                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    August 20, 2008
                      UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 06-5166
 v.                                                       N.D. Okla.
                                               (D.C. No. 04-CR-168-001-HDC)
 BARRY WINFIELD CONE,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY and O’BRIEN, Circuit Judges.



      Barry Winfield Cone appeals from the district court’s denial of his motion

to dismiss his indictment based on alleged violations of the Speedy Trial Act and

the Sixth Amendment to the United States Constitution. We affirm.

                                    I. Background

      In March 2003, Cone was on supervised release. On March 28, 2003, the

probation office filed a Superseding Petition on Supervised Release seeking to


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
revoke Cone’s supervised release based upon his making false statements to

several banks in order to obtain loans. Cone failed to appear for a revocation

hearing set for April 18, 2003, and evaded authorities until his arrest on state

charges in Tennessee on September 2, 2003. On October 2, 2003, Cone was

returned to the Northern District of Oklahoma for an appearance on the revocation

petition, at which time he was detained. On July 9, 2004, Cone admitted to

violating the terms of his supervised release and was sentenced to thirty-six

months imprisonment. He was sent to the federal prison camp at El Reno,

Oklahoma, until September 28, 2004, when he was transferred to the Federal

Transfer Center (“FTC”). The conditions at the FTC were more restrictive:

prisoners could not go outside, visitation was more regulated, and fewer

educational and psychological programs were available. Prison officials told

Cone he was being sent to the FTC because a detainer was forthcoming; prisoners

with detainers are not permitted to remain at El Reno.

      On October 7, 2004, the government indicted Cone with thirteen counts of

making false statements to a federally insured financial institution for the purpose

of obtaining several loans totaling $1,120,317.21 in violation of 18 U.S.C.

§ 1014. Cone was also charged with thirteen counts of money laundering in

violation of 18 U.S.C. § 1957. 1 The government transported Cone to the Northern


      1
        The allegations in the indictment were similar to those involved in the
revocation proceedings.

                                          2
District of Oklahoma for trial on April 3, 2006, approximately a year and a half

after he was indicted.

      On April 19, 2006, Cone filed a motion to dismiss based on the denial of

his statutory and constitutional rights to a speedy trial. The district court held a

hearing on the motion on May 26, 2006. At the hearing, the district court

received testimony relating the following series of events. On January 10, 2005,

a detainer form containing a speedy trial demand was presented to Cone by prison

authorities, who had received it from the U.S. Marshal’s Service. Cone was

expected to indicate on the form whether he demanded a speedy trial and return

the form to the prison authorities. The detainer form, however, was defective.

Specifically, it stated the Interstate Agreement on Detainers Act (IADA) governed

and notified Cone of a speedy trial right but stated both 180 and 1880 days as the

applicable time limit. 2 According to Cone’s testimony, the mention of a 1880 day

limit (a fairly obvious typographical error) confused him. In addition, he testified


      2
          The actual language of the form stated:

      Under the IADA, you have the right to be brought to trial within 180 days
      after you have caused to be delivered to the appropriate U.S. Attorney and
      the appropriate U.S. District Court, written notice of your request for a
      final disposition of the charges against you. Because the 1880-day time
      limit may be tolled by virtue of delays attributable to you, you should
      periodically inquire as to whether your written notice of request for a final
      disposition of the charges against you has been received by the appropriate
      U.S. Attorney and the appropriate U.S. District Court.

(Appellant’s App. at 9 (emphasis added)).

                                           3
to being confused by the mention of the IADA, as it was his understanding the

Speedy Trial Act governed. He stated these uncertainties are why he declined to

specify on the detainer form whether he would assert his speedy trial rights and

instead elected to file a pro se motion asserting them.

      According to Cone, he mailed his motion from the prison to the district

court and the U.S. Attorney’s office on January 29, 2005, after having a prison

official – his case manager, Patrine Kelly – notarize it. However, because 1) the

prison did not log outgoing mail unless it was later returned for some reason, 2)

Cone did not use certified mail, 3) neither the district court nor the prosecutor’s

office has a record of receiving Cone’s motion and 4) Kelly did not testify at the

hearing, there is no evidence directly corroborating his testimony. At the hearing,

Cone produced a copy of the motion – including Kelly’s notary stamp and

signature. From this evidence, the district court concluded Cone attempted to

send the motion but it was never received. In addition, Cone’s testimony

indicates he repeatedly asked his “unit team” 3 about his speedy trial rights

because he received no response to his speedy trial motion. Cone also introduced

an “Inmate Request to Staff Member” which he filed on August 22, 2005,

inquiring about his speedy trial requests.

      After the district court denied the motion, Cone conditionally pled guilty to



      3
          A “unit team” is a committee that oversees a particular inmate.

                                             4
one count of making a false statement and one count of money laundering. In a

written plea agreement, he expressly reserved the right to appeal the denial of his

motion to dismiss. On August 16, 2006, Cone was sentenced to thirty-three

months imprisonment. This appeal followed.

                              II. Standard of Review

      “We review the District Court’s interpretation of [the Speedy Trial Act] de

novo.” United States v. Stiger, 413 F.3d 1185, 1199 (10th Cir.), cert. denied, 126

S.Ct. 775 (2005). “We review de novo the district court’s compliance with the

requirements of the Speedy Trial Act and the alleged constitutional violation of

the right to a speedy trial.” United States v. Lugo, 170 F.3d 996, 1000 (10th Cir.

1999). “We accept the district court’s factual findings unless clearly erroneous.”

Id.

                                  III. Discussion

      Cone argues the district court erred in denying his motion to dismiss his

indictment because the eighteen month delay between the indictment and his

transfer to the Northern District of Oklahoma for trial violated his speedy trial

rights under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and the Sixth

Amendment.

A. Speedy Trial Act

      Cone argues the government violated § 3161(j) of the Speedy Trial Act.

Under that section, the prosecutor, if he knows a person charged with a crime is

                                          5
currently incarcerated, must either 1) promptly obtain the prisoner’s presence for

trial or 2) promptly file a detainer with the prisoner’s custodian and request the

custodian advise the prisoner of the detainer and his right to demand a trial.

18 U.S.C. § 3161(j)(1). In addition, § 3161(j)(2) states that if the prisoner’s

custodian receives a detainer, the custodian must advise the prisoner of the

charges and his right to demand trial and must promptly notify the prosecutor if

the prisoner demands a trial.

      We need not decide whether the government violated § 3161(j) because the

Speedy Trial Act simply does not provide for dismissals for violations of its

terms. See 18 U.S.C. §§ 3161(j), 3162. “Neither § 3161(j) itself nor any other

statutory provision provide[s] [for dismissal] for its violation. Section 3162

provides the sanctions for Speedy Trial Act violations, and it addresses the

dismissal sanction only in the event of violation of § 3161(b) [requiring the

government to file an information or indictment within a specified time after a

person has been arrested or served with a summons] or § 3161(c)(1) [requiring the

government to bring a defendant to trial within a specified time after the

indictment or information has been filed]. In contrast, § 3162 does not provide

for dismissal in the event of violation of § 3161(j).” United States v. Dawn, 900

F.2d 1132, 1135 (7th Cir. 1990). In short, “[t]he language of § 3162(a) contains

no ambiguities that might allow its sanctions to be imposed for a violation of

§ 3161(j).” United States v. Valentine, 783 F.2d 1413, 1416 (9th Cir. 1986);

                                          6
accord United States v. Robinson, 455 F.3d 602, 606 (6th Cir. 2006), cert. denied,

127 S.Ct. 1338 (2007); United States v. Walker, 255 F.3d 540, 542 (8th Cir.

2001); United States v. Lainez-Levia, 129 F.3d 89, 91 (2nd Cir. 1997); United

States v. Guzman, 85 F.3d 823, 829 n.4 (1st Cir. 1996); Dawn, 900 F.2d at 1135;

United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir. 1985). The remedy

Cone seeks is not available. That ends the debate, regardless of any sympathy we

may have for his circumstances.

      In the alternative, Cone argues we should instruct the district court to

consider sanctioning the prosecutor as authorized by § 3162(b)(4)(C-E). Cone

admitted at oral argument, however, he did not move for such sanctions before the

district court. We decline to consider in the first instance whether these sanctions

might be appropriate. See Rosewood Servs., Inc. v. Sunflower Diversified Servs.,

Inc., 413 F.3d 1163, 1167 (10th Cir. 2005) (arguments not raised in the district

court are waived).

B. Sixth Amendment

      Cone argues the district court erred in denying his motion to dismiss the

indictment based on the government’s violation of his Sixth Amendment right to a

speedy trial. In Barker v. Wingo, the Supreme Court established a balancing test

which weighs “the conduct of both the prosecution and the defendant” to

determine whether a defendant has been deprived of his constitutional speedy trial

rights. 407 U.S. 514, 530 (1972). The four factors to be balanced are: “[l]ength

                                          7
of delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Id. None of these factors is, by itself, “a necessary

or sufficient condition to the finding of a deprivation of the right of speedy trial.”

Id. at 533. Considering the factors individually and collectively, we conclude the

length of the delay was presumptively prejudicial but the presumption has been

overcome in this case. We now discuss the factors seriatim.

      (1) Length of Delay

      “The length of the delay is to some extent a triggering mechanism. Until

there is some delay which is presumptively prejudicial, there is no necessity for

inquiry into the other factors that go into the balance.” Id. at 530. In Doggett v.

United States, the Supreme Court noted that depending on the nature of the

charges, the lower courts have generally found delay approaching one year to be

presumptively prejudicial, thereby triggering the Barker balancing test. 505 U.S.

647, 652 n.1 (1992). In United States v. Batie, we held “[d]elays approaching one

year generally satisfy the requirement of presumptive prejudice.” 433 F.3d 1287,

1290 (10th Cir.), cert. denied, 126 S.Ct. 2949 (2006). Here, the approximate

eighteen month delay 4 is presumptively prejudicial and triggers Barker analysis. 5

      4
         “The general rule is that the speedy trial right attaches when the defendant
is arrested or indicted, whichever comes first.” Jackson, 390 F.3d at 1261.
Because Cone was indicted in October 2004 and arrested in April 2006, we
measure the total delay from the date Cone was indicted.
      5
        The government urges us not to apply the Barker analysis. It argues the
general one year guideline should not trigger the analysis because of case

                                           8
      Having concluded the Barker analysis is appropriate in this case, we must

now examine the length of the delay as one of the Barker factors. To do so, we

consider “the extent to which [such] delay stretches beyond the bare minimum

needed to trigger judicial examination of the claim.” Jackson v. Ray, 390 F.3d

1254, 1261 (10th Cir. 2004) (quotations omitted). “[T]he delay that can be

tolerated for an ordinary street crime is considerably less than for a serious,

complex conspiracy charge.” Barker, 407 U.S. at 531. Cone was not indicted for

an “ordinary street crime;” rather, Cone’s indictment included twenty-six counts

detailing allegations of a scheme to fraudulently obtain several loans totaling

$1,120,317.21 from six different financial institutions and money laundering.

      Because of the sophistication of the criminal acts and the number and

complexity of the charges we conclude the length of the delay in this case is

tolerable and thus does not weigh heavily against the government in the overall

Barker analysis.

      (2) Reason for the Delay



complexity (the number of counts in the indictment and their difficulty) and
Cone’s refusal to demand a speedy trial on the (erroneous) detainer form it
supplied him. Of the cases it cites in support of this contention, only two, Castro
v. Ward, 138 F.3d 810 (10th Cir. 1998) and United States v. Bagster, 915 F.2d
607 (10th Cir. 1990) involve delays longer than one year. The government claims
Castro held the sixteen month delay was not prejudicial. It is in error. The
Castro court simply assumed a sixteen month delay was presumptively prejudicial
and went on to address the Barker factors. 138 F.3d at 820. Similarly, Bagster
applied all four Barker factors. 915 F.2d at 611. We do not see this case as
exceptional and thus undertake the Barker analysis.

                                           9
       The burden is on the government to provide an inculpable explanation for

the delay. Jackson, 390 F.3d at 1261. “[D]ifferent weights should be assigned to

different reasons.” Barker, 407 U.S. at 531. Thus, a “deliberate attempt” by the

government to delay a trial to gain a tactical advantage over the defense will

weigh “heavily” against the government, a more “neutral” explanation such as

negligence, while weighted “less heavily,” will nevertheless weigh against the

government, and a “valid reason” will “justify [an] appropriate delay.” Id. at 531

& n.32.

       The government concedes the first three months of the delay should be

attributed to it for failing to provide Cone with a detainer form advising him of

his right to a speedy trial. We agree. Because the U.S. Marshal’s Service 6

negligently retained the form after the U.S. Attorney’s Office presented it for

delivery to Cone, the reason for this delay should be placed in the “neutral”

category. 7

       6
        As Cone points out in his reply brief, it is unclear from the record when
the U.S. Attorney’s office directed the U.S. Marshal’s Service to deliver the
detainer form to him. Although the government’s appellate brief states it
“promptly” contacted the U.S. Marshal’s Service after the grand jury returned the
indictment, the government presented no evidence in the district court to this
effect. (Appellee’s Br. at 5.) The government’s response to Cone’s speedy trial
motion in the district court omits the word “promptly,” and, in any case, the
government’s response itself is an unverified, unsworn document.
       7
        Although the U.S. Marshal’s Service was possibly involved in this delay,
we attribute any portion of the delay caused by it to the “government.” In the
Sixth Amendment speedy trial analysis, the “government” includes other entities
in addition to the prosecutor. See Barker, 407 U.S. at 531 (delays attributable to

                                         10
      As for the remaining fifteen month delay, Cone says after receiving the

detainer form he was confused about the rights he might waive if he signed it and

therefore attempted to file a separate motion with the court asserting his rights

approximately two weeks after receiving the faulty detainer form. Indeed, the

district court acknowledged the detainer form provided to Cone was “a horrible

choice.” 8 (R. Vol. III at 54.) First, as the court noted, the form referenced an

inapplicable statute, the IADA. United States v. Walling, 974 F.2d 140, 141 (10th

Cir. 1992) (“The IADA applies to transfers between states, not transfers within a

state. Hence, the IADA has no application if a prisoner in federal custody in one

federal judicial district faces another federal indictment in a different federal

judicial district.”). In addition, the form gave conflicting information regarding

the amount of time the government had to bring Cone to trial.

      Nevertheless, the government argues Cone should be blamed for the

resulting delay because he did not demand a speedy trial on the faulty form. In

addition, the government seeks to cast doubt on the credibility of Cone’s

testimony about his efforts to file a separate speedy trial demand. However, it

presented no other evidence on the issue. In any event, although the court had no



overcrowded courts weigh against the government).
      8
        Although the government argued in response to Cone’s motion to dismiss
that the IADA did apply to Cone, it appeared to abandon the argument when
pressed by the district court. The government does not address the issue in its
appellate briefing.

                                          11
record of actually receiving the motion, it credited Cone’s testimony that he

attempted to place a motion demanding a speedy trial in the prison’s legal mail

system.

       Although the government did not actively contribute to the fifteen month

delay, the government’s furnishing of the faulty form – which confused Cone

about his rights – renders it more responsible for this delay than Cone. Had the

government provided him the correct form in the first instance, the uncontradicted

evidence demonstrates it is likely he would have asserted his right on the detainer

form, thus eliminating the delay caused when his separate motion was apparently

lost in the mail.

       More to the point, for 18 months the government did nothing to move the

case to trial, as was its responsibility. “A defendant has no duty to bring himself

to trial; the State has that duty . . . .” Barker, 470 U.S. at 527. In that regard the

government was negligent and negligence, while not as egregious as a deliberate

attempt to impair the defense, is “on the wrong side of the divide between

acceptable and unacceptable reasons for delaying a criminal prosecution once it

has begun.” Doggett, 505 U.S. at 657. Regarding the weight to be assigned the

government’s negligence, the Doggett Court went on to say that the weight

“assign[ed] to official negligence compounds over time as the presumption of

evidentiary prejudice grows. Thus our toleration of such negligence varies

inversely with it protractedness . . . and its consequent threat to the fairness of the

                                           12
accused’s trial.” Id. The negligent delay of 18 months in this case is

dramatically less than the 6 year delay in Doggett. In our analysis, using the

Doggett sliding scale approach, the 18 months would be on the more tolerable end

of the scale and would not have presumptively posed an inordinate threat to the

fairness of a trial in Cone’s case, had he chosen that route instead of a guilty plea.



      (3) Assertion of Right

      “The defendant’s assertion of his speedy trial right . . . is entitled to strong

evidentiary weight in determining whether the defendant is being deprived of the

right.” Barker, 407 U.S. at 531-32. “A pro se criminal defendant does not have

to make a procedurally perfect assertion of his speedy trial rights, but must make

a ‘reasonable assertion’ of the right so as to put authorities on notice of his Sixth

Amendment claim.” Douglas v. Cathel, 456 F.3d 403, 418 (3d Cir. 2006). The

evidence demonstrates Cone asserted his right on several occasions. As we have

stated, the district court found he prepared and mailed a demand for speedy trial

in January 2005, approximately two weeks after receiving the faulty detainer

form. In August 2005, he made a written request about the status of his demand

for a speedy trial to his “unit team” at the prison. In addition, Cone testified he

made verbal requests to prison authorities about the status of his speedy trial

request. This factor significantly favors Cone because he promptly and

repeatedly sought to inform the authorities of his desire for a speedy trial. See

                                          13
United States v. Bass, 460 F.3d 830, 837 (6th Cir. 2006) (defendant sufficiently

asserted right to speedy trial in three separate motions over approximately three

years), cert. denied, 127 S.Ct. 2959 (2007); cf. United States v. Latimer, 511 F.2d

498, 501 (10th Cir. 1975) (where counsel twice stated client was ready for trial,

the “frequency and force of the objections” to rescheduling delays was “not

strong” over an eleven month period).

      (4) Prejudice

      We begin by noting it is unclear whether Cone is required to make a

particularized showing of prejudice. In Doggett, the Supreme Court stated

“[w]hen the Government’s negligence thus causes delay six times as long as that

generally sufficient to trigger judicial review [i.e., six years], and when the

presumption of prejudice, albeit unspecified, is neither extenuated, as by the

defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled to

relief.” 505 U.S. at 658 (citations and footnotes omitted). This rule would seem

to relieve a defendant of any need to show particularized prejudice when the

delay is sufficiently lengthy. 9 However, in Jackson, we noted “Doggett does not

definitively determine whether a delay of less than six years will ever relieve a

defendant of the need to make a particularized showing of prejudice. Other



      9
       On the other hand the defendant must show specific prejudice to his
defense if the government exercises reasonable diligence in bringing him to trial.
Doggett, 505 U.S. at 656.

                                          14
circuits, when applying Doggett in cases involving delays of less than six years,

have more clearly defined the minimum amount of delay necessary to relieve a

defendant of the need to make a particularized showing of prejudice.” Jackson,

390 F.3d at 1264 n.4. However, because we were examining the issue under the

more limited habeas standard of review, we expressly left open the question

whether a delay of less than six years can ever be long enough to relieve a

defendant of the need to illustrate prejudice. Id.

      Perhaps realizing a delay of eighteen months is a far cry from the six year

delay in Doggett, Cone proceeds to analyze the prejudice prong as if he must

show particularized prejudice and advances two arguments to demonstrate such

prejudice. 10 First, Cone argues he was prejudiced by being placed in the FTC

where he was deprived of a number of services which were previously provided at

El Reno. Second, he claims prejudice because he was foreclosed from requesting

the instant sentence run concurrently with the sentence he was serving for

violating the conditions of supervised release because the latter sentence was

almost over before trial proceedings in this case commenced. 11

      10
        Because Cone does not argue he need not show particularized prejudice
(apparently he assumes he must do so) and the parties have not briefed the issue,
we assume, without deciding, he must demonstrate actual prejudice. We decline
to draw any bright line rules on how long a delay must be to relieve a defendant
of demonstrating particularized prejudice.
      11
         According to the government, since Cone was transferred before officials
actually delivered the detainer form to him, some reason other than the detainer
must account for the transfer. That might be a fair inference but the record does

                                          15
      Prejudice should be assessed in the light of the interests which the speedy

trial right was designed to protect: “(i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to

limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532.

“Of these, the most serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system.” Id.

      Most significantly, Cone’s briefs make no claim to an impairment of his

ability to defend against these charges. 12 On the other hand he does complain of a

form of pretrial anxiety which, he says amounted to oppressive pretrial

incarceration. 13 Because his “pretrial” incarceration was spent serving a separate

sentence for violating supervised release conditions, any prejudice must be


not support it. Cone stated he was moved because the prison officials were
notified he “had a detainer coming;” the government produced no contrary
evidence. (R. Vol. III at 8). The government also claimed at oral argument that
Cone was transferred to the FTC because he was a fugitive. While Cone sought
to evade authorities prior to his most recent arrest, nothing in the record suggests
his fugitive status was a reason for the transfer. .
      12
         This factor stands in sharp contrast to (and distinguishes) Doggett, who
“claims this kind of prejudice [inability to prepare his case], and there is probably
no other kind that he can claim, since he was subjected neither to pretrial
detention nor . . . to awareness of unresolved charges against him.” Doggett, 505
U.S. at 654.
      13
         “[Cone] was forced to spend virtually his entire revocation sentence in a
high security prison facility rather than at a low security prison camp . . . . The
difference between the two facilities was marked. He had no access to the
outdoors at the transfer center. Medical, employment and education facilities
were much more limited. He could not have visitation with his family.”
(Appellant’s Br. at 36-37.)

                                          16
substantial. Perez v. Sullivan, 793 F.2d 249, 254, 256 (10th Cir. 1986) (“Once a

defendant has been convicted . . . the necessity of showing substantial prejudice

would dominate the four-part balancing test.” ); see also United States v. Yehling,

456 F.3d 1236, 1245-46 (10th Cir. 2006) (in context of Barker prejudice,

contrasting interests of a free citizen with those of a convicted one).

      Cone claims prejudice from being placed in a more restrictive facility and

we credit his claim. 14 But that does not necessarily carry the day. In a related

context, the Supreme Court has clearly held no liberty interest is implicated under

the Due Process Clause when a prison places a prisoner in a higher security

facility. Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Sandin v. Conner, 515

U.S. 472, 484 (1995). Because Cone’s liberty interests were significantly

diminished due to his conviction for violating the terms of his supervised release,

his relocation to the FTC does not present the same liberty concerns as pre-trial

incarceration would for a free citizen. Moreover, he was only in the more

restrictive facility for eighteen months. Cf. Barker, 407 U.S. at 534 (even for one

not yet convicted, ten months of pretrial incarceration resulted in “minimal”

prejudice). Thus, we fail to see the substantial prejudice required by Perez. 15

      14
         The Supreme Court’s observation about the debilitating effect of delay
on prisoners is not lost on us. Strunk v United States, 412 U.S. 434, 439 (1973),
Moore v. Arizona, 414 U.S. 25, 27 (1973), and Smith v. Hooey, 393 U.S. 374, 379
(1969).
      15
        The Third Circuit has held that incarceration in a facility which did not
provide rehabilitation programs and limited recreation time and visiting privileges

                                          17
      We also reject Cone’s claim of prejudice by being foreclosed by delay from

seeking a concurrent sentence. Our decision in that regard is fact specific; the

loss of an opportunity for a concurrent sentence could be irreversibly

compromised in another circumstance. But we must look to “what is” rather than

worry about “what if.” Cone could have moved for an adjustment in his sentence

in this case to compensate for the opportunity he claims to have lost. Even if the

sentencing guidelines under which Cone was sentenced did not explicitly provide

for a downward departure on these facts, 16 he could have requested a variance

now that the guidelines are advisory. 17 That leaves his lost opportunity argument

very hypothetical. 18 Unlike cases involving different courts, different


constituted prejudice under the Barker analysis. Burkett v. Fulcomer, 951 F.2d
1431, 1443 (3d Cir. 1991). We are not prepared to embrace Burkett and need not
because it is not comparable to this case. Burkett was incarcerated in a more
restrictive facility for almost forty months. Id. at 1435.
      16
        The Presentence Investigation Report (PSR) used the 2001 edition of the
United States Sentencing Guidelines. Later editions include §5K2.23, which
arguably would permit a downward departure for Cone’s discharged term of
imprisonment.
      17
        United States v. Booker, 543 U.S. 220, 245-46 (2005). A departure
occurs “when a court reaches a sentence above or below the recommended
Guidelines range through application of Chapters Four or Five of the Sentencing
Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007).
A variance occurs “[w]hen a court enhances or detracts from the recommended
range through application of § 3553(a) factors.” Id.
      18
        The dissent sees it differently, pointing to cases in which the Supreme
Court “recognized that concurrent sentence impairment does constitute
prejudice.” Dissent at 4. The dissent cites Strunk v. United States, 412 U.S. 434,
437-38 (1973) and Smith v. Hooey, 393 U.S. 374, 378 (1969). Indeed, the

                                         18
jurisdictions or different sovereigns, e.g. Moore v Arizona, 414 U.S. 25 (1973);

Strunk v United States, 412 U.S. 434 (1973); Smith v Hooey, 393 U.S. 374 (1969),

both of Cone’s sentences were imposed by the same court, affording a unique

opportunity for individualized treatment of his crimes and circumstances. Had the

trial judge been inclined toward a concurrent sentence he could have, consistent

with 18 U.S.C. § 3553, adjusted this sentence to obtain that result. The fact that

he didn’t adjust the sentence in spite of his criticism of the government’s delay

(and its lame excuses) speaks volumes. Cone’s commission of multiple, serious

criminal acts of fraud while he was on supervised release for similar crimes made




Supreme Court allowed for the possibility of such prejudice, but its
pronouncements are decidedly less robust than the dissent suggests. In Smith, a
pre-Barker case, Texas did not attempt to bring the defendant to trial for six years
because he was serving a federal sentence. In discussing the corrosive effect of
delay the court recognized that trial delay might cause the loss of the possibility
of a concurrent sentence and he might be incarcerated longer because of the delay
and the conditions of confinement might be worse. Smith, 412 U.S. at 378.
       Strunk, a post-Barker case, addressed a very narrow issue – the remedy
when a violation of a constitutional right to a speedy trial had occurred –
specifically whether a remedy short of dismissal would be sufficient. Citing
Smith, the Court observed that emotional stress can be presumed from the
uncertainties flowing from prolonged delay. At the same time it recognized, as
did Smith, that many of those stressors may be less for a prisoner already
confined. Here, of course, the issue is whether a constitutional violation occurred
and to that end the Barker court prescribed flexible standards based upon
practical considerations.
        We are compelled “to approach speedy trial cases on an ad hoc basis.”
Barker, 407 U.S. at 530. To that end we must be more concerned with whether, in
this case, there was a realistic loss of an opportunity for a concurrent sentence.
While the opportunity to argue for a concurrent sentence may have been impaired,
the opportunity to obtain essentially the same result remained available to Cone.

                                         19
him a most unlikely candidate for a concurrent sentence.

      (5) Balancing of Factors

      “We cannot definitely say how long is too long in a system where justice is

supposed to be swift but deliberate. . . . [There is no] violation of the right to

speedy trial unless the circumstances of the case are such that further delay would

endanger the values the right protects.” Barker, 407 U.S. at 521-22. “Thus, as

we recognized in Beavers v. Haubert, supra, any inquiry into a speedy trial claim

necessitates a functional analysis of the right in the particular context of the case:

‘The right of a speed trial is necessarily relative. It is consistent with delays and

depends upon circumstances. It secures rights to a defendant. It does not

preclude the rights of public justice.’” Id. at 522 (citation omitted). Thus, our

approach must be circumspect, practical and analytical, not theoretical,

hypothetical or speculative. “[The four Barker factors are] related and must be

considered together with such other circumstances as may be relevant. In sum,

these factors have no talismanic qualities; courts must still engage in a difficult

and sensitive balancing process . . . with full recognition that the accused’s

interest in a speedy trial is specifically affirmed in the Constitution.” Id. at 533.

      On balance, the delay here was mostly attributable to the government, but

its acts were negligent, not malevolent – they were not orchestrated to obtain a

tactical advantage. And Cone made efforts to assert his speedy trial rights.

Nevertheless, the prejudice to Cone’s defense was nil and the collateral prejudice

                                           20
he presumptively suffered was, as a practical matter, negligible. Finally, the

delay, while substantial, was not egregiously so under the circumstances of this

case. How does that compare to Barker?

      The delay here was 30% of that in Barker. Regarding the reason for the

delay, however, the cases are similar. Here, almost all of the 18 month delay is

attributed to government’s negligence, and in Barker all but 7 of the 60 months

delay in Barker could be attributed to government malaise. Regarding the

assertion of the speedy trial right, the cases markedly differ. Barker’s speedy trial

demands were lackluster and sporadic; Cone’s were persistent. Barker spent 10

months incarcerated and about 50 months released on bond (but still subject to the

possible (presumed) collateral prejudice decried in Smith, Strunk, Moore and

Barker itself). Nevertheless, the Barker Court considered the prejudice minimal.

Cone was incarcerated for another crime so prejudice to him comes down to

collateral consequences (less hospitable environment and lost opportunities) he

may have suffered. The record in Barker established that Barker was not really

interested in a speedy trial, but was merely an opportunist. The latter was a very

important factor for the Court and finds no parallel here. The record in Barker

also established that Barker was not deprived of his right to a speedy trial.

      In most respects Barker’s claim to a violation of his speedy trial rights was

superior to Cone’s; the delay was significantly lengthier and Barker was subject

to 10 months of pretrial incarceration without a conviction. The difference lies in

                                          21
the demands to go to trial. Barker’s were sporadic and insincere; Cone’s were

persistent and sincere. That factor alone cannot tip the balance. Applying all of

the Barker factors to this case, assigning weight to them as we have explained and

comparing them to the Barker circumstances we must conclude that Cone’s claim

of a violation of his constitutional right to a speedy trial must fail.

                                    IV. Conclusion

      The district court properly denied Cone’s motion to dismiss.

      AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




                                           22
No. 06-5166, United States v. Barry Winfield Cone

HOLLOWAY, Circuit Judge, dissenting.

      The “right to a prompt inquiry into criminal charges is fundamental[,] and

the duty of the charging authority is to provide a prompt trial.” Dickey v.

Florida, 398 U.S. 30, 38 (1970) (emphasis added). Indeed, Kloper v. North

Carolina, 386 U.S. 213, 223 (1967), “established that the right to a speedy trial is

‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth

Amendment on the States.” The Court emphasized that “the right to a speedy trial

is as fundamental as any of the rights secured by the Sixth Amendment.” In this

case, Defendant Cone was denied this fundamental right. The majority applies

the correct authority – the four-part analysis of Barker v. Wingo, 407 U.S. 514,

530 (1972) – but comes to a conclusion with which I cannot agree. Because I am

convinced that all four factors favor Defendant, I would hold that the convictions

must be reversed and the charges dismissed. 1 I therefore respectfully dissent.

      In undertaking analysis of the Barker v. Wingo factors, courts should

always be mindful of the admonition in that case that “any inquiry into a speedy

trial claim necessitates a functional analysis of the right in the particular context

of the case.” 407 U.S. at 522. For the most part the majority has followed this

important precept and focused on the specifics of this case, but as I will point out



      1
        “In light of the policies which underlie the right to a speedy trial, dismissal
must remain, as Barker noted, ‘the only possible remedy.’” Strunk v. United
States, 412 U.S. 434, 440 (1973).
infra, I am convinced that the principle is disregarded in the majority’s analysis

of the prejudice prong of the framework.

      I agree with the majority that the almost 18 months’ delay in this case is

presumptively prejudicial and that we accordingly must proceed to apply the

remaining three factors from Barker. The majority finds that the length of the

delay in this case is mitigated by the complexity of the charges involved. I

disagree. The government has offered this only as an excuse, not as a reason for

the delay. That is, it is clear that the delay in this case was solely due to

government negligence. There is absolutely nothing in the record to support the

notion that the prosecution needed more time because of the complexity of the

case. Indeed, the record affirmatively suggests that the complexities of the case

had been managed long before the delay began. As the majority opinion notes, in

March 2003 – almost eighteen months before the indictment was issued and three

years before Defendant was brought before the court on these charges – the

government had prepared a petition to revoke Defendant’s supervised release on

his previous conviction. The revocation petition and the subsequent hearing were,

as the majority notes, based on allegations similar to those in the October 2004

indictment.

      Because the government offers only the generic argument that complexity

may mitigate delay in some cases, and not a scintilla of evidence that it was a

factor in this case, and in light of the affirmative indication in the record that

                                           -2-
complexity was not a factor here, I cannot agree with the majority’s reliance on

the supposed complexity of the charges as mitigating the length of the delay here.

      I agree with the majority that the delay here must be attributed to the

government and must therefore weigh in favor of Defendant in this analysis. 2 To

me, the government’s negligence in this case weighs against it more heavily than

in other cases because of the multiple acts of negligence involved. First, the

prosecutor failed in his duty to effect prompt service of the detainer. Second, and

of much importance in my view, the prosecutor failed to insure that Defendant

would be provided with correct and effective notice of his rights in the papers

that were served, instead serving a document that could only have confused

Defendant, as he testified that it did, and which the district judge characterized as

a “horrible choice.” 3 Third, the prison officials failed on a number of occasions

to perform their statutory duty to notify the prosecutor that Defendant had

invoked his speedy trial rights. See 18 U.S.C. § 3161(j)(2).

      The majority correctly notes that the Defendant made multiple attempts to

assert his right to a speedy trial, beginning within days of the service on him of




      2
      I acknowledge and agree that negligence weighs less heavily against the
government than deliberate delay would.
      3
        As the majority notes, it is unclear as to the extent to which the marshal’s
service may have been responsible for the delay in serving the notice of detainer
and in the “horrible choice” of the form selected. But I agree with the majority
that these facts must all weigh against the government in any event.

                                         -3-
the incorrect, confusing form provided by the government. 4

      Thus, the panel is in unanimous agreement that the first three factors from

Barker v. Wingo favor Defendant, even if we are not totally in agreement as to the

weight to be given to these factors. But I cannot agree with the majority that the

fourth factor – prejudice to the Defendant – favors the government and leads to

the conclusion that no remediable constitutional violation occurred here. I would

hold that Defendant has demonstrated substantial prejudice in the loss of the

opportunity to argue for a concurrent sentence and in having been subjected to

harsher conditions of confinement for almost 18 months as a result of the

government’s negligent failure to perform its duties. As the order and judgment

(at note 13) observes, the Appellant’s Brief set out the marked differences of the

two facilities: no visitation with his family, no access to outdoors at the transfer

      4
        The district court summarily rejected Defendant’s constitutional claim,
citing Pietch v. United States, 110 F.2d 817, 819 (10th Cir. 1940), and stating that
the claim must fail because “no demand was ever presented to the Court.” The
majority correctly gives no credence to the government’s argument based on
Pietch, but apparently it is necessary to point out that the district court clearly
erred in its reliance on that case.
       In Pietch, we held that a “person charged with a crime cannot assert with
success that his right to a speedy trial guaranteed by the Sixth Amendment . . .
has been invaded unless he asked for a trial.” 110 F.2d at 819. That holding was
disapproved in Barker v. Wingo, which held that failure to invoke the right is
merely one factor to be considered in determining whether a constitutional
violation has occurred. 407 U.S. at 522-30. Nevertheless, we have since said
that, at least in certain circumstances, this factor may be “most important.”
United States v. Batie, 433 F.3d 1287, 1291 (10th Cir. 2006). In this case,
however, the majority properly credits Cone’s efforts to demand a prompt trial
and avoids the district court’s error of giving dispositive weight to the fact that,
despite Cone’s efforts, the trial court remained unaware of his demand.

                                         -4-
center, more limited medical, employment and educational facilities.

      The majority dismisses out of hand Defendant’s contention that he was

deprived of the opportunity to request a concurrent sentence and that this

constitutes prejudice under the Barker framework. The majority argues that

Defendant still could have asked for other forms of relief. But this is not, I think,

sufficient to extinguish the prejudice in light of the fact that the Supreme Court

has twice recognized that concurrent sentence impairment does constitute

prejudice. See Strunk v. United States, 412 U.S. 434, 437-38 (1973); Smith v.

Hooey, 393 U.S. 374, 378 (1969). Both of those cases of course preceded the

structured sentencing regimen of the Guidelines, so it must be presumed that in

each case the court would have had the discretion to mitigate the prejudice

sustained by the loss of the opportunity to request concurrent sentencing. But the

Court did not cite that discretion as mitigating a finding of prejudice. Thus, the

reliance of the majority in this case on the still-limited discretion federal district

courts exercise post-Booker is not persuasive.

      I would also hold that Defendant has demonstrated prejudice in the fact that

he was, for almost 18 months, subjected to harsher conditions of confinement

because the government notified the prison officials that a detainer was coming,

but then failed in several respects to fulfill its duties to Defendant. The Court has

trenchantly observed that “no court should overlook the possible impact pending

charges might have on his prospects for parole and meaningful rehabilitation.”

                                           -5-
Moore v. Arizona, 414 U.S. 25, 27 (1973) (emphasis added). See also Strunk, 412

U.S. at 439; Smith, 393 U.S. at 379.

       The majority acknowledges the Supreme Court’s teaching on this point,

assuring us that the point “is not lost on us.” But I fail to see that the majority

gives this prejudice suffered by Cone any real weight at all in its analysis. If it

did, I fail to see how it could conclude that Cone has failed to show a

constitutional violation when all four Barker factors weigh for him and against

the government.

       The majority justifies its approach on two grounds, neither of which is

persuasive. First, the majority cites Perez v. Sullivan, 793 F.2d 249 (10th Cir.

1986), as holding that Defendant must show “substantial prejudice” because he

was already incarcerated when the current charges were filed. I would distinguish

Perez rather than apply it. I think that we must distinguish the case because

applying it to Cone’s circumstances as the majority does conflicts with the

general instruction of Barker v. Wingo to treat each case on its specific facts. See

Barker, 407 U.S. at 522. Thus, to apply the holding of Perez in circumstances

that are different in an important sense without considering that difference is to

err.

       More importantly, the majority’s holding of no prejudice conflicts with the

specific teachings about prejudice from the decisions in Smith v. Hooey, Strunk v.

United States, and Moore v. Arizona. But distinguishing Perez avoids this

                                           -6-
departure from the Court’s teachings. Perez is distinguishable because in Perez,

as in United States v. Yehling, 456 F.3d 1236 (10th Cir. 2006), which the majority

also cites, the person claiming denial of his speedy trial rights was incarcerated

on the very charge at issue, having already been convicted or having pleaded

guilty in that case. But as I have shown, supra, three cases from the Supreme

Court – Smith v. Hooey, Strunk v. United States, and Moore v. Arizona, all of

which arose in contexts like those of Defendant Cone – teach that a person

incarcerated on a previous conviction may suffer prejudice from the loss of the

opportunity to argue for a concurrent sentence and the loss of opportunities for

rehabilitation. This of course is exactly the prejudice shown by Defendant in the

instant case. The language of Perez is in obvious tension with these Supreme

Court cases, but because Perez is distinguishable on its facts, and because we are

to analyze speedy trial issues in light of the specific circumstances in each case, it

is not necessary to consider whether Perez went astray; it is simply necessary to

follow the pertinent teachings of the Supreme Court.

      Moreover, I think that the majority has disregarded the Supreme Court’s

clear admonition (elsewhere quoted in the majority opinion) that none of the four

factors discussed by the Court is “necessary or sufficient” to establish that the

constitutional right has been violated. Barker v. Wingo, 407 U.S. at 533. The

majority has made prejudice an indispensable element by its analysis. This

violates the teaching of Barker v. Wingo, and in my view is not required by Perez

                                          -7-
v. Sullivan (even if I were to assume that our court could have validly interpreted

Barker v. Wingo differently, which of course would be wrong). In any event,

Defendant has shown substantial prejudice in my view, and the greater error of

the majority is to dismiss his showing of prejudice.

      The majority also ignores those teachings regarding prejudice by vainly

attempting to bolster its analysis with the weak and unexplained proposition that

the Court’s holdings in Wilkinson v. Austin, 545 U.S. 209 (2005), and Sandin v.

Conner, 515 U.S. 472 (1995), arise in a “related context.” The questions

presented in those cases regarding liberty interests under the Due Process Clause

may bear some relation to the issues in the present case, but the Court gave no

indication in those decisions that it was questioning its statements in Smith v.

Hooey, Strunk v. United States, and Moore v. Arizona, all of which arose under

the Constitution’s speedy trial guarantee, and not in a “related” context.

      In sum, I conclude that all four factors of the Barker analysis favor

Defendant. His constitutional right to a speedy trial was denied him, 5 and as a

result he suffered exactly the kind of prejudice that the Supreme Court has noted

is likely to occur when a prisoner is denied the right to a prompt adjudication of

new charges against him. Because I believe that Defendant has established the

violation of this core constitutional right, it necessarily follows that I would hold


      5
        In light of that fundamental infringement, I do not express a view about
the claim under the Speedy Trial Act.

                                         -8-
that the charges must be dismissed. See note 1, supra. The Supreme Court has

instructed that where such a Sixth Amendment violation has occurred, as I find,

dismissal is “the only possible remedy,” not a matter for the weighing of

discretion, as the Majority appears to do. Barker, 407 U.S. at 522; Strunk, 412

U.S. at 440.

      I respectfully but emphatically dissent.




                                        -9-
