                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4434


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MEGAN NICHOLE HANSON MOSTELLER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:11-cr-00270-TLW-1)


Argued:   December 12, 2013                 Decided:   February 4, 2014


Before MOTZ, KEENAN, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Motz and Judge Thacker joined.


ARGUED: Bradley M. Kirkland, BRADLEY M. KIRKLAND, LLC, Columbia,
South Carolina, for Appellant.    William E. Day, II, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

       Megan Hanson Mosteller was charged with theft of government

funds,      in   violation      of   18    U.S.C.    §    641.      As    a    result    of

evidentiary problems occurring during her trial, Mosteller moved

for     a    mistrial,       which   the       district    court    granted      on     the

condition that she waive her rights under the Speedy Trial Act,

18 U.S.C. §§ 3161 through 3174 (the Speedy Trial Act, or the

Act).       More than 70 days after the mistrial was declared, the

court       conducted    a     second      trial,    in    which    the       jury    found

Mosteller guilty of violating 18 U.S.C. § 641.                           Mosteller did

not assert a violation of the Speedy Trial Act in the district

court, but alleges on appeal that her rights under the Act were

violated.

       We    hold   that     although      Mosteller’s      attempt      to    waive    her

rights under the Speedy Trial Act was null and void, she is not

entitled to assert for the first time on appeal that a violation

of the Act occurred.             The plain language of the Act requires

that    a    defendant     asserting       a   violation    of     the   Act    move    for

dismissal of an indictment before a new trial begins, or be

precluded from seeking such a dismissal.                   In view of this waiver

imposed by statute, we are not permitted to consider Mosteller’s

argument that her rights under the Act were violated, even under

the plain error standard of review.                  Accordingly, we affirm the

district court’s judgment.

                                               2
                                          I.

      In September 2007, Megan and Jeremy Lewis Mosteller, Jr.

(Jeremy), a lance corporal in the United States Marine Corps,

were married.         The couple separated about three months later,

and Jeremy committed suicide in March 2008.

      After      Jeremy’s     death,    Mosteller       applied    for     and   began

receiving     “dependency      and   indemnity    compensation”          as   Jeremy’s

surviving spouse from the Department of Veteran Affairs (VA), in

the   amount     of   about    $1,100    per   month     (the     surviving      spouse

benefits).       As a condition of receiving this compensation, she

was required to inform the VA of any change in her marital

status before the age of 57, which event would terminate her

entitlement to the surviving spouse benefits.                       Mosteller also

applied    for    and   received       about   $3,000    in   education       benefits

reserved    for    surviving     dependents      of   veterans      (the      education

benefits).       Her continued receipt of the education benefits was

subject to requirements that she remain unmarried and attend

classes.      Mosteller was obligated to notify the VA if she ceased

attending classes or remarried.

      In August 2008, Mosteller married David Robert Redding, Jr.

Mosteller did not inform the VA of her change in marital status

and continued to receive surviving spouse benefits until October

2010.     Additionally, Mosteller did not inform the VA that after



                                           3
receiving         the     education        benefits,            she       had    not        attended   any

classes.

           The     VA’s      Office        of       Inspector         General          instituted       an

investigation           of    Mosteller’s            receipt         of     VA    benefits. 1          This

investigation led to a grand jury indictment charging Mosteller

with       one   count       of    theft       of    government            funds.           Notably,   the

indictment charged her with theft of surviving spouse benefits

but did not include any reference to the education benefits.

       Mosteller’s first trial began on November 1, 2011.                                        After a

witness testifying on behalf of the government made statements

regarding          Mosteller’s            receipt         of     the        education          benefits,

Mosteller moved for a mistrial on the basis that her receipt of

those       benefits         was    not    part       of       the    charged          conduct.        The

government opposed Mosteller’s motion.                                     Although the district

court       observed         that     Mosteller’s              receipt           of    the     education

benefits         was    outside      the       scope      of    the       indictment,          the    court

denied       the       motion      for     a        mistrial         and    instead          struck    the

testimony         concerning         the        education        benefits             and    offered    to

provide a curative instruction to the jury.                                       Additionally, the



       1
        Mosteller admitted during an interview with a VA
investigator at her residence that she had remarried but
continued to receive VA benefits, and that she “underst[ood]
that it was wrong to continue to collect” the benefits after
remarrying.



                                                      4
government agreed that it would not introduce further evidence

relating to the education benefits.

       After     a     recess,      however,       the    government         informed         the

district     court      that   it    would    be    difficult         to   redact       certain

exhibits containing information relating to both the surviving

spouse      benefits     and   the     education         benefits.         The     government

withdrew its opposition to Mosteller’s motion for a mistrial,

and stated that a superseding indictment would be filed if a

mistrial was granted.            The court stated that it was inclined to

grant a mistrial if Mosteller agreed to waive her rights under

the Speedy Trial Act until the court’s January 2012 term.                                After

the court addressed Mosteller individually, informing her of her

rights under the Speedy Trial Act, Mosteller stated that she

would waive her rights under the Act as a condition of the

court’s decision to grant a mistrial.                      Accordingly, on November

1, 2011, the district court declared a mistrial.

       Two     weeks    later,       the    grand    jury       issued       a    superseding

indictment, charging Mosteller with theft of government funds in

violation of 18 U.S.C. § 641, based on her receipt of both the

education benefits and the surviving spouse benefits.                                  Although

Mosteller’s second trial began on February 21, 2012, well more

than   70    days      after   the    mistrial,      Mosteller         did       not   move    to

dismiss the superseding indictment based on a violation of the

Act.     The     jury     convicted        Mosteller       of   the    theft       charge      as

                                              5
alleged       in   the     indictment.             The     district          court    sentenced

Mosteller to serve a term of 15 months’ imprisonment and three

years    of    supervised        release,     and        ordered       that    Mosteller         pay

restitution        to    the   government          in    the    amount        of     $32,718.62.

Mosteller timely filed a notice of appeal.

     On       appeal,     Mosteller’s       counsel        initially          filed       a   brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that there were no meritorious issues for appeal but questioning

whether Mosteller’s rights under the Fifth Amendment’s Double

Jeopardy       Clause     were    violated.              Mosteller          filed    a    pro    se

supplemental         brief     contending,         among       other    things,          that   her

rights under the Speedy Trial Act were violated.                                     This Court

directed      that      counsel   for    the       government          and    Mosteller         file

supplemental briefs addressing the statutory speedy trial issue.



                                              II.

     Mosteller           contends      that     the       district          court     erred      in

requiring that she waive her rights under the Speedy Trial Act

as a condition of granting a mistrial. 2                       She further asserts that

because    her     second      trial    began       more    than       70     days    after     the

mistrial was declared, her rights under the Act were violated

     2
       Mosteller did not allege at trial, and does not assert on
appeal, a constitutional violation of her speedy trial rights
under the Sixth Amendment.



                                               6
and she is entitled to dismissal of the charge against her.

Although Mosteller acknowledges that she did not file a motion

to dismiss the indictment in the district court, she maintains

that this Court should conduct plain error review of her claim

on appeal.      We disagree with Mosteller’s arguments.

      The Speedy Trial Act generally requires that a trial begin

“within 70 days of the filing of an information or indictment or

the defendant’s initial appearance.”                 Zedner v. United States,

547 U.S. 489, 497 (2006) (citing 18 U.S.C. § 3161(c)(1)).                       In

the event of a mistrial, the Act provides that a new trial must

begin within 70 days “from the date the action occasioning the

retrial becomes final.” 3      See 18 U.S.C. § 3161(e).

      Under the Act, if a defendant makes a timely motion to

dismiss, the remedy for a violation of the Act is dismissal of

the information or indictment.          See 18 U.S.C. § 3162(a)(2) (“If

a   defendant    is   not   brought   to     trial    within    the   time   limit

required by section 3161(c) as extended by section 3161(h), the

information or indictment shall be dismissed on motion of the

defendant.”).         The    district       court     retains    discretion    to

      3
       Certain periods of delay are excluded from the computation
of the 70-day period.      See 18 U.S.C. § 3161(h).      However,
because we conclude that Mosteller’s Speedy Trial Act claim is
not subject to any appellate review, as discussed below, we do
not reach the merits of her argument that notwithstanding the
exclusion of certain periods of delay referenced in 18 U.S.C. §
3161(h), the 70-day limitation imposed by the Act was violated.



                                        7
determine      under      the   factors   set    forth       in   Section     3162(a)(2)

whether       the     dismissal    should       be   entered       with     or    without

prejudice.          Id.     Significantly, the Act contains a provision

(the       waiver    provision)    stating       that    the      “[f]ailure      of   the

defendant to move for dismissal prior to trial or entry of a

plea of guilty or nolo contendere shall constitute a waiver of

the    right    to    dismissal    under    this     section.”          Id.      (emphasis

added).

       As an initial matter, we agree with Mosteller’s argument

that the district court erred in requiring that she agree to

waive her rights under the Act as a condition of granting the

mistrial.           Under the holding in Zedner, a defendant may not

waive application of the Act for a violation that has not yet

occurred.       547 U.S. at 503.           The Supreme Court explained that

the Act was designed in part to protect a defendant’s right to a

speedy      trial,    but   also   was    intended      to    protect     the    public’s

interest in ensuring a speedy trial.                     Id. at 500-01 (stating

that “the Act was designed with the public interest firmly in

mind”).       As an example, the Court noted that the granting of a

continuance under Section 3161(h)(8)(A) 4 must be accompanied by

the district court’s finding that such resulting delay outweighs


       4
       This provision is codified as 18 U.S.C. § 3161(h)(7)(A) in
the current version of the Act.



                                            8
both “the best interest of the public” and of the defendant in

obtaining a speedy trial.                  Id. at 501 (quoting 18 U.S.C. §

3161(h)(8)(A)) (emphasis omitted).                   The Court therefore observed

that    the       public’s      interest     underlying      the    Speedy       Trial    Act

cannot      be    served     if   defendants       are    permitted       to   waive   their

right to assert a future violation of the Act.                             Id.    Based on

this reasoning, the Court held that a defendant may not waive

future application of the Act.                     Id. at 503.        In view of this

holding, we conclude that Mosteller’s agreement purporting to

waive future rights under the Act was null and void.

       In     Zedner,      the     Supreme        Court    further        explained      that

although a defendant may not waive future application of the

Act,    a    waiver     nevertheless       will     result    by     operation      of    the

statutory waiver provision if the defendant fails to move to

dismiss the indictment before the new trial begins.                              See id. at

502 (citing 18 U.S.C. § 3162(a)(2)).                       The Court observed that

this     statutory         waiver     provision          serves    several        purposes,

including         preserving      judicial    resources      by    “ensuring       that    an

expensive and time-consuming trial will not be mooted by a late-

filed       motion      under      the     Act,”     preventing       “undue        defense

gamesmanship,” and assigning to defendants the responsibility of

identifying violations of the Act.                  Id. at 502-03.

       We have applied this principle from Zedner and the plain

language         of   Section     3162(a)(2),      observing       that    a   defendant’s

                                              9
failure to make a timely motion to dismiss an indictment before

the start of a new trial constitutes a waiver of the defendant’s

right to assert a violation of the Speedy Trial Act.                                   United

States v. Henry, 538 F.3d 300, 304 (4th Cir. 2008); cf. United

States v. Cherry, 720 F.3d 161, 165-66 (4th Cir. 2013) (holding

that a failure to file a motion to dismiss for a violation of

the speedy indictment provision of the Act results in the same

outcome, waiver, as a failure to timely raise a violation of the

Act’s speedy trial provision).                  To date, however, we have not

addressed the question in a published decision whether plain

error review is available to consider asserted violations of the

Act not timely raised in the district court.

       Answering    that       question    here,      we    hold   that        plain    error

review is not available for consideration of Speedy Trial Act

claims    that    were     not   timely    asserted        in   the    district        court.

This   conclusion        is    required    by   the     express        language     of       the

waiver provision, which states that the failure to file a motion

to   dismiss     before       trial   “shall”    constitute        a      “waiver      of    the

right to dismissal” under the Act.                         18 U.S.C. § 3162(a)(2).

Under the unambiguous terms of the statute, “waiver of the right

to   dismissal”     is     the   only   possible        outcome      of    a   defendant’s

failure    to    file     a    timely   motion     to      dismiss     under     the        Act.

Therefore,       because      Section     3162(a)(2)        specifies       that    such       a

“waiver” occurs when a defendant fails to timely assert a Speedy

                                           10
Trial Act violation in the district court, we are not permitted

to conduct any appellate review, for plain error or otherwise,

of Mosteller’s claim.

      Our holding is in accord with the nearly unanimous views of

our   sister     circuits      that    have     considered         this    issue.       In

reaching   their       respective      holdings,      our    sister       circuits   also

have relied on the express language of Section 3162(a)(2).                             See

United States v. Littrice, 666 F.3d 1053, 1059 (7th Cir. 2012)

(rejecting defendant’s argument that the court should review for

plain   error    an    assertion      that    the     Act    was   violated,    despite

defendant’s failure to move to dismiss in the district court);

United States v. Abad, 514 F.3d 271, 274 (2d Cir. 2008) (per

curiam) (same); United States v. Spagnuolo, 469 F.3d 39, 46 (1st

Cir. 2006) (same); United States v. Gamboa, 439 F.3d 796, 804

(8th Cir. 2006) (same); United States v. Gomez, 67 F.3d 1515,

1519-20    (10th      Cir.   1995)     (same);      see     also   United     States    v.

Reagan,    725   F.3d    471,    486-87      (5th     Cir.    2013)       (declining    to

consider defendant’s argument that the Act was violated in the

absence    of    a    motion   to     dismiss    in    the    district      court,     but

considering under the plain error standard of review defendant’s

argument asserting a violation of the Sixth Amendment’s speedy

trial provision that was not raised at trial); United States v.




                                          11
McDaniel, 631 F.3d 1204, 1209 n.2 (11th Cir. 2011) (same). 5   But

see United States v. Carrasco, 257 F.3d 1045, 1050-53 (9th Cir.

2001) (applying plain error review to Speedy Trial Act claim

that was not raised in a motion to dismiss in the district

court) (discussed below).

     As the Seventh Circuit observed in Littrice, plain error

review is unavailable because the express language of Section

3162(a)(2) specifies that a violation not timely asserted before

a new trial begins is waived, rather than merely forfeited.    666

F.3d at 1059; see also United States v. Hassebrock, 663 F.3d

906, 912 (7th Cir. 2011) (observing that “the Act sets forth

waiver as the sole consequence for failing to assert the claim

below”); United States v. Morgan, 384 F.3d 439, 443 (7th Cir.

2004) (the Act is clear that “a defendant’s failure to move to

dismiss the indictment constitutes a waiver—not a forfeiture—of

his rights under the Act”).     Similarly, the Tenth Circuit in


     5
       In addition to the above cases, three other circuits have
concluded that a defendant’s failure to move for dismissal under
the Speedy Trial Act prior to trial results in a waiver of the
right to dismissal under the Act.   See United States v. Hines,
694 F.3d 112, 117-20 (D.C. Cir. 2012); United States v. Palma-
Ruedas, 121 F.3d 841, 855 (3d Cir. 1997), rev’d on other grounds
sub nom. United States v. Rodriguez-Moreno, 526 U.S. 275 (1999);
United States v. White, 985 F.2d 271, 274-75 (6th Cir. 1993).
However, these circuits do not appear to have addressed the
issue whether plain error review is available for asserted
violations of the Act that were not timely raised in the
district court.



                               12
Gomez noted that the Act “unequivocally provides” that waiver

results from a defendant’s failure to move for dismissal prior

to trial. 6    67 F.3d at 1520.

      We are not persuaded by Mosteller’s reliance on the Ninth

Circuit’s decision in Carrasco, which appears to be the only

published federal appellate decision currently permitting plain

error review of a claim under the Act that was not timely raised

in the district court. 7       In Carrasco, the Ninth Circuit engaged

in plain error review of the defendant’s argument, but the court

did   not     mention   the   waiver   provision   contained   in   Section

3162(a)(2), nor did the court engage in any analysis explaining

why plain error review was available.          See 257 F.3d at 1050-53.

Thus, it appears that the issue whether the waiver provision

      6
       We note that although plain error review is unavailable
for speedy trial claims under the Act, a claim under the speedy
trial clause of the Sixth Amendment may be reviewed for plain
error even if that constitutional claim was not raised below.
See United States v. Gearhart, 576 F.3d 459, 462-63 (7th Cir.
2009) (discussing the differences between a Sixth Amendment
speedy trial claim and a claim under the Act); see generally
United States v. Burgess, 684 F.3d 445, 451-52 (4th Cir. 2012)
(discussing four-factor balancing test employed in resolving
claims under the Sixth Amendment’s speedy trial clause).
However, as we already have observed, Mosteller has not asserted
a speedy trial claim under the Sixth Amendment.
      7
       Two circuits have criticized their own previous decisions
that engaged in plain error review of asserted violations of the
Act that were not timely raised in the district court,
explaining that such review should not have been conducted. See
Abad, 514 F.3d at 274; Morgan, 384 F.3d at 442-43; see also
Hassebrock, 663 F.3d at 912.



                                       13
precludes plain error review was not presented as an issue by

the parties in Carrasco.      Accordingly, the Carrasco decision

does not persuade us to reach a conclusion different from those

of our other sister circuits. 8

     We reiterate that the plain language of Section 3162(a)(2)

is unequivocal in requiring that a defendant move for dismissal

of an indictment before the beginning of a new trial or suffer a

statutorily   imposed    waiver    of   rights   under     the   Act.

Accordingly, we conclude that we may not review for plain error

Mosteller’s argument asserting a violation of the Act. 9




     8
       We further observe that Mosteller does not argue on brief
that the district court’s grant of a mistrial on the condition
that Mosteller waive her rights under the Act caused her trial
counsel’s failure to preserve her statutory speedy trial rights
before the start of the second trial. Accordingly, we need not
consider this issue.    See United States v. Al-Hamdi, 356 F.3d
564, 571 n.8 (4th Cir. 2004) (contentions not raised in argument
section of the opening brief are abandoned).
     9
        We have reviewed the issues raised in Mosteller’s
counsel’s Anders brief, and we conclude that the retrial did not
result in a violation of the Double Jeopardy Clause, which
provides that no person shall “be subject for the same offence
to be twice put in jeopardy of life or limb.”        U.S. Const.
amend. V. When a defendant moves for a mistrial, the government
may retry the defendant without violating the Double Jeopardy
Clause unless the government’s conduct was “intended to goad”
the defendant into seeking the mistrial. Oregon v. Kennedy, 456
U.S. 667, 676 (1982) (citation and internal quotation marks
omitted); see also United States v. Smith, 441 F.3d 254, 265
(4th Cir. 2006) (same).     Upon our review of the record, we
conclude that the government did not intentionally induce
Mosteller into moving for a mistrial.     Additionally, we have
reviewed the other issues contained in Mosteller’s pro se
(Continued)
                                  14
                                 III.

    For these reasons, we affirm the district court’s judgment.



                                                              AFFIRMED




supplemental brief,   and   we   conclude   that   those   issues   are
without merit.



                                  15
