United States v. Carpenter

United States Court of Appeals
For the First Circuit

No. 14-1286

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL E. CARPENTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella, Howard, and Kayatta,
Circuit Judges.

Martin G. Weinberg, with whom Kimberly Homan was on
brief, for appellant.
Christopher J. Smith, Attorney, Appellate Section,
Criminal Division, with whom Carmen M. Ortiz, United States
Attorney, District of Massachusetts, Lesley R. Caldwell, Assistant
Attorney General, Criminal Division, Kelly Begg Lawrence, Assistant
United States Attorney, District of Massachusetts, and Sung-Hee
Suh, Deputy Assistant Attorney General, Criminal Division, were on
brief, for appellee.

March 20, 2015
 KAYATTA, Circuit Judge. We opine for the third time on

the United States' prosecution of Daniel Carpenter for mail and

wire fraud in connection with his mishandling of client escrow

funds. In 2007, we affirmed a district court order setting aside

a jury verdict of guilty in favor of a new trial. United States v.

Carpenter, 494 F.3d 13 (1st Cir. 2007). In 2013, after a second

jury also found Carpenter guilty, we reversed a district court

order setting aside that verdict, and remanded for sentencing.

United States v. Carpenter, 736 F.3d 619 (1st Cir. 2013). Now,

post-sentencing, we consider Carpenter's direct appeal in which he

argues, among other things, that the lengthy duration of this

criminal proceeding violated his constitutional and statutory

speedy trial rights. For the following reasons, we affirm the

judgment of the district court on all grounds.

I. Background

Our 2013 opinion details the acts for which Carpenter

stands convicted. In a nutshell, he told clients he would hold

their money in escrow accounts for which the client would pay a

fixed fee and which would cautiously generate returns of either

three or six percent; then (unbeknownst to his clients) he invested

the money in high-risk, high-return stock options, hoping to

generate excess returns to keep for himself. His option trading

fared poorly, and he lost nine million dollars in client funds. At

trial, he argued unsuccessfully that he never promised that the

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client funds would be safe, and that he did not intend to defraud

his clients when he failed to disclose his real strategy of using

their money to make risky investments to see if he could hit a home

run for himself.

Central to this appeal are the details of how this

criminal proceeding has lasted so long.

A. The Indictment, First Trial, and Appeal (September 2004 – July
2007)

The United States indicted Carpenter in September 2004.

In July 2005, Carpenter's first trial ended with a conviction. He

moved, among other things, for a new trial. In December 2005, the

district court granted that motion for a new trial on the grounds

that the government's repeated use of gambling metaphors had

unfairly inflamed the jury's passions. United States v. Carpenter,

405 F. Supp. 2d 85, 103 (D. Mass. 2005). The government appealed,

but our court affirmed the order in July 2007, remanding for a new

trial. Carpenter, 494 F.3d at 13.1

B. The Second Trial, Appeal, and Sentencing (August 2007 - March
2014)

Following remand, Carpenter's second trial ended with

another conviction in June 2008. The district court initially

scheduled a sentencing hearing for September 23, 2008. The

1
Carpenter then petitioned for certiorari from the denial of
his cross-appeal of the district court's denial of his motion for
acquittal. The Supreme Court denied that petition in February
2008. United States v. Carpenter, 552 U.S. 1230 (2008).

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district court did not sentence Carpenter, though, until almost six

years later, in March 2014. This lengthy interval provides the

primary basis for Carpenter's Sixth Amendment argument.

1. Carpenter's Motions for Mistrial, Acquittal, and
New Trial (June – November 2008)

On June 17, 2008, just before the end of the second

trial, Carpenter moved for a mistrial and partial acquittal. On

July 3, immediately after his second conviction, Carpenter filed a

sixty-seven-page motion for acquittal or new trial.2 Using a

different legal team, he also filed two "supplemental" motions for

acquittal and new trial, raising a number of additional arguments.

During July and August 2008, the government and Carpenter filed

eleven more motions adding to the arguments for acquittal,

mistrial, and new trial, and seeking various rulings on page limits

and deadlines. By August 2008, the government complained that

Carpenter's briefing totaled over one hundred pages of opening

briefs, and nearly eighty pages of reply briefs.

In September, Carpenter filed a second motion for a new

trial based on newly discovered evidence. In November, he filed

2
The grounds in this motion were (a) that the government
presented insufficient evidence to convict under 18 U.S.C. §§ 1341
and 1343, (b) that the government had again unfairly prejudiced the
defendant, and (c) erroneous and prejudicial rulings on the
evidence. However, the district court did not actually decide
based on any of these arguments, but instead focused on various
ways that the government overstated the evidence and focused
excessively on Carpenter's greed. United States v. Carpenter, 808
F. Supp. 2d 366, 380 (D. Mass. 2011).

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yet a third motion for a new trial based on different newly

discovered evidence. (Neither motion concerns the newly discovered

evidence at issue in this appeal.)

2. The District Court Hearing on the Post-Trial
Motions (December 2008)

On December 3, 2008, the district court held a hearing

focusing on the June 17 mistrial motion, which was based on the

argument that the government had knowingly solicited false

testimony from a witness in violation of Napue v. Illinois, 360

U.S. 264 (1959). The court also entertained argument on the July

3 motions for acquittal or new trial. The court indicated that it

would decide the other pending motions based on the written

submissions.

3. Motions Related to the Merrill Lynch Civil
Litigation (March – June 2009)

Before the district court ruled on the numerous, often-

lengthy motions before it, Carpenter began making additional

filings. Understanding these new filings requires a bit of

context.

Carpenter traded his clients' funds, in part, through an

investment account with Merrill Lynch. At Carpenter's trial, the

government solicited testimony from three Merrill Lynch employees

about the riskiness of Carpenter's trading strategy. These

employees, including one to whom we refer as "GL," denied they knew

Carpenter was trading third-party funds. However, GL's testimony

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was impeached when a lawyer for one of Carpenter's clients

testified that Carpenter had arranged a phone call between that

lawyer and GL. Phone and fax records corroborated the lawyer's

version of events.3 Even when confronted with the phone records,

however, GL continued to deny the conversation took place.

Carpenter's primary defense to the fraud charges was his

good faith: i.e., that he lacked the specific intent to defraud

because he genuinely thought he had investment discretion over the

funds his company held.4 In his view, evidence showing he was open

with Merrill Lynch about the source of the funds he was trading

supported his good-faith defense on the logic that he would not

have been open with Merrill Lynch if he knew he was doing something

wrong. The government largely demurred, calling Merrill Lynch

witnesses primarily to demonstrate the riskiness of Carpenter's

approach, and devoting little attention to whether anyone at

Merrill Lynch knew the source of the funds. As the prosecution

told the jury, its position was that whatever Merrill Lynch

3
This exchange was the basis for Carpenter's June 2008 motion
for mistrial on the grounds that the government had knowingly
offered perjured testimony in violation of Napue, 360 U.S. at 269.
The district court denied the motion and in 2013 we affirmed on the
grounds that although the employee seems to have testified falsely,
the government made all necessary disclosures and the defense was
able to vigorously cross-examine the employee. Carpenter, 736 F.3d
at 630-31.
4
After his first trial, for example, Carpenter moved for
acquittal on the grounds that the government had failed to disprove
his good faith. Carpenter, 405 F. Supp. 2d at 93-94.

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employees knew was irrelevant because what mattered were the

representations Carpenter made to his clients.

The district court, too, questioned the probative force

of Carpenter's argument that Merrill Lynch knew the source of the

funds. It rejected a motion to acquit for insufficient evidence

based on a version of this argument after both trials. Carpenter,

405 F. Supp. 2d at 93-94; United States v. Carpenter, 808 F. Supp.

2d 366, 378 (D. Mass. 2011). Nevertheless, Carpenter continued

(and continues in this appeal) to argue that any evidence showing

that Merrill Lynch was aware of the source of the funds was highly

relevant to his claims.

With this background in mind, we now return to the

procedural chronology. In early 2009, shortly after the hearing on

Carpenter's various motions for mistrial, acquittal, and new trial,

new documents began to emerge as part of a civil lawsuit against

Merrill Lynch. Those documents further tended to show that Merrill

Lynch employees were aware of the source of the funds Carpenter was

trading.

Carpenter touted this unfolding information as bearing

on his pending motions. See ECF No. 349 at 1, June 10, 2009

(noting that the new information has "a direct bearing on

Carpenter's pending post-trial motions"). On March 19, 2009,

Carpenter filed an emergency motion seeking, among other things, to

compel the government to acquire and review those new documents.

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Between March and July, Carpenter filed five reports updating the

district court on the developments in the civil lawsuit against

Merrill Lynch, responding to the government's arguments, and

reiterating his argument that the government should be ordered to

seek out and review the new documents. This included a joint

report submitted by the government and Carpenter, indicating that

the government had agreed to review the new information and report

"whether the government agrees that a new trial or dismissal of the

charges is appropriate in light of the new evidence." ECF No. 352

at 2, June 26, 2009.

4. Carpenter's Motion for Expedited Hearing (October
2009)

On October 28, 2009, Carpenter moved for expedited review

of his pending motions, albeit by filing a thirty-three-page motion

supported by over three hundred pages of exhibits. ECF No. 355,

October 28, 2009. Although the government had not yet reported

back on the new Merrill Lynch information pursuant to the June 26

agreement, Carpenter argued that there was now more than enough

information available for a ruling on his initial motions from June

and July 2008. Id. at 29. Carpenter stressed that fifteen months

had elapsed since he filed those initial post-trial motions. Id.

at 1-2, 26, 31-32.

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 5. Additional Delay and Additional Motions (October
2009 – September 2011)

By June 2010, the district court had yet to rule,

notwithstanding Carpenter's renewed expression of concern about the

delay. See ECF No. 360 at 3-4, January 13, 2010. In a June 17

letter, Carpenter sent the court conflicting messages: he asked it

to decide the pending motions for acquittal, mistrial, or new

trial, but he also advised the court that such action likely would

not be necessary because Carpenter expected the government to

dismiss the indictment against him. ECF No. 370 at 1, June 17,

2010 ("[I]t is our expectation that, in light of these new

developments, the Government will move to dismiss the indictment

with prejudice . . . thereby obviating the need for the Court to

resolve the motions that have been pending for two years.").

Another half-year then passed without the government

dropping the case or the district court deciding the motions that

Carpenter had told the court it should, but might not need to,

decide. In January, February, and July 2011, Carpenter submitted

three more letters providing supplemental authority or new

information, each of which also included a request for rulings on

the motions. The third update also requested a status conference,

noting that it had now been three years since the trial, "every day

of which is alone punishment." ECF No. 375 at 8, July 14, 2011.

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C. Second Grant of New Trial and Appeal (September 1, 2011)

On September 1, 2011--more than three years after

Carpenter's initial motion for a new trial after his second

conviction in July 2008--the district court granted Carpenter's

motion for a new trial. Carpenter, 808 F. Supp. 2d at 386. The

court denied Carpenter's motion for acquittal and other related

motions. Id. The government appealed (No. 11-2131), and Carpenter

filed an appeal of his own (No. 11-2133), which he later moved to

consolidate with the first appeal.

In March 2012, while both these appeals were still

pending, Carpenter filed a motion in district court to dismiss his

indictment for violating his Sixth Amendment right to a speedy

trial. The district court denied the motion on jurisdictional

grounds, citing the pending appeals. Carpenter then moved for this

court to remand the pending appeals to allow the district court to

consider his Sixth Amendment speedy trial motion. On May 3, 2013,

this court denied the motion to remand, as well as the motion to

consolidate the appeals, and a briefing schedule was set.

On May 23, 2013, the government moved for a forty-four-

day extension to file its brief on the grounds that the assistant

United States attorney who had filed the appeal in November 2011

was no longer in charge of the case, and the attorney who had taken

over needed time to review the extensive record while also managing

other cases with May and June deadlines. This court granted the

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order that day. Also on that day, Carpenter moved in this court to

dismiss the indictment, arguing that the government had failed to

"diligently prosecute[]" the appeal, as required by 18 U.S.C.

§ 3731. The basis for this claim was that the government had not

moved to expedite its appeal during the nineteen months that

Carpenter's various motions were under advisement, and that it now

sought an extension. This court denied the motion in July. The

case proceeded through briefing and was argued on November 7, 2013.

On November 25, 2013, this court reversed the district court's

grant of a third trial and remanded for sentencing. Carpenter, 736

F.3d at 632.5

D. Sentencing (February 2014)

Prior to sentencing, Carpenter again moved to have the

district court dismiss his indictment for violating the Sixth

Amendment's speedy trial clause.6 The district court denied the

motion. United States v. Carpenter, No. 04-10029-GAO, 2014 WL

691659 (D. Mass. Feb. 21, 2014). On February 26, 2014, the

5
On September 3, 2013, Carpenter also filed a certiorari
petition seeking review of both the district court's denial of
Carpenter's motion for acquittal, and this court's decision
dismissing Carpenter's appeal for lack of jurisdiction. That
petition was denied. Carpenter v. United States, 134 S. Ct. 901
(2014).
6
In January, he also moved for dismissal for violation of the
Speedy Trial Act, renewing the same argument he made at the close
of the second trial in 2008, which the district court at that time
denied. United States v. Carpenter, 542 F. Supp. 2d 183 (D. Mass.
2008). The district court denied the motion in open court on
January 28, 2014.

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district court sentenced Carpenter to thirty-six months'

imprisonment, three years' supervised release, and penalties;

judgment was entered March 4. On May 23, the district court also

granted the government's motion to order forfeiture of over

fourteen million dollars.

E. The Current Appeal

In this appeal, Carpenter argues that the district court

erred in its February 21, 2014, order by failing to set aside his

conviction and dismiss the indictment because the duration of the

proceedings violated his Sixth Amendment right to a speedy trial.

He also challenges: the district court's April 8, 2008, order

denying relief under the Speedy Trial Act, United States v.

Carpenter, 542 F. Supp. 2d 183 (D. Mass. 2008); the district

court's September 1, 2011, order denying Carpenter's motion for

acquittal on the basis of sufficiency of the evidence, and

(implicitly) denying a new trial on the basis of newly discovered

Merrill Lynch evidence, United States v. Carpenter, 808 F. Supp. 2d

366 (D. Mass. 2011); and the district court's March 4, 2014,

sentencing order.7

7
Carpenter also initially appealed the May 23 forfeiture
order, but both parties now agree that this order will be the
subject of a separate appeal.

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 II. Standard of Review

Our court has repeatedly reviewed district court rulings

on Sixth Amendment speedy trial motions for abuse of discretion.

See United States v. Salimonu, 182 F.3d 63, 69 (1st Cir. 1999);

United States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir.

1997); United States v. Colombo, 852 F.2d 19, 21 (1st Cir. 1988).

This formulation of the standard varies from that used in most

other circuits, which review such claims de novo, albeit while

applying clear error review to the district court's factual

findings. See, e.g., United States v. Lopesierra-Gutierrez, 708

F.3d 193, 202 (D.C. Cir. 2013); United States v. Velazquez, 749

F.3d 161, 174 (3d Cir. 2014); United States v. Bishop, 629 F.3d

462, 466 (5th Cir. 2010); United States v. Jackson, 473 F.3d 660,

664 (6th Cir. 2007); United States v. Hills, 618 F.3d 619, 629 (7th

Cir. 2010); United States v. Summage, 575 F.3d 864, 875 (8th Cir.

2009); United States v. Corona-Verbera, 509 F.3d 1105, 1114 (9th

Cir. 2007); United States v. Larson, 627 F.3d 1198, 1207 (10th Cir.

2010); United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir.

2010). Our formulation of the standard also seems in tension with

both our standard for reviewing motions to dismiss under the Speedy

Trial Act itself, see United States v. Valdivia, 680 F.3d 33, 38

(1st Cir. 2012) (reviewing denial of a Speedy Trial Act motion "de

novo as to legal rulings and for clear error as to factual

findings"), and more significantly, with our recent en banc ruling

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that the ultimate question of whether prison officials have

violated the Eighth Amendment is reviewed de novo. Kosilek v.

Spencer, 774 F.3d 63, 84 (1st Cir. 2014) (en banc).8 Be that as it

may, this case presents no need to resolve any fine questions

regarding the standard of review because, even under de novo

review, our conclusion would remain the same.

We review the denial of a Rule 29 motion for judgment of

acquittal de novo, examining the evidence in the light most

favorable to the verdict. United States v. Howard, 687 F.3d 13, 19

(1st Cir. 2012). We review the denial of a motion for a new trial

based on newly discovered evidence for manifest abuse of

discretion. United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.

1980). Finally, we review sentencing decisions for abuse of

discretion, examining the district court's findings of fact for

clear error and its interpretations of the sentencing guidelines de

novo. United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir.

2013).

8
Of course, any tension is mitigated in part by the fact that
even under review for abuse of discretion, an error in identifying
the correct legal standard is by its nature an abuse of discretion.
See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct.
1744, 1748 n.2 (2014) ("The abuse-of-discretion standard does not
preclude an appellate court's correction of a district court's
legal or factual error: 'A district court would necessarily abuse
its discretion if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.'")
(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990)).

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 III. Analysis

A. Sixth Amendment Right to a Speedy Trial

In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme

Court adopted a balancing test for assessing claims of a violation

of the Sixth Amendment right to a speedy trial. The test weighs

four factors: the length of the delay, the reason for the delay,

the defendant's assertion of the right to a speedy trial, and

whether the defendant has been prejudiced by the delay. Id. The

Court expressly rejected a bright-line rule in favor of a

"functional analysis of the right in the particular context of the

case." Id. at 522. It did so because the remedy--dismissal of the

indictment--was "unsatisfactorily severe." Id. ("The right of a

speedy trial is necessarily relative. It is consistent with delays

and depends upon circumstances. It secures rights to a defendant.

It does not preclude the rights of public justice.") (quoting

Beavers v. Haubert, 198 U.S. 77, 87 (1905)).

We begin our analysis by determining the length of delay

at issue. In undertaking that determination, we consider and

reject the government's argument that the Sixth Amendment places no

limit on the length of post-conviction proceedings. We next

closely examine the reasons for the delay, the extent to which

Carpenter sought greater speed, and the nature of any prejudice

caused to Carpenter by the delay.

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 1. Length of the Challenged Delay9

The first factor, length of delay, is both a triggering

mechanism for the rest of the analysis, and a factor in that

analysis. United States v. Souza, 749 F.3d 74, 81 (1st Cir. 2014).

While Carpenter's brief often cites the ten years that passed from

indictment to sentencing, he does not claim that the pace of the

proceedings was undue at all times. For example, he has no bone to

pick with the speed with which the case moved forward from the

indictment in September 2004 to the end of his first trial in July

2005. Nor does he suggest any delay in the district court taking

five months to hear and decide the motions Carpenter filed in the

wake of that first trial. Certainly the proceedings moved apace up

to December 2005, when the district court entered orders denying

Carpenter's motion for acquittal and granting him a new trial.

Carpenter's complaint about the pace of proceedings finds

its first toehold with the government's decision in January 2006 to

appeal the district court's granting of a new trial. That appeal

sidetracked the case for just over twenty months until the mandate

denying the appeal issued in September 2007. Second, Carpenter

complains about the pace of proceedings between the end of the

9
We use the unqualified word "delay" in this opinion to refer
to the entire period of time between two events, recognizing that
only unjustified delay that fails the Barker balancing test
violates the Sixth Amendment. See Barker, 407 U.S. at 533
(analyzing whether "the length of delay between arrest and trial"
violates the Sixth Amendment).

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second trial in June 2008 and the entry, in September 2011, of the

district court's order setting aside the second jury's verdict and

ordering a third trial. Finally, Carpenter complains about the

twenty-six months consumed by the government's successful appeal of

the order setting aside the second jury verdict.

The government concedes the foregoing calculations of

delay. It argues, however, that the latter two time periods should

play no role in our Sixth Amendment analysis because they post-

dated the June 2008 guilty verdict that our court ultimately

sustained. Describing this passage of time as, at worst, a delay

in sentencing, the government urges this court to follow the Second

Circuit in United States v. Ray, 578 F.3d 184, 198-99 (2d Cir.

2009). In that case, the court opined that "the harms arising from

delayed sentencing . . . are quite different from those animating

the Speedy Trial Clause." Id. at 198. The court concluded that

the Constitution protects defendants from sentencing delay through

the Fifth Amendment, not the Sixth. Id. at 199.

We decline to adopt that conclusion. Although neither

the Supreme Court nor this circuit has held that the Sixth

Amendment applies to post-conviction delay, both have assumed so

arguendo. See Pollard v. United States, 352 U.S. 354, 361 (1957);

United States v. Nelson-Rodríguez, 319 F.3d 12, 60 (1st Cir. 2003)

(noting that most circuits that had considered the issue had either

held or assumed the same). It is no doubt true that the concerns

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arising from pre-trial delay--when a person presumed to be innocent

stands under the shadow of accusation--are not identical to those

arising from post-conviction delay. The difference, though, is not

quite as great as it may seem, given that a guilty verdict is not

yet final until appeals are exhausted. Moreover, our Sixth

Amendment analysis itself recognizes the difference in the pre- and

post-verdict time frames, in that the required balancing of

interests includes an assessment of the extent to which delay

causes prejudice. Thus, we see no reason to depart from the

majority view that assumes that the Sixth Amendment also protects

against post-trial delay.

Having thus rejected the government's attempt to excise

from our Sixth Amendment analysis the five years that passed

between the second jury verdict and the decision of this court

sustaining that verdict, we turn our attention to asking,

initially, whether any or all of the delays that Carpenter

challenges are sufficiently ordinary so as to terminate our Sixth

Amendment analysis. "Until there is some delay which is

presumptively prejudicial, there is no necessity for inquiry into

the other factors . . . ." Barker, 407 U.S. at 530. In so doing,

we accept Carpenter's position that "[e]ach of these periods should

be assessed separately." At the same time, we also consider any

actual delay cumulatively.

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 We need not tarry in making this initial inquiry. Delay

of around one year is considered presumptively prejudicial, and the

presumption that delay prejudices the defendant "intensifies over

time." Doggett v. United States, 505 U.S. 647, 652 and n.1

(1992). Given that the periods of time here each well exceed one

year, and cumulatively exceed six years, we think it practical to

proceed to examining the reasons for that delay.

2. Reason for Delay

The second Barker prong, the reason for delay, is "often

considered the focal inquiry." United States v. Trueber, 238 F.3d

79, 88 (1st Cir. 2001). As discussed above, Carpenter challenges

three periods of delay: (1) the twenty months occupied by the

government's failed appeal after the first grant of a new trial in

December 2005; (2) thirty-four months of the roughly three years it

took the district court to rule on Carpenter's motion for acquittal

or new trial after his second conviction in June 2008, and (3) the

twenty-six months consumed by the government's second, successful

appeal of the district court's grant of a new trial in September

2011. We now consider each in turn.

a. The Government's First Appeal

Carpenter first argues that the time consumed by the

first appeal constitutes unwarranted delay because the government's

position on appeal was weak. In general, delay caused by

interlocutory review does not cut against the government. United

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States v. Loud Hawk, 474 U.S. 302, 312-15 (1986) ("Given the

important public interests in appellate review . . . it hardly need

be said that an interlocutory appeal by the Government ordinarily

is a valid reason that justifies delay.") (internal citation

omitted). The Loud Hawk court noted, however, that a "tangential

or frivolous" appeal would weigh heavily against the government, so

courts should consider the strength of the government's position on

the appealed issue, the importance of the issue to the case, and

(in some cases) the seriousness of the crime to determine whether

an appeal should cut against the government. Id. at 315.

These factors all cut strongly against concluding that

the time consumed by the first appeal constituted unjustified

delay. The government's closing comments that led to the grant of

a new trial did not even elicit a contemporaneous objection from

defense counsel or rebuff from the court itself. While the

district court in its discretion concluded that the comments were

sufficiently prejudicial as to require a new trial, that same

court, in its February 2014 order rejecting Carpenter's speedy

trial motion, described the government's appeal of that grant of a

new trial to be "legitimate and justifiable." Carpenter, 2014 WL

691659 at *2. Most notably, the panel hearing the appeal was

split, with one judge finding persuasive the government's argument

that the district court erred in applying too strict a standard in

assessing the impact of closing comments that failed to draw a

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contemporaneous objection. United States v. Carpenter, 494 F.3d

13, 29 (1st Cir. 2007) (Campbell, J., dissenting). However one

defines the category of reasonably strong appeals, it likely

includes an appeal that garnered an actual vote by a circuit court

judge in favor of the appeal.

The appealed order had set aside a jury verdict

convicting Carpenter of very serious charges. A successful appeal

would have ended (i.e., also shortened) the case. Focusing his

argument on the fact that the government chose to appeal at all,

Carpenter otherwise raises no objection to the duration of the

appeal. We therefore reject his contention that the time consumed

by the appeal constituted unjustified delay of any type relevant to

our analysis.

b. The Government's Second Appeal

As for the government's appeal of the second grant of a

new trial in September 2011, Carpenter cannot argue that the

government's position, which actually prevailed, was weak. He

argues instead that the appeal took too long--twenty-six months in

total--because the government failed to diligently prosecute the

appeal. Nineteen months elapsed between the government's filing of

a second notice of appeal in September 2011 and when a briefing

schedule was set in May 2013. Carpenter also points to the

government's successful motion, after the briefing schedule was

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set, for a forty-four-day extension to allow new counsel to

familiarize herself with the record.

The unusual passage of nineteen months between the filing

of the appeal and the setting of a briefing schedule was not,

however, due to any fault of the government. Rather, it was

Carpenter's own cross-appeal and related motions that slowed down

the government's appeal. As discussed above, after the government

filed its notice of appeal on September 27, 2011, Carpenter on

September 29 filed his own notice of appeal, which challenged the

denial of his motions for acquittal and mistrial. On November 7,

2011, he moved to consolidate that appeal with the government's

appeal. In March 2012, he also moved in the district court to

dismiss the indictment on Sixth Amendment grounds. When the

district court in May 2012 denied that motion, citing the pending

appeals, Carpenter moved for this court to remand the case to the

district court to rule on the Sixth Amendment speedy trial motion.

We denied this motion in May 2013, and also dismissed Carpenter's

cross-appeal for lack of jurisdiction.10 At that point, with

Carpenter's own predicate motions resolved in due course, a

briefing schedule for the government's appeal was set.

10
The court determined that the orders from which Carpenter
appealed were not appealable collateral orders. As mentioned
above, Carpenter's petition for certiorari challenging this
determination was denied. Carpenter, 134 S. Ct. at 901.

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 Carpenter is correct that the government's request for an

extension then slowed things down by forty-four days, but the fact

that this extension was warranted is evidenced by this court's

granting the government's motion for an extension and denying

Carpenter's motion to dismiss for lack of diligent prosecution.

With that final motion resolved, the case proceeded apace to

argument on November 7, 2013, and a decision reversing the district

court's grant of a new trial on November 25, 2013. Carpenter, 736

F.3d at 632.

Carpenter cites no authority to suggest that the

government should have sought expedited briefing, much less that it

should have done so while Carpenter's own motion to remand was

pending. Yet another motion in a motion-laden case could hardly

have helped the goal of swift resolution. We therefore agree with

the government that the district court did not abuse its discretion

in determining that the second appeal occasioned no unwarranted

delay in the conclusion of the case.

c. The Time Between the Second Verdict and the
Second New Trial Order

As the district court itself recognized, see Carpenter,

2014 WL 691659 at *2, Carpenter's argument acquires some traction

when we turn to the roughly thirty-eight months that passed between

the end of the second trial in June 2008 and the district court's

granting Carpenter's motion for a second new trial in September

-23-
2011.11 A portion of that time passed in what can fairly be

described as normal course. The parties agreed to a schedule for

post-trial briefs, a hearing was set for October and then postponed

to December 3, 2008, based on requests by both parties and without

objection. Had nothing else been at issue, nor anything else

filed, one would normally have expected a decision on the

admittedly extensive and heavily briefed motions for acquittal or

new trial by the June 2009 anniversary of the trial. Instead, no

ruling issued until September 2011.

The district court admitted that it bore at least some

responsibility for this "regrettable" delay, but also cited

Carpenter's many motions as the main culprit. Id. at *2-3. It is

well-established that it cuts heavily against a defendant's speedy

trial claims when his own motions contribute to the delay. Loud

Hawk, 474 U.S. at 316-17 ("Having sought the aid of the judicial

process and realizing the deliberateness that a court employs in

reaching a decision, the defendants are not now able to criticize

the very process which they so frequently called upon.") (internal

quotation marks omitted); United States v. Worthy, 772 F.3d 42, 49

(1st Cir. 2014); United States v. Muñoz-Franco, 487 F.3d 25, 60-61

(1st Cir. 2007); Nelson-Rodríguez, 319 F.3d at 61; United States v.

11
Carpenter made the new trial motion in July 2008, thirty-
eight months before September 2011. However, he asks the court to
focus on only the thirty-four months between the hearing on the new
trial motion on December 3, 2008, and the granting of that motion
on September 1, 2011.

-24-
Muñoz-Amado, 182 F.3d 57, 62 (1st Cir. 1999); United States v.

Gibson, 353 F.3d 21, 22-23 (D.C. Cir. 2003).

In this case, in addition to the numerous motions that

were pending at the end of the second trial, Carpenter made twenty

filings between the June 2008 jury verdict and the December 2008

hearing on his motions. As described in the facts section of this

opinion, these filings included two separate sets of motions for

acquittal or new trial filed by two separate legal teams and which

advanced numerous, distinct theories of error; two additional

motions for a new trial based on newly discovered evidence; and

lengthy responses to the government's responses. Many were very

substantial.12 Presumably he wanted the district court to review

them all, and of course the court had to review the government's

responses.

Carpenter defends his avalanche of filings as justified.

But that is beside the point. The filings cut against Carpenter in

our Sixth Amendment analysis not because they were weak or

otherwise not justified. Rather, they cut in this manner because

they support the district court's statement that the need to

consider the filings reasonably consumed time.

12
Some of the more lengthy filings include the initial sixty-
seven-page motion for acquittal or new trial; a response to the
government's opposition to that motion, totaling forty-eight pages
with exhibits; and a reply memorandum in support of his mistrial
motion totaling seventy-six pages with exhibits.

-25-
 Carpenter then points out that the district court did not

rely on the post-hearing filings regarding Merrill Lynch when it

finally granted Carpenter a new trial in September 2011. That is,

if the district court granted Carpenter's 2008 motion without

regard to any of the arguments raised in subsequent motions, why

did it not do so closer to 2008?13 The problem with this argument

is that it suggests the district court would have known at the

outset the grounds on which its decision would rest. This expects

too much of the district court. Carpenter's Merrill Lynch motions

began in March 2009, three months after the motion hearing. As he

continued updating the court, he explicitly stated that this new

information had "a direct bearing" on his pending motions. ECF No.

349 at 1, June 10, 2009. His regular updates suggested a fast-

changing situation that could likely lead to more motions. At

least initially, the district court cannot be faulted for holding

off on making a ruling while the information was still evolving and

Carpenter was insisting it was relevant.

13
Carpenter also argues in his reply brief that the district
court could not have considered the new evidence in preparation for
the September 2011 order because the district court stated in the
December 2008 hearing that the government's behavior with regard to
this evidence did not violate its obligations under Brady v.
Maryland, 373 U.S. 83 (1963). However, Carpenter at no time
suggested that he was presenting the Merrill Lynch evidence solely
as a Brady claim, and in fact explicitly stated multiple times in
his 2009 submissions that this information was relevant to his
pending motions for retrial and acquittal.

-26-
 This argument loses some force over time, however,

particularly after the civil trial against Merrill Lynch concluded

in July 2009. Although Carpenter continued to provide updates

based on newly decided cases and the damages phase of the civil

trial, after October 2009 they became less frequent, and Carpenter

began pressing the district court to rule on his motions. See ECF

No. 355 at 1, October 28, 2009. Granted, the unusually large

number of motions, as well as their length, makes it unsurprising

that the district court would still need an unusually long time to

give them full consideration. By the time of Carpenter's October

2009 motion, however, sixteen months had passed since the end of

trial, and Carpenter had formally moved the district court to make

a decision on the motions that had been argued in December 2008.

Once the anniversary of that hearing had passed, the reason for any

continuing delay can no longer be attributed primarily to

Carpenter.

We therefore conclude that there was an unwarranted delay

of some twenty-one months in the progress of this case, from

roughly December 2009 to September 1, 2011.14 Nevertheless, the

prosecution played no role in this unwarranted delay. Nor was the

district court using delay in any hostile manner. When delay is

the result of negligence and not bad faith, it weighs less heavily

14
Putting a finer point on this estimate would require
comparative empirical evidence not readily available and would, in
any event, be irrelevant to our conclusions.

-27-
in the balancing called for by Barker. Barker, 407 U.S. at 531 ("A

deliberate attempt to delay the trial in order to hamper the

defense should be weighted heavily against the government. A more

neutral reason such as negligence or overcrowded courts should be

weighted less heavily but nevertheless should be

considered . . . ."); see Santiago-Becerril, 130 F.3d at 22.

3. Assertion of the Right

The third prong is the assertion of the speedy trial

right, in particular the "frequency and force" with which the

defendant objected to delay. Barker, 407 U.S. at 529. Courts look

with some skepticism at assertions of speedy trial rights made by

defendants who contribute to the delay, and are particularly

skeptical of those who raise the issue for the first time in a

motion to dismiss. See, e.g., id. at 534-35 ("Barker did not want

a speedy trial. . . . While he hoped to take advantage of the delay

in which he had acquiesced, and thereby obtain a dismissal of the

charges, he definitely did not want to be tried."); Santiago-

Becerril, 130 F.3d at 22. And like the other factors, assertion of

the right is not in itself decisive. See Muñoz-Franco, 487 F.3d at

60-61 (finding no violation despite the fact that the appellants

three times raised speedy trial objections).

Carpenter's first motion to dismiss on Sixth Amendment

speedy trial grounds came in March 2012, after the government had

appealed his second grant of a new trial. However, he began

-28-
pressing for action on his pending motions for acquittal or new

trial much earlier, when he moved for expedited hearing in October

2009, and he continued to stress the delay in subsequent filings.

Thus, in our view, the district court's conclusion that Carpenter's

assertion of the right had been "spotty at best," Carpenter, 2014

WL 691659 at *4, is not quite accurate, at least in the time period

from late 2009 to 2011, when his undecided motion was pending.

Of course, on June 17, 2010, Carpenter informed the court

that the whole case might go away, and that the court might not

need to decide the post-trial motions. It is reasonable to think

that a busy trial judge, so informed, might attend to other matters

rather than re-engaging with a voluminous set of motions.

Nevertheless, this does not significantly detract from the fact

that during the period of unwarranted delay, Carpenter otherwise

steadily pressed the district court for action.

4. Prejudice

The prejudice prong seeks to protect three interests:

avoidance of oppressive pretrial incarceration, minimizing anxiety

and concern, and limiting the possibility that the defense will be

impaired. Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at

532).

A defendant must struggle to satisfy the prejudice prong

after conviction, when two of the three factors relevant to the

prejudice analysis--excessive pre-trial incarceration and

-29-
impairment of an effective defense--are of little or no relevance.

See Pérez v. Sullivan, 793 F.2d 249, 256 (10th Cir. 1986). Thus,

Carpenter cannot argue that this delay extended any pretrial

detention because there was none: Carpenter was released on

personal recognizance on February 24, 2004, the day of his

arraignment. Carpenter likewise can offer no evidence that any

delay prejudiced his defense. Indeed, a quicker pace may have

deprived him of the basis for his forays concerning the Merrill

Lynch documents.

Carpenter's argument instead focuses on the anxiety he

suffered throughout the proceedings. His brief, supported by

record materials, describes a "living hell" of lost business

opportunities, financial stress, sleeplessness, panic attacks, and

the like. He points, however, to no opportunities that would not

have been lost as well in the wake of a speedier conviction. And

while anxiety about the outcome of post-conviction motions and

appeals is no doubt real, anxiety is a normal part of the pendency

of criminal charges. It therefore becomes a sign of prejudice only

when "undue pressures" exist. Muñoz-Franco, 487 F.3d at 61

(quoting Santiago-Becerril, 130 F.3d at 22-23).

While Carpenter argues convincingly that he has suffered

great stress throughout the proceedings, he does not demonstrate

why his anxiety was greater than that suffered by many other

defendants, other than that it continued longer. See United States

-30-
v. Colombo, 852 F.2d 19, 26 (1st Cir. 1988) (noting that "[t]he

passage of time alone . . . is not conclusive evidence of

prejudice"). While it may be possible that post-conviction delay

could result in prejudice by shifting the time period in which a

defendant serves his sentence, Carpenter makes no such argument

here. In sum, while the length of delay causes us to presume some

prejudice, we find nothing in this record to establish that

Carpenter suffered a type of prejudice that would take on added

weight in our assessment of the constitutionality of that delay.

5. Weighing the Factors

While the travel of the case as a whole was remarkable,

its length arose almost entirely because the district court

exercised (and exceeded in one instance) its discretion in granting

Carpenter relief from verdicts against him. In the end, we have an

unjustified delay of roughly twenty-one months, which occurred

after a guilty verdict was returned and without any meaningful

fault of the government. While the delay was unfortunate, it did

not impair the defense, create any undue pressure, or result in any

period of incarceration.

Carpenter points to no precedent for setting aside a

guilty verdict in such circumstances, nor are we aware of any.

Rather, precedent points otherwise. In Katz v. King, 627 F.2d 568

(1st Cir. 1980), we rejected a claim that a four-month delay

between the completion of trial and the entry of the verdict

-31-
violated the defendant's right to a speedy trial. In so doing, we

noted that other courts have "found delays in sentencing of up to

twenty-nine months not to be excessive." Id. at 576 (citing United

States v. Campisi, 583 F.2d 692, 694 n.5 (3d Cir. 1978). We also

rejected a challenge to a fourteen-month delay between conviction

and sentencing, relying "most importantly" on the diminished

possibility of prejudice in the post-conviction time frame.

Nelson-Rodríguez, 319 F.3d at 61 ("[T]he courts have great

reluctance to find a speedy trial deprivation where there is no

substantial and demonstrable prejudice."); cf. Worthy, 772 F.3d at

49-50 (affirming the district court's rejection of a Sixth

Amendment claim based on a twenty-three-month pre-trial delay in

light of the "complexity of the case, [the defendant's] own

responsibility for and acquiescence in the delay, and the absence

of any cognizable prejudice").

While each case must be evaluated in the context of its

own circumstances, see Barker, 407 U.S. at 533, the complete lack

of any precedent for throwing out a guilty verdict when the

defendant has not demonstrated prejudice (beyond the considerable

anxiety felt by many criminal defendants post-conviction) strongly

supports our own conclusion that, under Barker, Carpenter's Sixth

Amendment rights have not been violated. We do not reject the

notion that post-conviction delay might give rise to a remedy,

perhaps on mandamus review (which Carpenter never sought). Cf.

-32-
Dolan v. United States, 560 U.S. 605, 616-17 (2010) (indicating

that mandamus could be used to compel a district court to hasten a

ruling under certain rare circumstances). However, the relief

Carpenter seeks--dismissal of the indictment for which he has twice

been found guilty--is unwarranted here.

B. Speedy Trial Act

Carpenter next makes a more technical, statutory version

of a speedy trial claim. He argues that the district court erred

in its April 8, 2008, order by not dismissing the indictment for

purportedly violating the Speedy Trial Act, 18 U.S.C. §§ 3161-3174,

during the period of time between the district court's first grant

of a new trial on December 15, 2005, and setting the date for that

trial on November 26, 2007. United States v. Carpenter, 542 F.

Supp. 2d 183, 183-85 (D. Mass. 2008). This circuit reviews a

denial of a statutory speedy trial claim de novo as to legal

rulings, and for clear error as to factual findings. United States

v. Valdivia, 680 F.3d 33, 38 (1st Cir. 2012).

The Speedy Trial Act imposes a seventy-day deadline on

bringing a defendant to trial, which normally runs from the later

of the filing of the information or indictment, or the first

appearance of the defendant. See 18 U.S.C. § 3161(c)(1). However,

a specific provision covers retrials: section 3161(e) provides

that if the defendant is to be tried again "following a declaration

by the trial judge of a mistrial or following an order of such

-33-
judge for a new trial," or "following an appeal or a collateral

attack," that new trial must commence within seventy days "from the

date the action occasioning the retrial becomes final." Id.

§ 3161(e). In addition, section 3161(h) provides a list of eight

kinds of delay that "shall be excluded . . . in computing the time

within which the trial of any such offense must commence." This

list includes "delay resulting from any interlocutory appeal." Id.

§ 3161(h)(1)(C).

In Carpenter's case, the district court ordered a new

trial on December 15, 2005. The government appealed thirteen days

later on January 9, 2006. After this court affirmed the new trial

order, fifty-eight more days elapsed before the status conference

in which the district court set a new trial date and granted a so-

called "ends-of-justice" continuance until that date, as is allowed

by 18 U.S.C. § 3161(h)(7)(A). From this timeline, Carpenter makes

two arguments for why the government violated the Speedy Trial Act.

1. When the "Action Occasioning Retrial" Becomes Final

The parties' first disagreement concerns when, under

section 3161(e), the "action occasioning retrial becomes final" and

the seventy-day clock begins to run in a case where the district

court set aside a verdict and ordered a new trial, the prosecution

appealed that order, and the appellate court confirmed the order.

Carpenter argues that the clock began to run upon the district

court's new trial order; the government counts from the date on

-34-
which the court of appeals' mandate issued. Under Carpenter's

view, the thirteen pre-appeal days added to the fifty-eight post-

appeal days exceed by one day the seventy-day limit.

Neither the Supreme Court nor our circuit has interpreted

the phrase "the date the action occasioning the retrial becomes

final" as applied to a district court's retrial order that is

affirmed on appeal. Here, though, we require no precedent to

answer the question posed. Rather, we look to the statutory

language, which we read as plainly providing that the seventy days

starts when the appellate mandate affirming the district court

order issues,15 thereby rendering that order final. We read the

language in this manner primarily because there is no reason to

have used the term "becomes final" if the drafters actually meant

the date the challenged order was entered.

Carpenter's argument to the contrary turns on section

3161(h)(1)(C), which provides that the time for "any" interlocutory

appeal is "excluded" from Speedy Trial Act calculations. Carpenter

argues that because this latter provision covers "any"

interlocutory appeal, Congress intended to account for an appeal

after a new trial order by "excluding" the time of the appeal from

the seventy days that began to run on the date of the district

15
An appeal ends for Speedy Trial Act purposes when the
mandate issues. United States v. Rush, 738 F.2d 497, 509 (1st Cir.
1984).

-35-
court order, and not by postponing the beginning of the seventy-day

period until the court of appeals affirms the order.

Carpenter's argument faces an uphill battle, given that

the text of section 3161(h)(1)(C) does not address the question of

when the seventy-day clock begins to run. The strongest argument

in support of Carpenter's position (albeit one that Carpenter

didn't make) is that section 3161(e) contains a provision that

"[t]he periods of delay enumerated in section 3161(h) are excluded

in computing the time limitations specified in this section." If

the seventy-day clock doesn't even start running until the

conclusion of the appeal, why incorporate the exclusion for

interlocutory appeals under section 3161(h)(1)(C)?

The answer is that our reading of section 3161(e) does

not render entirely unnecessary the need to have a tolling period

for interlocutory appeals in cases where new trial orders are

affirmed on appeal. It is entirely possible for an appeals court

to affirm a new trial order, triggering the seventy-day clock under

section 3161(e), and for a party to file a different interlocutory

appeal before the seventy days expires. In that case, the seventy

days would start when the retrial order became final--either when

it was entered for cases that are not appealed, or when the

-36-
appellate court's mandate issued for cases that are--and would be

tolled for the duration of any subsequent appeal.16

This plain reading of section 3161(e) is supported by

Congress' use of identical language in section 3161(d)(2). That

section addresses the scenario in which a district court dismisses

an indictment, but an appeals court causes it to be reinstated. In

such a case, the only possible candidate for the "action

occasioning retrial" is the action of the appeals court. Yet

section 3161(d)(2) also includes a statement that "the periods of

delay enumerated in section 3161(h) are excluded." Clearly, that

incorporation of section 3161(h) in section 3161(d)(2) cannot mean

that the seventy-day clock begins to run before the appeal is

concluded. The wholesale incorporation of section 3161(h) into

section 3161(d), then, simply covers the possibility that some

other interlocutory appeal might cause some need to toll the

16
For example, the prosecution might appeal from the granting
of a motion to exclude before the new trial commences, or a
defendant might appeal the denial of a double jeopardy motion
before the second trial, as the defendant did in United States v.
Pitner, 307 F.3d 1178, 1182-83 (9th Cir. 2002).

-37-
running of the seventy days.17 We read it to do the same in section

3161(e).

Our interpretation is also consistent with the Guidelines

to the Administration of the Speedy Trial Act, As Amended, issued

by a United States Judicial Conference committee. 106 F.R.D. 271,

282 (1984) ("[I]f an appeal or petition for certiorari is filed,

the action occasioning the retrial should not be considered final

until the appeal or petition has been disposed of.") The

government also points to legislative history tending to suggest

that the "becomes final" language was added to clarify that the

seventy days were triggered by the conclusion of any appeals. See

Anthony Partridge, Legislative History of Title I of the Speedy

Trial Act of 1974 80-82 (Fed. Judicial Center 1980).

The circuit court opinions Carpenter cites as support for

his reading are not to the contrary, despite language seeming to

suggest otherwise. See United States v. Pitner, 307 F.3d 1178,

1182-83 (9th Cir. 2002) ("interlocutory appeals interrupt the

seventy day period; they do not start it running") (internal

quotation marks omitted); United States v. Rivera, 844 F.2d 916,

17
Granted, an appeal covered by section 3161(d) is a direct
appeal, and thus section 3161(h)(1)(C) does not pose precisely the
same question of apparent redundancy as an interlocutory appeal of
a new trial order under section 3161(e). Nevertheless, it still
demonstrates how section 3161(h)(1)(C) plays an important role in
the statutory framework unrelated to the question of when the clock
begins to run, which suggests Congress did not intend it to
obliquely define the starting point of the seventy-day clock in a
retrial case under section 3161(e).

-38-
919 (2d Cir. 1988).18 ("[T]he 70-day period . . . started . . .

when the mistrial was declared, and the speedy trial clock resumed

on the date the exclusion allowed for an interlocutory appeal . . .

ended.") In both cases, the actual issue concerned an

interlocutory appeal of an order other than the mistrial orders

that made a new trial necessary. In Rivera, there was actually no

dispute--or material issue--concerning when the seventy-day clock

started to run. Rivera, 844 F.2d at 919-22. In Pitner, there was

such a dispute, but we would have reached the same result under our

reading of section 3161(e). There, the district court declared a

mistrial because the jury was deadlocked, and the prosecution did

not (and likely could not) appeal. Pitner, 307 F.3d at 1180. The

"action occasioning the retrial" was thus the mistrial order, the

finality of which was never delayed or suspended. Months later,

the defendant appealed from the denial of a motion to dismiss on

double jeopardy grounds. Just as we would, the Ninth Circuit held

that the time taken by that interlocutory appeal was simply to be

excluded in calculating the seventy days that began running when

the mistrial was declared. Id. at 1182. To the extent the court

18
Carpenter also cites to United States v. Ginyard, 572 F.
Supp. 2d 30, 36 (D. D.C. 2008), for the sentence "an interlocutory
appeal interrupts, but does not restart the running of the clock."
The issue in Ginyard--was whether an extension provision in section
3161(e) applies retroactively--is even further removed from the
question here.

-39-
explained that holding in terms that went beyond the facts

presented, we disagree for the reasons stated above.

For these reasons, we have little trouble concluding that

when a party appeals a district court order granting a new trial,

the action occasioning the retrial becomes final when the mandate

of the appellate court issues. Here, that happened when this

circuit upheld the grant of a new trial fifty-eight days before the

district court set a new trial date and granted an ends-of-justice

continuance for the time before trial.

2. The Sufficiency of the Ends-of-Justice Findings

Carpenter next argues that the district court's November

28, 2007, ends-of-justice continuance, which excluded from Speedy

Trial Act calculations all time between the status conference

setting the trial date and the commencement of trial, was invalid

because the district court did not at the time make specific

findings in the record as to why it was granting the continuance,

as required by 18 U.S.C. § 3161(h)(7)(A). This provision allows

the district court to grant a continuance on the basis of 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."

Id. It further provides that delay resulting in the continuance is

not excludable "unless the court sets forth, in the record of the

case, either orally or in writing, its reasons for finding that the

ends of justice" are served in light of statutory factors defined

-40-
in section 3161(h)(7)(B).19 Id. § 3161(h)(7)(A). One of the

factors is whether failure to grant a continuance would

unreasonably deny the defendant the ability to obtain counsel or

continuity of counsel, or would deny counsel for either party time

to prepare. Id. § 3161(h)(7)(B)(iv).

The Supreme Court has emphasized the importance of on-

the-record findings, albeit in the context of a case where the

defendant, at the district court's urging, waived for all time his

speedy trial rights, and the government argued that the prosecution

could be salvaged by granting a retroactive ends-of-justice

continuance. United States v. Zedner, 547 U.S. 489, 507-08 (2006).

Zedner held that findings must be made "if only in the [trial]

judge's mind" by the time the continuance is granted, and must be

entered in the record by the time the district court denies the

motion to dismiss on STA grounds. Id. at 506-07. Because the

district court "entered" its reasons for granting a continuance

into the record through the order denying the motion to dismiss,

Carpenter, 542 F. Supp. 2d at 183-84, as well as in the hearing on

19
The factors are (i) whether failure to grant the continuance
would make the continuation of the proceeding impossible or result
in a miscarriage of justice, (ii) whether the case is particularly
unusual or complex, (iii) whether a grand jury proceeding is
unusual or complex, or (iv) in a case that is not particularly
unusual or complex, whether failure to grant the continuance would
unreasonably deny the ability to obtain counsel, or the continuity
or preparation of that counsel. 18 U.S.C. § 3161(h)(7)(B).

-41-
that motion, Carpenter focuses his argument on whether the district

court "made" the findings at the time it granted the motion.

This argument fails. The transcript of the January 24,

2008, hearing in which the district court granted the continuance

demonstrates the court carefully considered why and for how long

the government and Carpenter's counsel would be unavailable in

light of countervailing considerations such as the availability of

witnesses. It rejected Carpenter's request to put off scheduling

a trial until a status conference in March, and it ultimately set

a trial date earlier than the one Carpenter's counsel requested.

The record is clear that the district court balanced counsels'

schedules with the public's interest in a speedy trial, and thus

its decision represents a determination that granting a continuance

served the ends of justice.

C. Sufficiency of the Evidence and Jury Instructions

Carpenter next argues that the district court erred when

it denied Carpenter's motion for acquittal in which he argued that

the government did not prove that he had an affirmative duty to

disclose anything to the investors, which is a necessary element of

a theory of fraud by omissions. This argument fails because the

government did not prosecute a theory of fraud by omission: its

theory was that the marketing materials and agreements contained

-42-
misleading affirmative statements.20 As the district court noted,

"[a]rguing that the defendant omitted material information

necessary to make the affirmative statements not misleading did not

transform the case from one of affirmative misrepresentations to a

case of misrepresentation solely by reason of omission."

Carpenter, 2014 WL 691659 at *5. In its 2013 decision, this court

shared the district court's view of the prosecution's theory. See

Carpenter, 736 F.3d at 623-24 (noting that the government's theory

was that the marketing materials "effectively promised" the

exchangors' funds would be kept safe). Under the theory of

misleading affirmative statements, there was no need to prove the

elements of a pure failure-to-disclose case.

D. Motion for New Trial Because of Newly Discovered Evidence

Carpenter next challenges the district court's denial of

his motion for a new trial based on the Merrill Lynch documents

that appeared after his second trial. As described above, those

documents indicated that Merrill Lynch knew that Carpenter was

20
Carpenter first raised the issue of whether the government's
theory was misrepresentation or omission as one of three issues in
a July 2008 supplemental motion for acquittal. This motion was
summarily denied in the September 1, 2011, order granting Carpenter
a new trial. Carpenter, 808 F. Supp. 2d at 386. The order did not
specifically discuss whether the government had, in fact, offered
a theory of fraud by omission at trial. However, in a separate
motion for a new trial, he recast the same basic argument as a
challenge to the indictment, arguing that the government charged
him with affirmative misrepresentation, but at trial argued fraud
by omission. It is in this context that the district court
determined that the theory was one of affirmative
misrepresentation.

-43-
investing other people's money, and thus supported Carpenter's

claim that he did not hide that fact from Merrill Lynch. All of

this, he claims, would have turned the tide on his good faith

defense. In its 2011 order, the district court did not buy this

argument.21 Carpenter, 808 F. Supp. 2d at 379-86. We now review

that decision.22

21
In the September 1, 2011, order, the district court
explicitly rejected the argument that the Merrill Lynch evidence
constituted grounds for a judgment of acquittal, and also did not
list it as one of the grounds on which it granted a new trial.
Carpenter, 808 F. Supp. 2d at 378-79.
22
The district court did not expressly consider these claims
as a motion for a new trial based on newly discovered evidence, but
did state in a February 10, 2014, status conference that its
September 1, 2011, order was an implicit denial on those grounds.
The reason for this approach is as follows: Carpenter began
introducing emerging evidence from the Merrill Lynch trial in March
2009. He presented this information as relevant to his pending
motions, not as the basis for a new motion. In fact, when the
government argued that Carpenter was, in essence, making an
argument for a new trial based on newly discovered evidence,
Carpenter expressly denied that he was.

When the district court granted Carpenter's motion for a new
trial on September 1, 2011, it summarily denied all other pending
motions. Carpenter, 808 F. Supp. 2d at 386. After we reversed the
second grant of a new trial, Carpenter argued in a February 10,
2014, status conference that one of his submissions regarding
Merrill Lynch--the October 28, 2009, "Memorandum in Support" of his
pending motions (ECF No. 355)--was an undecided motion for a new
trial. The district court instead held Carpenter to his prior
position that the new information was part of his previous motions
and not a distinct motion, and treated the argument as having been
implicitly decided against Carpenter in the September 1, 2011
motion. It did so over the government's contention that Carpenter
had waived any argument for a new trial based on newly discovered
evidence.

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 "Ordinarily we will affirm the trial court's denial of a

new trial" based on claims of newly discovered evidence "unless the

court has manifestly abused its discretion." United States v.

Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). This remains the case

even when the district court did not clearly articulate its reasons

for denying the motion, which, because of the complexities

introduced by the voluminous filings in this case, is the situation

presented here. Id.; United States v. Connolly, 504 F.3d 206, 212

(1st Cir. 2007). Although the standard is somewhat heightened when

the government knowingly presents false testimony, the district

court rejected the claim that the government did so in any way that

affected the integrity of the trial, and we agreed.23 See

Carpenter, 731 F.3d at 630-31. Thus, we reject Carpenter's

argument that a heightened standard is called for in this case.

A district court may grant a motion for a new trial based

on newly discovered evidence if (1) the evidence was unknown or

unavailable to the defendant at the time of trial; (2) failure to

learn of it was not because of lack of due diligence; (3) the

evidence is material, and not merely cumulative or impeaching; and

(4) it will probably result in acquittal upon retrial. Wright, 625

23
We decline Carpenter's invitation to revisit this
determination, which he argues is warranted because the new
evidence even more strongly suggests that GL's testimony was not to
be believed. The fact remains that the government presented
evidence from which a jury could conclude that the questionable
portion of his testimony was not to be believed.

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F.2d at 1019. Here, we need not discuss the first two prongs,

because Carpenter's claims founder on the latter two. See United

States v. Hernández-Rodríguez, 443 F.3d 138, 143 (1st Cir. 2006)

(noting that "we have no discretion to grant a motion for a new

trial if any one of the four factors is lacking").

In the first trial, Carpenter's attorney presented strong

impeachment evidence that GL, one of Carpenter's brokers at Merrill

Lynch, was lying when he said he had never spoken with Patterson,

the lawyer of one of the investors. Yet the jury returned a guilty

verdict. Second and more importantly, the entire "good faith"

argument was, at best, something of a bank-shot: whether or not

Carpenter told Merrill Lynch that Carpenter was managing and

investing the funds of his clients said very little about whether

Carpenter believed the representations that Carpenter made to his

clients; presumably most investment managers disclose to their

brokers that the funds they invest belong to others. That hardly

proves the good faith of statements made by the manager to the

investors (other than a statement that the broker would know that

the funds belonged to investors).

Of course, Carpenter might well have recognized that, to

the extent Merrill Lynch knew third-party investors were involved,

the likelihood of further inquiry by Merrill Lynch increased. So

in that sense we do not suggest that the evidence would have been

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irrelevant. Rather, we hold only, on abuse of discretion review,

that it was not so probative as to have mandated a new trial.

E. Carpenter's Sentence

We need not tarry long on Carpenter's argument that the

district court abused its discretion with a sentence of thirty-six

months' imprisonment, well below the recommended sentence of fifty-

one to sixty-three months. In justifying its downward departure,

the district court stated that it wanted to avoid sentencing

disparities, and presented data that First Circuit fraud sentences

tend to be in the two- to three-year range. Nevertheless,

Carpenter challenges both the procedural and substantive

reasonableness of the sentence. This court reviews sentencing

decisions for abuse of discretion, reviewing findings of fact for

clear error and its interpretations of the sentencing guidelines de

novo. United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir.

2013).

Carpenter argues that his sentence was procedurally

flawed because the district court considered two impermissible

factors: the effect of the long proceedings on the investors, and

the fact that a grand jury recently found probable cause to indict

Carpenter in Connecticut. As for the first, the district court's

only reference to the effect of the long proceedings on the

exchangors came in a single sentence explaining why the length of

the proceedings were not a factor in Carpenter's favor, not as a

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reason for imposing a sentence higher than would otherwise have

been imposed. As for the second, the district court must consider

a defendant's "history and characteristics," 18 U.S.C.

§ 3553(a)(1), and this circuit has stated that in doing so, it may

consider brushes with the law, such as arrests, that have not

resulted in convictions. See Flores-Machiote, 706 F.3d at 21.

However, Carpenter correctly notes that the government does not

cite to a case that directly considers the role of indictments on

unrelated charges in sentencing.

For the proposition that the fact of indictment should

not be considered in sentencing, Carpenter cites United States v.

Williams, 22 F.3d 580, 581-82 (5th Cir. 1994). In Williams, a

defendant pled guilty to providing about ten grams of cocaine to an

undercover agent as part of a deal that dismissed a conspiracy

charge. Id. at 581. The district court sentenced the defendant

based on the entire amount of drugs sold by the conspiracy, as

quantified in the indictment. Id. The Fifth Circuit held that the

fact of the indictment was an impermissible factor, but that this

was harmless error because other evidence supported a larger role

in the conspiracy. Id. at 582.

We need not delve into the issue of when an indictment

may be considered, however. Even if the indictment was an

impermissible factor, there is no indication that it played a

"significant" role in the sentence. See United States v. Mangual-

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Garcia, 505 F.3d 1, 16 (1st Cir. 2007) (quoting United States v.

Haack, 403 F.3d 997, 1004 (8th Cir. 2005)).

Carpenter next argues his sentence was substantively

unreasonable because the district court failed to sufficiently

consider the fact that the investors' losses were at least

partially caused by the stock market downturn in 2000. When a

defendant challenges a within-guidelines sentence, he bears the

"heavy burden" of marshaling "fairly powerful mitigating reasons

and persuad[ing] us that the district judge was unreasonable."

United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011)

(internal quotation marks omitted). Here, Carpenter challenges a

sentence that is not within the recommended guidelines, it is

actually below those guidelines, and he fails to meet this burden.

Under the United States Sentencing Guidelines, a "key

determinant" of the sentence for fraud claims is the amount of

loss, which is a proxy for the seriousness of the offense. United

States v. Rostoff, 53 F.3d 398, 405 (1st Cir. 1995); see U.S.S.G.

§ 2F1.1. Here, the sentence was calculated based on the amount the

investors actually lost, which was over nine million dollars.

Carpenter is correct that when a loss is the product of

multiple factors, district courts may depart from the guidelines.

See United States v. Gregorio, 956 F.2d 341, 345-46 (1st Cir.

1992). However, Carpenter is the reason that the investors' money

was exposed (and greatly so) to market risk in the first place.

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If he had promised to buy fire insurance for his clients but failed

to do so, he could hardly cite the fire as a cause for mitigation

when their homes burned down. The district court was not

unreasonable in failing to find that the stock market downturn did

not justify a downward departure.24

F. Forfeiture Order

Because both parties now agree that the forfeiture order

is not properly before this court, we do not reach this issue.

IV. Conclusion

For the foregoing reasons, we affirm the orders of the

district court on all counts.

24
The district court was also not unreasonable for failing
to depart downward on the grounds that Carpenter has already
suffered for his crime.

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