UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON KEITH, a/k/a AK, a/k/a Keke, Defendant - Appellant.
No. 21-6158
United States Court of Appeals, Tenth Circuit
March 7, 2023
PUBLISH
Gail K. Johnson of Johnson & Klein, PLLC, Boulder, Colorado, for Defendant-Appellant.
Steven W. Creager, Assistant United States Attorney (Robert J. Troester, United States Attorney; David McCrary, Assistant United States Attorney; and Nick M. Coffey, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
In our legal system, criminal defendants have a right to a speedy trial—they cannot languish in pretrial detention. The Sixth Amendment and the
Exercising jurisdiction under
BACKGROUND
I. Factual Background
Keith joined the Irish Mob Gang (IMG), a prison gang, while serving an Oklahoma state sentence. Like many gangs, the IMG was in the drug trade. From their prison cells, Keith and his IMG confederates coordinated large drug transactions outside of prison. Using contraband cell phones, members acted as intermediaries between drug suppliers and buyers on the outside. In November 2018, during its ongoing investigation into the IMG, the FBI wiretapped an IMG leader’s cell phone. Many conversations recorded on the wiretap implicated Keith in the gang’s drug dealing. Keith’s role in the conspiracy was nearing its end.
II. Procedural Background
In October 2018, in the first of three indictments, a federal grand jury charged 39 IMG members and affiliates with drug conspiracy and other drug and money-laundering offenses. Keith wasn’t among the indicted defendants.
On December 12, 2018, the grand jury returned a superseding indictment, this time naming 55 defendants, including Keith. Keith was charged with drug conspiracy and possessing methamphetamine with intent to distribute. He was arraigned on December 19, at which time the STA clock began. According to the prior scheduling order, each newly indicted defendant had two weeks after being arraigned to object to the proposed schedule. “A failure to object,” cautioned the court, “will be deemed a Defendant’s acknowledgment and approval of [the complex-case designation] and the scheduling deadlines.” Keith didn’t object, tacitly consenting to the February 2020 trial date.
A. Pretrial Delays
A year passed without incident. But on January 6, 2020, with only six defendants remaining for trial, two of Keith’s codefendants moved to continue the trial to August 2020. Citing their newly appointed counsels’ need to review discovery and prepare for trial, the two defendants informed the court that “[a]ll parties have conferred and are in agreement with this requested continuance.” Suppl. R. at 678–79. Keith didn’t object, so the court made new
Though the parties didn’t know it yet, a global pandemic was looming. Once COVID-19 made an August 2020 trial date uncertain, the government and the four remaining defendants submitted a joint status report. There, the parties detailed
- that the defendants would be ready for trial in August but wanted it to be conducted “as ‘normally’ as possible“;
- that the U.S. Marshals Service might encounter problems serving defense subpoenas;
- that there could be logistical challenges, such as the need for a Spanish-language interpreter for one defendant;
- that COVID-19-related prison restrictions made it difficult for the government to prepare its several in-custody witnesses;
- that the government proposed three separate trials to maintain proper social distancing, but that Keith and a codefendant objected to being tried separately; and
- that the government didn’t think an August trial was possible.
A week after filing the status report, the government obtained a second superseding indictment against seven defendants, including the four from the status report. The second superseding indictment charged Keith with one count of drug conspiracy in violation of
Notes
On November 4,2 the parties selected a twelve-member jury and four alternates. But the court did not swear in the jury. Several Deputy U.S. Marshals had been exposed to COVID-19, which hindered transport of the many in-custody witnesses, so the court told the jury to return on November 9 to be sworn. When two jurors noted that they had conflicts on November 9, the court pushed the trial date to November 10. At last, everything was in line for trial.
On January 5, 2021, the Chief District Judge issued General Order 21-1, suspending jury trials through February. The next day, concerned about these and future delays, the district court sua sponte continued Keith’s trial again after entering new ends-of-justice findings. “Given all of the logistical issues
On January 21, Keith and Gunn jointly moved to dismiss the indictment on statutory and constitutional speedy-trial grounds. Despite the pandemic, they now took a view that “life goes on“—so too should the courts. Arguing that the court could mitigate COVID-19 concerns by “implementing recommended safety protocols,” Keith and Gunn contested the need for any of the three ends-of-justice continuances. And as for the Sixth Amendment, they maintained that all four Barker factors supported dismissal. The court denied their motion in a fifteen-page order.
B. Trial and Sentencing
On May 11, 2021, a jury trial finally began. Over five days, the government called 25 witnesses, including several former IMG members. Keith rested without presenting evidence or calling witnesses. Before closing arguments, Keith objected to the proposed jury instructions for not including a multiple-conspiracies instruction. Citing United States v. Davis, 995 F.3d 1161 (10th Cir. 2021), the court overruled his objection.
In the end, the jury convicted Keith on both counts. From a total offense level 43 and a criminal-history category VI, Keith faced an advisory guideline of life imprisonment. Varying downward, the court sentenced him to 480 months’ imprisonment. Keith’s timely appeal followed.
Keith raises two appellate issues: (1) whether the 29-month interval in bringing the case to trial violated his statutory or constitutional speedy-trial rights and (2) whether the district court abused its discretion by not giving a multiple-conspiracies jury instruction. He acknowledges that the latter issue is foreclosed by our precedent and raises it only to preserve it. We discuss these issues in turn.
I. Speedy-Trial Rights
Keith claims that the district court’s five continuances of his trial date violated his speedy-trial rights under the STA and the Sixth Amendment. Our standard of review for the denial of a speedy-trial motion to dismiss is twofold. We review STA issues (including a district court’s decision to grant an ends-of-justice continuance) for abuse of discretion, and we review constitutional speedy-trial issues de novo. United States v. Banks, 761 F.3d 1163, 1174–75 (10th Cir. 2014) (citations omitted). Within the STA abuse-of-discretion framework, we review the district court’s compliance with the STA’s legal requirements de novo and its factual findings for clear error. Id. (citing United States v. Toombs, 574 F.3d 1262, 1268 (10th Cir. 2009)).
A. Speedy Trial Act
Keith argues that the district court’s ends-of-justice continuances violated the STA.
From December 19, 2018, to May 11, 2021, the court approved five ends-of-justice continuances, divisible into five periods of delay. And a sixth period occurred in November 2020 between the first jury panel’s selection and its excusal. The court excluded all 873 calendar days between arraignment and trial from Keith’s 70-day STA clock. We provide a chart below as a handy reference for the timeline, and we then discuss each period individually.
| Period of Delay | District-Court Explanation for Delay | Challenged in Keith‘s Motion to Dismiss? |
|---|---|---|
| First continuance 12/19/2018 – 02/11/2020 418 days | Need for preparation in this complex case with many defendants and vast discovery | No. |
| Second continuance 02/11/2020 – 08/11/2020 182 days | Two codefendants had new attorneys who needed time to prepare for trial | No. |
| Third continuance 08/11/2020 – 11/04/2020 85 days | Logistical and safety challenges because of COVID-19 and more time for plea negotiations | Yes. |
| First jury panel selected 11/04/2020 – 11/23/2020 19 days | Trial put on hold because a juror contracted COVID-19 | Yes. |
| Fourth continuance 11/23/2020 – 01/12/2021 50 days | W.D. Okla. General Order 20-26 (no jury trials in December) | Yes. |
| Fifth continuance 01/12/2021 – 05/11/2021 119 days | W.D. Okla. General Order 21-1 (no jury trials through February) | Yes. |
First, after determining that the case’s complexity warranted an ends-of-justice finding, the court in a scheduling order set trial for February 11, 2020. Though invited to object to this schedule, Keith did not.
Second, in January 2020, two codefendants moved to continue the trial because their newly appointed counsel needed time to prepare for trial. Keith agreed to the continuance. The court made an ends-of-justice finding and reset trial for August 11, 2020.
Third, in July 2020, the government moved to continue the trial because of COVID-19’s effect on trial preparations and the need for extra time for plea negotiations. Keith didn’t object. In fact, he rejected the government’s offer to
Fourth, after a juror on the first panel contracted COVID-19, requiring that the trial be delayed until at least November 30, the government moved to excuse the jury. Keith objected without giving a reason. The court made an ends-of-justice finding and continued the trial to January 12, 2021.
Fifth, after the Western District of Oklahoma by general order suspended jury trials in January and February, the court made a sua sponte ends-of-justice finding and continued the trial to May 11, 2021. Only then—on January 21—did Keith move to dismiss on speedy-trial grounds, which the court denied. Trial began on May 11, 2021.
1. Waiver
On appeal, Keith attacks all five ends-of-justice continuances as improper and unsupported by the court’s ends-of-justice findings. Before we address his arguments, we examine two key precedents to determine the proper scope of our review, considering whether Keith waived challenges to any of the five continuances.
a. Under United States v. Loughrin, Keith waived his challenges to the first and second continuances.
The STA has a waiver provision: If the defendant fails to “move for dismissal prior to trial,” he waives any argument for dismissal under the STA.
Keith’s motion to dismiss (filed January 21, 2021) did not challenge either the first continuance after the court’s complex-case designation (covering the time between his arraignment on December 19, 2018, and February 11, 2020) or the second continuance related to his codefendants’ new counsel (covering the time between February 11, 2020, and August 11, 2020). As for the first continuance, his motion to dismiss accepted the validity of the district court’s scheduling order. And as for the second continuance, his motion to dismiss acknowledged that this delay was “necessitated” by the codefendants’ entry of new counsel and that “it was in the best interests of all the Defendants not to oppose the requested continuance.” So that left Keith’s motion to dismiss as contesting just the third, fourth, and fifth continuances, all of which related to COVID-19. That means he conceded as excludable time the interval between his initial appearance and August 11, 2020—the trial date set after the second
Yet on appeal, Keith asks us to find STA violations from the first and second continuances, too. We hold that Keith has waived any objection to these two periods of delay. See Loughrin, 710 F.3d at 1121. Because of this waiver, we eliminate from consideration the time from Keith’s arraignment on December 19, 2018, to August 11, 2020—600 days.4 See id. (“Accordingly, the [waived time period] at issue here do[es] not count toward Loughrin’s seventy-day tally.“). That leaves us with 85 calendar days during the third delay, 50 days during the fourth delay, and 119 days during the fifth delay.5
Another key case limits Keith’s speedy-trial arguments for unexcludable time, this time looking forward—not backward—from his motion to dismiss. After Keith’s appeal was fully briefed, we decided United States v. Nevarez, 55 F.4th 1261 (10th Cir. 2022). There, the district court continued Felipe Nevarez’s criminal case several times for ends-of-justice reasons even before COVID-19 led to more ends-of-justice continuances. See id. at 1262. The parties and the court agreed that the deadline to begin trial without an STA violation was February 18, 2021. See id. at 1265. In other words, the 71st day would be February 19.6 See id. At a status conference on February 17, Nevarez’s counsel orally objected to any trial being beyond the STA’s 70-day mark. Id. at 1263–64 (“Mr. Nevarez objects to his trial being beyond speedy trial, which, of course, is tomorrow.“). The district court noted the oral objection. Id. at 1264. Soon after, the government moved to continue the trial and to exclude time under the STA, and the court continued the trial to April 2021. See id. at 1262, 1265.
[m]eeting the requirements of
§ 3162(a)(2) is not simply a question of presenting a “motion” in a form that this Court deems satisfactory, it is also a question of presenting it at the right time. Premature motions will not suffice. An actual violation of the [STA] must exist at the time the motion is made. After all, “a motion for dismissal under the [STA] is effective only for periods of time which antedate its filing.” When a defendant moves to dismiss an indictment based on an [STA] violation that has yet to occur, that motion cannot succeed and “‘the right to challenge any subsequent delay is waived’ unless the defendant brings a new motion to dismiss.”
Id. at 1264–65 (cleaned up) (quoting United States v. Sherer, 770 F.3d 407, 411 (6th Cir. 2014)).
Nevarez waived a challenge to the latest continuance because to reach 71 days, his motion needed to incorporate unexcluded time in the future. To prevail on an STA-based motion to dismiss, Nevarez had to “challenge the continuance on day seventy-one (or later), a course [he] never took.” Id. at 1265 (quoting Sherer, 770 F.3d at 411). So Nevarez’s motion challenging future delay was “premature” by two days, and by not moving to dismiss later, when that delay had happened, he waived his STA challenge for that interval. Id.
But Keith’s arguments about past unexcludable time are still fair game. In his motion to dismiss, he also asserted an “actual violation” of the STA based on the district court’s past determinations of excluded time in its ends-of-justice findings. Id. For past excluded time, Keith argues that the continuances violated
Under Nevarez, Keith’s universe of possible unexcludable time on appeal has thus shrunk to 85 calendar days during the third period of delay, 50 days during the fourth period of delay, and 9 days during the fifth period of delay.
Having bookended Keith’s STA challenge with Loughrin and Nevarez, we must now decide how to treat the ill-fated November 2020 trial proceedings. How do we regard the 19 days between the first jury’s being selected on November 4 and its being excused on November 23: as excludable or unexcludable STA time? Under the STA, trial must “commence” within 70 days from the initial appearance.
Arnold didn’t involve post-voir dire delay, but United States v. Martinez did. There, the parties selected a jury on September 26, but they didn’t begin opening statements until October 25. 749 F.2d 601, 604 (10th Cir. 1984), abrogated on other grounds by Mathews v. United States, 485 U.S. 58 (1988). With 29 days’ delay between these two events, the parties disputed when the trial had “commenced” under
Other circuits agree. See United States v. Gonzalez, 671 F.2d 441, 443–44 (11th Cir. 1982); United States v. Stayton, 791 F.2d 17, 19–20 (2d Cir. 1986); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317, 321 (3d Cir. 1991);
On November 4, 2020, the government fulfilled its STA obligation by timely commencing Keith’s trial proceedings. We now hold that the trial extended until November 23, when the first jury was excused. So those 19 days are excludable time. With that, we turn to the district court’s third, fourth, and fifth continuances to see whether that time should count toward the 71-day mark or whether it was properly excluded for STA purposes.7
To recap, with Loughrin and Nevarez gnawing Keith’s possible unexcludable time before and after his motion to dismiss, Keith can attack only the third period of delay (85 days), the fourth period of delay (50 days), and a small part of the fifth period of delay (9 days). We now turn to analyze whether the district court complied with the STA in its ends-of-justice continuance orders.
We begin with the third continuance. Ahead of an August 11, 2020 trial date, the government moved to continue the trial because of COVID-19’s effect on trial preparations and the need for extra time for plea negotiations. The court made an ends-of-justice finding and reset trial for November 3, 2020. Keith argues that the court’s findings were insufficient because the court didn’t explain why a three-month continuance was necessary and didn’t justify a need for plea-negotiation time.
To weigh the ends of justice against the public’s and defendant’s best interests in a speedy trial, courts consider four nonexclusive factors:
- Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.
Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section. - Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex.
- Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.
Keith doesn’t challenge any of these facts as clearly erroneous. He objects only that the court didn’t explain why it continued the trial for three months instead of one or two. But Keith doesn’t support his argument with precedent or language from the STA. The district court evidently hoped that the “current state of the COVID-19 pandemic in Oklahoma” and the other logistical challenges would improve by November. Given that the government would have
⁎ ⁎ ⁎
Even if Keith convinced us that the district court’s fourth and fifth continuances (respectively spanning 50 and 9 days) were unexcludable time under the STA, those two periods would add up to only 59 days, not 71. So we need go no further and thus do not discuss the propriety of the fourth and fifth continuances. Because more than 70 unexcludable days had not elapsed between Keith’s arraignment and his motion to dismiss, he cannot show an STA violation.
Our holding doesn’t diminish that an ends-of-justice continuance still should be “a rarely used tool for those cases demanding more flexible treatment.” Toombs, 574 F.3d at 1269 (quoting Doran, 882 F.2d at 1515). We simply agree that “surely a [once-in-a-century] global pandemic . . . falls
B. Sixth Amendment
Keith also argues that the district court’s ends-of-justice continuances violated his constitutional speedy-trial right.
The Sixth Amendment guarantees the “right to a speedy and public trial” for all criminal defendants.
Length of delay. To trigger a Barker analysis, there must be “‘presumptively prejudicial’ delay,” meaning delay approaching a year. Id. (citations omitted). The government concedes that the 29-month delay in bringing Keith to trial is presumptively prejudicial.9 We find that this first factor favors Keith.
In its order denying Keith’s motion to dismiss, the district court identified two reasons for the delay: “the massive amount of discovery in this complex case and the COVID-19 pandemic.” It placed the “pandemic-driven reasons” in the “valid” category and found that this factor did not support Keith. On appeal, Keith blames all the delay—owing to the case’s complexity, codefendants obtaining new counsel, COVID-19, and the first jury’s being dismissed—on the government.
The first delay, spanning 418 days, came from the district court’s scheduling order and designation that the case was complex. Delays owing to the nature of large, multidefendant conspiracies with vast discovery are justifiable. Margheim, 770 F.3d at 1327. This reason slightly favors the
The third delay also resulted from COVID-19-related challenges. So too did the fourth and fifth delays, comprising 50 and 119 days. These delays cannot fairly be attributed to the government or to Keith. To our knowledge, no circuit has yet published an opinion classifying COVID-19 delays under the second Barker factor.10 We choose to treat COVID-19 as a truly neutral justification—not favoring either side. The extenuating circumstances brought about by the pandemic prevented the government from trying Keith in a speedy fashion.
Keith’s assertions of his right. For this factor, we assess “whether the defendant ‘actively’ asserted his right, which requires more than merely ‘moving to dismiss after the delay has already occurred.‘” United States v. Koerber, 10 F.4th 1083, 1110 (10th Cir. 2021) (quoting United States v. Batie, 433 F.3d 1287, 1291 (10th Cir. 2006)), cert. denied, 143 S. Ct. 326 (2022). At bottom, we must measure “whether the defendant’s behavior during the course of litigation evinces a desire to go to trial.” Id. (quoting Batie, 433 F.3d at 1291). We can evaluate Keith’s behavior by “‘weigh[ing] the frequency and force of [his] objections’ to the delay.” Margheim, 770 F.3d at 1328 (second alteration in original) (citations omitted). We have called this factor the “most important” one, Batie, 433 F.3d at 1291, entitled to “strong evidentiary weight,” Toombs, 574 F.3d at 1274 (quoting United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir. 1994)).
The district court found that Keith raised his speedy-trial right only once: in the motion to dismiss, which wasn’t enough under the third factor. Keith claims that his objection to excusing the jury and his motion to dismiss count as “repeatedly” asserting his speedy-trial right.
We agree with the district court’s characterization. Keith’s “behavior during the course of litigation” did not show that he wanted a speedy trial. Koerber, 10 F.4th at 1110 (quoting Batie, 433 F.3d at 1291). Keith did not object to the district court’s first scheduling order, allowing it to go into effect.
Moving to dismiss alone doesn’t count as “actively” asserting one’s speedy-trial right. See Koerber, 10 F.4th at 1110 (citations omitted). And Keith’s one-sentence objection to excusing the jury in November 2020 was hardly forceful. Even charitably interpreting this unsupported objection as being for speedy-trial reasons, Keith still waited 700 days to raise his speedy-trial right. Keith’s single objection to excusing the jury is best characterized as “[in]frequent” and “[un]forceful.” Id. (quoting United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975)). Because the third factor may indeed be the “most important” one, Batie, 433 F.3d at 1291, it weighs heavily against Keith.
Prejudice. Finally, “[w]e assess prejudice in light of the particular evils the speedy trial right is intended to avert: pretrial incarceration; anxiety and concern of the accused; and the possibility that the defense will be impaired.” Koerber, 10 F.4th at 1110 (alteration in original) (quoting Batie, 433 F.3d at 1292). Showing prejudice is the defendant’s burden. Medina,
Keith’s asserted prejudice comes from “oppressive pretrial incarceration and the resulting anxiety“—after all, he had completed his state sentence in January 2020. Though he mentions that a witness died during the delay, Keith disclaims the witness’s death as another ground for prejudice because “the record does not include any specific allegations concerning this witness and what they would have testified to.”
Though “prolonged pretrial incarceration is a well-established type of prejudice that a defendant may rely upon in making a Sixth Amendment speedy trial claim,” Margheim, 770 F.3d at 1330 (quoting Seltzer, 595 F.3d at 1180), Keith’s arguments about “oppressive pretrial incarceration” and “anxiety” fail because they are too general. He doesn’t “show some special harm suffered which distinguishes his case.” United States v. Hicks, 779 F.3d 1163, 1169 (10th Cir. 2015) (quoting United States v. Gould, 672 F.3d 930, 939 (10th Cir. 2012)). In Margheim, for example, the defendant supported his pretrial-incarceration-as-prejudice claim with specific facts: He was on “lockdown” for 18 hours a day and started taking anxiety and depression medications. 770 F.3d at 1329. By contrast, Keith offers no specifics. True, Keith finished serving his
Because Keith cannot point to any prejudice stemming from the delays in his case, the fourth factor weighs against him.
⁎ ⁎ ⁎
The first factor favors Keith. The second factor slightly favors the government. The third factor strongly favors the government. And the fourth factor also favors the government. On balance, Keith has failed to show that the delays violated the Constitution. This case isn’t the “unusual” one where “the Speedy Trial Act has been satisfied” yet the Sixth Amendment was violated. Koerber, 10 F.4th at 1109 (quoting United States v. Abdush-Shakur, 465 F.3d 458, 464 (10th Cir. 2006)).
We affirm on constitutional speedy-trial grounds.
II. Multiple-Conspiracies Instruction
Keith contends that the district court should have given a Tenth Circuit Pattern Jury Instruction about multiple conspiracies. At trial, he attempted to disassociate himself from the wide conspiracy charged in the indictment and instead place himself in a separate, smaller conspiracy. A multiple-conspiracies instruction tells the jury that it must find that the defendant belonged to the
We won’t reverse a district court’s failure to give a multiple-conspiracies jury instruction if the given instructions impart that “the government had the burden of proving beyond a reasonable doubt the [single] conspiracy as alleged, and that the evidence should be considered separately as to each individual defendant.” United States v. Cushing, 10 F.4th 1055, 1073 (10th Cir. 2021) (alteration in original) (quoting United States v. Evans, 970 F.2d 663, 675 (10th Cir. 1992)), cert. denied, 142 S. Ct. 813 (2022). Keith recognizes that Evans forecloses his argument about the multiple-conspiracies instruction and raises it only for preservation. In doing so, Keith admits that the other instructions meet Evans’s two-part test. We agree and affirm under Evans.
CONCLUSION
For the foregoing reasons, we affirm.