                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 24 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-1434
 v.
                                                 (D.C. No. 96-CR-419-10-D)
                                                         (D. Colo.)
 DARIAN HUNTER,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Darian Hunter appeals the denial of his motion that the government

violated his statutory and constitutional rights to a speedy trial. We find the delay

between his first appearance before a magistrate and the disposition of his case

was largely of his own making. Consequently, we 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) and 10th Cir. R. 34.1(G). The case is
therefore 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 This Order and Judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                                BACKGROUND

      On October 23, 1996, the government issued a five-count indictment

against Larry Charles Moore for his involvement as the leader of a drug

trafficking ring. On November 21, 1996, the government filed a superseding

indictment, adding seven other defendants. On May 20, 1998, the government

filed a second superseding indictment, adding Defendant-Appellant Darian

Hunter. (Vol. I: 454.)

      On June 15, 1998, Hunter made his first appearance in court on this matter,

before Magistrate Judge Richard M. Borchers. (Vol. I: 480.) On June 24, Hunter

was arraigned, pled not guilty, and was remanded to custody. (Vol. I: 494.) At his

arraignment (Vol. IV at 2 (transcript of arraignment)) and in the Discovery

Conference Memorandum and Order, filed the same day (Vol. I: 493 at 9), Hunter

was informed that before he had been indicted, the court had designated the case

“complex” for purposes of the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(B)(ii).

(Vol. I:82.)

      On August 3, Hunter filed 17 motions, including a motion to join in his co-

defendants’ motions. (Vol. I, index: 511-529; see also Vol. I:540 (listing Hunter’s

motions).) Hunter made numerous other motions, approximately 45 in all,

throughout the litigation (May 1998 - June 2000). (See Answer Brief, Attachment

2 (summary of Hunter’s motions).) In addition, Hunter and his co-defendant,


                                       -2-
Michael Crumpton, sought changes of counsel on a number of occasions. (See,

generally, Supp. Vol. I, index: 700 -761.)

      On December 23, 1999, Hunter filed a motion to dismiss the indictment for

violation of his speedy trial rights. (Vol. II: 806.) The court issued an order

denying that motion on February 8, 2000. (Vol. II: 830.) In that order, the court

noted that many of the motions which Hunter had made on August 3, 1998, were

still pending. (Vol. II: 830.) On March 10, 2000, the court issued an order which

disposed of all of Hunter’s outstanding motions at that time. (Vol. II: 847.)

      On March 24, 2000, Hunter filed his first notice of disposition, requesting

to change his plea from not guilty to guilty. (Supp. Vol. I, index: 851.) On

April 14, the court stated on the record that the previous day’s (4/13) status

conference had made it unclear whether Hunter had indeed decided to change his

plea. (Supp. Vol. I, index: 857.) This statement was made amidst another attempt

by Hunter to change lawyers. (Supp. Vol. I, index: 857.) The court advised the

parties that, in the event Hunter’s notice of disposition was withdrawn, it would

schedule a hearing to prepare the case for trial. (Supp. Vol. I, index: 857.)

      On April 27, after permitting Hunter to change lawyers, the court ordered

Hunter’s new lawyer to advise it by May 22 whether Hunter still planned to go

ahead with his change of plea as had originally been scheduled. (Supp. Vol. I,




                                         -3-
index: 861.) On May 22, Hunter confirmed that he intended to change his plea

from not guilty to guilty. (Supp. Vol. I, index: 862.)

      On May 23, the court rescheduled the change-of-plea hearing from June 8

to June 27. (Supp. Vol. I, index: 863.) On June 27, 2000, Hunter changed his plea

before the court. (Supp. Vol. I, index: 878.) Hunter’s plea agreement, filed

June 23, 2000, permitted him to enter a conditional plea of guilty, reserving the

right to appeal the court’s denial of his motion to dismiss the indictment on the

ground that his rights to a speedy trial had been violated. (See Answer Brief,

Attachment 1 (Plea Agreement).)



                                     DISCUSSION

      Hunter asserts that the government violated his statutory right to a speedy

trial under the Speedy Trial Act, 18 U.S.C. §§ 3161 to 3174, and his

constitutional right to a speedy trial pursuant to the Sixth Amendment. In

addition, he appends two more claims: first, that the government violated his Fifth

Amendment right of due process by intentionally delaying his indictment; and

second, that Hunter’s trial counsel provided ineffective assistance by not asserting

Hunter’s rights to a speedy trial.




                                         -4-
A. Speedy Trial Act

         “The Speedy Trial Act requires that a criminal trial must commence within

70 days of the latest of a defendant’s indictment, information, or appearance,

barring periods of excludable delay.” Henderson v. United States, 476 U.S. 321,

326 (1986) (citing 18 U.S.C. § 3161(c)(1)). Thus, Hunter’s speedy trial “clock”

began to run on June 15, 1998, when he first appeared before the magistrate

judge.

         The Supreme Court held that 18 U.S.C. § 3161(h)(1)(F) excludes “from the

Speedy Trial Act’s 70-day limitation all time between the filing of a motion and

the conclusion of the hearing on that motion.” Henderson, 476 U.S. at 330; see

also United States v. Tranakos, 911 F.2d 1422, 1427 (10th Cir. 1990) (“The

Supreme Court held in Henderson that section 3161(h)(1)(F) applies to the entire

period a motion is pending.”). 1 Hunter concedes this but argues that the trial

court unreasonably delayed ruling on his motions. See Opening Brief at 7-9. 2 The

Henderson Court, however, rejected precisely this argument. See Henderson, 476

U.S. at 330. Thus, the time from August 3, 1988 (when he filed his first set of

pre-trial motions), to March 10, 2000 (when the court disposed of the last of his



      In addition to the time a motion is pending, the Court pointed out that
         1

§ 3161(h)(1)(J) excludes up to 30 more days after a hearing on pre-trial motions
when the court has taken the matters “under advisement.”
         2
             Hunter never clarifies what relief he believes he is entitled to.

                                              -5-
motions), i.e., while Hunter’s pre-trial motions were pending, was excluded from

the Speedy Trial Act’s 70-day limitation period.

      On March 24, 2000, Hunter filed his first notice of disposition,

acknowledging that he wanted to change his plea to guilty. Since a change-of-

plea hearing is necessary to establish the knowing and voluntary nature of the

defendant’s guilty plea, see Fed. R. Crim. P. 11(d), and to determine the

sufficiency of its factual basis, see Fed. R. Crim. P. 11(f), a “notice of

disposition” like this one is treated as a pre-trial motion requiring a hearing for

purposes of the Speedy Trial Act. See United States v. Santiago-Becerril, 130

F.3d 11, 19-20 (1st Cir. 1997); United States v. Jenkins, 92 F.3d 430, 440 (6th

Cir. 1996). As such, the entire period between notifying the court that he wanted

to change his plea and the change-of-plea hearing itself was excluded for

purposes of the Speedy Trial Act. 3

      Consequently, there were only two, non-excluded periods when the 70-day

limitation period was elapsing: from June 16, 1998 to August 3, 1998 (48 days),

and from March 10, 2000 to March 24, 2000 (14 days). Only 62 days had expired

for purposes of the Speedy Trial Act; there was no violation.


      3
        The irregularities that resulted from Hunter trying to change counsel at
that time did not set the clock ticking again. His change of plea request was
under consideration throughout the transition period from one lawyer to another.
And, indeed, on May 22, 2000, Hunter’s new counsel re-affirmed that Hunter
wanted to change his plea to guilty.

                                          -6-
B. Sixth Amendment Right to a Speedy Trial

      In determining whether a defendant has been deprived of his
      constitutional right to a speedy trial under the Sixth Amendment, a
      court should consider and balance the following factors: (1) the
      length of the delay; (2) the reason for the delay; (3) the defendant's
      assertion of his right to a speedy trial; and (4) prejudice to the
      defendant. Of these factors, the length of the delay is the threshold
      consideration. Only if the delay is "presumptively prejudicial" will
      the court need to consider the remaining factors.

United States v. Hill, 197 F.3d 436, 443-44 (10th Cir. 1999) (citations omitted).

      1. Length of Delay

      Hunter was brought before a magistrate in June 1998 and his trial was set

for June 2000. While we have declined to draw a bright line delineating what

length of delay is “presumptively prejudicial,” Castro v. Ward, 138 F.3d 810, 819

(10th Cir. 1998), we have acknowledged the Supreme Court’s assessment that

“lower courts have generally found postaccusation delay ‘presumptively

prejudicial’ at least as it approaches one year.” Id. (citing Doggett v. United

States, 505 U.S. 647, 652 n.1 (1992)). The trial court found that the two year

delay in this case was presumptively prejudicial. (Vol. II: 830 at 6.) The

government has never disputed this finding. See id.; Answer Brief at 12. We

agree that the two years was presumptively prejudicial.

      2. Reason for Delay

      As described above, the reason for the delay stems almost entirely from

Hunter’s decisions to file approximately 45 pre-trial motions, many of which were

                                         -7-
factually and legally complex, e.g., motions to suppress court-ordered wiretaps

(see, e.g., Docs. 512, 558, 582, 636, 657), and to seek to change counsel

numerous times (see, e.g., Docs. 700, 714, 717, 753, 861). While not ideal, the

delay in ruling on the motions is understandable given the number of defendants

and complexity of the case. Thus, we find the reason for the delay cuts strongly

against finding a violation of his Sixth Amendment right to a speedy trial.

      3. Assertion of Speedy Trial Right

      At the earliest, Hunter expressed a desire to proceed to trial expeditiously

at his bail hearing on October 20, 1998. (Vol. II: 621.) He explicitly moved to

dismiss the indictment due to speedy trial violations in a motion filed

December 23, 1999. (Vol. II: 806.) Throughout this time, however, the record

demonstrates that Hunter was delaying the proceedings by filing myriad motions,

many of which were repetitive and of questionable merit. “We are unimpressed

by a defendant who moves for dismissal on speedy trial grounds when his other

conduct indicates a contrary desire.” United States v. Tranakos, 911 F.2d 1422,

1429 (10th Cir. 1990). We find that while Hunter asserted his right, his behavior

is not consistent with an earnest desire to proceed to trial promptly. Therefore, at

best, this factor does not affect the analysis.




                                          -8-
      4. Prejudice

      Hunter complains that waiting in jail for trial exacted a toll on himself,

personally, and his family. See Opening Brief at 14-15. These are serious

concerns. He also asserts that the delay prejudiced his defense because witnesses’

memories fade and evidence becomes stale. See id. at 15. This fact, of course,

cuts both ways; both his and the government’s cases presumably became weaker

by the passage of time. Moreover, we have emphasized in the past that general

allegations of how delay prejudices a defense are unpersuasive:

      [D]espite Mr. Castro’s general allegation that the passage of time
      made it more difficult for him to present a defense, he points to no
      specific prejudice he claims he suffered from the delay. He has not
      claimed that any specific witness or evidence was somehow rendered
      unavailable or less persuasive because of the passage of time.

Castro, 138 F.3d at 820. Likewise, Hunter fails to allege the specific ways in

which the delay prejudiced his defense. We find that the prejudice factor cuts

slightly in favor of Hunter.

      On balance, we conclude that Hunter’s Sixth Amendment right to a speedy

trial has not been violated.

C. Due Process

      Hunter’s conditional guilty plea preserved only the speedy trial issue for

appellate review. See United States v. Robertson, 45 F.3d 1423, 1434 (10th Cir.




                                         -9-
1995); 4 Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal

defendant has solemnly admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter raise independent claims

relating to the deprivation of constitutional rights that occurred prior to the entry

of the guilty plea.”). Thus, he may not now assert that the government denied him

due process by unreasonably delaying his indictment. 5

D. Ineffective Assistance of Counsel

      Hunter alleges his trial counsel rendered constitutionally ineffective

assistance by failing to pursue his right to a speedy trial. See Opening Brief at 16-

18. He concedes, however, that “[a]s a general rule, ineffective assistance of

counsel claims should be brought in collateral proceedings rather than on direct

appeal.” Opening Brief at 16 (citing United States v. Gallegos, 108 F.3d 1272,

1279 (10th Cir. 1997)). Notwithstanding this concession, he asserts that his case


      4
          Of course, he still could have raised jurisdictional issues. See id.
      5
        Furthermore, on the merits, the district court found that one reason Hunter
was indicted eighteen months after his co-defendants was that the government
wanted “to be sure that there was sufficient evidence to support the indictment.”
Vol. II:847 at 6. The Supreme Court has held that, even if a defendant’s defense
is somewhat prejudiced by delay in charging him, it does not violate due process
for the government to wait to indict until it has amassed what it believes is
sufficient evidence. See United States v. Lovasco, 431 U.S. 783, 796 (1977) .
Hunter does not point to any record evidence that casts doubt on the court’s
finding or that would indicate the government delayed indicting him intentionally,
in order to gain a tactical advantage over him. See United States v. Marion, 404
U.S. 307, 324 (1971) .

                                           - 10 -
fits the narrow exception to this rule because his “ineffective assistance claim has

been adequately developed by the district court prior to appeal.” Opening Brief at

17.

      To the contrary, this case is precisely the sort that should not be brought on

direct review. We explained some of the reasons for this rule in United States v.

Galloway, 56 F.3d 1239 (10th Cir. 1995) (en banc):

      A factual record must be developed in and addressed by the district
      court in the first instance for effective review. Even if evidence is
      not necessary, at the very least counsel accused of deficient
      performance can explain their reasoning and actions, and the district
      court can render its opinion on the merits of the claim. . . . [E]ven if
      the record appears to need no further development, the claim should
      still be presented first to the district court in collateral proceedings
      (which can be instituted without delay) so the reviewing court can
      have the benefit of the district court’s views.

Id. at 1240 (emphasis added); see also Beaulieu v. United States, 930 F.2d 805,

807 (10th Cir. 1991) (“This [rule] encourages development of a record on the

tactical reasons for trial counsel’s decisions, the extent of trial counsel’s alleged

deficiencies, and the asserted prejudicial impact on the outcome of the trial.”)

(emphasis added) overruled in part by United States v. Galloway, 56 F.3d 1239

(10th Cir. 1995) (en banc). Whether Hunter’s trial counsel were ineffective turns

on why they made the motions and statements they did when they did, including

the motions and statements asserting Hunter’s speedy trial rights. The most

probative evidence on this claim – whether counsel’s decisions were strategic or


                                         - 11 -
stupid – is not in the record. Therefore, we dismiss his ineffective assistance of

counsel claim without prejudice.

                                   CONCLUSION

      We conclude neither Hunter’s statutory nor constitutional rights to a speedy

trial were violated. Consequently, we AFFIRM the district court’s denial of his

motion.

      Furthermore, by entering a guilty plea that permitted appeal only of his

speedy trial claim, he foreclosed this court from hearing his claim that the

government unreasonably delayed his indictment. Finally, his claim of ineffective

assistance of counsel is premature; it should be brought on collateral review and,

accordingly, is dismissed without prejudice.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        - 12 -
