                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1103
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                            STEVEN MENSAH-YAWSON,
                                       Appellant
                                 _____________

                    On Appeal from the United States District Court
                       for the District of Western Pennsylvania
                       (D.C. Criminal No. 2-09-cr-00276-001)
                     District Judge: Honorable Gary L. Lancaster
                                         ______

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    June 19, 2012

      Before: AMBRO, and VANASKIE and VAN ANTWERPEN, Circuit Judges

                                  (Filed June 20, 2012)
                                         ______

                               OPINION OF THE COURT
                                       ______

VAN ANTWERPEN, Circuit Judge.

       Appellant Steven Mensah-Yawson appeals his judgment of conviction after being

found guilty by a jury of conspiring to commit an offense involving counterfeit securities.

He claims his rights to a speedy trial, provided in both the Speedy Trial Act (―STA‖), 18
U.S.C. § 3161, et seq., and the Sixth Amendment of the United States Constitution, were

violated. We will affirm.

                                              I.

       We write for the benefit of the parties and recite only the facts essential to our

disposition. Mensah-Yawson and three codefendants (Stacy Nicholas, James Greer, and

Daniel Poole) were charged on September 15, 2009 by a grand jury sitting in the Western

District of Pennsylvania with conspiring to commit an offense against the United States

in violation of 18 U.S.C. § 371. Specifically, the individuals were charged with

conspiring to make, utter, and possess counterfeit securities in violation of 18 U.S.C. §

513(a). Mensah-Yawson was arraigned on October 20, 2009. He waived his detention

hearing, and thus remained in custody while Poole and Nicholas were released on bond.

On the same day Mensah-Yawson was arraigned, his codefendant Nicholas filed a

motion to extend the time for filing pretrial motions.

       On November 18, 2009, Mensah-Yawson requested additional time to file pretrial

motions.1 The District Court granted his request and extended his time to file pretrial

motions until December 18, 2009. On January 11, 2010, Mensah-Yawson moved nunc

pro tunc to extend the filing deadline to February 10. He finally filed his three pretrial

motions on February 19. The government, after requesting and being granted additional

time to respond, filed its response on March 12. A hearing on the motions was not set at




1
  Mensah-Yawson was represented by counsel throughout the proceedings, and all
relevant motions discussed in this opinion were filed by counsel.
                                              2
the time because Mensah-Yawson‘s codefendants had also extended their pretrial motion

filing deadlines past this time.

       A warrant was issued on June 3 for the arrest of codefendant Poole after he

violated the conditions of his electronic monitoring. At this time, Poole‘s extension of

time for filing pretrial motions ran until July 2. On June 4, Mensah-Yawson filed a

Motion for Relief from Prejudicial Joinder in which he acknowledged that the STA clock

would normally be tolled while the pretrial motions of all codefendants were pending.

Mensah-Yawson argued that he was prejudiced by continuing to wait for his

codefendants, who were on pretrial release and thus had no ―pressing interest in

proceeding to trial quickly.‖ He requested that his case be severed and that a hearing be

held on his pretrial motions. Importantly, he only sought severance and did not argue

that the case against him should be dismissed. The government opposed Mensah-

Yawson‘s motion.2

       The District Court never formally ruled on the severance motion, presumably

because subsequent events rendered severance unnecessary. Greer pleaded guilty on

June 15. Poole appeared at his bond revocation hearing on July 22, and pleaded guilty on

July 30. Nicholas had obtained an extension to file her pretrial motions until September

29, but notified the District Court of her intention to enter a guilty plea on September 17.

She eventually did so on November 18.



2
 The government noted that, if Poole was not brought back into custody by July 2, it
would not object to the severance of Poole from Mensah-Yawson and codefendant
Nicholas.
                                             3
       Mensah-Yawson‘s pretrial hearing was also held on October 21, and all pretrial

matters were resolved. The District Court scheduled the trial for November 15, and the

government, without opposition, sought to continue the trial date because of witness

unavailability. On October 22, the motion was granted and the trial was set for

December 13.

       Mensah-Yawson was found guilty by a jury on December 15, 2010. At no point

prior to trial did he seek dismissal of the charges on speedy trial grounds. He was

sentenced to time served with two year‘s supervised release,3 and ordered to pay

restitution.

                                            II.

       The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231.           We

exercise jurisdiction pursuant to 28 U.S.C. § 1291.

                                            A.

       Mensah-Yawson argues that the delay between his indictment and the start of his

trial violated the STA.4 The STA requires that the trial commence ―within seventy days

from the filing date (and making public) of the information or indictment, or from the

date the defendant has appeared before a judicial officer of the court in which such

3
  The supervised release is to start upon his release by immigration officials or upon his
return to the United States. The nature of the immigration charges are not clear from the
record in this case, although Mensah-Yawson has not yet been removed.
4
  Mensah-Yawson calculates that, before the start of his trial, he waited 456 days from
the filing of the indictment, 421 days from the date he was arraigned, 223 days from
when the government responded to his pretrial motions, and 139 days from when he
requested severance from his codefendants. These calculations do not take into account
the many periods of time that would be excluded under the various tolling provisions of
18 U.S.C. § 3161(h), as discussed below.
                                             4
charge is pending, whichever date last occurs.‖ 18 U.S.C. § 3161(c)(1). The STA

provides for the dismissal of the indictment in cases where its provisions have been

violated. § 3162(a)(2). Defendants ―must request this relief, however.‖ United States v.

Register, 182 F.3d 820, 828 (11th Cir. 1999). ―Failure of the defendant to move for

dismissal prior to trial . . . shall constitute a waiver of the right to dismissal under this

section.‖ 18 U.S.C. § 3162(a)(2).

       As noted, Mensah-Yawson did not move to dismiss the charges under the STA.

By failing to do so, he waived his rights to pursue dismissal and thus did not ―preserve

[his] statutory speedy trial claim for appellate review.‖ United States v. Littrice, 666 F.3d

1053, 1059 (7th Cir. 2012); see also United States v. Spagnuolo, 469 F.3d 39, 46 (1st Cir.

2006) (―[A] defendant who fails to make a timely motion to dismiss based on a speedy

indictment claim does not obtain the benefit of plain error review.‖). Mensah-Yawson‘s

argument that he satisfied the STA requirement with his motion to sever is incorrect. His

motion correctly identified the exclusions of time from the speedy trial computations

applicable to his case—time while pretrial motions are pending, 18 U.S.C. §

3161(h)(1)(D), and reasonable periods of time when a defendant is joined with

codefendants, § 3161 (h)(6). Mensah-Yawson recognized that, if the charges were

severed, his codefendants would no longer be relevant for calculating his time under the

STA. To that end he sought to sever himself from his codefendants, arguing that joinder

was prejudicial. At no point, however, did he assert that his STA rights were violated,

nor did he seek to have his charges dismissed on this ground. We therefore must conclude

that he waived his claim.

                                                5
       Even assuming he had not waived his claim, there was no violation of his rights

under the STA.5 Although roughly fifteen months passed between his arraignment and

the start of the trial, Congress has decided that certain periods of time are not to be

included in calculating the seventy-day period. The two relevant periods of time that are

not included for the purposes of this case are the ―delay resulting from any pretrial

motion, from the filing of the motion through the conclusion of the hearing on, or other

prompt disposition of, such motion,‖ 18 U.S.C. § 3161(h)(1)(D), and a ―reasonable

period of delay when the defendant is joined for trial with a codefendant as to whom the

time for trial has not run and no motion for severance has been granted,‖ § 3161(h)(6).

In particular, ―after defendants are joined for trial, an exclusion applicable to one

defendant applies to all codefendants.‖ United States v. Arbelaez, 7 F.3d 344, 347 (3d

Cir. 1993) (citations and internal quotation marks omitted).

       Mensah-Yawson‘s clock started on October 20, 2009 when he was arraigned along

with the last of his codefendants. 18 U.S.C. § 3161(c)(1). But, on that same day, the

District Court granted Nicholas‘s motion to extend the time for filing pretrial motions,

effectively tolling the speedy trial clock.6 See District Court Docket #43. The District

Court used the appropriate ―ends of justice‖ standard required by § 3161(h)(7) in granting

the many extensions requested by Mensah-Yawson and his codefendants. See Bloate v.

United States, 130 S. Ct. 1345, 1355 (2010) (―Subsection (h)(7) provides that delays


5
  ―We exercise plenary review over the district court's application of the [STA].‖ United
States v. Willaman, 437 F.3d 354, 357 (3d Cir. 2006).
6
  Mensah-Yawson, as well as Greer and Poole, also filed motions that would toll the
clock shortly after this date.
                                              6
‗resulting from a continuance granted by any judge‘ may be excluded, but only if the

judge finds that ‗the ends of justice served by taking such action outweigh the best

interest of the public and the defendant in a speedy trial‘ and records those findings.‖).

Thus the latest extension for filing pretrial motions, given to Nicholas on August 31,

extending her filing deadline to September 29, applies to Mensah-Yawson as well.

       Nicholas‘s change in plea further tolled the speedy trial clock for the time between

her announcing her intention to plead guilty, and her actual guilty plea on November 18,

2010. United States v. Barnes, 159 F.3d 4, 15 (1st Cir. 1998) (―[A]ll of the days between

the date a codefendant files a motion for a change of plea and the date of the change of

plea hearing itself are excludable from the [Act‘s] seventy-day time limit.‖ (citation

omitted)); United States v. Jenkins, 92 F.3d 430, 440 (6th Cir. 1996) (―Since a change of

plea is a motion requiring a hearing, the entire amount of time between [the change and

the hearing] is excludable.‖). The speedy trial clock was thus tolled through November

18, the date that Nicholas pleaded guilty.

       Furthermore, the speedy trial clock was automatically tolled for the period relating

specifically to the multiple pretrial motions that Mensah-Yawson filed on February 19.7

The hearing on these motions was not held until October 21. Accordingly, these motions

extended the excludable time to October 21. Even more time is excludable after that

date, as the government filed a motion seeking to postpone the trial from November 15

because of witness conflicts. Mensah-Yawson did not object, and the trial date was

7
  Mensah-Yawson‘s initial request for additional time to file pretrial motions occurred on
November 18, 2009, and was followed by his moving nunc pro tunc on January 11, 2010
to extend the filing deadline into February.
                                              7
moved to December 13. This continuance made the time preceding trial excludable

pursuant to 18 U.S.C. § 3161(h)(3)(A).

       When all of the above exclusions are taken into account, it is clear that Mensah-

Yawson‘s STA right to a trial within seventy days of his arraignment was not violated.

We will deny his challenges to his conviction on this ground.

                                             B.

       Mensah-Yawson also argues that the delay preceding his trial violated the Sixth

Amendment‘s guarantee of a ―speedy and public trial.‖ The failure of Mensah-Yawson

to raise this argument below means we review his challenge for plain error.8 Fed. R.

Crim. P. 52(b); see also United States v. Gearhart, 576 F.3d 459, 462–63 (7th Cir. 2009).

       When an appellant argues the government has violated his or her speedy trial

rights, we employ the four-part balancing test set forth in Barker v. Wingo, 407 U.S. 514,

92 (1972), to assess the merits of his or her claim. United States v. Dent, 149 F.3d 180,

184 (3d Cir. 1998). The Barker test requires that we evaluate the appellant's claim in

light of ―[1] whether delay before trial was uncommonly long, [2] whether the

government or the criminal defendant is more to blame for that delay, [3] whether, in due

course, the defendant asserted his right to a speedy trial, and [4] whether he suffered

prejudice as the delay's result.‖ Doggett v. United States, 505 U.S. 647, 651 (1992)

(citing Barker, 407 U.S. at 530). ―None of these factors is ‗either a necessary or


8
  To demonstrate plain error an appellant must show: ―(1) that there was an error, i.e., a
deviation from a legal rule, (2) that the error was ‗plain,‘ i.e., clear or obvious, and (3)
that the error affected his substantial rights.‖ United States v. Corso, 549 F.3d 921, 928
(3d Cir. 2008).
                                              8
sufficient condition,‘ and the factors ‗must be considered together with such other

circumstances as may be relevant.‘‖ United States v. Battis, 589 F.3d 673, 678 (3d Cir.

2009) (quoting Barker, 407 U.S. at 533). If Mensah-Yawson‘s right to a speedy trial has

been violated, we must dismiss the indictment. Id.

       The first factor, the length of the delay, presents a threshold matter in which we

must determine whether the delay warrants inquiry into all four factors. Barker, 407 U.S.

at 530 (―The length of the delay is to some extent a triggering mechanism.‖). ―If the

delay is relatively brief, then it is not necessary to consider the other Barker factors.‖

Battis, 589 F.3d at 678. ―If the delay is sufficiently long, courts assess the extent to

which the delay was long enough to ‗intensify‘ the prejudice caused by the delay.‖ Id.

This Court has previously determined that a fourteen-and-one-half month delay is

sufficient to warrant inquiry into the other factors. Hakeem v. Beyer, 990 F.2d 750, 760

(3d Cir. 1993). Given that Mensah-Yawson‘s delay was roughly fifteen months, we must

weigh the Barker factors.9

       Regarding the first factor, ―the presumption that pretrial delay has prejudiced the

accused intensifies over time.‖ Doggett, 505 U.S. at 652. We must examine ―the

peculiar circumstances of [each] case‖ in deciding what weight to give to the delay.

Barker, 407 U.S. at 530–31. We do not find the roughly fifteen-month delay in this case

sufficiently long to ―intensify‖ any prejudice it allegedly caused. The case entailed

9
  The time that Mensah-Yawson spent in the custody of Pennsylvania state authorities on
similar charges does not affect our analysis. Battis, 589 F.3d at 679 (―When an arrest on
state charges is followed by a federal indictment, the right to a speedy trial in the federal
case is triggered by the federal indictment, and the time period under consideration
commences on that date.‖).
                                               9
charges against four codefendants for conspiring to counterfeit securities. ―[T]he delay

that can be tolerated‖ for prosecuting a more complicated crime is obviously different

than what can be tolerated ―for an ordinary street crime.‖ Id. at 531. As a result, the first

factor does not weigh in Mensah-Yawson‘s favor.

       Nor does the second factor. Barker also tells us that the second factor, the reason

for delay, is to be given different weight based upon the nature of the reason. ―A

deliberate attempt to delay the trial in order to hamper the defense should be weighted

heavily against the government.‖ Barker, 407 U.S. at 531. ―A more neutral reason such

as negligence or overcrowded courts should be weighted less heavily but nevertheless

should be considered since the ultimate responsibility for such circumstances must rest

with the government rather than with the defendant.‖ Id. ―Finally, a valid reason, such

as a missing witness, should serve to justify appropriate delay.‖ Id. The government

―bears the burden to justify the delay,‖ Hakeem, 990 F.2d at 770, and in this case it has

done so. Mensah-Yawson, as well as his codefendants, obtained a number of extensions

for filing pretrial motions. The government obtained only a one-month postponement of

the trial to avoid a conflict for a government witness. These are both appropriate

justifications for the delay, and thus weigh against Mensah-Yawson‘s speedy trial claim.

       The third Barker factor (i.e., whether the defendant asserted his right to a speedy

trial) is the only one that weighs slightly in Mensah-Yawson‘s favor. ―[A] defendant‘s

claim that the right is being violated provides strong evidence that it actually was

violated.‖ Battis, 589 F.3d at 681. As discussed earlier, Mensah-Yawson‘s motion to

sever under Federal Rule of Criminal Procedure 14 articulated a concern about the time it

                                             10
was taking for him to go to trial. For the benefit of the District Court, he should have

more clearly expressed his concerns or clearly raised them again within the six-month

period between his motion to sever and the start of his trial. Assuming, for the purpose of

this appeal, that the filing of the motion to sever and its identification of speedy trial

tolling concepts was sufficient under the Constitution, this factor would only weigh

slightly in Mensah-Yawson‘s favor and would not be sufficient to overcome the other

factors we must consider.

       The fourth and final Barker factor (i.e., prejudice to the defendant) is assessed ―‗in

light of the interests . . . which the speedy trial right was designed to protect.‖ Battis, 589

F.3d at 682 (quoting Barker, 407 U.S. at 532). A defendant can establish prejudice in

two ways. First, he can demonstrate that ―he was subject to ‗oppressive pretrial

incarceration,‘ that he suffered ‗anxiety and concern‘ about the impending trial, or that

his defense was impaired as a result of the delay.‖ Id. (quoting Barker, 407 at 532).

Second, he can claim prejudice without providing ―affirmative proof of particularized

prejudice‖ if the delay is excessive. Doggett, 505 U.S. at 655. Regarding this second

route of presumptive prejudice, the Supreme Court has noted that ―its importance

increases with the length of delay.‖ Id. at 656. ―Given that ‗time's erosion of exculpatory

evidence and testimony‘ can hinder a defendant's ability to prove that his defense was

impaired by a delay,‖ federal courts ―‗generally have to recognize that excessive delay

presumptively compromises the reliability of a trial in ways that neither party can prove

or, for that matter, identify.‘‖ Battis, 589 F.3d at 682 (quoting Doggett, 505 U.S. at 655–

66).

                                              11
       Mensah-Yawson argues that he was prejudiced by the fact that he ―was unable to

substantially assist in his defense.‖ He also contends that the roughly fifteen-month

delay gives rise to a presumption that prejudice exists. We reject both arguments. First,

Mensah-Yawson has provided nothing from which we can gauge his claim that his

pretrial confinement impaired his ability to assist in his defense. The Supreme Court has

recognized that ―impairment of one‘s defense is the most difficult form of speedy trial

prejudice to prove because time‘s erosion of exculpatory evidence and testimony ‗can

rarely be shown.‘‖ Doggett, 505 U.S. at 655 (quoting Barker, 407 U.S. at 532). Despite

the difficulty that some defendants may have in making this showing, we will not accept

a ―blanket statement [that] gives no indication as to the content and relevance [of the lost

assistance], and how its absence impaired‖ the defense in the case. United States v.

Harris, 566 F.3d 422, 433 (5th Cir. 2009). Mensah-Yawson has only provided precisely

this type of empty assertion, and thus has failed to demonstrate actual prejudice.

       Second, we have held that a delay of ―fourteen and one-half months . . . is

insufficient to allow an inference of prejudice solely from the length of the delay.‖

Hakeem, 990 F.2d at 764. The delay in this case is nearly identical to that in Hakeem,

and consequently we will not infer prejudice solely from the length of delay.

       Mensah-Yawson has thus failed to show prejudice that would tip the fourth factor

in his favor. Assuming that the third of the four Barker factors weighs slightly in favor of

finding that Mensah-Yawson‘s right to a speedy trial was violated, the other three weigh

against such a finding. As a result, we conclude that Mensah-Yawson was not deprived

of his right to a speedy trial under the Sixth Amendment.

                                             12
                                        III.

      For the foregoing reasons, we will affirm Mensah-Yawson‘s judgment of

conviction and sentence.




                                        13
