 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 10, 2014           Decided January 20, 2015

                        No. 11-3074

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                   MELVIN TAPLET, JR.,
                      APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cr-00338)


    Allen H. Orenberg argued the cause for appellants.

    John Cummings, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne
G. Curt, and Anthony Scarpelli, Assistant U.S. Attorneys.

    Before: BROWN, Circuit Judge;           WILLIAMS      and
GINSBURG, Senior Circuit Judges.

    Opinion for the Court filed by Circuit Judge BROWN.
                              2
     BROWN, Circuit Judge. Melvin Taplet Jr. was convicted
of soliciting murder for hire using interstate commerce
facilities in violation of 18 U.S.C. § 1958. We affirm.

                               I

                              A

     Danielle Buck did what most good friends do. When her
friend and neighbor, Kimberly McLaughlin, began a romantic
liaison with Taplet and allowed him to move in, Buck noticed
unhealthy changes in her friend’s demeanor. She encouraged
her to end the relationship.

     Her friend listened. But while the relationship ended,
Taplet’s rage toward Buck festered and grew. In August 2008,
Taplet told his troubles to Jerome Thomas, a stranger he met
at a truck stop. Taplet explained how his relationship with
Buck’s friend had soured due to Buck’s interference, and how
he wished he could “have something seriously done to her.”
Rather than brushing it off as bluster, Thomas responded that
he could “take care” of Buck for $7,000 to $10,000. Taplet
was receptive and gave Thomas his cell phone number.
Unbeknown to Taplet, Thomas worked as a paid informant
for the Department of Homeland Security, Immigration and
Customs Enforcement (“ICE”).

     Taplet and Thomas discussed the murder-for-hire over
the phone and in person. At one meeting, Taplet reaffirmed
his desire to have Buck killed and provided Thomas with a
piece of paper showing McLaughlin’s address in Maine, an
apartment directly across the hall from Ms. Buck’s, and
including the notation “Danielle.” A few days later, Thomas
called Taplet’s cell phone and set up a meeting at a truck stop
in Elkton, Maryland, where Taplet provided the name of a
                              3
secluded town near the Canadian border where Thomas could
kill Buck and dispose of her body. He also provided a photo
of Buck.

    Thomas, claiming to be a drug dealer, asked Taplet to
weld a hidden compartment into a car as partial payment for
the murder-for-hire. Taplet met Thomas in Maryland.
Following Thomas’s instructions, Taplet drove to the parking
lot of Robert F. Kennedy Stadium in Washington, D.C.,
where ICE Special Agent Tony Rodriquez, posing as
Thomas’s hitman partner, joined them. Taplet could not
successfully complete the welding project in the parking lot,
but the three of them still agreed Thomas and Rodriquez
would murder Buck in exchange for future payment, while
Taplet—needing an airtight alibi—was at work in West
Virginia.

                              B

    On February 3, 2009, the district court arraigned Taplet
on one count of murder-for-hire. Three times prior to trial,
Taplet moved to dismiss the indictment on Speedy Trial Act
(“STA” or “Act”) grounds. See generally 18 U.S.C. § 3161.
Taplet, however, did not seek to dismiss the indictment on
constitutional grounds. The district court denied Taplet’s
speedy trial motions, and his trial began on February 14,
2011.

     Taplet moved for acquittal contending there was
insufficient evidence of the interstate commerce requirement
because the government had manufactured jurisdiction. Taplet
also requested a special jury instruction on manufactured
jurisdiction. The district court denied both and the jury found
Taplet guilty.
                               4
    The district court determined Taplet’s recommended
Sentencing Guideline range was 262 to 327 months, and then
sentenced Taplet to ten years in prison, the statutory
maximum for a murder-for-hire offense.

                               II

     Taplet aims several animadversions at his conviction and
sentence but only one comes close to hitting the mark: his
claim under the Speedy Trial Act. The Court reviews a
challenge under the STA de novo on questions of law and for
clear error on questions of fact. See United States v. Rice, 746
F.3d 1074, 1077 (D.C. Cir. 2014).

     The Act establishes a general rule: if a court does not
bring a defendant to trial within seventy days after indictment
or arraignment, the court “shall” dismiss the indictment on
“motion of the defendant.” 18 U.S.C. § 3162(a)(2). The Act,
however, “exclude[s]” from its seventy-day limit certain
periods of pretrial delay. Id. § 3161(h). The time a trial court
takes to decide a “pretrial motion,” for example, does not
count toward the seventy-day limit. Id. § 3161(h)(1)(D). If the
court holds a hearing on a motion, the Act excludes the time
between the filing of the motion and the conclusion of the
hearing. United States v. Van Smith, 530 F.3d 967, 969 (D.C.
Cir. 2008).

    Not all motions filed pretrial count as a “pretrial motion”
under the Act. In a series of cases, we have held that
government evidentiary filings that invoke Federal Rules of
Evidence 404(b) and 609, even if styled as “motions,” do not
qualify as pretrial motions. E.g., United States v. Marshall,
669 F.3d 288, 294–95 (D.C. Cir. 2011) (holding that
government’s motion to admit evidence of other crimes under
Federal Rule of Evidence 404(b) was not a pretrial motion);
                                 5
Van Smith, 530 F.3d at 970–71 (holding that the
government’s Federal Rule of Evidence 609 notice was not a
pretrial motion); United States v. Harris, 491 F.3d 440, 444
(D.C. Cir. 2007) (same). By contrast, when a defendant files
an opposition to the government’s evidentiary filing, it counts
as a pretrial motion. See Harris, 491 F.3d at 444.

    Taplet’s STA clock began when he was arraigned on
February 3, 2009. See 18 U.S.C. § 3161(c)(1). His trial did
not begin until February 14, 2011. The question is whether
seventy days of non-excludable time passed between those
dates.

                                A

     Two time periods were not excludable. The first ran
from February 3, 2009 to March 25, 2009. The district court
did not toll this time under any STA provision, and the
government concedes that these fifty days were non-
excludable. 1 The second non-excludable period ran from
September 11, 2009, when the government filed motions to
admit evidence under Federal Rules of Evidence 404(b) and
609, until September 25, 2009, when Taplet opposed those
motions. The government concedes, as it must, that the
fourteen days after it filed its evidentiary motion were non-
excludable. See Harris, 491 F.3d at 444; Marshall, 669 F.3d
at 294-95. Because the government conceded sixty-four days
of non-excludable time at the outset, Taplet can establish a


1
  Although the government “agree[d]” that this time period was
non-excludable, it nevertheless argued that Taplet waived a portion
of it because he failed to argue the period from February 3, 2009 to
March 3, 2009 was excludable before the district court. See Brief
for Appellee at 26, United States v. Taplet, No. 11-3074 (D.C. Cir.
Mar. 12, 2014). We address the issue of waiver in Section II.C.
                             6
violation of the STA if he shows six additional days of non-
excludable time. But, the task is easier said than done.

                             B

     Taplet contends both the ninety-three days between
October 26, 2009 and January 27, 2010, and the twelve days
between May 14 and May 25, 2010, were non-excludable. As
to the first, Taplet filed an opposition to the government’s
motion to admit evidence on September 25, 2009, and the
court held a hearing to decide the motion on May 18, 2010.
The ninety-three days do not count against the speedy trial
clock because the Act excludes the time “from the filing of
the motion through the conclusion of the hearing” on the
motion. 18 U.S.C. § 3161(h)(1)(D); see Rice, 746 F.3d at
1080. The second period from May 18th to 24th were
excludable because Taplet filed a reconsideration motion on
May 18, 2010, and the court denied that motion without a
hearing on May 24, 2010. When a district court decides a
pretrial motion without holding a hearing, up to thirty days
may be excluded after the court receives the materials
necessary to decide the motion. See 18 U.S.C. §
3161(h)(1)(H) (providing for the exclusion 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”); Van Smith, 530
F.3d at 969. Finally, May 25, 2010, is excludable because
Taplet filed a motion to continue the trial on May 24, which
the court granted after a hearing on May 25. See 18 U.S.C. §
3161(h)(1)(D).
                                  7
                                  C

    Taplet further contends the twenty-eight days from
January 18, 2011 to February 14, 2011 were non-excludable. 2
But it is unclear whether Taplet can seek review of his STA
claim if he failed to make proper and timely objections.

    In his first motion to dismiss, Taplet failed to allege that
the twenty-eight days from February 3, 2009 to March 3,
2009 were non-excludable. And although Taplet raised three
separate STA objections, he failed to renew a motion to
dismiss after January 18, 2011, thus failing to object to the
twenty-eight-day continuance from January 18 to February
14, 2011. The government argues that, on the basis of 18
U.S.C. § 3162(a)(2), Taplet’s failure to properly identify and
timely object constitutes a complete waiver of the STA’s
protections. If, however, forfeiture rather than waiver applies,
Taplet could at least seek plain error review.

     We have not previously addressed whether a defendant’s
failure to raise a particular period of non-excludable time in a
motion to dismiss amounts to waiver or forfeiture. See United
States v. Taylor, 497 F.3d 673, 676 n.3 (D.C. Cir. 2007)
(acknowledging the issue but declining to address it);
Marshall, 669 F.3d at 295 (applying plain error review on a
STA ineffective assistance of counsel claim without
discussing any potential waiver). Section 3162(a)(2) states
that the “[f]ailure of the defendant to move for dismissal prior

2
  The government insists the time period between January 18 and
February 14, 2011 was excludable because it filed a motion in
limine to permit jurors to use transcripts of undercover recordings
during its deliberations, and this motion was pending until the court
decided it at trial. Because we find this time period waived, there is
no need to address whether it was excludable.
                                 8
to trial … shall constitute a waiver of the right to dismissal
under this section.” But has a defendant who otherwise moves
for dismissal without renewing prior STA claims failed to
“move for dismissal prior to trial?” Has he relinquished the
ability to challenge that particular time period on appeal? 3

     Recent precedent from three circuits suggests that the
failure to raise specific non-excludable time periods in a
motion to dismiss constitutes waiver. See United States v.
Loughrin, 710 F.3d 1111, 1120–21 (10th Cir.) cert. granted
on different question, 134 S. Ct. 822 (2013), and aff’d, 134 S.
Ct. 2384 (2014) (holding that waiver rather than forfeiture
applies); United States v. Gates, 709 F.3d 58, 68 (1st Cir.)
cert. denied, 134 S. Ct. 264 (2013) (“To avoid a finding of
waiver, therefore, a defendant must raise any potential STA
violations before the district court in a motion to dismiss.”);
United States v. O’Connor, 656 F.3d 630, 637-38 (7th Cir.
2011) (suggesting waiver but ultimately applying plain error
review). These circuits reasoned that since “spotting” STA
violations is a role assigned to defendants, “it follows that any
specific violation not raised in a motion to dismiss is waived.”
O’Connor, 656 F.3d at 638 (citing Zedner v. United States,
547 U.S. 489, 502–03 (2006)). Waiver, they concluded, was
also appropriate for policy reasons, noting that plain error
review “would force the court on a motion to dismiss for STA
violation to consider every conceivable basis for challenging
its orders of continuance and exclusions of time, for fear that


3
  The legislative history largely repeats the statutory language and
is agnostic on the particular question before us: “[a] defendant must
move to dismiss the case prior to trial, entry of a plea of guilty or
nolo contendere, or he waives the right of dismissal with prejudice
on grounds that the requirements of this legislation were not met.”
H.R. REP. NO. 93-1508, reprinted in 1974 U.S.C.C.A.N. 7401,
7416.
                                 9
the defendant would raise new arguments on appeal.”
Loughrin, 710 F.3d at 1121.

     On the other hand, finding waiver where the statute is
less than explicit upsets the general rule of forfeiture
employed in criminal cases. See United States v. Olano, 507
U.S. 725, 733–34 (1993) (explaining that errors affecting
substantial rights may be considered even though they were
not brought to the district court’s attention). It is certainly true
that the Act puts the onus on the defendant to come forward
with a STA challenge. But the same is true of most criminal
rules, statutes, and constitutional provisions under our
adversarial system. And waiver is rarely assumed absent an
express colloquy or conduct so unequivocal its import could
not be mistaken. Forfeiture is the normal rule. See FED. R.
CRIM. P. 52(b); United States v. Greer, 527 F. App’x 225, 229
(3d Cir. 2013) cert. granted, judgment vacated on other
grounds, 134 S. Ct. 1875 (2014).

     We think there are good reasons to find waiver where a
defendant has failed to identify particular exclusions of time
or failed to renew an STA objection. To begin with, Section
3162(a)(2) states that a “[f]ailure of the defendant to move for
dismissal prior to trial” constitutes waiver. Implicit in the
requirement that a defendant “move for dismissal” is the
requirement that the defendant specify the reason for the
motion. See FED. R. CRIM. P. 47(b) (“A motion must state the
grounds on which it is based.”). When a defendant fails to
specify the particular exclusions of time within his or her
motion to dismiss, the defendant has failed to move for
dismissal on that ground. And when a defendant fails to
renew an objection after a period of non-excludable time has
passed, the defendant has, in effect, not moved for dismissal
at all.
                                10
     By requiring defendants to notify district courts of any
potential exclusions of time within their motions to dismiss
and requiring them to renew their motions, waiver also
prevents “undue defense gamesmanship,” Zedner, 547 U.S. at
502-03. The STA is different from most rights in that a
meritorious STA claim, in theory, could often meet plain error
review. Due to its mechanical nature, a meritorious STA
claim will always be plain to a reviewing court and will
always affect substantial rights. See Zedner, 547 U.S. at 503
n.5 (“[E]ven if a case is dismissed without prejudice, a
defendant may derive some benefit.”). 4 Defendants therefore
have an incentive to withhold meritorious non-excludable
time in their motions to dismiss on the chance that if their
trials go badly, plain error review of an STA claim will act as
a one-time reset button. Because this potential for a second
bite of the apple is unusually attractive, the potential for
gamesmanship is apparent. Section 3162(a)(2)’s waiver
provision thus provides a strong incentive, forcing defendants
to raise all non-excludable time periods in their motions to
dismiss, which in turn allows district courts to dismiss
indictments for STA violations before the court and the
government devote substantial resources to trial and
sentencing. See Zedner, 547 U.S. at 507 n.6 (noting that the §
3162(a)(2) requirement restricts defendant’s “ability to use
such a motion for strategic purposes,” by, for example,
waiting “to see how a trial is going (or how it comes out)
before moving to dismiss.”).

     We follow our sister circuits in holding that defendants
waive a period of non-excludable time if they fail to raise it in
their motion to dismiss or fail to renew their STA claims prior

4
  Of course, a defendant would still need to show the error affected
the “fairness, integrity, or public reputation of judicial
proceedings.” Olano, 507 U.S. at 732.
                             11
to trial. And because Taplet failed to identify or renew
objections to two potentially non-excludable periods of time,
he cannot establish that the seventy-day limit was violated
between his arraignment and trial.

                             III

    Taplet’s remaining claims challenging his conviction and
sentence require far less discussion.

                              A

     Taplet claims the delays in his case violated his
constitutional right to a speedy trial, but because he did not
advance the constitutional claim before the district court, we
review only for plain error. See Rice, 746 F.3d at 1081.

     The district court did not commit an error, let alone one
that was plain. Although a delay of more than two years is
“presumptively prejudicial,” Doggett v. United States, 505
U.S. 647, 651–52 & n.1 (1992), longer delays have been
deemed constitutionally acceptable, see United States v.
Lopesierra-Gutierrez, 708 F.3d 193, 202–03 (D.C. Cir.) cert.
denied, 134 S. Ct. 330 (2013) (finding no violation in case
where the delay was “three-and-a-half years”). Taplet either
joined in or requested many of the continuances, and he
waited fourteen months after his arraignment before filing a
motion to dismiss under the Speedy Trial Act. See Rice, 746
F.3d at 1082 (holding that defendant’s assertion of his rights
nearly a year after his arraignment “cuts decidedly” against
him). Taplet also failed to offer a concrete explanation on
how the delays prejudiced his defense. See Barker v. Wingo,
407 U.S. 514, 523 (1972) (employing multi-factor test that
asks whether the defendant suffered prejudice from the
delay).
                              12

                              B

     Taplet next claims there was insufficient evidence of the
interstate commerce element because, under United States v.
Archer, 486 F.2d 670 (2d Cir. 1973), the government
impermissibly manufactured jurisdiction when its confidential
informant convinced Taplet to drive from Maryland into the
District of Columbia.

     The government’s proof showed Taplet had provided his
cell phone number to Thomas, and they had several
conversations over the phone in furtherance of the murder-
for-hire scheme. That proof alone was sufficient evidence to
show that Taplet used a facility of interstate commerce with
the intent to commit a murder-for-hire. See United States v.
Weathers, 169 F.3d 336, 341 (6th Cir. 1999) (“It is well
established that telephones, even when used intrastate,
constitute instrumentalities of interstate commerce.”)
(emphasis in original); United States v. Evans, 476 F.3d 1176,
1180 (11th Cir. 2007) (holding that telephones and cellular
telephones are instrumentalities of interstate commerce).

     Nor can Taplet prevail on his Archer manufactured
jurisdiction defense. Taplet voluntarily crossed state lines in
order to provide the government informant with welding
services as payment for the murder-for-hire. Taplet “freely
participate[d]” in the jurisdictional act, so he cannot now
claim that the government manufactured jurisdiction. United
States v. Peters, 952 F.2d 960, 963 n.6 (7th Cir. 1992).

                              C

    Defense counsel requested a special jury instruction
regarding the interstate element, stating that the jury should
                              13
consider only the actions Melvin Taplet took “alone and
independent of the action(s) of, or assistance of the
confidential informant or any other government agent in
carrying out the scheme.” J.A. 622. But that was not the law.
The murder-for-hire statute creates liability even for those
who “use[ ] or cause[ ] another … to use … any facility of
interstate or foreign commerce, with intent that a murder be
committed.” 18 U.S.C. § 1958(a) (emphasis added).

                              D

     At the sentencing hearing, Taplet indulged in a discursive
allocution. For twenty minutes, he read from an “affidavit of
truth,” rambled on about a number of alleged trial errors, and
complained of a broad conspiracy against him. The district
court instructed Taplet to limit his remarks to sentencing
matters. When Taplet persisted in reading the affidavit, the
court accepted the affidavit as part of the record and insisted
that Taplet address only issues related to sentencing. Taplet
finally obliged.

     Taplet alleges the district court erred in prematurely
ending his allocution. Sentencing judges have discretion to
end or redirect allocution where the defendant strays into
matters unrelated to sentencing. See United States v. Alden,
527 F.3d 653, 663 (7th Cir. 2008); United States v. Muniz, 1
F.3d 1018, 1025 (10th Cir. 1993). The district court here did
just that. The court heard Taplet read for twenty minutes from
a prepared statement alleging numerous trial errors and an
ominous conspiracy against him. The court eventually
stopped Taplet and attempted to redirect his objections to
those relevant to sentencing. When Taplet stubbornly
continued reading his trial objections, the court offered to
accept the affidavit as part of the record. When Taplet
persisted, the court stopped him and ordered him to “either
                              14
discuss the appropriate sentence or not.” J.A. 990. The district
court did not abuse its discretion in finally saying enough is
enough.

                               E

     Taplet failed to raise a claim that his sentence was
procedurally unreasonable, so we review for plain error. See
United States v. Russell, 600 F.3d 631, 633–34 (D.C. Cir.
2010). He contends the district court failed adequately to
articulate its rationale for sentencing and placed inappropriate
weight on the Sentencing Guideline range.

     Before announcing the sentence, the court noted the
evidence against Taplet was overwhelming and Taplet failed
to show any remorse. The court also announced that the
sentence was necessary to protect the public; the sentence
would serve to deter Taplet from repeating this conduct; and
the sentence would deter others from seeking to hire third
parties to commit murder. That explanation was sufficient.

     The district court also did not place undue weight on the
Guidelines. The court, for example, did not state that the
Guidelines were legally binding. The court simply calculated
that Taplet’s recommended Guideline range for the murder-
for-hire offense was 262 to 327 months and then proceeded to
sentence Taplet well below that range, albeit to the statutory
maximum.
                               IV

    For the foregoing reasons, the district court’s judgment is

                                                      Affirmed.
