                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 11-2761
                                    _____________

                           UNITED STATES OF AMERICA
                                          v.
                             FRANKLIN THOMPSON,
                                    a/k/a ROCK
                                a/k/a HARD ROCK,

                                  Franklin Thompson,
                                                Appellant
                                    _____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No. 2:07-cr-00303-002)
                       District Judge: Hon. Joy Flowers Conti
                                   _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 10, 2013

    BEFORE: McKEE, Chief Judge, and AMBRO and NYGAARD, Circuit Judges.

                             (Opinion Filed: July 29, 2013)

                                   _______________

                              OPINION OF THE COURT
                                  _______________

McKEE, Chief Judge.

      Franklin Thompson appeals the District Court’s denial of his motion to dismiss the

indictment against him. Thompson argues that undue delay in bringing his case to trial

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violated his rights under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), and the Sixth

Amendment. For the reasons that follow, we will affirm the District Court’s judgment. 1

                                              I.

       As we write only for the parties who are familiar with the facts and procedural

history of this case, we set forth only those facts relevant to our conclusion.

       Thompson argues that the District Court granted an unreasonable number of

extensions of time to file pretrial motions, resulting in undue delay in bringing his case to

trial in violation of the Speedy Trial Act. He focuses on the District Court’s grant of five

extensions requested by Mark Lancaster, Thompson’s second attorney.

       The Speedy Trial Act provides that if “a plea of not guilty is entered, the trial of a

defendant . . . shall commence within seventy days from the filing date (and making

public) of the information or indictment, or from the date the defendant has appeared

before a judicial officer of the court in which such charge is pending, whichever occurs

last.” 18 U.S.C. § 3161(c)(1). Despite the time limits that the Act places on commencing

trial, it also recognizes that criminal cases vary in complexity and there may be valid

reasons for delay. Accordingly, “the Act includes a long and detailed list of periods of

delay that are excluded in computing the time within which trial must start.” Zedner v.

United States, 547 U.S. 489, 497 (2006).

       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction pursuant to 18 U.S.C. § 1291 and 28 U.S.C. § 3742(a). “We
exercise plenary review over the District Court’s application of the Speedy Trial Act,”
United States v. Willaman, 437 F.3d 354, 357 (3d Cir. 2006), and its interpretation of the
Sixth Amendment right to a speedy trial, Douglas v. Cathel, 456 F.3d 403, 417 (3d Cir.
2006).

                                              2
       The Supreme Court has held that time granted to a party to prepare pretrial

motions is not automatically excludable from the Act’s seventy day limit under 18 U.S.C.

§ 3161(h)(1). Bloate v. United States, 559 U.S. 196, 203-04 (2010). However, such time

may be excluded if the court finds that “the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. §

3161(h)(7)(A); Bloate, 559 U.S. at 204.

       Here, as Thompson concedes, the District Court’s orders granting his requests for

an extension of time were accompanied by the requisite “ends of justice” finding. Given

the circumstances of the case, including its complexity, the voluminous records, the

number of defendants, the time needed to prepare a Pre-Plea Investigation Report, and

on-going plea negotiations, the District Court appropriately determined that the ends of

justice served by granting each extension outweighed the interests of the defendant and

the public in a speedy trial.

       Nevertheless, Thompson attempts to make much of the fact that despite all the

extensions, Attorney Lancaster ultimately adopted the initial set of pretrial motions filed

by Thompson’s first attorney. However, Lancaster requested extensions of time because

he was engaged in plea negotiations and/or awaiting a Pre-Plea Investigation Report from

the Probation Office in order to conduct informed negotiations. Moreover, the issue of

Thompson’s status as a career offender was a legitimate and quite understandable

concern to the defense. Indeed, under the plea agreement, the parties agreed, to

Thompson’s benefit, that a departure from the career offender classification guideline

was warranted. Contrary to what Thompson suggests, the fact that Lancaster ultimately

                                             3
adopted the first attorney’s pretrial motions does not necessarily establish that the

extensions of time were unreasonable.2

       Thus, although the delay here was considerable, it was not in violation of the

Speedy Trial Act.

                                             II.

       Thompson also argues that the delay in bringing him to trial violated his Sixth

Amendment right to a speedy trial. In evaluating whether there has been a violation of

the Sixth Amendment right to a speedy trial, we consider and weigh the four factors set

out in Barker v. Wingo, 407 U.S. 514, 530 (1972): the “‘[l]ength of delay, the reason for

the delay, the defendant’s assertion of his right, and prejudice to the defendant.’” Burkett

v. Cunningham, 826 F.2d 1208, 1219 (3d Cir. 1987) (quoting Barker, 407 U.S. at 530).

       Here, the District Court weighed the length of the delay in Thompson’s favor and

also found that Thompson had asserted his right to a speedy trial. However, the court

determined that the reasons for the delay did not count against the government because

       2
          Further, each of the contested extensions of time took place after Dwayne
Thompson filed his pretrial motion to dismiss the indictment on January 13, 2009 and
before the resolution of that motion at the pretrial motions hearing on September 8-9,
2010. This entire time period is excludable as to both Dwayne Thompson, see 18 U.S.C.
§ 3161(h)(1)(D) (excluding “delay resulting from any pretrial motion, from the filing of
the motion through the conclusion of the hearing on, or other prompt disposition of, such
motion”); Henderson v. United States, 476 U.S. 321, 330 (1986) (“Congress intended . . .
to exclude from the Speedy Trial Act’s 70-day limitation all time between the filing of a
motion and the conclusion of the hearing on that motion, whether or not a delay in
holding that hearing is ‘reasonably necessary.’”); and Thompson as a codefendant, see
United States v. Novak, 715 F.2d 810, 814 (3d Cir. 1983) (holding that, pursuant to 18
U.S.C. § 3161(h)(7), “an exclusion applicable to one defendant applies to all
codefendants . . . subject to a reasonableness limitation”) (internal quotation marks and
citations omitted), abrogated on other grounds by United States v. Felton, 811 F.2d 190,
200 (3d Cir. 1987).
                                              4
the government did not instigate any of the delays. The court also found that there was

no evidence that Thompson was prejudiced by the delay. The court thus concluded that

the long delay was not unwarranted given the number of Defendants and complexity of

the case. For substantially the same reasons given by the District Court, we conclude that

there has been no Sixth Amendment speedy trial violation.

                                             III.

         For the reasons we have explained, we will affirm the judgment of the District

Court.




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