United States v. Stanley, 10th Cir. (2010)
United States v. Stanley, 10th Cir. (2010)
Clerk of Court
No. 09-1467
(D.C. No. 1:07-CR-00175-CMA-1)
(D. Colo.)
Defendant-Appellant.
Andre Stanley appeals the district courts denial of his motion to dismiss
the criminal charges against him. He asserted that the delay between his arrest
and trial, during which time he was detained in jail, violated his Sixth
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
On February 25, 2009, he withdrew his pro se status and his standby counsel
entered her appearance as his third attorney of record. 1 In early March of 2009,
Mr. Stanleys counsel sought another competency evaluation and the March trial
date was vacated. On April 9, 2009, the district court ordered the second
competency evaluation, and a hearing was held on June 11, 2009, resulting in a
finding that Mr. Stanley was competent to stand trial.
Trial commenced on July 27, 2009. A jury convicted Mr. Stanley of four
counts of use of a communications facility (a telephone) to facilitate the
commission of a felony drug offense (possession with intent to distribute cocaine
base), and aiding and abetting, pursuant to 21 U.S.C. 843(b), 841(a)(1) and
(b)(1), and 18 U.S.C. 2; and two counts of possession with intent to distribute
more than five grams of cocaine base, and aiding and abetting, pursuant to
21 U.S.C. 841(a)(1) and (b)(1)(B), and 18 U.S.C. 2. The remaining counts
were dismissed. Mr. Stanley was sentenced to 48 months in prison on each count
of use of a communications facility, and 120 months on each count of possession
with intent to distribute, all sentences to run concurrently.
As relevant to this appeal, the district court addressed Mr. Stanleys motion
to dismiss based on his right to a speedy trial at a hearing held on March 10,
2009. 2 After hearing arguments of counsel, the district court clarified that
Mr. Stanley was not asserting that his right to a speedy trial under 18 U.S.C.
3161 was violated. Rather, he based his claim only on the Sixth Amendment.
The court then addressed and balanced the four relevant factors established in
Barker v. Wingo, 407 U.S. 514, 530-33 (1972), concluding that the factors
weighed against finding a Sixth Amendment violation. Accordingly, the district
court denied the motion to dismiss.
ANALYSIS
A. Standard of Review
We review Mr. [Stanley]s claim that the government violated the Sixth
Amendments Speedy Trial Clause de novo. United States v. Seltzer, 595 F.3d
1170, 1175 (10th Cir. 2010).
B. Barker Analysis
The Sixth Amendment to the United States Constitution guarantee[s] that
in all criminal prosecutions, the accused shall enjoy the right to a speedy trial.
Vermont v. Brillon, 129 S. Ct. 1283, 1287 (2009) (quotation and alterations
omitted). The Supreme Court has called this guarantee both an amorphous
right and a fundamental one. Seltzer, 595 F.3d at 1172-73. The Supreme
2
Court has acknowledged that the right to speedy trial is a more vague concept
than other procedural rights. It is, for example, impossible to determine with
precision when the right has been denied. We cannot definitely say how long is
too long in a system where justice is supposed to be swift but deliberate.
Barker, 407 U.S. at 521.
To determine whether a defendants right to a speedy trial has been
violated, the Supreme Court has established a four-part balancing test. The
factors are: (1) the length of the delay, (2) the reason for the delay, (3) the
defendants assertion of his desire for a speedy trial, and (4) whether the delay
prejudiced the defendant. Id. at 530. No single factor is dispositive; [i]nstead,
the factors are related and must be considered together along with other relevant
circumstances. United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir. 2009).
For Sixth Amendment purposes, the speedy trial time period begins when the
defendant is first arrested or charged with committing a federal offense and ends
when his jury trial begins. United States v. Gomez, 67 F.3d 1515, 1521 (10th Cir.
1995). 3
The district court evaluated whether the delay between arrest and the filing
of the motion to dismiss, 22 months, was prejudicial. Our analysis is based on the
27-month delay between arrest and trial.
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Mr. Stanley also complains about the delay resulting from the governments
motion for a competency evaluation. The district court granted the motion for the
evaluation on June 6, 2008. The hearing was held on January 7, 2009, seven
months later. As the district court acknowledged, the evaluation took longer than
the estimate of 45 days to complete, but there was no order setting a deadline.
The government requested the competency evaluation after Mr. Stanley
discharged his attorney and announced his intention to proceed to trial pro se.
Because he was not represented, it fell to the government to request an evaluation
based on Mr. Stanleys behavior, which was also a concern of the district court,
see id. Vol. 4 at 72, so this delay does not weigh against the government. In
addition, the two-month delay required for the later competency evaluation that
was requested by defense counsel weighs against Mr. Stanley.
Mr. Stanley alleges that the substitution of district judges on October 31,
2008, caused delay, but he has not explained how the change of judge delayed his
case. Consequently, this claim does not weigh against the government.
Cf. Gomez, 67 F.3d at 1522 ([D]elay attributable to an overburdened
judge . . . weighs slightly against the government. (citations, quotation, and
alteration omitted)).
Although Mr. Stanleys argument that [no] defense misbehavior or
improper pleading filings caused any delay, Aplt. Br. at 12, may be accurate, this
argument ignores the fact that numerous defense motions were filed on his behalf
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and that those motions, by necessity, resulted in delay. He does not dispute the
governments statement that he filed 17 substantive pretrial motions and, at least
initially, joined in pretrial motions filed by his codefendants. Of course,
Mr. Stanley was free to file any motions necessary for a vigorous defense, but the
resultant delays do not weigh against the government in the speedy trial
balancing. See United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir. 1994)
(holding delays caused by numerous defense pretrial motions and defendants
motion to continue do not weigh against the government).
Finally, we note that Mr. Stanleys refusal to cooperate with his attorneys
and the necessity of substituting lead counsel twiceonce a month before
trialresulted in considerable delay to be weighed against him. See Brillon,
129 S. Ct. at 1292 (holding delays caused by defendants role in necessitating
substitution of defense counsel, once on the eve of trial, are attributed to
defendant). Under these circumstances, we conclude that this Barker factor
weighs against Mr. Stanley.
(3) Mr. Stanleys Assertion of his Desire for a Speedy Trial
This court has stated that if the defendant has asserted his right to a speedy
trial, the assertion is given strong weight in deciding whether there has been a
speedy trial violation. Seltzer, 595 F.3d at 1179; see also Barker, 407 U.S.
at 531-32 (The defendants assertion of his speedy trial right, then, is entitled to
strong evidentiary weight in determining whether the defendant is being deprived
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substitution of counsel numerous times. These actions undercut his requests for a
speedy trial. See United States v. Tranakos, 911 F.2d 1422, 1429 (10th Cir. 1990)
(We are unimpressed by a defendant who moves for dismissal on speedy trial
grounds when his other conduct indicates a contrary desire.).
(4) Prejudice to Mr. Stanley
The individual claiming the Sixth Amendment violation has the burden of
showing prejudice. Seltzer, 595 F.3d at 1179 (quotation omitted). Prejudice is
presumed where there was extreme delay, but where, as here, the delay is not
extreme, the defendant must make a particularized showing of prejudice.
Toombs, 574 F.3d at 1275; see also Seltzer, 595 F.3d at 1180 n.3 (In some cases
of extreme delay, the defendant need not show specific evidence of prejudice.
Generally, the court requires a delay of six years before allowing the delay itself
to constitute prejudice. (citation omitted)). To determine prejudice, we consider
the interests the speedy trial right was designed to protect: (1) prevention of
oppressive pretrial incarceration, (2) minimization of the accuseds anxiety and
concern, and (3) minimization of the possibility that a delay will hinder the
defense. Toombs, 574 F.3d at 1275. Of these interests, the last is the most
important because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system. Barker, 407 U.S. at 532.
We conclude that the first two considerationsoppressive pretrial
incarceration and the defendants anxiety and concernweigh in Mr. Stanleys
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favor. This court has found a two-year delay between arrest and trial to be the
type of prolonged pretrial incarceration [that] is a well-established type of
prejudice that a defendant may rely upon in making a Sixth Amendment speedy
trial claim. Seltzer, 595 F.3d at 1180. The 27-month interval in this case
therefore qualifies, and we agree with the district court that Mr. Stanleys
incarceration caused him anxiety and concern.
Nevertheless, even though the first two considerations weigh in
Mr. Stanleys favor, the third, and most important, does not. Mr. Stanley
contends that the delay hindered his defense because the delays afforded the
prosecution the opportunity to develop its case against him, including finding
additional witnesses. [T]he fact that the government strengthened its case during
the delay [does not] count[] as a form of prejudice. Id. at 1180 n.4. Moreover,
Mr. Stanley does not allege that the prosecution delayed for the purpose of
developing its case against him. See id. He has identified no witness who was
unavailable because of the delay, and he does not assert that any witnesss
memory had faded due to the delay. See Dirden, 38 F.3d at 1138. Accordingly,
this factor weighs against Mr. Stanley.
(5) Balancing
In sum, the Barker factors do not warrant dismissal. First, the 27-month
delay between arrest and trial was sufficiently lengthy to trigger the Barker
analysis. The second factorreason for the delayweighs against Mr. Stanley.
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The third factorassertion of the desire for a speedy trialweighs only slightly in
his favor because his assertions (frequently made pro se, despite his
representation by counsel) were diluted by pretrial motions filed by Mr. Stanley
or his codefendants (from whom he did not seek severance). The fourth and final
factorprejudice to the defendantalso weighs against Mr. Stanley. We therefore
affirm the district courts order denying the motion to dismiss on Sixth
Amendment speedy trial grounds.
C. Motion to File Pro Se Brief
Mr. Stanley has filed a motion for permission to file a pro se supplemental
appellate brief. But he has been represented by counsel throughout this appeal.
Consequently, we invok[e] our policy of addressing on direct appeal only those
issues raised by counsel, and we do not address the issues raised in Mr. Stanleys
proffered pro se brief. United States v. McDermott, 64 F.3d 1448, 1450 n.1
(10th Cir. 1995); accord United States v. Hildreth, 485 F.3d 1120, 1125 (10th Cir.
2007) (denying leave to file pro se appellate briefs while appellant was
represented by counsel) (collecting cases). Accordingly, the motion to file a
pro se supplemental brief is denied. For the same reason, we decline to consider
Mr. Stanleys pro se correspondence complaining about his current counsel of
record and requesting appointment of substitute counsel.
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CONCLUSION
Mr. Stanleys motion to file a pro se supplemental brief is DENIED.
The judgment of the district court is AFFIRMED.
Jerome A. Holmes
Circuit Judge
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