation for why this period
should not be considered to weigh against it. Nevertheless,
absent any suggestion of deliberate gamesmanship, this delay
counts, at most, as “negligence” under the Barker standards,
and we will accord it relatively little weight. 407 U.S. at 531.
And because the bulk of the delay is still primarily attributable
to Figueroa, we will weigh this factor in the Government’s
favor.
The third Barker factor considers “the defendant’s
responsibility to assert his right.” 407 U.S. at 531. In
analyzing this factor, the Supreme Court has explained that a
“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” as “[t]he more serious
the deprivation, the more likely the defendant is to complain.”
Id. at 531–32. A “failure to assert the right,” including through
proper channels, will therefore “make it difficult for a
defendant to prove that he was denied a speedy trial.” Id. at
532; accord Hakeem v. Breyer, 990 F.2d 750, 765–66 (3d Cir.
1993) (explaining that for a represented defendant to “tip the
Barker scales significantly in his favor on the factor of
assertion of the right,” he should point to a “formal motion . . .
made to the trial court,” “notice given to the prosecution,” or
23
“some evidence of direct instruction to counsel to assert the
right at a time when formal assertion would have some chance
of success”).
Figueroa’s attorneys never formally filed a speedy trial
motion. 17 But Figueroa did so pro se on several occasions.
These pro se motions might ordinarily “indicate that [Figueroa]
was concerned that his trial happen promptly, and provide
some evidence that his right to a speedy trial was being
violated.” Battis, 589 F.3d at 681. But their weight is reduced
by the fact that Figueroa never expressed a desire to be tried
promptly. Rather, he only sought dismissal of the indictment
and inundated “the District Court’s docket with repetitive and
unsuccessful motions” while agreeing to repeated
continuances of his trial date. Loud Hawk, 474 U.S. at 315;
see also Hakeem, 990 F.2d at 764 (“Repeated assertions of the
right do not . . . balance this factor in favor of a [defendant]
when other actions indicate that he is unwilling or unready to
go to trial.”). Because the record thus “strongly indicates . . .
that the defendant did not want a speedy trial” but instead
“hoped to take advantage of the delay in which he had
acquiesced, and thereby obtain a dismissal of the charges,” we
accord this factor little weight. Barker, 407 U.S. at 535–36.
The final and most important Barker factor is prejudice
to the defendant in “light of the interests . . . which the speedy
trial right was designed to protect.” Id. at 532; United States
v. Shulick, 18 F.4th 91, 102 (3d Cir. 2021). The Supreme
Court has identified three such interests: “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
17
Figueroa’s attorneys requested a Speedy Trial Act hearing
and briefing schedule, but no formal motion was ever filed on
those grounds.
24
concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.” Barker, 407 U.S. at 532. Of these,
“the most serious is the last, because the inability of a
defendant to adequately prepare his case skews the fairness of
the entire system.” Id. In some circumstances, however, a
defendant may be able to establish that an “excessive delay” is
presumptively prejudicial, even without “affirmative proof of
particularized prejudice.” Doggett, 505 U.S. at 655. But even
“[t]his presumption of prejudice can be mitigated by a showing
that the defendant acquiesced in the delay, or can be rebutted
if the Government ‘affirmatively proves that the delay left the
defendant’s ability to defend himself unimpaired.’” Battis, 589
F.3d at 682 (quoting Doggett, 505 U.S. at 652 n.1, 658)
(citation modified).
Under the Barker factors and other Supreme Court
precedent, there can be little doubt here that the almost eight-
year period of delay was so extensive as to be presumptively
prejudicial and caused Figueroa to experience oppressive
pretrial incarceration as well as anxiety and concern. See
Doggett, 505 U.S. at 657–58 (holding an 8 ½ year delay to be
presumptively prejudicial). But this prejudice — both
presumptive and particularized —is significantly mitigated by
the fact that Figueroa acquiesced to the vast majority of the
delay and perhaps even rebutted 18 by the absence of any
18
We have previously recognized that “the government faces
a high, and potentially insurmountable, hurdle in seeking to
disprove general prejudice where the period of delay is
extraordinarily long.” Velazquez, 749 F.3d at 185.
25
identifiable impairment to Figueroa’s defense. 19 And “such
presumptive prejudice cannot alone carry a Sixth Amendment
claim without regard to the other Barker criteria.” Doggett,
505 U.S. at 656. To the extent that this factor thus weighs
weakly in Figueroa’s favor, it still “simply cannot outweigh the
other Barker factors, which do not support a conclusion that
[Figueroa] suffered prejudice from denial of a speedy trial.”
United States v. Dent, 149 F.3d 180, 185 (3d Cir. 1998).
We realize the gravity of our decision today. But
notwithstanding the extensive delay, we are persuaded that in
line with the Barker analysis above, no constitutional speedy
trial violation occurred here. While the protracted delay was
certainly sufficient to trigger a Barker inquiry, Figueroa bore
primary responsibility for the majority of that delay and failed
to assert his right in a way that indicated he truly desired a
speedy trial rather than to simply engender a dismissal of his
charges. The Barker factors consequently do not, on balance,
“justify the severe remedy of dismissing the indictment” in this
case. Loud Hawk, 474 U.S. at 317. And as there is no error,
let alone plain error, we will not vacate Figueroa’s convictions
on this basis.
D.
19
Although Figueroa complained about the loss of his father
as a potential witness, he never specified how his father would
have aided in his defense, and it is unclear how he would have
done so. See United States v. Dent, 149 F.3d 180, 185 (3d Cir.
1998) (concluding that the intervening death of the defendant’s
parents was not prejudicial where their testimony would not
have aided in his defense).
26
Figueroa finally challenges his conviction for assaulting
a federal employee in violation of 18 U.S.C. § 111(a)(1),
claiming that the District Court improperly invaded the jury’s
fact-finding role in violation of the Due Process Clause and
Sixth Amendment by directing it that Victim 2 held federal
employment at the time of the assault. Because Figueroa failed
to raise this objection before the District Court, we review for
plain error. United States v. Dobson, 419 F.3d 231, 236 (3d
Cir. 2005).
Section 111(a)(1) provides that it is a crime to “forcibly
assault[], resist[], oppose[], impede[], intimidate[], or
interfere[] with any person designated in section 1114 of this
title while engaged in or on account of the performance of
official duties.” Section 1114, in turn, defines the relevant
class of potential victims as “any officer or employee of the
United States or of any agency in any branch of the United
States Government.” 18 U.S.C. § 1114(a). To establish a
violation of § 111(a)(1), the Government must therefore prove
that the alleged victim was a federal officer or employee.
According to Figueroa, this consists of two components: (1) a
legal question as to whether the relevant position (e.g., NPS
maintenance workers) qualifies as federal employment under
§ 1114; and (2) a factual question as to whether the alleged
victim (e.g., Victim 2) held that position. The District Court’s
instruction, however, informed the jury that: “You are
instructed that [Victim 2] was a federal employee of the
National Park Service.” App. 1912. Because this purportedly
went beyond answering the legal question of whether an NPS
maintenance worker is a federal employee and also directed a
verdict on the key factual question of whether Victim 2 held
that position, Figueroa argues that his conviction must be
vacated. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)
27
(“The [Sixth Amendment] right includes, of course, as its most
important element, the right to have the jury, rather than the
judge, reach the requisite finding of ‘guilty.’”); In re Winship,
397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged.”).
But even assuming that this was error and that such error
was plain, Figueroa falters at the third prong of the plain error
analysis — that is, he cannot show that it affected his
substantial rights.20 In most cases, to affect substantial rights
“means that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.” United
States v. Olano, 507 U.S. 725, 734 (1993). And while we have
previously explained that the “omission of an essential element
of an offense ordinarily constitutes plain error, we have
declined to adopt a per se rule to that effect.” United States v.
Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (citation and
quotation marks omitted). Rather, “[i]n the case of an
20
The Government suggests that Figueroa invited and thus
waived the alleged error by requesting that instruction. But
review of the record does not support that characterization.
While Figueroa may have assented to the Government’s
proposed instruction, he did not suggest it himself or
proactively ask for the jury to be instructed that Victim 2 was
a federal employee. Because Figueroa “acquiesced to an
instruction” rather than “specifically requested” it, he
“forfeited (rather than waived) the argument and we may
correct the error if it was ‘plain error . . . affecting substantial
rights.’” United States v. Ferriero, 866 F.3d 107, 117 n.10 (3d
Cir. 2017) (quoting Fed. R. Crim. P. 52(b)).
28
erroneous jury instruction, ‘the relevant inquiry . . . is whether,
in light of the evidence presented at trial, the failure to instruct
had a prejudicial impact on the jury’s deliberations, so that it
produced a miscarriage of justice.’” United States v.
Haywood, 363 F.3d 200, 207 (3d Cir. 2004) (quoting Xavier,
2 F.3d at 1287); accord United States v. Marcus, 560 U.S. 258,
262 (2010) (explaining “‘prejudicial’ . . . means that there must
be a reasonable probability that the error affected the outcome
of the trial”).
No such prejudice exists here. While the District Court
may have directed the jury that Victim 2 was a federal
employee, it also instructed the jury that it needed to find that
“[Victim 2] was forcibly assaulted while engaged in the
performance of his official duties” and that it had to be
“established beyond a reasonable doubt that the person
assaulted was in fact a federal employee acting in the course of
his or her duty.” App. 1911–12 (emphases added). Implicit in
those instructions is the requirement that the jury find that
Victim 2 had official duties to perform — that is, it could not
come to that conclusion unless it also found that Victim 2 was
an NPS employee. Cf. Government of the Virgin Islands v.
Rosa, 399 F.3d 283, 296–97 (3d Cir. 2005) (finding no plain
error where the missing element was “implicit in the jury’s
finding” on another element).
Moreover, the Government adduced overwhelming
evidence of Victim 2’s federal employment status at trial.
Victim 2 and an NPS ranger both testified that at the time of
Figueroa’s attack, Victim 2 was employed by the maintenance
division of the NPS — a federal agency — and stationed at a
national recreation area. Several eyewitnesses further
provided circumstantial testimony identifying Victim 2 as a
29
“park ranger” or a “parks system employee” and noting that he
wore an NPS uniform and carried a “parks system” radio. App.
1389, 1398, 1537, 1539. In light of this evidence, there is no
reasonable probability that the District Court’s purportedly
erroneous instruction affected the outcome of the verdict, nor
that it resulted in a miscarriage of justice. See Marcus, 560
U.S. at 262; Haywood, 363 F.3d at 207. This is thus not that
“rare case in which an improper instruction will justify reversal
of a criminal conviction when no objection has been made in
the trial court,” Rosa, 399 F.3d at 294 (quotation marks
omitted), and we will not disturb Figueroa’s § 111(a)(1)
conviction on this basis.
IV.
For the foregoing reasons, we will affirm the judgment
of the District Court.
30