FILED

United States Court of Appeals

Tenth Circuit

September 17, 2010

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
ANDRE STANLEY, a/k/a Sincere,
a/k/a Cere,

No. 09-1467
(D.C. No. 1:07-CR-00175-CMA-1)
(D. Colo.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.

Amendment right to a speedy trial. We exercise jurisdiction under 28 U.S.C.

1291 and affirm.
BACKGROUND
After a grand jury issued an indictment charging him with various drug and
firearms crimes, Mr. Stanley was arrested on April 26, 2007. The grand jury later
issued three superceding indictments, the final one on March 12, 2008. The
superseding indictments added charges against Mr. Stanley and also added two
codefendants. The codefendants filed motions to suppress, which caused
considerable pretrial delay. Mr. Stanley also filed pretrial motions.
A few days after his arrest, an attorney was appointed to represent
Mr. Stanley, but she withdrew on May 29, 2007. The next month, another
attorney was appointed. This second attorney filed two motions to withdraw and
was eventually permitted to withdraw on May 23, 2008. Mr. Stanley proposed to
proceed pro se at trial, which was then set to begin on June 23, 2008. That trial
was postponed when the government requested to have Mr. Stanleys mental
competency evaluated. On June 6, 2008, the district court granted the request.
Upon completion of the evaluation, the court held a hearing on January 7, 2009,
and determined that Mr. Stanley was competent both to stand trial and to
represent himself. Trial was scheduled to commence on March 16, 2009.
Proceeding pro se, on February 24, 2009, Mr. Stanley filed a motion to
dismiss based on his right to a speedy trial, which the district court denied.
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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,

In addition to lead counsel, the district court appointed an attorney to

represent Mr. Stanley while his competency was being evaluated.
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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

At a hearing held April 24, 2008, a different district judge denied

Mr. Stanleys then-pending pro se motion for a speedy trial, despite the fact
that he was represented by counsel, holding that the statutory time period had not
run and noting that the case was complex and discovery had been extensive.
R. Vol. 3 at 265, 267.
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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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(1) Length of the Delay

The length of delay is a threshold factor. Only if the delay is
presumptively prejudicial need we inquire into the remaining Barker factors. Id.
The government concedes that the length of the delay, 27 months, was
presumptively prejudicial and we agree. See United States v. Batie, 433 F.3d
1287, 1290 (10th Cir. 2006) (Delays approaching one year generally satisfy the
requirement of presumptive prejudice.). Therefore, we proceed to the remaining
factors.
(2) Reason for the Delay
Mr. Stanley contends that some of the delay was attributable to the
governments decision to indict two codefendants in two separate superseding
indictments: Tyrus McClain on August 23, 2007, and Henry Morgan on
November 28, 2007. The codefendants then filed motions challenging the wiretap
evidence and the search of the vehicle in which drugs were found. Mr. Stanley
initially joined these motions, but withdrew from all motions on December 27,
2007, to remove obstacles from setting a trial date. But his attorney stated in
open court on January 31, 2008, that Mr. Stanley did not seek severance from his
codefendants. R. Vol. 3 at 138. Consequently, because he did not request
severance from his codefendants, his trial could not be set until the codefendants
motions were resolved.

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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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of the right.). In contrast, a defendant who requests continuances scarcely

demonstrate[s] a desire for a speedier process. Batie, 433 F.3d at 1292.
Mr. Stanleys situation falls in the middle ground between wanting to delay the
trial for strategic reasons and unequivocally and repeatedly requesting a trial.
Compare Barker, 407 U.S. at 535-36 (defendant delayed, hoping that codefendant
would be acquitted in separate trial, resulting in codefendants refusal to
incriminate himself by testifying against defendant), with Seltzer, 595 F.3d
at 1179 (defendant brought prompt and repeated requests which put both the
district court and the government on notice that [he] wished to proceed to a
prompt resolution of his case).
Mr. Stanley first stated his desire for a speedy trial on December 26, 2007.
R. Vol. I at 396 (rearraignment on first superseding indictment). He reiterated
that desire at a motions hearing held on January 31, 2008, id. Vol. 3 at 137, and,
even though represented by counsel, submitted several pro se written documents
indicating his desire for a speedy trial, id. Vol. I at 423-24, 430 (February 15,
2008); id. at 491-92 (March 20, 2008); id. at 500 (April 22, 2008). On
February 24, 2009, he filed the motion underlying this appeal seeking dismissal
on speedy trial grounds. Id. at 814-17, 846-50.
We conclude that this factor weighs only slightly in Mr. Stanleys favor.
It does not weigh heavily in his favor because his requests were countered by the
fact that his attorneys filed pretrial motions on his behalf and he required
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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.

Entered for the Court

Jerome A. Holmes
Circuit Judge

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