                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 14, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 10-4192
    v.                                          (D.C. No. 2:09-CR-00232-TS-1)
                                                           (D. Utah)
    AUTUMN LEAVES SEALS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.



         Autumn Seals seeks reversal of his conviction because, he says, the

proceedings against him ran afoul the Speedy Trial Act. The difficulty is that

Mr. Seals failed to preserve the particular argument he seeks to raise on appeal.

Under these circumstances, the Act and our precedent require us to affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      The Speedy Trial Act requires a criminal trial to commence within seventy

days of (the later of) indictment or arraignment. 18 U.S.C. § 3161(c)(1). But the

Act also contains “a long and detailed list of periods of delay that are excluded in

computing the time within which the trial must start.” Zedner v. United States,

547 U.S. 489, 497 (2006). After factoring in these exclusions, both Mr. Seals and

the government agree that, from the moment Mr. Seals was first arraigned until

February 10, 2010, sixty-three speedy trial days had passed and all was fine for

speedy trial purposes.

      The trouble began on February 9, nine days before the scheduled trial,

when Mr. Seals filed a notice of intent to present an alibi witness. Then, the next

day a grand jury returned a superseding indictment against Mr. Seals, adding a

new count against him (of being a felon in possession of a destructive device, on

top of the original charge of possession of an unregistered destructive device).

These two events persuaded the district court to continue the trial until June 14,

2010. The court excluded the interim time from the speedy trial clock on the

grounds that the exclusion was necessary to serve the “ends of justice.”

18 U.S.C. § 3161(h)(7)(A). In support of its decision, the court explained that the

government would need more time to prepare a response to the alibi defense, and

that the new charge in the superseding indictment would necessitate the provision

of additional discovery materials to Mr. Seals.




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        In this appeal, Mr. Seals argues that the district court abused its discretion

in granting the continuance without counting the elapsed time against the Speedy

Trial Act clock. He argues that the new charge against him and the introduction

of an alibi witness didn’t materially change the complexion of the case and didn’t

justify so long a delay. The district court’s findings otherwise were, he says,

inadequate under United States v. Toombs, 574 F.3d 1262 (10th Cir. 2009). And

because the district court’s findings were insufficient to trigger an ends-of-justice

delay, the Speedy Trial clock continued to run and expired long before his trial in

June.

        The problem for Mr. Seals is that he never adequately presented this

argument to the district court. True, Mr. Seals did file a pre-trial motion to

dismiss the indictment for non-compliance with the Speedy Trial Act. But this

motion raised only a separate and discrete issue: he argued that his arraignment

on February 23 under the superseding indictment started a new speedy trial clock

running, and for this reason the February 10 continuance did not exclude the time

after that date. Mr. Seals’s counsel made clear that his motion was limited to this

“quite narrow” issue, and at a hearing he even conceded to the district court that

the district court’s ends-of-justice factual findings “according to the Tooms [sic]

case would be sufficient.” Although Mr. Seals later filed a memorandum that

arguably sought to raise a Toombs argument as a second and separate question for




                                           -3-
the court to resolve, by then it was too little, too late. The entirety of his Toombs

argument was this:

      Second, is the 111 day continuance justified when the new charge
      requires very minimal addition [sic] proof. The only difference
      between the second charge is the felony conviction. Even the Alibi
      witness information does not require a lot of investigation by the
      government. The 111 days seems to be a long time when a defendant
      has been in custody since.

An argument so fleeting, made so late in the proceedings, and so bereft of legal

citation or factual development is insufficient to present it for a court’s decision,

especially when counsel has already expressly disclaimed the very same point in

prior communications with the court. See, e.g., United States v. Banks, 451 F.3d

721, 727-28 (10th Cir. 2006). Unsurprisingly, when the court issued its order

denying Mr. Seals’s motion it addressed and rejected only his “new speedy trial

clock” argument and didn’t perceive any other issue before the court. And,

notably, Mr. Seals did nothing at this stage to indicate to the court that it wished a

ruling on the Toombs question.

      The upshot is that Mr. Seals waived in the district court the argument he

now seeks to pursue on appeal. The Speedy Trial Act states that “[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.”

18 U.S.C. § 3162(a)(2). We have interpreted this language to mean that we may




                                          -4-
not conduct any review of Speedy Trial Act arguments unraised below, not even

for plain error. United States v. Gomez, 67 F.3d 1515, 1519-20 (10th Cir. 1995).

      A possible wrinkle (though not one raised by Mr. Seals) is that the statute

requires only that the defendant “move for dismissal prior to trial” to preserve

review and says nothing about preserving particular objections. But we have no

difficulty concluding that not only must the defendant seek dismissal prior to

trial, but he must do so for the reasons he seeks to press on appeal. See United

States v. O’Connor, 656 F.3d 630, 637-38 (7th Cir. 2011). This, of course,

comports with ordinary principles of waiver and forfeiture, see Bancamerica

Commercial Corp. v. Mosher Steel of Kansas, Inc., 100 F.3d 792, 798–99

(10th Cir. 1996), against which we presume Congress legislated. It is also

supported by the statute itself. The Speedy Trial Act expressly places the burden

on the defendant (with one exception not at issue here) to establish a violation of

the Act. 18 U.S.C. § 3162(a)(2). Congress placed the burden there both because

defendants have “the greatest incentive” to identify violations of the Act and to

prevent the “gamesmanship” of presenting grounds for dismissal of the indictment

only if trial appears to be going poorly. Zedener, 547 U.S. at 502-03. As the

Seventh Circuit has aptly put it, “[i]f filing a motion to dismiss were enough to

preserve all violations of the Act — whether identified in the motion or not —

then the district court or the government, rather than the defendant, would




                                         -5-
effectively bear the burden of ‘spotting violations,’” contrary to the statutory

scheme. O’Connor, 656 F.3d at 638 (quoting Zedner, 547 U.S. at 502). 1



                                                     Entered for the Court



                                                     Neil M. Gorsuch
                                                     Circuit Judge




1
  Another possible basis for affirming here, though one on which we need not
rely given our discussion above, concerns the record on appeal. The record
Mr. Seals initially presented to us, through his counsel, was inadequate under
10th Cir. R. P. 10.3. It failed to include the transcript of the pre-trial hearing
where the issue was addressed, the government’s brief on the issue below, and
even the very order he now challenges in which the district court excluded time
from the Speedy Trial Act clock. Mr. Seals sought to supplement the record only
after the government’s brief pointed out the deficiencies. We have previously
warned that “[a]n appellant who provides an inadequate record does so at his
peril,” Dikeman v. Nat’l Educators, Inc., 81 F.3d 949, 955 (10th Cir. 1996), and
have dismissed cases when the appellant provides the relevant material only in a
belated motion to supplement, see, e.g., Allan v. Springville City, 388 F.3d 1331,
1334 (10th Cir. 2004).

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