                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0321p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 06-1556
          v.
                                                    ,
                                                     >
 CLARENCE HOWARD BROWN,                             -
                           Defendant-Appellant. -
                                                   N
                    Appeal from the United States District Court
                   for the Eastern District of Michigan at Detroit.
                  No. 05-80101—Arthur J. Tarnow, District Judge.
                                           Argued: July 25, 2007
                                  Decided and Filed: August 16, 2007
            Before: COLE and GILMAN, Circuit Judges; MARBLEY, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Chokwe Lumumba, c/o CURTIS WILLIAMS, Detroit, Michigan, for Appellant.
Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee. ON BRIEF: Chokwe Lumumba, c/o CURTIS WILLIAMS, Detroit, Michigan, for
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Clarence Howard Brown appeals
his federal conviction for kidnapping, transportation of a minor with intent to engage in criminal
sexual activity, and sex trafficking of children. Brown contends that pre-arrest delay violated his
due-process rights and that post-arrest delay before trial violated his speedy-trial rights. Because
Brown is not entitled to relief, we AFFIRM.




        *
          The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.


                                                        1
No. 06-1556           United States v. Brown                                                  Page 2


                                       I. BACKGROUND
        In October 2001, the victim, thirteen-year-old Tiffany Bender, met nineteen-year-old Mack
Atkins at a high-school football game in Adrian, Michigan. Tiffany lived with her grandmother
because her mother was a drug addict and unable to care for her. On November 9, 2001, Tiffany
told her grandmother that she was going to spend the night with her girlfriend, but she went out with
Atkins. Atkins picked Tiffany up at her house, and they spent the night at Atkins’s father’s house.
The next day, they went to Atkins’s aunt’s house where Tiffany met Atkins’s cousin, twenty-eight-
year-old Defendant-Appellant Brown. Later, Brown and Atkins attempted to drive Tiffany home
in Brown’s car, but it developed mechanical problems, so they went to Brown’s sister’s house in
Ypsilanti, Michigan, where they spent the night. There, Tiffany met Brown’s girlfriend, Holly
Hollis, and her six-year-old son.
        The following day, Tiffany accompanied Brown, Atkins, Hollis, and her son to Barkeyville,
Pennsylvania. Over the next few days they stayed at motels, and Hollis would leave for a few hours
at a time. Tiffany assumed, based on Hollis’s appearance, that Hollis engaged in prostitution at
these times. On November 13, the group spent the night at Brown’s brother’s house. Tiffany then
unsuccessfully tried to reach her mother by phone. She again spent the night at Brown’s brother’s
house.
        The next day, Hollis told Tiffany that Brown would take Tiffany home. Brown, Tiffany,
Hollis and Hollis’s son—but not Atkins—later got into Brown’s car, and Tiffany thought she was
going home. When she noticed that they had been driving for too long, she asked Brown if he knew
where he was going, and he told her to “shut up” and that she “was his bitch.” (Joint Appendix
(“JA”) 304.) Rather than drive Tiffany home, Brown drove to a Motel 6 in Fort Wayne, Indiana.
Hollis later left the motel to engage in prostitution at a nearby truck stop. Meanwhile, Brown loaded
a gun in front of Tiffany in the motel room, and, that night, he raped her.
        The next day, when Tiffany asked why Brown made Hollis prostitute herself, Brown hit
Tiffany and told her she “was going to be doing it soon.” (JA 307.) Hollis helped Tiffany dress and
put on makeup and accompanied her to the truck stop. Hollis told Tiffany that Tiffany was in
“whore training,” and Hollis instructed her on the “rules” of prostitution and what to charge for
sexual favors. (JA 309–310, 327.) Hollis borrowed a trucker’s CB radio to “advertise” herself. (JA
309.) That night, with the customers’ permission, Hollis had Tiffany watch her perform sexual
activities with eleven different “dates.” (JA 310.)
         The following day, they followed the same routine, except that Brown directed Tiffany to
engage in prostitution as well. Brown gave Tiffany condoms to use. Tiffany’s first “date,” a truck
driver, refused to allow Hollis to observe. The driver then held a knife to Tiffany and threatened to
perform anal sex on her. When she cried and said she was only fourteen years old, he threw her out
of his truck, and she went back to the motel. When Hollis returned, Brown hit her and yelled at her
for leaving Tiffany alone. That night, Brown raped Tiffany again.
        The next day, Hollis and Tiffany returned to the truck stop. That night, Tiffany engaged in
prostitution with about ten men. When she returned to the motel, she gave all the money she earned
to Brown. Hollis explained to Tiffany that Hollis had to earn more than Tiffany because Hollis was
the “top whore” and Tiffany was the “bottom whore.” (JA 319.) They both engaged in prostitution
activity for about a week, from approximately November 21 through November 27, 2001. On one
occasion, Hollis and Tiffany told the motel desk clerk about their business and the prices they would
charge. The desk clerk noted that when Tiffany was in Brown’s presence she appeared terrified, and
Tiffany told the clerk that she feared she might not make it home.
No. 06-1556           United States v. Brown                                                   Page 3


        On November 27, a female truck driver, Peggy Jones, let Hollis and Tiffany into her truck
to use the CB radio. When Hollis eventually left the truck, Tiffany started crying and told Jones that
she wanted to go home. Jones let Tiffany ride in her truck, and on December 1, 2001, they arrived
at the New Jersey border and called Tiffany’s mother. Jones stayed with Tiffany until the police
arrived. The police brought Tiffany to the police station and then to a safe house for children, where
she stayed until her mother arrived and eventually drove her home to Michigan.
        Around December 14, 2001, Tiffany provided Michigan police with a fourteen-page, hand-
written statement describing these events. On January 11, 2002, she gave an oral statement to the
FBI. Three days later Tiffany gave the police a paper bag with twelve condoms that Brown gave
her.
       Approximately three years passed before Brown was arrested in January 2005. At that time,
Brown admitted that Atkins was his cousin and that Hollis had been Brown’s girlfriend, but Brown
claimed that he had not seen Hollis since late 2001. Brown also denied knowing Tiffany. At first,
he denied ever traveling with the group to Pennsylvania, but he later admitted staying in
Pennsylvania with Atkins, Hollis, her son, and a “young white female.” (JA 558–63.)
       On February 2, 2005, a grand jury returned an indictment charging Brown and Hollis with
kidnapping, in violation of 18 U.S.C. §§ 1201(a) & (g), and transportation of a minor with intent to
engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). On April 20, 2005, the grand
jury added a third count against both defendants of sex trafficking of children, in violation of 18
U.S.C. § 1591.
       Brown’s trial commenced on November 8, 2005. The jury convicted him on all three counts.
On April 3, 2006, the district court sentenced Brown to concurrent 240-month terms on counts one
and three, and a sixty-month consecutive sentence on count two. Brown timely appealed.
                                         II. DISCUSSION
        Brown contends that his rights were violated by the delay between both (1) the crime and
his arrest, and (2) his arrest and trial. The Sixth Amendment provides that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” U.S. Const. amend
VI. In United States v. Marion, 404 U.S. 307, 321 (1971), the Supreme Court held that the Sixth
Amendment’s speedy-trial guarantee, which explicitly refers to “the accused,” does not apply until
an individual is arrested or indicted. Before that time, due-process rights protect against oppressive
delay. Id. at 324. We address first Brown’s claim regarding pre-arrest delay and then address his
claim regarding post-arrest delay.
A.     Pre-Arrest Delay
       Brown first contends that the three-year delay between the crime and his arrest violated his
due-process rights. We review de novo this claim, which raises a mixed question of law and fact.
United States v. Sanders, 452 F.3d 572, 576 (6th Cir. 2007) (citing Williams v. Coyle, 260 F.3d 684,
706 (6th Cir. 2001)).
         As a threshold matter, Brown has waived this argument. Federal Rules of Criminal
Procedure 12(b)(3)(A) & (B) provide that motions alleging a defect in instituting the prosecution
or in the indictment “must be raised before trial.” Rule 12(e) provides that failure to do so
constitutes a waiver of those objections. Fed. R. Crim. P. 12(e). This Court “strictly applies Rule
12(b), and has repeatedly held that failure to raise 12(b) motions in a timely fashion precludes
appellate review.” United States v. Oldfield, 859 F.2d 392, 396 (6th Cir. 1988). Brown never
moved to dismiss the indictment based on delay. His argument on appeal is therefore waived. See
id.; see also United States v. Pinson, 1 F. App’x 426, 429 (6th Cir. 2001) (“As [the appellant] moved
No. 06-1556           United States v. Brown                                                     Page 4


to dismiss based on pre-indictment delay after the trial began, appellate review of the matter is
waived.”).
        In any event, this argument also lacks merit. After holding that the Sixth Amendment does
not apply to pre-arrest delay, the Marion Court explained that “‘the applicable statute of
limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.’” 404
U.S. at 322 (quoting United States v. Ewell, 383 U.S. 116, 122 (1966) (alteration in original)).
Brown does not allege that the three-year delay before charges were brought against him violates
the statute of limitations, which has a ten-year duration. See 18 U.S.C. § 3283. The Marion Court
noted, however, “that the statute of limitations does not fully define [a person’s] rights with respect
to the events occurring prior to indictment.” 404 U.S. at 324. The Court explained that due-process
protections “would require dismissal of the indictment if it were shown at trial that the pre-
indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that
the delay was an intentional device to gain tactical advantage over the accused.” Id.
       “Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient
element of a due process claim, and that the due process inquiry must consider the reasons for the
delay as well as the prejudice to the accused.” United States v. Lovasco, 431 U.S. 783, 790 (1977).
We have interpreted Marion and Lovasco to hold that both conditions (improper reasons for delay
and prejudice) are necessary for a due-process violation. Sanders, 452 F.3d at 581 n.6. When
assessing whether these conditions are met, we are “to determine only whether the action
complained of . . . violates those fundamental conceptions of justice [that] lie at the base of our civil
and political institutions, and [that] define the community’s sense of fair play and decency.”
Lovasco, 431 U.S. at 790 (internal citations and quotation marks omitted); Sanders, 452 F.3d at 580.
Brown fails to meet either condition.
        First, Brown offers no proof that the delay was a deliberate ploy by the Government to gain
a tactical advantage. Brown merely states, without support, that the delay demonstrates that the
authorities’ “motive was to neutralize [Brown’s] ability to build a defense.” (Brown’s Br. 18.)
        Second, Brown fails to show that the delay prejudiced him so gravely that his due-process
rights were violated. He says that Atkins, who died before trial and “possibly before [Brown’s]
arrest,” “would have been in a position to describe the relationship[,] if any existed[,] between Mr.
Brown and . . . Tiffany . . . .” (Id. 18.) The record does not reveal when Atkins died. But even
assuming that Atkins would have provided information regarding the relationship between Brown
and Tiffany, that information would not have significantly aided Brown’s defense because Atkins
was not present when Brown took Tiffany in his car and therefore was not present for any of the
events underlying the charges. Cf. United States v. Rogers, 118 F.3d 466, 476 (6th Cir. 1997)
(holding that defendant failed to show prejudice where witness died before trial and it was “unlikely
that his testimony would have affected the outcome of the trial”).
        Brown additionally alleges that the delay prejudiced him by causing him to forget certain
events, and this “was used to his disadvantage at trial to make it appear that [he] was trying to hide
important facts when he was interviewed by the FBI.” (Brown’s Br. 18.) The Government responds
that this point is irrelevant because Brown chose not to testify. (Gov’t Br. 17.) But a defendant’s
exercising of his right not to testify should not automatically eliminate any argument that a delay-
induced lack of memory prejudiced his defense—especially where that delay arose from improper
motives of the Government. Yet Brown’s contention here nonetheless fails because his inability to
recall certain facts in the interview did not affect the ultimate outcome of the trial.
        In sum, Brown fails to establish a due-process violation for his pre-arrest delay.
No. 06-1556            United States v. Brown                                                      Page 5


B.      Post-Arrest Delay
       Brown also challenges the post-arrest delay, alleging violations of his speedy-trial rights
under (1) the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–74, and (2) the Sixth Amendment.
        1.      Speedy-Trial Act
        Brown contends that the approximately nine-month delay between his indictment on
February 3, 2005, and his trial, which began on November 8, 2005, violated the Speedy Trial Act.
The Act generally requires a federal criminal trial to begin within seventy days after a defendant is
charged or makes an initial appearance, 18 U.S.C. § 3161(c)(1), but the Act contains a detailed
scheme under which certain specified periods of delay are not counted. Zedner v. United States, __
U.S. __, 126 S. Ct. 1976, 1981–1982 (2006). “If a trial does not begin on time, the defendant may
move, before the start of trial or the entry of a guilty plea, to dismiss the charges, and if a meritorious
and timely motion to dismiss is filed, the district court must dismiss the charges, though it may
choose whether to dismiss with or without prejudice.” Id. at 1984. “In making that choice, the court
must take into account, among other things, ‘the seriousness of the offense; the facts and
circumstances of the case [that] led to the dismissal; and the impact of a reprosecution on the
administration of [the Act] and on the administration of justice.’” Id. (quoting § 3162(a)(2)) (second
alteration in original).
         The Act also provides that “[f]ailure of the defendant to move for dismissal prior to
trial . . . shall constitute a wavier of the right to dismissal under this section.” 18 U.S.C.
§ 3162(a)(2); United States v. White, 985 F.2d 271, 274–75 (6th Cir. 1993) (“By failing to raise this
[Speedy Trial Act] issue until the appeal, White waived the right to make this argument.”). Brown
never raised this claim before trial. Brown notes only that, under Zedner, a defendant “may not
prospectively waive the application of the speedy trial act.” (Brown’s Br. 19 (emphasis added).)
But Zedner explains that “there is no reason to think that Congress wanted to treat prospective and
retrospective waivers [such as Brown’s] similarly” under the Act. 126 S. Ct. at 1986. The Court
explicitly stated that “a defendant whose trial does not begin on time is deemed to have waived the
right to move for dismissal of the information or indictment if he or she does not file that motion
prior to trial or entry of a guilty plea.” Id. at 1981. Brown’s claim is therefore waived.
        2.      Sixth Amendment
       Brown next contends that the nearly ten-month delay between his arrest on January 13, 2005,
and his November 2005 trial violates the Sixth Amendment’s speedy-trial guarantee. Unlike the
Speedy Trial Act, which protects against delay from the time of indictment or appearance, the Sixth
Amendment protects against delay from the time of arrest when it precedes the indictment or
appearance. See Dillingham v. United States, 423 U.S. 64, 65 (1975) (measuring delay for Sixth
Amendment claim from time of arrest and noting that “[i]nvocation of the speedy trial provision . . .
need not await indictment, information, or other formal charge”).
        In determining whether a defendant’s Sixth Amendment right to a speedy trial has been
violated, we review questions of law de novo and questions of fact under the clearly-erroneous
standard. United States v. Jackson, 473 F.3d 660, 664 (6th Cir. 2007) (internal quotation marks and
citation omitted). The remedy for a Sixth Amendment speedy-trial violation is dismissal with
prejudice. Id. (citation omitted).
         The Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), established a four-factor
test for evaluating a Sixth Amendment speedy-trial claim: (1) length of delay; (2) the reason for the
delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. None of these
four factors is “a necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial. Rather, they are related factors and must be considered together with such other
No. 06-1556           United States v. Brown                                                   Page 6


circumstances as may be relevant.” Id. at 533. Applying these factors here shows that Brown’s
speedy-trial rights were not violated.
               a.      Length of Delay
        The first factor, length of the delay, is a triggering mechanism: “Simply to trigger a speedy
trial analysis, an accused must allege that the interval between accusation and trial has crossed the
threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, he cannot
complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case
with customary promptness.” Doggett v. United States, 505 U.S. 647, 651–52 (1992).
        The nearly ten-month delay here is likely right at the line to trigger an analysis of the
remaining factors. “This Court has found that a delay is presumptively prejudicial when it
approaches one year.” United States v. Gardner, __ F.3d __, 2007 U.S. App. LEXIS 12203, at *42
(6th Cir. May 25, 2007) (citing United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003)). And
although we have indicated that an eight-month delay would suffice to meet this first factor, see,
e.g., Jackson, 473 F.3d at 665 (quoting law-review article cited in Doggett that states “[t]here seems
general agreement that any delay of eight months or longer is ‘presumptively prejudicial’”), we have
also held that a delay of approximately nine months was not presumptively prejudicial, at least
where the matter involved “multiple defendants and pre-trial motions,” see Gardner, 2007 U.S. App.
LEXIS 12203, at *42. Here, we will assume without deciding that the nearly ten-month delay is
presumptively prejudicial and address the remaining factors, which, as discussed below, outweigh
this presumption.
               b.      Reason for Delay
        “Closely related to length of delay is the reason the government assigns to justify the delay.”
Barker, 407 U.S. at 531. Different weights should be assigned to different reasons. Id. “A
deliberate attempt to delay the trial . . . to hamper the defense should be weighted heavily against
the government. A more neutral reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered since the ultimate responsibility for
such circumstances must rest with the government rather than with the defendant.” Id. A valid
reason, “such as a missing witness, should serve to justify appropriate delay.” Id.
        Moreover, a court should consider whether some of the delay is attributable to the defendant.
See, e.g., United States v. Bass, 460 F.3d 830, 837 (6th Cir. 2006) (“[I]t is apparent that the
government was not any more to blame than [the defendant] for this delay . . . .”). Although the
Government here suggests that delay attributable to Brown should be considered under the first
factor (by simply subtracting from the total length of the delay)—an approach we have taken before,
see, e.g., Norris v. Schotten, 146 F.3d 314, 327 (6th Cir. 1998)—commentators have pointed out that
this approach is “inconsistent with Barker,” where the Supreme Court simply looked to the total
period between arrest and trial to assess the first, length-of-delay factor. See 2 David Rudstein et
al., Criminal Constitutional Law ¶ 11.01[1] & n.88 (2006) (citing Norris as an example of the
improper approach). The proper analysis, which we recently employed in Bass and employ here,
is to consider delay attributable to the defendant under the second, reason-for-delay factor.
         Here, the reasons for the delay weigh against finding a Sixth Amendment violation. First,
the charges were complex, involving multiple defendants and including kidnapping, transportation
of a minor with the intent to engage in criminal sexual activity, and sex trafficking of children. Cf.
Bass, 460 F.3d at 836 (“Delays due to the complexity of the case and the large number of defendants
support a finding that no Sixth Amendment violation occurred.”). And, as the Government noted
at oral argument, the investigation here involved corroborating Tiffany’s description of the events
through witnesses in multiple states. Second, although the burden of excusing delay rests with the
No. 06-1556            United States v. Brown                                                      Page 7


Government, see Rudstein et al., supra, ¶11.01[1] & n.155 (citing Barker, 407 U.S. at 531), “it
cannot be presumed that the government acted with an improper motive,” id. ¶11.01[1], and there
is no indication that the delay was motivated by the Government’s bad faith or attempt to gain
tactical advantage. Third, much of the delay here is attributable to Brown. For example, in May
2005 Brown sought new counsel and stated in open court that he had no objection to the delay
required by the “extra time” new counsel would need to prepare for trial. (JA 99.) Brown then
obtained a stipulation to adjourn a status conference from July 7, 2005, to July 26, 2005, so that he
could have another new counsel substituted as his attorney on that later date. In short, the reasons
for delay do not weigh toward a conclusion that the delay violated Brown’s rights.
                c.      Defendant’s Assertion of His Right
        “The defendant’s assertion of his speedy trial right . . . is entitled to strong evidentiary weight
in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531–32.
The Barker Court “emphasize[d] that failure to assert the right will make it difficult for a defendant
to prove that he was denied a speedy trial.” Id. at 532. As discussed above, Brown never asserted
his speedy-trial rights before this appeal. This factor therefore weighs heavily toward a conclusion
that no Sixth Amendment violation occurred. Indeed, in Barker, the Supreme Court concluded that
the more than five-year delay between arrest and trial there did not amount to a constitutional
violation in part because of the lack of prejudice to the defendant but, “[m]ore important than the
absence of serious prejudice, [was] . . . that Barker did not want a speedy trial.” Id. at 534
(emphasis added). Similarly, Brown—who waited four years less than Barker for trial—also was
apparently unconcerned with how speedily it arrived.
                d.      Prejudice
       The fourth factor, prejudice to the defendant, “should be assessed in light of the interests of
defendants [that] the speedy trial right was designed to protect.” Id. at 532. The Supreme Court in
Barker identified three of these interests: (1) to prevent oppressive pretrial incarceration; (2) to
minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will
be impaired. Id. “Of these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Id.
         Whatever prejudice exists here is minimal. First, no prejudice arose from Brown’s pretrial
incarceration because even if he had not been detained in this case, he would have been in state
custody for two felony armed-robbery cases pending in Mississippi and a felonious-assault case in
Michigan. Second, any anxiety or concern Brown experienced here for ten months would fall short
of that deemed insufficiently prejudicial in Barker, where the defendant waited more than five years
from arrest to trial. Barker, 407 U.S. at 533–34. Third, as discussed above with regard to Brown’s
due-process claim, Brown’s contentions regarding Atkins’s death and his own memory lapses fall
short of establishing the sort of prejudice that triggers Sixth Amendment protection. Cf. Bass, 460
F.3d at 838 (“Bass . . . does not state what testimony any missing witnesses could have provided,
which witnesses’ memories were affected, or how his own memory problems affected his defense.”).
                                         *               *                *
        On balance, the Barker factors show that Brown’s speedy-trial rights were not violated.
Indeed, as discussed, he never even asserted those rights at trial. Accordingly, no Sixth Amendment
violation occurred.
                                         III. CONCLUSION
        For the foregoing reasons, we AFFIRM the judgment of the district court.
