US v. Worthy

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and David J. Barron, Appellate Judge. Published. [13-1831]

Case: 13-1831

Document: 00116761859

Page: 1

Date Filed: 11/07/2014

Entry ID: 5865630

United States Court of Appeals
For the First Circuit

No. 13-1831
UNITED STATES,
Appellee,
v.
HASAN WORTHY,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before
Lynch, Chief Judge,
Stahl and Barron, Circuit Judges.

Michael J. Sheehan, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

November 7, 2014

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STAHL, Circuit Judge.

Date Filed: 11/07/2014

Entry ID: 5865630

After the indictment against him

was dismissed without prejudice for a Speedy Trial Act violation,
Defendant-Appellant

Hasan

Worthy

ultimately

was

convicted

of

various offenses arising out of his participation in a drug
conspiracy.

As the government conceded a breach of 18 U.S.C.

§ 3161(c)(1), requiring a criminal defendant to be brought to trial
within seventy days of the filing of an indictment, the statutory
issue on appeal is limited to whether the district court chose the
appropriate remedy for the violation.

We are further asked to

decide whether the district court properly determined that Worthy
had not been deprived of his Sixth Amendment right to a speedy
trial.

Finding no abuse of discretion on either point, we affirm.
I.

Facts & Background

As Worthy raises solely speedy-trial claims on appeal and
does not challenge the sufficiency of the evidence supporting his
convictions, we recite only the procedural history of the case.
An initial criminal complaint issued against Worthy on
August 6, 2010, charging him with participation in a conspiracy to
possess cocaine with the intent to distribute, an offense which
carries a maximum penalty of twenty years' imprisonment. 21 U.S.C.
§ 841(b)(1)(C).
Over

the

next

The first indictment issued on August 17, 2010.
fourteen

months,

the

superseding indictments against him.
superseding

indictments

added

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new

government

brought

four

For the most part, the
counts

or

additional

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codefendants, though the third superseding indictment in certain
counts changed the type of substance involved (from cocaine base to
cocaine), and in some instances, the quantities at issue.
The parties engaged in extensive motion practice. Worthy
moved

to

dismiss

the

first,

second,

and

fourth

superseding

indictments, arguing that each was untimely under the provision of
the Speedy Trial Act requiring an indictment to be filed within
thirty days of the initial arrest.

See 18 U.S.C. § 3161(b).

While

questioning "the need for this succession of charging documents,"
the

district

court

denied

the

motions,

finding

no

statutory

violation.
Five days before jury empanelment was set to begin,
Worthy moved to dismiss the fourth superseding indictment again,
asserting — for the first time — impermissible trial delay, in
violation of both the Sixth Amendment and the Speedy Trial Act's
seventy-day
§ 3161(c)(1).
had

pleaded

indictment-to-trial

clock.1

See

18

U.S.C.

By that point, all of Worthy's codefendants already
guilty.

However,

because

it

was

awaiting

the

presentence report of one codefendant, Dereck Berryan, the court
deferred formal acceptance of Berryan's plea agreement.

The

clerk's office thus had automatically stopped the statutory speedy-

1

By the time of this motion to dismiss the fourth superseding
indictment, the original indictment as well as the other three
superseding indictments had been dismissed either by consent of the
parties or due to want of prosecution.
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trial

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clock

as

to

both

Page: 4

Berryan

Date Filed: 11/07/2014

and

Worthy,

Entry ID: 5865630

pursuant

to

the

exclusion under 18 U.S.C. § 3161(h)(1)(G) for "delay resulting from
consideration by the court of a proposed plea agreement to be
entered into by the defendant and the attorney for the Government."
Resolution of Worthy's motion turned on whether time that was
excludable from Berryan's clock under § 3161(h)(1)(G) also could be
discounted

from

Worthy's

clock,

by

virtue

of

the

statutory

exception of § 3161(h)(6) for "[a] reasonable period of delay when
the defendant is joined for trial with a codefendant as to whom the
time for trial has not run and no motion for severance has been
granted."
During oral argument on Worthy's motion, the government
agreed that a statutory violation had occurred, though it did not
concede the constitutional issue.

The district court accepted the

government's stipulation but nonetheless conducted an independent
analysis of whether there had in fact been a violation.

The

precise question before the district court, one of first impression
in this Circuit, was whether Worthy still effectively was "joined
for trial" with Berryan, for the purposes of § 3161(h)(6), where
Berryan had pleaded guilty pursuant to a plea agreement as yet
unaccepted by the court. Following the Fifth Circuit's approach in
United States v. Stephens, 489 F.3d 647, 654 (5th Cir. 2007), the
court answered the question in the negative, concluding that, where
a

codefendant's

speedy-trial

clock

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has

stopped

pursuant

to

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§ 3161(h)(1)(G), that time is not also excludable as a matter of
course under § 3161(h)(6) from the clock of the defendant who has
not yet entered a plea.
The court also considered whether, even if application of
the exclusion of § 3161(h)(1)(G) to codefendants is not automatic,
the exclusion should be applied under the particular facts of this
case.

The court concluded that it should not apply here.

Among

other reasons, the court explained that, because Berryan was
charged under the third but not the fourth superseding indictment,2
which was the only indictment that still pertained to Worthy, the
two
§

were

no

longer

3161(h)(6).

"joined

With

for

Worthy's

trial"

clock

for

still

the

purposes

running

while

of
his

codefendant awaited sentencing, his seventy-day time limit expired
on

February

14,

2012;

by

jury

empanelment

on

July

2,

2012,

seventy-seven days of impermissible delay had resulted.3
Applying the § 3162(a)(2) factors, the court determined
that the appropriate remedy for exceeding the statutory time limit
by seventy-seven days was a dismissal of the fourth superseding
indictment without prejudice, as opposed to a dismissal with
prejudice.

The length of delay deemed relevant to Worthy's

2

Berryan already had pleaded guilty by the time the fourth
superseding indictment issued.
3

As neither party has asked us to review the district court's
conclusion that a violation of the Speedy Trial Act did indeed
occur, we express no opinion as to the court's analysis in this
regard.
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constitutional claim, however, was the twenty-three-month period
between the date of arrest and the date trial was scheduled to
commence.

Although this amount of delay was deemed presumptively

prejudicial, the court held that Worthy's Sixth Amendment right to
a speedy trial had not been violated, primarily due to his failure
to assert his right promptly and the absence of serious prejudice
to his case.

See Barker v. Wingo, 407 U.S. 514, 530–33 (1972).

A new indictment followed on August 7, 2012, the sixth
one in the case.4

Worthy filed another motion to dismiss on

speedy-trial grounds, in order to preserve his right to appeal from
the district court's denial of his request to dismiss
superseding indictment with prejudice.

the fourth

That motion was denied.

After an eight-day jury trial, Worthy was convicted of engaging in
a conspiracy to possess with intent to distribute in excess of 280
grams of cocaine base and 500 grams of cocaine; two counts of
aiding and abetting possession with intent to distribute cocaine;
and aiding and abetting use of a communication device to facilitate

4

The district court subsequently granted Worthy's motion for
immediate release from custody pursuant to 18 U.S.C. § 3164(c),
which requires that the trial of any person detained under that
section commence within ninety days of "the beginning of such
continuous detention."
The government filed an interlocutory
appeal and this court reversed the district court's order. We held
that "when an indictment is dismissed upon the motion of a
defendant, the dismissal is without prejudice and that defendant is
again detained awaiting trial, section 3164's 90-day clock restarts
at the moment that the defendant is re-arrested, regardless of the
nature of the charges in the new complaint."
United States v.
Worthy, 699 F.3d 661, 665 (1st Cir. 2012) (per curiam).
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the

Document: 00116761859

commission

of

a

drug

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Date Filed: 11/07/2014

distribution

offense.

Entry ID: 5865630

Worthy

was

sentenced to a 300-month term of imprisonment on the first three
counts and a 48-month term on the final count, to be served
concurrently.

This appeal followed.
II.

A.

Analysis

Speedy Trial Act
The Speedy Trial Act, intended to effectuate the Sixth

Amendment right to a speedy trial, obligates the government to
bring a defendant to trial within seventy days of filing an
information or indictment.

See 18 U.S.C. § 3161(c)(1); United

States v. Franklin, 630 F.3d 53, 57 (1st Cir. 2011).

Certain

periods of delay, however, are to be excluded from the seventy-day
clock.

18 U.S.C. § 3161(h).

If trial has not commenced within the

requisite time period, "the information or the indictment shall be
dismissed on motion of the defendant."

Id. § 3162(a)(2).

As both

parties agree that Worthy was not timely brought to trial under the
rule of § 3161(c)(1), the question on appeal is limited to whether
the dismissal of the fourth superseding indictment without, rather
than with, prejudice was an appropriate sanction.
The district court may elect to dismiss the charges
either with or without prejudice, after "consider[ing], among
others, each of the following factors: the seriousness of the
offense; the facts and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the administration

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of [the Speedy Trial Act] and on the administration of justice."
Id.

The court may consider any other factors that are rationally

related to the statutory objective of balancing public and private
interests; in this Circuit, "we have come to describe prejudice to
the defendant as the fourth factor for courts to consider."
Franklin, 630 F.3d at 58 (citing United States v. Barnes, 159 F.3d
4, 16 (1st Cir. 1998)); United States v. Hastings, 847 F.2d 920,
924 (1st Cir. 1988).
We review a district court's choice of sanction for abuse
of discretion, Franklin, 630 F.3d at 58, keeping in mind that that
court is "best situated to assess the degree of the violation and
its likely effect on the parties involved." Barnes, 159 F.3d at 16;
see also United States v. Taylor, 487 U.S. 326, 335–36 (1988).
Here, the district court carefully weighed the statutory
factors, in addition to the prejudice factor prescribed by this
court, in determining the appropriate remedy for the impermissible
trial delay. The court found that the first factor, seriousness of
the offense, weighed against Worthy, given the allegations of a
protracted conspiracy involving the distribution of large amounts
of crack cocaine, powder cocaine, and heroin. Cf. United States v.
Brown, 770 F.2d 241, 244 (1st Cir. 1985) (approving of district
court's finding that "distribution and conspiracy to distribute
cocaine[] are undeniably serious," weighing against dismissal with
prejudice).

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As for the second factor, the facts and circumstances of
the case that led to dismissal, the district court noted that
Worthy was to blame for some of the delay, as he had moved for
certain continuances and acquiesced in others.5

Indeed, some of

Worthy's requested extensions delayed setting the case for trial.
Cf.

Barnes,

159

F.3d

at

17

(defendant

requested

several

continuances and did not "behave like [someone] who wanted her day
in court posthaste").

Although the government's charging strategy

did somewhat prolong the length of pretrial incarceration, much of
that

time

was

excludable

under

the

statute.

The

period

of

nonexcludable delay resulted from the clerk's office's apparently
erroneous speedy-trial calculations, some evidence of a lack of
prosecutorial bad faith.6

Cf. United States v. Scott, 270 F.3d 30,

58 (1st Cir. 2001) (facts and circumstances did not counsel in
favor of dismissal with prejudice where delay attributable to
district court error rather than governmental bad faith).

The

court thus determined that, "although the delay [had] been long,
the facts and circumstances [did] not cry out for dismissal with
prejudice," particularly where Worthy only raised the issue of

5

Worthy filed eight motions for extension of time, all of
which were granted.
Worthy also failed to object to four
government motions to extend time, which also were granted.
6

As noted, both parties agree that the clerk's office
erroneously stopped the clock as to Worthy while his codefendant
who had pleaded guilty awaited sentencing. We accordingly take no
position as to whether such time is excludable from the seventy-day
Speedy Trial Act clock.
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undue delay five days before trial and never filed a motion to
sever.

Cf. Barnes, 159 F.3d at 17 (dismissal with prejudice

unwarranted where "[d]efendant never raised the speedy trial claim
until the last possible moment").
The district court determined that the third factor, the
impact of reprosecution on the administration of the Speedy Trial
Act and on the administration of justice, also did not counsel in
favor of dismissal with prejudice. The court observed that, as the
case had not yet proceeded to trial, the administration of justice
would not be impeded by the need to carry out a retrial.

The court

further reasoned that dismissal with prejudice, to be invoked only
as a "last and rare resort," United States v. Dessesaure, 556 F.3d
83, 85 (1st Cir. 2009) (per curiam), was an inappropriate remedy in
a case involving a narrow Speedy Trial Act issue on which this
court has not yet spoken.
Finally, with regard to the fourth factor, the district
court acknowledged that Worthy had been deprived of his liberty for
a significant period of time while awaiting trial, but concluded
that Worthy had failed to demonstrate prejudice.

Worthy had not

offered evidence that witnesses had died or left the country, that
documents had been destroyed, or that the delay was so long as to
materially affect memories of the relevant events.7

7

Cf. id. at 86

Worthy argued before the district court, and argues here,
that his inability to locate a witness, Timothy Vokey, who had
testified at his detention hearing, caused him prejudice. Vokey
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("Ordinarily, the strongest argument against re-prosecution is
prejudice to the defendant — most importantly, loss of witnesses or
other impediments to obtaining a fair trial at a later date.").
The

court

also

rejected

Worthy's

argument

that

he

had

been

prejudiced because some of his codefendants had been persuaded to
testify

against

reasoned,

"If

prejudice.

him

they

during
testify

the

period

truthfully,

of
it

delay.
is

The

not

court

cognizable

If they testify untruthfully, that is a matter for

cross-examination and impeachment."

Cf. United States v. Trueber,

238 F.3d 79, 91 (1st Cir. 2001) (in constitutional speedy-trial
analysis, "mere possibility that the government's case may get
stronger with time is not sufficient" to establish prejudice).

At

least in the absence of a showing of prosecutorial bad faith, we
agree.

Thus, in light of these considerations, the district court

decided that dismissal without prejudice was the appropriate remedy
for the Speedy Trial Act violation.
The

court's

methodical

application

of

the

relevant

factors was consistent with established Circuit precedent.

Worthy

argues on appeal that dismissal with prejudice is warranted as a
"severe reminder" of the consequences of contravening the Speedy
Trial Act.

However, "[d]ismissal without prejudice is not a

had testified that he had never known Worthy to use or possess
drugs, even though Worthy's attorney conceded that Worthy had
recently used drugs. The district court appropriately found that,
under the circumstances, Vokey's unknown location, without more,
was "not a sufficient proffer of prejudice."
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toothless sanction," and itself imposes considerable costs on the
government; the other factors of § 3162(a)(2) would be redundant if
deterrence

were

the

appropriate remedy.
17–18.

overriding

consideration

in

choosing

the

Taylor, 487 U.S. at 342; Barnes, 159 F.3d at

We are similarly unpersuaded by Worthy's contention that

delay occasioned by the government should weigh strongly in favor
of dismissal with prejudice.

Worthy grounds this argument in the

government's charging strategy, which resulted primarily in delay
that was excludable under the Speedy Trial Act and therefore was
not among the "facts and circumstances of the case which led to
dismissal."

§ 3162(a)(2) (emphasis added).

In any event, the

district court considered the delay caused by the government, and
appropriately discounted it by the seriousness of the offense,
Worthy's own responsibility for the delay, and lack of prejudice.
Accordingly, the court did not abuse its discretion.8

8

We also reject Worthy's argument, raised by defense counsel
at oral argument, that the seriousness of the offense does not
merit much weight in the analysis, since all federal crimes are
inherently serious.
Not all federal crimes are created equal;
penalties vary considerably. Compare 18 U.S.C. § 1708 (theft or
receipt of stolen mail subject to maximum penalty of five years),
with 18 U.S.C. §§ 1111, 1512 (murder with intent to prevent witness
from testifying subject to maximum penalty of death or life
imprisonment). We have consistently held that, "[b]y their very
nature, drugs-for-profit offenses are extremely serious." United
States v. Hastings, 847 F.2d 920, 925 (1st Cir. 1988). Indeed,
conspiracy to possess with intent to distribute in excess of 280
grams of cocaine base, one of the offenses of which Worthy was
convicted, carries a maximum penalty of life imprisonment.
21 U.S.C. § 841(b)(1)(A)(iii).
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Sixth Amendment
Worthy also argues that he was deprived of his Sixth

Amendment right to a speedy trial, and that the district court
erred in concluding otherwise. A court evaluating a constitutional
speedy-trial claim must weigh the following factors: "(1) the
length of the delay, (2) the reasons for the delay, (3) the
defendant's assertion of his right, and (4) prejudice to the
defendant resulting from the delay." United States v. Dowdell, 595
F.3d 50, 60 (1st Cir. 2010) (citing Barker v. Wingo, 407 U.S. 514,
530 (1972)).

We review a district court's decision in this regard

for abuse of discretion.

United States v. Souza, 749 F.3d 74, 81

(1st Cir. 2014).
The constitutional right to a speedy trial "attaches upon
arrest or indictment, whichever occurs first."

United States v.

Muñoz-Amado, 182 F.3d 57, 61 (1st Cir. 1999).

Here, the right

attached on August 6, 2010, the date of arrest.
originally
determined

was

scheduled

that

the

for

July,

2012,

twenty-three–month

presumptively prejudicial delay.9

the

Because trial
district

period

court

constituted

See Souza, 749 F.3d at 81

("Generally, delay becomes prejudicial around the one-year mark."
(citing Doggett v. United States, 505 U.S. 647, 652 n.1 (1992))).
Worthy's threshold showing of delay was thus sufficient to "trigger

9

Although jury empanelment took place on July 2, 2012, the
trial itself did not commence until October 29, 2012.
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speedy trial analysis," Trueber, 238 F.3d at 87, and the district
court considered the other three factors in turn.
The district court assessed the primary reasons for the
delay — the second factor and "focal inquiry," United States v.
Santiago-Becerril, 130 F.3d 11, 22 (1st Cir. 1997) — as "the number
of defendants, the multiplicity of motions and events . . . , and
the complexity of the case."

Cf. Barker, 407 U.S. at 531 (longer

delay can be tolerated in cases involving complex conspiracy
charges); United States v. Casas, 425 F.3d 23, 33–34 (1st Cir.
2005) (in multi-defendant drug conspiracy case, "reasons for delay"
factor weighed against defendants where delay was attributable to
extensive

pretrial

motion

practice).

Worthy

himself

was

responsible for many of the pretrial motions. Cf. Muñoz-Amado, 182
F.3d at 62 (noting role of defendant's motions in extending trial
delay).
pendency

The court also observed that the ensuing delay during the
of

codefendants'

plea

agreements

resulted

not

from

prosecutorial bad faith, but from the procedures of the clerk's
office.

Cf. Trueber, 238 F.3d at 89 ("There is no showing of 'bad

faith' or 'dilatory purpose' on the part of the government . . . .
On the contrary, this delay is attributable to the district court
clerk's

office.").

Thus,

the

second

factor

weighed

against

Worthy.10

10

Worthy argues on appeal that the government's strategy of
bringing successive indictments itself betrays a dilatory and venal
purpose.
However, "superseding indictments setting forth new
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The district court determined that the third factor, the
defendant's assertion of the right, also cut against Worthy.
Although Worthy previously had challenged the timeliness of the
indictments under the Speedy Trial Act, he first raised the claim
of excessive trial delay at the eleventh hour.

Cf. United States

v. Henson, 945 F.2d 430, 438 (1st Cir. 1991) (defendant did not
demonstrate "adequate alacrity in asserting a request for a speedy
trial," revealing a "lack of enthusiasm for the [speedy trial]
right which [he] now assert[s]" (alteration in original) (internal
quotation marks omitted)).
Finally, the district court echoed its earlier statutory
analysis of prejudice, reiterating that prejudice in Worthy's case
was limited to pretrial incarceration. The court noted that Worthy
had been incarcerated for just under twenty-three months when he
filed the motion to dismiss, an amount of time not materially
longer than the nineteen-month period of pretrial incarceration
that

we

have

held

"insufficient

constitutional level of prejudice."11

[by

itself]

to

establish

a

Muñoz-Amado, 182 F.3d at 63.

charges or adding new defendants are familiar fare," United States
v. Flemmi, 245 F.3d 24, 28 (1st Cir. 2001); as the district court
found, all the indictments in this case added either additional
codefendants or new charges. "We refuse to find bad faith from a
record barren of indications that any in fact existed." United
States v. Colombo, 852 F.2d 19, 25 (1st Cir. 1988).
11

As noted, by the time trial actually commenced, the delay
since the date of arrest totaled nearly twenty-seven months. See
supra note 9. This four-month differential does not meaningfully
alter the constitutional analysis.
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The court did not identify any "undue pressures," above and beyond
the "considerable anxiety [that] normally attends the initiation
and pendency of criminal charges," as are necessary to show
prejudice.

United States v. Maxwell, 351 F.3d 35, 41 (1st Cir.

2003) (internal quotation marks omitted).
We agree with the district court's analysis.

Although

Worthy experienced presumptively prejudicial trial delay,12 "other
counterbalancing factors outweigh this deficiency and prevent
constitutional error."

Casas, 425 F.3d at 34.

There was no abuse

of discretion, particularly in light of the complexity of the case,
Worthy's own responsibility for and acquiescence in the delay, and
the absence of any cognizable prejudice.
III.

Conclusion

For the foregoing reasons, Worthy's convictions are
AFFIRMED.

12

Worthy appears eligible to receive credit for time spent
incarcerated while awaiting trial pursuant to 18 U.S.C. § 3585(b).
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