Date: 10-29-2014

Case Style: United States of America v. Terry Lee Margheim

Case Number: 12-1459

Judge: Holmes

Court: United States Court of Appeals for the Tenth Circuit (Denver County)

Plaintiff's Attorney: Stephanie N. Gaddy, Special Assistant United States Attorney, Denver, Colorado
(John F. Walsh, United States Attorney, and Gregory M. Morison, Special
Assistant United States Attorney, Denver, Colorado, on the briefs) for Plaintiff-
Appellee.

Defendant's Attorney: Antony M. Noble of The Noble Law Firm, LLC, Lakewood, Colorado, for
Defendant-Appellant Terry Lee Margheim.

Description: At the conclusion of a bench trial, Terry Lee Margheim was convicted of
five counts of an indictment, charging him with various drug- and firearm-related
offenses. He was sentenced to a term of 132 months’ imprisonment. Mr.
Margheim now challenges the validity of his conviction, claiming (1) that the
district court failed to comply with the requirements of the Speedy Trial Act of
1974 (the “Act”), 18 U.S.C. § 3161 et seq.; and (2) that he was denied his
constitutional right to a speedy trial under the Sixth Amendment. Exercising
jurisdiction under 28 U.S.C. § 1291, we reject his challenges and affirm Mr.
Margheim’s conviction.
I
In 2008, a special task force conducted an extensive investigation of
firearms and narcotics violations in Greeley, Colorado. The fruit of that endeavor
was a multi-count indictment naming thirty defendants—including Mr.
Margheim—in a drug-and-gun conspiracy. Mr. Margheim, a previously convicted
felon (on drug charges), had attracted the task force’s attention by telling a
confidential informant (“CI”) that he had a firearm for sale. With the CI’s
assistance, Mr. Margheim sold that firearm to an undercover special agent (“SA”)
of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. When the task
force learned that Mr. Margheim intended to trade his car for methamphetamine,
it began exploring Mr. Margheim’s association with the suspected conspiracy.
The task force arranged another controlled purchase at Mr. Margheim’s residence
whereby on December 10, 2009, Mr. Margheim sold the undercover SA a shortbarreled
shotgun and methamphetamine.
2
Mr. Margheim was subsequently arrested. He made his initial appearance
on July 14, 2010 and went to trial on May 15, 2012. Because the filings
interposed between these two events are critical to the central issue on
appeal—i.e., whether Mr. Margheim was deprived of his right to a speedy
trial—we recite them in detail.
On July 20, 2010, the due date for all pretrial motions, Mr. Margheim
moved to vacate that deadline in part because his attorney had entered her
appearance that day. The government contemporaneously sought a seven-day
continuance to file expert witness disclosures and, one week later, moved to have
thirty-seven days excluded from speedy-trial calculations under the Act. Mr.
Margheim then filed an unopposed motion wherein he argued that his case was
“unusual and complex and merit[ed] ends of justice findings,” and requested a
continuance of 120 days to file additional motions. R., Vol. I, at 214 (Mot., filed
July 30, 2010). Under the Act, periods of time resulting from a continuance are
excludable, inter alia, if the district court, either orally or in writing, “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.” 18 U.S.C. § 3161(h)(7)(A). Based on Mr. Margheim’s request, on
August 3, 2010, the district court granted such a continuance—commonly referred
to as an ends-of-justice continuance—for 120 days (as he requested) and vacated
the prior motions deadline.
3
After the government filed a superseding indictment on August 11, 2010,
the codefendants collectively filed over 150 motions. For his part, on September
17, 2010, Mr. Margheim moved for discovery of coconspirator statements,
discovery of experts, and disclosure of evidence that would implicate Federal
Rule of Evidence 404(b). The government received a brief continuance to
facilitate its response to the glut of pending motions. On October 15, 2010, the
district court held a hearing to address the defendants’ sundry filings—except for
those involving Mr. Margheim, whose attorney had withdrawn from the case on
October 11, 2010. New counsel was appointed for Mr. Margheim on October 22,
2010.
On February 9, 2011, Mr. Margheim filed a motion to suppress “all
evidence obtained against him as a result of [an allegedly] unreasonable and
unconstitutional intrusion onto his curtilage.” R., Vol. I, at 452 (Mot. to
Suppress, filed Feb. 9, 2011). The government filed a response brief on February
24, 2011, arguing that the court should deny the motion without holding a
hearing. Mr. Margheim filed a pro se supplement to the motion on March 29,
2011, but the district court ordered it stricken from the record as an improper pro
se pleading. See United States v. Dunbar, 718 F.3d 1268, 1278 (10th Cir.)
(“[T]he trial judge has no duty to consider pro se motions by a represented
defendant.”), cert. denied, --- U.S. ----, 134 S. Ct. 808 (2013). The record
demonstrates that Mr. Margheim never actually proceeded pro se: his third
4
attorney entered an appearance on March 15, 2011, one day before his second
attorney notified the court that Mr. Margheim had “instructed him to withdraw.”
R., Vol. I, at 475 (Mot. to Withdraw, filed Mar. 16, 2011). Similarly, after
dismissing his third attorney one month later, Mr. Margheim swiftly retained new
representation.
Notably, Mr. Margheim’s final codefendant entered his initial appearance
on May 24, 2011. Still pending at that time was Mr. Margheim’s February 9,
2011, motion to suppress, for which he had not filed a reply brief. On November
14, 2011, the district court ordered Mr. Margheim to file a reply in support of that
motion “on or before . . . November 21, 2011.” Dist. Ct. Doc. 1881 (Min. Order,
dated Nov. 14, 2011). Mr. Margheim instead moved to withdraw the motion to
suppress on November 21, 2011. On January 11, 2012, he moved to withdraw
several other pretrial motions. He also filed a pro se motion to dismiss the
indictment on January 19, 2012, which was ordered stricken from the record.
With his April 2012 trial rapidly approaching, Mr. Margheim filed a
counseled motion to dismiss the indictment for an alleged violation of the Act on
March 30, 2012. The district court denied this motion on April 5, 2012,
concluding, inter alia, that “with the usual seventy-day time period provided by
the Speedy Trial Act and the 120-day ends-of-justice exclusion entered in this
case, the Government has 190 days in which to try [Mr.] Margheim.” R., Vol. I,
5
at 629 (Order, filed Apr. 5, 2012). The next day, the court granted the
government’s request for an additional seven-day ends-of-justice continuance.
On April 13, 2012, Mr. Margheim filed a pro se motion to dismiss the
indictment for violations of the Act as well as his Sixth Amendment right to a
speedy trial. He appeared at a pretrial hearing that day wherein he received a
fourteen-day ends-of-justice continuance and confirmed “aware[ness] that that
time [would] be excluded.” R., Vol. III, at 20 (Hr’g Tr., dated Apr. 13, 2012).1
Subsequently, on April 19, 2012, the district court issued a written order denying
Mr. Margheim’s pro se motion to dismiss. And, on April 23, 2012, the court (1)
granted Mr. Margheim’s motion to withdraw his February 2011 motion to
suppress; (2) granted Mr. Margheim’s motion to withdraw other filings; and (3)
allowed Mr. Margheim to file an additional pro se motion to suppress.
At a hearing on May 14, 2012, the district court heard arguments on, and
then denied, Mr. Margheim’s latest pro se motion to suppress. Mr. Margheim’s
bench trial commenced on May 15, 2012. He was convicted on May 16, 2012 and
was sentenced to serve 132 months in prison on November 1, 2012. This appeal
followed.
1 Filing a motion to continue the trial date does not operate as a waiver
of a defendant’s rights under the Act. See United States v. Allen, 603 F.3d 1202,
1208 n.5 (10th Cir. 2010).
6
II
On appeal, Mr. Margheim claims violations of his statutory and Sixth
Amendment speedy-trial rights. We first address his statutory arguments that: (1)
the length of time between his initial appearance and the initial appearance of his
final codefendant was unreasonable; (2) the number of nonexcludable days
exceeded the Act’s prescribed seventy; and (3) the district court improperly
double-counted the 120-day ends-of-justice continuance.
We generally review a district court’s denial of a motion to dismiss under
the Act for abuse of discretion. See United States v. Banks, 761 F.3d 1163, 1174
(10th Cir.), cert. denied, --- U.S. ----, --- S. Ct. ----, 83 U.S.L.W. 3141 (U.S. Oct.
6, 2014); United States v. Thompson, 524 F.3d 1126, 1131 (10th Cir. 2008).
Similarly, we “review the decision to grant an ends-of-justice continuance for
abuse of discretion.” United States v. Watson, 766 F.3d 1219, 1228 (10th Cir.
2014) (quoting Banks, 761 F.3d at 1174) (internal quotation marks omitted);
accord United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir. 1998).
Bearing in mind that a district court’s discretion under the ends-of-justice
provision has “limits and [is] subject to specific procedures,” Zedner v. United
States, 547 U.S. 489, 499 (2006), “appellate review of decisions made under the
[Act] encompasses a review of whether the district court complied with those
procedures,” Watson, 766 F.3d at 1228. And we resolve the question of whether
the district court in fact heeded those procedural requirements (i.e., used the
7
proper legal standards) under a de novo standard. See United States v. Thomas,
749 F.3d 1302, 1308 (10th Cir. 2014); United States v. Toombs, 574 F.3d 1262,
1268 (10th Cir. 2009). “An abuse of discretion occurs when the district
court . . . fails to consider the applicable legal standard.” United States v. Hasan,
609 F.3d 1121, 1127 (10th Cir. 2010) (citations omitted) (internal quotation
marks omitted); see In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th
Cir. 2009) (“When the district court errs in deciding a legal issue, it necessarily
abuses its discretion.” (quoting In re Qwest Commc’ns Int’l, Inc., 450 F.3d 1179,
1184 (10th Cir. 2006)) (internal quotation marks omitted)). In addition, we
review any factual findings underlying the district court’s ends-of-justice ruling
for clear error. See Thompson, 524 F.3d at 1131; United States v. Spring, 80 F.3d
1450, 1456 (10th Cir. 1996).
Having set forth the appropriate standards, we begin by providing some
background on the Act. We then take up each of Mr. Margheim’s statutory
arguments and reject them.
A
Under the Act, a federal criminal trial must begin within seventy days of
the filing of the indictment or from the date of the defendant’s initial appearance,
whichever occurs later. 18 U.S.C. § 3161(c)(1); Banks, 761 F.3d at 1175. The
purpose of the statute is to “protect a criminal defendant’s constitutional right to a
speedy trial and serve the public interest in bringing prompt criminal
8
proceedings.” United States v. Solon, 596 F.3d 1206, 1214 (10th Cir. 2010)
(quoting Thompson, 524 F.3d at 1131) (internal quotation marks omitted). When
a defendant demonstrates a violation of the Act, the proper remedy is dismissal of
the indictment. See 18 U.S.C. § 3162(a)(2); United States v. Gomez, 67 F.3d
1515, 1519 (10th Cir. 1995). “[T]he district court retains broad discretion
whether to dismiss the indictment with or without prejudice.” United States v.
Abdush-Shakur, 465 F.3d 458, 462 (10th Cir. 2006).
Several “enumerated events” are excluded from the statute’s prescribed
seventy-day period, thus tolling the speedy-trial clock. Bloate v. United States,
559 U.S. 196, 199 (2010); accord United States v. Gordon, 710 F.3d 1124, 1157
(10th Cir.), cert. denied, --- U.S. ----, 134 S. Ct. 617 (2013). As is relevant here,
18 U.S.C. § 3161(h)(1)(D) provides for the exclusion of periods of “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.”
Additionally, § 3161(h)(1)(H) excludes “delay reasonably attributable to any
period, not to exceed thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court.” We have previously
explained that these subsections work in concert such that “if a motion is one that
does not require a hearing, the Act excludes time through the period of its prompt
disposition, but only if that period does not exceed thirty days from the date the
9
motion is taken under advisement.” United States v. Williams, 511 F.3d 1044,
1048 (10th Cir. 2007).
As noted in Part I, supra, time is also excludable when the district court
grants a continuance upon a finding that “the ends of justice served by taking
such action outweigh the best interest of the public and the defendant in a speedy
trial.” 18 U.S.C. § 3161(h)(7)(A); accord Watson, 766 F.3d at 1229. Ends-ofjustice
continuances afford the district court a modicum of flexibility in managing
particularly complex or difficult cases. See Zedner, 547 U.S. at 508.
Nevertheless, “[w]e have repeatedly noted that an ends-of-justice continuance is
‘meant to be a rarely used tool for those cases demanding more flexible
treatment,’” Banks, 761 F.3d at 1175 (quoting Toombs, 574 F.3d at 1269), and
that such continuances “should not be granted cavalierly,” id. (quoting Williams,
511 F.3d at 1049) (internal quotation marks omitted).
B
We first consider Mr. Margheim’s argument that the temporal gap between
his initial appearance and that of his final codefendant effected an unreasonable
delay. The relevant statutory provision excludes “[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.” 18 U.S.C.
§ 3161(h)(6) (emphasis added). The general rule is that “[a]ll defendants who are
joined for trial . . . fall within the speedy trial computation of the latest
10
codefendant.” Henderson v. United States, 476 U.S. 321, 323 n.2 (1986). In this
case, the “latest” codefendant appeared on May 24, 2011, which postdates Mr.
Margheim’s initial appearance (July 14, 2010) by ten months. Mr. Margheim
contends that this time period is not a “reasonable” delay within the meaning of
§ 3161(h)(6) of the Act and, as such, is not excludable.
In determining whether delay attributable to a codefendant is reasonable, a
court must examine all relevant circumstances. Our circuit has articulated three
factors to guide district courts in this exercise: “(1) whether the defendant is free
on bond, (2) whether the defendant zealously pursued a speedy trial, and (3)
whether the circumstances further the purpose behind the exclusion to
‘accommodate the efficient use of prosecutorial and judicial resources in trying
multiple defendants in a single trial.’” United States v. Vogl, 374 F.3d 976, 984
(10th Cir. 2004) (quoting United States v. Olivo, 69 F.3d 1057, 1061 (10th Cir.
1995)). We are satisfied that the district court properly weighed the relevant
variables (hereinafter, the “Vogl factors”) and reached the correct result.
Turning to the Vogl factors, we agree with the district court’s conclusion
that the first one favors Mr. Margheim, as he was not free on bond.2 The second
factor—zealous pursuit of speedy-trial rights—requires a close look at whether a
2 As the district court noted, this factor “is not dispositive.” R., Vol. I,
at 764; see United States v. Loud Hawk, 474 U.S. 302, 311 (1986) (observing that
a “substantial[] impairment of liberty” also befalls defendants who are released on
bond (quoting United States v. MacDonald, 456 U.S. 1, 8 (1982)) (internal
quotation marks omitted)).
11
defendant sought a severance from codefendants or filed motions for continuances
or dismissal during the challenged time period. See United States v. Tranakos,
911 F.2d 1422, 1426 (10th Cir. 1990). Here, the district court observed that Mr.
Margheim did file two motions seeking a speedy trial, but not during the disputed
ten-month interval. Moreover, the district court opined, Mr. Margheim
“necessitat[ed] some additional delay” by requesting the 120-day ends-of-justice
continuance3 and changing attorneys several times during that interlude. R., Vol.
I, at 764. From the district court’s perspective, this conduct by Mr. Margheim
tipped the second Vogl factor towards the government. We detect no reversible
error in this analysis.
3 Mr. Margheim’s suggestion that the second Vogl factor favors him
because he personally “did not consent to” the ends-of-justice continuance, Aplt.
Opening Br. at 10, is legally untenable. On its face, the Act permits courts to
grant continuances “at the request of the defendant or his counsel.” 18
U.S.C. § 3161(h)(7)(A) (emphasis added). The Supreme Court’s guidance on trial
management indicates that this provision does not require the defendant’s
personal acquiescence. See New York v. Hill, 528 U.S. 110, 115 (2000) (“[When]
a specified delay in trial . . . is under consideration, only counsel is in a position
to assess the benefit or detriment of the delay to the defendant’s case.”); Taylor v.
Illinois, 484 U.S. 400, 418 (1988) (“[T]he lawyer has—and must have—full
authority to manage the conduct of the trial. The adversary process could not
function effectively if every tactical decision required client approval.”).
Consistent with that view, we have taken the position that whether an ends-ofjustice
motion has tolling effect depends on whether the court made the necessary
findings, not whether the defendant gave his blessing to the continuance. See,
e.g., United States v. Loughrin, 710 F.3d 1111, 1119 (10th Cir. 2013), aff’d, ---
U.S. ----, 134 S. Ct. 2384 (2014); Toombs, 574 F.3d at 1269. Thus, we need
not—and do not—dwell on the particulars of Mr. Margheim’s personal “consent”
(or lack thereof) to the 120-day ends-of-justice continuance.
12
In particular, we find no merit in Mr. Margheim’s contrary contention that
he “zealously” pursued a speedy trial. His assertion of the right in early 2012
(vis-à-vis motions to dismiss the indictment), while relevant for other purposes,
has no bearing on the ten-month period of delay at issue. During that time period,
Mr. Margheim filed several substantive pretrial motions which signaled his intent
to maximize time allotted for discovery. He later withdrew those motions and, in
an abrupt tactical reversal, went from disputing the charges to disputing whether
he was properly joined to the conspiracy. See Aplt. Opening Br. at 11.
Critically, at no point did Mr. Margheim move for a severance—and this, in
our view (when considered in the context of his other pretrial conduct), fatally
undercuts Mr. Margheim’s argument. See Tranakos, 911 F.2d at 1426 (chiding
defendant who “never sought a severance from the other defendants”); see also
United States v. Vasquez, 918 F.2d 329, 336–37 (2d Cir. 1990) (preventing
codefendants from arguing unreasonable delay when neither moved to sever in a
timely manner); cf. United States v. Theron, 782 F.2d 1510, 1512 (10th Cir. 1986)
(noting as favorable to the defendant’s cause the fact that he “moved for a
severance and an immediate trial, did not join any of his codefendants’ motions,
and was willing to be tried immediately even if it meant waiving certain rights”).
We find it fair to conclude that if Mr. Margheim was concerned about improper
joinder, he would have filed a motion to sever during the time period he now
claims was improperly excluded. Because he did not, and considering his other
13
pretrial conduct, we agree with the district court that the second Vogl factor
weighs in the government’s favor.
Finally, we conclude that the third Vogl factor—effective use of
resources—also favors the government’s position. “When examining the relevant
circumstances, [we] consider . . . the ‘obvious purpose behind the exclusion’; that
is, ‘to accommodate the efficient use of prosecutorial and judicial resources in
trying multiple defendants in a single trial.’” Olivo, 69 F.3d at 1061 (quoting
Theron, 782 F.2d at 1514). A single trial is ideal when the government plans to
“recite a single factual history, put on a single array of evidence, and call a single
group of witnesses.” Vogl, 374 F.3d at 984 (quoting Tranakos, 911 F.2d at 1426)
(internal quotation marks omitted). The inquiry associated with this aspect of our
analysis is highly fact-sensitive. See id.
Mr. Margheim maintains that his circumstances do not promote the
“purpose behind the exclusion” because he was named in only five4 of the
superseding indictment’s 146 counts. And, he insists, the nature of the charges
against him—three firearm-related and two drug-related charges—proves that he
“was not charged with conspiring with the other co-defendants in a single
conspiracy.” Aplt. Opening Br. at 11. We reject this argument. Whether the
government elects, in its broad charging discretion, to expressly charge a
4 Mr. Margheim was initially named in six counts; the government
agreed to dismissal of the sixth original count.
14
defendant with conspiracy will not necessarily indicate anything about whether
the defendant’s allegedly criminal conduct was sufficiently interwoven with that
of the charged conspirators such that there would be judicial or prosecutorial
efficiency gains in trying the defendant along with the charged conspirators. Cf.
United States v. DeVillio, 983 F.2d 1185, 1193–94 (2d Cir. 1993) (holding that
statements were within the scope of the coconspirator exemption to the hearsay
rule, Fed. R. Evid. 801(d)(2)(E), “even though the appellants were not charged in
the indictment with being members of the conspiracy”). Indeed, the record here
reveals that Mr. Margheim was involved in activities that were intertwined with
the charged conspiracy (whether he was an actual conspirator or not), working in
concert with more than one codefendant in drug sales on December 10, 2009 and
January 22, 2010. See, e.g., R., Vol. II, at 162–63 (Hr’g Tr., dated May 14, 2012)
(“[W]e then intercepted telephone calls between Mr. Margheim and [Defendant]
Domingo Garcia.”); id. at 163 (“Our surveillance units had observed Mr.
Margheim driving . . . the target vehicle of our entire investigation . . . .”); id. at
164 (noting that codefendants had discussed “tak[ing] Mr. Margheim’s car to
show . . . [Defendant] Rodolfo Dominguez”); id. at 168–69 (citing the CI’s
suspicion that Mr. Margheim procured methamphetamine from Defendant
Trujillo).
Consequently, we reject Mr. Margheim’s suggestion that, due to his nonconspiracy
charges, his conduct was sufficiently divorced from the charged
15
conspiracy that it would not reasonably further the purposes of 18 U.S.C.
§ 3161(h)(6)’s exclusion to employ that provision in his speedy-trial computation.
Under a similar logic, moreover, we do not believe that the government’s
discretionary decision to charge Mr. Margheim with only a comparatively small
number of counts necessarily tells us anything about the extent of his involvement
in the conspiracy and other offenses charged in the indictment. And on this
record, as we have just seen, his involvement was sufficient to implicate the
purposes of § 3161(h)(6)’s exclusion.
Mr. Margheim proffers several cases that he believes illustrate why the tenmonth
exclusion ought not apply to him. Yet, Mr. Margheim’s belief that these
authorities shift the third Vogl factor in his favor is puzzling. Insofar as they are
apposite at all, these cases actually tend to underscore legal principles that
militate against Mr. Margheim’s cause: specifically, (1) when feasible, courts
prefer joint conspiracy trials; (2) exclusions traceable to one defendant generally
apply to his codefendants; (3) a defendant who does not move to sever risks
having codefendants’ exclusions applied to him; and (4) without demonstrating
actual prejudice from the delay, defendants will rarely prevail on the theory that
such exclusions are unreasonable.5
5 See United States v. Messer, 197 F.3d 330, 339 (9th Cir. 1999);
United States v. Cordova, 157 F.3d 587, 599 (8th Cir. 1998); United States v.
Franklin, 148 F.3d 451, 457 (5th Cir. 1998); United States v. Mayes, 917 F.2d
457, 459–61 (10th Cir. 1990); United States v. Tobin, 840 F.2d 867, 870 (11th
(continued...)
16
In sum, we conclude that the ten-month period of delay between Mr.
Margheim’s initial appearance and that of his final codefendant was not
“unreasonable.” Accordingly, we hold that this time period was properly
excludable under the Act and uphold the district court’s ruling to this effect.
C
By the time Mr. Margheim went to trial, 356 days had elapsed since his
final codefendant’s initial appearance. Consequently, we must determine how
many of those days can be excluded under the Act. The Act obliged the
government to bring Mr. Margheim to trial within seventy days of the last
codefendant’s appearance. Therefore, dismissal is required unless at least 286 of
the 356 days are excludable. See 18 U.S.C. § 3162(a)(2). We requested
supplemental briefing on this issue at oral argument.
While the parties agree that certain pretrial motions tolled the speedy-trial
calendar under § 3161(h), they espouse different views on which motions had that
effect. Mr. Margheim contends that ninety-eight days are not excludable under
the Act—or, conversely, that 258 days (not the necessary 286) are excludable.
He arrives at this total by adding “fifty days from November 22, 2011, to January
10, 2012” to “forty-eight days for the period from February 11, 2012, to March
29, 2012,” during which periods he insists “no motions were pending.” Aplt.
5(...continued)
Cir. 1988); United States v. Wright, 826 F.2d 938, 945 (10th Cir. 1987).
17
Supp. Br. at 5. However, we reach a different result: that 288 days are
excludable, placing the government in the clear (albeit just barely).
First, Mr. Margheim’s attorney-filed motion to suppress permits us to
exclude 181 days. The applicable time period for this motion spans from
February 9, 2011—the filing date—through November 21, 2011—the day Mr.
Margheim withdrew the motion. See Williams, 511 F.3d at 1051 n.5
(“We . . . assume in our calculations that the excludable period from the filing of
the motion through the conclusion . . . of such motion includes both the date of
resolution of any pretrial motion and the date of filing.” (second omission in
original) (internal quotation marks omitted)); Vogl, 374 F.3d at 983 n.6 (operating
under the premise that “the clock would be stopped from the date of filing that
motion”).
Mr. Margheim’s actions dictate how we must classify and ultimately
address the legal implications of this motion to suppress. Under § 3161(h)(1)(D),
periods of “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” are excludable. Section 3161(h)(1)(H) refines the scope of subsection
(D) by excluding periods of “delay reasonably attributable to any period, not to
exceed thirty days, during which any proceeding concerning the defendant is
actually under advisement by the court.” “If under advisement, the maximum
18
excludable delay for the court’s determination is 30 days.” United States v.
Willie, 941 F.2d 1384, 1387 (10th Cir. 1991) (emphasis added).
Guided by the Supreme Court’s interpretation of the interplay between
these provisions in Henderson, we conclude that Mr. Margheim’s motion to
suppress was never “actually under advisement.” In Henderson, the Court
instructed that “[t]he provisions of the Act are designed to exclude all time that is
consumed in placing the trial court in a position to dispose of a motion.” 476
U.S. at 331. The Court defined “under advisement” to begin at “the time the
court receives all the papers it reasonably expects.” Id. at 329. We have
interpreted Henderson’s holding to mean that if the district court seeks “more
information upon which to make its ruling” on a motion, the advisement period
does not begin “[u]ntil the court obtains that information.” Willie, 941 F.2d at
1388 n.2.
Here, we can safely presume that the district court found it prudent not to
rule on the suppression issue without first considering Mr. Margheim’s rejoinder
to the government’s response-brief arguments. We are comfortable making this
inference because on November 14, 2011, the district court ordered Mr.
Margheim to file a reply brief by November 21, 2011. If Mr. Margheim had
replied, it seems a fair conclusion that the district court would have possessed all
of the necessary information for its decision—and the motion could be deemed
“under advisement” on the date of Mr. Margheim’s timely reply-brief filing. Mr.
19
Margheim cannot benefit from the Act’s thirty-day under-advisement exclusion,
however, because—instead of filing a reply—he elected to withdraw the motion
on November 21, 2011. The practical significance of this choice is that the court
never had sufficient information to issue a ruling on the motion to suppress. In
other words, the motion was never “actually under advisement” as contemplated
by § 3161(h)(1)(H) between February 9, 2011, and November 21, 2011. Instead,
it was disposed of under § 3161(h)(1)(D) when Mr. Margheim filed his November
21, 2011, motion to withdraw the motion to suppress.
Thirty days attributable to the motion to withdraw the suppression motion
are also excludable under the Act. Mr. Margheim filed this motion on November
21, 2011, a date we omit from computations because we have already counted it
toward the pending-motion-to-suppress exclusion. Further, we infer from the
district’s one-line mandate granting the motion on April 23, 2012 that neither a
response nor a hearing was necessary.6 As a result, under § 3161(h)(1)(H), the
6 We reject Mr. Margheim’s contention that “[t]he motion to withdraw
the suppression motion was not a motion,” Aplt. Supp. Br. at 4, because it does
not “state the grounds on which it is based and the relief or order sought,” Fed. R.
Crim. P. 47(b). In our view, Mr. Margheim’s filing was a “motion[] that may be
made before trial”—i.e., a “request that the court can determine without a trial of
the general issue.” Fed. R. Crim. P. 12(b)(2) (capitalization altered). And, in the
same vein, Federal Rule of Criminal Procedure 47 makes clear that any time a
party “appl[ies] to the court for an order,” as Mr. Margheim did by announcing
his intent to withdraw the suppression motion, he “must do so by motion.” Fed.
R. Crim. P. 47(a). We do not accept Mr. Margheim’s apparent view that his
motion was self-executing; in light of our circuit’s reliance in “significant
measure on the ability of the district court to manage its own docket,” Katz v.
(continued...)
20
time period between November 22, 2011, and December 21, 2011—thirty
days—is excluded from the speedy-trial calendar.
On January 11, 2012, Mr. Margheim filed another withdrawal motion, this
time corresponding to several motions predating his motion to suppress. January
11, 2012, the filing date, is thereby excludable under the Act. See Williams, 511
F.3d at 1051 n.5. As with the motion to withdraw the suppression motion (and
based on the record), we make the assumption favorable to Mr. Margheim in our
calculations that this motion required no response or hearing. Therefore, although
the motion was not granted until April 23, 2012, only thirty additional days from
the time of filing may be excluded. We thus exclude the time period beginning
January 12, 2012, and ending February 10, 2012.
All of the foregoing motions account for 242 excludable days of the 356-
day delay. Five other pretrial motions, which require much simpler calculations,
act to toll the speedy-trial clock in Mr. Margheim’s case for a total of forty-six
additional days. Consequently, the aggregate number of excludable days
produced by various tolling motions is 288. In the interest of brevity, we
enumerate them in chart form below:
6(...continued)
Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011) (quoting Hartsel Springs Ranch of
Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002)) (internal
quotation marks omitted), it is clear that he needed the court’s permission to
withdraw prior motions.
21
Tolling Motion Relevant Documents Time Period Excluded Excludable Days
Mr. Margheim’s Attorney-Filed Motion to
Suppress
Dist. Ct. Doc. 1200
Dist. Ct. Doc. 1892 (withdrawing)
February 9, 2011 –
November 21, 2011
181 days
Mr. Margheim’s Motion to Withdraw Motion to
Suppress
Dist. Ct. Doc. 1892
Dist. Ct. Doc. 2186 (granting)
November 22, 2011 –
December 21, 2011
30 days
Mr. Margheim’s Motion to Withdraw Pretrial
Motions
Dist. Ct. Doc. 1949
Dist. Ct. Doc. 2186 (granting)
January 11, 2012 –
February 10, 2012
31 days
Mr. Margheim’s Attorney-Filed Motion to
Dismiss for Speedy Trial Act Violations
Dist. Ct. Doc. 2117
Dist. Ct. Doc. 2128 (denying)
March 30, 2012 –
April 5, 2012
7 days
Government’s Motion for Seven-Day Ends-of-
Justice Continuance
Dist. Ct. Doc. 2136
Dist. Ct. Doc. 2137 (granting)
April 6, 2012 –
April 13, 2012
8 days
Mr. Margheim’s Pro Se Motion to Dismiss for
Speedy Trial Act and Constitutional Violations
Dist. Ct. Doc. 2164
Dist. Ct. Doc. 2179 (denying)
April 14, 20127 –
April 19, 2012
6 days
Mr. Margheim’s Motion for Fourteen-Day
Ends-of-Justice Continuance
Dist. Ct. Doc. 2168
Dist. Ct. Doc. 2179 (granting)
April 20, 2012 –
May 3, 2012
14 days
Mr. Margheim’s Pro Se Motion to Suppress Dist. Ct. Doc. 2184
Dist. Ct. Doc. 2212 (confirming denial)
May 4, 2012 –
May 14, 2012
11 days
Trial Began: May 15, 2012
TOTAL EXCLUDABLE DAYS: 288 days
Having determined that 288 days do not count against the government’s
obligations under the Act, we note that there were only sixty-eight statutorily
nonexcludable days between May 24, 2011, and May 15, 2012, which are counted
in the speedy-trial analysis. Yet, notably, the Act clearly allows for Mr.
Margheim’s trial to “commence within seventy days” of May 24, 2011. See 18
U.S.C. § 3161(c)(1). Thus, the government came close to the limit, but sixtyeight
days indisputably satisfies the statutory mandate of “within seventy days.”
7 We do not include the filing date of this motion—April 13, 2012—in
our calculation because that date has already been counted toward the
government’s motion for a seven-day ends-of-justice continuance.
22
For this reason, we affirm the district court’s conclusion that there was no
violation of the Act.
D
As his final statutory argument, Mr. Margheim claims the district court
erroneously “double counted” the days attributable to his 120-day ends-of-justice
continuance when computing time under the Act. He explains that the court first
excluded these days in the context of determining whether the delay between his
initial appearance and that of his last codefendant was reasonable. See R., Vol. I,
at 764 (“[D]uring this ten-month delay, Margheim successfully sought a 120-day
ends-of-justice continuance . . . .”). He then insists that the court excised the
same 120-day allotment from the time period between the withdrawal of his
motion to suppress and the commencement of trial. See id. at 765–66 (“From
November 21, 2011, to the start of trial, on May 14, 2012, 175 days will have
elapsed. But the Government [had] 190 days to try Margheim based on the
seventy days allotted by the [Act], and 120 days the Court previously excluded
under the [Act’s] ends-of-justice provision.” (footnote omitted) (citations
omitted)).
Even if we were to conclude that Mr. Margheim’s “double counting” issue
presented a colorable contention of error, we would reach the same outcome here.
That is because our analysis has indicated that, irrespective of whether the district
court “double counted” the 120-day ends-of-justice continuance, Mr. Margheim’s
23
trial commenced in a timely fashion. Put another way, our speedy-trial
analysis—which concluded that the trial was timely under the Act—has not
depended in any material way on whether the court counted the 120-day
continuance once or (erroneously) twice.
As we noted in Part II.C, supra, focusing solely on the tolling implications
of multiple motions filed in this case—but notably not considering the motion for
a 120-day ends-of-justice continuance—we reached the conclusion that the trial
started on a timely basis. More specifically, we demonstrated that the aggregate
effect of various motions filed between the last codefendant’s appearance and the
start of Mr. Margheim’s trial was to exclude 288 days of the applicable 356-day
period. As a result, considering all of the relevant statutory exclusions, we
concluded that the government brought Mr. Margheim to trial within sixty-eight
days of the last codefendant’s appearance for purposes of the Speedy Trial
Act—that is, within the requisite seventy days.
Accordingly, whether the district court erred by “double counting” the 120-
day continuance is immaterial to the outcome here. We may still uphold the
district court’s speedy-trial decision. See Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1130 (10th Cir. 2011) (“We have long said that we may affirm on any basis
supported by the record, even if it requires ruling on arguments not reached by
the district court or even presented to us on appeal.”); see also SEC v. Chenery
Corp., 318 U.S. 80, 88 (1943) (“[I]n reviewing the decision of a lower court, it
24
must be affirmed if the result is correct although the lower court relied upon a
wrong ground or gave a wrong reason.” (internal quotation marks omitted)). We
therefore affirm the district court’s determination that Mr. Margheim’s statutory
speedy-trial right was not violated; dismissal of the indictment on that basis was
thus not warranted.
III
Mr. Margheim next avers that he was deprived of his constitutional right
under the Sixth Amendment to a speedy trial. We review this claim de novo, see
United States v. Larson, 627 F.3d 1198, 1207 (10th Cir. 2010), and reject it.
A
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend.
VI. “[A]lthough the right is somewhat amorphous, the remedy is severe:
dismissal of the indictment.” United States v. Seltzer, 595 F.3d 1170, 1175 (10th
Cir. 2010). Recognizing the breadth of this constitutional language, the Supreme
Court has “qualified the literal sweep of the provision.” Doggett v. United States,
505 U.S. 647, 651 (1992).
In Barker v. Wingo, the Supreme Court created a four-part inquiry to
determine whether a particular delay violates a defendant’s constitutional right to
a speedy trial. 407 U.S. 514, 530–32 (1972). Courts applying the Barker test
must balance the following factors: “(1) the length of delay; (2) the reason for the
25
delay; (3) the defendant’s assertion of his right; and (4) prejudice to the
defendant.” United States v. Yehling, 456 F.3d 1236, 1243 (10th Cir. 2006).
Because “[a] balancing test necessarily compels courts to approach speedy trial
cases on an ad hoc basis,” Barker, 407 U.S. at 530, all factors should be
evaluated, see Seltzer, 595 F.3d at 1176. The first factor, however, “functions as
a triggering mechanism,” Toombs, 574 F.3d at 1274 (quoting Yehling, 456 F.3d at
1243) (internal quotation marks omitted), and the remaining three factors need
only be assessed “if the delay is long enough to be presumptively prejudicial,”
Yehling, 456 F.3d at 1243.
B
After performing the requisite Barker balancing test, the district court
determined that no constitutional violation had occurred. More specifically, the
court reasoned that: (1) the “length of delay” favored Mr. Margheim; (2) the
“reason for delay” was neutral between the parties; (3) Mr. Margheim’s “assertion
of his right” favored the government; and (4) “prejudice to the defendant” favored
the government. We discern no reversible error in the district court’s analysis or
in its ultimate determination.
1
Our court has recognized that “[d]elays approaching one year generally
satisfy the requirement of presumptive prejudice.” United States v. Batie, 433
F.3d 1287, 1290 (10th Cir. 2006). The delay between Mr. Margheim’s
26
indictment8 and the start of his trial was twenty-three months—nearly two
years—and both parties accept the premise that this delay is presumptively
prejudicial. And we agree. Because “the extent to which [this] delay stretches
beyond the bare minimum [of a year] needed to trigger judicial examination” is
nearly one additional year, we conclude that this factor weighs entirely in Mr.
Margheim’s favor. Larson, 627 F.3d at 1208 (quoting Seltzer, 595 F.3d at 1176)
(internal quotation marks omitted). This determination obliges us to examine the
remaining Barker factors. See Gomez, 67 F.3d at 1521 (“[T]he delay, in excess of
one year, triggers consideration of the other Barker factors.”).
2
The second Barker factor—the reason for delay—is “[t]he flag all litigants
seek to capture.” Loud Hawk, 474 U.S. at 315. At this juncture, the court must
assess the reasons offered by the government for not bringing the defendant to
trial in a timely fashion. It is incumbent upon the government to present
acceptable reasons for the delay. See Seltzer, 595 F.3d at 1177. “Purposeful
delay or delay to gain advantage weighs heavily against the government, while
‘[a] more neutral reason such as negligence or overcrowded courts [is] weighted
less heavily.’” United States v. Gould, 672 F.3d 930, 937 (10th Cir. 2012)
8 “[I]t is either a formal indictment or information or else the actual
restraints imposed by arrest . . . that engage the particular protections of the
speedy trial provision of the Sixth Amendment.” United States v. Marion, 404
U.S. 307, 320 (1971); accord Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir.
2004).
27
(alterations in original) (quoting Barker, 407 U.S. at 531). Of course, this factor
“weighs heavily against” the defendant if his own actions “were the primary cause
of the delay.” Larson, 627 F.3d at 1208 (quoting Toombs, 574 F.3d at 1274)
(internal quotation marks omitted).
In Mr. Margheim’s case, the district court deemed this factor “roughly
neutral” based on the complex nature of the case and the fact that both parties had
requested ends-of-justice continuances. See R., Vol. I, at 769, 771. Mr.
Margheim acknowledges that his continuance motion contributed to the delay, but
he insists that the balance of the time nonetheless counts against the government.
This is so, he claims, because (1) “the government filed numerous requests for
extensions and continuances,” Aplt. Opening Br. at 22; (2) “he believed that the
government was threatening him with a sentence enhancement if he litigated his
suppression issue,” id.; and (3) three days before he sought an ends-of-justice
continuance, the government had also filed for such relief. None of Mr.
Margheim’s arguments even hint at reversible error.
We agree with the district court’s conclusion regarding Mr. Margheim’s
first argument—namely, that, “generally speaking, the delay in this case has been
due to the complicated nature of prosecuting thirty-one (properly joined) codefendants.”
9 R., Vol. I, at 768. In our view, the complexity of this conspiracy
case justified the government’s continuance requests. Examining the
9 The thirty-first codefendant was added in the superseding indictment.
28
government’s proffered reasons in support of these motions (e.g., ensuring
complete discovery, allowing time for codefendants to file motions, and to
prepare responses to 150 defense motions) solidifies our view that this case falls
into the camp of “those cases demanding more flexible treatment.” Toombs, 574
F.3d at 1269 (quoting United States v. Doran, 882 F.2d 1151, 1515 (10th Cir.
1989)) (internal quotation marks omitted).
The district court also properly determined that none of the prosecutorial
delay was motivated by bad faith.10 See R., Vol. I, at 768. To that end, Mr.
Margheim’s assertion that he was stymied by the government’s “threat[ ] . . . [of]
a sentence enhancement if he litigated his suppression issue,” Aplt. Opening Br.
at 22, is unfounded. Mr. Margheim apparently believes that the government’s
notice of its intent to file an information pursuant to 21 U.S.C. § 851 was a
malicious attempt to hamper his trial preparation. However, given Mr.
Margheim’s prior felony drug conviction, any sentencing enhancement had a firm
statutory basis. See United States v. Cornelius, 696 F.3d 1307, 1327 (10th Cir.
2012) (observing government’s prerogative to file a § 851 information in a drug
case for a defendant previously convicted under 21 U.S.C. § 841(b)(1)(A)). It
10 One of the government’s motions was due to its own negligence. See
R., Vol. I, at 173 (Mot. filed July 20, 2010) (“The government inexplicably
allowed the Court’s disclosure deadline to pass . . . [and] cannot offer any
justifiable excuse for this missed deadline . . . .”). Under Barker, however,
negligence is considered “[a] more neutral reason” on a par with overcrowded
courts. 407 U.S. at 531.
29
was likewise not improper of the government to have suggested that it might not
file a § 851 information if Mr. Margheim agreed to plead guilty. See United
States v. Pinter, 971 F.2d 554, 557 (10th Cir. 1992) (“[P]lea agreements[]
function as an essential part of the criminal justice process and are highly
desirable as a means to assist law enforcement investigative efforts.” (internal
quotation marks omitted)). The record indicates no evidence of underhanded
tactics; accordingly, the government’s allegedly improper motive has no impact
on the reason for delay.
Moreover, turning to the ends-of-justice continuances, it is of no moment
that the government’s motion (July 27, 2010) preceded Mr. Margheim’s (July 30,
2010) by three days. The salient point is that the government requested thirtyseven
days, whereas Mr. Margheim requested 120. No matter how we adjust the
numbers for overlap, the fact remains that Mr. Margheim contributed significantly
more to the delay than the government by seeking this continuance. From a
strictly numerical perspective, it is impossible to conclude that the second Barker
factor is a victory for Mr. Margheim. In fact, it seems that the court’s
characterization of this factor as “roughly neutral” was a gift to Mr. Margheim it
was not obligated to give. See Abdush-Shakur, 465 F.3d at 465 (“Delays
attributable to the defendant do not weigh against the government.”); cf. Gould,
672 F.3d at 938 (finding that even when the government causes most of the delay,
this factor weighs less heavily against it if no dilatory purpose exists).
30
Accordingly, though we might have concluded that this factor favors the
government, we defer to the district court’s weighing and its determination that
Barker’s second factor is a wash.
3
At the third step of the Barker test, we assign strong weight to the
defendant’s assertion of his constitutional speedy-trial right, but “[w]e may weigh
the frequency and force of [his] objections” to the delay. United States v.
Latimer, 511 F.2d 498, 501 (10th Cir. 1975); accord Seltzer, 595 F.3d at 1179. In
other words, assertion of the right to a speedy trial “is not satisfied merely by
moving to dismiss after the delay has already occurred.” Batie, 433 F.3d at 1291;
see also Toombs, 574 F.3d at 1274–75 (making a similar observation after the
district court had granted seven of the defendant’s continuance requests).
“[Moving] for many continuances, or otherwise indicat[ing] that [the defendant]
is not pursuing a swift resolution of his case” will tip the balance of this factor
“heavily against the defendant.” Gould, 672 F.3d at 938.
The district court concisely assessed this component of Barker: it
recognized Mr. Margheim’s assertion of the right, observed that he asserted the
right “relatively late in [the] case,” and deemed the third factor unfavorable to
him. R., Vol. I, at 769, 771. Mr. Margheim disputes this finding and argues that
his assertion of the right “as early as October 18, 2010,” Aplt. Opening Br. at 23,
along with his 2012 motions to dismiss, compel the opposite result.
31
Viewing Mr. Margheim’s assertion of the right “in the light of [his] other
conduct” before trial, Loud Hawk, 474 U.S. at 314, we would be hard-pressed to
call it “frequent” or “forceful.” As explicated in Part II.B, supra, we do not
believe the record demonstrates that Mr. Margheim pursued a speedy trial with
any vigor during the time between his initial appearance and that of his last
codefendant. We believe the same holds true regarding his subsequent conduct.
For instance, it is difficult to overlook how late his motions to dismiss the
indictment appear on the pretrial timeline. Mr. Margheim filed his first motion to
dismiss approximately nineteen months after being indicted, see R., Vol. I, at 769,
which means he spent the lion’s share of the twenty-three-month delay pursuing
continuances and other trial strategies. Cf. Toombs, 574 F.3d at 1274 (“By the
time [Defendant] asserted his Sixth Amendment right, eight of the nine
continuances, seven of which were requested by him, had already been granted
and approximately seventeen months had passed since his first court appearance.
Thus, this factor also weighs heavily against [him].”); Batie, 433 F.3d at 1292
(“[Defendant’s] persistent requests for continuances, even when opposed, scarcely
demonstrate a desire for a speedier process. Thus, this [third] factor weighs
against [him].” (footnote omitted)). Contrary to Mr. Margheim’s view, we do not
believe his rapid-fire filing of these motions places him in the same situation as
the defendant in Seltzer. Perhaps both Mr. Margheim and the Seltzer defendant
“brought . . . repeated requests,” but only the Seltzer defendant did so promptly.
32
See 595 F.3d at 1179 (observing that the defendant asserted his speedy-trial right
twice within six months of being indicted).
While it is apparent that Mr. Margheim was not “interested in . . . avoiding
[trial] altogether,” Tranakos, 911 F.2d at 1429, it is equally obvious that he was
interested in other time-consuming strategies for a significant portion of the delay
period. Indeed, had Mr. Margheim focused completely on proceeding to trial, we
find it doubtful that he would have severed ties with three attorneys. He did
eventually “put both the district court and the government on notice that [he]
wished to proceed to a prompt resolution of his case,” Seltzer, 595 F.3d at 1179,
but that “notice” was diluted by his previous conduct, see Tranakos, 911 F.2d at
1429 (“We are unimpressed by a defendant who moves for dismissal on speedy
trial grounds when his other conduct indicates a contrary desire.”). In sum, we
agree that the third Barker factor weighs in favor of the government.
4
Barker’s final factor is the extent to which the defendant was prejudiced by
the delay. See 407 U.S. at 532; Yehling, 456 F.3d at 1244. In Doggett, the
Supreme Court held that “affirmative proof of particularized prejudice [in the
Barker analysis] is not essential to every speedy trial claim.” 505 U.S. at 655.
For cases involving extreme delay, the defendant may even “rely on the
presumption of prejudice created by the extreme delay.” Toombs, 574 F.3d at
1275. However, in most circumstances, failure to specify prejudice will
33
eviscerate the defendant’s claim. See id. (distinguishing defendant’s twenty-twomonth
delay from Doggett’s “extreme” eight-year delay); see also Seltzer, 595
F.3d at 1180 n.3 (“Generally, the court requires a delay of six years before
allowing the delay itself to constitute prejudice.”).
Mr. Margheim’s case does not present the extreme circumstances obviating
the requirement of a showing of prejudice. Thus, in assessing whether he has
alleged prejudice with sufficient particularity, we focus on the interests the
speedy-trial right was designed to safeguard: (1) “prevent[ing] oppressive pretrial
incarceration”; (2) “minimiz[ing] anxiety and concern of the accused”; and (3)
“limit[ing] the possibility that the defense will be impaired.” Barker, 407 U.S. at
532; accord Lott v. Trammell, 705 F.3d 1167, 1174 (10th Cir.), cert. denied, ---
U.S. ----, 134 S. Ct. 176 (2013). The interest given the most weight is the third,
which implicates “the fairness of the entire system.” Barker, 407 U.S. at 532;
accord Toombs, 574 F.3d at 1275. Prejudice to the defendant in this regard will
be “obvious” if witnesses die or disappear, or if witnesses lose their memory of
events that are critical to the theory of defense. See Barker, 407 U.S. at 532; see
also Moore v. Arizona, 414 U.S. 25, 27 n.2 (1973).
According to Mr. Margheim, he was prejudiced by the delay because,
during that time, he (1) was incarcerated on “lockdown” for eighteen hours a day;
(2) required anxiety and depression medication; and (3) lost track of a supposed
eyewitness. The district court agreed as to the first point because Mr. Margheim
34
had been undeniably incarcerated since his arrest. This conclusion comports with
our view that “prolonged pretrial incarceration is a well-established type of
prejudice that a defendant may rely upon in making a Sixth Amendment speedy
trial claim.”11 Seltzer, 595 F.3d at 1180.
Next, the district court determined that Mr. Margheim was prejudiced by
his anxiety, depression, and heightened “awareness of . . . the unresolved charges
against him.” R., Vol. I, at 770 (quoting Doggett, 505 U.S. at 654) (internal
quotation marks omitted). We could conceivably part company with the district
court on this point. It is not clear that Mr. Margheim has “alleged any special
harm suffered which distinguishes his case from that of any other arrestee
awaiting trial.” United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir. 1994); see
Larson, 627 F.3d at 1211 (noting that “conclusory references to the anxiety and
distress that purportedly are intrinsic to incarceration are not sufficient to
demonstrate particularized prejudice”); accord United States v. Santiago-Becerril,
130 F.3d 11, 23 (1st Cir. 1997) (observing that “considerable anxiety normally
11 The fact that Mr. Margheim was in custody for pending state charges
at the time of his arrest, see R., Vol. I, at 732 n.1 (Gov’t’s Resp. to Def.’s Mot. to
Dismiss, filed Apr. 16, 2012), arguably could support the opposite finding. See
Perez v. Sullivan, 793 F.2d 249, 258 (10th Cir. 1986) (finding no oppressive
pretrial incarceration when “[i]t [was] evident that [the defendant] would have
remained incarcerated for the period of time in question whether or not [the]
proceeding had been brought”). However, because Mr. Margheim had not been
convicted of the state charges at that time (and because those charges were
dismissed and did not result in a conviction), we do not gainsay that he suffered
some prejudice from pretrial incarceration in his federal case—even if the amount
was arguably de minimis.
35
attends the initiation and pendency of criminal charges; hence only undue
pressures are considered” (internal quotation marks omitted)). Moreover, to the
extent that Mr. Margheim claims increased anxiety due to the “threat” of a § 851
information, we have already determined that his prior felony drug conviction
provided an appropriate statutory basis for such a filing; consequently, this cannot
properly establish prejudice in the Barker context.
Nonetheless, viewed as a whole, the district court’s prejudice analysis is
sound and eliminates any need to split hairs over the anxiety-depression issue. In
particular, germane to the prejudice factor that our caselaw accords the most
weight (i.e., prejudice to the defense), the district court concluded that Mr.
Margheim had not demonstrated any cognizable hindrance to his defense,
“[whether] through expiration of evidence, loss of witnesses, or unique fading of
memory.” R., Vol. I, at 770. It thereby rejected Mr. Margheim’s contention that
he had lost track of “a girl at [his] house that would be able to testify that the
informant along with the [undercover SA] just walked into [his] house.” Id. at
661 (Mot. to Dismiss, filed Apr. 13, 2012). The district court reasonably
concluded that this hypothetical testimony pertained only to Mr. Margheim’s
withdrawn motion to suppress, which was grounded in a Fourth Amendment
unlawful-entry argument. Furthermore, Mr. Margheim has failed to demonstrate
that the so-called missing witness’s testimony was vital to his defense. In our
view, his vague characterization of her hypothetical testimony does not suggest
36
that it would be exculpatory or otherwise material to his case. See Tranakos, 911
F.2d at 1429 (rejecting “lost-witness” claim when defendant failed to “state[] with
particularity . . . what exculpatory testimony would have been offered” (omission
in original) (quoting United States v. Villano, 529 F.2d 1046, 1060 (10th Cir.
1976)) (internal quotation marks omitted)). We have looked with disfavor on
defendants’ hazy descriptions of prejudice, see Abdush-Shakur, 465 F.3d at 466,
and required criminal defendants to “show definite and not speculative prejudice,
and in what specific manner missing witnesses would have aided the defense,”12
United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir. 1998); accord United
States v. Madden, 682 F.3d 920, 929 (10th Cir. 2012). Mr. Margheim’s failure to
make any specific allegations concerning this “witness” therefore cannot support
a finding of prejudice. See, e.g., Tranakos, 911 F.2d at 1429 (noting defendant’s
failure to show a “causal relationship” between absent witness and prejudice
claimed (quoting Perez, 793 F.2d at 257 n.10) (internal quotation marks
omitted)). As a result, the final Barker factor weighs against him.
We summarize our conclusions regarding the Barker factors as follows:
only the first favors Mr. Margheim, the second is a draw, and the third and fourth
12 Mr. Margheim rejoins that he had no obligation to describe the
missing witness’s expected testimony with particularity. See Aplt. Reply Br. at 9.
However, his citation to Seltzer on this point is inapposite. In Seltzer, while we
concluded that the defendant’s ability to prepare his case was impaired, we in no
way suggested that he was relieved of the obligation to describe potential
witnesses’ testimony with particularity. See Seltzer, 595 F.3d at 1180.
37
favor the government. Balancing these factors, we reach the same conclusion as
the district court—viz., Mr. Margheim’s constitutional speedy-trial right under the
Sixth Amendment was not violated. Accordingly, we affirm.

* * *

13 Volume 4 of the record, which includes transcripts of ex parte
proceedings involving protected attorney-client communications, was
provisionally filed in this court under seal. We conclude that the confidentiality
concerns engendered by the contents of Volume 4 constitute the type of “real and
substantial interest,” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663
F.3d 1124, 1135 (10th Cir. 2011) (quoting Helm v. Kansas, 656 F.3d 1277, 1292
(10th Cir. 2011)) (internal quotation marks omitted), that would justify
maintaining documents under seal. Consequently, Volume 4 will remain under
seal.
38

Outcome: Because Mr. Margheim was not deprived of his statutory or Sixth
Amendment right to a speedy trial, we conclude that the district court was correct
not to dismiss the indictment, and we AFFIRM Mr. Margheim’s conviction.13

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