F I L E D United States Court of Appeals Tenth Circuit PUBLISH August 8, 2006 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, v. No. 05-1416 W ILLIA M JO H N Y EH LIN G ,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF COLORADO (D .C. NO. 99-CR-61-N)
W ade H. Eldridge, Denver, Colorado, for D efendant-Appellant.
Andrew A. Vogt, Assistant United States Attorney (Jerry N. Jones, Assistant United States Attorney, and W illiam J. Leone, United States Attorney, on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before M U RPH Y, A ND ER SO N, and TYM KOVICH, Circuit Judges.
M U RPH Y, Circuit Judge.
I. Introduction
Defendant-Appellant W illiam John Yehling was tried and convicted in the
United States D istrict Court for the District of Colorado of conspiracy to distribute and to possess with intent to distribute methamphetamine. He was
sentenced to eighteen months’ imprisonment followed by three years’ supervised
release. Shortly after the district court entered judgment, Yehling filed a motion
for a new trial based on newly discovered evidence. The district court denied the
motion approximately four years later. W hile the motion was pending, Yehling
was free on a personal recognizance bond. Yehling raises two issues on appeal.
First, he challenges the sufficiency of the evidence supporting his conviction.
Second, he argues the district court’s delay in deciding his motion for a new trial
deprived the court of jurisdiction and constituted a denial of Yehling’s right to a
speedy trial and due process of law . This court exercises jurisdiction pursuant to
18 U.S.C. § 1291. W e conclude Yehling failed to timely assert his speedy trial
and due process rights and did not allege substantial prejudice resulting from the
district court’s delay in deciding his motion for a new trial. His unreasonable
delay claims are therefore denied. W e further affirm Yehling’s conviction.
II. Background
Yehling was one of nineteen defendants charged in a twenty-one-count
superceding indictment with conspiracy to distribute and to possess with intent to
distribute methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C.
-2- §§ 841(a)(1) and 846. 1 The indictment alleged a conspiracy whereby
methamphetamine was obtained in California and Colorado for resale to
distributors in Ouray County, Colorado. The indictment alleged Yehling
conspired to supply methamphetamine to codefendants Perry W herley and Eric
Avril in Colorado.
Yehling and six other defendants were tried jointly. Defendant W herley,
who had entered into a plea agreement with the government, testified that in
1996, he and defendant Brenda Paul discussed traveling to California to obtain
methamphetamine for resale in Colorado. Thereafter, W herley and Paul traveled
to California every other weekend to purchase three to four ounces of
methamphetamine from defendant Jodey Gravett. W herley would then cut the
methamphetamine into gram quantities and package it for resale to customers in
Ouray County. After W herley and Paul had a disagreement, M ichael Sullings
began to accompany W herley on his trips to California. W herley testified he and
Sullings made ten to twelve trips from Colorado to California, purchasing
between two and four ounces of methamphetamine from Gravett each time. After
Sullings was arrested, defendant Avril accompanied W herley to California. For
these trips, Avril located a new source, defendant Robert Silcock. W herley
1 The indictment charged other coconspirators with drug possession, witness tampering, and use of a firearm in relation to a drug trafficking offense. Yehling, however, was charged only with one count of conspiracy to distribute methamphetamine.
-3- testified he and Avril traveled to California once a month for several months,
purchasing two to three ounces of methamphetamine each time. In July 1998,
W herley stopped traveling to California and, instead, began obtaining
methamphetamine in Colorado.
W herley testified he approached Yehling, whom he had met when they
worked together at Blackhawk Construction, in an attempt to locate someone to
supply large quantities of methamphetamine in Colorado. Yehling located a
potential source named Jovanni. The FBI intercepted several subsequent
telephone conversations between Wherley, Avril, and Yehling discussing the
source. 2 In September 1998, Yehling called W herley to inform him Avril had
stopped by Yehling’s house to get “a little bit” and was “really happy with the
stuff.” ROA, Supp. Vol. III, Ex. 49. Yehling indicated the price was down to
$700 per ounce. W herley asked whether Y ehling had more available
immediately. Yehling stated, “I wanted to make sure everybody was satisfied
before I did anything different,” but indicated he could obtain more the next day.
ROA, Supp. Vol. III, Ex. 49. Yehling also stated he was “in with the M exican
cartel” and was interested in “turn[ing] over a bunch and make[ing] some dough.”
ROA, Supp. Vol. III, Ex. 49.
2 The FBI obtained a warrant to place a wiretap on W herley’s residential telephone in A ugust 1998. Recordings of intercepted telephone calls were admitted into evidence at trial and played for the jury.
-4- Three days later, in another recorded conversation, Yehling told W herley
his source wanted $1000 per ounce. Yehling indicated he thought the price was
too high and would try to find another source. Several weeks later, Yehling
called W herley to ask if he wanted to “place an order.” ROA, Supp. Vol. III, Ex.
57. W herley requested an eight-ball (three-and-one-half grams of
methamphetamine) and then called Avril to inform him of the deal. Avril asked
whether Yehling could supply ounce quantities. W herley replied that Yehling
could, but his source wanted too much money.
At trial, W herley admitted Yehling had provided samples from his source.
Nevertheless, Yehling argued W herley indicated a deal was never reached and
thus Yehling did not provide W herley with any methamphetamine for the purpose
of redistributing it to others. Avril, who had also entered into a plea agreement
with the government, testified he purchased an eight-ball of methamphetamine
from Yehling on one occasion. Avril indicated that if he “liked it,” he and
W herley would purchase ounce quantities from Yehling’s source. ROA, Vol. X at
1273. Avril stated, however, the methamphetamine was intended for his personal
use.
Yehling was interview ed by FBI Special A gent Emerson Buie after his
arrest. Buie testified that Yehling admitted knowing W herley was buying and
selling methamphetamine. Yehling also knew W herley had made several trips to
California w ith Avril and Sullings to obtain methamphetamine. Yehling told Buie
-5- that W herley approached him at work seeking a local supplier in Colorado.
Yehling admitted to locating a potential source named Jovanni, introducing
W herley to Jovanni, and providing Avril with less than a quarter gram of
methamphetamine as a sample. Yehling’s residence was searched, but no drugs,
baggies, scales, or large sums of cash were found.
At the close of evidence, the jury returned a verdict finding Yehling, and
five of his codefendants, guilty of conspiracy to distribute and to possess with
intent to distribute methamphetamine. The district court sentenced Yehling to
eighteen months’ imprisonment followed by three years’ supervised release. O n
December 4, 2001, Yehling filed a motion for a new trial based on newly
discovered evidence. At trial, Avril had testified Justin Coykendall told him
Yehling gave Coykendall methamphetamine to give to Avril. Yehling’s motion
for a new trial asserted he had located Coykendall, and Coykendall would deny
the statement attributed to him by Avril. Yehling also filed a motion to stay his
obligation to surrender for service of his sentence until the district court ruled on
his motion for a new trial. The district court granted the stay.
The district court did not decide Y ehling’s motion for a new trial for almost
four years. In M arch 2004 and 2005, Yehling filed motions seeking the district
court’s permission to travel to Cozumel, M exico for his honeymoon and Boston to
watch his brother run the Boston M arathon, respectively. Both motions indicated
Yehling’s motion for a new trial was still pending before the district court. The
-6- district court granted permission for Yehling to travel on both occasions, but did
not rule on Yehling’s motion for a new trial.
Recognizing Yehling’s motion had been pending for almost four years, the
government requested a status conference in June 2005. Yehling subsequently
filed a motion seeking resentencing in light of United States v. Booker, which had
been decided by the Supreme Court while Yehling’s motion for a new trial was
pending. 543 U.S. 220 (2005). Yehling requested he be resentenced to probation
for time already served. On August 26, 2005, the district court granted Y ehling’s
motion for resentencing, but denied his motion for a new trial. The court
concluded the new evidence offered by Yehling would merely impeach Avril’s
testimony and was not likely to result in an acquittal upon retrial because other
evidence presented by the government tended to establish Yehling’s guilt.
Yehling was again sentenced to eighteen months’ imprisonment followed by three
years of supervised release. Yehling then filed a motion to dismiss for lack of
jurisdiction, arguing the district court’s delay in ruling on his motion for a new
trial deprived the court of jurisdiction and constituted denial of a speedy trial and
due process of law. Yehling filed a notice of appeal before the district court ruled
on his motion to dismiss for lack of jurisdiction. 3
3 The ten-day time period for Yehling to file a notice of appeal began to run when the district court entered its order denying Yehling’s motion for a new trial on August 26, 2005. See Fed. R. App. P. 4(b)(3)(A)(ii). To comply with the timeliness requirements of Rule 4(b) of the Federal Rules of A ppellate Procedure (continued...)
-7- III. Discussion
A. Sufficiency of the Evidence
Yehling moved for judgment of acquittal at the close of the government’s
case-in-chief. The district court denied the motion, concluding the government
had presented sufficient evidence to submit the case to the jury. Yehling did not
introduce any evidence in his defense. Yehling argues the district court erred in
denying his motion for judgment of acquittal because the government failed to
introduce sufficient evidence to support his conviction for conspiracy to distribute
methamphetamine.
In review ing the sufficiency of the evidence to support a conviction, we
review the record de novo to determine whether, viewing the evidence in the light
most favorable to the government, any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. United States v. Zunie, 444 F.3d
1230, 1233 (10th Cir. 2006). W e consider both direct and circumstantial
evidence, together with the reasonable inferences to be drawn therefrom, but do
not weigh conflicting evidence or consider the credibility of witnesses. Id.;
United States v. Lopez, 576 F.2d 840, 843 (10th Cir. 1978).
3 (...continued) and preserve his appeal of the sufficiency of the evidence, Yehling was required to file a notice of appeal by September 6, 2005. At that time, the district court had not yet ruled on Yehling’s motion to dismiss for lack of jurisdiction.
-8- To prove conspiracy, the government must show (1) two or more persons
agreed to violate the law, (2) the defendant knew the essential objectives of the
conspiracy, (3) the defendant knowingly and voluntarily participated in the
conspiracy, and (4) the alleged coconspirators were interdependent. United States
v. Small, 423 F.3d 1164, 1182 (10th Cir. 2004). Yehling challenges only the
government’s proof with respect to the second and fourth elements.
To prove knowledge of the essential objectives of a conspiracy, the
government does not have to show the defendant knew all the details or all the
members of a conspiracy. Id. Rather, the government only needs to demonstrate
the “defendant shared a common purpose or design with his alleged
coconspirators.” United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992). The
essential objectives of the conspiracy in this case included obtaining
methamphetamine in California and Colorado and reselling the methamphetamine
for profit in Ouray County. The government presented sufficient evidence to
enable a rational juror to find Yehling had knowledge of the first essential
objective, obtaining methamphetamine in California and Colorado. FBI Special
Agent Buie testified Yehling admitted to knowing W herley had made several trips
to California with A vril and Sullings to obtain methamphetamine. Yehling also
told Buie that W herley approached him about locating a supplier in Colorado. A
rational juror thus could have found beyond a reasonable doubt that Yehling knew
the conspiracy involved obtaining methamphetamine in California and Colorado.
-9- The conspiracy also entailed the redistribution of methamphetamine
obtained in California and Colorado to residents of Ouray County. Therefore, the
government was required to demonstrate Y ehling knew W herley and Avril
intended to redistribute the methamphetamine they purchased from him, and not
to keep it for personal use. Although the government did not present any direct
evidence regarding Yehling’s knowledge of this objective, the evidence presented
was sufficient to permit a rational juror to infer Yehling knew the
methamphetamine was for distribution. Avril testified Yehling provided him with
an eight-ball of methamphetamine on a single occasion. Although this quantity is
consistent with personal use, the evidence suggests the eight-ball was merely a
sample and Yehling intended to provide larger quantities in the future. W herley
testified he originally approached Yehling in an attempt to find a source in
Colorado to provide large quantities of methamphetamine. In a telephone
conversation intercepted by the FBI shortly after Yehling provided the eight-ball
to Avril, W herley asked Yehling if he had more methamphetamine available.
Yehling indicated he could obtain more the next day, but wanted to ensure
everyone was satisfied before doing so. Yehling also told W herley he was
interested in “turn[ing] over a bunch and make[ing] some dough.” ROA, Supp.
Vol. III, Ex. 49. In a subsequent conversation, Yehling and W herley discussed
the price for an ounce of methamphetamine. W herley testified that four or five
people could use an ounce of methamphetamine in one week, and indicated he
-10- had purchased ounce quantities in California which he then cut and packaged as
gram quantities for resale. Based on this evidence and Yehling’s knowledge that
W herley had bought and sold methamphetamine in the past, a rational juror could
infer Yehling knew the ounce quantities W herley and Avril were considering
purchasing from his source were for distribution. The government, therefore,
submitted sufficient evidence to prove Yehling’s knowledge of the essential
objectives of the conspiracy.
Yehling also challenges the sufficiency of the government’s evidence with
respect to the element of interdependence. Interdependence exists when “each
alleged coconspirator . . . depend[s] on the successful operation of each ‘link’ in
the chain to achieve the common goal.” United States v. Dickey, 736 F.2d 571,
582 (10th Cir. 1984). In other words, each coconspirator’s “actions must
facilitate the endeavors of other alleged coconspirators or facilitate the venture as
a whole.” Evans, 970 F.2d at 670 (quotation and alterations omitted). Yehling
contends the eight-ball he sold to Avril is insufficient to demonstrate
interdependence when considered in the context of the large quantities of
methamphetamine W herley regularly imported from California. Yehling’s
argument, however, ignores the evidence suggesting the eight-ball was merely a
sample to be followed by larger quantities of methamphetamine in the future.
W herley testified that after several years of traveling to California to obtain
methamphetamine for resale in Colorado, he wanted to locate a supplier in
-11- Colorado. W herley approached Yehling for assistance. Yehling found a source,
introduced him to W herley, and supplied samples with the understanding that
larger quantities could be purchased in the future. Because Yehling provided a
potential local source of methamphetamine that could then be resold by W herley
and Avril to customers in Ouray County, his actions facilitated the conspiracy.
Each alleged coconspirator was dependent upon the activities of the other
coconspirators to achieve the common goal of distributing methamphetamine for
profit. W herley and Avril relied on Yehling, and others, to provide
methamphetamine for redistribution. Yehling in turn relied on W herley, Avril,
and the distributors and customers further down the chain to provide a market for
methamphetamine he provided. W ithout the assistance of W herley, Avril, and
other coconspirators, Yehling would not have had the opportunity to “turn over a
bunch and make some dough.” ROA, Supp. Vol. III, Ex. 49. Finally, the
distributors and customers in Ouray County were dependent on W herley, Avril,
and, further up the chain, Yehling, to provide methamphetamine.
In establishing interdependence, it is irrelevant that Yehling never actually
provided large quantities of methamphetamine to W herley for redistribution. The
essence of a conspiracy is an agreement to violate the law. United States v.
Johnson, 977 F.2d 1360, 1371 (10th Cir. 1992). Yehling’s failure to provide
large quantities of methamphetamine, as planned, did not negate the unlawful
agreement; it merely made the conspiracy less successful than it might otherwise
-12- have been because W herley and Avril were required to locate another local source
or distribute less methamphetamine. Based on the evidence presented by the
government, a rational juror could have found beyond a reasonable doubt that the
alleged coconspirators were interdependent. Therefore, Yehling’s conviction for
conspiracy to distribute and to possess with intent to distribute methamphetamine
is supported by sufficient evidence.
B . U nreasonable D elay Claim s
Yehling also argues the district court’s four-year delay in ruling on his
motion for a new trial deprived the district court of jurisdiction and constituted
denial of a speedy trial and due process of law . He asks this court to reverse his
conviction and vacate his sentence.
W e first address Yehling’s jurisdictional claim. 4 Jurisdictional questions
are reviewed de novo. Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir. 2006).
In support of his claim that the district court lost jurisdiction over his case
because of its delay in ruling on his motion for a new trial, Yehling cites a single
Colorado state court case. See Grundel v. People, 79 P. 1022 (Colo. 1905). The
defendant in Grundel pleaded guilty to gambling and was sentenced three years
4 The relief Yehling seeks in raising his jurisdictional claim is unclear. If, as Yehling argues, the district court lost jurisdiction because of the delay, the result would be invalidation of the district court’s actions after the delay, i.e., the denial of Y ehling’s motion for a new trial and Yehling’s resentencing. Success on his jurisdictional claim would not affect Yehling’s conviction or his original sentence because Yehling does not challenge the district court’s jurisdiction at the time judgment was entered.
-13- later. The appellate court dismissed the charges, concluding “[i]n the absence of
a permissive statute, the indefinite postponement of sentence upon one convicted
of crime deprives the court of jurisdiction to pronounce sentence at a subsequent
term.” Id. at 1023. W e express no opinion regarding the holding of Grundel
because it is inapposite here. The district court imposed Yehling’s sentence four
months after he w as found guilty. During the pendency of Y ehling’s motion for a
new trial, a valid, final sentence existed. Thus, in contrast to Grundel, Yehling’s
sentence was not indefinitely postponed. Yehling has not cited, and we cannot
find, any authority for the proposition that a district court loses jurisdiction as a
result of delay in deciding a motion for a new trial after the defendant has been
sentenced. W e therefore reject Yehling’s jurisdictional claim.
Yehling also contends the district court’s delay deprived him of a speedy
trial and due process of law . In evaluating claims of unreasonable delay in
crim inal cases, w e review questions of law de novo and questions of fact for clear
error. United States v. Davis, 1 F.3d 1014, 1017–18 (10th Cir. 1993); see also
United States v. Smith, 94 F.3d 204, 208 (6th Cir. 1996). Yehling raised his
speedy trial and due process claims for the first time in a motion to dismiss for
lack of jurisdiction after the district court denied his motion for a new trial.
Yehling then filed a notice of appeal, depriving the district court of jurisdiction
before it ruled on his motion to dismiss. W e generally do not consider issues on
appeal that were not ruled on below. R. Eric Peterson Constr. Co. v. Quintek,
-14- Inc. (In re R. Eric Peterson Constr. Co.), 951 F.2d 1175, 1182 (10th Cir. 1991).
Under the unique facts presented here, however, we need not remand the case to
the district court to address Yehling’s unreasonable delay claims in the first
instance. Even accepting Yehling’s allegations as true, he has not demonstrated a
speedy trial or due process violation.
The Sixth Amendment guarantees all criminal defendants the right to a
speedy trial; w e have applied this right from arrest through sentencing. Perez v.
Sullivan, 793 F.2d 249, 253 (10th Cir. 1986); see Pollard v. United States, 352
U.S. 354, 361 (1957). Protection against unreasonable delay in the appellate
process is similarly provided by the Fifth Amendment right to due process of law.
See Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir. 1994) (applying, through
Fourteenth Amendment, right to due process when state delayed prosecution of
habeas petitioner). Yehling’s claim, however, does not fit squarely into either of
these categories. The delay in this case occurred after Yehling’s sentence was
imposed, but before he filed a notice of appeal. Nevertheless, the interests
protected by preventing unreasonable delay from arrest through sentencing and
throughout the appellate process are also endangered by delay in deciding a
motion for a new trial based on newly discovered evidence. Faded memories or
misplaced evidence may impair a defendant’s ability to adequately defend himself
if he is granted a new trial. See Barker v. Wingo, 407 U.S. 514, 526, 532 (1972).
Delay may also produce anxiety or drain a defendant’s financial resources.
-15- M oore v. Arizona, 414 U.S. 25, 27 (1973). Because of these similarities, we see
no reason to exempt a motion for a new trial based on newly discovered evidence
from protection against unreasonable delay. W e therefore examine the delay in
this case to determine if it rises to the level of a constitutional violation.
In Barker, the Supreme Court established a balancing test to determine
whether a particular delay violates a defendant’s right to a speedy trial. 407 U.S.
at 530. The Court identified four factors that should be assessed and balanced:
(1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion
of his right; and (4) prejudice to the defendant. Id. None of the factors are
necessary or sufficient; rather, the factors are related and should be considered
together w ith other relevant circumstances. Id. at 533. Although Barker
addressed only a defendant’s right to a speedy trial, this court subsequently
adopted the Barker analysis in determining w hether a defendant’s due process
right to a timely direct criminal appeal in state court had been violated. Harris,
15 F.3d at 1559. Because the Barker test also provides an appropriate framew ork
to evaluate delay in deciding a motion for a new trial based on newly discovered
evidence, we apply it in assessing Yehling’s claim.
The first factor, length of delay, functions as a “triggering mechanism.”
Barker, 407 U.S. at 530. The remaining factors are examined only if the delay is
long enough to be presumptively prejudicial. Id. Yehling filed his motion for a
new trial on December 4, 2001. The government filed its response on December
-16- 26, 2001. The district court denied Yehling’s motion three years and eight
months later. Although there is no definitive number of months or years that will
trigger consideration of the remaining Barker factors, the delay of three years and
eight months in this case is presumptively prejudicial. See United States v. Batie,
433 F.3d 1287, 1290 (10th Cir. 2006) (observing pretrial delay approaching one
year sufficient to trigger Barker analysis for determining speedy trial violation);
Harris, 15 F.3d at 1560 (concluding two-year delay in adjudicating direct
criminal appeal gives rise to presumption of inordinate delay); Perez, 793 F.2d at
255 (stating fifteen-month delay in sentencing was sufficient to require inquiry
into remaining Barker factors). Thus, we must examine the remaining Barker
factors. M oreover, because the delay here was substantial and Yehling’s motion
for a new trial did not raise complex legal or factual issues, the length of delay
weighs in Yehling’s favor. Barker, 407 U.S. at 530–31 (observing complexity of
case may affect reasonableness of delay).
The second factor, the reason for the delay, “weighs against the government
in proportion to the degree to which the government caused the delay.” Batie,
433 F.3d at 1291. Purposeful delay weighs heavily against the government.
Barker, 407 U.S. 531. “A more neutral reason such as negligence or overcrowded
courts [is] weighted less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the government
rather than with the defendant.” Id. Yehling does not allege any attempt at
-17- intentional delay by the government; rather, he acknowledges the delay in this
case w as the result of negligence. Thus, this factor also w eighs in Y ehling’s
favor, but not heavily.
The third factor assesses w hether a defendant asserted his right to
adjudication without unreasonable delay. Id. In Barker, the Supreme Court
rejected the contention that a defendant who fails to demand a speedy trial waives
the right. Id. at 528. The Court also declined to adopt the antithetical view that a
defendant has no duty to assert the right. Id. Instead, the Court determined a
defendant’s assertion of, or failure to assert, his right to a speedy trial is merely
one factor to be considered in determining whether the right has been violated.
Id.
Yehling filed motions in M arch 2004 and 2005 seeking permission from the
district court to travel to Cozumel and Boston, respectively. Both motions
indicated Yehling had filed a motion for a new trial on December 4, 2001, and the
motion was still pending before the district court. Neither motion, however,
asserted Yehling’s right to a timely decision on his motion for a new trial or
requested that the district court rule on the motion without further delay. See
Perez, 793 F.2d at 256 (observing defendant’s failure to file a formal motion
requesting sentencing was indicative of defendant’s acquiescence in fifteen-month
delay); see also Barker, 407 U.S. at 529. In fact, Yehling did not file a motion
asserting his right to a decision without unreasonable delay until after the district
-18- court had denied his motion for a new trial. A defendant’s burden to actively
assert his right “is not satisfied merely by moving to dismiss after the delay has
already occurred.” Batie, 433 F.3d at 1291. The third factor thus weighs against
Yehling.
The final Barker factor analyzes prejudice to the defendant resulting from
the delay. Barker, 407 U.S. at 532. Prejudice is assessed in light of the interests
the speedy trial and due process rights were designed to protect: preventing
oppressive incarceration, minimizing anxiety and concern of the defendant, and
limiting the possibility that the defense will be impaired. Id. at 532. W e
observed in Perez that once a defendant has been convicted, the rights of society
increase in proportion to the rights of the defendant. 793 F.2d at 256. Post-
conviction prejudice therefore “must be substantial and demonstrable.” Id.
Yehling was free on a personal recognizance bond during the pendency of
his motion for a new trial. Nevertheless, he asserts the delay interfered with his
personal liberty because he was under the supervision of federal probation
officials and subject to drug screening. Although Yehling was subject to
supervision during the pendency of his motion, 5 he was able to maintain stable
5 Yehling’s bond conditions included the following: remain in Colorado absent prior permission from the district court, report regularly to a supervising probation officer, refrain from excessive use of alcohol and any use of a controlled substance, submit to random urine analysis, and participate in a substance abuse counseling program if deemed advisable by the supervising officer.
-19- employment, marry, and purchase a home. M oreover, on the only two occasions
Yehling sought permission from the district court to leave the state of Colorado, it
was granted. Thus, his liberty was not greatly restricted. See Barker, 407 U.S. at
532 (identifying prevention of oppressive incarceration as interest protected by
right to speedy trial).
Yehling also asserts he suffered anxiety because of the delay in resolution
of his motion for a new trial. To establish prejudice as a result of anxiety, a
defendant must make a particularized and substantial showing of anxiety
distinguishable from anxiety suffered by other similarly situated defendants.
Harris, 15 F.3d at 1565. Even assuming Yehling suffered anxiety, he has not
alleged particular or substantial anxiety that makes his situation different from
that of other defendants awaiting a decision on a motion for a new trial. The facts
of this case are similar to Barker. 407 U.S. 514. The defendant in Barker spent
ten months in jail awaiting trial before being released on bond. Id. at 534. The
defendant remained free on bond for over three years before he was finally tried
and convicted. Id. In assessing the defendant’s speedy trial claim, the C ourt
acknowledged the defendant suffered some prejudice by living “under a cloud of
suspicion and anxiety” for over four years. Id. The Court, however, concluded
the “prejudice was minimal” in light of the defendant’s failure to allege the delay
impaired his defense. Id. Because Yehling’s alleged prejudice is similarly
-20- minimal, 6 he has failed to make the required showing of substantial prejudice.
Thus, the fourth factor w eighs against Y ehling.
Although the first two Barker factors— length of delay and reason for the
delay— weigh in favor of finding a constitutional violation in this case, the last
two factors do not. Yehling did not timely assert his right to a decision without
unreasonable delay, and he failed to allege particularized and substantial
prejudice resulting from the delay. Though none of the Barker factors are
dispositive, the Supreme Court has observed a defendant’s assertion of his right
carries strong weight in determining whether the right was actually violated
because “[t]he more serious the deprivation, the more likely a defendant is to
complain.” Barker, 407 U.S. at 531. Additionally, we have indicated the
necessity of showing substantial prejudice dominates the Barker balancing test
once a defendant has been convicted. Perez, 793 F.2d at 256. Because the first
and second Barker factors do not compensate for Y ehling’s failure to timely
assert his right or allege substantial prejudice, Yehling has failed to establish the
delay deprived him of a speedy trial or due process of law.
6 Yehling does not assert the delay impaired his defense in the event of a retrial, and he does not appeal the district court’s denial of his motion for a new trial.
-21- IV. Conclusion
For the foregoing reasons, Yehling’s unreasonable delay claims are
DENIED and his conviction is AFFIRM ED.
-22-