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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2011 Decided June 9, 2011
No. 09-3140
UNITED STATES OF AMERICA,
APPELLEE
v.
DEONTE MARSHALL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00219)
Gregory Stuart Smith, appointed by the court, argued the
cause and filed the briefs for appellant.
Stephen R. Prest, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III and John P. Mannarino,
Assistant U.S. Attorneys.
Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.
2
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Deonte Marshall was indicted for
unlawful possession of a firearm, in violation of 18 U.S.C.
§ 922(g). Despite his repeated requests for a speedy trial, this
straightforward one-count single defendant case languished in
the district court for fourteen months — 436 days — before trial
finally began. In delaying the trial the district court relied on a
government filing, styled as a “motion” to admit evidence of
other crimes pursuant to Federal Rule of Evidence 404(b), as a
placeholder that would suspend operation of the Speedy Trial
Act’s 70-day time limit, see 18 U.S.C. § 3161(c)(1).1 This
despite the district court’s acknowledged practice of not
resolving such Rule 404(b) “motions” until immediately prior to
trial or during the trial itself.
Although Marshall’s court appointed counsel filed a motion
to dismiss the indictment for violation of the Speedy Trial Act,
and a supplement, counsel did not challenge the district court’s
exclusion of the time following the Rule 404(b) filing, which
1
The Speedy Trial Act provides that:
In any case in which a plea of not guilty is entered, the trial of
a defendant . . . shall commence within seventy days from
[the later of (1)] the filing date . . . of the information or
indictment, or . . . [(2)] the date the defendant has appeared
before a judicial officer of the court in which such charge is
pending . . . .
18 U.S.C. § 3161(c)(1) (2006). The Act provides that seven “periods
of delay shall be excluded in computing . . . the time within which the
trial . . . must commence.” Id. § 3161(h). Relevant here, one such
period is “delay resulting from any pretrial motion from the filing of
the motion through the conclusion of the hearing on, or other prompt
disposition of, such motion.” Id. § 3161(h)(1)(D).
3
allowed the district court to conclude Marshall’s Speedy Trial
Act rights were not violated. In failing to do so, counsel
overlooked: (1) precedent of this court holding that a closely
analogous evidentiary filing does not toll the Speedy Trial Act
clock; (2) the prosecutor’s expression of concern during a
hearing that the Rule 404(b) filing did not toll the Speedy Trial
Act clock; and (3) Marshall’s own repeated pleas to the district
court and his counsel to scrutinize the record for a Speedy Trial
Act violation. Under the circumstances, the performance of his
pretrial counsel was constitutionally deficient. In view of the
violation of Marshall’s Sixth Amendment right to the effective
assistance of counsel when counsel failed to challenge whether
a Rule 404(b) filing tolls the 70-day period under the Speedy
Trial Act, the court vacated the judgment of conviction and
ordered a remand, with opinion to follow. See Order, May 13,
2011. This is that opinion.
I.
The grand jury returned its indictment on July 22, 2008
based on a weapon seized from a locked room during the
execution of a search warrant of the house where Marshall lived
with his mother. Marshall was arraigned on July 30, 2008,
entering a plea of not guilty.2 At the first status conference, held
August 19, 2008, the prosecutor expressed his view that “we do
need to set a trial date today unless motions are going to be filed
pretty soon.” Tr. Aug. 19, 2008, at 3. The district court
responded that its practice was not to set trial dates “until later
in the process,” id. at 4, and directed the prosecutor to “get your
2
The next day, July 31, 2008, his appointed counsel filed a
motion to withdraw, which motion was granted four days later, on
August 4, 2008, at which time his new appointed counsel entered an
appearance. The withdrawal motion tolled the Speedy Trial Act clock
for four days. See FED R. CRIM. P. 45(a)(1)(A).
4
motions in the sooner the better,” id. at 5. The district court
reiterated the message at the next status conference, held
September 9, 2008, again declining to set a trial date and stating
that the Speedy Trial Act clock would be tolled once motions
were filed, and the court was “expecting at least one in the next
day.” Tr. Sept. 9, 2008, at 10–11.
Two days later, on September 11, 2008, the fifty-first day
after indictment (and the forty-seventh day on the Speedy Trial
Act clock), the government filed a pleading styled as the
“United States’ Motion to Admit Other Crimes Evidence
Pursuant to Federal Rule of Evidence 404(b).” In this filing the
government indicated that it intended to use evidence of the
circumstances surrounding Marshall’s prior conviction for the
same crime — unlawful possession of a firearm — as evidence
that his possession of the seized weapon was knowing and
intentional, not due to accident or mistake. At a status
conference held on October 23, 2008 — the ninety-third day
following indictment (the eighty-ninth day on the Speedy Trial
Act clock) — defense counsel told the district court that he had
not yet filed a motion to suppress the seized evidence and
Marshall’s statement (unrelated to the prosecutor’s Rule 404(b)
filing) because of an unexpected delay in obtaining a needed
transcript. But, defense counsel continued, he thought that the
delay “was not endangering [Marshall’s] Speedy Trial rights
because the government had already filed a 404(b) motion.” Tr.
Oct. 23, 2008, at 4. The district court responded: “It had. So the
statute is tolled for now anyway.” Id.
The prosecutor, however, was not so sure, advising the
district court that “there is perhaps some dispute in the case law
about whether or not that type of motion” — referring to the
Rule 404(b) filing — “is sufficient to . . . toll the Speedy Trial
[Act] clock.” Id. at 6. “[I]n an abundance of caution,” the
prosecutor asked the district court to “make findings that the
5
time has been spent . . . in the interest of justice and for the sake
of the defendant in this case[,] that the time would have been
tolled anyway [even absent the Rule 404(b) filing].” Id. at 7.
The district court refused, advising the prosecutor that “it is this
Court’s practice and has been for seven years that a 404 motion
is sufficient for the purpose [of tolling the clock].” Id.
The prosecutor’s concerns were well founded. In United
States v. Harris, 491 F.3d 440 (D.C. Cir. 2007), over a year
before Marshall was indicted, this court held that a closely
analogous pretrial filing pursuant to Federal Rule of Evidence
609 was not a pretrial motion that tolls the Speedy Trial Act
clock. 491 F.3d at 443–44. The court held instead that a Rule
609 filing is, under the plain text of Federal Rule of Criminal
Procedure 12(b)(4)(A), a filing that “notif[ies] the defendant of
[the government’s] intent to use specified evidence at trial in
order to afford the defendant an opportunity to object before trial
under Rule 12(b)(3)(c),” which governs the timing of motions
to suppress evidence. The court reasoned that the government’s
Rule 609 filing, notifying the defendant of the government’s
intent to impeach him with his prior convictions, is merely a
non-tolling notice; a defendant who objects to use of the
evidence may file a motion to suppress under Rule 12(b)(3)(C),
which would toll the Speedy Trial Act clock as only then would
the district court be called upon to act. Id. at 444.
Then, three weeks before Marshall was indicted on July 22,
this court applied Harris’s holding in United States v. Van
Smith, 530 F.3d 967 (D.C. Cir. 2008), again holding that a
government Rule 609 filing — even if styled as a “motion” —
is “an evidentiary notice that does not qualify as a pretrial
motion under the Speedy Trial Act.” 530 F.3d at 970; see also
United States v. Bryant, 523 F.3d 349, 358 (D.C. Cir. 2008).
The court explained that “[o]ur conclusion that the government’s
evidentiary filing was not a pretrial motion, in addition to being
6
compelled by Harris, is animated by our understanding of the
purposes of the Speedy Trial Act.” Id. at 971. Joining the First
Circuit, the court concluded that “to treat such [evidentiary]
filings, which are ‘commonly carried over until trial,’ as pretrial
motions that toll the speedy trial clock would allow the
government to circumvent the Speedy Trial Act by submitting
its filings ‘at an early stage and then failing to press for prompt
disposition.’” Id. (quoting United States v. Rush, 738 F.2d 497,
505–06 (1st Cir. 1984)). Moreover, although declining on
forfeiture grounds to reach the question whether a Rule 404(b)
filing is treated the same way as a Rule 609 filing for Speedy
Trial Act purposes, the Van Smith majority also acknowledged
that it “may well be” the case that a Rule 404(b) filing, like a
Rule 609 filing, does not toll the Speedy Trial Act clock. Id. at
974. If the logic of the majority’s analysis was not clear enough
to indicate that it also applied to a Rule 404(b) filing, the
dissenting opinion provided the roadmap: upon concluding the
forfeiture rule was inapplicable in the circumstances, the dissent
in Van Smith reasoned that the Rule 404(b) question “is
controlled by the court’s analysis of the Rule 609 filing.” 530
F.3d at 976 (Rogers, J., dissenting). Pointing to en banc
authority, the dissent noted that it is “long settled in this circuit”
that Rule 404(b) evidence is admitted at trial pursuant to the
same notice-and-objection procedure as Rule 609 filings, id. at
979 (quoting United States v. Crowder, 141 F.3d 1202 (D.C.
Cir. 1998) (en banc)), and further that “the rights that Congress
secured in the Speedy Trial Act do not hinge on labels applied
by the parties to their filings,” id. at 980 (citing Van Smith, 530
F.3d at 970–71 (maj. op.); United States v. Santoyo, 890 F.2d
726, 727 (5th Cir. 1989); United States v. Noah, 130 F.3d 490,
495 (1st Cir. 1997)). The dissent thus reasoned that the Rule
404(b) analysis was indistinguishable from the Rule 609
analysis undertaken by the Van Smith majority and earlier by the
court in Harris, and the Van Smith majority did not dispute this
reasoning.
7
Marshall, while perhaps unfamiliar with this development
in the case law, was insistent that his speedy trial rights were
being violated. At the end of the October 23, 2008 hearing,
Marshall expressed his frustration with the delay in the
proceedings, and suggested a willingness to proceed with trial
immediately, repeatedly mentioning his “hundred days,” id. at
11, 12, presumably referring to the sum amount of non-
excludable time allowed under the Speedy Trial Act between
arrest and the start of trial. See 18 U.S.C. § 3161(b), (c)(1). At
a December 2, 2008 status conference, Marshall asserted that his
“Sixth Amendment [speedy trial right] has been violated and
[his statutory] 70 days has been violated,” and further that he
was willing to drop all of his motions if it meant he could go to
trial that day. Tr. Dec. 2, 2008, at 10. On March 23, 2009,
Marshall again expressed the view that his right to a speedy trial
had already been violated, and he implored the district court to
“take a look at that [issue] really.” Tr. Mar. 23, 2009, at 19.
Seemingly frustrated in part by the continued delays in the
proceedings, Marshall asked for and received new appointed
counsel on May 11, 2009; new appointed counsel entered his
appearance on May 29, 2009. During a June 1, 2009 hearing,
Marshall stated in court that the “Speedy Trial Act [has been]
violated since last March” and he again asked the district court
to examine the issue. Tr. June 1, 2009, at 12.
Despite these clear warning flags, Marshall’s counsel —
both counsel who entered an appearance on August 4, 2008 and
substitute counsel who took over on May 29, 2009 — did not
challenge the district court’s ruling that a Rule 404(b) filing tolls
the Speedy Trial Act clock. Nor did counsel raise the issue after
the prosecutor referred to the Rule 404(b) filing as a “notice” —
rather than a motion — during a hearing, nor when the district
court indicated its practice was to rule on Rule 404(b) issues
“either just prior to the trial or at the trial.” Tr. Mar. 23, 2009,
at 5, 7. Indeed, counsel agreed with the district court’s
8
exclusion of the time following the Rule 404(b) filing on at least
three occasions: at the October 23, 2008 hearing, in a March 23,
2009 motion to dismiss under the Speedy Trial Act, and a June
24, 2009 supplement to the motion to dismiss. In the
supplement counsel cited Van Smith for the proposition that the
time following the government’s Rule 609 filing should not be
excluded, but inexplicably (in view of both the majority and
dissenting opinions) proceeded to argue that the speedy trial
clock was tolled for forty days following the government’s Rule
404(b) filing. Then, through counsel, Marshall opposed the
Rule 404(b) filing on June 3, 2009, and the district court heard
argument on July 10, 2009, and took the matter under
advisement. The record does not reflect that the Rule 404(b)
issue was ruled on prior to trial. Neither does it reflect that the
district court ruled on the speedy trial motion except to state, at
a pretrial hearing, that it agreed with the prosecutor’s position
and did not think the motion to dismiss was “going anywhere.”
Tr. July 10,. 2009, at 43.
In the end, the trial did not begin until October 1, 2009, 436
days after Marshall was indicted and the Speedy Trial Act clock
began to run.3 Although much of the time was properly
excluded on account of pretrial motions and in the interest of
justice, there is no dispute that but for the district court’s
exclusion of time pursuant to the Rule 404(b) filing, the Speedy
Trial Act’s seventy-day time limit was violated. The
government appendix filed in this court and the district court
3
Marshall had already appeared in court on a parallel
criminal complaint that was dismissed prior to his indictment. Hence,
Marshall maintains, and the government does not dispute, that the
Speedy Trial Act’s 70-day period began to run on the date of his
indictment, July 22, 2008, and not on the date of his subsequent
arraignment. See 18 U.S.C. § 3161(c)(1). The eight day difference
has no effect on the violation of the Speedy Trial Act 70-day timeline.
9
docket reflect no other tolling events from August 4 to
December 1, 2008 (when Marshall filed his motion to suppress
evidence and the clock was tolled), which is more than 70 days
after Marshall’s indictment. After a three-day trial, the jury
found Marshall guilty of the lone firearm possession count and
the district court sentenced him to eight years’ imprisonment
and 36 months’ supervised release. Through new appointed
appellate counsel, Marshall maintains, among other arguments,
that his pretrial counsel were unconstitutionally ineffective in
failing to challenge the Rule 404(b) time exclusion for Speedy
Trial Act purposes. We agree.
II.
The Sixth Amendment entitles a criminal defendant to the
assistance of “reasonably effective” counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Reversal due to
ineffective assistance is warranted only if a defendant satisfies
Strickland’s familiar two-prong inquiry. First, a defendant must
show that his “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. Second, a defendant
must also show a reasonable probability that “but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Although Marshall raises his
ineffective assistance of pretrial counsel claim for the first time
on appeal, the record suffices to decide the issue and a remand
is unnecessary, see United States v. Mouling, 557 F.3d 658,
668–69 (D.C. Cir. 2009), cert. denied, 130 S.Ct. 795 (2009);
United States v. Fennell, 53 F.3d 1296, 1303–04 (D.C. Cir.
1995).
On the first prong, counsel is ineffective if counsel’s acts or
omissions fall “outside the wide range of professionally
competent assistance” based on “[p]revailing norms of practice”
and the “facts of the particular case, viewed as of the time of
10
counsel’s conduct.” Strickland, 466 U.S. at 688, 690.
Marshall’s pretrial counsel fell below this standard in failing to
object to the exclusion of the Rule 404(b) filing time in the
Speedy Trial Act calculation. Although counsel need not raise
every conceivable non-frivolous argument in order to provide
objectively reasonable representation, see Engle v. Isaac, 456
U.S. 107, 133–34 (1982); Fennell, 53 F.3d at 1303–04; cf. Jones
v. Barnes, 463 U.S. 745, 752–53 (1983), in the fact-specific
circumstances here we cannot conceive of any “sound strategic
reasons for not pursuing the [Speedy Trial Act] violation,”
United States v. Richardson, 167 F.3d 621, 626 (D.C. Cir.
1999). Indeed, counsel did pursue the Speedy Trial Act
violation in two separate filings, but in both failed to make the
argument that could have resulted in dismissal of the indictment.
This despite: the clear application of the logic of this court’s
opinions in Harris and Van Smith to the Rule 404(b) filing; the
roadmap provided by the Van Smith dissent’s reasoning, which
was undisputed, that the majority’s analysis of a Rule 609 filing
“controlled” the outcome of the Rule 404(b) issue, 530 F.3d at
976; the prosecutor’s alert to the district court and defense
counsel of his own uncertainty about whether a Rule 404(b)
“motion” tolled the Speedy Trial Act clock; and Marshall’s
repeated pleas for scrutiny of the speedy trial issues. In these
circumstances, reasonably effective counsel would have raised
the issue, if for no other reason than to preserve it for appeal.
The second prong of the Strickland analysis, prejudice,
requires a decision on the merits of the Speedy Trial Act issue,
because there is no possibility of a different outcome in the
proceeding if the exclusion of the Rule 404(b) filing time was
correct. Harris and Van Smith compel the conclusion that a
Rule 404(b) filing is a notice rather than a motion that tolls the
Speedy Trial Act clock. This follows from the well settled rule
acknowledged by the en banc court that the procedure for
admitting Rule 404(b) evidence is identical to the notice-and-
11
objection procedure for Rule 609 material: “The government
must identify which of the matters listed . . . it is intending to
prove . . . . If the defense objects, the court must then satisfy
itself that the evidence is relevant to that matter.” Crowder, 141
F.3d at 1209. As the court observed in Harris and again in Van
Smith, this procedure is governed by Federal Rule of Criminal
Procedure 12(b)(4)(A), which governs pretrial evidentiary
notices by the government “to afford the defendant an
opportunity to object.” It is a subsequent objection by the
defendant — considered a pretrial motion under Rule
12(b)(3)(C) — that tolls the Speedy Trial Act clock.
On appeal, the government brief makes no meaningful
effort to distinguish a Rule 609 filing from a Rule 404(b) filing,
instead suggesting that Harris and Van Smith were wrongly
decided and citing cases from other circuits that purportedly
contradict our precedent. In fact, the Ninth and Eleventh Circuit
cases cited by the government, United States v. Gorman, 314
F.3d 1105 (9th Cir. 2002), and United States v. Jernigan, 341
F.3d 1273 (11th Cir. 2003), held only that a defendant’s motion
to exclude Rule 404(b) evidence tolled the Speedy Trial Act
clock, and the Eleventh Circuit declined to decide “[w]hether or
not the government’s [preceding Rule 404(b)] filing was a
motion that required a hearing and tolled the speedy trial clock.”
341 F.3d at 1286; see Gorman, 314 F.3d at 1115. Those cases
are therefore entirely consistent with Harris and Van Smith: a
defendant’s motion to exclude evidence is considered a pretrial
motion pursuant to Federal Rule of Criminal Procedure
12(b)(3)(c) that tolls the Speedy Trial Act clock. This leaves
only an unpublished summary order, United States v. Rojas, 7 F.
App’x 9 (2d Cir. 2001), which has no precedential effect even
in the Second Circuit, see 2d Cir. R. 32.1.1(a), and what little
reasoning it contains is unpersuasive given that its holding is
inconsistent with the en banc court’s interpretation of Rule 12
12
in Crowder and with our subsequent decisions in Harris and
Van Smith.
At oral argument, government counsel suggested that even
if there is no distinction to be made in the generic case, here the
prosecutor sought a pretrial ruling on the matter, going as far as
to attach a proposed order to the Rule 404(b) filing. Be that as
it may, the prosecutor also referred to the filing as a “notice,” Tr.
Mar. 23, 2009, at 5, did not object when the district court
declared its intention to reserve judgment on the Rule 404(b)
issue until during or immediately before trial, and did not argue
that Marshall had conceded the Rule 404(b) “motion” when his
counsel waited over eight months to file an opposition, see
D.D.C. Local Crim. R. 47(b). In any event, the controlling
question is neither the degree of diligence with which counsel
sought disposition of the filing, nor the “labels applied by the
parties to their filings,” Van Smith, 530 F.3d at 980 (Rogers, J.,
dissenting) (citing Van Smith, 530 F.3d at 970–71 (maj. op.);
Santoyo, 890 F.2d at 727 (5th Cir.); United States v. Noah, 130
F.3d at 495 (1st Cir.)). Under Federal Rule of Criminal
Procedure 12(b) and circuit precedent, a government filing
indicating its intent to introduce Rule 404(b) evidence at trial is
treated as a notice that requires no district court action and that
cannot, by itself, toll the Speedy Trial Act clock. See Van Smith,
530 F.3d at 971 (quoting Rush, 738 F.2d at 505–06 (1st Cir.)).4
4
We note that the Supreme Court recently held that filing a
pretrial motion tolls the Speedy Trial Act clock “irrespective of
whether it actually causes, or is expected to cause, delay in starting a
trial.” United States v. Tinklenberg, ___ S. Ct. ____, No. 09-1498,
2011 WL 2039366, at *3 (U.S. May 26, 2011). In so ruling, the
Supreme Court reversed the Sixth Circuit and agreed with the long-
settled practice in this court and others. See id., 2011 WL 2039366,
at *7 (citing, inter alia, United States v. Wilson, 835 F.2d 1440, 1443
(D.C. Cir. 1987)). The question addressed by this court in Harris, Van
Smith, and now in this appeal is different from that presented to the
13
The government’s other argument concerning prejudice is
equally unpersuasive. It contends that the district court would
not have granted a motion to dismiss even if Marshall had
properly raised the issue because it was firmly convinced that a
Rule 404(b) filing tolled the Speedy Trial Act clock. Putting
aside the dubious premise that the district court would have erred
had the issue been properly put before it, raising the issue would
at least have preserved it for appeal, and thus Marshall would
have secured dismissal of the indictment, later if not sooner. At
oral argument government counsel also maintained that any
dismissal of the indictment would have been without prejudice
under the Speedy Trial Act, 18 U.S.C. § 3162(a)(2), and that
dismissal of the indictment without prejudice is an insufficient
showing of Strickland prejudice. Because the government raised
this argument for the first time at oral argument, we decline to
consider it. See Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d
99, 108 n.4 (D.C. Cir. 2003). Marshall therefore was prejudiced
by his pretrial counsel’s constitutionally deficient assistance.5
Supreme Court in Tinklenberg. The issue here is whether the
government’s evidentiary filing qualifies as a pretrial motion for
Speedy Trial Act purposes. If it were a motion, then under
Tinklenberg and this court’s well-established precedent, the Speedy
Trial Act clock was tolled. But because Federal Rule of Criminal
Procedure 12 and our precedent do not construe the filing as a pretrial
motion, the Speedy Trial Act’s exclusion of a period of “delay
resulting from any pretrial motion,” 18 U.S.C. § 3161(h)(1)(D), was
not triggered, and the Act was violated.
5
We need not reach Marshall’s alternative claim of
Strickland prejudice resulting from the delay preventing his trial from
occurring before a change in law rendered admissible a videotaped
post-arrest statement that previously would have been inadmissible in
the government’s case-in-chief.
14
In vacating the judgment of conviction by order of May 13,
2011, the court remanded the case for the district court to
determine whether the dismissal should be with or without
prejudice. See 18 U.S.C. § 3162(a)(2); United States v. Sanders,
485 F.3d 654, 660 (D.C. Cir. 2007). In so doing, the court was
mindful of the Supreme Court’s direction that a remedy be
“tailored to the injury suffered from the constitutional violation.”
United States v. Morrison, 449 U.S. 361, 364 (1981). In
circumstances where, as here, the constitutional violation
occurred prior to trial, granting a new trial on the existing
indictment would not cure the harm suffered by a defendant as
a result of the violation. Instead, an appropriately tailored
remedy “should put the defendant back in the position he would
have been in if the Sixth Amendment violation had not
occurred.” United States v. Blaylock, 20 F.3d 1458, 1468 (9th
Cir. 1994). Properly raising the issue prior to trial would at a
minimum have resulted in this court reviewing the Speedy Trial
Act issue de novo and holding Marshall’s statutory speedy trial
right was violated.
As a result, this court has no occasion to reach two of
Marshall’s three other contentions. His Speedy Trial Act claim
— subject to plain error review because the Rule 404(b) issue
was not raised in the district court — would result in the same
relief granted here for ineffective assistance of counsel, and thus
there is no need to decide whether the error was plain. And his
claim of jury coercion by the district court as a result of ex parte
and other interactions with one juror who “decided his fate,”
Appellant’s Br. 31, would result only in a new trial, and thus it,
too, need not be decided. Regarding Marshall’s contention that
his Sixth Amendment right to a speedy trial was also violated
and that the government did not overcome the presumption of
prejudice for delays of longer than one year, factual findings are
required pursuant to Barker v. Wingo, 407 U.S. 514 (1972), and
in view of the record before this court the district court is better
15
suited to make these findings in the first instance, if necessary.
See Doggett v. United States, 505 U.S. 647, 651–54 & 652 n.1;
United States v. Jones, 524 F.2d 834 (D.C. Cir. 1975).
Accordingly, we vacated the judgment of conviction because
Marshall was denied his right under the Sixth Amendment to the
effective assistance of pretrial counsel, and remanded the case
for the district court to determine whether dismissal for violation
of the Speedy Trial Act shall be with or without prejudice to his
re-prosecution. See Order, May 13, 2011. If the district court
determines that the dismissal of the indictment should be without
prejudice, then it must make findings in order to determine, in
the first instance, whether Marshall’s right to a speedy trial under
the Sixth Amendment was violated.