Nevertheless, the Ninth Circuit has applied the Sixth Amendment framework where, as here, the Government is alleged to have unreasonably delayed in issuing a superseding indictment. See, e.g., United States v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003); United States v. Sperow, 412 F. App'x 4, 7 (9th Cir. 2010). The U.S. Supreme Court has identified four factors (the "Barker factors") to be considered in determining whether a delay between indictment and trial rises to the level of a Sixth Amendment violation: "(1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice resulting from the delay."

The Due Process Clause of the Fifth Amendment plays a limited role in protecting against pre-indictment delay because "statutes of limitations provide a predictable, legislatively enacted limitation on prosecutorial delay." United States v. Sperow, 412 Fed. Appx. 4, 5 (9th Cir. 2010) (citing United States v. Lovasco, 431 U.S. 783, 789 (1977)). To show unconstitutional pre-indictment delay, a defendant must first establish that he or she "suffered actual, non-speculative prejudice from the delay."