 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 19, 2013               Decided April 1, 2014

                        No. 06-3166

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                      ANTHONY RICE,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 03-cr-00441-08)


    Jenifer Wicks, appointed by the court, argued the cause
and filed the briefs for appellant.

     Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen,
Jr., U.S. Attorney, and Elizabeth Trosman, Assistant U.S.
Attorney. Suzanne Grealy Curt and Mary B. McCord,
Assistant U.S. Attorneys, entered appearances.

   Before: BROWN and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    GRIFFITH, Circuit Judge: Appellant Anthony Rice
appeals his convictions on drug conspiracy charges on the
                             2
ground that the 26-month delay between his arrest and the
start of his trial violated the Speedy Trial Act, 18 U.S.C.
§ 3161 et seq., and the Sixth Amendment. For the reasons set
forth below, we reject his challenge and affirm the district
court.

                              I

     In June 2002, the Metropolitan Police Department and
the FBI began a joint investigation of a drug distribution
network led by one Raven Carroll. The investigation
uncovered a complex, international scheme that imported
drugs into the Washington, D.C. area from several Caribbean
and South American countries, including the Dominican
Republic. Wiretaps conducted by Dominican authorities
implicated a number of individuals living outside the United
States. Wiretaps conducted by U.S. authorities incriminated
numerous U.S. participants, including Rice, whose role in the
enterprise was to help test the quality of drugs and serve as
one of Carroll’s distributors.

     By October 2003, U.S. authorities had amassed enough
evidence to charge Rice and eighteen others with two counts
of conspiracy relating to drug importation and distribution.
Rice, along with most of his codefendants, was arrested and
arraigned on November 12, 2003. Six foreign codefendants,
however, remained outside the country, two at large and four
under arrest and awaiting extradition.

     Although the Speedy Trial Act requires trial to begin
within 70 days of arraignment, the court may push back the
start of the trial when “the ends of justice” so require. 18
U.S.C. § 3161(h)(7)(A). In a motion that Rice did not oppose,
the government argued that the case was too complex to be
ready for trial within the 70 days called for in the Act and
                              3
asked for a 270-day “ends-of-justice continuance.” The
government cited the large number of defendants, the
international scope of their drug operation, and the sheer
volume of evidence. For example, there were thousands of
hours of taped Spanish-language conversations that would
need to be transcribed into Spanish and then translated into
English. On December 19, 2003, the district court held a
hearing on the motion and granted the continuance. (Although
the record is unclear, for purposes of this opinion we accept
Rice’s contention that the district court intended the 270-day
continuance to begin running immediately.)

     In June 2004, partway through the 270-day continuance,
the district court sua sponte raised the idea of severing the
case to expedite proceedings. The court suggested that those
defendants allegedly involved in the domestic aspects of the
conspiracy could be tried separately from those allegedly
involved in its international reach, some of whom still had not
been extradited. The government conceded such a severance
would be workable, but the court took no action on the issue
at that time. The court floated the possibility of severance
again in July, and once again the government thought it a
good move. On neither occasion did any of the defendants
request or oppose severance. On August 17, 2004, the court
entered a written order severing the case in two and
establishing preliminary schedules for motions and the trials.
Rice was among the domestic defendants, whose joint trial
was scheduled to begin in January 2005.

     For a variety of reasons the trial did not actually begin
until January 2006. The delays started with the court granting
the motion of one of Rice’s codefendants, Roland Bailey, to
postpone the trial until May 2005 so that he could obtain new
counsel. Then, shortly before the new start date, Rice’s
attorney announced that he would not be available for several
                               4
days in early June. To avoid such a disruption in the middle of
a trial expected to last several weeks, Rice’s lawyer agreed
that the start of trial should be set for late June. But shortly
before that new start date, the government voiced concern that
the trial might run through late August and conflict with other
trials on the court’s schedule. In response, the court explained
that if the trial did not begin in late June, it would need to be
postponed until January 2006 to accommodate the court’s
schedule. The government and Rice agreed, though Bailey did
not, that starting the trial in January 2006 was best, and so the
court once again moved back the start date.

     As it turned out, only Rice and Bailey went to trial, all
their codefendants having pled guilty. On January 4, 2006, the
district court heard the last pending pretrial motion: an
attempt to suppress the wiretap evidence against Rice and
Bailey. The court denied the motion that day. Jury selection
began that afternoon and continued on to the next day.
Presentation of evidence started on January 9. After a five-
week trial, Rice was convicted on both counts. Later that year
he was sentenced to life imprisonment. (Bailey was convicted
on a separate possession charge but not on the conspiracy
charges.) Rice filed a timely notice of appeal. We have
jurisdiction under 28 U.S.C. § 1291.

                               II

     Rice argues that his conviction violated the Speedy Trial
Act, which “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).
See generally 18 U.S.C. §§ 3161-3162. Time can be excluded
from the 70-day clock for a variety of reasons, but only two
are relevant to this case. First, as noted, a court can grant an
                                 5
ends-of-justice continuance. Second, the filing of pretrial
motions stops the clock.

     We review Speedy Trial Act challenges de novo on
matters of law, and for clear error as to findings of fact.
United States v. Van Smith, 530 F.3d 967, 969 (D.C. Cir.
2008). * Our review does not entail examining the entire 26-
month period between Rice’s arrest and the start of trial and
categorizing each day as excludable or nonexcludable.
Instead, the Act places the burden of identifying violations on
the defendant. 18 U.S.C. § 3162(a)(2); see also Zedner v.
United States, 547 U.S. 489, 502-03 (2006) (“[Section]
3162(a)(2) assigns the role of spotting violations of the Act to
defendants—for the obvious reason that they have the greatest
incentive to perform this task.”). Accordingly, our review is
limited to examining the particular periods of time that Rice
alleges contained, in total, over 180 days that should not have
been excluded from the district court’s calculation of the 70-
day clock. See Appellant’s Br. 39-41. For ease of analysis, we
consolidate the various intervals Rice highlights into two
periods and address them in the following two subsections.


    *
       Because Rice did not make the specific arguments he raises
on appeal in his pretrial motion to dismiss (at least not in the
motion to dismiss included in the record before us), we should
arguably either deem his claims waived or review only for plain
error. See United States v. Loughrin, 710 F.3d 1111, 1121 (10th
Cir. 2013) (specific Speedy Trial Act arguments not raised below
are waived); United States v. O’Connor, 656 F.3d 630, 637-38 (7th
Cir. 2011) (specific Speedy Trial Act arguments not raised below
are reviewed at most for plain error); cf. United States v. Taylor,
497 F.3d 673, 676 & n.3 (D.C. Cir. 2007). But the government has
not argued waiver or forfeiture, and Rice has not had an opportunity
to contest whether he properly preserved his claims; therefore, we
assume that the normal standard of review applies.
                               6
                               A

     Rice first focuses on the period from January to July
2004. Rice claims that even after accounting for time properly
excluded by the filing of pretrial motions, this period
contained 104 days that should not have been excluded. This
entire period, however, falls within 270 days of the grant of
the ends-of-justice continuance. If the continuance was valid,
the entire period was properly excluded. Acknowledging this
hurdle, Rice argues that the continuance was both
substantively and procedurally flawed.

     A district court can, on its own motion or at the request of
a party, grant an excludable continuance if “the ends of justice
served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A). The substantive balancing underlying the
decision to grant such a continuance is entrusted to the district
court’s sound discretion. See United States v. Kelley, 36 F.3d
1118, 1126 (D.C. Cir. 1994); see also, e.g., United States v.
Clark, 717 F.3d 790, 822 (10th Cir. 2013). But this
“substantive openendedness” is balanced by “procedural
strictness.” Zedner, 547 U.S. at 509. An ends-of-justice
continuance is excludable only if the court “sets forth, in the
record of the case, either orally or in writing, its reasons for
finding that the ends of justice served by the granting of such
continuance outweigh the best interests of the public and the
defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). The
court’s findings must indicate that it “seriously weigh[ed] the
benefits of granting the continuance against the strong public
and private interests served by speedy trials.” United States v.
Bryant, 523 F.3d 349, 361 (D.C. Cir. 2008); see also United
States v. Sanders, 485 F.3d 654, 659 (D.C. Cir. 2007)
(holding ends-of-justice findings insufficient “insofar as the
                               7
district court made no mention of the countervailing
interests”).

     In making its substantive judgment, a court considers
several factors, including the complexity of the case. See 18
U.S.C. § 3161(h)(7)(B). Rice does not quarrel with the
obvious: With 19 codefendants, a conspiracy spanning
multiple states and countries, hundreds of hours of wiretaps
(many in Spanish), the case—considered in its entirety—was
sufficiently complex to justify the continuance. See id.
§ 3161(h)(7)(B)(ii) (indicating that a continuance can be
justified if the case is especially “unusual” or “complex”).

     But, Rice argues, the court should not have considered
the case in its entirety. Instead, the court should have
recognized that it could have rendered the 270-day
continuance unnecessary by severing the domestic defendants
initially. The case against them alone, Rice says, would have
been quite simple because the foreign wiretaps would have
been irrelevant. But, of course, at the time the district court
granted the continuance, it acted under the assumption that the
entire case would proceed toward trial intact. No party,
including Rice, moved for a severance, either before or after
the continuance was granted. At bottom, then, Rice’s
argument is that the district court had an obligation to sever
the case sua sponte, and abused its discretion by failing to do
so before granting the continuance. We think not. To start,
there is a preference for joint trials in the federal courts. See
Zafiro v. United States, 506 U.S. 534, 537 (1993). Although
that preference can give way in the face of certain
circumstances, see, e.g., United States v. Gray, 173 F. Supp.
2d 1, 8 (D.D.C. 2001) (citing “the protection of the rights of
the defendants and the physical limitations of the
courthouse”), we do not see any here that would have
required the district court to sever the case before it granted
                               8
the continuance on December 19, 2003. That none of the
defendants sought a severance shows that none thought it was
required. With 20/20 hindsight, severing the domestic from
the international defendants at the outset might appear to have
been the best way to proceed, but that hardly suggests the
district court abused its discretion in failing to do so at the
time and sua sponte.

     Rice also contends that the continuance was procedurally
invalid, claiming the district court’s on-the-record findings
were insufficient. Again, we disagree. As noted, our
fundamental concern is that the findings reveal that the court
“seriously weigh[ed]” the need for delay against the interests
in a speedy trial. Bryant, 523 F.3d at 361. The district court’s
lengthy contemporaneous oral findings, which explained in
detail why the complexity of the case made a continuance
appropriate, satisfy us that it seriously weighed these
competing interests. The court began by noting the general
need “to get cases to trial as quickly as possible.” But it
explained that delay was justified because of the large number
of defendants, the many hours of wiretaps to be transcribed
and translated, and the absence of certain defendants still
awaiting extradition. The court plainly took the defendants’
interests into consideration, noting, for example, “that the
defense itself is not going to be in a position to adequately
provide the quality of representation the defendants are
entitled to, unless they know exactly what is on those
[wiretap] disks.” True, the district court did not recite the
statutory formulation, but the findings requirement does not
call for magic words. The findings here are far more
indicative of serious weighing than are those in cases where
the district court does little more than rehearse the words of
the statute. See, e.g., United States v. Lucas, 499 F.3d 769,
782-83 (8th Cir. 2007) (upholding such findings).
                               9
     The findings here were also a far cry from those we
found insufficient in Sanders and Bryant, the two cases on
which Rice relies most heavily. In Sanders, we examined a
period of time that the district court had originally expected to
be excluded by the filing of certain defense motions. But
those motions were ultimately never filed. It was only after
the period had passed, in the course of denying a motion to
dismiss under the Act, that the district court suggested the
period was excluded by an ends-of-justice continuance. Its
“findings” were simply a statement that it had originally
expected the defense to file the motions and “[s]o on some
rough justice basis, it seems to me, it is in the interest of
justice to [exclude] those 15 days.” Sanders, 485 F.3d at 659.
The findings in Bryant were similarly ad hoc. When faced
with a motion to dismiss under the Act, the judge, who
acknowledged that he was working from memory, not
transcript, said he “thought he had probably made a finding”
that an earlier period of time was excluded in the interests of
justice because of the need to coordinate the schedules of the
lawyers and the court. Bryant, 523 F.3d at 360 (internal
quotation marks omitted). In neither case could we be
satisfied that the district court had seriously weighed the
relevant interests. By contrast, the district court’s findings in
this case reflect a considered, prospective judgment that the
complexity of the case called for the continuance.

     The findings here are closer to those we upheld in United
States v. Lopesierra-Gutierrez, 708 F.3d 193 (D.C. Cir.
2013). Our review in that case was complicated by the fact
that the district court order setting down the findings had gone
missing. Id. at 204. We were able to reconstruct the court’s
reasoning, however, because later filings established the
existence of the order. Those later filings made clear that the
order had cited the complexity of the case, the volume of
discovery, and the need to bring foreign defendants and
                               10
witnesses to the United States—substantially the same
circumstances the district court noted in its findings here. See
id. (describing these as “perfectly adequate reasons for
granting a stay”). The findings in the present case are as
thorough as those we could infer in Lopesierra-Gutierrez.

     Because the district court’s grant of the 270-day ends-of-
justice continuance was both substantively and procedurally
valid, we conclude that the district court properly excluded
the 104 days between January and July 2004 that Rice alleges
should have been counted under the Act.

                                B

     The second period in question covers late June 2005 to
January 2006, when trial began. Rice argues that after
accounting for properly excluded days, this period still
contained 83 days that should not have been excluded for any
reason. Once again, however, the entire period in question
was properly excluded—this time by the pendency of a
pretrial motion that was not heard until January 4, 2006.

      The Act automatically excludes at least some of the time
it takes the district court to decide a pretrial motion. 18 U.S.C.
§ 3161(h)(1)(D) (excluding “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”). See generally Van Smith, 530 F.3d at 969. The
amount of time excluded depends in part on whether the
district court holds a hearing on the motion. If the court holds
a hearing, the Act excludes the period of time between the
filing of the motion and the conclusion of the hearing,
whether or not the amount of delay that occurred was
“reasonable.” Henderson, 476 U.S. at 326-27. If the court
does not hold a hearing on the motion, the Act excludes the
                              11
period of time between the filing of the motion and the day
the court receives all the submissions it reasonably expects in
relation to the motion. Van Smith, 530 F.3d at 969. After the
court receives the necessary papers, the motion is considered
“under advisement by the court,” and up to 30 additional days
may be excluded while the court considers the matter. 18
U.S.C. § 3161(h)(1)(H).

     At a status conference on May 23, 2005, the district court
catalogued the remaining defendants’ unresolved pretrial
motions. Among Rice’s was “a motion to suppress all of the
electronic surveillance evidence,” which Rice’s counsel
acknowledged and agreed was still pending. And again, on
June 27, 2005, the court noted that “we have a motion to
suppress the electronic surveillance evidence filed by Mr.
Rice.” We cannot discern from the record precisely when
Rice filed this motion, but its murky origins need not concern
us, because the court held a hearing to consider its merits on
January 4, 2006. (The court denied the motion that day.) Even
if we assume that Rice did not file this motion until May 23,
2005, the entire period from that day until the day of the
hearing would be excluded. Regardless of whether the district
court could have held a hearing on this motion earlier—the
record does not make clear why it did not—the entire period
of the motion’s pendency is excluded. See Henderson, 476
U.S. at 330. Therefore, the various days between late June
2005 and January 2006 that Rice claims were nonexcludable
were in fact properly excluded.

                              III

     Rice brings a constitutional challenge as well, contending
that the delay between his arrest and trial violated his Sixth
Amendment right to a speedy trial.
                                12
     The government argues that Rice forfeited this claim by
failing to raise it before the district court. We agree. Though
Rice argues that he “continuously asserted both his statutory
and constitutional rights to a Speedy Trial,” he fails to offer
any supporting record citations. Appellant’s Reply Br. 12. We
can find no evidence in the record that Rice ever made a Sixth
Amendment argument before the district court, and Speedy
Trial Act claims do not on their own preserve a constitutional
claim to a speedy trial. See United States v. Green, 516 F.
App’x 113, 124 (3d Cir. 2013); United States v. Woodley, 484
F. App’x 310, 318 (11th Cir. 2012); United States v.
O’Connor, 656 F.3d 630, 643 (7th Cir. 2011). We therefore
review Rice’s constitutional argument for plain error. Under
that standard of review, Rice must demonstrate that “(1) there
is an error; (2) the error is clear or obvious, rather than subject
to reasonable dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it affected
the outcome of the district court proceedings; and (4) the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Marcus, 130 S. Ct.
2159, 2164 (2010) (internal quotation marks and brackets
omitted).

     The absence of a Speedy Trial Act violation does not ipso
facto defeat a Sixth Amendment speedy trial claim. See 18
U.S.C. § 3173. But as a number of courts have noted, it will
be an “unusual case” in which the Act is followed but the
Constitution violated. See, e.g., United States v. Bieganowski,
313 F.3d 264, 284 (5th Cir. 2002); United States v.
Davenport, 935 F.2d 1223, 1238-39 (11th Cir. 1991); United
States v. Nance, 666 F.2d 353, 360 (9th Cir. 1982). Even
more exceptional must be the case in which the Act is
followed but there is a “clear or obvious” Sixth Amendment
error. Our analysis of Rice’s prosecution in light of the four
                               13
factors enumerated in Barker v. Wingo, 407 U.S. 514 (1972),
convinces us this is not that rare case.

      Barker teaches that in assessing whether the Sixth
Amendment has been violated, we consider the “[l]ength of
delay, the reason for the delay, the defendant’s assertion of his
right, and prejudice to the defendant.” 407 U.S. at 530. The
government concedes, and we agree, that the delay here was
long enough to trigger Barker analysis, see Doggett v. United
States, 505 U.S. 647, 651-52 (1992), but it remains shorter
than others that we have upheld against challenge, see
Lopesierra-Gutierrez, 708 F.3d at 202-03 (delay of three-and-
a-half years); see also Barker, 407 U.S. at 531 (“[T]he delay
that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy
charge.”). The second factor, which asks “whether the
government or the criminal defendant is more to blame for
[the] delay,” Doggett, 505 U.S. at 651, also yields a mixed
answer. See supra at 3-4 (describing the delays). Some of the
delay, such as the initial ends-of-justice continuance and the
continuance for codefendant Bailey to obtain new counsel,
was fully justified and cannot be “blamed” on either the
government or Rice; some was caused by Rice’s lawyer’s
scheduling decisions and is attributable to Rice, see Vermont
v. Brillon, 129 S. Ct. 1283, 1290-92 (2009); and some was
due to the court’s trial schedule, which is ultimately
attributable to the government, see Barker, 407 U.S. at 531.
The third factor, the defendant’s assertion of his right, cuts
decidedly against Rice because he did not raise any Speedy
Trial Act challenge until nearly a year after his arraignment,
and, as noted earlier, never alleged a Sixth Amendment
violation. His counsel orally raised vague Speedy Trial Act
concerns on two occasions after moving to dismiss, but he
also expressly agreed to the last two postponements of the
trial. Finally, although Rice suffered lengthy “pretrial
                             14
incarceration” and “anxiety and concern,” he does not even
attempt to argue that he suffered “the most serious” form of
prejudice: the impairment of his defense. Id. at 532.

     Taken together, the four factors suggest that Rice would
have at least a debatable, if not persuasive, Sixth Amendment
claim under de novo review. But in light of Rice’s forfeiture,
we can reverse only for plain error, and we cannot conclude
that the Barker analysis demonstrates a “clear or obvious”
constitutional error in this case. Marcus, 130 S. Ct. at 2164.
Because any error was not “clear or obvious,” we need not
address the other requirements for relief under plain error
review.

                             IV

    For the foregoing reasons, we reject Rice’s Speedy Trial
Act and Sixth Amendment challenges and affirm his
convictions.
