                                           PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                       No. 18-1601
                       ___________

             UNITED STATES OF AMERICA

                             v.

                JAMES BAILEY-SNYDER,
                               Appellant
                     ___________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                (D.C. No. 3-16-cr-00175-001)
      District Judge: Honorable Malachy E. Mannion
                       ___________

               Argued February 6, 2019
  Before: HARDIMAN, SCIRICA, and RENDELL, Circuit
                       Judges.

                    (Filed: May 3, 2019)

Todd K. Hinkley [Argued]
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
      Attorneys for Appellee

Brandon R. Reish [Argued]
31 North 7th Street
Strousburg, PA 18360
      Attorney for Appellant

                       ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge.

        This appeal presents a question of first impression in
this Court: does an inmate’s placement in administrative
segregation while he is under investigation for a new crime
trigger his right to a speedy trial under the Sixth Amendment
or the Speedy Trial Act? We hold it does not, so Bailey-Snyder
was not entitled to dismissal of his complaint. Nor was there
improper vouching or cumulative error in Bailey-Snyder’s
trial. We will affirm.

                               I

        While incarcerated at the Federal Correctional
Institution, Schuylkill, James Bailey-Snyder was moved to
administrative segregation after officers found a seven-inch
homemade plastic weapon (shank) on his person. United States
v. Bailey-Snyder, 2017 WL 6055344, at *1 (M.D. Pa. Dec. 7,
2017). He remained in isolation in the Special Handling Unit
(SHU) pending further investigation by the FBI. Id.



                               2
         Ten months later, Bailey-Snyder was indicted in June
2016 on one count of possession of a prohibited object in
prison. Id.; see 18 U.S.C. § 1791(a)(2), (b)(3). He pleaded not
guilty and filed a number of motions for extension before filing
a motion to dismiss in November 2017. Bailey-Snyder, 2017
WL 6055344, at *1. Focusing on his placement in
administrative segregation as the start of the speedy trial clock,
Bailey-Snyder moved to dismiss his indictment, alleging
violations of his constitutional and statutory rights to a speedy
trial. Id.

       The District Court denied the motion to dismiss without
an evidentiary hearing, reasoning that placement in the SHU
does not constitute an arrest or accusation that would trigger
speedy trial rights. See id. at *2. The case went to trial a month
later.

       The trial focused on the credibility of the two officers
who testified that they found a shank on Bailey-Snyder’s
person when they searched him in a staff bathroom that was
not equipped with cameras. In an effort to undermine the
officers’ credibility, defense counsel cross-examined them
regarding the Bureau of Prisons incentive programs for
recovering contraband. On redirect, the Government elicited
that the programs do not reward individual contraband
recoveries and that one of the officers did not receive any
award for the search of Bailey-Snyder. The other officer had
made similar points during the defense’s cross-examination.
Neither officer discussed the potential consequences they
would face for planting a shank on an inmate and then lying
about it. The Government’s only other witness was the FBI
agent who investigated the case. The defense rested without
offering testimony or evidence.




                                3
        Following the Court’s charge to the jury, both parties
gave closing statements. The Government’s closing and
rebuttal drew two defense objections relevant to this appeal.
During summation, the prosecutor concluded: “I feel as if I’m
not up here long enough. There really isn’t much to say. The
defendant is guilty of his crime and we’re asking you to find
him guilty of it. Thank you, your Honor.” App. 232. The
defense objected on the basis that the prosecutor expressed
personal belief in the defendant’s guilt; the District Court
agreed, so the prosecutor had to make a corrected statement to
the jury.1 The defense’s closing focused on the searching
officers’ “believability.” App. 234. After tying “policy
incentives of the Bureau of Prisons” to the searching officers’
motives, the defense claimed: “[a]nd I wouldn’t buy the home
on the word of either of the two people that were on that stand
if I were you.” App. 234–35. In response to that challenge to
the officers’ credibility, the Government argued in rebuttal:
“[i]t’s conjecture to say that these correctional officers would
put their jobs, their careers, their livelihoods on the line to
possibly plant a shank on this defendant to maybe, maybe, have
a little notch to get a promotion.” App. 237. The defense
objected, claiming the Government was “arguing a fact not in
evidence,” but the Court overruled the objection. App. 238.


       1
         “Ladies and gentlemen, I think near the end of my oral
argument to you I indicated that if you find that the defendant is
guilty you should find him so. I think I may have mumbled
during the beginning of that and said the defendant is guilty, you
should find him guilty. What I really meant to say if you found,
if within your common sense, and when you look at all the
testimony and all the evidence presented, if you find that he’s
guilty you should find him guilty.” App. 233–34.



                                4
      The jury convicted Bailey-Snyder and he was sentenced
to 30 months’ imprisonment to run consecutively to his
underlying offense of conviction. This timely appeal followed.

                               II

      The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).

                               III

       The question whether speedy trial rights attach when a
prisoner is placed in administrative segregation is one of first
impression for our Court. Bailey-Snyder argues that the
District Court should have dismissed his indictment because
the 10 months and 18 days2 between his placement in the SHU
and his indictment violated his right to a speedy trial under the
Sixth Amendment to the Constitution and the Speedy Trial
Act.

                               A

      We begin with Bailey-Snyder’s constitutional
argument. The Sixth Amendment states: “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and

       2
            Although Bailey-Snyder’s brief references
“approximately eleven-month segregation,” e.g., Opening Br.
14, it also concedes we should not count “approximately 75
days” from this period because of “violations committed while
in SHU.” Id. So the time period at issue is closer to eight
months. Bailey-Snyder also does not challenge the time
between the indictment and trial.



                               5
public trial.” U.S. CONST. amend. VI. This guarantee attaches
at a defendant’s arrest or indictment, whichever comes first,
because it does not “require the Government to discover,
investigate, and accuse any person within any particular period
of time.” United States v. Marion, 404 U.S. 307, 313 (1971);
see id. at 321 (declining to extend the constitutional speedy
trial right “to the period prior to arrest”); United States v.
Velazquez, 749 F.3d 161, 183 (3d Cir. 2014).

        We again decline to extend the constitutional speedy
trial right “to the period prior to arrest.” Id. (quoting Marion,
404 U.S. at 321). Unlike police and prosecutors, the Bureau of
Prisons does not operate in a prosecutorial posture when it
decides to place prisoners in administrative segregation. Such
decisions are not dependent on a decision to prosecute. Indeed,
here it preceded any such decision. Prison officials instead
segregate inmates for myriad reasons, including: investigation,
discipline, protection, prevention, and transition. See generally
FEDERAL BUREAU OF PRISONS, PROGRAM STATEMENT
CPD/CSB 5270.10 (effective Aug. 1, 2011) (detailing
objectives and policies of SHUs, including reasons for
placement there), superseded by PROGRAM STATEMENT
CPD/CSB 5270.11 (effective Nov. 23, 2016) (same). Neither
the United States Attorney nor the FBI orders these placements
and they are not typically notified when such placements are
made. For that reason, SHU placements have their own
administrative review and appeals processes. See generally id.
(citing Administrative Remedy Program, 28 C.F.R. § 542,
subpart B).

      Our holding today is consistent with all five courts of
appeals that have considered the issue. See United States v.
Wearing, 837 F.3d 905, 909 (8th Cir. 2016) (per curiam);
United States v. Daniels, 698 F.2d 221, 223 (4th Cir. 1983);



                               6
United States v. Mills, 641 F.2d 785, 787 (9th Cir. 1981);
United States v. Blevins, 593 F.2d 646, 647 (5th Cir. 1979) (per
curiam); United States v. Bambulas, 571 F.2d 525, 527 (10th
Cir. 1978) (per curiam). Our sister courts have persuasively
rebutted the reasons Bailey-Snyder asks us to break ranks with
them. Citing the factors in Marion that inform the speedy trial
right, Bailey-Snyder argues that SHU placement (like an
arrest): restrains the inmate’s liberty, worries friends and
family, prevents the inmate from gathering evidence, and
focuses the prison population’s obloquy on the segregated
inmate. But such placement occurs in “the peculiar context of
a penal institution where the curtailment of liberty is the
general rule, not the exception.” Daniels, 698 F.2d at 223 n.1
(quoting Mills, 641 F.2d at 787). That administrative context
explains why inmates like Bailey-Snyder have an opportunity
to administratively challenge their segregation’s length prior to
arrest or accusation, and why administrative segregation does
not constitute an arrest or public accusation for purposes of the
Sixth Amendment right to a speedy trial.

       In sum, because Bailey-Snyder was not arrested when
he was placed in administrative segregation, his Sixth
Amendment right to a speedy trial did not attach and his
constitutional right was not violated.

                               B

       We turn next to Bailey-Snyder’s statutory argument.
Congress enacted the Speedy Trial Act to give effect to the
Sixth Amendment’s speedy trial guarantee by setting time
limits within which trials must begin. United States v. Rivera
Constr. Co., 863 F.2d 293, 295 (3d Cir. 1988). The Speedy
Trial Act requires the Government to “file an indictment or
information against a defendant ‘within thirty days from the



                               7
date on which such individual was arrested or served with a
summons in connection with such charges.’” United States v.
Oliver, 238 F.3d 471, 473 (3d Cir. 2001) (quoting 18 U.S.C.
§ 3161(b)).

       For the same reasons we rejected Bailey-Snyder’s
constitutional argument, we hold that administrative
segregation is not an arrest for purposes of § 3161(b). In doing
so, we again join every other circuit court of appeals that has
addressed this question. See Wearing, 837 F.3d at 908 (per
curiam); United States v. Harris, 12 F.3d 735, 736 (7th Cir.
1994); United States v. Jackson, 781 F.2d 1114, 1115 (5th Cir.
1986) (per curiam). Bailey-Snyder was already imprisoned for
another offense, so several non-prosecutorial reasons justified
his segregation once he was found in possession of a lethal
weapon. Moreover, he could have challenged his prolonged
SHU placement independent of the Speedy Trial Act. See
Administrative Remedy Program, 28 C.F.R. § 542, subpart B;
PROGRAM STATEMENT 5270.11.

                              IV

        In addition to his legal arguments regarding his speedy
trial rights, Bailey-Snyder claims he is entitled to a new trial
because of improper comments by the prosecutor during his
summation. Bailey-Snyder claims the prosecutor’s comments
about the credibility of the Government’s two key witnesses
constituted improper vouching.

       Three things are required to reverse a conviction for
improper vouching: (1) the prosecution assured the jury of its
witnesses’ credibility, (2) the assurance came from fact(s) not
in the record, and (3) the assurance prejudiced the defendant.
See United States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998);




                               8
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)
(en banc). A statement that an “officer would be risking his
career to lie under oath” may or may not constitute improper
vouching, depending on the context. United States v.
Weatherly, 525 F.3d 265, 271 (3d Cir. 2008).

        In Weatherly, the prosecutor posed this rhetorical
question to the jury: “Why would Officer[s] . . . risk their 32–
34 years of experience on the police force over this case?” 525
F.3d at 271. We held that question was not improper for three
reasons. See id. at 271–73. First, evidence in the record showed
that discipline generally affects officers’ careers, which
allowed the jury to conclude that officers could risk their
careers by committing misconduct. That defeated an element
of improper vouching: fact(s) not of record. See id. at 271–72.
Second, the prosecutor’s question reasonably responded to the
defense’s own speculative attacks on the officers’ credibility,
which excused any impropriety. See id. at 272. And third, even
if improper, the defendant was not prejudiced because the
brief, isolated comment was responsive to defense attacks and
because the judge had “thoroughly instructed” the jury that
counsel’s statements were not evidence. Id. at 272–73. We also
noted that arguing an officer “had too much to lose to commit
perjury merely to convict th[e] defendant” could be “a common
sense conclusion” the prosecution may properly ask the jury to
reach without evidence in the record to support it. Id. at 271
n.7 (quoting United States v. Bethancourt, 65 F.3d 1074, 1082
(3d Cir. 1995) (McKee, J., dissenting)). In other words, such a
statement may not be improper vouching at all.

        In this appeal, the Government’s comment was similar
to the rhetorical question in Weatherly. The prosecutor said:
“It’s conjecture to say that these correctional officers would put
their jobs, their careers, their livelihoods on the line to possibly



                                 9
plant a shank on this defendant to maybe, maybe, have a little
notch to get a promotion.” App. 237. We hold that this common
sense conclusion was not improper vouching, even without
explicit evidence in the record to support it. Although neither
officer testified that they risked their jobs if they planted a
shank on Bailey-Snyder, it should be obvious that falsifying
evidence, filing dishonest sworn reports, and lying in open
court should (and would) jeopardize one’s career as a
correctional officer. The Government’s comment was “brief
and appropriate,” Weatherly, 525 F.3d at 272, and exactly “the
kind of effective and logical response to an attack on an agent’s
credibility that has been made in countless numbers of closing
arguments, and will be made in countless more.” Id. at 271 n.7
(quoting Bethancourt, 65 F.3d at 1082 (McKee, J.,
dissenting)). Although there was no admitted evidence of
discipline affecting these officers’ careers—and although the
Government’s case depended entirely on the officers’
testimony—the Government briefly responded to the defense’s
credibility attacks with a proper, common sense conclusion.

        Also like in Weatherly, the challenged statement here
does not involve the prosecutor “invok[ing] his own oath of
office to defend the [officers’] credibility,” which we have held
to be improper. Id. (citing United States v. Pungitore, 910 F.2d
1084, 1125 (3d Cir. 1990)). In Pungitore, the prosecutor’s
improper vouching took the form of claiming “the U.S.
Attorneys and law enforcement could not have behaved as
unscrupulously as defense counsel alleged they did without
violating their oaths of office and jeopardizing their careers.”
910 F.2d at 1125. Here, the prosecutor did not invoke his oath
of office. Indeed, the Government here did not “vouch” in the
strictest sense of the word: it did not swear to or make promises
about the officers’ credibility. Instead, the Government




                               10
supported its witnesses’ credibility by pointing out obvious
consequences they would face for lying after the defense
insinuated they had a motive to do so. The Government need
not have elicited testimony or admitted evidence that planting
evidence and then lying about it under oath would harm their
careers before saying so in rebuttal.

       We also note that, even if the Government’s comment
were improper vouching, it still would be excusable here as “a
reasonable response to allegations of perjury by [the defense.]”
Weatherly, 525 F.3d at 272. As in Weatherly, Bailey-Snyder’s
single theory was that the officers who discovered the shank
had a motive (the prison’s incentive policies) and opportunity
to fabricate doing so. See id. The defense’s closing focused on
those motives and incentives to find shanks, even though
nothing in the record established they affected these officers.
So the defense speculated about the officers’ motives, and the
Government’s brief, logical response appropriately
characterized that as “conjecture.” App. 237; see Weatherly,
525 F.3d at 272.

                               V

         Lastly, we address cumulative error. To reverse a
conviction for cumulative error requires more than one error.
See United States v. Hill, 976 F.2d 132, 145 (3d Cir. 1992).
And this is a demanding standard that warrants reversal only
when the combined errors “so infected the jury’s deliberations
that they had a substantial influence on the outcome of the
trial.” Id.

      Because the Government’s comment about its
witnesses’ credibility was proper, there is no error to
compound with the Government’s comment on Bailey-




                              11
Snyder’s guilt. Even if there were unexcused improper
vouching, the Government’s brief comment about Bailey-
Snyder’s guilt was stricken by the Court, and immediately
corrected by the Government itself. See supra Note 1.
Furthermore, the Court had instructed the jury before closing
that lawyers’ statements, including those made in closing, are
not evidence. These facts leave us with little reason to believe
that the Government’s statements improperly influenced the
jury at all, let alone substantially. Thus, there was no
cumulative error.

                        *      *      *

       The District Court did not err in denying Bailey-
Snyder’s motion to dismiss the indictment for a speedy trial
violation. Nor was there improper vouching or cumulative
error at trial. We will therefore affirm the judgment of
conviction and sentence.




                              12
