United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 1999 Decided December 10, 1999
No. 99-3032
United States of America,
Appellee
v.
Willie L. Yelverton,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00284-02)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant.
Barbara A. Grewe, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown,
DeMaurice F. Smith and G. Bradley Weinsheimer, Assistant
U.S. Attorneys.
Before: Silberman, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Appellant Willie L. Yelverton ap-
peals his conviction by a jury of kidnaping and related
charges on four principal grounds.1 Only two require more
than brief discussion. Specifically, Yelverton contends that
the district court erred by (1) enhancing his sentence under
United States Sentencing Guidelines s 2A4.1(b)(3) for "use"
of a gun where he did no more than display or brandish the
gun during the course of the kidnaping, and (2) denying his
motion to dismiss the indictment for violation of his Sixth
Amendment right to speedy sentencing. We hold that
s 2A4.1(b)(3) is properly applied where the gun is employed
in a manner designed to coerce a third party so as to
complete the kidnaping offense, that is, where a photograph
of a person pointing a gun at the head of a kidnaping victim is
shown to the victim's parent in tandem with a telephonic
threat of further injury to the victim in order to coerce the
parent into paying a ransom. Assuming that the Sixth
Amendment right to a speedy trial extends to sentencing, see
Pollard v. United States, 352 U.S. 354, 361 (1957), we hold
that Yelverton fails to meet his burden under Barker v.
Wingo, 407 U.S. 514 (1972). Although his sentencing was
unnecessarily delayed for thirty-three months despite his
repeated requests for prompt sentencing, he has demonstrat-
ed neither prosecutorial misconduct nor prejudice, key factors
in the determination of whether a defendant has been de-
prived of his Sixth Amendment right. Concluding further
that Yelverton's other challenges to his conviction are merit-
less, we affirm.
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1 Yelverton was convicted of conspiracy to kidnap, in violation
of 18 U.S.C. s 371, kidnaping, 18 U.S.C. s 1201(a) and s 2, interfer-
ence with commerce by threats and violence, 18 U.S.C. s 1951 and
s 2, and interstate transmission of extortionate threats, 18 U.S.C.
s 2.
I.
Under the United States Sentencing Guidelines ("Guide-
lines" or "U.S.S.G."), the punishment for kidnaping, abduc-
tion, and unlawful restraint is to be increased by two levels
"[i]f a dangerous weapon was used." U.S.S.G. s 2A4.1(b)(3)
(1995). The Application Notes state that the phrase " '[a]
dangerous weapon was used' means that a firearm was dis-
charged, or a 'firearm' or 'dangerous weapon' was 'otherwise
used.' " U.S.S.G. s 2A4.1 comment, n.2. The U.S.S.G. com-
mentary defines the term "otherwise used" to mean "that the
conduct did not amount to the discharge of a firearm but was
more than brandishing, displaying, or possessing a firearm or
other dangerous weapon." U.S.S.G. s 1B1.1 comment, n.1(g).
Additionally, "brandished" is defined to mean that the weapon
was "pointed or waved about, or displayed in a threatening
manner." U.S.S.G. s 1B1.1 comment, n.1(c).
The district court enhanced Yelverton's sentence based on
evidence that he and his co-defendants informed the kidnap-
ing victim's mother and a detective posing as his father that
their son was in custody and would be tortured and killed
unless they paid a ransom. During a subsequent telephone
call, the mother and the detective were directed to a photo-
graph that showed the son blindfolded and another person's
arm holding a gun to his head.
Yelverton contends that the pointing of a gun at the son's
head in a photograph seen by his mother, combined with
threats to the son's safety directed at his mother in an effort
to extract ransom money from her, cannot constitute "use" of
a firearm under the Sentencing Guidelines. Specifically, Yel-
verton contends that the case law establishes that a firearm is
"otherwise used" only where the firearm is pointed at a
specific victim, and is accompanied by a specific command to
the same victim to facilitate the underlying crime. Because
the basis for enhancement here was the use of a gun pointed
at the son in order to coerce his mother to pay a ransom,
Yelverton contends that the district court erred; the gun was
merely "brandished" or "displayed." Our review of the dis-
trict court's application of a Sentencing Guideline is for clear
error as to factual findings and with due deference to the
district court's application of the guideline to a factual setting.
See United States v. Becraft, 117 F.3d 1450, 1451 (D.C. Cir.
1997); United States v. Kim, 23 F.3d 513, 516-17 (D.C. Cir.
1994).
Virtually all of the circuits to address the question have
held that where a dangerous weapon is pointed at a person
and some further verbal threat or order accompanies the
pointing of the weapon to facilitate commission of the under-
lying crime, an enhancement for the use of the weapon is
justified. See, e.g., United States v. Wooden, 169 F.3d 674,
676-77 (11th Cir. 1999); United States v. Gilkey, 118 F.3d
702, 705 (10th Cir. 1997); United States v. Hernandez, 106
F.3d 737, 741 (7th Cir. 1997); United States v. Fuller, 99 F.3d
926, 927 (9th Cir. 1996); United States v. Elkins, 16 F.3d 952,
953-54 (8th Cir. 1994); United States v. Johnson, 931 F.2d
238, 240-41 (3d Cir. 1991); United States v. De La Rosa, 911
F.2d 985, 992 (5th Cir. 1990).2 The underlying rationale of
the majority view suggests that the key consideration is
whether a gun (or other weapon) was pointed at a specific
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2 Two decisions to the effect that a dangerous weapon is merely
"brandished" rather than "used" when it is pointed directly at a
person and is accompanied by an express demand or threat, are
contrary to weight of authority and distinguishable on their facts.
See Wooden, 163 F.3d at 677 n.5 (citing United States v. Gonzales,
40 F.3d 735, 740 (5th Cir. 1994), and United States v. Matthews, 20
F.3d 538 (2d Cir. 1994)). In Gonzales, the Fifth Circuit vacated and
remanded for re-sentencing, holding that the district court erred in
ruling that pointing a gun at a cashier, coupled with a demand for
money, was "use" of a gun. Unlike the instant case, there were no
explicit threats communicated that anyone would be tortured and
killed absent cooperation by others in facilitating the robbery. And
while the Second Circuit in United States v. Matthews, 20 F.3d 538,
554 (2d Cir. 1994), vacated and remanded for re-sentencing because
the district court erred in ruling that pointing a gun combined with
an explicit threat constituted "use," the court noted that "[i]t could
well be concluded that the expressed threat to shoot one person in
order to extort action from another goes beyond what [the sentenc-
ing guidelines are] intended to encompass in 'brandish[ing].' " Id.
The instant case is such a case.
person in an effort to create fear so as to facilitate compliance
with a demand, and ultimately to facilitate the commission of
the crime. See, e.g., Hernandez, 106 F.3d at 741; Fuller, 99
F.3d at 927; Gordon, 19 F.3d at 1388. This is distinct from a
rationale based on the fact that the gun was pointed at the
same person in whom fear was sought to be instilled, or even
that the person sought to be coerced was the victim of the
crime, as opposed to a third party whose complicity the
perpetrator sought to ensure. With regard to the latter, for
example, courts have found "use" of a weapon where a knife
was held to the throat of a third party (a bank patron) to
facilitate commission of a bank robbery, see Elkins, 16 F.3d
at 953-54, and where a gun was waved by a kidnaper during
an argument with her accomplices, and she "warned that
anyone going to the police would have to deal with her." De
La Rosa, 911 F.2d at 993.
What distinguishes Yelverton's case from the other cases is
the fact that the gun and the threats were directed at two
different people in two different locations at two different
times. While Yelverton conceded at oral argument that
s 2A4.1(b)(3) would apply where the gun holder did some-
thing that increased the inherent threat to those in his
presence, he asserts that extension of the enhancement to a
person who is not at the same location as the weapon carries
the enhancement farther than was intended. We find nothing
to suggest that the temporal and spatial elements he identi-
fies are necessary, in contrast to sufficient, in order for
s 2A4.1(b)(3) to apply. While we have found no case directly
on point, inasmuch as most of the cases involve the time and
space elements that Yelverton posits, nothing in the language
of the Guidelines or the case law suggests that a weapon can
only be "otherwise used" in those circumstances. Instead,
the rationale of the weight of authority focuses on the use of
the gun or other dangerous weapon to instill fear to promote
commission of the underlying crime. See, e.g., Hernandez,
106 F.3d at 741; Fuller, 99 F.3d at 927; Gordon, 19 F.3d at
1388. Splitting the "use" of the gun between two persons at
different locations, so long as the pointing of the gun at one
person is used to instill fear in the other person so as to
coerce compliance, and hence facilitate commission of the
underlying crime, does not diminish the culpable "use" at
issue in the Guidelines.
Yelverton and his accomplices sought to coerce the moth-
er's payment of a ransom by putting her in fear for her
kidnaped son's life. That the mother learned of the gun at a
different time and in a different place than when and where
the gun actually was held to her son's head is irrelevant; the
photograph to which the mother was directed, combined with
explicit threats to her son's life and safety, and the fact that
the son remained in custody at the time his mother's atten-
tion was directed to the photograph, make clear that the gun
was used to suggest it would be used against her son if she
did not pay the ransom. Given the approach of the Guide-
lines toward the use of dangerous weapons as increasing the
coerciveness or dangerousness of criminal activity, cf., e.g.,
Hernandez, 106 F.3d at 741, it is entirely fitting that "use" of
a dangerous weapon include situations where a gun is pointed
at a victim in involuntary custody in an effort to frighten a
family member to pay a ransom, thereby completing the
kidnaping scheme by seeking "ransom or reward." 18 U.S.C.
s 1201(a). This is particularly so where the threat of poten-
tial torture or murder of the kidnaping victim should ransom
not be paid is made explicit to the family member, as here by
a telephone call to the mother that enhanced the significance
of the dangerous situation portrayed in the photograph.
Where, then, the deployment of the gun is accompanied by
direct and explicit threats to a mother about her son's well-
being in order to coerce her into paying a ransom, holding
s 2A4.1(b)(3) inapplicable would serve no purpose other than
to undercut the purpose of the enhancement provision.
Therefore, we hold that the district court did not err in
enhancing Yelverton's sentence under s 2A4.1(b)(3).3
__________
3 Yelverton's contention that enhancement for "use" of a fire-
arm is inappropriate because he was acquitted of firearms charges
under 18 U.S.C. s 924(c), is meritless. A sentencing court may
consider conduct for which a defendant was acquitted, "so long as
that conduct has been proved by a preponderance of the evidence."
II.
Yelverton contends that the thirty-three month delay be-
tween the return of the jury's verdict and the imposition of
his sentence violated his Sixth Amendment right to speedy
sentencing. The Sixth Amendment to the United States
Constitution provides:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
U.S. Const. amend. VI. Neither the Supreme Court nor this
court has held that the Sixth Amendment right to a speedy
trial reaches sentencing, but in Pollard v. United States, 352
U.S. 354, 361 (1957), the Supreme Court assumed that it did.
In Pollard, the Court explained that "the delay must not be
purposeful or oppressive," observing that "[t]he time for
sentence is of course not at the will of the judge [because]
Rule 32(a) of the Federal Rules of Criminal Procedure re-
quires the imposition of a sentence 'without unreasonable
delay.' "4 Id. Subsequently, in establishing the test for
determining whether a defendant has been deprived of his
Sixth Amendment rights due to unreasonable pre-trial delay,
the Court cited Pollard, as well as cases involving pre-trial
delay. Barker v. Wingo, 407 U.S. 514, 531 n.32 (1972). That
__________
United States v. Thomas, 114 F.3d 228, 261 (D.C. Cir. 1997); see
also United States v. Dozier, 162 F.3d 120, 125 (D.C. Cir. 1998).
4 Rule 32(a) was amended in 1994 to read:
In General; Time for Sentencing. When a presentence
investigation and report are made under subdivision (b)(1),
sentence should be imposed without unnecessary delay follow-
ing completion of the process prescribed by subdivision (b)(6).
The time limits prescribed in subdivision (b)(6) may be either
shortened or lengthened for good cause.
test involved the balancing of four factors: the "[l]ength of
delay, the reason for delay, the defendant's assertion of his
right, and prejudice to the defendant." Id. Yelverton main-
tains that the district court abused its discretion by failing to
apply this four-factor balancing test and thus erred in deny-
ing his motion to dismiss the indictment.5
The record shows that Yelverton's sentencing hearing orig-
inally was to be held on August 19, 1996. The district court
held a pre-sentence hearing on August 14, 1996, which result-
ed in a continuance until September 5, 1996, to allow Yelver-
ton time to respond to the government's motion for an
upward departure under U.S.S.C. s 4A1.3, which he did on
August 20, 1996. At the September 5th hearing, the district
court rejected the government's attempt to rely on an armed
robbery conviction that was more than twenty-five years old
to justify an upward departure, but stated that it wished to
examine the record of the 1987 drug conspiracy conviction
reversed on appeal to obtain information about Yelverton's
underlying conduct; accordingly sentencing was continued
until September 16, 1996, to permit review of the 1987
records. By that date, the 1987 records had not been located,
and the district court again continued Yelverton's sentencing
hearing while imposing sentences on co-defendants Seals and
Sweatt.6
On September 25, 1996, Yelverton filed a motion for imme-
diate sentencing within the guideline range, which was 135 to
168 months imprisonment. No action appears to have been
taken on this motion. On January 16, 1997, the government
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5 Those Circuit Courts of Appeals that have considered the
question apply a Barker v. Wingo analysis in evaluating speedy
sentencing claims. See, e.g., United States v. Thomas, 167 F.3d
299, 303 (6th Cir. 1999); United States v. Abou-Kassem, 78 F.3d
161, 167 (5th Cir. 1996); United States v. Rothrock, 20 F.3d 709,
711-12 (7th Cir. 1994); United States v. Martinez, 837 F.2d 861,
866-67 (9th Cir. 1988); Perez v. Sullivan, 793 F.2d 249, 252-54
(10th Cir. 1986); United States v. Campisi, 583 F.2d 692, 694 (3d
Cir. 1978).
6 Both co-defendants were sentenced to life imprisonment.
filed a supplemental memorandum citing United States v.
Watts, 519 U.S. 148 (1997), for the proposition that acquitted
conduct may be considered in sentencing, and pointed to the
statement of facts in its 1987 appellate brief; no transcripts
relating to the 1987 conviction were produced. The govern-
ment requested that the district court set a sentencing date
and rule on the motion for an upward departure. Yelverton
filed a response on February 10, 1997, purportedly arguing
that the government's materials did not shed light on the
evidence in the 1987 case and that the government thus failed
to meet its burden of demonstrating that he had engaged in
conduct that supported an upward departure; he requested
again that he be sentenced within the Guideline range.
By letter of June 25, 1997, Yelverton's counsel alerted the
district court that Yelverton still had not been sentenced and
that no sentencing date had been set. On March 25, 1998,
Yelverton filed a motion requesting that a sentencing date be
set, purportedly noting that almost two years had elapsed
since the date of his conviction, and repeating that the
government had found no information about his prior criminal
conduct that would support an upward departure and had
apparently abandoned its effort. The government did not
respond.
Finally, sentencing was set for February 19, 1999. Yelver-
ton filed a motion to dismiss the indictment on the grounds
that the district court had failed to impose sentence in a
timely manner. At the hearing, the district court ruled that
it lacked sufficient evidence to support an upward departure
based on Yelverton's conduct underlying the 1987 conviction,
denied Yelverton's motion to dismiss the indictment in the
absence of evidence of prejudice from the delay of sentencing,
and sentenced him to 150 months' imprisonment, in the
middle of the Guideline range, in consideration of the delay.7
__________
7 In declining to impose an upward departure based on Yelver-
ton's conduct underlying a 1987 narcotics conspiracy conviction that
had been overturned on appeal, the district court determined that it
"could not be satisfied that [it] had reviewed sufficient evidence to
find as a factual matter ... that the defendant committed the
From this record, Yelverton draws the conclusion that the
first three factors of the Barker v. Wingo test weigh heavily
in favor of dismissal of the indictment and that he also
presented evidence of the requisite prejudice. He notes,
first, that the length of the delay--thirty-three months--was
exceptional.8 He maintains, second, that the reason for the
delay demonstrates its unreasonableness: his sentencing was
substantially delayed as a result of the government's efforts
to obtain information to support an upward departure under
U.S.S.G. s 4A1.3, although it was clear by at least February
1997 that the government had come up empty-handed be-
cause its extended searches had produced only its own brief.
To the extent that the government sought to supplement its
motion for enhancement of Yelverton's sentence with any
information that the district court's own efforts might uncov-
er, Yelverton's counsel had inspected that information and
advised the district court by memorandum filed February 10,
1997, that the records did not support the government's
position. Still sentencing did not occur for two more years.
As to the third Barker v. Wingo factor, Yelverton notes his
repeated requests for sentencing. Finally, he maintains, he
was prejudiced by the delay in exercising his right of appeal;
by a lengthy and unnecessary period in the District of
Columbia Jail, "a facility with well publicized shortcomings";
and by almost three years' anxiety as a result of the govern-
ment's prolonged efforts to obtain a life sentence.
We agree that Yelverton's sentencing was unnecessarily
delayed. Assuredly, both the prosecutor and the district
court bear responsibility for ensuring that sentencing occurs
within a reasonable time after conviction. See Pollard, 352
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offense [of murder, on which the jury apparently hung]," having
access only to briefs and other materials but not a transcript of the
trial proceedings or other evidence.
8 The court has noted in the context of pre-trial delay that "any
delay of a year or more triggers our scrutiny." United States v.
Lindsey, 47 F.3d 440, 443 (D.C. Cir. 1995), vacated on other
grounds, Robinson v. United States, 516 U.S. 1023 (1995); see also
Thomas, 167 F.3d at 304.
U.S. at 486 (citing Fed. R. Crim. P. 32(a)). Yelverton points
to the government's neglect in failing to respond to his motion
to dismiss the indictment, and he faults the district court for
failing to consider the Barker factors other than prejudice at
the time of sentencing, much less for failing to respond to his
requests for prompt sentencing. Once the government ad-
vised the district court that its repeated searches of the 1987
records were unproductive, the need for further delay ap-
pears to have evaporated and Yelverton should have been
promptly sentenced. While it was in his interest to be
sentenced without waiting for the government to uncover
material to support an upward departure, his requests to be
sentenced took on added significance as the delay in sentenc-
ing increased. According leeway to the district court in light
of demands on its schedule, thirty-three months is too long.
The district court was apparently of the same view, sentenc-
ing Yelverton in the middle rather than at the high end of the
Guideline sentencing range in view of the delay.
On the other hand, despite the excessive delay and re-
peated requests for sentencing, Yelverton fails to show any
misconduct by the government; rather the record shows that
the delay was inadvertent or accidental, not purposeful or due
to malevolent conduct by the government. See Pollard, 352
U.S. at 361-62. Initially, the government could not locate the
1987 records; when it did, it proceeded to search for relevant
material. Yelverton properly concedes that some delay to
allow the government to search for information to support an
upward departure is appropriate. His complaint arises once
the government reported the futility of its efforts. That he
did not seek mandamus from this court to compel the district
court to impose sentence, suggests, perhaps, that he saw no
misconduct afoot.
Consequently, as the district court recognized, the key
factor in evaluating his Sixth Amendment claim is prejudice,
and here the delay of Yelverton's right of appeal is the most
problematic.9 The government ignores this claim of prejudice
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9 Yelverton's other evidence of prejudice is unavailing. First,
mere generalized anxiety is insufficient to establish prejudice, even
in its brief on appeal. Obviously, where a defendant proves
to have a meritorious claim on appeal, the prejudice from a
delayed appeal is clear. But a showing of prejudice cannot be
entirely contingent upon success on appeal, for that would
seriously undermine the right to a speedy sentencing, if such
a right exists. Consequently, it is precisely because it will be
difficult to determine at the time of sentencing whether an
appeal will result in a reversal of the conviction or other relief
for a defendant that the requirement of Rule 32(a) that
sentence be imposed "without unnecessary delay" assumes
added significance. Put otherwise, prejudice caused by a
delayed "right of appeal" does not fit easily within the pre-
trial jurisprudence on the prejudice factor of the Barker v.
Wingo test. Protection of the right of appeal, insofar as it is
implicated by the right to speedy sentencing, rests heavily on
the government and the district court. This we view to be
implicit in the mandate of the federal rule. When these
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when such anxiety is due to a pre-trial delay in excess of four years.
Barker, 407 U.S. at 534. As this court has noted, such generalized
anxiety in itself "is neither 'necessary [n]or sufficient ... to the
finding of a deprivation of the right of speedy trial.' " Lindsey, 47
F.3d at 443 (quoting Baker, 407 U.S. at 533). Cf. Perez, 793 F.2d at
257. Of course, a life sentence, which Yelverton knew the govern-
ment sought, is significantly different from fourteen-years imprison-
ment under the Guidelines, and some generalized anxiety on his
part as he awaited sentencing was understandable. However,
absent evidence of severe anxiety, as, perhaps, documented by
psychiatric records or expert testimony, we are left with what
amounts to rank speculation about Yelverton's general state of
mind, and this is insufficient to establish a Sixth Amendment
violation. See id.; see also Thomas, 167 F.3d at 305; Rothrock, 20
F.3d at 712; Martinez, 837 F.2d at 867.
Likewise, little weight need be given to Yelverton's complaint
about his extended stay at the D.C. Jail while he awaited sentencing
in the absence of any evidence that he was a victim of untoward or
unusual suffering as a result. To the contrary, it is well established
that a prisoner does not have a right to be housed in a particular
institution. See, e.g., Sandin v. Conner, 515 U.S. 472, 478-79
(1995); Meachum v. Fano, 427 U.S. 215, 224 (1976); Thomas, 167
F.3d at 305; Perez, 793 F.2d at 257.
protections fail, the question of appropriate remedy, if any,
remains.
Yelverton's complaint that a judicial apology for the delay
and several months' reduction in sentence as a result of the
delay is an inadequate remedy overlooks the jurisprudence
under Barker v. Wingo, which takes into account the severity
of the prejudice in evaluating a Sixth Amendment claim. See,
e.g., Lindsey, 47 F.3d at 443. The fact that Yelverton's
challenges to the legitimacy of his conviction clearly lack
merit, see infra n.11, combined with the fact that Yelverton
was facing a minimum sentence--even if his sentencing en-
hancement argument under U.S.S.G. s 2A4.1(b)(3) had pre-
vailed--far in excess of his delay in sentencing, suggest that
any prejudice suffered by Yelverton with respect to the delay
of his right to appeal did not merit a remedy greater than
that provided by the district court. Cf. Pollard, 352 U.S. at
362. He makes no claim that the delay affected his ability to
present his position on his sentence or adversely affected the
sentence he received. There also is nothing in the record to
suggest that he suffered the type of "purposeful or oppres-
sive" delay that was of concern to the Supreme Court in
Pollard. Id. at 361. Absent some indication that Yelverton's
sentence would have been shorter or substantively different
without the delay, his status as a convicted defendant weighs
more heavily in evaluating the appropriate remedy. See, e.g.,
Thomas, 167 F.3d at 305; Rothrock, 20 F.3d at 712; Mar-
tinez, 837 F.2d at 867; Perez, 793 F.2d at 257. Of course,
"inadvertent delay" or "accidental delay" of this magnitude,
particularly in view of defense and government requests that
sentencing proceed, might, notwithstanding the change in the
defendant's status after conviction, take on added weight
were there evidence of meaningful prejudice, as discussed in
Barker, but Yelverton does not demonstrate such prejudice.
Accordingly, in view of the inadvertence of the delay after
January 1997 and the absence of any evidence of prosecutori-
al misconduct or of serious prejudice, Yelverton's Sixth
Amendment claim fails under the Barker v. Wingo test,10 and
__________
10 Because of the clarity of the record on which Yelverton
relies, a remand, which Yelverton suggests as alternative relief to
because his other challenges to his conviction are meritless,11
we affirm.
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dismissal of the indictment, to allow the district judge to place on
the record its findings about the Barker factors in addition to
prejudice, see United States v. Mills, 925 F.2d 455, 464 (D.C. Cir.
1991), would be meaningless. See United States v. Davis, 181 F.3d
147, 150 (D.C. Cir. 1999).
11 Yelverton's contention that the district court erred in deny-
ing his motion to dismiss the indictment for violation of the Speedy
Trial Act, 18 U.S.C. s 3161 et seq., where the government proceed-
ed in the Superior Court of the District of Columbia until a federal
indictment was brought more than thirty days later, is controlled by
United States v. Seals, 130 F.3d 451, 454-55 (D.C. Cir. 1997), cert.
denied, 118 S.Ct. 2323 (1998), and 119 S.Ct. 111 (1998), where the
court rejected a similar claim by one of his co-defendants.
Nor do we find an abuse of discretion by the district court in
denying Yelverton's motion for severance under Fed. R. Crim. P.
14, because his defense was not fundamentally inconsistent with
that of his co-defendants and there was no risk that the jury would
infer his guilt from a conflict. See United States v. Tarantino, 846
F.2d 1384, 1399 (D.C. Cir. 1988); see also United States v. Halde-
man, 559 F.2d 31, 71 (D.C. Cir. 1976). Credibility problems arising
from his co-defendants' evidence attempting to exculpate him is not
the kind of conflict that a severance is designed to cure, see id.,
especially where Yelverton did not present a defense, much less
testify himself. Yelverton presents no authority to the contrary. Cf.
Zafiro v. United States, 506 U.S. 534, 540 (1993).