UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4778
JOHN ADAM MARTIN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., District Judge.
(CR-02-868)
Submitted: June 25, 2004
Decided: July 26, 2004
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MARTIN
OPINION
PER CURIAM:
John Adam Martin appeals his robbery convictions and 121-month
sentence following a jury trial. On appeal, Martin’s lawyer filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), contend-
ing that the court improperly denied his motion for acquittal and over-
ruled his speedy trial objections, but concluding that there were no
meritorious issues for appeal. Martin has filed a pro se supplemental
brief raising several other claims. After reviewing the entire record,
we affirm.
I.
We review the district court’s decision to deny a motion for judg-
ment of acquittal de novo. United States v. Gallimore, 247 F.3d 134,
136 (4th Cir. 2001). Where, as here, the motion was based on insuffi-
cient evidence, "[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the Govern-
ment, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
The bank and credit union at issue were robbed by a tall, black
male. Martin is a tall, black male. In addition, Martin’s fingerprints
were found on both demand notes used during the robberies. Finally,
Martin, who was unemployed, was in possession of nearly $8000 in
cash in the weeks immediately following the robberies. Viewing this
evidence in the light most favorable to the Government, there was
substantial evidence to support the jury’s guilty verdicts.
II.
Martin challenges his conviction on speedy trial grounds, asserting
that the delay prior to his arraignment violated the Speedy Trial Act
("STA") and his Sixth Amendment right to a speedy trial. The STA,
18 U.S.C. § 3161 (2000), requires that the trial of a defendant must
commence within seventy days from the filing date of the indictment
or from the date he appears before a judicial officer, whichever date
is later. 18 U.S.C. § 3161(c)(1). The STA excludes from the time in
UNITED STATES v. MARTIN 3
which a trial must commence periods of delay as a result of "any pre-
trial motion, from the filing of the motion through the conclusion of
the hearing on, or other prompt disposition of, such motion." 18
U.S.C. § 3161(h)(1)(F).
Martin was indicted in August 2002, arraigned in February 2003,
and tried in June 2003. Thus, his STA time period began running in
February 2003, the date he appeared for his arraignment and entered
his plea. The entire time between March 20, 2003, and the beginning
of Martin’s trial was excludable, due to Martin’s motions for continu-
ances in order to review discovery. Therefore, subtracting any exclud-
able time, Martin was tried well within the seventy days required by
the STA.
In determining whether a pretrial delay violated a defendant’s Sixth
Amendment right, a court must balance four considerations: (1) the
length of the delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right to a speedy trial; and (4) the extent of prejudice
to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). The
Supreme Court has explained that the first factor actually involves
two inquiries. Doggett v. United States, 505 U.S. 647, 651-52 (1992).
The first question is whether the delay is sufficient to trigger a speedy
trial inquiry. The Court has answered this question affirmatively
where the delay approaches one year. Id. at 651-52 & n.1. Second,
courts must consider, together with other relevant factors, "the extent
to which the delay stretches beyond the bare minimum needed to trig-
ger judicial examination of the claim." Id. at 652.
Here, the delay between Martin’s indictment and his arraignment
was nearly six months, and the delay between his arraignment and his
trial was four months. Under the reasoning in Doggett, even the com-
bined delay of ten months was not sufficient to trigger examination
of the remaining Barker factors, especially considering that any delay
between the arraignment and trial was due to Martin’s own motions.
Thus, Martin’s constitutional right to a speedy trial was not violated.
III.
Martin next contends that the district court’s bias deprived him of
a fair trial. Martin specifies two isolated comments that he asserts
4 UNITED STATES v. MARTIN
illustrate the court’s bias. However, even if the statements demon-
strate the court’s bias against Martin, bias is not the touchstone for a
determination of whether a judge should recuse himself; instead, the
issue is whether a reasonable person might question the judge’s
impartiality. See In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). xx=
Here, both comments were made out of the hearing of the jury and,
thus, could not have influenced their deliberations. Moreover, Martin
does not provide any example of actions by the judge during the trial
that were improper. Because the judge’s alleged bias, even if
assumed, did not effect his conduct at trial and was not communicated
to the jury, Martin is not entitled to relief.
IV.
Martin contends that the district court gave an improper and preju-
dicial charge pursuant to Allen v. United States, 164 U.S. 492 (1896),
after the jury repeatedly informed the court that it was deadlocked and
could not reach a verdict. He argues that the jury was forced to render
a verdict, as the court would not let them return home until they had.
Because Martin did not object below, the court’s decision to give an
Allen charge and the content of the charge is reviewed for plain error.
See United States v. Olano, 507 U.S. 725, 732 (1993).
For an Allen charge to be proper, it must not coerce the jury, and
it must be fair, neutral and balanced. United States v. Cropp, 127 F.3d
354, 359-60 (4th Cir. 1997). The most egregious mistake that can be
made in the context of an Allen charge is for a district court to sug-
gest, in any way, that jurors surrender their conscientious convictions.
Id. at 360. In determining whether an Allen charge has an impermiss-
ibly coercive effect on jury deliberations, the reviewing court should
consider the content of the instructions, as well as the context. Jenkins
v. United States, 380 U.S. 445, 446 (1965); United States v. Webb,
816 F.2d 1263, 1266 (8th Cir. 1987) (directing courts to look to con-
tent, length of deliberations following instructions, total time of delib-
erations, and indicia of coercion).
Here, although the charge emphasized the importance of reaching
a verdict, the jury was repeatedly encouraged not to abandon
strongly-held opinions. Both the majority and the minority were
UNITED STATES v. MARTIN 5
requested to reconsider the case. We find that the district court’s
instruction was "fair, neutral, and balanced." See Carter v. Burch, 34
F.3d 257, 264 (4th Cir. 1994). Thus, there was no plain error.
V.
Martin next argues that the district court erred by imposing a drug
and alcohol treatment condition on his supervised release. Martin
alleges that this condition is burdensome and inappropriate because
there were no drugs or alcohol involved in the case and he had no his-
tory of drug or alcohol use. Because Martin did not object below, we
review the district court’s decision to impose the conditions for plain
error.
U.S. Sentencing Guidelines Manual § 5D1.3(d)(4) (2002) autho-
rizes mandatory participation in a substance abuse treatment program
if "the court has reason to believe that the defendant is an abuser of
narcotics, other controlled substances or alcohol." While no drugs or
alcohol were involved in the offense of conviction, Martin’s presen-
tence report ("PSR") stated that Martin "began experimenting with
alcohol and drugs during his teenage years which followed into his
adulthood." Martin admitted drinking beer occasionally and smoking
marijuana two years prior, but denied ever using any other types of
illegal substances. Martin did not object to either the description of
his substance use or the implementation of the condition. Thus, based
on the PSR, which described long-term use of both "drugs" and alco-
hol and Martin’s admission that he used marijuana, the district court
could have reasonably concluded that requiring Martin to undergo
treatment "would be beneficial both to [Martin] and to society."
United States v. Carter, 159 F.3d 397, 399 (9th Cir. 1998).
VI.
Martin’s contentions that his attorney was ineffective are not
appropriately raised on direct appeal. An allegation of ineffective
assistance of counsel should not proceed on direct appeal unless it
appears conclusively from the record that counsel’s performance was
ineffective. United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999). Because it is not clear that counsel was ineffective, this claim
should be raised in a 28 U.S.C. § 2255 (2000) motion.
6 UNITED STATES v. MARTIN
VII.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Martin’s convictions and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion would be frivolous, then counsel may move in this court to with-
draw from representation at that time. Counsel’s motion must state
that a copy thereof was served on Martin. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED