                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4547


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ENERVA W. TROTMAN, a/k/a Charles Carlos Clark,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:91-cr-00092-H-1)


Argued:   September 23, 2010                 Decided:   January 4, 2011


Before NIEMEYER and KEENAN, Circuit Judges, and Jerome B.
FRIEDMAN, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished
opinion.    Judge Keenan wrote the opinion, in which Judge
Niemeyer and Senior Judge Friedman joined.


ARGUED: Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant.    Jennifer P. May-
Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Anne M. Hayes, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
KEENAN, Circuit Judge:

      This appeal in a criminal case presents three issues for

our   consideration:      1)    whether       the   district       court        erred    in

admitting      into   evidence      certain     laboratory         reports        in     the

absence of testimony from the chemist who prepared the reports;

2) whether the defendant’s rights under the Speedy Trial Act, 18

U.S.C.    §§     3161-3175,     were    violated;        and       3)     whether       the

defendant’s      Sixth    Amendment      right      to   a     speedy          trial    was

violated.

      A   jury     convicted        Enerva     Trotman       for        conspiracy        to

distribute crack cocaine (count one), in violation of 21 U.S.C.

§ 846, for distribution of cocaine (counts two, three, four,

six, and seven), in violation of 21 U.S.C. § 841(a)(1), and for

using or carrying a firearm during and in relation to a drug-

trafficking      crime   (count     five),    in    violation      of     18    U.S.C.    §

924(c)(1). 1     The district court sentenced Trotman to 420 months’

imprisonment.

      We hold that the district court erred in admitting into

evidence the laboratory reports at issue and, therefore, vacate

Trotman’s convictions on counts one, six, and seven.                            We affirm

Trotman’s      convictions     on   counts     two,   three,       four,       and     five,

      1
       In counts five, six, and seven, Trotman also was charged
with aiding and abetting the offenses, in violation of 18 U.S.C.
§ 2.



                                          3
because the chemist who prepared the reports relevant to those

counts testified at the trial.                 We further hold that Trotman was

not tried in violation of his rights under the Speedy Trial Act

or in violation of his Sixth Amendment right to a speedy trial.

We remand the convictions on all counts for resentencing.



                                              I.

       On   November      5,    1991,    in    addition       to    the       conspiracy       and

firearm        charges,       Trotman    was       indicted        on        five    counts     of

distributing          crack     cocaine.           The     dates        of     those     alleged

distribution offenses were March 15, March 22, March 29, April

9,    and   May    3,    1991.          Police     officers        in    New        Bern,     North

Carolina, arrested Trotman on these charges on November 6, 1991.

In a statement to police officers immediately after his arrest,

Trotman stated that in the previous two years, he had obtained

from Malcolm Glasgow at least five ounces of cocaine base per

week.       Trotman       agreed   to    assist      the     police          in     apprehending

Glasgow, but then escaped from custody.

       Trotman was rearrested on February 27, 2006, in New Jersey,

and     made    his     initial    appearance         on    the     indictment           in    the

district court on March 9, 2006.                   After Trotman made his initial

appearance,       the     district       court      granted        several          motions     to

continue his arraignment and trial.



                                               4
        In    July    2008,   Trotman    filed   a   motion   to   dismiss   for

violation of his rights under the Speedy Trial Act and the Sixth

Amendment.           On September 30, 2008, the district court denied

Trotman’s motion to dismiss for violation of the Speedy Trial

Act,     without      addressing     Trotman’s   Sixth   Amendment   argument.

When Trotman renewed his motion to dismiss, the district court

upheld its previous ruling relating to the Act, and concluded

that Trotman’s Sixth Amendment right to a speedy trial had not

been not violated.

       Jury selection for Trotman’s trial began on January 26,

2009.        At trial, Officer Donald Hines testified about each of

his undercover transactions with Trotman.                When describing the

April 9, 1991 and May 3, 1991 transactions referenced in counts

six and seven of the indictment, Officer Hines testified that he

told Trotman that Hines wanted to purchase crack cocaine, and

that Trotman replied that he would get the crack cocaine from

Glasgow.        Hines also stated that crack cocaine has “a semi-

solid, rock-like form,” and that, based on his experience and

training, he concluded that the substances he purchased from

Trotman on those two days appeared to be crack cocaine.                  Hines

identified two exhibits offered by the government as containing

the items he purchased from Trotman on April 9, 1991 and May 3,

1991,    respectively.         The    district   court   admitted    these   two

exhibits into evidence.

                                          5
     Two chemists testified at trial.                        The first chemist, Neil

Evans,     testified      that       he    performed       chemical   analyses       on   the

substances that were purchased by Officer Hines in March 1991.

Evans    confirmed     that      the       substances       were   crack    cocaine,      and

authenticated       the    laboratory          reports       received      into     evidence

reflecting these results.

     A     second   chemist,          Manuel       Febo,    testified      regarding      the

laboratory reports involving substances purchased from Trotman

on April 9, 1991 and May 3, 1991.                     Febo acknowledged that he did

not perform the tests or prepare the laboratory reports related

to   the    substances         purchased        from       Trotman    on    those    dates.

Nevertheless, over Trotman’s objection, Febo was permitted to

testify that based on his review of those laboratory reports and

notes      completed      by     a        different     chemist,      and    Febo’s       own

observation of the substances at issue, the substances obtained

from Trotman on those dates were crack cocaine weighing 26.8

grams and 21.1 grams.            Trotman also objected to the admission of

the laboratory reports, but the district court overruled the

objection and admitted those reports into evidence.

        The jury convicted Trotman on all counts.                       Using a special

verdict form, the jury found that the drug conspiracy involved

“[a]t least 50 grams” of cocaine base.                         With regard to counts

six and seven, the jury found that Trotman distributed “[a]t



                                               6
least    5   grams”    of    cocaine     base.           Trotman    appeals   from    the

district court’s judgment.



                                           II.

                                             A.

      We     first    consider       whether      the    district    court    erred   in

admitting into evidence the laboratory analysis reports for the

substances seized on April 9, 1991 and May 3, 1991, in the

absence of testimony by the chemist who prepared those reports.

In addressing this alleged Confrontation Clause violation, we

apply a de novo standard of review.                      United States v. Abu Ali,

528 F.3d 210, 253 (4th Cir. 2008).

      The Confrontation Clause of the Sixth Amendment provides in

relevant part that, “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses

against      him.”         U.S.   Const.       amend.      VI.       In   Crawford    v.

Washington, 541 U.S. 36, 59 (2004), the Supreme Court held that

the   Confrontation         Clause    bars     the      admission   of    “testimonial”

statements if the declarant does not testify at trial, unless

the declarant is unavailable and the defendant has had a prior

opportunity to cross-examine the declarant.                        Although the Court

in Crawford declined to set out a comprehensive definition of

the term “testimonial,” the Court indicated that some statements

always       would    be     categorized          as     “testimonial,”       including

                                             7
“statements that declarants would reasonably expect to be used

prosecutorially.”           Id. at 51.

       In Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct.

2527,    2532      (2009),      the     Supreme     Court    applied       its   holding    in

Crawford        to     preclude          the      admission         into     evidence       of

“certificates         of    analysis”       prepared      by      laboratory     scientists

describing the results of forensic tests performed on certain

seized      substances.           The     certificates         at   issue    reported      the

composition, quality, and net weight of the substances analyzed.

Id.         The Court held that these certificates, which the Court

described       as    “quite      plainly       affidavits,”         were    “testimonial”

because they were made under oath and under circumstances that

would lead an objective witness to conclude that they would be

used at a later trial.             Id.

       In    the     present      case,    the      challenged       laboratory     reports

likewise      were    “testimonial”            because    they      were    prepared     under

circumstances that would lead an objective witness reasonably to

conclude      that    the       reports    would     be     used    against      Trotman    at

trial.       We reach this conclusion because the laboratory reports

were    conducted          to   test     the    weight      and     composition     of     the

substances seized from Trotman on April 9, 1991 and May 3, 1991.

Thus, given the government’s failure to show that the preparing

chemist was unavailable and that Trotman had a prior opportunity

to cross-examine the chemist, the admission of the laboratory

                                                8
analysis       reports      violated        Trotman’s       Sixth      Amendment         right    of

confrontation.          See Melendez-Diaz, ___ U.S. at ___, 129 S. Ct.

at 2532.

       Because        the     district         court        erred      in      admitting         the

laboratory reports purporting to analyze the substances seized

from Trotman on April 9, 1991 and May 3, 1991, we next consider

the issue whether that error was harmless.                                See Abu Ali, 528

F.3d     at     255-56        (citing        Fed.      R.     Crim.       P.      52(a)).          A

constitutional         error      is        harmless     if      it    appears       “beyond      a

reasonable doubt that the error complained of did not contribute

to the verdict obtained.”                    Chapman v. California, 386 U.S. 18,

24 (1967).          The government bears the burden of proving that the

admission       of    these    laboratory           reports      did     not      contribute      to

Trotman’s       convictions       on    the     April       9,    1991      and    May    3,    1991

charges.       See Abu Ali, 528 F.3d at 256.

       In conducting our harmless error analysis, we exclude the

two    laboratory       reports        at    issue     from      our     consideration,          and

review        the     remaining        evidence        to        determine         whether       the

government has met its burden under Chapman.                                   The government

contends       that    this     remaining           evidence       established           that    the

substances Trotman sold on April 9, 1991 and May 3, 1991 were

crack cocaine.         We disagree with the government’s argument.

       The remaining evidence showed that Trotman had bought and

sold crack cocaine in the past, that the substances he sold on

                                                9
April 9, 1991 and May 3, 1991 looked like crack cocaine, and

that he had agreed to procure crack cocaine for Officer Hines to

purchase   on    those   two   occasions.      Notably   missing   from      the

government’s evidence, however, is any proof that the substances

sold on those two occasions actually were crack cocaine.                 While

some of the government’s evidence was probative of the issue

whether    the   drugs    were   crack      cocaine,   that   evidence       was

insufficient to find “beyond a reasonable doubt that the error

[in admitting the laboratory reports] did not contribute to the

verdict obtained.” 2       Chapman, 386 U.S. at 24.           We therefore
                                                                         3
vacate Trotman’s convictions on counts one, six, and seven.

                                     B.

     We next decide whether the district court erred in denying

Trotman’s motion to dismiss based on an alleged violation of the

Speedy Trial Act (the Act).         Trotman asserts that the district



     2
       The government argues that defense counsel admitted during
trial that there was no dispute regarding the identity of the
substances sold to Officer Hines.       However, defense counsel
never stipulated or conceded that the type of substances sold
was crack cocaine.    Instead, defense counsel merely identified
testimony already in the record bearing on the issue whether the
substances sold were crack cocaine.
     3
       The government also relied on the laboratory reports to
establish the quantity of drugs Trotman sold on April 9, 1999
and May 3, 1999.       Because we held that admission of the
laboratory reports was not harmless error, we need not address
whether admission of the laboratory reports contributed to the
jury’s findings concerning the drug quantities.



                                     10
court improperly extended his trial date beyond the seventy-day

limitation imposed by the Act without making the required “ends-

of-justice” findings.           Trotman also argues that the district

court improperly excluded from its speedy trial calculation a

continuance for a period of time that the government requested

to locate witnesses, in violation of 18 U.S.C. § 3161(h)(7)(C).

     In   considering        these    arguments,      we     review    the   district

court’s legal conclusions de novo and its factual findings for

clear error.     United States v. Kellam, 568 F.3d 125, 132 (4th

Cir. 2009).     The Act requires that a criminal trial begin within

seventy days of the filing of an information or indictment, or

of the defendant’s initial appearance, whichever occurs later.

18 U.S.C. § 3161(c)(1).          To provide courts some flexibility in

scheduling trials, the Act provides that certain delays may be

excluded from the seventy-day limitation.                    As relevant here, §

3161(h)(7)(A)     of     the    Act        excludes    from      the    seventy-day

limitation    delays    in    which    a    court    finds    “that    the   ends   of

justice served by granting [a] continuance outweigh the public’s

and defendant’s interests in a speedy trial.”                    Zedner v. United

States, 547 U.S. 489, 498-99 (2006).

     The Act lists several factors that a judge must consider

when conducting the “ends-of-justice” assessment required by §

3161(h)(7)(A).       These factors include consideration whether a

defendant    needs     reasonable      time     to    obtain    counsel,     whether

                                           11
counsel needs additional time for effective preparation of the

case, and whether delay is necessary to ensure continuity of

counsel.      18 U.S.C. § 3161(h)(7)(B)(iv).            The Act specifies that

a continuance will not be granted because of a “lack of diligent

preparation or failure to obtain available witnesses on the part

of the attorney for the Government.”             Id. § 3161(h)(7)(C).

      For a delay to be excludable under § 3161(h)(7)(A) from the

seventy-day limitation, a district court must explain, “either

orally or in writing, its reasons for finding” that the ends of

justice     served       by   granting     the   continuance       outweigh     the

interests of the public and the defendant.                Id. § 3161(h)(7)(A).

A district court is required to state its findings on the record

by   the   time    it    rules   on   a   defendant’s     motion    to    dismiss.

Zedner, 547 U.S. at 506-07 (citing § 3162(a)).                   It also must be

“clear from the record that the court conducted the mandatory

balancing      contemporaneously          with    the     granting        of    the

continuance.”        United States v. Henry, 538 F.3d 300, 304 (4th

Cir. 2008).       If a district court fails to state its findings on

the record, then the delay is not excludable under the Act.

Zedner, 547 U.S. at 507.

      Here,    the      government    concedes   that    fifty     days   of   non-

excludable time elapsed between March 15, 2006 and May 3, 2006.

Further, neither party challenges the excludable time associated

with the various pretrial motions, including the government’s

                                          12
motion for detention and the defendant’s motions to dismiss and

motion in limine.         See 18 U.S.C. § 3161(h)(1)(D).

      We conclude that the remaining days at issue are excludable

under § 3161(h)(7)(A) as continuances satisfying the “ends-of-

justice”      assessment.        In    a    September    30,     2008    order,   the

district court addressed eight of Trotman’s continuance motions

and stated “ends-of-justice findings” relating to its decision

to   grant    each   of    the   eight      motions.      (J.A.    170-74).       The

district court explained that Trotman successively had dismissed

five attorneys, and that these continuance motions were granted

to allow Trotman “time to change counsel.”                     The district court

noted that it also granted one of these continuance requests

because of family health concerns expressed by Trotman.

      In     the   same    order,     the    district    court    made    “ends-of-

justice” findings relating to three continuance motions made by

the government in January 2007.                  The district court granted the

government’s first two motions, requested on January 4, 2007 and

January 8, 2007, in light of Trotman’s abrupt withdrawal of his

tentative plea agreement, the age of the events in the case, and

the time required to locate and prepare the necessary witnesses. 4


      4
        The district court also entertained the government’s
motion for a continuance at a hearing on January 3, 2007.    We
need not address this motion, however, because the one-day
interval involved does not affect our speedy trial analysis.



                                            13
       We     find      no    merit    in    Trotman’s      argument       that    the   delay

associated with the government’s continuance motions of January

4, 2007, and of January 8, 2007, is not excludable under §

3161(h)(7)(C), because the district court’s reasons included the

government’s need to locate and prepare certain witnesses for

trial.        Under that section, a delay is not excludable for “lack

of diligent preparation or failure to obtain available witnesses

on the part of the attorney for the Government.”                                18 U.S.C. §

3161(h)(7)(C).               Although the district court, in part, granted

these       two    continuance         motions       because       of    the    government’s

problems locating certain witnesses, the district court gave two

other        independent        reasons      for     granting       these      continuances,

namely,       Trotman’s        abrupt       withdrawal      from    his     tentative       plea

agreement and the age of the events in question.                               Even assuming

that the government’s inability to locate available witnesses

was not a sufficient reason by itself, the other reasons cited

by     the     district        court    independently          supported        the   court’s

decision granting these two continuance requests.

       In the September 30, 2008 order, the district court also

addressed         its   decision       to    grant    the   government’s          continuance

request of January 17, 2007.                   The district court stated that it

granted this continuance request because of specific conflicts

that    would       have      rendered      unavailable      key        witnesses     for   the

prosecution.            Contrary to Trotman’s argument, this reason did

                                               14
not fall within the prohibition of 18 U.S.C. § 3161(h)(7)(C),

because the unavailability of an identified witness during a

given    time     period      is   a   reason       completely        different     from    the

government’s failure to obtain an available witness to prosecute

the case.

        Although the district court’s order of September 30, 2008

failed to address the government’s motions to continue filed on

June 2, 2008 and December 8, 2008, the delay resulting from the

granting of these two motions to continue also was excludable

under the Act.          The period of delay associated with granting the

government’s continuance motion of June 2, 2008 fully overlaps

the    period     of    delay      that   we   already        have    excluded      based    on

Trotman’s       eighth       continuance.             The     district     court     granted

Trotman’s       eighth       continuance       motion       on   March     13,    2008,     and

continued the case until the court’s July 2008 term.                                Based on

our conclusion that the delay in time between March 13, 2008 and

July    2008    was     excluded       under    the     Act,     we    need   not    address

whether     the    district         court      made     the      appropriate       “ends-of-

justice” findings when ruling on the June 2, 2008 motion.

       In its December 8, 2008 motion, the government stated that

counsel    both        for   the    government        and    for     the   defendant       were

scheduled to be on vacation during the week of December 29,

2008.      Additionally, many of the government’s witnesses were

scheduled to be on vacation during that time.                           When the district

                                               15
court ruled on the motion, it found “[u]pon the unopposed motion

of the Government and for good cause shown,” the trial should be

continued.       The district court specifically excluded this period

of delay from the Act.           Although the district court order could

have provided more precise reasons, the order fully incorporated

the reasons stated by counsel in the government’s motion.                       Thus,

we   do   not    find    a   violation   of     the   Speedy   Trial    Act    in   the

district court’s decision to grant this continuance request.                         We

therefore       affirm    the   district    court’s     dismissal      of   Trotman’s

motion to dismiss alleging violations of the Act.

                                           C.

      Finally, Trotman argues that his Sixth Amendment right to a

speedy trial was violated.           We review the district court’s legal

conclusions on this issue de novo and its factual findings for

clear error.       United States v. Woolfolk, 399 F.3d 590, 594, 597-

98 (4th Cir. 2005).

      The    Sixth       Amendment   guarantees        that    “in   all      criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial.”          U.S. Const. amend. VI.         To establish a violation

of this Sixth Amendment guarantee, a defendant must first show

that the Amendment’s protections have been triggered by “arrest,

indictment, or other official accusation.”                     Doggett v. United

States, 505 U.S. 647, 655 (1992).                 Next, a defendant must show

that the four factors identified in Barker v. Wingo, 407 U.S.

                                           16
514 (1972), when balanced, weigh in his favor.                                United States v.

Thomas, 55 F.3d 144, 148 (4th Cir. 1995).                                These factors are

(1) the length of the delay in bringing the defendant to trial;

(2)    the    reason       for     the    delay,           (3)    the   defendant’s         timely

assertion of his right to a speedy trial, and (4) the extent of

resulting prejudice to the defendant.                            Barker, 407 U.S. at 530;

United States v. Grimmond, 137 F.3d 823, 827 (4th Cir. 1998).

       The first Barker factor acts as a gate-keeping requirement.

Grimmond, 137 F.3d at 827.                    If the delay in bringing a defendant

to    trial   is    not        “presumptively             prejudicial,”       then   the     Sixth

Amendment     inquiry          ends.      Id.        at    827-28.       Courts      often    have

concluded       that       a     delay        over        one    year    is     “presumptively

prejudicial.”          See,           e.g.,    Doggett,          505    U.S.    at    652     n.1;

Woolfolk, 399 F.3d at 597; Grimmond, 137 F.3d at 828.

       In the present case, Trotman’s Sixth Amendment right to a

speedy trial attached when he was charged in the indictment on

November 5, 1991.              See Jones v. Angelone, 94 F.3d 900, 906 n.6

(4th Cir. 1996).               The seventeen-year delay between the date of

the indictment and the date of Trotman’s trial is sufficient to

trigger the Sixth Amendment inquiry.                             See Doggett, 505 U.S. at

652.

       Next, we consider the reasons for the seventeen-year delay.

The    record      shows       that    after     agreeing         to    cooperate     with    the

police, Trotman fled and remained a fugitive from 1991 until

                                                 17
2006.    Once he ultimately was rearrested, he caused additional

delays by seeking new counsel five times and by filing eight

continuance motions.            Because Trotman has been responsible for

most of the seventeen-year delay in his case, the second Barker

factor weighs in favor of the government.

       The     third   Barker    factor     also   weighs     in    favor       of   the

government.         Trotman waited until sixteen years after he was

indicted, with only six months remaining before his trial, to

assert his Sixth Amendment right.                  See Grimmond, 137 F.3d at

829.

       Lastly, Trotman has not identified any true prejudice that

he suffered as a result of the delay in bringing his case to

trial.        Trotman claims that he was prejudiced because he was

housed    in    a   jail   location    that     precluded     him    from        regular

contact with his attorney, and because the government had time

to    secure    additional      witnesses      during   the   delay.            However,

neither of these assertions is relevant to the prejudice inquiry

mandated by Barker.

       This prejudice inquiry focuses on “the interests [that] . .

. the speedy trial right was designed to protect.”                          Grimmond,

137    F.3d    at   829.     These    interests     include:       “(1)    preventing

oppressive      pretrial   incarceration,        (2)    minimizing        the   anxiety

and concern of the accused, and (3) limiting the possibility

that the defense will be impaired.”              Id.

                                          18
     Trotman           was     incarcerated       for    several     months       after      his

initial appearance, in part because he already had escaped from

federal custody.               He has not established that his defense was

impaired by the delay due to any limitation in his ability to

consult     with        his      counsel,       to   the        unavailability       of      any

witnesses,        to    any     lack     of   recall     by      witnesses,    or       to   any

evidence lost.               Therefore, the prejudice factor in Barker does

not weigh in Trotman’s favor.                    Because the four Barker factors

do   not    weigh        in     Trotman’s       favor,     we    hold   that      his     Sixth

Amendment right to a speedy trial was not violated, and that the

district court did not err in denying his motion to dismiss on

this basis.



                                              III.

     For     these           reasons,    we     vacate     Trotman’s       convictions        on

counts     one,    six,        and   seven,     affirm     Trotman’s       convictions        on

counts     two,    three,        four,    and    five,     and    remand    the     case     for

resentencing.

                                                                        AFFIRMED IN PART,
                                                                         VACATED IN PART,
                                                                             AND REMANDED




                                                19
