                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               October 29, 2014
                                   PUBLISH                   Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                       No. 12-1459
 v.

 TERRY LEE MARGHEIM,

       Defendant - Appellant.


                 Appeal from the United States District Court
                         for the District of Colorado
                     (D.C. No. 1:10-CR-00326-PAB-17)


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

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.


Before TYMKOVICH, O’BRIEN, and HOLMES, Circuit Judges.


HOLMES, Circuit Judge.


      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 short-

barreled 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-of-

justice 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

continuance 3 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-of-
justice 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 five 4 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 non-

conspiracy 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 ten-

month 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                 Dist. Ct. Doc. 1200                February 9, 2011 –      181 days
                   Suppress                         Dist. Ct. Doc. 1892 (withdrawing)        November 21, 2011

 Mr. Margheim’s Motion to Withdraw Motion to               Dist. Ct. Doc. 1892              November 22, 2011 –        30 days
                   Suppress                           Dist. Ct. Doc. 2186 (granting)         December 21, 2011


  Mr. Margheim’s Motion to Withdraw Pretrial               Dist. Ct. Doc. 1949               January 11, 2012 –        31 days
                   Motions                            Dist. Ct. Doc. 2186 (granting)          February 10, 2012




   Mr. Margheim’s Attorney-Filed Motion to                 Dist. Ct. Doc. 2117                March 30, 2012 –         7 days
    Dismiss for Speedy Trial Act Violations           Dist. Ct. Doc. 2128 (denying)             April 5, 2012

 Government’s Motion for Seven-Day Ends-of-                Dist. Ct. Doc. 2136                 April 6, 2012 –         8 days
              Justice Continuance                     Dist. Ct. Doc. 2137 (granting)            April 13, 2012

  Mr. Margheim’s Pro Se Motion to Dismiss for              Dist. Ct. Doc. 2164                April 14, 2012 7 –       6 days
 Speedy Trial Act and Constitutional Violations       Dist. Ct. Doc. 2179 (denying)             April 19, 2012

   Mr. Margheim’s Motion for Fourteen-Day                  Dist. Ct. Doc. 2168                April 20, 2012 –         14 days
          Ends-of-Justice Continuance                 Dist. Ct. Doc. 2179 (granting)             May 3, 2012

   Mr. Margheim’s Pro Se Motion to Suppress                Dist. Ct. Doc. 2184                 May 4, 2012 –           11 days
                                                  Dist. Ct. Doc. 2212 (confirming denial)       May 14, 2012

 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 sixty-

eight 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
indictment 8 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) co-

defendants.” 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 thirty-

seven 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-two-

month 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.

                                        IV

      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




      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
