          United States Court of Appeals
                      For the First Circuit

No. 11-2239

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         LYNETTE MARYEA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph N. Laplante, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
              Torruella and Boudin,* Circuit Judges.


     W. Daniel Deane, with whom Nixon Peabody LLP, was on brief for
appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.



                         January 15, 2013




*
  Judge Boudin heard oral argument in this matter and participated
in the semble, but he did not participate in the issuance of the
panel's opinion.   The remaining two panelists have issued the
opinion pursuant to 28 U.S.C. § 46(d).
           TORRUELLA, Circuit Judge.       Defendant-Appellant Lynette

Maryea ("Maryea" or "Defendant") was charged with one count of

conspiracy to possess with intent to distribute and to unlawfully

distribute Oxycodone, Oxycontin, Suboxone, Lorazepam and Ativan in

violation of 21 U.S.C. §§ 841(a)(1) and 846.        On August 18, 2010,

a jury found Maryea guilty on that count.          She now appeals her

conviction   on   various   grounds.     Maryea   first   challenges   the

district court's denial of her Speedy Trial Act, 18 U.S.C. § 3161,

claims in her motion to dismiss on the basis that the exclusion of

time for her co-defendant's continuance was unreasonable as to her.

Maryea also asserts that the district court's failure to order a

mental competency evaluation after she sustained an injury during

trial was an abuse of discretion.        Finally, she argues that the

government's evidence at trial established a prejudicial variance

from the charges listed in the superseding indictment against her.

After careful consideration, we affirm in all respects.

                             I.   Background

A.   Factual Background

           Maryea was originally charged with fourteen co-defendants

for their collective involvement in a scheme to unlawfully procure,

smuggle into and distribute narcotic controlled substances within

the Rockingham County House of Corrections ("RCHOC") in Brentwood,

New Hampshire.     Since Maryea's appeal follows a conviction, the

facts associated with that scheme are recounted "in the light most


                                   -2-
favorable to the verdict."    United States v. Poulin, 631 F.3d 17,

18 (1st Cir. 2011).

            In March 2009, Richard Woods ("Woods") -- Maryea's co-

defendant in the original indictment and the only remaining co-

defendant with Maryea in the superseding indictment -- began his

incarceration at RCHOC.    Woods and his girlfriend, Noreen Durham

("Durham"), both suffered from opiate addictions, and Durham was

prescribed Suboxone, an opiate blocker that assists with withdrawal

symptoms.     Following his incarceration, Woods regularly asked

Durham to procure Suboxone for him.     Durham testified to having

made three deliveries of Suboxone to RCHOC for Woods through a

delivery scheme involving placing Suboxone and tobacco into a

baggie, putting the baggie inside a Dunkin' Donuts coffee cup, and

dropping the coffee cup in a pre-designated trash can in front of

a nursing home approximately 100 yards from the jail.   The nursing

home contained a laundry room where designated inmates ("trustees")

were employed.    In July 2009, Durham informed Woods in recorded

phone conversations that she would not make any further deliveries

of Suboxone outside the nursing home for fear of getting caught and

violating her probation for a conviction unrelated to this scheme.

            Troy Muder ("Muder") -- another co-defendant in the

original indictment and Maryea's boyfriend -- had been committed at

RCHOC to serve a six-month sentence, and became Woods' cellblock

mate on July 8, 2009.     Shortly after his incarceration at RCHOC,


                                 -3-
Maryea made an unsuccessful attempt to smuggle painkillers into

RCHOC by dropping pills off in a dump truck parked on the premises

of the jail near the nursing home.            However, in early July 2009,

Maryea   reunited   with     a    former    acquaintance,   Justin     Knowles

("Knowles"), who knew Muder and had recently been released from

RCHOC.   Knowles advised Maryea of a "better way" to smuggle drugs

into the jail, namely, by packaging drugs -- tobacco, Oxycodone,

Oxycontin, Xanax, and other pills -- into "slugs," or containers

made from the tip of a latex glove, and dropping off the slugs with

the "trustees" working in the laundry department in the nursing

home.

           Maryea largely procured the drugs included in the slugs

by filling fraudulent prescriptions at various pharmacies after

stealing blank prescription pads with Knowles and Kerry Noonan

("Noonan"),    another     co-conspirator.        Maryea    also   created   a

prescription    template     on     her     computer   to   generate    false

prescriptions for obtaining the narcotics.             Once the drugs were

procured, Maryea, Knowles and others would package them into slugs

and drive them to the RCHOC facility; Knowles would deliver them to

co-conspirator trustees in the laundry department at the nursing

home.    Between July and September 2009, six such deliveries were

accomplished into RCHOC.         Muder would receive the slugs once they

were delivered to the trustees and smuggled inside the jail, and he




                                      -4-
would use the pills and tobacco for his own consumption or as

currency for bartering within the jail.

           On August 14, 2009, after Durham informed Woods that she

would no longer be making Suboxone deliveries, Woods instructed her

in a recorded phone conversation to call Maryea, tell her that he,

Woods, "owe[s] her boy" Muder, and deliver the Suboxone to Maryea.

Maryea would then, in turn, accomplish the Suboxone delivery to

RCHOC.   Durham delivered Suboxone pills to Maryea three times in

August 2009, and on one occasion, when delivering the pills to

Maryea's home, she met Knowles.

           On September 20, 2009, Noonan and Knowles were arrested

after Noonan drove Knowles to RCHOC and Knowles entered the laundry

room of the nursing home.       Upon their arrest, a slug was seized

from Knowles containing fifteen 15-milligram Oxycodone pills, three

30-milligram Oxycodone pills, twelve Suboxone pills, and sixteen

Xanax pills.   A pill bottle was also seized from Noonan's purse

which contained five 30-milligram Oxycodone pills.

B.   Indictments and Pre-Trial Motion Practice

           On December 16, 2009, a federal grand jury returned an

indictment   against   Maryea   and   fourteen   other   individuals   for

conspiring to possess with intent to distribute and to unlawfully

distribute Oxycodone, Oxycontin, Suboxone, Lorazepam, and Ativan

from July 2009 to September 20, 2009, in violation of 21 U.S.C.

§§ 841(a)(1) and 846 ("Original Indictment").              Following her


                                  -5-
indictment and detention, Maryea filed motions for release and for

release on conditions, indicating that she suffered from bipolar

disorder and that she had a "significant medical history which

requires medical treatment for pain."              During hearings on these

motions, Maryea repeatedly complained about back and neck pain that

she claimed was not being addressed by jail officials, and it was

also adduced that Maryea had spent time in a state psychiatric

hospital for her bipolar disorder.

              On July 16, 2010, Woods filed a motion to continue

("Woods' First MTC"), and Maryea objected, providing speedy trial

calculations.          The district court granted Woods' motion after

Maryea's counsel "expressly informed the court that Maryea does not

request or desire severance of her case."             In August 2010, a grand

jury returned a superseding indictment ("Superseding Indictment")

charging only defendants Maryea and Woods with the same conspiracy

as in the Original Indictment, but stating that the conspiracy

began in April 2009 instead of July 2009.

              During     Maryea's      arraignment     on     the   Superseding

Indictment, the government moved the district court to order a

mental health evaluation at a federal medical facility to assess

her competency to stand trial. Maryea objected to the government's

motion   as     she    had   already    procured     her    own   mental   health

evaluation, and the examining physician had concluded that she was




                                        -6-
competent    to   stand   trial.     The    district     court   denied    the

government's motion for the reasons stated in Maryea's objection.

            On September 1, 2010, Woods filed his second motion to

continue ("Woods' Second MTC"), requesting a delay in his trial

date due to: (1) a companion state matter pending in the Rockingham

County Superior Court with a trial scheduled for October 6, 2010,

the outcome of which could affect Woods' plea negotiations in the

federal     criminal   matter;     and    (2)   Woods'    continuing      plea

negotiations with the government.         The district court granted the

continuance on the day it was filed without obtaining Maryea's

objection or consent, concluding that "the ends of justice served

by granting a continuance outweigh the best interest of the public

and the defendant in a speedy trial, 18 U.S.C. § 3161(h)(7)(B)(iv),

for the reasons set forth in the motion."          Trial was rescheduled

for January 4, 2011.

            Maryea filed a series of motions in late August and early

September 2010, including, inter alia, two motions to dismiss the

Superseding Indictment for violations of the Speedy Trial Act, a

motion to remove counsel and appoint new counsel, and a motion for

bail alleging the Bureau of Prisons' failure to properly provide

medical care.1    In her September 20, 2010 Reply Brief to her motion



1
  Although represented by counsel, Maryea filed these motions pro
se.   Apparently resolving her disagreements with her defense
counsel, said counsel resumed representation of Maryea throughout
the pre-trial motion practice discussed infra.

                                    -7-
to dismiss, Maryea objected to the granting of the continuance.

Relying on the co-defendant exclusion in the Speedy Trial Act, 18

U.S.C. § 3161(h)(6) ("Co-Defendant Clause"), Maryea argued that

extending her trial date merely on the basis of co-defendant Woods'

motion to continue was unreasonable:

           It is simply submitted that the Court cannot
           find the delay caused by Woods' . . . motion[]
           to continue to be reasonable as to Maryea. . .
           . This is because the Court was no longer
           dealing with more than two co-defendants and
           one of the defendants was simply looking for
           more time to resolve companion state cases.

The   district   court   convened    a    hearing   to   address   Maryea's

objection, where the district court judge stated to Maryea that the

court was:

           fairly aggravated that you're advancing these
           arguments that contradict the positions you've
           taken already in the case, because I've asked
           you repeatedly every time we've talked about
           speedy trial if you wanted a severance, and
           you've stressed to me every single time you do
           not want a severance. Let me ask you this.
           Do you want to go to trial in this case next
           week? Is that what you want to do? Because
           I'm ready to try the case whenever you are.

In response, Maryea's counsel stated that,

           [I]n terms of trial strategy, . . . I want Mr.
           Woods sitting on one of these chairs along
           with everybody else, and that's the truth.
           And that's a simply [sic] legal analysis,
           factual analysis . . . trial analysis that I
           do . . . I'm not looking for severance. I am
           objecting to the motion to continue.

The district court judge then asked defense counsel, "But given

that the law says when you don't agree, you have to choose trial

                                    -8-
strategy; right?          Do you prefer to be sitting there next to Woods,

or do you prefer your speedy trial?                    Because that's what the

statute says," and defense counsel responded, "I don't think the

statute   says      that    because     I    don't   move   to   sever,    that   I've

forfeited my speedy trial claim."

              Evaluating the strategic choices expressed by Maryea in

choosing not to sever her trial from Woods alongside Woods' need

for a delay, the district court denied Maryea's Speedy Trial

objection, extending Woods' and Maryea's trial date.                  In doing so,

the court stated, "what's reasonable for one may not be reasonable

for another, and that's what's wrong.                That's what (h)(6) [the Co-

Defendant Clause] seems to allow for.                The fact that when you have

a group, you have people with different interests, different

strategies, different tactics, and there's been no severance, the

clock   has    to    be    the   same       for   everyone."      Maryea    filed   a

supplemental motion to dismiss on Speedy Trial Act grounds, but

that motion was denied at trial for the same reasons stated in the

district court's earlier order.

              Before trial commenced, the district court sua sponte

ordered that Maryea undergo "a medical and psychological evaluation

to determine her competency to stand trial, including an assessment

of whether, and the extent to which her physical pain impacts that

competency."        On November 10, 2010, the court-appointed doctor

submitted his report, concluding that Maryea was competent to stand


                                            -9-
trial.    The report confirmed that Maryea was "able to answer all

. . . questions" during the doctor's evaluation and that she

"reported that she uses the law library [to] work on her defense."

After recognizing Maryea's "ongoing pain symptoms," the doctor

observed that said symptoms "did not impair the cognitive process

during the evaluation," and that it would be "a very unusual

circumstance that, with an individual's mental disorder under

reasonable control, the mere presence of pain would make them not

competent to stand trial." The report thus concluded that Maryea's

pain complaints did not affect her competency.

C.   Maryea's Trial

            On December 30, 2010, Woods entered a plea agreement

which the    court    accepted.   Maryea's   trial   then   commenced   on

January 4, 2011. After the fourth day of trial, Maryea was injured

in a car accident while being transported from the courthouse to

the jail.    She moved to continue the trial and filed a motion for

a mistrial, which was later withdrawn.       The district court granted

the continuance and held two subsequent status conferences to

consider Maryea's complaints of pain and her treatment in the

prison.     The district court also ordered an independent medical

evaluation to (1) evaluate and diagnose any injuries Maryea may

have sustained in the car accident; and (2) determine whether the

"continuing effects of those injuries, if any, will prevent her

from meaningfully participating in the ongoing criminal trial and


                                  -10-
assisting in her defense, including observing the evidence and

communicating with her counsel."      Following an examination, the

examining doctor concluded that Maryea had suffered a pinched nerve

in her neck, and the district court ordered that an MRI be

performed on her neck based on the report's recommendation.    In a

series of hearings following the accident, the district court

monitored Maryea's status and, following the withdrawal of Maryea's

oral motion for a mistrial, scheduled the trial to reconvene on

January 24, 2011.

           Upon the recommencement of her trial, Maryea said that

she was experiencing "breakthrough pain," although she also told

the district court that the pain was "not impairing [her] ability

to pay attention or to sit here as of right now."        The court

notified her that if her pain reached a point "where it interferes

with your ability to participate meaningfully in your defense and

consult with counsel and the like, I'm sure you're going to let us

know."   Maryea confirmed that she would.

           On January 25, 2011, defense counsel informed the court

that Maryea was "crying" and "hysterical" after not receiving her

medication prior to being transported to the courthouse. According

to defense counsel, when he asked her to discuss witness strategy,

she said, "I don't care. . . . [d]o whatever you want, I can't do

this anymore."   On this basis, counsel informed the court that he

could not "effectively communicate" with his client.     The court


                               -11-
ordered a recess to allow Maryea's medication to take effect, and

then held a status conference on the issue of Maryea's competency.

Defense    counsel     stated       at     that   conference     that    he     had

"reservations" regarding Maryea's competency, and the court engaged

in a colloquy with Maryea in which she stated on the record that

her mood was "stable," that she could assist her counsel, and that

she wished to "forge [ahead] with this trial."                 When the district

judge   asked   her   if    she    understood     what   he    was   saying,    she

responded, "Absolutely.           I can understand.      I'm coherent.        I can

comprehend."    After noting that Maryea had been previously found

competent to stand trial, had been assisting and continued to

assist her lawyer with her defense, and appeared capable of "having

a conversation" with the court, the district judge stated that she

was "quite clearly an adult intelligent person who is able to

understand me and able to make me understand her."                   As such, the

district   judge     concluded      that    she   fit   "the   definition      of   a

competent defendant" and accordingly allowed the trial to continue.

           Evidence closed on January 27, 2011, and Maryea filed a

Federal Rule of Criminal Procedure 29 motion for a judgment of

acquittal,   arguing       that   the    government's    evidence     proved    two

distinct conspiracies rather than one overarching conspiracy, and

that the government had not produced sufficient evidence linking

her to the conspiracy charged in the Superseding Indictment.                    The

district court denied Maryea's motion, stating that, when "viewing


                                         -12-
the evidence in a light most favorable to the prosecution . . . ,

it seems to me that . . . the jury certainly could infer that . . .

the    conspirators        who    did     tie   this    entire   course    of   conduct

together, even if it does amount to more than one conspiracy if

broken down, into a single conspiracy, was Lynette Maryea and Troy

Muder.    So for the reasons . . . stated by the U.S. Attorney in his

objection, I have to deny the motion for Rule 29."

              The district court charged the jury, and the jury sent a

note    to    the     court      during    its     deliberations     asking,     "Which

indictment are we supposed to refer to?                        Jury instructions are

unclear."         The court instructed the jury to deliberate and return

a verdict on the Superseding Indictment.                  The jury then returned a

guilty    verdict,      and      the    district       court   entered    judgment    on

October 19, 2011.          This timely appeal followed.

                                    II.    Discussion

              Maryea argues that the district court erred by (1)

denying her Speedy Trial Act claims in her motion to dismiss; (2)

failing      to    order    a    second     mental     health    evaluation     of   her

competency to stand trial following her car accident; and (3)

denying her Rule 29 motion based on a prejudicial variance between

the conspiracy proven at trial and that charged in the Superseding

Indictment.        We address each issue in turn.




                                            -13-
A.   Maryea's Challenges on Appeal

           1.   Speedy Trial Act Claims

           This court "review[s] the district court's denial of a

motion to dismiss based upon the Speedy Trial Act de novo as to

legal rulings and for clear error as to factual findings."           United

States v. Maxwell, 351 F.3d 35, 37 (1st Cir. 2003).              The Speedy

Trial Act requires that a court grant a defendant's motion to

dismiss for lack of a speedy trial if the defendant is not brought

to trial within seventy non-excludable days.         18 U.S.C. §§ 3161(c)

(h), 3162(a).

           Under the Speedy Trial Act, "[i]n any case in which a

plea of not guilty is entered, the trial of a defendant charged in

an . . . indictment . . . shall commence within seventy days from

the filing date . . . of the . . . indictment, or from the date the

defendant has appeared before a judicial officer of the court in

which such charge is pending, whichever date last occurs."               18

U.S.C. § 3161(c)(1).      Section 3161 designates periods of time that

may be properly excluded in computing time on the Speedy Trial

clock, including    the    two   exclusions   at   issue here:    the "Co-

Defendant Clause" and the "Ends-of-Justice Clause."         Under the Co-

Defendant Clause,"[a] reasonable period of delay when the defendant

is joined for trial with a co-defendant as to whom the time for

trial has not run and no motion for severance has been granted" is

excludable from the seventy-day clock between the filing of an


                                   -14-
indictment and the commencement of trial. 18 U.S.C. § 3161(h)(6).

This provision "stops the [Speedy Trial] clock for one defendant in

the same manner and for the same amount of time as for all co-

defendants."   United States v. Rush, 738 F.2d 497, 504 (1st Cir.

1984) (quoting United States v. Campbell, 706 F.2d 1138, 1141 (1st

Cir. 1983) (alteration in original)).    The Act also permits the

exclusion of days resulting from the granting of a continuance, "if

the judge granted such continuance on the basis of his findings

that the ends of justice served by taking such action outweigh the

best interest of the public and the defendant in a speedy trial."

18 U.S.C. § 3161(h)(7)(A).

          Between Maryea's appearance and trial, 383 days elapsed.

Maryea concedes that, of those days, 204 days are excludable under

the Speedy Trial Act. Maryea also assumes, without conceding, that

for the purposes of appeal: (1) 36 days are excludable under the

First MTC granted to Woods; and (2) 30 of the 58 total days for the

court-ordered competency evaluation are excludable. Therefore, 113

days remain between the filing of the Superseding Indictment and

the commencement of Maryea's trial, and Maryea limits her challenge

in this appeal to those sixty days within that period "erroneously

held to be excludable by the district court based on" that court's

granting of Woods' Second MTC.

          Maryea makes two interrelated arguments in her challenge

to the district court's exclusion of the above-referenced sixty


                                 -15-
days.    First, she contends that the court erred in not assessing

the reasonableness of the application of the Second MTC as to her

Speedy Trial clock.      Second, she asserts that the court erred by

requiring severance from her co-defendant as a pre-condition for

analyzing the reasonableness of the continuance as it applied to

her.    We address each argument separately.

                   a.     Application of a Reasonableness Requirement
                          to the Co-Defendant Clause

            Maryea claims that the district court erred in failing to

consider "the reasonableness, vel non, of the delay [resulting from

the granting of the Second MTC] as it applied to [her] situation."

She first argues that the Supreme Court's decision in Bloate v.

United States, 130 S. Ct. 1345, 1349 (2010), supports reading a

reasonableness requirement into the Co-Defendant Clause because, in

that decision, the Supreme Court suggested that the subsections of

§ 3161 may need to be analyzed together before properly excluding

a period of delay.      Specifically, Maryea contends that, since the

Supreme Court read the ends-of-justice requirement under subsection

(h)(7) into subsection (h)(1), a subsection that allows exclusions

for procedural delays or delays resulting from ongoing motion

practice and interlocutory appeals, subsection (h)(7) and its

reasonableness requirement must also be read into the Co-Defendant

Clause, subsection (h)(6).     Second, Maryea claims that there is no

First Circuit precedent directly on point regarding the application

of the reasonableness requirement to the Co-Defendant Clause.

                                  -16-
While the issue was raised in United States v. Brown, 736 F.2d 807

(1st Cir. 1984), the Court did not reach it due to the fact that

the defendant in that case had not articulated an argument for why

the excluded time was not reasonable as to him.                Finally, Maryea

relies   on    Third   and   Ninth   Circuit   law    which    has   upheld   the

proposition that, when a delay granted for one defendant in a

multi-defendant trial is applied to a co-defendant's Speedy Trial

clock under the Co-Defendant Clause, a court must assess the

reasonableness of the delay not only as to the first defendant, but

also as to any co-defendant.         See United States v. Lewis, 611 F.3d

1172, 1176 (9th Cir. 2010); United States v. Novak, 715 F.2d 810,

816, 821 (3d Cir. 1983), abrogated in part by Henderson v. United

States, 476 U.S. 321, 330 (1986).

              Maryea   maintains     that    Woods'   Second     MTC   was    not

reasonable as to her since the continuance only gave him more time

to achieve his plea deal with the government, undermining her

defense strategy and resulting in her being stranded as the "lone

defendant to be tried for a conspiracy that originally named

fifteen co-defendants."         She likens her case to that of United

States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999), in which the

Ninth Circuit held that a defendant suffered prejudice under the

Speedy Trial Act when the district court granted a continuance to

the government for the "primary purpose" of allowing the only other

co-defendant in the case to "pursue plea negotiations."


                                      -17-
            The government contends that the district court did not

err when it excluded from Maryea's Speedy Trial clock the period

resulting    from    the   grant   of   the   Second   MTC   following    its

determination that Woods was entitled to a continuance due to

ongoing plea negotiations and a pending state court matter.              That

is because the only way that the court could honor Woods' need for

a continuance and Maryea's right to a speedy trial was to grant

Maryea a severance so that she could be tried ahead of Woods.

Since the district court expressly afforded Maryea the option of a

severance and she expressly declined to file a motion to sever due

to her trial strategy to be tried alongside Woods, the district

court's extension of the delay to Maryea was reasonable as the only

way to secure Woods' interest and allow the defendant to pursue her

strategy.    The government cites to the Tenth Circuit's recent

decision in United States v. James, 418 Fed. Appx. 751, 754 (10th

Cir. 2011), to support its proposition that a "[d]efendant cannot

have the benefit of his trial strategy and then argue that the

delay resulting from that strategy was unreasonable."

            When    a Speedy   Trial    Act   violation   is alleged     by a

defendant, a trial court follows a two-step process. United States

v. Staula, 80 F.3d 596, 600 (1st Cir. 1996).           First, it calculates

and determines the aggregate time elapsed awaiting trial.           Id.    In

this case, the parties do not challenge the district court's Speedy

Trial calculations with respect to the aggregate time elapsed


                                    -18-
between the Superseding Indictment and Maryea's trial. Second, the

Court determines how many days are properly excluded from that

ultimate sum.    Id.    Maryea does not contest the reasonableness of

the ends-of-justice determination in Woods' Second MTC as to him,

nor does she contest the validity of the Co-Defendant Clause as a

general matter.        Rather, Maryea asks the court to impose an

additional requirement in assessing whether days excluded from her

co-defendant's Speedy Trial clock should be excluded from the

ultimate sum of her own Speedy Trial clock--namely, a requirement

that the district court find reasonable as to her days excluded

from her co-defendant's Speedy Trial clock if they are to count as

excludable days from her own Speedy Trial clock.

          Maryea is correct that the case law in this Circuit has

not addressed head on whether the Co-Defendant Clause as a general

matter is subject to a reasonableness limitation,2 and we decline

to do so here.   However, the court agrees with the government that,


2
   Maryea specifically refers to this Court's decision in United
States v. Brown, 736 F.2d 807. In that case, defendant Brown asked
the court to follow the Third Circuit's decision in United States
v. Novak by recognizing a reasonableness limitation on the
application of excludable time from one co-defendant to another.
Id. at 809 (citing Novak, 715 F.2d at 814). This court held that,
since Brown did not provide any specific reasons for why the
excludable period of delay might be reasonable as applied to his
co-defendant but not as applied to him, the Court "need not
interpret the precise interplay of sections (h)(1)(F) and (h)(7) of
the Act." Id. In United States v. Mitchell,723 F.2d 1040, 1048
(1st Cir. 1983), we noted a circuit split on the application of a
reasonableness requirement to the Co-Defendant Clause, but
explicitly declined to resolve the conflict in the circuits due to
defendant Mitchell's failure to file a motion for severance.

                                  -19-
under the facts of this particular case, the district court did not

err when it denied Maryea's motion to dismiss.                 In line with the

principles outlined in the Supreme Court's decision in Bloate as

well as the reasoning of our sister circuits, the Court will assume

without   deciding,     for   the    purposes    of     this    case,   that   a

reasonableness requirement applies, and that the requirement may be

met through a factors-based assessment.           See     Bloate, 130 S. Ct.

1345 (holding that time excluded from a Speedy Trial clock for

pretrial motion preparation is not automatically excluded under

§   3161(h)(1),   but   may   only   be     excluded    when    a   court   makes

appropriate reasonableness findings under § 3161(h)(7)); United

States v. Lewis, 611 F.3d 1172, 1176 & n. 2 (9th Cir. 2010)

(affirming Ninth Circuit precedent that, "in order to attribute a

co-defendant's excludable delay under § 3161(h)(7) to a defendant,

the delay must meet the reasonableness requirement of § 3161(h)

(6)," and noting that the reasonableness requirement "comports with

Supreme Court precedent"); United States v. Stephens, 489 F.3d 647,

655 (5th Cir. 2007) ("Attribution of the excludable delay of one

co-defendant to another co-defendant is not, however, automatic;

rather the period of delay must be reasonable") (citing Henderson

v. United States, 476 U.S. 321, 326-27 (1986); United States v.

Cordova, 157 F.3d 587, 599 (8th Cir. 1998) (applying reasonableness

requirement to and finding reasonable an 80-day delay in co-

defendant's trial resulting from another co-defendant's capture and


                                     -20-
identity hearing); United States v. Howard, 918 F.2d 329, 336 (2d

Cir. 1990) (holding that the Co-Defendant Clause exclusion requires

a defendant to make a motion for severance in order to benefit from

the reasonableness limitation); United States v. Mayes, 917 F.2d

457, 460 (10th Cir. 1990) (applying reasonableness requirement to

Co-Defendant Clause); United States v. Culpepper, 898 F.2d 65, 67

(6th Cir. 1990) (same); United States v. Tobin, 840 F.2d 867, 869-

70 (11th Cir. 1988) (same); United States v. Dennis, 737 F.2d 617,

621 (7th Cir. 1984) (same); United States v. Novak, 715 F.3d 810

(3d Cir. 1983) (same).

          In considering the significance of a defendant's failure

to petition for severance in assessing reasonableness, it is

important to be clear about the language and stated purpose of the

Co-Defendant Clause itself, which allows for exclusions of 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).   Some circuits have interpreted that provision

as requiring a defendant to file a motion for severance in order to

challenge the reasonableness of the delay on appeal.    See United

States v. Howard, 443 Fed. Appx. 596, 598 (2d Cir. 2011) (citing

Vasquez, 918 F.2d at 336-37); Culpepper, 898 F.2d at 67.      It is

uncertain that this circuit has imposed such a requirement.       See

United States v. Mitchell, 723 F.2d 1040, 1048 (1st Cir. 1983).   In


                               -21-
any event, we consider the failure to move to sever an important

consideration given that our sister circuits have found a petition

for severance relevant in their reasonableness analysis, having

either found that a failure to move for severance contributes to a

finding that a defendant was not prejudiced by a delay granted to

a co-defendant or that, under a totality-of-the-circumstances test,

a defendant's failure to move to sever is an important factor to

consider.      See United States v. Messer, 197 F.3d 330, 336-38 (9th

Cir.   1999)    (applying   a   totality-of-the-circumstances     test    in

determining reasonableness of applying delay to a co-defendant and

listing a defendant's failure to move to sever as a factor to

consider); Cordova, 157 F.3d at 599-600 (finding delay reasonable

where no motion for severance was granted and explaining that a

defendant fails to meet his burden in showing that his right to a

speedy trial has been violated when he fails to argue that the

delay was unreasonable); Franklin, 148 F.3d at 457-58 (stating that

"[a] defendant's failure to move for severance, or otherwise pursue

a speedy trial in the district court, can undermine prejudice

allegations made on appeal"); Mayes, 917 F.2d at 460 (finding no

Speedy Trial      Act   violation when     considering   as a   factor   the

defendant's failure to ask to be tried separately from a co-

defendant); Tobin, 840 F.2d at 869-70 (noting that defendant's

failure to move to sever his case from a co-defendant's was a

factor supporting the reasonableness of a delay); Dennis, 737 F.2d


                                    -22-
at 621-22 (finding the delay reasonable where defendant "at no time

moved to sever his case and had failed to allege any substantial

prejudice resulting from the delay").

          To     the   extent   that    Maryea   alleges   prejudice     or

unreasonableness under the totality of the circumstances resulting

from her co-defendant having reached a plea agreement with the

government as a result of ongoing negotiations prior to trial --

made possible, at least in part, by the continuances granted by the

district court -- we cannot agree that such a delay goes against

the text, legislative history, and purpose of the Speedy Trial Act.

This is because the "utility of a joint trial [wa]s particularly

compelling here, as the defendants were charged with a single

conspiracy so that the government could be expected to 'recite a

single factual history, put on a single array of evidence, and call

a single group of witnesses.'"         Franklin, 148 F.3d at 457.      In a

case heavily relied on by Maryea, the Third Circuit stated that

"[t]he Legislative history of section 3161(h)(7) illustrates a

strong congressional preference for joint trials and an intention

that delays resulting from the joinder of codefendants be liberally

excluded."     See Novak, 715 F.2d at 814.       Courts have accordingly

selected formulas that promote joint trials under the particular

facts of the case based on the stated intent of the Senate in its

1974 and 1979 Senate Reports that the Co-Defendant Clause was

intended to help avoid "the time, expense and inconvenience of


                                  -23-
separate prosecutions." See id. at 815; United States v. Campbell,

706 F.2d 1138, 1141-42 (11th Cir. 1983); S. Rep. No. 1021, 93d

Cong., 1st Sess. 38 (1974); S. Rep. No. 212, 96th Cong., 1st Sess.

24 (1979).        Further, Maryea could have avoided any prejudice

resulting from ongoing plea negotiations by seeking severance, and

she has made no showing that the granting of the Second MTC

resulted in Woods reaching the plea agreement which allegedly

prejudiced her, or that she would not have been convicted of the

conspiracy had Woods joined her trial.         For all of these reasons,

we find the application of the delay resulting from the Second MTC

to Maryea's Speedy Trial clock to be reasonable.

             Maryea's second Speedy Trial Act argument is that the

district court erred in requiring her to either request a severance

or forfeit her Speedy Trial rights.             This is because, Maryea

claims, Speedy Trial Act rights may not be waived by a co-

defendant's failure to request a severance based on the Supreme

Court's decision in Zedner v. United States, 547 U.S. 489 (2006),

the   rule   of   a   majority   of   sister   circuits,   and   the   text,

legislative history, and purpose of the Act.           See Mitchell, 723

F.2d at 1047.

             In Zedner, the Supreme Court held that, since the Speedy

Trial Act was designed not only to protect defendants but also the

public interest, defense continuance requests could not be based

merely on a defendant's waiver of his rights under the Act.            Id. at


                                      -24-
501. Rather, the granting of a continuance must "fit within one of

the specific exclusions set out in subsection (h)."               Id. at 500.

To the extent the consideration of a failure to seek a severance in

a factor-based reasonableness determination might be considered a

"waiver," it does not constitute a prospective waiver of Speedy

Trial Act rights of the kind at issue in Zedner.             Firstly, Zedner

involved    a   blanket      prospective    waiver   "for   all   time"   of   a

defendant's rights under the Speedy Trial Act; this case does not.

See Zedner, 547 U.S. at 492-93.            Such a broad waiver was deemed

ineffective by the Supreme Court because it found that the breadth

of the waiver by definition did not "fit within one of the specific

exclusions set out in subsection (h)."           Id. at 500.      In the facts

before us, the exclusion fits within the Co-Defendant Clause, and

we have found the application of the exclusion as to Maryea

reasonable. The Supreme Court in Zedner also found the prospective

nature     of   the    waiver    ineffective,    distinguishing      it    from

retrospective waivers and stating that "there is no reason to think

that Congress wanted to treat prospective and retrospective waivers

similarly."      Id.    at    502.   Retrospective     waivers,     the   Court

reasoned, do

            not pose a comparable danger because the
            prosecution and the court cannot know until
            the trial actually starts or the guilty plea
            is actually entered whether the defendant will
            forego moving to dismiss. As a consequence,
            the prosecution and the court retain a strong
            incentive to make sure that the trial begins
            on time.

                                     -25-
Id.   The "waiver" at issue in this case is not a prospective waiver

but is better characterized as retrospective since Maryea could

either assert her right to a speedy trial by moving to sever or

challenge   an   alleged      denial   of     her    Speedy   Trial   Act   rights

following    the     denial       of   a    motion      to    sever    based    on

unreasonableness.        Maryea still remained in control of the 70-day

clock as to her since she was not precluded from accelerating the

clock or challenging exclusions from her clock even if she may not

-- and should not -- have control of the 70-day clock as to her co-

defendant. Thus, merely placing conditions on her assertion of her

Speedy   Trial     Act   rights    does     not     constitute   an   ineffective

prospective waiver "for all time" as prohibited under Zedner.

            To conclude, we hold that the district court did not err

in denying Maryea's motion to dismiss for lack of a speedy trial

since the delay caused by Woods' Second MTC was reasonable.                    The

court thus affirms the district court's finding that no Speedy

Trial violation occurred since, applying the properly excluded days

from Woods' Second MTC, Maryea's Speedy Trial clock did not run in

excess of the requisite seventy days.

            2.   Mental Competency Determinations

            The competency standard for standing trial involves an

inquiry into whether a defendant has "a rational as well as factual

understanding of the proceedings against" him or her, and whether

the defendant "has sufficient present ability to consult his lawyer


                                       -26-
with a reasonable degree of rational understanding."                   Indiana v.

Edwards, 554 U.S. 164, 170 (2008) (citing Drope v. Missouri, 420

U.S. 162, 171 (1975); Dusky v. United States, 362 U.S. 402, 402

(1960)).     Pursuant to 18 U.S.C. § 4241, a district court "shall

order . . . a hearing [to determine the mental competency of the

defendant]    if   there    is    reasonable    cause   to   believe    that the

defendant may presently be suffering from a mental disease or

defect rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the proceedings

against him or to assist properly in his defense."                     18 U.S.C.

§ 4241(a); see also United States v. Brown, 669 F.3d 10, 17 (1st

Cir. 2012) ("A district court must sua sponte order a competency

hearing if there is reasonable cause to believe that a defendant is

mentally incompetent."). Courts are required "to hold a competency

hearing sua sponte whenever evidence raises a sufficient doubt as

to the competence of the accused."            Johnson v. Norton, 249 F.3d 20,

26 (1st Cir. 2001).         Factors to consider in guiding a district

judge's    inquiry   into        whether   an   evidentiary    hearing     as   to

competence is warranted include "a defendant's irrational behavior,

his demeanor at trial, and any prior medical opinion on competence

to stand trial."     Id. at 27 (quoting Drope, 420 U.S. at 180).                A

district court may consider its own interactions with the defendant

in determining whether there is reasonable cause for an examination

or an evidentiary hearing. United States v. Curtis, 520 F.2d 1300,


                                       -27-
1304 (1st Cir. 1975).        Even if a district court has found a

defendant competent when the trial begins, "a significant change in

circumstances in the midst of trial may render a second competency

hearing proper." Yehboah-Sefah v. Ficco, 556 F.3d 53, 82 (1st Cir.

2009).    The conviction of a person legally incompetent to stand

trial violates due process.      See Johnson, 249 F.3d at 26.

            The court reviews the district court's decision not to

hold a competency hearing or order a psychiatric examination for

abuse of discretion, affirming the district court's decision as

long as there was a sufficient evidentiary basis to support its

decision.    United States v. Sánchez-Ramírez, 570 F.3d 75, 80 (1st

Cir. 2009) (standard of review of decision not to hold a competency

hearing); Curtis, 520 F.2d at 1304 (standard of review of decision

not to order psychiatric examination).        To challenge a district

court's finding of competency, an appellant "must present facts

sufficient to positively, unequivocally and clearly generate a

real,    substantial   and   legitimate   doubt   as   to   [her]   mental

competence."    Brown, 669 F.3d at 17 (quoting United States v.

Collins, 949 F.2d 921, 927 (7th Cir. 1991)).

            Maryea argues the district court violated her due process

and statutory rights by failing to order a re-evaluation of her

competency to stand trial after the injuries she suffered in the

January 14th car accident.      Specifically, Maryea asserts that the

district court erred because the accident wrought a "significant


                                  -28-
change in circumstances" warranting an evidentiary hearing on her

mental competency.

          Maryea points to our decision in Johnson to support her

argument stating that this case, like Johnson, involves a defendant

in a criminal proceeding who was subjected to a physical injury

worthy of creating a "change of circumstances."    In Johnson, this

court found that a competency hearing was warranted when the

defendant suffered a blow to the head on the morning of the first

day of trial and also lost consciousness and vomited during trial.

See 249 F.3d at 23, 28.      In this case, Maryea cites to the

following which, she claims, created sufficient doubt as to her

mental competency after the accident that should have triggered the

ordering of a mental competency hearing: (1) statements she made

during the January 18, 2011 Status Conference that her pain was

"breaking through" her medication and that she was "damaged,"

"broken," and rendered incapable of participating in her own

defense;3 (2) her breakdown on the sixth day of trial when she

received her medications late; (3) her    "rambling, incoherent and

inconsistent"   testimony   following    the   court's   recess   and

questioning of Maryea on that sixth day following her receipt of

her medication; (4) her erratic behavior on the seventh day of

trial when, in response to the court's question concerning how she



3
  At this Status Conference and based on Maryea's representations,
the district court granted Maryea's request for a continuance.

                               -29-
was feeling, she stated that she was "celestial" and objected to

her own counsel while attempting to address the court directly and

through   a    subsequent   pro    se    motion    for     a    mistrial;      and   (5)

Dr.   Drogin's    testimony   as    to    the     nature       of   Maryea's    mental

diagnosis as "bipolar with psychotic features," and which provided

the court with descriptions of the disorder that she was exhibiting

at trial.     Based on these incidents, Maryea argues that sufficient

doubt was raised as to her competency, and "only a trained expert

could have accurately assessed her competency to continue."

              The government rejects these arguments, contending that

the district court was not required to order a second competency

evaluation for Maryea.      First, the government argues that Maryea's

post-accident behavior was not materially different from her pre-

trial behavior, particularly with respect to her speech patterns,

unusual use of vocabulary, disagreements with her defense counsel

and filing of pro se motions.           Second, the government asserts that

the district court was on notice as to Maryea's bipolar disorder

and physical pain, and sufficiently reviewed the issue of the

impact of physical pain on her psychological state on multiple

occasions, namely during: (1) Maryea's motions for bail; (2) its

order for a mental competency review; (3) its order for a medical

examination following the accident; and (4) its direct evaluations

and colloquies with Maryea on January 24 and 25, when it ordered

additional delays to accommodate her need for medication and


                                        -30-
proceeded   only after   she   was    questioned   and   evaluated.   The

government also contests Maryea's arguments that the testimony of

the clinical psychologist at trial should have alerted the district

court to doubt Maryea's competency, arguing that his testimony was

consistent with the mental competency report which indicated that

it would be unusual for physical pain to make a person incompetent

as long as their mental disorder was reasonably under control.

            Finally, the government distinguishes this case from

Johnson, noting that the district court in this case did not

continue the trial following the defendant's injury.          Rather, the

court stopped the proceedings and only continued when Maryea had

received her medication, had been treated, and the court was

convinced that she was competent.       The government likens this case

instead to United States v. Sánchez-Ramírez where the defendant was

found competent to stand trial prior to its commencement, then

suffered a breakdown before closing arguments due to his failure to

take prescribed medications.         See 570 F.3d at 79.      In Sánchez-

Ramírez, this court found no abuse of discretion when the district

court did not conduct another competency hearing since the court

relied on the fact that the defendant had already been found

competent by experts, a defense motion for a competency hearing was

not renewed -- suggesting that the reasons that gave rise to the

motion were temporary -- and the district court was able to rely on

its own observations of the defendant.       Id. at 80-81.


                                 -31-
            The court agrees with the government that there was no

abuse of discretion here.         A close look at the record indicates

that the district court had a sufficient evidentiary basis to

support its decision not to order a second mental competency

evaluation.    Maryea was originally found competent to stand trial,

and the district court's competency determination was neither

objected to nor appealed. The district court's order for a medical

examination and subsequent questioning of Maryea following the

accident was thorough, and she made clear and coherent statements

about her desire and ability to move forward with the trial.

Maryea's behavior following the accident as well as her behavior

subsequent to receipt of her medication on January 25 was not

demonstrably different than her behavior prior to the accident.

Additionally, the psychologist's testimony regarding her bipolar

disorder, while revealing details about certain aspects of her

psychological condition, did not contradict the competency report's

conclusions that, with adequate treatment and medication, Maryea's

experience    of    physical     pain    would   not   interfere   with   her

competency.

            First, while the record does not end with the district

court's initial competency determination, it is critical to note

that that the initial competency evaluation ordered by the court on

September     13,   2010,      explicitly      requested   a   "medical   and

psychological evaluation to determine her competency to stand


                                        -32-
trial, including an assessment of whether, and [] the extent to

which her physical pain impacts that competency." It is thus clear

that the district court was aware and sensitive to the fact, early

on in the proceedings, that Maryea's physical pain could impact her

mental state. The district court's finding of competency relied on

the psychiatric report submitted by Dr. Drukteinis on November 10,

2010, and after the court ordered the parties to request any relief

based on said report and found Maryea competent to stand trial,

neither party objected nor appealed that determination.

           Second, within days of the accident, the district court

granted Maryea's motion to continue filed immediately after the

accident and ordered that Maryea

           undergo an independent medical examination as
           soon as possible (preferably within the next
           24 hours, if feasible) to further evaluate and
           diagnose any injuries she may have sustained
           in the recent automobile accident and to
           determine whether the continuing effects of
           those injuries, if any, will prevent her from
           meaningfully participating in the ongoing
           criminal trial and assisting in her defense,
           including    observing    the   evidence   and
           communicating with her counsel. A report by
           the   doctor    who   conducts   the   medical
           examination shall be filed with this court as
           soon as possible. . . .

The   district   court   also   ordered   that   an   MRI   be   conducted.

Additionally, it appears from the record that Maryea's pain was

acutely experienced due to failure to take her medications, and

upon hearing of said pain, the court ordered a recess until her

medications took effect.        During the Status Conference conducted

                                   -33-
following Maryea's taking of the medication, the court addressed

the issue of her pain and engaged in a colloquy with her to affirm

her ability to respond to questions intelligently.                   Not only did

Maryea indicate her desire to proceed, but she demonstrated her

ability to follow the court's line of questioning, to understand

said questioning, to converse and interact with her attorney, and

to provide coherent responses regarding her rights.                     See, e.g.,

Cody v. United States, 249 F.3d 47, 53 n.5 (1st Cir. 2001) (stating

that the court's observation of the defendant's "appearance and

demeanor    as   he   answered   questions       throughout       the    colloquy"

supported the court's competency determination) (citing United

States v.    Savinon-Acosta,     232     F.3d    265,   269   (1st      Cir.   2000)

("Courts have commonly relied on the defendant's own assurance

. . . that the defendant's mind is clear. Further, the defendant's

own performance in the course of a colloquy may confirm . . . his

assurances.") (citation omitted)).              In addition, following the

accident, Defense counsel did not file a motion for a competency

hearing,    suggesting   that    the    issues    which    gave    rise    to   any

competency concern were temporary in nature.              See Sánchez-Ramírez,

570 F.3d at 81.

            Third, it does not appear from the record that, following

Maryea's receipt of her proper medications, her behavior in court

as it related to her defense was any different from her behavior

prior to the accident.       Specifically, transcripts from Maryea's


                                       -34-
pre-trial hearings reveal that Maryea complained about her neck and

back pain while also using unusual vocabulary in her oral and

written statements to the court.            In fact, the psychiatric report

explicitly     noted      Maryea's   evasiveness,     tendency       to    speak    in

generalities,       and    her   variable   moods.        However,    the       report

nevertheless stated that it "would be a very unusual circumstance

that,   with   an    individual's      mental   disorder     under        reasonable

control, the mere presence of pain would make them not competent to

stand trial."        That Maryea's post-medication behavior appears

consistent with her behavior prior to the accident is another

factor supporting         the    conclusion that     there was no          abuse of

discretion in the court's decision not to order a second competency

evaluation.

           Finally, the district court did not err in failing to

"diagnose"     Maryea's     courtroom    behavior    as    identical       to    those

characteristics of bipolar disorder flagged in the psychiatrist's

evaluations of Maryea.            As we just stated, following Maryea's

medication for her extreme pain, the record does not show that

Maryea conducted herself in a manner distinct from her behavior

before the accident.         Additionally, the psychiatrist's evaluation

of Maryea did not contradict the court's later determination of

Maryea's competency following the accident since his report stated

that Maryea's experience of physical pain need not interfere with

her mental competency so long as her disorder was under reasonable


                                        -35-
control.     The court's observations on the record and the record

itself indicate that Maryea had reasonable control over her mental

faculties after her pain medication had time to take effect.

            To conclude, this court finds that the district court had

a sufficient evidentiary basis when it failed to sua sponte order

a second competency evaluation.                  The facts of this case and the

trial court's response to Maryea were almost identical to the facts

and    court's    response      in   Sánchez-Ramírez,            where    no   abuse   of

discretion was found by this court when a defendant had been

originally     found       competent,       an    expert   report       confirmed    that

competency,      no    motion    for    a    competency      hearing       was   renewed

following the change of circumstances, and the district court judge

made observations on the record that there were no signs of mental

impairment.      Sánchez-Ramírez, 570 F.3d at 81.

            3.    Prejudicial Variance

            To sustain a conviction for conspiracy, the evidence must

show   that:     (1)   a    conspiracy       existed;      (2)    the    defendant     had

knowledge of the conspiracy; and (3) the defendant knowingly and

voluntarily participated in the conspiracy.                        United States v.

Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011).                          In proving the

third element, the evidence must establish that the defendant both

intended to join the conspiracy charged and intended to effectuate

the objects of that conspiracy.                  Id.




                                         -36-
          A prejudicial variance occurs when "(1) the facts proved

at trial differ from those alleged in the indictment; and (2) the

error affects the defendant's substantive rights . . . . A claim

that the Government's proof varied impermissibly from the charges

contained in the indictment is essentially a challenge to the

sufficiency of the evidence."         United States v. Dunbar, 553 F.3d

48, 61 (1st Cir. 2009) (citation omitted).             In assessing a claim of

prejudicial variance, the court first examines "the evidence --

direct and circumstantial -- as well as all plausible inferences

drawn therefrom, in the light most favorable to the verdict, and

determine[s] whether a rational fact finder could conclude beyond

a reasonable doubt that the defendant committed the charged crime."

United States v. Niemi, 579 F.3d 123, 127 (1st Cir. 2009) (quoting

United States v. Wyatt, 561 F.3d 49, 54 (1st Cir. 2009)).             Factors

relevant to the inquiry in the context of conspiracy charges

include: "whether the alleged conspirators shared a common purpose,

whether their actions demonstrated interdependency, and the extent

to which participants overlapped during the life of the alleged

conspiracy."       United States v. Balthazard, 360 F.3d 309, 315 (1st

Cir. 2004).    The government need not prove that the defendant had

"knowledge of every other participant, or of the details of the

conspiracy,    .    .   .   but knowledge   of   the    broader   conspiracy's

existence is critical." United States v. Franco-Santiago, 681 F.3d

1, 9 (1st Cir. 2012) (citations and quotation marks omitted).               A


                                     -37-
defendant cannot succeed with a sufficiency challenge "as long as

a plausible reading of the record supports the jury's implied

finding that [said defendant] knowingly participated in the charged

conspiracy."   United States v. Pérez-Ruiz, 353 F.3d 1, 7 (1st Cir.

2003).

          If the court finds that the evidence is not sufficient to

permit a jury to find a defendant's express or tacit agreement to

the charged conspiracy, it then looks to whether the evidence was

sufficient to permit a jury, under a proper set of instructions, to

convict the defendant of a related, similar conspiracy.      United

States v. Candelaria-Silva, 166 F.3d 19, 39 (1st Cir. 1999).     If

the defendant could be convicted of a related, similar conspiracy,

the court then asks whether the variance between the indictment and

the conspiracy proven at trial affected the defendant's substantial

rights or if the difference amounted to harmless error.    Id.

          Since Maryea preserved this issue through her objections

at trial, de novo review is appropriate. United States v. DeCicco,

439 F.3d 36, 43-44 (1st Cir. 2006).

          Maryea asserts that, because nearly all of the evidence

introduced at trial pertained to the Muder rather than the Woods

conspiracy, there was an impermissible variance between the charge

in the Superseding Indictment and the evidence introduced at trial.

Therefore, Maryea claims, her conviction was not supported by




                               -38-
sufficient evidence and the district court erred in denying her

Rule 29 motion for judgment of acquittal.

               In support of her argument, Maryea cites to this court's

decision      in     Dellosantos.         In    that   case,      the    two    defendants

convicted       at    trial     had     been    part    of   an    eighteen-defendant

superseding indictment that charged all defendants with joining an

overarching conspiracy to distribute both cocaine and marijuana in

Maine.       Dellosantos, 649 F.3d at 110-11.                 On appeal, this court

found that there was insufficient evidence to support the finding

of     a    single        conspiracy,     and     instead      found      two     separate

conspiracies:         a     Massachusetts-based         conspiracy       to     distribute

cocaine only, and a Maine-based conspiracy to distribute both

cocaine and marijuana.              Id. at 119.        Here, Maryea maintains, the

government submitted evidence of a single, overarching conspiracy,

headed by Muder, to smuggle controlled substances into RCHOC, but

the government did not present sufficient evidence that Maryea

knowingly and voluntarily joined the separate and distinct charged

conspiracy involving Woods, Durham, and the smuggling of Suboxone.

               Maryea goes on to assert that she was unfairly prejudiced

by this variance in two ways: (1) inadequate notice of the charges

against       her;    and     (2)     prejudicial      "evidentiary       spillover."

Regarding      notice,       Maryea     claims    that,      since      the    Superseding

Indictment named only Maryea and Woods, it put her on notice of

"the       smaller,    less    sophisticated        Woods     conspiracy,        when   the


                                           -39-
government actually put Maryea on trial for the larger, more

complex     Muder    conspiracy."            With   respect        to     "evidentiary

spillover,"     Maryea       contends     that   she     was    prejudiced       by     the

transference of guilt to her from evidence incriminating defendants

who participated        in    another     conspiracy     in     which    she     was    not

involved.      Specifically, Maryea asserts that all of the evidence

introduced at trial concerned the Muder conspiracy, and the only

evidence relating to the Woods conspiracy was Durham's testimony

and three calls between Durham and Woods in July 2009.

              The government maintains that the evidence presented at

trial supported the jury's verdict that she was part of the

conspiracy charged in the Superseding Indictment. Specifically, it

contends that there was no variance since there was "ample evidence

to   permit    the   jury     to   conclude      that,    as    charged     in       [said]

indictment, from April 2009 to September 20, 2009, there was an

ongoing   conspiracy         to   smuggle   controlled         substances      into     the

Rockingham      Jail,    which      the     defendant     joined        with     a     full

understanding of the overall criminal objective."                       The government

states that an agreement in the conspiracy was reached when Durham

contacted Maryea as instructed by Woods to get her assistance in

continuing to smuggle Suboxone into the prison. After meeting with

Durham multiple times to get the Suboxone, Maryea arranged for the

Suboxone to be packaged "with the Oxycodone that she was already

smuggling for Muder and for all these drugs to be brought to the


                                          -40-
nursing home together so that they could then be transported into

the jail by the trustees.        This continued until law enforcement

intervened on September 20, 2009, thereby ending the conspiracy.

           The   government      further   argues   that    this   case   is

distinguishable from Dellosantos since Maryea knew about Woods'

agreement with Durham to distribute drugs in the jail and decided

to join the endeavor, combining it with her ongoing efforts to

smuggle other controlled substances into the jail for Muder. Thus,

unlike the defendants in Dellosantos -- defendants who were found

to be indifferent to the drug distribution in the first conspiracy

and did not even know that the conspiracy existed for most of the

relevant time period -- Maryea had direct contact with Durham

concerning the Suboxone smuggling and participated in the agreement

between Woods and Muder to smuggle said Suboxone into RCHOC.

           In the alternative, the government argues that, if the

court finds that a variance existed, it was not prejudicial to

Maryea.   This is because the Woods conspiracy was similar to the

broader conspiracy charged "insofar as it involved the defendant

agreeing with Woods and others to possess with intent to distribute

illegal drugs, including Suboxone and Oxycodone."                Maryea had

notice,   according   to   the    government,    since     the   Superseding

Indictment charged her with reaching an agreement that ran until

September 20, 2009, the day that Knowles was arrested for dropping

Suboxone and Oxycodone at the jail.             Further, the Superseding


                                    -41-
Indictment identified not only Suboxone, but also Oxycodone and

other drugs involved in the conspiracy.          The government maintains

that Maryea demonstrated her notice at trial when she identified

her defense theory as one in which she intended to blame Muder by

showing that she was either under duress or did not have the

requisite mental state due to her desire to placate him.

             Finally,    the   government    rejects     Maryea's     arguments

regarding     "evidentiary     spillover"     since    "the    bulk    of   the

government's case related to the August-September 2009 time frame

rather   than   the     April-July    time   frame."      Specifically,     the

government contends that, even if two conspiracies were proven --

one between Woods and Durham and one between Maryea, Woods, Muder

and others -- Maryea was not prejudiced by the admission of

evidence about the "April through July conspiracy" since it was

clear on the record that Maryea did not know about Durham's

smuggling arrangement with Woods at that time.                Therefore, the

government argues, Maryea cannot claim that she was convicted

because of the admission of "incompetent proof about the April-July

conspiracy involving Woods and Durham, since it was obvious to the

jury that the defendant's first dealings with Woods and Durham were

not until later."

             In this case, in order to find that a single conspiracy

was charged, it must have been possible for the jury to "infer from

the   acts   and   statements    of   the    witnesses    a   single   ongoing


                                      -42-
'agreement' that embraced [Maryea] and other co-conspirators."

United States v. Jones, 674 F.3d 88, 92 (1st Cir. 2012).              We find

that it was more than possible for the jury to so infer.

            First, the evidence shows that the activities that took

place between Maryea, Woods and Durham were in fact linked to the

Muder   conspiracy's   larger   operation       of    smuggling    controlled

substances into RCHOC.     Co-conspirators Knowles, Noonan and Bowley

testified at trial about the details of the Muder conspiracy's drug

smuggling operation into RCHOC, including the use of trustees to

smuggle drugs through slugs left at the nursing home adjacent to

the prison.     The government then presented recorded telephone

conversations    between    Maryea     and   Muder    indicating     delivery

arrangements for the drugs. The government also presented recorded

telephone   conversations    between    Woods   and    Durham     where   Woods

indicated he was looking for Suboxone, and on August 14, 2009,

Woods gave Durham Maryea's number and directed her to contact

Maryea because he "owe[d] her boy."             In Durham's testimony at

trial, she stated that she not only spoke with Maryea "a few, five,

ten" times, but also gave her Suboxone with the understanding that

"[t]hey were going to end up [in the jail]" to Woods, and that, if

the Suboxone made it in, it was her understanding that Woods "would

give [Maryea's] boyfriend [Muder] a split of [it]."                  She also

testified that she met Maryea at her home when co-conspirator

Knowles was present and gave her Suboxones for Woods.                Finally,


                                     -43-
Durham stated    that     she   got   confirmation         from    Woods    that the

Suboxone had made it into the prison.                     That confirmation was

reinforced at trial by Durham's explanation of recorded telephone

conversations    played    before     the     jury   in    which   she     and   Woods

discussed the Suboxone amounts that Woods had received. Therefore,

Durham's testimony indicates that, while the Woods distribution

operation in part ran separately from Muder's, Woods relied on

Durham and Maryea to procure the Suboxone and incorporate its

distribution into Muder's drug-smuggling operation. The government

also presented evidence of the drugs seized from Knowles and Noonan

upon their arrest at the nursing home, including slugs containing

Xanax, Oxycodone and Suboxone.

           This evidence, coupled with the actual conspiracy charged

in the Superseding Indictment, is sufficient for a jury to infer a

single conspiracy involving the smuggling of controlled substances

into RCHOC. The conspiracy charged extended between April 2009 and

September 20, 2009, included Maryea's agreement with Woods and

others -- namely, "other persons both known and unknown to the

grand   jury"   --   to   possess     with    intent      to   distribute    and   to

unlawfully distribute Suboxone as well as Oxycodone, Oxycontin,

Lorazepam, and Ativan.      We therefore find that a common goal can be

discerned between the Muder and Woods conspiracies. Under our law,

the common goal requirement has "wide breadth," and may be easily

found here where both conspiracies involved possession with intent


                                       -44-
to distribute and distribution of controlled substances into RCHOC.

See United States v. Sánchez-Badillo, 540 F.3d 24, 29 (1st Cir.

2008) (citation omitted).

          Second, Maryea herself embodies the overlap among the

activities' participants.   Even if she did not participate at the

beginning of Woods and Durham's Suboxone-smuggling conspiracy, she

joined it later to combine their efforts with the efforts of the

Muder narcotics-smuggling operation.      See United States v. Bello-

Pérez, 977 F.2d 664, 668 (1st Cir. 1992) (to determine whether a

defendant participated in the conspiracy, it is not necessary for

the jury to find that the alleged co-conspirators joined the

conspiracy at the same time or shared knowledge beyond a tacit

understanding that their illicit agreement existed, and it is

further not required that all participants knew each co-conspirator

or that each co-conspirator participated at the same time in

furtherance of the criminal venture; rather, what is essential is

that the criminal goal or overall plan "have persisted without

fundamental alteration, notwithstanding variations in personnel and

their roles.").

          Third,   there    was    an    interdependence     among   the

participants of the Woods and Muder conspiracies.          "Establishing

interdependence among the participants requires determining whether

the activities of one aspect of the scheme are necessary or

advantageous to the success of another aspect of the scheme."


                                  -45-
Sánchez-Badillo, 540 F.3d at 29 (quoting United States v. Portela,

167 F.3d 687, 695 (1st Cir. 1999)). This interdependence "makes it

reasonable to speak of a tacit understanding between [a core

conspirator] and others upon whose unlawful acts" his success

depends.    Id. (quoting United States v. Glenn, 828 F.2d 855, 858

(1st Cir. 1987)).     Based on the evidence presented at trial --

Durham's testimony, the recorded telephone conversations, and the

Suboxone found with other controlled substances in the slugs seized

upon Knowles and Noonan's arrests -- a jury could rationally infer

that Woods' drug-smuggling operation was orchestrated through the

same means as the Muder operation and that Woods' Suboxone supply

depended, at least in part, upon Maryea's successful procurement

and   distribution   of   the   substance   to   RCHOC   through   Muder's

channels.   See United States v. Soto-Beníquez, 356 F.3d 1, 19 (1st

Cir. 2003) (interdependency may be shown where "the success of an

individual's own drug transactions depends on the health and

success of the drug trafficking network that supplies him").4

            Having found that a jury could have reasonably concluded

that the Durham-Maryea-Woods activities shared a common purpose



4
   Since we do not find that the evidence established an agreement
different from that charged, we need not address the issue of
variance.   United States v. Soto-Beníquez, 356 F.3d at 18 n.1
(stating that the Court need not reach the issue of variance
"because we find sufficient evidence to support the finding of a
single conspiracy."). We also need not reach the issue of whether
Maryea was prejudiced by any variance in our analysis. See id.;
Pérez-Ruiz, 353 F.3d at 7.

                                  -46-
with Muder's drug-smuggling operation, had the requisite degree of

interdependency, and were a portion or component of Muder's larger

conspiracy, we cannot agree with Maryea's argument that a variance

existed with respect to the conspiracy charged and the conspiracy

proven.

                         III.   Conclusion

          We conclude that the district court did not err in

denying Maryea's motion to dismiss on Speedy Trial Act grounds, nor

did the district court commit an abuse of discretion by not

ordering a second mental health evaluation of Maryea's competency.

We further conclude that the government's proof at trial did not

establish an impermissible variance that would warrant reversal of

Maryea's conviction.   Accordingly, the judgment of the district

court as to Maryea is affirmed.

          Affirmed.




                                -47-
