PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD STANTON SHEALEY, a/k/a No. 09-4653
Face, a/k/a Diddy, a/k/a Face
Diddy, a/k/a The City,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(5:08-cr-00282-F-2)
Argued: January 28, 2011
Decided: April 25, 2011
Before NIEMEYER, KING, and GREGORY,
Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Niemeyer and Judge King joined.
COUNSEL
ARGUED: Jeffrey Michael Brandt, ROBINSON &
BRANDT, PSC, Covington, Kentucky, for Appellant.
2 UNITED STATES v. SHEALEY
Michael Gordon James, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: George E. B. Holding, United States Attorney, Jenni-
fer P. May-Parker, Michael G. James, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTOR-
NEY, Raleigh, North Carolina, for Appellee.
OPINION
GREGORY, Circuit Judge:
Appellant challenges his drug convictions for violations of
the Speedy Trial Act and of the Fifth and Sixth Amendments
as well as sentencing errors. We affirm because we find that
the district court properly granted a continuance, rightly
denied Appellant’s motion to sever, and properly calculated
his sentence.
I.
On September 24, 2008, a grand jury indicted Donald
Shealey, Appellant, and seven other co-defendants on six
counts of distributing and conspiring to distribute cocaine,
cocaine base, and heroin. The co-defendants included
Salahudeen Abdallah, Khalid Abdallah, Timothy Hargrove,
Tyrone Lawrence, Gilbert Sherwood, Jamal Watson, and one
individual whose name was redacted. The charges stem from
the operation of a local drug organization known as the Face
Mob Family ("FMF"). Appellant was arrested on September
30, 2008.
Arraignment was initially set for December 8, 2008. On
October 28 and 30, 2008, co-defendants Hargrove and Law-
rence moved to continue arraignment and trial. On October
31, 2008, the district court granted that motion and continued
the arraignment and trial dates to January 20, 2009. The dis-
UNITED STATES v. SHEALEY 3
trict court excluded this time from its Speedy Trial Act com-
putation.
On December 2, 2008, co-defendant Khalid Abdallah’s
original attorney withdrew, and was replaced on December
12. On December 21, 2008, Appellant rejected a plea agree-
ment the Government had offered him. In phone conversa-
tions that week, the Government informed Appellant that it
would be filing a superseding indictment, adding a money
laundering count.
On January 5, 2009, Khalid Abdallah moved for a continu-
ance for the first time. On January 6, 2009, Appellant
requested that motion be denied unless Khalid Abdallah’s
case was severed from Appellant’s. Appellant further asked to
protect his speedy trial rights and to commence his trial as
planned, on January 20 or soonafter. On January 8, the district
court denied Khalid Abdallah’s first motion to continue.
Then on January 15, 2009, three things occurred: First,
Khalid Abdallah filed a second motion to continue, explaining
that he had replaced his lawyer due to a prior conflict of inter-
est, and his replacement counsel had only received new dis-
covery materials on December 20, 2008. Those new materials
consisted of eleven computer disks, including several tens of
thousands of pages of FBI, DEA, and local police reports and
transcribed telephone intercepts. Khalid Abdallah’s new law-
yer stressed that it took time to organize these materials in
order to identify and correct errors in how Khalid Abdallah
was identified or misattributed in the transcripts. Khalid
Abdallah also pointed out that he had not been provided all
of the discovery materials in the case, including interviews
with multiple law enforcement officials, warrants, and search
logs. Co-defendant Jamal Watson supported the motion.
Second, Appellant responded to Abdallah’s second motion,
renewing his demand for a speedy trial which was supposed
to start the week of January 20, 2009. Appellant contended
4 UNITED STATES v. SHEALEY
that "[i]f the Government has failed to provide timely discov-
ery, intentionally, negligently, or otherwise, that fact should
not . . . ‘force’ a continuance . . . [or] allow the Government
to circumvent the present arrangement and trial schedule [to]
allow them more time to perfect their case." J.A. 49. Appel-
lant suggested that the Government’s superseding indictment
was manipulative, since it was based on information the Gov-
ernment had already possessed for four months. Finally,
Appellant argued that the "Government can hardly argue that
all defendants should remain joined for ‘judicial economy’ if
they are responsible for the last-minute issues that appear to
be forcing a continuance." J.A. 50.
Third, still on January 15, 2009, the grand jury returned a
superseding indictment which added three new counts. The
first new count alleged Appellant and Samara Laben Scott
conspired with each other in money laundering, in violation
of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(ii), and
1956(h). The second new count alleged Appellant and co-
defendant Scott aided and abetted each other to commit
money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i) and (2). The third new count alleged co-
defendant Watson was a felon in possession of a firearm. The
superseding indictment also added two co-defendants to the
original charge of conspiracy to possess heroin, cocaine, and
crack with intent to distribute.
The next day, on January 16, 2009, the Government joined
Khalid Abdallah’s and Jamal Watson’s motions for a continu-
ance. The Government reiterated that Khalid Abdallah had
recently obtained replacement counsel who was still getting
up to speed. The Government also pointed to the superseding
indictment, new defendants, and additional finance-related
charges to support its position. To deny a continuance, the
Government argued, "would provide these two new defen-
dants only [ ] seven days to prepare for, and proceed to trial.
. . ." J.A. 59. The Government emphasized the complex and
voluminous nature of the federal wiretap. The Government
UNITED STATES v. SHEALEY 5
also contended that it had produced all discovery materials to
Appellant before October 20, 2008, and given him the oppor-
tunity to inspect or copy tangible evidence — but he never
responded. The Government also opposed severance and
argued that the conspiracy charges should be tried together.
Finally, that same day, January 16, 2009, the district court
granted Abdallah’s second motion to continue, namely
because the superseding indictment "add[ed] substantive
charges against the existing defendants, as well as adding two
new co-defendants." J.A. 64. The district court continued the
trial until March 2, 2009, for all co-defendants because "the
ends of justice served by this continuance outweigh the inter-
ests of the [Appellant] and the public in speedy trial." J.A. 65.
Consequently, the district court concluded that any delay be
excluded from its Speedy Trial Act calculation pursuant to 18
U.S.C. § 3161(h).
On January 18, 2009, Appellant moved to sever on the
grounds that he was "prepared to address all allegations con-
tained in both the original and superseding indictments" and
was "specifically not asking for any further time to prepare
for trial." J.A. 67. Appellant reiterated that he had consistently
asserted his rights and that the Government was engaging in
dilatory tactics to conduct additional interviews and
strengthen its case. Appellant asserted that "the evidence of
prejudice to [Appellant] will be born out at trial as it becomes
clear for this Court, and the appellate courts, if necessary, that
the Government will only have acquired, perfected, and put
into ‘trial form’ much of its evidence after . . . January 20th.
. . ." J.A. 68.
On February 12, 2009, the district court denied Appellant’s
motion to sever. It reasoned that Appellant had "failed to
show any ‘actual prejudice’ or ‘specific trial right’ that would
be compromised by the continuance. . . ." J.A. 71-72 (citing
United States v. Najjar, 300 F.3d 466, 473 (4th Cir.), cert.
denied, 123 S. Ct. 705 (2002)).
6 UNITED STATES v. SHEALEY
Subsequently, at trial, several co-defendants testified
against Appellant about his sales of drugs and purchases of
cars for his FMF associates. Law enforcement officials testi-
fied about the results of wiretaps and search of Appellant’s
home. The jury convicted Appellant on all eight counts. The
district court sentenced him to life on count one; 360 months
on each of counts two through six; and 240 months for each
of counts seven and eight — all to be served concurrently.
Appellant timely appealed to this Court, alleging violations
of the Speedy Trial Act and of the Fifth and Sixth Amend-
ments as well as sentencing errors. We address those three
issues in turn.
II.
We review de novo a district court’s legal interpretation of
the Speedy Trial Act. United States v. Bush, 404 F.3d 263,
272 (4th Cir. 2005). We review a district court’s denial of a
motion for severance for an abuse of discretion. United States
v. Khan, 461 F.3d 477, 490 (4th Cir. 2006), and will reverse
if joinder deprives defendants "of a fair trial and results in a
miscarriage of justice." United States v. Harris, 498 F.3d 278,
291 (4th Cir. 2007) (citation omitted).
Appellant argues that the district court erred in denying his
motion to dismiss for Speedy Trial Act violations as a result
of denying his motion for severance. Appellant maintains, as
he did at trial, that this prejudiced him because the Govern-
ment "acquired, perfected and put into ‘trial form’ much of its
evidence after the Court’s [original] January 20th [trial date]."
J.A. 68. Namely, Appellant points out that at least nine Gov-
ernment witnesses did not sign or enter into plea agreements
until after January 20, 2009.
The Speedy Trial Act generally requires a defendant be
tried within 70 days of either the filing of an indictment or
appearing before a judge, whichever is later. 18 U.S.C.
UNITED STATES v. SHEALEY 7
§ 3161(c)(1) (2001). "All defendants who are joined for trial
generally fall within the speedy trial computation of the latest
codefendant." Henderson v. United States, 476 U.S. 321, 323
n.2 (1986); United States v. Jarrell, 147 F.3d 315, 316 (4th
Cir. 1998) ("[T]ime excludable for one defendant is exclud-
able for all defendants."). If one co-defendant files a motion
to continue and the district court grants it, then that time is
excluded as to all co-defendants regardless of whether a
motion to sever has been filed. United States v. Sarno, 24
F.3d 618, 622 (4th Cir. 1994).
The Speedy Trial Act excludes certain delays "if the judge
granted [a] continuance on the basis of his findings that the
ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial." 18
U.S.C. § 3161(h)(7)(A). Courts are required to provide their
reasoning about the "ends of justice," 18 U.S.C.
§ 3161(h)(7)(A), and consider various factors, including: (i)
whether the failure to grant a continuance would result in a
miscarriage of justice; (ii) whether the case is so unusual or
complex that counsel cannot adequately prepare for trial
within established time limits; (iii) whether there was delay in
filing the indictment because of the nature of the arrest or
grand jury proceedings; or (iv) whether denial of continuance
would otherwise infringe upon the time to obtain or maintain
counsel or prepare for trial. 18 U.S.C. § 3161(h)(7)(B).
With respect to severance, "there is a preference in the fed-
eral system for joint trials of defendants who are indicted
together." Zafiro v. United States, 506 U.S. 534, 537 (1993);
see also United States v. Brugman, 655 F.2d 540, 542 (4th
Cir. 1981) ("[B]arring special circumstances, individuals
indicted together should be tried together."). Severance is
warranted when "there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt
or innocence." Zafiro, 506 U.S. at 539. A defendant must "es-
tablish that actual prejudice would result from a joint trial . . .
8 UNITED STATES v. SHEALEY
and not merely that a separate trial would offer a better
chance of acquittal." United States v. Reavis, 48 F.3d 763, 767
(4th Cir. 1995).*
The district court did not abuse its discretion in denying
Appellant’s motion to sever. We start with a strong presump-
tion in favor of joint trials. See Zafiro, 506 U.S. at 537 (1993);
Brugman, 655 F.2d at 542. Here, Appellant’s theory of injury
is indirect at best, since it assumes that the delay strengthened
the Government’s case and, in turn, weakened his own case.
But that fails to articulate any injury to "a specific trial right,"
Zafiro, 506 U.S. at 539, or some other "actual prejudice [that]
would [have] result[ed] from a joint trial," Reavis, 48 F.3d at
767. Indeed, it is insufficient to vaguely assert "that a separate
trial would offer a better chance of acquittal." Reavis, 48 F.3d
at 767. Rather, "a defendant is not entitled to severance
merely because separate trials would more likely result in
acquittal, or because the evidence against one defendant is not
as strong as that against the other." United States v. Strick-
*While Appellant primarily challenges the district court’s denial of his
motion for severance, the overall delay here stems initially from Khalid
Abdallah’s second motion for continuance. It is worth briefly examining
the district court’s decision to grant that continuance in the first place.
Khalid Abdallah had recently obtained a new lawyer and substantial new
discovery material—and the Government had just filed a superseding
indictment with additional substantive charges and new co-defendants.
That fits within at least two of the "ends of justice" factors, namely the
case’s complexity and time to prepare for trial. 18 U.S.C.
§ 3161(h)(7)(B)(i) and (iv). While the district court did not reference these
factors by numeral, it sufficiently explained its reasoning on the record
and referenced the "ends of justice" language in § 3161(h). J.A. 64-65.
This comports with the "broad discretion [placed] in the District Court to
grant a continuance when necessary to allow further preparation." United
States v. Rojas-Contreras, 474 U.S. 231, 236 (1985). The district court
here had a reasonable basis for granting the continuance and did not abuse
its discretion, per, United States v. Williams, 445 F.3d 724, 739 (4th Cir.
2006). Moreover, nothing in the record or procedural history suggests that
the reasons Khalid Abdallah gave for seeking a continuance were pretex-
tual.
UNITED STATES v. SHEALEY 9
land, 245 F.3d 368, 384 (4th Cir. 2001) (citations and internal
quotation marks omitted).
This is unaffected by the fact that some co-defendants may
have entered into plea agreements after the superseding
indictment and original trial date. The text and precise timing
of the plea agreements do not appear in the Joint Appendix.
But even if we assume several of the agreements were signed
after the original January 20 trial date, that does not necessar-
ily impinge upon a specific trial right or show actual preju-
dice. Nothing in the record suggests that the co-defendants’
motions for continuances were expressly or implicitly aimed
at extending plea negotiations. That materially distinguishes
this case from the Ninth Circuit’s outcome in United States v.
Hall, where a co-defendant moved for a continuance with an
explicit aim "to complete [plea] negotiations." 181 F.3d 1057,
1062-1063 (9th Cir. 1999). Hall excluded the delay which
resulted from that co-defendant’s motion because "an under-
lying aim was to eliminate the need for a joint trial by achiev-
ing a plea agreement between [co-defendant] and the
government." Id. Finally, once the district court here granted
the continuance, the Government could well have taken lon-
ger to finalize plea agreements because it had more time —
not because it had planned to manipulate the trial schedule all
along.
III.
"This court reviews legal issues, including claims of due
process violations, de novo." De Belbruno v. Ashcroft, 362
F.3d 272, 278 (4th Cir. 2004). "We review de novo the legal
conclusions of the district court," United States v. Foster,
2011 U.S. App. LEXIS 3939 (4th Cir., Mar. 2, 2011), includ-
ing Sixth Amendment claims.
Appellant contends that by delaying the filing of a super-
seding indictment, the Government violated Appellant’s Fifth
Amendment right to due process as well as his Sixth Amend-
10 UNITED STATES v. SHEALEY
ment right to a speedy trial. Specifically, Appellant alleges he
was prejudiced by the last-minute superseding indictment
because it gave the Government time to negotiate plea deals
with Appellant’s co-defendants.
"[T]he Due Process Clause of the Fifth Amendment would
require dismissal of the indictment if it were shown at trial
that the pre-indictment delay in this case caused substantial
prejudice to appellees’ rights to a fair trial and that the delay
was an intentional device to gain tactical advantage over the
accused." United States v. Marion, 404 U.S. 307, 324 (1971).
"This is a heavy burden because it requires not only that a
defendant show actual prejudice, as opposed to mere specula-
tive prejudice, but also that he show that any actual prejudice
was substantial — that he was meaningfully impaired in his
ability to defend against the state’s charges to such an extent
that the disposition of the criminal proceeding was likely
affected." Jones v. Angelone, 94 F.3d 900, 907 (4th Cir. 1996)
(citations omitted).
Here, Appellant’s Fifth Amendment claim turns on the
existence of "substantial prejudice." Again, Appellant’s the-
ory of prejudice is largely circuitous and speculative, since it
hypothesizes that the Government delayed the superseding
indictment to provide more time to secure plea agreements.
That, according to Appellant, lessened the relative strength of
his own case. But even assuming that constituted prejudice, it
was not necessarily "substantial" since it at best strengthened
the Government’s case on the margins, but did not "meaning-
fully impair[ ]" Appellant’s own case.
To establish a Sixth Amendment violation, a defendant
must show that the Barker v. Wingo factors weigh in his
favor. 407 U.S. 514 (1972). Those factors are: (1) whether the
delay was uncommonly long; (2) what the reason was for the
delay; (3) whether the defendant asserted his right to a speedy
trial; and (4) whether prejudice resulted to the defendant. 407
U.S. at 530. A one year delay is generally treated as presump-
UNITED STATES v. SHEALEY 11
tively prejudicial. United States v. Thomas, 55 F.3d 144, 149
(4th Cir. 1995) (citing Doggett v. United States, 505 U.S. 647
(1992)).
With respect to the Sixth Amendment, Appellant concedes
that the delay was not uncommonly long (Barker factor 1).
But he contends that the reason for the delay was to secure
tactical advantage (factor 2), that he raised this issue early
(factor 3), and that this delay prejudiced him (factor 4). In the
alternative, Appellant argues the Government acted in bad
faith. Here, the Barker factors do not weigh in Appellant’s
favor. This issue comes down to why the delay occurred and
whether it prejudiced Appellant. Once more, Appellant fails
to point to any specific prejudice beyond a generalized asser-
tion that the superseding indictment gave the Government
more time to prepare for trial. Nothing in the record or proce-
dural history suggests that the Government expressly delayed
the superseding indictment solely to obtain more plea deals or
otherwise strengthen its case. Nor does the superseding indict-
ment here add so little as to suggest it was a transparent pre-
text for delay. Rather, the superseding indictment here
appears to add, in good faith, new defendants and charges
related to the FMF’s overall drug activities. We conclude that
there was no constitutional violation in how the Government
handled the superseding indictment.
IV.
We review a sentence for substantive reasonableness for
abuse of discretion. Gall v. United States, 552 U.S. 38, 52
(2007). Appellant challenges the reasonableness of his life
sentence and argues essentially that twenty years would have
been sufficient but not greater than necessary to punish, deter,
or rehabilitate him.
Here, the district court considered that Appellant had dis-
tributed voluminous quantities of drugs, was a career
offender, and was the leader and organizer of criminal activity
12 UNITED STATES v. SHEALEY
which involved five or more participants and used violence to
advance its goals. The district court duly considered the advi-
sory guidelines range as well as the 18 U.S.C. § 3553(a) sen-
tencing factors. It concluded that Appellant’s adjusted offense
level was 48 — five levels higher than the maximum permit-
ted by the Guidelines. The district court then determined
Appellant’s total offense level was 43.
We find Appellant’s sentence to be procedurally and sub-
stantively reasonable, per United States v. Hughes, 402 F.3d
540, 546-47 (4th Cir. 2005). Appellant himself does not point
to any specific flaws in his sentencing. Moreover, the district
court found that the FMF, under Appellant’s leadership, used
violence to advance its goals. We can discern no abuse of dis-
cretion.
V.
For these reasons, the decision of the district court is
AFFIRMED.