PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4067
CHRISTOPHER A. HALL, a/k/a C,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4070
WILLIAM L. HANDY, JR., a/k/a B,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4397
CHRISTOPHER A. HALL, a/k/a C,
Defendant-Appellant.
2 UNITED STATES v. HALL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4398
WILLIAM L. HANDY, JR., a/k/a B,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(8:04-cr-00559-AW)
Argued: September 26, 2008
Decided: January 8, 2009
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Shedd and Judge Agee joined.
COUNSEL
ARGUED: Steven Gene Berry, Rockville, Maryland, for
Appellants. Sandra Wilkinson, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Martin H. Schreiber II, Baltimore, Maryland, for
Appellant Christopher A. Hall. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
UNITED STATES v. HALL 3
OPINION
KING, Circuit Judge:
Christopher A. Hall and William L. Handy, Jr. (together,
the "Defendants") appeal from their convictions in the District
of Maryland on multiple offenses arising from a drug traffick-
ing scheme. The Defendants’ convictions resulted from their
second trial in Maryland, following a hung-jury mistrial in
that district and two earlier mistrials of related prosecutions in
the District of Columbia. By their appeals,1 the Defendants
present multiple constitutional issues, maintaining that their
convictions contravened the Double Jeopardy Clause of the
Fifth Amendment; violated the speedy trial guarantees of the
Sixth Amendment; and constituted cruel and unusual punish-
ment under the Eighth Amendment. Finally, they claim that
the cumulative prejudice resulting from their multiple prose-
cutions contravened the Due Process Clause of the Fifth
Amendment. As explained below, we reject these contentions
and affirm.
I.
A.
The convictions of the Defendants stem from a complex
drug trafficking scheme culminating in the seizure of over
thirty-three kilograms of cocaine from the hidden compart-
ment of a Toyota van apprehended by the authorities on April
1
There are four consolidated appeals considered and disposed of herein,
including two interlocutory appeals (Nos. 07-4067 and 07-4070) filed by
the Defendants — prior to their second trial in Maryland — concerning
the pretrial rejection of their constitutional claims. The government sought
dismissal of both appeals as premature, but the Defendants were convicted
and sentenced before the dismissal motions were ruled upon. The Defen-
dants thereafter filed timely appeals (Nos. 07-4397 and 07-4398) from
final judgments entered against them in the District of Maryland. We have
consolidated the four appeals for briefing, argument, and disposition.
4 UNITED STATES v. HALL
11, 2001, near Frederick, Maryland. Various indictments were
returned in the District of Columbia and Maryland following
this seizure and several related events, with the charges impli-
cating multiple conspirators. Under the evidence, the conspir-
ators had secured large quantities of drugs on the west coast
of the United States, and schemed to transport them in hidden
compartments of vehicles to the east coast for distribution. A
conspirator named Taylor, who was indicted and prosecuted
in the District of Columbia, initially supplied the Defendants
with such drugs on a consignment basis. The Defendants sub-
sequently transitioned to a different supplier, purchased and
outfitted the Toyota van with a hidden compartment, and
arranged for the transportation of substantial quantities of ille-
gal drugs from California to the east coast. After the Freder-
ick, Maryland cocaine seizure in April 2001, the Defendants
were arrested and, as explained below, prosecuted in several
protracted and procedurally complex proceedings in the Dis-
trict of Columbia and Maryland.
B.
On April 24, 2001, the Defendants were first charged in
these proceedings, by way of a one-count 21 U.S.C. § 846
conspiracy indictment in the District of Columbia, which was
dismissed before trial. The Defendants were ultimately
charged in a five-count superseding indictment returned on
August 20, 2002, also in the District of Columbia.2 This
indictment alleged that the Defendants and several cocon-
spirators were involved in a drug trafficking scheme, and
charged them with a single conspiracy offense and several
related substantive offenses.3 More specifically, they were
2
More specifically, after the April 24, 2001 indictment was dismissed,
the Defendants were indicted on July 23, 2002. The July 23, 2002 indict-
ment was then followed by two superseding indictments, both returned on
August 20, 2002. The Defendants were first tried in the District of Colum-
bia on the second August 20, 2002 indictment.
3
The conspiracy charge in the District of Columbia implicated the
Defendants and three named coconspirators, Auston, Robinson, and Tay-
lor. This conspiracy encompassed the period from November 1999 until
August 2001, and included illicit conduct in the District of Columbia and
other locations from California to Maryland.
UNITED STATES v. HALL 5
charged with conspiracy to distribute cocaine and crack, in
violation of § 846 (Count One); involvement in a continuing
criminal enterprise, in contravention of 21 U.S.C. § 848(b)
(Count Two); possession with intent to distribute cocaine, in
contravention of 21 U.S.C. § 841(a)(1) (Count Three); and
possession with intent to distribute cocaine near a school, in
violation of 21 U.S.C. § 860(a) (Count Four). In addition,
Hall was charged with possession of a firearm in furtherance
of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1) (Count Five).
The Defendants pleaded not guilty to the August 20, 2002
indictment, and their trial began on January 8, 2003. On April
22, 2003, after the presentation of evidence, the trial court
granted Hall’s motion for judgment of acquittal on the fire-
arms offense contained in Count Five (the "Firearm Offense
Acquittal"). On May 29, 2003, after ascertaining that the jury
was deadlocked, the court declared a mistrial on the other four
counts.
On November 20, 2003, six months after the initial mistrial,
an eight-count superseding indictment was returned in the
District of Columbia, again charging the Defendants with the
§ 846 conspiracy (Count One), the § 848 continuing criminal
enterprise offense (Count Two), the § 841(a)(1) offense of
possession with intent to distribute cocaine (Count Six), and
the § 860(a) offense of possession with intent to distribute
cocaine near a school (Count Seven).4 This indictment pre-
ferred three additional § 841(a)(1) charges against the Defen-
dants for possession with intent to distribute cocaine (Counts
Three, Four, and Five), plus a single charge for maintenance
of a premises for the manufacture of a controlled substance,
in violation of 21 U.S.C. § 856(a)(2) (Count Eight).
4
The November 20, 2003 superseding indictment in the District of
Columbia named the same codefendants as the August 20, 2002 indict-
ment.
6 UNITED STATES v. HALL
On February 4, 2004, the November 20, 2003 indictment
went to trial in the District of Columbia and, on June 2, 2004,
the trial court granted the Defendants a judgment of acquittal
on Count Eight (the "Premises Offense Acquittal"). By two
partial verdicts, returned on June 28 and 30, 2004, the jury
acquitted the Defendants of the charges contained in Counts
Four, Five, and Seven (the "Distribution Offense Acquittals").
On July 9, 2004, as a result of the jury’s inability to reach a
verdict on the remaining four counts, the court declared a mis-
trial on Counts One, Two, Three, and Six. On September 3,
2004, the balance of the November 20, 2003 indictment was
dismissed at the request of the prosecution.
C.
After the two mistrials in the District of Columbia in 2003
and 2004, the venue for prosecution moved to the District of
Maryland. Ultimately, five related indictments were returned
in Maryland, and the Defendants were charged in the last four
of them. They were tried twice in Maryland — on the fourth
and fifth indictments — in 2006 and 2007. We explain further
below.
On February 24, 2005, the Defendants were first indicted
in the District of Maryland (in the second Maryland indict-
ment in these proceedings), and initially charged only with
being involved in a 21 U.S.C. § 846 conspiracy to distribute
cocaine and crack. After a reindictment of the Defendants,
again charging them only with the § 846 conspiracy, they
were charged in another indictment, returned on January 25,
2006, with the § 846 conspiracy, plus four substantive
offenses (the "Fourth Maryland Indictment").5 More specifi-
5
The Fourth Maryland Indictment charged the Defendants and four
coconspirators, Briscoe, Kelly, Ray, and Belt — none of whom had been
previously charged in the District of Columbia — with conspiring in a
drug trafficking scheme in Maryland and the District of Columbia, from
approximately November 2000 until December 2004.
UNITED STATES v. HALL 7
cally, the Defendants were charged with conspiracy to distrib-
ute cocaine and crack, in violation of § 846 (Count One);
using a communications facility in the commission of a fel-
ony, in contravention of 21 U.S.C. § 843(b) (Count Four); and
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) (Count Five). Counts Two and Three
charged Handy with using a communications facility in the
commission of a felony on two separate occasions, also in
violation of § 843(b).
The Defendants sought dismissal of the Fourth Maryland
Indictment on the bases of double jeopardy, collateral estop-
pel, and prosecutorial misconduct. By Memorandum Opinion
of March 21, 2006, however, the district court rejected those
assertions, and the Defendants’ first Maryland trial com-
menced soon thereafter. See United States v. Briscoe, No.
8:04-cr-00559 (D. Md. Mar. 21, 2006) (the "Opinion").6 On
May 9, 2006, because the jury in that trial was unable to reach
a verdict, a mistrial was declared.
On June 21, 2006, the grand jury in Maryland charged the
Defendants in yet another superseding indictment (the "Fifth
Maryland Indictment"), realleging the charges contained in
Counts One through Five of the Fourth Maryland Indictment.
The Defendants then filed another series of motions, through
counsel as well as pro se, seeking to dismiss the Fifth Mary-
land Indictment and asserting violations of various constitu-
tional guarantees, including the Double Jeopardy Clause. Hall
also filed a pro se motion seeking the discharge of his coun-
sel, and Handy’s lawyer sought to withdraw from further rep-
resentation of his client. On January 4, 2007, the district court
conducted a hearing on these requests, authorized the Defen-
dants to proceed to trial on a pro se basis, and denied their
motions to dismiss.
6
The Opinion is found in the Joint Appendix at 205-14.
8 UNITED STATES v. HALL
The Defendants’ trial on the Fifth Maryland Indictment
began on January 23, 2007. It ended a week later, when the
jury returned a verdict of guilty against the Defendants on
Counts One, Four, and Five, and against Handy alone on
Counts Two and Three. After unsuccessfully pursuing post-
trial challenges to their convictions, Handy was sentenced to
360 months of imprisonment, while Hall received a sentence
of 300 months.7 The Defendants have timely appealed, and
we possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a properly preserved constitutional
claim. See, e.g., United States v. Goodine, 400 F.3d 202, 206
(4th Cir. 2005).
III.
On appeal, the Defendants challenge their convictions on
multiple constitutional grounds, specifically double jeopardy,
lack of a speedy trial, cruel and unusual punishment, and
denial of due process. We assess their contentions in turn.
A.
The Defendants’ primary claim — double jeopardy — has
three prongs: that the proceedings in Maryland subjected them
to successive prosecutions for the same offense; that the doc-
trine of collateral estoppel barred their prosecutions on the 21
U.S.C. § 846 conspiracy charged in Count One of the Fifth
Maryland Indictment; and that, in these circumstances, their
multiple trials and prosecutions constitute a double jeopardy
violation. We begin our assessment with the successive prose-
cution prong of the double jeopardy claim.
7
According to the Defendants, they were incarcerated throughout the
pendency of the District of Columbia prosecutions. As of March 23, 2005,
they were released on house arrest in Maryland until January 30, 2007,
when they were convicted in the trial underlying this appeal.
UNITED STATES v. HALL 9
1.
The Double Jeopardy Clause of the Fifth Amendment pro-
vides that no person shall "be subject for the same offense to
be twice put in jeopardy of life or limb." U.S. Const. amend.
V. This constitutional guarantee has two distinct components,
applying "both to successive punishments and to successive
prosecutions for the same criminal offense." United States v.
Dixon, 509 U.S. 688, 696 (1993). Both of these double jeop-
ardy components serve "a constitutional policy of finality for
the defendant’s benefit," by ensuring against attempts to
impose "more than one punishment for the same offense" or
additional punishment after a prior conviction or acquittal.
See Brown v. Ohio, 432 U.S. 161, 165-66 (1977).
The Defendants allege that their convictions on the charges
in the Fifth Maryland Indictment, following the three mistrials
in the District of Columbia and Maryland, subjected them to
successive prosecutions for the same criminal offense. In
these circumstances, we assess their double jeopardy claims
under the same-element test established by the Supreme Court
in Blockburger v. United States, 284 U.S. 299, 304 (1932).
See Dixon, 509 U.S. at 696-97. Under the Blockburger analy-
sis, successive prosecutions do not violate the Double Jeop-
ardy Clause if "each offense contains an element not
contained in the other." Id. at 696.
The Defendants acknowledge on appeal that the Clause’s
protection against successive prosecutions for the same
offense only bars a subsequent prosecution if an earlier prose-
cution for the same offense was terminated by acquittal or
conviction. The Defendants’ convictions in their second
Maryland trial (on the Fifth Maryland Indictment), and their
earlier acquittals in the District of Columbia, constitute the
relevant convictions and acquittals for the double jeopardy
10 UNITED STATES v. HALL
inquiry we must conduct. The Defendants’ acquittals
(together, the "Acquitted Offenses"), were as follows:8
• The Firearm Offense Acquittal in the first District
of Columbia trial, where Hall was charged with
violating 18 U.S.C. § 924(c)(1) for possession of
a firearm in furtherance of a drug trafficking
offense on April 11, 2001, in the District of Colum-
bia;9
• Two of the Distribution Offense Acquittals in the
second District of Columbia trial, where the
Defendants were charged with violating 21
U.S.C. § 841(a)(1) for possession with intent to
distribute cocaine on two occasions (December
13, 2000, and February 15, 2001) in the District
of Columbia;10
• The third Distribution Offense Acquittal in the
second District of Columbia trial, where the
Defendants were charged with violating 21
U.S.C. § 860(a) for possession with intent to dis-
8
The Acquitted Offenses include, as explained further below, five
acquittals for Hall and four acquittals for Handy.
9
Pursuant to § 924(c) of Title 18, an accused who "in relation to any . . .
drug trafficking crime . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm," has committed a separate offense.
Such an offense has two elements: (1) that the defendant actively used or
carried a firearm; and (2) that such act occurs during and in relation to the
commission of a drug trafficking crime. See United States v. Mitchell, 104
F.3d 649, 652 (4th Cir. 1997).
10
Pursuant to § 841(a)(1) of Title 21, "it shall be unlawful for any per-
son knowingly or intentionally . . . distribute . . . or possess with intent to
. . . distribute . . . a controlled substance." The essential elements of such
a distribution offense are (1) possession of the controlled substance; (2)
knowledge of the possession; and (3) intent to distribute. See United States
v. Crockett, 813 F.2d 1310, 1316 (4th Cir. 1987).
UNITED STATES v. HALL 11
tribute cocaine near a school on March 5, 2001,
in the District of Columbia;11 and
• The Premises Offense Acquittal in the second
District of Columbia trial, where the Defendants
were charged with violating 21 U.S.C.
§ 856(a)(2) for unlawful maintenance of a prem-
ises for the manufacture of a controlled substance
on April 11, 2001, in the District of Columbia.12
On January 30, 2007, the Defendants were convicted in the
District of Maryland of the following offenses (together, the
"Convicted Offenses"), as alleged in the Fifth Maryland
Indictment:
• Count One, which charged the Defendants with a
21 U.S.C. § 846 conspiracy to violate 21 U.S.C.
§ 841(a)(1), from the fall of 2000 through April
2001, in Maryland, California, the District of
Columbia, and elsewhere;13
• Counts Two and Three, which charged Handy
with violations of 21 U.S.C. § 843(b) for use of
11
Section 860(a) of Title 21 authorizes an enhanced punishment for
those persons who commit a 21 U.S.C. § 841 distribution offense within
1,000 feet of a school.
12
Pursuant to § 856(a)(2) of Title 21, "it shall be unlawful to . . . manage
or control any place . . . for the purpose of unlawfully manufacturing . . .
a controlled substance."
13
Section 846 of Title 21 provides that "[a]ny person who . . . conspires
to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for . . . the object of the . . . conspir-
acy." The essential elements of a § 846 conspiracy are (1) an agreement
between two or more persons to violate federal law relating to controlled
substances; (2) knowledge of the essential objectives of the conspiracy; (3)
knowing and voluntary involvement therein; and (4) interdependence
among the conspirators. See United States v. Stewart, 256 F.3d 231, 250
(4th Cir. 2001).
12 UNITED STATES v. HALL
a cellular telephone in the commission of a fel-
ony on two occasions on April 11, 2001, specifi-
cally at 3:17 p.m. and 5:16 p.m., in Maryland;14
• Count Four, which charged the Defendants with
a violation of § 843(b) for use of a cellular tele-
phone in the commission of a felony on April 11,
2001, specifically at 5:36 p.m., in Maryland; and
• Count Five, which charged the Defendants with
a violation of § 841(a)(1) for possession with
intent to distribute cocaine on April 11, 2001, in
the District of Maryland.
In the context of the foregoing, we must assess whether any
of the Convicted Offenses are barred under the Double Jeop-
ardy Clause.
First, we assess whether the Defendants’ § 846 conspiracy
convictions are barred under the applicable double jeopardy
principles. We readily conclude they are not barred, because,
put most simply, the conspiracy offenses previously charged
and mistried in the District of Columbia and Maryland do not
implicate a double jeopardy analysis. Richardson v. United
States, 468 U.S. 317, 324 (1984) ("[W]e have constantly
adhered to the rule that a retrial following a ‘hung jury’ does
not violate the Double Jeopardy Clause."); United States v.
Goodine, 400 F.3d 202, 206 (4th Cir. 2005) (recognizing fore-
going rule as "well-settled"). Thus, even if the § 846 conspir-
acy offense was twice mistried in the District of Columbia
and once mistried in Maryland, and then recharged and tried
again as Count One of the Fifth Maryland Indictment, there
is no double jeopardy violation.15 Accordingly, any evidence
14
Under § 843(b) of Title 21, it is unlawful for any person to knowingly
"use any communication facility in . . . the commission of . . . a [drug] fel-
ony."
15
As the district court recognized, and notwithstanding the Defendants’
contention to the contrary, the prosecution was entitled to introduce overt
UNITED STATES v. HALL 13
in the second Maryland trial that related to the Acquitted
Charges did not present a double jeopardy problem on prose-
cution of the conspiracy offense in the Fifth Maryland Indict-
ment.
The Defendants’ convictions on Counts Two, Three, and
Four of the Fifth Maryland Indictment involved offenses
under § 843(b) of Title 21 (using a communication facility in
the commission of a felony). Put simply, no such offenses
were ever charged or pursued against the Defendants in the
District of Columbia, and those three offenses are distinct
from any of the Acquitted Offenses because they required
proof of a distinct element — use of a communication facility
in the commission of a felony.
Finally, the Defendants were each convicted on Count Five
of the Fifth Maryland Indictment, which charged possession
with intent to distribute cocaine on April 11, 2001, in the Dis-
trict of Maryland, in violation of 21 U.S.C. § 841(a)(1). The
double jeopardy issue on this charge is somewhat more com-
plex, in that the three Distribution Offense Acquittals
involved similar offenses. These acquittals related, however,
to conduct of the Defendants in the District of Columbia in
December 2000, February 2001, and March 2001, well before
the Count Five distribution offense had occurred in Maryland.
The district court carefully considered this contention, and
properly recognized that "the three acquitted counts of posses-
sion with intent to distribute concerned discrete shipments of
cocaine that the defendants allegedly received weeks before
the cocaine delivery charged in the present indictment." Opin-
ion 4. The Defendants emphasize, of course, in pursuing their
act evidence on the conspiracy charge that related to the Acquitted
Offenses. See Opinion 4 (citing United States v. Banks, 10 F.3d 1044,
1050 (4th Cir. 1993) ("because overt acts are not elements of a § 846
[drug-related] conspiracy, they cannot be considered the ‘same offense’
for double jeopardy purposes")).
14 UNITED STATES v. HALL
double jeopardy contention on Count Five, that the Firearm
Offense Acquittal and the Premises Offense Acquittal each
involved conduct occurring on April 11, 2001. Those two
offenses, however, implicate distinct statutes and elements
from § 841(a)(1). As a result, the Double Jeopardy Clause
does not bar any of the Defendants’ convictions in Maryland,
and this aspect of their double jeopardy claim must be
rejected.
2.
In connection with their double jeopardy contention, the
Defendants alternatively maintain that the doctrine of collat-
eral estoppel foreclosed their prosecutions in Maryland on the
§ 846 conspiracy charged in Count One, because the evidence
offered in support of that offense was also "relevant" to the
Acquitted Offenses. Collateral estoppel, when used in the
criminal context, has been recognized as an aspect of the Fifth
Amendment’s guarantee against double jeopardy. See United
States v. Benkahla, 530 F.3d 300, 306 (4th Cir. 2008). In that
respect, it "means simply that when an issue of ultimate fact
has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in
any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443
(1970).
A party relying on collateral estoppel has the burden of
establishing that the issue sought to be foreclosed was "neces-
sarily determined" in some prior proceeding. United States v.
Ragins, 840 F.2d 1184, 1194 (4th Cir. 1988). In order to prop-
erly assess whether an issue was necessarily determined in an
earlier proceeding,
a court must conduct a careful examination of "the
record of [the] prior proceeding, taking into account
the pleadings, evidence, charge, and other relevant
matter," in order to decide "whether a rational jury
could have grounded its verdict upon an issue other
UNITED STATES v. HALL 15
than that which the defendant seeks to foreclose
from consideration."
Id. (quoting Ashe, 397 U.S. at 444). If the issue was necessar-
ily determined in the defendant’s favor, that determination
may bar a subsequent prosecution. In the alternative, such a
determination may foreclose the relitigation of specific issues
of fact. Id.
In order to satisfy their burden in this regard, the Defen-
dants were thus required to demonstrate that some element of
their § 846 conspiracy offense was necessarily determined in
their favor in an earlier proceeding. Because they had never
been previously acquitted of a § 846 conspiracy offense, and
because there were no facts necessarily determined in the
Acquitted Offenses that would undermine the § 846 conspir-
acy convictions, the Defendants cannot satisfy their collateral
estoppel burden. As a result, collateral estoppel does not bar
their prosecution and conviction on the § 846 conspiracy
offense of the Fifth Maryland Indictment.
3.
Finally, in connection to the double jeopardy issue, the
Defendants maintain that they have "suffered a violation of
their double jeopardy guarantee both because of the number
of times they were tried and because of the extended duration
of the proceedings against them." Br. of Appellants 14.
Although they concede that, as a general proposition, "a mis-
trial constitutes no bar to further proceedings," the Defendants
nevertheless suggest that we should conclude that, in these
circumstances, their "multiple mistrials in succession should
constitute a bar to further proceedings." Id. (citing United
States v. Perez, 22 U.S. (9 Wheat.) 579 (1824) (explaining
that trial court possesses discretion to discharge jury for mani-
16 UNITED STATES v. HALL
fest necessity or when ends of justice would otherwise be defeat-
ed)).16
Unfortunately for the Defendants, we rejected such a con-
tention in United States v. Ndame, 87 F.3d 114 (4th Cir.
1996), and that precedent is controlling. We concluded that
the Double Jeopardy Clause did not bar Ndame’s third prose-
cution, emphasizing that he "did not object to either declara-
tion of mistrial" and that "[b]oth mistrials were declared
because juries could not reach a unanimous verdict." Id. at
115. The Defendants do not assert that they objected to any
of the earlier mistrials, and each mistrial was declared because
of the jury’s inability to reach a verdict. As in Ndame, these
earlier mistrials fail to trigger double jeopardy concerns, and
we decline to entertain the suggestion that, at some point,
multiple retrials (following mistrials that were not objected to)
could present a double jeopardy bar. Although the Defendants
claim that the circumstances of their prosecution are distin-
guishable from Ndame, primarily because they were con-
victed after three mistrials rather than two, we must disagree.
As Judge Widener explained in Ndame, "‘a mechanical rule
prohibiting retrial whenever circumstances compel the dis-
charge of a jury without the defendant’s consent would be too
high a price to pay for the added assurance of personal secur-
ity and freedom from governmental harassment which such a
mechanical rule would provide.’" Id. (quoting United States
16
The Defendants suggest that, although the controlling principles on
the Double Jeopardy Clause were not contravened in these circumstances,
a "breaking point" must exist where a retrial no longer satisfies Perez. Br.
of Appellants 14 (citing United States v. Gunter, 546 F.2d 861, 866 (10th
Cir. 1976)). The Defendants assert that such a breaking point was sur-
passed with their fourth trial. Although the Gunter court appeared to
believe that a breaking point may eventually arise, it concluded that, when
a jury has been properly discharged under Perez, the defendant may yet
again be tried without offending the Fifth Amendment. Gunter, 546 F.2d
at 865-66. We need not opine on whether a breaking point could arise in
some circumstances, because the Constitution was plainly not contravened
here.
UNITED STATES v. HALL 17
v. Jorn, 400 U.S. 470, 480 (1971)). In sum, we reject all
aspects of the Defendants’ double jeopardy claim.
B.
The Defendants next maintain that there was an inordinate
period of delay between their first indictment in the District
of Columbia, on April 24, 2001, and their second trial in
Maryland, which began on January 23, 2007, and that such a
delay violated their Sixth Amendment right to a speedy trial.17
In order to properly assess whether a pretrial delay contra-
venes the Constitution’s speedy trial guarantee, Supreme
Court precedent requires the balancing of four considerations:
(1) the length of delay; (2) the reasons therefor; (3) the timeli-
ness and vigor of the assertion of the speedy trial guarantee;
and (4) prejudice to the defendant. See Barker v. Wingo, 407
U.S. 514, 530 (1972). To prevail on their speedy trial claim,
the Defendants are obliged, under Barker, to establish "that on
balance, [the] four separate factors weigh in his favor." United
States v. Thomas, 55 F.3d 144, 148 (4th Cir. 1995). In apply-
ing the Barker test here, however, it is apparent that the Sixth
Amendment was not contravened.
As the Supreme Court has explained, the first Barker factor
involves two aspects. See Doggett v. United States, 505 U.S.
647, 651-52 (1992). First of all, a reviewing court must decide
whether the length of the delay triggers a speedy trial inquiry.
In that respect, the Court has suggested that we should con-
duct a full inquiry when such a delay approaches one year.
See id. at 651-52 & n.1. Second, a reviewing court must
weigh "the extent to which the delay stretches beyond the
bare minimum needed to trigger judicial examination of the
claim." Id. at 652.
17
The Sixth Amendment guarantees that an "accused shall enjoy the
right to a speedy and public trial." U.S. Const. amend. VI. The Defendants
also seek to raise, in passing, a contention that this delay violated the
Speedy Trial Act. See 18 U.S.C. § 3161-3174. There was no such viola-
tion.
18 UNITED STATES v. HALL
As a threshold matter, we must identify the pertinent period
of delay in this case. The Defendants suggest that the relevant
period was "nearly six years," presumably arguing that it
began on April 24, 2001, when they were first indicted in the
District of Columbia. The more appropriate period of relevant
delay, however, is from the Defendants’ first indictment in
Maryland (February 25, 2005), until their second trial there
(January 23, 2007). See United States v. MacDonald, 456
U.S. 1, 7 (1982) ("[T]he Speedy Trial Clause has no applica-
tion after the Government, acting in good faith, formally
drops charges."). By definition, the constitutional right to a
speedy trial is triggered by an indictment; it does not protect
a defendant from a pre-indictment delay. As the Court has
explained, "[t]he law has provided other mechanisms to guard
against possible as distinguished from actual prejudice result-
ing from the passage of time between crime and arrest or
charge." United States v. Marion, 404 U.S. 307, 322 (1971);
see also MacDonald, 456 U.S. at 8 ("The Sixth Amendment
right to a speedy trial is thus not primarily intended to prevent
prejudice to the defense caused by passage of time; that inter-
est is protected primarily by the Due Process Clause and by
statutes of limitations.").18
In these circumstances, the two-year period of delay in
Maryland justifies a further speedy trial analysis. The Defen-
dants were first indicted in Maryland on February 24, 2005,
and were tried and convicted on the Fifth Maryland Indict-
18
We assess the Defendants’ Sixth Amendment speedy trial claim by
focusing on the two-year delay following their initial indictment in Mary-
land. The period of alleged delay in the District of Columbia — before the
Defendants’ initial indictment in Maryland — is more appropriately ana-
lyzed under the Fifth Amendment’s Due Process Clause. In order to dem-
onstrate that the earlier delay — or the aggregate delay — violated due
process, either actual prejudice to the Defendants or intentional govern-
ment misconduct must be shown. See United States v. Marion, 404 U.S.
307, 324-25 (1971). As explained above, the Defendants have failed to
allege either prejudice or misconduct, and to the extent they challenge
either the earlier delay or the aggregate delay, that claim also fails.
UNITED STATES v. HALL 19
ment. Their trial, which was their second in the District of
Maryland, began on January 23, 2007, nearly two years after
their first Maryland indictment. We thus must assess the other
Barker factors, seeking to determine whether there has been
a constitutional deprivation.
The second Barker factor, the reasons for the trial delay, is
necessarily related to a proper assessment of the period of
delay. The reasons for a trial delay should be characterized as
either valid, improper, or neutral. See United States v. Grim-
mond, 137 F.3d 823, 828 (4th Cir. 1998). On this factor, a
reviewing court must carefully examine several issues, specif-
ically focusing on the intent of the prosecution. See Barker,
407 U.S. at 531. For example, a deliberate attempt by the
prosecution to delay the trial of an accused would weigh
heavily against the government, although a valid reason for
delay, such as a missing witness, may be justified. Id. There
were at least three valid bases for the two-year delay in Mary-
land: the prosecution was complicated, involving a serious,
complex conspiracy charge that implicated multiple parties in
at least two jurisdictions; pre-trial proceedings largely result-
ing from defense motions; and the first Maryland mistrial.
Each of these factors, rather than prosecutorial misconduct or
bad intent on the part of the government, contributed to the
delay. In these circumstances, the reasons for the two-year
delay in Maryland are a "neutral" factor with respect to the
speedy trial issue.
The third Barker factor is whether the Defendants made a
timely assertion of their speedy trial rights. A "defendant’s
assertion of his speedy trial right . . . is entitled to strong evi-
dentiary weight in determining whether [he] is being deprived
of the right." Barker, 407 U.S. at 531-32. In this regard, the
government concedes that the Defendants "summarily
asserted their speedy trial rights at their initial appearance."
Br. of Appellee 33. In such circumstances, the third Barker
factor weighs in the Defendants’ favor.
20 UNITED STATES v. HALL
Finally, the fourth Barker factor — prejudice — weighs
against the Defendants because they have failed to show the
delay may have adversely impacted the defense. On this
point, the Supreme Court has identified three defense interests
for consideration: (1) whether there was an oppressive pretrial
incarceration; (2) the anxiety and concern suffered by the
accused; and (3) the possibility that the defense was impaired.
See Barker, 407 U.S. at 532. The Defendants contend that,
when awaiting trial, they were subjected to an oppressive
four-year pretrial incarceration, plus eighteen months of pre-
trial house arrest during the Maryland proceedings. Of signifi-
cance, their incarceration occurred during the time of their
prosecution in the District of Columbia. On the second
defense interest specified by Barker, the Defendants are
unable to identify "any restraint on liberty, disruption of
employment, strain on financial resources, [or] exposure to
public obloquy" that was greater than that faced by "anyone
openly subject to criminal investigation." MacDonald, 456
U.S. at 9. The first two aspects of Barker’s prejudice prong
are thus not sufficiently controlling, and our analysis of possi-
ble prejudice must focus on whether the two-year delay
impaired the defense.
Of the three defense interests identified in Barker, "the
most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire
system." Barker, 407 U.S. at 532. Again, the Defendants are
unable to point to any evidence that their defense was
impaired by the delay. Indeed, they have not identified any
witnesses that were unavailable as a result of the delay; they
have not shown that any witness was unable to accurately
recall the relevant events; they do not contend that exculpa-
tory evidence was lost; nor have they identified any evidence
that was rendered unavailable by the delay. See Grimmond,
137 F.3d at 830. In sum, the Defendants simply argue gener-
ally that they were prejudiced by delay. In such circum-
stances, the final Barker factor weighs substantially in favor
of the prosecution. Having carefully applied the Barker prin-
UNITED STATES v. HALL 21
ciples to the Defendants’ speedy trial claim, it is apparent that
their constitutional right to a speedy trial was not contravened.
C.
Finally, the Defendants assert that subjecting them to a
fourth trial, after three mistrials to which they did not object,
violated the principle of fundamental fairness inherent in Fifth
Amendment due process. The Defendants contend that, "even
if they failed to meet exactly their burden" on their other con-
stitutional claims, the district court "should have found that
the question was close" and "should have considered whether
all of these claims, as bundled together, amounted to a viola-
tion of [the Defendants’] right to due process and fundamental
fairness guaranteed by the United States Constitution." Br. of
Appellants 29. Put simply, however, there is no authority for
the proposition that a bundling of constitutional guarantees
should be recognized as a basis for some due process right not
otherwise available. There was no error committed by the dis-
trict court in this context, and such a due process claim must
also be rejected.19
19
The Defendants also seek to pursue an Eighth Amendment claim,
asserting summarily that their periods of pretrial incarceration and house
arrest constituted cruel and unusual punishment. The Eighth Amendment
has no application here, however, because the Defendants were pretrial
detainees rather than convicted prisoners. See Slade v. Hampton Roads
Reg’l Jail, 407 F.3d 243, 247 n.3 (4th Cir. 2005) (assessing pretrial treat-
ment and conditions under Due Process Clause). As pretrial detainees, the
Defendants’ due process rights entitled them to protection from punish-
ment. See Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (explaining
punishment includes conditions "imposed with an expressed intent to pun-
ish" or "not reasonably related to a legitimate nonpunitive governmental
objective"). Importantly, the Defendants have neither alleged nor shown
any punitive bases for their pretrial detentions or restrictions in the District
of Columbia and Maryland. As a result, this assertion also lacks merit.
22 UNITED STATES v. HALL
IV.
Pursuant to the foregoing, we affirm the Defendants’ con-
victions.
AFFIRMED