          United States Court of Appeals
                        For the First Circuit


No. 13-1831

                            UNITED STATES,

                               Appellee,

                                  v.

                             HASAN WORTHY,

                         Defendant, Appellant.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]




                                Before

                          Lynch, Chief Judge,
                   Stahl and Barron, Circuit Judges.



     Michael J. Sheehan, for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.



                           November 7, 2014
             STAHL, Circuit Judge.       After the indictment against him

was dismissed without prejudice for a Speedy Trial Act violation,

Defendant-Appellant     Hasan    Worthy    ultimately   was   convicted   of

various offenses arising out of his participation in a drug

conspiracy.     As the government conceded a breach of 18 U.S.C.

§ 3161(c)(1), requiring a criminal defendant to be brought to trial

within seventy days of the filing of an indictment, the statutory

issue on appeal is limited to whether the district court chose the

appropriate remedy for the violation.            We are further asked to

decide whether the district court properly determined that Worthy

had not been deprived of his Sixth Amendment right to a speedy

trial.   Finding no abuse of discretion on either point, we affirm.

                        I.     Facts & Background

             As Worthy raises solely speedy-trial claims on appeal and

does not challenge the sufficiency of the evidence supporting his

convictions, we recite only the procedural history of the case.

             An initial criminal complaint issued against Worthy on

August 6, 2010, charging him with participation in a conspiracy to

possess cocaine with the intent to distribute, an offense which

carries a maximum penalty of twenty years' imprisonment. 21 U.S.C.

§ 841(b)(1)(C).     The first indictment issued on August 17, 2010.

Over   the   next   fourteen    months,    the   government   brought   four

superseding indictments against him.             For the most part, the

superseding     indictments      added     new    counts   or   additional


                                     -2-
codefendants, though the third superseding indictment in certain

counts changed the type of substance involved (from cocaine base to

cocaine), and in some instances, the quantities at issue.

                 The parties engaged in extensive motion practice. Worthy

moved       to   dismiss     the   first,    second,    and       fourth    superseding

indictments, arguing that each was untimely under the provision of

the Speedy Trial Act requiring an indictment to be filed within

thirty days of the initial arrest.                See 18 U.S.C. § 3161(b).          While

questioning "the need for this succession of charging documents,"

the   district       court    denied   the    motions,       finding       no   statutory

violation.

                 Five days before jury empanelment was set to begin,

Worthy moved to dismiss the fourth superseding indictment again,

asserting — for the first time — impermissible trial delay, in

violation of both the Sixth Amendment and the Speedy Trial Act's

seventy-day         indictment-to-trial            clock.1          See     18     U.S.C.

§ 3161(c)(1).        By that point, all of Worthy's codefendants already

had   pleaded       guilty.        However,       because    it    was    awaiting   the

presentence report of one codefendant, Dereck Berryan, the court

deferred formal acceptance of Berryan's plea agreement.                              The

clerk's office thus had automatically stopped the statutory speedy-



        1
      By the time of this motion to dismiss the fourth superseding
indictment, the original indictment as well as the other three
superseding indictments had been dismissed either by consent of the
parties or due to want of prosecution.

                                            -3-
trial   clock    as    to   both   Berryan   and   Worthy,    pursuant     to   the

exclusion under 18 U.S.C. § 3161(h)(1)(G) for "delay resulting from

consideration by the court of a proposed plea agreement to be

entered into by the defendant and the attorney for the Government."

Resolution of Worthy's motion turned on whether time that was

excludable from Berryan's clock under § 3161(h)(1)(G) also could be

discounted      from   Worthy's     clock,    by   virtue    of    the   statutory

exception of § 3161(h)(6) for "[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."

             During oral argument on Worthy's motion, the government

agreed that a statutory violation had occurred, though it did not

concede the constitutional issue.            The district court accepted the

government's stipulation but nonetheless conducted an independent

analysis of whether there had in fact been a violation.                         The

precise question before the district court, one of first impression

in this Circuit, was whether Worthy still effectively was "joined

for trial" with Berryan, for the purposes of § 3161(h)(6), where

Berryan had pleaded guilty pursuant to a plea agreement as yet

unaccepted by the court. Following the Fifth Circuit's approach in

United States v. Stephens, 489 F.3d 647, 654 (5th Cir. 2007), the

court answered the question in the negative, concluding that, where

a   codefendant's      speedy-trial     clock      has   stopped    pursuant     to


                                       -4-
§ 3161(h)(1)(G), that time is not also excludable as a matter of

course under § 3161(h)(6) from the clock of the defendant who has

not yet entered a plea.

              The court also considered whether, even if application of

the exclusion of § 3161(h)(1)(G) to codefendants is not automatic,

the exclusion should be applied under the particular facts of this

case.       The court concluded that it should not apply here.                     Among

other reasons, the court explained that, because Berryan was

charged under the third but not the fourth superseding indictment,2

which was the only indictment that still pertained to Worthy, the

two    were    no    longer      "joined   for    trial"   for    the   purposes      of

§    3161(h)(6).          With    Worthy's     clock   still   running       while   his

codefendant awaited sentencing, his seventy-day time limit expired

on    February      14,   2012;    by   jury     empanelment     on   July    2,   2012,

seventy-seven days of impermissible delay had resulted.3

              Applying the § 3162(a)(2) factors, the court determined

that the appropriate remedy for exceeding the statutory time limit

by seventy-seven days was a dismissal of the fourth superseding

indictment without prejudice, as opposed to a dismissal with

prejudice.          The length of delay deemed relevant to Worthy's


        2
       Berryan already had pleaded guilty by the time the fourth
superseding indictment issued.
        3
      As neither party has asked us to review the district court's
conclusion that a violation of the Speedy Trial Act did indeed
occur, we express no opinion as to the court's analysis in this
regard.

                                           -5-
constitutional claim, however, was the twenty-three-month period

between the date of arrest and the date trial was scheduled to

commence.   Although this amount of delay was deemed presumptively

prejudicial, the court held that Worthy's Sixth Amendment right to

a speedy trial had not been violated, primarily due to his failure

to assert his right promptly and the absence of serious prejudice

to his case.   See Barker v. Wingo, 407 U.S. 514, 530–33 (1972).

            A new indictment followed on August 7, 2012, the sixth

one in the case.4     Worthy filed another motion to dismiss on

speedy-trial grounds, in order to preserve his right to appeal from

the district court's denial of his request to dismiss   the fourth

superseding indictment with prejudice.    That motion was denied.

After an eight-day jury trial, Worthy was convicted of engaging in

a conspiracy to possess with intent to distribute in excess of 280

grams of cocaine base and 500 grams of cocaine; two counts of

aiding and abetting possession with intent to distribute cocaine;

and aiding and abetting use of a communication device to facilitate



     4
       The district court subsequently granted Worthy's motion for
immediate release from custody pursuant to 18 U.S.C. § 3164(c),
which requires that the trial of any person detained under that
section commence within ninety days of "the beginning of such
continuous detention."    The government filed an interlocutory
appeal and this court reversed the district court's order. We held
that "when an indictment is dismissed upon the motion of a
defendant, the dismissal is without prejudice and that defendant is
again detained awaiting trial, section 3164's 90-day clock restarts
at the moment that the defendant is re-arrested, regardless of the
nature of the charges in the new complaint."      United States v.
Worthy, 699 F.3d 661, 665 (1st Cir. 2012) (per curiam).

                                -6-
the   commission    of   a   drug    distribution   offense.   Worthy    was

sentenced to a 300-month term of imprisonment on the first three

counts and a 48-month term on the final count, to be served

concurrently.      This appeal followed.

                               II.    Analysis

A.    Speedy Trial Act

            The Speedy Trial Act, intended to effectuate the Sixth

Amendment right to a speedy trial, obligates the government to

bring a defendant to trial within seventy days of filing an

information or indictment.           See 18 U.S.C. § 3161(c)(1); United

States v. Franklin, 630 F.3d 53, 57 (1st Cir. 2011).                 Certain

periods of delay, however, are to be excluded from the seventy-day

clock.   18 U.S.C. § 3161(h).        If trial has not commenced within the

requisite time period, "the information or the indictment shall be

dismissed on motion of the defendant."           Id. § 3162(a)(2).   As both

parties agree that Worthy was not timely brought to trial under the

rule of § 3161(c)(1), the question on appeal is limited to whether

the dismissal of the fourth superseding indictment without, rather

than with, prejudice was an appropriate sanction.

            The district court may elect to dismiss the charges

either with or without prejudice, after "consider[ing], among

others, each of the following factors: the seriousness of the

offense; the facts and circumstances of the case which led to the

dismissal; and the impact of a reprosecution on the administration


                                       -7-
of [the Speedy Trial Act] and on the administration of justice."

Id.   The court may consider any other factors that are rationally

related to the statutory objective of balancing public and private

interests; in this Circuit, "we have come to describe prejudice to

the defendant as the fourth factor for courts to consider."

Franklin, 630 F.3d at 58 (citing United States v. Barnes, 159 F.3d

4, 16 (1st Cir. 1998)); United States v. Hastings, 847 F.2d 920,

924 (1st Cir. 1988).

           We review a district court's choice of sanction for abuse

of discretion, Franklin, 630 F.3d at 58, keeping in mind that that

court is "best situated to assess the degree of the violation and

its likely effect on the parties involved." Barnes, 159 F.3d at 16;

see also United States v. Taylor, 487 U.S. 326, 335–36 (1988).

           Here, the district court carefully weighed the statutory

factors, in addition to the prejudice factor prescribed by this

court, in determining the appropriate remedy for the impermissible

trial delay. The court found that the first factor, seriousness of

the offense, weighed against Worthy, given the allegations of a

protracted conspiracy involving the distribution of large amounts

of crack cocaine, powder cocaine, and heroin. Cf. United States v.

Brown, 770 F.2d 241, 244 (1st Cir. 1985) (approving of district

court's finding that "distribution and conspiracy to distribute

cocaine[] are undeniably serious," weighing against dismissal with

prejudice).


                                -8-
                  As for the second factor, the facts and circumstances of

the case that led to dismissal, the district court noted that

Worthy was to blame for some of the delay, as he had moved for

certain continuances and acquiesced in others.5                   Indeed, some of

Worthy's requested extensions delayed setting the case for trial.

Cf.    Barnes,           159   F.3d   at   17    (defendant   requested   several

continuances and did not "behave like [someone] who wanted her day

in court posthaste").            Although the government's charging strategy

did somewhat prolong the length of pretrial incarceration, much of

that       time    was    excludable   under     the   statute.   The   period    of

nonexcludable delay resulted from the clerk's office's apparently

erroneous speedy-trial calculations, some evidence of a lack of

prosecutorial bad faith.6             Cf. United States v. Scott, 270 F.3d 30,

58 (1st Cir. 2001) (facts and circumstances did not counsel in

favor of dismissal with prejudice where delay attributable to

district court error rather than governmental bad faith).                        The

court thus determined that, "although the delay [had] been long,

the facts and circumstances [did] not cry out for dismissal with

prejudice," particularly where Worthy only raised the issue of


       5
       Worthy filed eight motions for extension of time, all of
which were granted.     Worthy also failed to object to four
government motions to extend time, which also were granted.
       6
       As noted, both parties agree that the clerk's office
erroneously stopped the clock as to Worthy while his codefendant
who had pleaded guilty awaited sentencing. We accordingly take no
position as to whether such time is excludable from the seventy-day
Speedy Trial Act clock.

                                           -9-
undue delay five days before trial and never filed a motion to

sever.   Cf. Barnes, 159 F.3d at 17 (dismissal with prejudice

unwarranted where "[d]efendant never raised the speedy trial claim

until the last possible moment").

          The district court determined that the third factor, the

impact of reprosecution on the administration of the Speedy Trial

Act and on the administration of justice, also did not counsel in

favor of dismissal with prejudice. The court observed that, as the

case had not yet proceeded to trial, the administration of justice

would not be impeded by the need to carry out a retrial.   The court

further reasoned that dismissal with prejudice, to be invoked only

as a "last and rare resort," United States v. Dessesaure, 556 F.3d

83, 85 (1st Cir. 2009) (per curiam), was an inappropriate remedy in

a case involving a narrow Speedy Trial Act issue on which this

court has not yet spoken.

          Finally, with regard to the fourth factor, the district

court acknowledged that Worthy had been deprived of his liberty for

a significant period of time while awaiting trial, but concluded

that Worthy had failed to demonstrate prejudice.      Worthy had not

offered evidence that witnesses had died or left the country, that

documents had been destroyed, or that the delay was so long as to

materially affect memories of the relevant events.7    Cf. id. at 86


     7
       Worthy argued before the district court, and argues here,
that his inability to locate a witness, Timothy Vokey, who had
testified at his detention hearing, caused him prejudice. Vokey

                               -10-
("Ordinarily, the strongest argument against re-prosecution is

prejudice to the defendant — most importantly, loss of witnesses or

other impediments to obtaining a fair trial at a later date.").

The   court    also    rejected     Worthy's    argument     that    he    had    been

prejudiced because some of his codefendants had been persuaded to

testify   against      him     during   the   period   of   delay.         The    court

reasoned,     "If    they    testify    truthfully,    it   is   not      cognizable

prejudice.      If they testify untruthfully, that is a matter for

cross-examination and impeachment."            Cf. United States v. Trueber,

238 F.3d 79, 91 (1st Cir. 2001) (in constitutional speedy-trial

analysis, "mere possibility that the government's case may get

stronger with time is not sufficient" to establish prejudice).                      At

least in the absence of a showing of prosecutorial bad faith, we

agree.    Thus, in light of these considerations, the district court

decided that dismissal without prejudice was the appropriate remedy

for the Speedy Trial Act violation.

              The    court's    methodical     application    of     the    relevant

factors was consistent with established Circuit precedent.                       Worthy

argues on appeal that dismissal with prejudice is warranted as a

"severe reminder" of the consequences of contravening the Speedy

Trial Act.          However, "[d]ismissal without prejudice is not a


had testified that he had never known Worthy to use or possess
drugs, even though Worthy's attorney conceded that Worthy had
recently used drugs. The district court appropriately found that,
under the circumstances, Vokey's unknown location, without more,
was "not a sufficient proffer of prejudice."

                                        -11-
toothless sanction," and itself imposes considerable costs on the

government; the other factors of § 3162(a)(2) would be redundant if

deterrence    were   the    overriding   consideration    in   choosing   the

appropriate remedy.        Taylor, 487 U.S. at 342; Barnes, 159 F.3d at

17–18.   We are similarly unpersuaded by Worthy's contention that

delay occasioned by the government should weigh strongly in favor

of dismissal with prejudice.       Worthy grounds this argument in the

government's charging strategy, which resulted primarily in delay

that was excludable under the Speedy Trial Act and therefore was

not among the "facts and circumstances of the case which led to

dismissal."    § 3162(a)(2) (emphasis added).            In any event, the

district court considered the delay caused by the government, and

appropriately discounted it by the seriousness of the offense,

Worthy's own responsibility for the delay, and lack of prejudice.

Accordingly, the court did not abuse its discretion.8




     8
        We also reject Worthy's argument, raised by defense counsel
at oral argument, that the seriousness of the offense does not
merit much weight in the analysis, since all federal crimes are
inherently serious.    Not all federal crimes are created equal;
penalties vary considerably. Compare 18 U.S.C. § 1708 (theft or
receipt of stolen mail subject to maximum penalty of five years),
with 18 U.S.C. §§ 1111, 1512 (murder with intent to prevent witness
from testifying subject to maximum penalty of death or life
imprisonment). We have consistently held that, "[b]y their very
nature, drugs-for-profit offenses are extremely serious." United
States v. Hastings, 847 F.2d 920, 925 (1st Cir. 1988). Indeed,
conspiracy to possess with intent to distribute in excess of 280
grams of cocaine base, one of the offenses of which Worthy was
convicted, carries a maximum penalty of life imprisonment.
21 U.S.C. § 841(b)(1)(A)(iii).

                                    -12-
B.   Sixth Amendment

             Worthy also argues that he was deprived of his Sixth

Amendment right to a speedy trial, and that the district court

erred in concluding otherwise. A court evaluating a constitutional

speedy-trial claim must weigh the following factors: "(1) the

length of the delay, (2) the reasons for the delay, (3) the

defendant's assertion of his right, and (4) prejudice to the

defendant resulting from the delay." United States v. Dowdell, 595

F.3d 50, 60 (1st Cir. 2010) (citing Barker v. Wingo, 407 U.S. 514,

530 (1972)).    We review a district court's decision in this regard

for abuse of discretion.        United States v. Souza, 749 F.3d 74, 81

(1st Cir. 2014).

             The constitutional right to a speedy trial "attaches upon

arrest or indictment, whichever occurs first."                 United States v.

Muñoz-Amado, 182 F.3d 57, 61 (1st Cir. 1999).                  Here, the right

attached on August 6, 2010, the date of arrest.                   Because trial

originally    was   scheduled    for    July,    2012,   the    district   court

determined     that    the   twenty-three–month          period     constituted

presumptively prejudicial delay.9               See Souza, 749 F.3d at 81

("Generally, delay becomes prejudicial around the one-year mark."

(citing Doggett v. United States, 505 U.S. 647, 652 n.1 (1992))).

Worthy's threshold showing of delay was thus sufficient to "trigger



      9
       Although jury empanelment took place on July 2, 2012, the
trial itself did not commence until October 29, 2012.

                                       -13-
speedy trial analysis," Trueber, 238 F.3d at 87, and the district

court considered the other three factors in turn.

             The district court assessed the primary reasons for the

delay — the second factor and "focal inquiry," United States v.

Santiago-Becerril, 130 F.3d 11, 22 (1st Cir. 1997) — as "the number

of defendants, the multiplicity of motions and events . . . , and

the complexity of the case."       Cf. Barker, 407 U.S. at 531 (longer

delay can be tolerated in cases involving complex conspiracy

charges); United States v. Casas, 425 F.3d 23, 33–34 (1st Cir.

2005) (in multi-defendant drug conspiracy case, "reasons for delay"

factor weighed against defendants where delay was attributable to

extensive     pretrial   motion    practice).         Worthy   himself    was

responsible for many of the pretrial motions. Cf. Muñoz-Amado, 182

F.3d at 62 (noting role of defendant's motions in extending trial

delay).     The court also observed that the ensuing delay during the

pendency     of   codefendants'   plea   agreements    resulted   not    from

prosecutorial bad faith, but from the procedures of the clerk's

office.     Cf. Trueber, 238 F.3d at 89 ("There is no showing of 'bad

faith' or 'dilatory purpose' on the part of the government . . . .

On the contrary, this delay is attributable to the district court

clerk's     office.").    Thus,   the    second   factor   weighed   against

Worthy.10


     10
       Worthy argues on appeal that the government's strategy of
bringing successive indictments itself betrays a dilatory and venal
purpose.   However, "superseding indictments setting forth new

                                   -14-
             The district court determined that the third factor, the

defendant's assertion of the right, also cut against Worthy.

Although Worthy previously had challenged the timeliness of the

indictments under the Speedy Trial Act, he first raised the claim

of excessive trial delay at the eleventh hour.             Cf. United States

v. Henson, 945 F.2d 430, 438 (1st Cir. 1991) (defendant did not

demonstrate "adequate alacrity in asserting a request for a speedy

trial," revealing a "lack of enthusiasm for the [speedy trial]

right which [he] now assert[s]" (alteration in original) (internal

quotation marks omitted)).

             Finally, the district court echoed its earlier statutory

analysis of prejudice, reiterating that prejudice in Worthy's case

was limited to pretrial incarceration. The court noted that Worthy

had been incarcerated for just under twenty-three months when he

filed the motion to dismiss, an amount of time not materially

longer than the nineteen-month period of pretrial incarceration

that    we   have   held   "insufficient   [by   itself]    to   establish   a

constitutional level of prejudice."11       Muñoz-Amado, 182 F.3d at 63.


charges or adding new defendants are familiar fare," United States
v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001); as the district court
found, all the indictments in this case added either additional
codefendants or new charges. "We refuse to find bad faith from a
record barren of indications that any in fact existed." United
States v. Colombo, 852 F.2d 19, 25 (1st Cir. 1988).
       11
       As noted, by the time trial actually commenced, the delay
since the date of arrest totaled nearly twenty-seven months. See
supra note 9. This four-month differential does not meaningfully
alter the constitutional analysis.

                                    -15-
The court did not identify any "undue pressures," above and beyond

the "considerable anxiety [that] normally attends the initiation

and pendency of criminal charges," as are necessary to show

prejudice.    United States v. Maxwell, 351 F.3d 35, 41 (1st Cir.

2003) (internal quotation marks omitted).

            We agree with the district court's analysis.   Although

Worthy experienced presumptively prejudicial trial delay,12 "other

counterbalancing factors outweigh this deficiency and prevent

constitutional error."   Casas, 425 F.3d at 34.   There was no abuse

of discretion, particularly in light of the complexity of the case,

Worthy's own responsibility for and acquiescence in the delay, and

the absence of any cognizable prejudice.

                          III.   Conclusion

            For the foregoing reasons, Worthy's convictions are

AFFIRMED.




     12
       Worthy appears eligible to receive credit for time spent
incarcerated while awaiting trial pursuant to 18 U.S.C. § 3585(b).

                                 -16-
