concurring in the judgment:
I concur in the judgment.
I agree that we must reject all of Grimmond’s appellate arguments. His speedy trial claim is without merit because, even though the 35-month delay was uncommonly long, he has utterly failed to demonstrate any prejudice from the delay and offered no credible explanation for his failure to invoke his speedy trial right until shortly before trial; moreover, the Government’s reason for at least a portion of the delay is valid under the rationale of United States v. Thomas, 55 F.3d 144, 148 (4th Cir.1995). Thus, Grimmond has not shown that, taken together, the four Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), factors weigh in his favor. Grimmond’s evidentiary and Bat-son claims are equally meritless. The disputed evidence does not offend Fed.R.Evid. 404(b) because Grimmond’s shooting of Feaster and Kinney established that Grimmond possessed a firearm, an essential element of one of the charged offenses. Grimmond’s strongest appellate contention—that this evidence was cumulative and thus unfairly prejudicial under Fed.R.Evid. 403 in view of the other evidence that he possessed a gun—is not frivolous; however, Grimmond never presented this argument to the district court. As for the Batson claim, because Grimmond failed to present a prima fade case, it too fails. For these reasons, Grimmond’s convictions must be affirmed.
I write separately simply to note that much of the discussion in the majority opinion is dicta. For example, the majority suggests that a defendant cannot claim that he failed to invoke his speedy trial right because he lacked understanding of this right where the defendant had “state-appointed counsel representing him on the charges pending” at the time he “received the detainer informing him of the federal charges.” Ante at 829. However, the appointment of counsel in connection with state charges does not per se defeat a defendant’s claim that he did not know enough to assert- his speedy trial right to federal charges. See, e.g., Coleman v. United States, 442 F.2d 150, 154-55 (D.C.Cir.1971) (appellate court recognizes that defendant had been represented by counsel and that “continuous representation” thereafter was statutorily mandated, but nonetheless concludes that because the defendant had no “meaningful access to” that counsel, trial court had “no basis for assuming” defendant “had the ability or the information” to waive his speedy trial right by failing to demand it). Certainly, where a defendant can demonstrate that his state counsel did not or could not assist him in invoking his federal speedy trial right, his failure to invoke it should not be weighed against him. Id.; see also Barker, 407 U.S. at 529, 92 S.Ct. at 2191.
Grimmond has forsaken any such demonstration here and thus presented no reason for the district court not to weigh against him the late assertion of his speedy trial right. However, Grimmond’s failure to make such a showing does not give an appellate court liberty to make a factual “determinati[on]” that Grimmond “had [state] counsel to advise him of his right to a speedy trial” on federal charges. Ante at 831 n. 11. Far from being necessary to the holding of this case, such appellate factual “determinations]” are forbidden. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (“appellate courts must constantly have in mind that their function is not to decide factual issues de novo”) (internal citation and quotation omitted).
With respect to assessing the degree of prejudice to a defendant resulting from an uncommonly long delay, I disagree with the majority’s unnecessary suggestion that “there is simply no way ... pretrial incarceration can be deemed oppressive” if a defendant is “lawfully incarcerated for reasons not related to the pending charges and makes no credible showing that either his present or potential sentence will be substantially affected by the delay.” Ante at 830. The very case upon which the majority relies for this proposition, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), undermines the majority’s suggestion.
*836In Smith, the Supreme Court recognized that “[a]t first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from undue and oppressive incarceration prior to trial,” but concluded that “delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge.” Id. at 378, 89 S.Ct. at 577 (internal quotations omitted). The Court explained that the existencé of an outstanding criminal charge may substantially affect the length or conditions under which a defendant serves his sentence while he awaits trial. Id. The petitioner in Smith, a federal prisoner, made no “showing” at all— “credible” or otherwise—that his own “present or potential sentence” would “be substantially affected by the delay” in bringing him to trial in state court. Ante at 830. Nevertheless, the Supreme Court concluded that because “an outstanding untried charge (of which even a convict may, or course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large,” it had to reverse a state court’s refusal to entertain the petitioner’s claim that his state speedy trial rights had been denied. Smith, 393 U.S. at 379, 89 S.Ct. at 577-78 (emphasis added). Thus, nothing in Smith supports the majority’s suggestion that a prisoner must make a “credible showing that either his present or potential sentence will be substantially affected by the delay” in order to demonstrate prejudice for speedy trial purposes.
Moreover, this erroneous suggestion is totally unnecessary to our holding. As I noted at the outset, Grimmond neglected to demonstrate any prejudice resulting from the delay. Although, in his appellate brief, Grim-mond seems to assume he has established “actual prejudice,” Grimmond never argues that his pretrial incarceration was oppressive, and therefore prejudicial. The majority, however, needlessly makes this argument for Grimmond only then to knock down its own argument by determining that Grim-mond failed to make a “credible showing” that his sentence was “substantially affected” by the delay. In view of the total deficiency in Grimmond’s proof of prejudice, the majority’s factual “determin[ation]” as to “whether pretrial incarceration was ‘oppressive’ ” is no more “essential” to its holding than it is appropriate for an appellate court. See Anderson, 470 U.S. at 573, 105 S.Ct. at 1511.
Nor do I see any need for us to opine as to the limits the Supreme Court “intended” for its rationale in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The majority needlessly proclaims that it believes the Court “intended” Old Chief to “be limited to stipulations involving a defendant’s status as a convicted felon” under 18 U.S.C. § 922(g)(1). Ante at 833 n. 14. Although the Supreme Court in Old Chief confined its holding to proof of convicted felon status under § 922(g)(1), we do not yet know whether the Old Chief rationale also properly applies to other elements of § 922(g) offenses. 519 U.S. at-n. 7, 117 S.Ct. at 651 n. 7. Of course, we need not reach that question here, because, as the majority itself notes, Grimmond offers no evidence that he ever agreed to stipulate to anything other than his status as a felon, and the government agreed to enter into that stipulation.