61 F.4th 839
10th Cir.2023Background
- Aaron Keith was added to a large, multi-defendant drug-conspiracy indictment in December 2018 based on FBI wiretap evidence; he was arraigned 12/19/2018 and the STA clock began.
- The district court designated the matter complex and set a February 11, 2020 trial; Keith did not object to that scheduling order or to a subsequent continuance to August 2020 requested by codefendants.
- COVID-19 produced multiple pandemic-driven delays in 2020–2021; the government and court obtained several ends-of-justice continuances and excused an initial jury after a juror COVID-19 infection; trial ultimately began May 11, 2021.
- Keith moved to dismiss for STA and Sixth Amendment speedy-trial violations on January 21, 2021; the district court denied the motion; a jury convicted Keith on both counts and he was sentenced to 480 months.
- On appeal Keith argued (1) that the 29‑month delay violated the Speedy Trial Act and the Sixth Amendment, and (2) that the court erred by not giving a multiple‑conspiracies jury instruction.
Issues
| Issue | Plaintiff's Argument (Keith) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether ends‑of‑justice continuances violated the Speedy Trial Act (18 U.S.C. §3161) | Court’s five continuances (totaling 873 days excluded) were unsupported; motion to dismiss timely preserved all challenges | Continuances were proper: complexity, codefendants’ new counsel, and COVID‑19 justified exclusions; some objections were waived or premature | Affirmed — court did not err. Under Loughrin/Nevarez waiver rules Keith waived challenge to earlier periods; remaining COVID‑related delays were properly excluded and did not exceed 70 unexcluded days |
| Whether the 29‑month delay violated the Sixth Amendment (Barker factors) | Long delay + pretrial incarceration and anxiety require dismissal | Delays mostly justified (complexity, codefendants, neutral COVID‑related reasons); Keith rarely asserted his right; no specific prejudice shown | Affirmed — balancing Barker factors: length favors Keith; reason slightly favors government; Keith’s failure to assert his right strongly favors government; no demonstrated prejudice; no constitutional violation |
| Whether the jury selection on Nov. 4–23, 2020 constituted commencement for STA purposes or was a restart/mistrial | The November excusal should not be treated as excludable time and §3161(e) requires restart | Jury selection (voir dire) commenced trial under Arnold/Martinez; excusal was not a mistrial and those days were excludable | Held that jury selection on Nov. 4 commenced trial and the 19 days to Nov. 23 were excludable; §3161(e) (new‑trial restart) did not apply |
| Whether the court erred by refusing a multiple‑conspiracies jury instruction | Instruction needed to prevent conviction based on participation in a different conspiracy | Given instructions adequately required proof beyond a reasonable doubt of the charged conspiracy | Affirmed — precedent (Evans/Cushing) forecloses reversal; instructions met the test |
Key Cases Cited
- Zedner v. United States, 547 U.S. 489 (Sup. Ct. 2006) (defendant bears burden to timely spot STA violations)
- Barker v. Wingo, 407 U.S. 514 (Sup. Ct. 1972) (four‑factor Sixth Amendment speedy‑trial test)
- United States v. Loughrin, 710 F.3d 1111 (10th Cir. 2013) (waiver rules for STA challenges requiring specific and timely motion)
- United States v. Nevarez, 55 F.4th 1261 (10th Cir. 2022) (motions to dismiss under the STA must challenge existing unexcluded time; premature motions waive later delay)
- United States v. Arnold, 113 F.3d 1146 (10th Cir. 1997) (jury trial "commences" for STA at voir dire/jury selection)
- United States v. Martinez, 749 F.2d 601 (10th Cir. 1984) (selection of jury marks commencement under STA)
- United States v. Toombs, 574 F.3d 1262 (10th Cir. 2009) (ends‑of‑justice continuances are a rarely used tool)
- United States v. Evans, 970 F.2d 663 (10th Cir. 1992) (standards for multiple‑conspiracies instruction)
- United States v. Cushing, 10 F.4th 1055 (10th Cir. 2021) (applying Evans test to refuse reversal for omission of multiple‑conspiracies instruction)
- United States v. Margheim, 770 F.3d 1312 (10th Cir. 2014) (guidance on Barker‑factor analysis and prejudice)