NOT RECOMMENDED FOR PUBLICATION File Name: 20a0197n.06
Case No. 19-1765
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 06, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ADAM BLAKE BROWN, ) MICHIGAN ) Defendant-Appellant. )
BEFORE: GUY, THAPAR, and BUSH, Circuit Judges.
THAPAR, Circuit Judge. Adam Brown spent nearly a year and a half in jail before
pleading guilty to a federal gun crime. He argues that this delay violated his constitutional and
statutory rights to a speedy trial. Because Brown waived his statutory argument in his plea
agreement and his constitutional argument fails on the merits, we affirm.
I.
Back in August 2017, Detroit police arrested Brown (a state felon on parole) for possessing
a firearm. This conduct violated both Brown’s parole terms and federal criminal law. See 18
U.S.C. § 922(g)(1). So the United States obtained a warrant, and Brown consented to being
transferred to federal custody.
The district court then appointed a federal public defender to represent Brown. Between
September 2017 and May 2018, that attorney sought and obtained five continuances to acquire
Brown’s mental-health records. And she represented that Brown had agreed to these delays. Case No. 19-1765, United States v. Brown
In June, the government formally charged Brown. Around the same time, his attorney
retired, so a new public defender took over the case. But that lawyer withdrew after Brown voiced
concerns about the first public defender’s performance. The district court then appointed private
counsel under the Criminal Justice Act. See 18 U.S.C. § 3006A.
With this new counsel’s help, Brown moved to dismiss the case for an alleged violation of
his right to a speedy trial. He argued that his first lawyer had dragged her feet in obtaining his
medical records and had failed to consult with him about the continuances. But the district court
found no speedy-trial problem and thus denied Brown’s motion.
Two months later, Brown pled guilty under a conditional plea agreement. See Fed. R.
Crim. P. 11(a)(2). This appeal followed.
II.
Brown raises arguments under two distinct sources of law: (1) the Sixth Amendment’s
Speedy Trial Clause and (2) the Speedy Trial Act. U.S. Const. amend. VI; 18 U.S.C. § 3161; see
also United States v. Loud Hawk, 474 U.S. 302, 304 n.1 (1986) (noting that the two provisions are
not coextensive). But in his plea agreement, Brown only preserved one issue for appeal—his
constitutional claim under the Speedy Trial Clause. See R. 45, Pg. ID 153 (providing that any
appeal “be limited solely to the ground that [Brown] raised in his written pretrial motion: an
alleged violation of the Sixth Amendment’s Speedy Trial Clause” (emphases added)). In addition,
he waived the right to appeal on any other grounds (including the Speedy Trial Act). And we
enforce that waiver according to its terms. See United States v. Schaffer, 586 F.3d 414, 420 (6th
Cir. 2009); see also United States v. Pickett, 941 F.2d 411, 416–17 (6th Cir. 1991) (holding that
Speedy Trial Act violations are waivable).
-2- Case No. 19-1765, United States v. Brown
To analyze the Speedy Trial Clause question, we apply a balancing test with four
interrelated factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether and how
Brown asserted his speedy-trial rights, and (4) whether Brown suffered prejudice. See Doggett v.
United States, 505 U.S. 647, 651 (1992); Barker v. Wingo, 407 U.S. 514, 530–33 (1972); Brown
v. Romanowski, 845 F.3d 703, 712 (6th Cir. 2017). (Although these factors aren’t exhaustive,
they’re the canonical four and the only ones the parties have briefed here. See Barker, 407 U.S. at
533.)
Length of Delay. Some delays (generally, those well under a year) are so short that courts
won’t even bother with the next three factors. See Doggett, 505 U.S. at 652 n.1; United States v.
Robinson, 455 F.3d 602, 607 (6th Cir. 2006). Other delays are so long that courts will not only
apply the remaining factors, they’ll go ahead and presume prejudice at factor four. See Doggett,
505 U.S. at 652, 657–58; United States v. Ferreira, 665 F.3d 701, 706 (6th Cir. 2011).
This case falls between those extremes. Brown pled guilty seventeen months after his
arrest. See United States v. Young, 657 F.3d 408, 414 (6th Cir. 2011) (defining the time from arrest
to plea as the relevant time period). The parties agree that’s long enough to trigger the balancing
test. But it isn’t long enough to get Brown a presumption of prejudice. See Brown, 845 F.3d at
717 (no presumption for twenty-five-month delay); United States v. Jackson, 473 F.3d 660, 667
(6th Cir. 2007) (same for twenty-month delay). In short, factor one gets Brown in the door but no
farther.
Reasons for Delay. The Supreme Court has called this factor “[t]he flag all litigants seek
to capture.” Loud Hawk, 474 U.S. at 315. Under this heading, courts ask which side prolonged
the case: the government or the defense? See Doggett, 505 U.S. at 651; Brown, 845 F.3d at 714.
-3- Case No. 19-1765, United States v. Brown
This key factor weighs against Brown. Why did this case take so long? Because the district
court granted five continuances early in the case. Who sought those continuances? Brown’s first
public defender. So who is responsible for the delay? Brown. That’s the lesson of Vermont v.
Brillon, which held that “delay caused by the defendant’s counsel is [ ] charged against the
defendant”—including when defense counsel is a public defender. 556 U.S. 81, 91 (2009).
True, Brillon left open the possibility that the government might be blamed for a “systemic
breakdown in the public defender system.” Id. at 94 (cleaned up). But there’s no evidence of such
a breakdown here. Indeed, Brown argues that his lawyer delayed his case for personal reasons
(her impending retirement), not systemic ones. Even if he’s right, the government isn’t responsible
for that kind of delay. See id. at 92.
Assertion of Rights. Brown’s record of asserting his speedy-trial rights is spotty at best.
The soonest he arguably asserted them was in “early 2018,” when he claims to have sent a letter
(never produced) to a district judge (the wrong one) to ask why his case was in limbo. Assuming
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0197n.06
Case No. 19-1765
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 06, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ADAM BLAKE BROWN, ) MICHIGAN ) Defendant-Appellant. )
BEFORE: GUY, THAPAR, and BUSH, Circuit Judges.
THAPAR, Circuit Judge. Adam Brown spent nearly a year and a half in jail before
pleading guilty to a federal gun crime. He argues that this delay violated his constitutional and
statutory rights to a speedy trial. Because Brown waived his statutory argument in his plea
agreement and his constitutional argument fails on the merits, we affirm.
I.
Back in August 2017, Detroit police arrested Brown (a state felon on parole) for possessing
a firearm. This conduct violated both Brown’s parole terms and federal criminal law. See 18
U.S.C. § 922(g)(1). So the United States obtained a warrant, and Brown consented to being
transferred to federal custody.
The district court then appointed a federal public defender to represent Brown. Between
September 2017 and May 2018, that attorney sought and obtained five continuances to acquire
Brown’s mental-health records. And she represented that Brown had agreed to these delays. Case No. 19-1765, United States v. Brown
In June, the government formally charged Brown. Around the same time, his attorney
retired, so a new public defender took over the case. But that lawyer withdrew after Brown voiced
concerns about the first public defender’s performance. The district court then appointed private
counsel under the Criminal Justice Act. See 18 U.S.C. § 3006A.
With this new counsel’s help, Brown moved to dismiss the case for an alleged violation of
his right to a speedy trial. He argued that his first lawyer had dragged her feet in obtaining his
medical records and had failed to consult with him about the continuances. But the district court
found no speedy-trial problem and thus denied Brown’s motion.
Two months later, Brown pled guilty under a conditional plea agreement. See Fed. R.
Crim. P. 11(a)(2). This appeal followed.
II.
Brown raises arguments under two distinct sources of law: (1) the Sixth Amendment’s
Speedy Trial Clause and (2) the Speedy Trial Act. U.S. Const. amend. VI; 18 U.S.C. § 3161; see
also United States v. Loud Hawk, 474 U.S. 302, 304 n.1 (1986) (noting that the two provisions are
not coextensive). But in his plea agreement, Brown only preserved one issue for appeal—his
constitutional claim under the Speedy Trial Clause. See R. 45, Pg. ID 153 (providing that any
appeal “be limited solely to the ground that [Brown] raised in his written pretrial motion: an
alleged violation of the Sixth Amendment’s Speedy Trial Clause” (emphases added)). In addition,
he waived the right to appeal on any other grounds (including the Speedy Trial Act). And we
enforce that waiver according to its terms. See United States v. Schaffer, 586 F.3d 414, 420 (6th
Cir. 2009); see also United States v. Pickett, 941 F.2d 411, 416–17 (6th Cir. 1991) (holding that
Speedy Trial Act violations are waivable).
-2- Case No. 19-1765, United States v. Brown
To analyze the Speedy Trial Clause question, we apply a balancing test with four
interrelated factors: (1) the length of the delay, (2) the reasons for the delay, (3) whether and how
Brown asserted his speedy-trial rights, and (4) whether Brown suffered prejudice. See Doggett v.
United States, 505 U.S. 647, 651 (1992); Barker v. Wingo, 407 U.S. 514, 530–33 (1972); Brown
v. Romanowski, 845 F.3d 703, 712 (6th Cir. 2017). (Although these factors aren’t exhaustive,
they’re the canonical four and the only ones the parties have briefed here. See Barker, 407 U.S. at
533.)
Length of Delay. Some delays (generally, those well under a year) are so short that courts
won’t even bother with the next three factors. See Doggett, 505 U.S. at 652 n.1; United States v.
Robinson, 455 F.3d 602, 607 (6th Cir. 2006). Other delays are so long that courts will not only
apply the remaining factors, they’ll go ahead and presume prejudice at factor four. See Doggett,
505 U.S. at 652, 657–58; United States v. Ferreira, 665 F.3d 701, 706 (6th Cir. 2011).
This case falls between those extremes. Brown pled guilty seventeen months after his
arrest. See United States v. Young, 657 F.3d 408, 414 (6th Cir. 2011) (defining the time from arrest
to plea as the relevant time period). The parties agree that’s long enough to trigger the balancing
test. But it isn’t long enough to get Brown a presumption of prejudice. See Brown, 845 F.3d at
717 (no presumption for twenty-five-month delay); United States v. Jackson, 473 F.3d 660, 667
(6th Cir. 2007) (same for twenty-month delay). In short, factor one gets Brown in the door but no
farther.
Reasons for Delay. The Supreme Court has called this factor “[t]he flag all litigants seek
to capture.” Loud Hawk, 474 U.S. at 315. Under this heading, courts ask which side prolonged
the case: the government or the defense? See Doggett, 505 U.S. at 651; Brown, 845 F.3d at 714.
-3- Case No. 19-1765, United States v. Brown
This key factor weighs against Brown. Why did this case take so long? Because the district
court granted five continuances early in the case. Who sought those continuances? Brown’s first
public defender. So who is responsible for the delay? Brown. That’s the lesson of Vermont v.
Brillon, which held that “delay caused by the defendant’s counsel is [ ] charged against the
defendant”—including when defense counsel is a public defender. 556 U.S. 81, 91 (2009).
True, Brillon left open the possibility that the government might be blamed for a “systemic
breakdown in the public defender system.” Id. at 94 (cleaned up). But there’s no evidence of such
a breakdown here. Indeed, Brown argues that his lawyer delayed his case for personal reasons
(her impending retirement), not systemic ones. Even if he’s right, the government isn’t responsible
for that kind of delay. See id. at 92.
Assertion of Rights. Brown’s record of asserting his speedy-trial rights is spotty at best.
The soonest he arguably asserted them was in “early 2018,” when he claims to have sent a letter
(never produced) to a district judge (the wrong one) to ask why his case was in limbo. Assuming
this happened (and that it counts as an assertion of his rights), it was still four months or more after
Brown’s arrest. That’s a significant delay. See United States v. Schreane, 331 F.3d 548, 557 (6th
Cir. 2003) (holding that a delay of four months and three weeks weighed against the defendant).
What’s more, Brown has never claimed that he raised any timing concerns with his first public
defender, even though they met regularly in the first quarter of 2018.
Likewise, that summer, Brown had at least two substantial meetings with his second public
defender before he raised any speedy-trial concerns with her. And he didn’t raise any timing
complaints at his arraignment. All in all, the evidence that Brown actively asserted his speedy-
trial rights is thin.
-4- Case No. 19-1765, United States v. Brown
Prejudice. The fourth and final factor also cuts against Brown. In the speedy-trial context,
“the most serious” form of prejudice is the risk of impairing the defense. Doggett, 505 U.S. at 654
(quoting Barker, 407 U.S. at 532). But Brown doesn’t claim to have suffered that sort of prejudice.
And for good reason: the delay in his case did not make a conviction any more likely. Even if
Brown had gone to trial, the evidence against him was cut-and-dry from the beginning.
In lieu of injury to his defense, Brown points to the inherent inconvenience and distress
that come with being jailed. But even if the federal government hadn’t kept Brown in custody,
Michigan would have detained him for his parole violation. See Brown v. Bobby, 656 F.3d 325,
335 (6th Cir. 2011); United States v. Brown, 498 F.3d 523, 532 (6th Cir. 2007). Either way Brown
was going to be detained.
In passing, Brown also asserts that he “lost the opportunity to resolve his parole issue” as
a result of his long federal detention. Appellant Br. at 22. But he fails to elaborate on this point
beyond the snippet just quoted, forfeiting any argument he might have had. See United States v.
Bradley, 917 F.3d 493, 509 (6th Cir. 2019).
Conclusion. The first factor gets Brown over the threshold but no farther, and the other
three factors cut against him (especially factors two and four). All told, the balance tilts heavily
against a violation of the Speedy Trial Clause.
We affirm.
-5-