Date: 04-01-2015

Case Style: United States of America v. Daniel E. Carpenter

Case Number: 14-1286

Judge: Kayatta

Court: United States Court of Appeal for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Christopher J. Smith, Attorney, Appellate Section,
Criminal Division, with whom Carmen M. Ortiz, United States
Attorney, District of Massachusetts, Lesley R. Caldwell, Assistant
Attorney General, Criminal Division, Kelly Begg Lawrence, Assistant
United States Attorney, District of Massachusetts, and Sung-Hee
Suh, Deputy Assistant Attorney General, Criminal Division, were on
brief, for appellee.

Defendant's Attorney: Martin Weinberg, with whom Kimberly Homan was on
brief, for appellant.

Description: We opine for the third time on the United States' prosecution of Daniel Carpenter for mail and
wire fraud in connection with his mishandling of client escrow
funds. In 2007, we affirmed a district court order setting aside
a jury verdict of guilty in favor of a new trial. United States v.
Carpenter, 494 F.3d 13 (1st Cir. 2007). In 2013, after a second
jury also found Carpenter guilty, we reversed a district court
order setting aside that verdict, and remanded for sentencing.
United States v. Carpenter, 736 F.3d 619 (1st Cir. 2013). Now,
post-sentencing, we consider Carpenter's direct appeal in which he
argues, among other things, that the lengthy duration of this
criminal proceeding violated his constitutional and statutory
speedy trial rights. For the following reasons, we affirm the
judgment of the district court on all grounds.
I. Background
Our 2013 opinion details the acts for which Carpenter
stands convicted. In a nutshell, he told clients he would hold
their money in escrow accounts for which the client would pay a
fixed fee and which would cautiously generate returns of either
three or six percent; then (unbeknownst to his clients) he invested
the money in high-risk, high-return stock options, hoping to
generate excess returns to keep for himself. His option trading
fared poorly, and he lost nine million dollars in client funds. At
trial, he argued unsuccessfully that he never promised that the
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client funds would be safe, and that he did not intend to defraud
his clients when he failed to disclose his real strategy of using
their money to make risky investments to see if he could hit a home
run for himself.
Central to this appeal are the details of how this
criminal proceeding has lasted so long.
A. The Indictment, First Trial, and Appeal (September 2004 – July
2007)
The United States indicted Carpenter in September 2004.
In July 2005, Carpenter's first trial ended with a conviction. He
moved, among other things, for a new trial. In December 2005, the
district court granted that motion for a new trial on the grounds
that the government's repeated use of gambling metaphors had
unfairly inflamed the jury's passions. United States v. Carpenter,
405 F. Supp. 2d 85, 103 (D. Mass. 2005). The government appealed,
but our court affirmed the order in July 2007, remanding for a new
trial. Carpenter, 494 F.3d at 13.1
B. The Second Trial, Appeal, and Sentencing (August 2007 - March
2014)
Following remand, Carpenter's second trial ended with
another conviction in June 2008. The district court initially
scheduled a sentencing hearing for September 23, 2008. The
1 Carpenter then petitioned for certiorari from the denial of
his cross-appeal of the district court's denial of his motion for
acquittal. The Supreme Court denied that petition in February
2008. United States v. Carpenter, 552 U.S. 1230 (2008).
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district court did not sentence Carpenter, though, until almost six
years later, in March 2014. This lengthy interval provides the
primary basis for Carpenter's Sixth Amendment argument.
1. Carpenter's Motions for Mistrial, Acquittal, and
New Trial (June – November 2008)
On June 17, 2008, just before the end of the second
trial, Carpenter moved for a mistrial and partial acquittal. On
July 3, immediately after his second conviction, Carpenter filed a
sixty-seven-page motion for acquittal or new trial.2 Using a
different legal team, he also filed two "supplemental" motions for
acquittal and new trial, raising a number of additional arguments.
During July and August 2008, the government and Carpenter filed
eleven more motions adding to the arguments for acquittal,
mistrial, and new trial, and seeking various rulings on page limits
and deadlines. By August 2008, the government complained that
Carpenter's briefing totaled over one hundred pages of opening
briefs, and nearly eighty pages of reply briefs.
In September, Carpenter filed a second motion for a new
trial based on newly discovered evidence. In November, he filed
2 The grounds in this motion were (a) that the government
presented insufficient evidence to convict under 18 U.S.C. §§ 1341
and 1343, (b) that the government had again unfairly prejudiced the
defendant, and (c) erroneous and prejudicial rulings on the
evidence. However, the district court did not actually decide
based on any of these arguments, but instead focused on various
ways that the government overstated the evidence and focused
excessively on Carpenter's greed. United States v. Carpenter, 808
F. Supp. 2d 366, 380 (D. Mass. 2011).
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yet a third motion for a new trial based on different newly
discovered evidence. (Neither motion concerns the newly discovered
evidence at issue in this appeal.)
2. The District Court Hearing on the Post-Trial
Motions (December 2008)
On December 3, 2008, the district court held a hearing
focusing on the June 17 mistrial motion, which was based on the
argument that the government had knowingly solicited false
testimony from a witness in violation of Napue v. Illinois, 360
U.S. 264 (1959). The court also entertained argument on the July
3 motions for acquittal or new trial. The court indicated that it
would decide the other pending motions based on the written
submissions.
3. Motions Related to the Merrill Lynch Civil
Litigation (March – June 2009)
Before the district court ruled on the numerous, oftenlengthy
motions before it, Carpenter began making additional
filings. Understanding these new filings requires a bit of
context.
Carpenter traded his clients' funds, in part, through an
investment account with Merrill Lynch. At Carpenter's trial, the
government solicited testimony from three Merrill Lynch employees
about the riskiness of Carpenter's trading strategy. These
employees, including one to whom we refer as "GL," denied they knew
Carpenter was trading third-party funds. However, GL's testimony
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was impeached when a lawyer for one of Carpenter's clients
testified that Carpenter had arranged a phone call between that
lawyer and GL. Phone and fax records corroborated the lawyer's
version of events.3 Even when confronted with the phone records,
however, GL continued to deny the conversation took place.
Carpenter's primary defense to the fraud charges was his
good faith: i.e., that he lacked the specific intent to defraud
because he genuinely thought he had investment discretion over the
funds his company held.4 In his view, evidence showing he was open
with Merrill Lynch about the source of the funds he was trading
supported his good-faith defense on the logic that he would not
have been open with Merrill Lynch if he knew he was doing something
wrong. The government largely demurred, calling Merrill Lynch
witnesses primarily to demonstrate the riskiness of Carpenter's
approach, and devoting little attention to whether anyone at
Merrill Lynch knew the source of the funds. As the prosecution
told the jury, its position was that whatever Merrill Lynch
3 This exchange was the basis for Carpenter's June 2008 motion
for mistrial on the grounds that the government had knowingly
offered perjured testimony in violation of Napue, 360 U.S. at 269.
The district court denied the motion and in 2013 we affirmed on the
grounds that although the employee seems to have testified falsely,
the government made all necessary disclosures and the defense was
able to vigorously cross-examine the employee. Carpenter, 736 F.3d
at 630-31.
4 After his first trial, for example, Carpenter moved for
acquittal on the grounds that the government had failed to disprove
his good faith. Carpenter, 405 F. Supp. 2d at 93-94.
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employees knew was irrelevant because what mattered were the
representations Carpenter made to his clients.
The district court, too, questioned the probative force
of Carpenter's argument that Merrill Lynch knew the source of the
funds. It rejected a motion to acquit for insufficient evidence
based on a version of this argument after both trials. Carpenter,
405 F. Supp. 2d at 93-94; United States v. Carpenter, 808 F. Supp.
2d 366, 378 (D. Mass. 2011). Nevertheless, Carpenter continued
(and continues in this appeal) to argue that any evidence showing
that Merrill Lynch was aware of the source of the funds was highly
relevant to his claims.
With this background in mind, we now return to the
procedural chronology. In early 2009, shortly after the hearing on
Carpenter's various motions for mistrial, acquittal, and new trial,
new documents began to emerge as part of a civil lawsuit against
Merrill Lynch. Those documents further tended to show that Merrill
Lynch employees were aware of the source of the funds Carpenter was
trading.
Carpenter touted this unfolding information as bearing
on his pending motions. See ECF No. 349 at 1, June 10, 2009
(noting that the new information has "a direct bearing on
Carpenter's pending post-trial motions"). On March 19, 2009,
Carpenter filed an emergency motion seeking, among other things, to
compel the government to acquire and review those new documents.
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Between March and July, Carpenter filed five reports updating the
district court on the developments in the civil lawsuit against
Merrill Lynch, responding to the government's arguments, and
reiterating his argument that the government should be ordered to
seek out and review the new documents. This included a joint
report submitted by the government and Carpenter, indicating that
the government had agreed to review the new information and report
"whether the government agrees that a new trial or dismissal of the
charges is appropriate in light of the new evidence." ECF No. 352
at 2, June 26, 2009.
4. Carpenter's Motion for Expedited Hearing (October
2009)
On October 28, 2009, Carpenter moved for expedited review
of his pending motions, albeit by filing a thirty-three-page motion
supported by over three hundred pages of exhibits. ECF No. 355,
October 28, 2009. Although the government had not yet reported
back on the new Merrill Lynch information pursuant to the June 26
agreement, Carpenter argued that there was now more than enough
information available for a ruling on his initial motions from June
and July 2008. Id. at 29. Carpenter stressed that fifteen months
had elapsed since he filed those initial post-trial motions. Id.
at 1-2, 26, 31-32.
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5. Additional Delay and Additional Motions (October
2009 – September 2011)
By June 2010, the district court had yet to rule,
notwithstanding Carpenter's renewed expression of concern about the
delay. See ECF No. 360 at 3-4, January 13, 2010. In a June 17
letter, Carpenter sent the court conflicting messages: he asked it
to decide the pending motions for acquittal, mistrial, or new
trial, but he also advised the court that such action likely would
not be necessary because Carpenter expected the government to
dismiss the indictment against him. ECF No. 370 at 1, June 17,
2010 ("[I]t is our expectation that, in light of these new
developments, the Government will move to dismiss the indictment
with prejudice . . . thereby obviating the need for the Court to
resolve the motions that have been pending for two years.").
Another half-year then passed without the government
dropping the case or the district court deciding the motions that
Carpenter had told the court it should, but might not need to,
decide. In January, February, and July 2011, Carpenter submitted
three more letters providing supplemental authority or new
information, each of which also included a request for rulings on
the motions. The third update also requested a status conference,
noting that it had now been three years since the trial, "every day
of which is alone punishment." ECF No. 375 at 8, July 14, 2011.
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C. Second Grant of New Trial and Appeal (September 1, 2011)
On September 1, 2011--more than three years after
Carpenter's initial motion for a new trial after his second
conviction in July 2008--the district court granted Carpenter's
motion for a new trial. Carpenter, 808 F. Supp. 2d at 386. The
court denied Carpenter's motion for acquittal and other related
motions. Id. The government appealed (No. 11-2131), and Carpenter
filed an appeal of his own (No. 11-2133), which he later moved to
consolidate with the first appeal.
In March 2012, while both these appeals were still
pending, Carpenter filed a motion in district court to dismiss his
indictment for violating his Sixth Amendment right to a speedy
trial. The district court denied the motion on jurisdictional
grounds, citing the pending appeals. Carpenter then moved for this
court to remand the pending appeals to allow the district court to
consider his Sixth Amendment speedy trial motion. On May 3, 2013,
this court denied the motion to remand, as well as the motion to
consolidate the appeals, and a briefing schedule was set.
On May 23, 2013, the government moved for a forty-fourday
extension to file its brief on the grounds that the assistant
United States attorney who had filed the appeal in November 2011
was no longer in charge of the case, and the attorney who had taken
over needed time to review the extensive record while also managing
other cases with May and June deadlines. This court granted the
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order that day. Also on that day, Carpenter moved in this court to
dismiss the indictment, arguing that the government had failed to
"diligently prosecute[]" the appeal, as required by 18 U.S.C.
§ 3731. The basis for this claim was that the government had not
moved to expedite its appeal during the nineteen months that
Carpenter's various motions were under advisement, and that it now
sought an extension. This court denied the motion in July. The
case proceeded through briefing and was argued on November 7, 2013.
On November 25, 2013, this court reversed the district court's
grant of a third trial and remanded for sentencing. Carpenter, 736
F.3d at 632.5
D. Sentencing (February 2014)
Prior to sentencing, Carpenter again moved to have the
district court dismiss his indictment for violating the Sixth
Amendment's speedy trial clause.6 The district court denied the
motion. United States v. Carpenter, No. 04-10029-GAO, 2014 WL
691659 (D. Mass. Feb. 21, 2014). On February 26, 2014, the
5 On September 3, 2013, Carpenter also filed a certiorari
petition seeking review of both the district court's denial of
Carpenter's motion for acquittal, and this court's decision
dismissing Carpenter's appeal for lack of jurisdiction. That
petition was denied. Carpenter v. United States, 134 S. Ct. 901
(2014).
6 In January, he also moved for dismissal for violation of the
Speedy Trial Act, renewing the same argument he made at the close
of the second trial in 2008, which the district court at that time
denied. United States v. Carpenter, 542 F. Supp. 2d 183 (D. Mass.
2008). The district court denied the motion in open court on
January 28, 2014.
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district court sentenced Carpenter to thirty-six months'
imprisonment, three years' supervised release, and penalties;
judgment was entered March 4. On May 23, the district court also
granted the government's motion to order forfeiture of over
fourteen million dollars.
E. The Current Appeal
In this appeal, Carpenter argues that the district court
erred in its February 21, 2014, order by failing to set aside his
conviction and dismiss the indictment because the duration of the
proceedings violated his Sixth Amendment right to a speedy trial.
He also challenges: the district court's April 8, 2008, order
denying relief under the Speedy Trial Act, United States v.
Carpenter, 542 F. Supp. 2d 183 (D. Mass. 2008); the district
court's September 1, 2011, order denying Carpenter's motion for
acquittal on the basis of sufficiency of the evidence, and
(implicitly) denying a new trial on the basis of newly discovered
Merrill Lynch evidence, United States v. Carpenter, 808 F. Supp. 2d
366 (D. Mass. 2011); and the district court's March 4, 2014,
sentencing order.7
7 Carpenter also initially appealed the May 23 forfeiture
order, but both parties now agree that this order will be the
subject of a separate appeal.
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II. Standard of Review
Our court has repeatedly reviewed district court rulings
on Sixth Amendment speedy trial motions for abuse of discretion.
See United States v. Salimonu, 182 F.3d 63, 69 (1st Cir. 1999);
United States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir.
1997); United States v. Colombo, 852 F.2d 19, 21 (1st Cir. 1988).
This formulation of the standard varies from that used in most
other circuits, which review such claims de novo, albeit while
applying clear error review to the district court's factual
findings. See, e.g., United States v. Lopesierra-Gutierrez, 708
F.3d 193, 202 (D.C. Cir. 2013); United States v. Velazquez, 749
F.3d 161, 174 (3d Cir. 2014); United States v. Bishop, 629 F.3d
462, 466 (5th Cir. 2010); United States v. Jackson, 473 F.3d 660,
664 (6th Cir. 2007); United States v. Hills, 618 F.3d 619, 629 (7th
Cir. 2010); United States v. Summage, 575 F.3d 864, 875 (8th Cir.
2009); United States v. Corona-Verbera, 509 F.3d 1105, 1114 (9th
Cir. 2007); United States v. Larson, 627 F.3d 1198, 1207 (10th Cir.
2010); United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir.
2010). Our formulation of the standard also seems in tension with
both our standard for reviewing motions to dismiss under the Speedy
Trial Act itself, see United States v. Valdivia, 680 F.3d 33, 38
(1st Cir. 2012) (reviewing denial of a Speedy Trial Act motion "de
novo as to legal rulings and for clear error as to factual
findings"), and more significantly, with our recent en banc ruling
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that the ultimate question of whether prison officials have
violated the Eighth Amendment is reviewed de novo. Kosilek v.
Spencer, 774 F.3d 63, 84 (1st Cir. 2014) (en banc).8 Be that as it
may, this case presents no need to resolve any fine questions
regarding the standard of review because, even under de novo
review, our conclusion would remain the same.
We review the denial of a Rule 29 motion for judgment of
acquittal de novo, examining the evidence in the light most
favorable to the verdict. United States v. Howard, 687 F.3d 13, 19
(1st Cir. 2012). We review the denial of a motion for a new trial
based on newly discovered evidence for manifest abuse of
discretion. United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.
1980). Finally, we review sentencing decisions for abuse of
discretion, examining the district court's findings of fact for
clear error and its interpretations of the sentencing guidelines de
novo. United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir.
2013).
8 Of course, any tension is mitigated in part by the fact that
even under review for abuse of discretion, an error in identifying
the correct legal standard is by its nature an abuse of discretion.
See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct.
1744, 1748 n.2 (2014) ("The abuse-of-discretion standard does not
preclude an appellate court's correction of a district court's
legal or factual error: 'A district court would necessarily abuse
its discretion if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.'")
(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990)).
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III. Analysis
A. Sixth Amendment Right to a Speedy Trial
In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme
Court adopted a balancing test for assessing claims of a violation
of the Sixth Amendment right to a speedy trial. The test weighs
four factors: the length of the delay, the reason for the delay,
the defendant's assertion of the right to a speedy trial, and
whether the defendant has been prejudiced by the delay. Id. The
Court expressly rejected a bright-line rule in favor of a
"functional analysis of the right in the particular context of the
case." Id. at 522. It did so because the remedy--dismissal of the
indictment--was "unsatisfactorily severe." Id. ("The right of a
speedy trial is necessarily relative. It is consistent with delays
and depends upon circumstances. It secures rights to a defendant.
It does not preclude the rights of public justice.") (quoting
Beavers v. Haubert, 198 U.S. 77, 87 (1905)).
We begin our analysis by determining the length of delay
at issue. In undertaking that determination, we consider and
reject the government's argument that the Sixth Amendment places no
limit on the length of post-conviction proceedings. We next
closely examine the reasons for the delay, the extent to which
Carpenter sought greater speed, and the nature of any prejudice
caused to Carpenter by the delay.
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1. Length of the Challenged Delay9
The first factor, length of delay, is both a triggering
mechanism for the rest of the analysis, and a factor in that
analysis. United States v. Souza, 749 F.3d 74, 81 (1st Cir. 2014).
While Carpenter's brief often cites the ten years that passed from
indictment to sentencing, he does not claim that the pace of the
proceedings was undue at all times. For example, he has no bone to
pick with the speed with which the case moved forward from the
indictment in September 2004 to the end of his first trial in July
2005. Nor does he suggest any delay in the district court taking
five months to hear and decide the motions Carpenter filed in the
wake of that first trial. Certainly the proceedings moved apace up
to December 2005, when the district court entered orders denying
Carpenter's motion for acquittal and granting him a new trial.
Carpenter's complaint about the pace of proceedings finds
its first toehold with the government's decision in January 2006 to
appeal the district court's granting of a new trial. That appeal
sidetracked the case for just over twenty months until the mandate
denying the appeal issued in September 2007. Second, Carpenter
complains about the pace of proceedings between the end of the
9 We use the unqualified word "delay" in this opinion to refer
to the entire period of time between two events, recognizing that
only unjustified delay that fails the Barker balancing test
violates the Sixth Amendment. See Barker, 407 U.S. at 533
(analyzing whether "the length of delay between arrest and trial"
violates the Sixth Amendment).
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second trial in June 2008 and the entry, in September 2011, of the
district court's order setting aside the second jury's verdict and
ordering a third trial. Finally, Carpenter complains about the
twenty-six months consumed by the government's successful appeal of
the order setting aside the second jury verdict.
The government concedes the foregoing calculations of
delay. It argues, however, that the latter two time periods should
play no role in our Sixth Amendment analysis because they postdated
the June 2008 guilty verdict that our court ultimately
sustained. Describing this passage of time as, at worst, a delay
in sentencing, the government urges this court to follow the Second
Circuit in United States v. Ray, 578 F.3d 184, 198-99 (2d Cir.
2009). In that case, the court opined that "the harms arising from
delayed sentencing . . . are quite different from those animating
the Speedy Trial Clause." Id. at 198. The court concluded that
the Constitution protects defendants from sentencing delay through
the Fifth Amendment, not the Sixth. Id. at 199.
We decline to adopt that conclusion. Although neither
the Supreme Court nor this circuit has held that the Sixth
Amendment applies to post-conviction delay, both have assumed so
arguendo. See Pollard v. United States, 352 U.S. 354, 361 (1957);
United States v. Nelson-Rodríguez, 319 F.3d 12, 60 (1st Cir. 2003)
(noting that most circuits that had considered the issue had either
held or assumed the same). It is no doubt true that the concerns
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arising from pre-trial delay--when a person presumed to be innocent
stands under the shadow of accusation--are not identical to those
arising from post-conviction delay. The difference, though, is not
quite as great as it may seem, given that a guilty verdict is not
yet final until appeals are exhausted. Moreover, our Sixth
Amendment analysis itself recognizes the difference in the pre- and
post-verdict time frames, in that the required balancing of
interests includes an assessment of the extent to which delay
causes prejudice. Thus, we see no reason to depart from the
majority view that assumes that the Sixth Amendment also protects
against post-trial delay.
Having thus rejected the government's attempt to excise
from our Sixth Amendment analysis the five years that passed
between the second jury verdict and the decision of this court
sustaining that verdict, we turn our attention to asking,
initially, whether any or all of the delays that Carpenter
challenges are sufficiently ordinary so as to terminate our Sixth
Amendment analysis. "Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into
the other factors . . . ." Barker, 407 U.S. at 530. In so doing,
we accept Carpenter's position that "[e]ach of these periods should
be assessed separately." At the same time, we also consider any
actual delay cumulatively.
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We need not tarry in making this initial inquiry. Delay
of around one year is considered presumptively prejudicial, and the
presumption that delay prejudices the defendant "intensifies over
time." Doggett v. United States, 505 U.S. 647, 652 and n.1
(1992). Given that the periods of time here each well exceed one
year, and cumulatively exceed six years, we think it practical to
proceed to examining the reasons for that delay.
2. Reason for Delay
The second Barker prong, the reason for delay, is "often
considered the focal inquiry." United States v. Trueber, 238 F.3d
79, 88 (1st Cir. 2001). As discussed above, Carpenter challenges
three periods of delay: (1) the twenty months occupied by the
government's failed appeal after the first grant of a new trial in
December 2005; (2) thirty-four months of the roughly three years it
took the district court to rule on Carpenter's motion for acquittal
or new trial after his second conviction in June 2008, and (3) the
twenty-six months consumed by the government's second, successful
appeal of the district court's grant of a new trial in September
2011. We now consider each in turn.
a. The Government's First Appeal
Carpenter first argues that the time consumed by the
first appeal constitutes unwarranted delay because the government's
position on appeal was weak. In general, delay caused by
interlocutory review does not cut against the government. United
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States v. Loud Hawk, 474 U.S. 302, 312-15 (1986) ("Given the
important public interests in appellate review . . . it hardly need
be said that an interlocutory appeal by the Government ordinarily
is a valid reason that justifies delay.") (internal citation
omitted). The Loud Hawk court noted, however, that a "tangential
or frivolous" appeal would weigh heavily against the government, so
courts should consider the strength of the government's position on
the appealed issue, the importance of the issue to the case, and
(in some cases) the seriousness of the crime to determine whether
an appeal should cut against the government. Id. at 315.
These factors all cut strongly against concluding that
the time consumed by the first appeal constituted unjustified
delay. The government's closing comments that led to the grant of
a new trial did not even elicit a contemporaneous objection from
defense counsel or rebuff from the court itself. While the
district court in its discretion concluded that the comments were
sufficiently prejudicial as to require a new trial, that same
court, in its February 2014 order rejecting Carpenter's speedy
trial motion, described the government's appeal of that grant of a
new trial to be "legitimate and justifiable." Carpenter, 2014 WL
691659 at *2. Most notably, the panel hearing the appeal was
split, with one judge finding persuasive the government's argument
that the district court erred in applying too strict a standard in
assessing the impact of closing comments that failed to draw a
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contemporaneous objection. United States v. Carpenter, 494 F.3d
13, 29 (1st Cir. 2007) (Campbell, J., dissenting). However one
defines the category of reasonably strong appeals, it likely
includes an appeal that garnered an actual vote by a circuit court
judge in favor of the appeal.
The appealed order had set aside a jury verdict
convicting Carpenter of very serious charges. A successful appeal
would have ended (i.e., also shortened) the case. Focusing his
argument on the fact that the government chose to appeal at all,
Carpenter otherwise raises no objection to the duration of the
appeal. We therefore reject his contention that the time consumed
by the appeal constituted unjustified delay of any type relevant to
our analysis.
b. The Government's Second Appeal
As for the government's appeal of the second grant of a
new trial in September 2011, Carpenter cannot argue that the
government's position, which actually prevailed, was weak. He
argues instead that the appeal took too long--twenty-six months in
total--because the government failed to diligently prosecute the
appeal. Nineteen months elapsed between the government's filing of
a second notice of appeal in September 2011 and when a briefing
schedule was set in May 2013. Carpenter also points to the
government's successful motion, after the briefing schedule was
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set, for a forty-four-day extension to allow new counsel to
familiarize herself with the record.
The unusual passage of nineteen months between the filing
of the appeal and the setting of a briefing schedule was not,
however, due to any fault of the government. Rather, it was
Carpenter's own cross-appeal and related motions that slowed down
the government's appeal. As discussed above, after the government
filed its notice of appeal on September 27, 2011, Carpenter on
September 29 filed his own notice of appeal, which challenged the
denial of his motions for acquittal and mistrial. On November 7,
2011, he moved to consolidate that appeal with the government's
appeal. In March 2012, he also moved in the district court to
dismiss the indictment on Sixth Amendment grounds. When the
district court in May 2012 denied that motion, citing the pending
appeals, Carpenter moved for this court to remand the case to the
district court to rule on the Sixth Amendment speedy trial motion.
We denied this motion in May 2013, and also dismissed Carpenter's
cross-appeal for lack of jurisdiction.10 At that point, with
Carpenter's own predicate motions resolved in due course, a
briefing schedule for the government's appeal was set.
10 The court determined that the orders from which Carpenter
appealed were not appealable collateral orders. As mentioned
above, Carpenter's petition for certiorari challenging this
determination was denied. Carpenter, 134 S. Ct. at 901.
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Carpenter is correct that the government's request for an
extension then slowed things down by forty-four days, but the fact
that this extension was warranted is evidenced by this court's
granting the government's motion for an extension and denying
Carpenter's motion to dismiss for lack of diligent prosecution.
With that final motion resolved, the case proceeded apace to
argument on November 7, 2013, and a decision reversing the district
court's grant of a new trial on November 25, 2013. Carpenter, 736
F.3d at 632.
Carpenter cites no authority to suggest that the
government should have sought expedited briefing, much less that it
should have done so while Carpenter's own motion to remand was
pending. Yet another motion in a motion-laden case could hardly
have helped the goal of swift resolution. We therefore agree with
the government that the district court did not abuse its discretion
in determining that the second appeal occasioned no unwarranted
delay in the conclusion of the case.
c. The Time Between the Second Verdict and the
Second New Trial Order
As the district court itself recognized, see Carpenter,
2014 WL 691659 at *2, Carpenter's argument acquires some traction
when we turn to the roughly thirty-eight months that passed between
the end of the second trial in June 2008 and the district court's
granting Carpenter's motion for a second new trial in September
-23-
2011.11 A portion of that time passed in what can fairly be
described as normal course. The parties agreed to a schedule for
post-trial briefs, a hearing was set for October and then postponed
to December 3, 2008, based on requests by both parties and without
objection. Had nothing else been at issue, nor anything else
filed, one would normally have expected a decision on the
admittedly extensive and heavily briefed motions for acquittal or
new trial by the June 2009 anniversary of the trial. Instead, no
ruling issued until September 2011.
The district court admitted that it bore at least some
responsibility for this "regrettable" delay, but also cited
Carpenter's many motions as the main culprit. Id. at *2-3. It is
well-established that it cuts heavily against a defendant's speedy
trial claims when his own motions contribute to the delay. Loud
Hawk, 474 U.S. at 316-17 ("Having sought the aid of the judicial
process and realizing the deliberateness that a court employs in
reaching a decision, the defendants are not now able to criticize
the very process which they so frequently called upon.") (internal
quotation marks omitted); United States v. Worthy, 772 F.3d 42, 49
(1st Cir. 2014); United States v. Muñoz-Franco, 487 F.3d 25, 60-61
(1st Cir. 2007); Nelson-Rodríguez, 319 F.3d at 61; United States v.
11 Carpenter made the new trial motion in July 2008, thirtyeight
months before September 2011. However, he asks the court to
focus on only the thirty-four months between the hearing on the new
trial motion on December 3, 2008, and the granting of that motion
on September 1, 2011.
-24-
Muñoz-Amado, 182 F.3d 57, 62 (1st Cir. 1999); United States v.
Gibson, 353 F.3d 21, 22-23 (D.C. Cir. 2003).
In this case, in addition to the numerous motions that
were pending at the end of the second trial, Carpenter made twenty
filings between the June 2008 jury verdict and the December 2008
hearing on his motions. As described in the facts section of this
opinion, these filings included two separate sets of motions for
acquittal or new trial filed by two separate legal teams and which
advanced numerous, distinct theories of error; two additional
motions for a new trial based on newly discovered evidence; and
lengthy responses to the government's responses. Many were very
substantial.12 Presumably he wanted the district court to review
them all, and of course the court had to review the government's
responses.
Carpenter defends his avalanche of filings as justified.
But that is beside the point. The filings cut against Carpenter in
our Sixth Amendment analysis not because they were weak or
otherwise not justified. Rather, they cut in this manner because
they support the district court's statement that the need to
consider the filings reasonably consumed time.
12 Some of the more lengthy filings include the initial sixtyseven-
page motion for acquittal or new trial; a response to the
government's opposition to that motion, totaling forty-eight pages
with exhibits; and a reply memorandum in support of his mistrial
motion totaling seventy-six pages with exhibits.
-25-
Carpenter then points out that the district court did not
rely on the post-hearing filings regarding Merrill Lynch when it
finally granted Carpenter a new trial in September 2011. That is,
if the district court granted Carpenter's 2008 motion without
regard to any of the arguments raised in subsequent motions, why
did it not do so closer to 2008?13 The problem with this argument
is that it suggests the district court would have known at the
outset the grounds on which its decision would rest. This expects
too much of the district court. Carpenter's Merrill Lynch motions
began in March 2009, three months after the motion hearing. As he
continued updating the court, he explicitly stated that this new
information had "a direct bearing" on his pending motions. ECF No.
349 at 1, June 10, 2009. His regular updates suggested a fastchanging
situation that could likely lead to more motions. At
least initially, the district court cannot be faulted for holding
off on making a ruling while the information was still evolving and
Carpenter was insisting it was relevant.
13 Carpenter also argues in his reply brief that the district
court could not have considered the new evidence in preparation for
the September 2011 order because the district court stated in the
December 2008 hearing that the government's behavior with regard to
this evidence did not violate its obligations under Brady v.
Maryland, 373 U.S. 83 (1963). However, Carpenter at no time
suggested that he was presenting the Merrill Lynch evidence solely
as a Brady claim, and in fact explicitly stated multiple times in
his 2009 submissions that this information was relevant to his
pending motions for retrial and acquittal.
-26-
This argument loses some force over time, however,
particularly after the civil trial against Merrill Lynch concluded
in July 2009. Although Carpenter continued to provide updates
based on newly decided cases and the damages phase of the civil
trial, after October 2009 they became less frequent, and Carpenter
began pressing the district court to rule on his motions. See ECF
No. 355 at 1, October 28, 2009. Granted, the unusually large
number of motions, as well as their length, makes it unsurprising
that the district court would still need an unusually long time to
give them full consideration. By the time of Carpenter's October
2009 motion, however, sixteen months had passed since the end of
trial, and Carpenter had formally moved the district court to make
a decision on the motions that had been argued in December 2008.
Once the anniversary of that hearing had passed, the reason for any
continuing delay can no longer be attributed primarily to
Carpenter.
We therefore conclude that there was an unwarranted delay
of some twenty-one months in the progress of this case, from
roughly December 2009 to September 1, 2011.14 Nevertheless, the
prosecution played no role in this unwarranted delay. Nor was the
district court using delay in any hostile manner. When delay is
the result of negligence and not bad faith, it weighs less heavily
14 Putting a finer point on this estimate would require
comparative empirical evidence not readily available and would, in
any event, be irrelevant to our conclusions.
-27-
in the balancing called for by Barker. Barker, 407 U.S. at 531 ("A
deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more
neutral reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be
considered . . . ."); see Santiago-Becerril, 130 F.3d at 22.
3. Assertion of the Right
The third prong is the assertion of the speedy trial
right, in particular the "frequency and force" with which the
defendant objected to delay. Barker, 407 U.S. at 529. Courts look
with some skepticism at assertions of speedy trial rights made by
defendants who contribute to the delay, and are particularly
skeptical of those who raise the issue for the first time in a
motion to dismiss. See, e.g., id. at 534-35 ("Barker did not want
a speedy trial. . . . While he hoped to take advantage of the delay
in which he had acquiesced, and thereby obtain a dismissal of the
charges, he definitely did not want to be tried."); Santiago-
Becerril, 130 F.3d at 22. And like the other factors, assertion of
the right is not in itself decisive. See Muñoz-Franco, 487 F.3d at
60-61 (finding no violation despite the fact that the appellants
three times raised speedy trial objections).
Carpenter's first motion to dismiss on Sixth Amendment
speedy trial grounds came in March 2012, after the government had
appealed his second grant of a new trial. However, he began
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pressing for action on his pending motions for acquittal or new
trial much earlier, when he moved for expedited hearing in October
2009, and he continued to stress the delay in subsequent filings.
Thus, in our view, the district court's conclusion that Carpenter's
assertion of the right had been "spotty at best," Carpenter, 2014
WL 691659 at *4, is not quite accurate, at least in the time period
from late 2009 to 2011, when his undecided motion was pending.
Of course, on June 17, 2010, Carpenter informed the court
that the whole case might go away, and that the court might not
need to decide the post-trial motions. It is reasonable to think
that a busy trial judge, so informed, might attend to other matters
rather than re-engaging with a voluminous set of motions.
Nevertheless, this does not significantly detract from the fact
that during the period of unwarranted delay, Carpenter otherwise
steadily pressed the district court for action.
4. Prejudice
The prejudice prong seeks to protect three interests:
avoidance of oppressive pretrial incarceration, minimizing anxiety
and concern, and limiting the possibility that the defense will be
impaired. Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at
532).
A defendant must struggle to satisfy the prejudice prong
after conviction, when two of the three factors relevant to the
prejudice analysis--excessive pre-trial incarceration and
-29-
impairment of an effective defense--are of little or no relevance.
See Pérez v. Sullivan, 793 F.2d 249, 256 (10th Cir. 1986). Thus,
Carpenter cannot argue that this delay extended any pretrial
detention because there was none: Carpenter was released on
personal recognizance on February 24, 2004, the day of his
arraignment. Carpenter likewise can offer no evidence that any
delay prejudiced his defense. Indeed, a quicker pace may have
deprived him of the basis for his forays concerning the Merrill
Lynch documents.
Carpenter's argument instead focuses on the anxiety he
suffered throughout the proceedings. His brief, supported by
record materials, describes a "living hell" of lost business
opportunities, financial stress, sleeplessness, panic attacks, and
the like. He points, however, to no opportunities that would not
have been lost as well in the wake of a speedier conviction. And
while anxiety about the outcome of post-conviction motions and
appeals is no doubt real, anxiety is a normal part of the pendency
of criminal charges. It therefore becomes a sign of prejudice only
when "undue pressures" exist. Muñoz-Franco, 487 F.3d at 61
(quoting Santiago-Becerril, 130 F.3d at 22-23).
While Carpenter argues convincingly that he has suffered
great stress throughout the proceedings, he does not demonstrate
why his anxiety was greater than that suffered by many other
defendants, other than that it continued longer. See United States
-30-
v. Colombo, 852 F.2d 19, 26 (1st Cir. 1988) (noting that "[t]he
passage of time alone . . . is not conclusive evidence of
prejudice"). While it may be possible that post-conviction delay
could result in prejudice by shifting the time period in which a
defendant serves his sentence, Carpenter makes no such argument
here. In sum, while the length of delay causes us to presume some
prejudice, we find nothing in this record to establish that
Carpenter suffered a type of prejudice that would take on added
weight in our assessment of the constitutionality of that delay.
5. Weighing the Factors
While the travel of the case as a whole was remarkable,
its length arose almost entirely because the district court
exercised (and exceeded in one instance) its discretion in granting
Carpenter relief from verdicts against him. In the end, we have an
unjustified delay of roughly twenty-one months, which occurred
after a guilty verdict was returned and without any meaningful
fault of the government. While the delay was unfortunate, it did
not impair the defense, create any undue pressure, or result in any
period of incarceration.
Carpenter points to no precedent for setting aside a
guilty verdict in such circumstances, nor are we aware of any.
Rather, precedent points otherwise. In Katz v. King, 627 F.2d 568
(1st Cir. 1980), we rejected a claim that a four-month delay
between the completion of trial and the entry of the verdict
-31-
violated the defendant's right to a speedy trial. In so doing, we
noted that other courts have "found delays in sentencing of up to
twenty-nine months not to be excessive." Id. at 576 (citing United
States v. Campisi, 583 F.2d 692, 694 n.5 (3d Cir. 1978). We also
rejected a challenge to a fourteen-month delay between conviction
and sentencing, relying "most importantly" on the diminished
possibility of prejudice in the post-conviction time frame.
Nelson-Rodríguez, 319 F.3d at 61 ("[T]he courts have great
reluctance to find a speedy trial deprivation where there is no
substantial and demonstrable prejudice."); cf. Worthy, 772 F.3d at
49-50 (affirming the district court's rejection of a Sixth
Amendment claim based on a twenty-three-month pre-trial delay in
light of the "complexity of the case, [the defendant's] own
responsibility for and acquiescence in the delay, and the absence
of any cognizable prejudice").
While each case must be evaluated in the context of its
own circumstances, see Barker, 407 U.S. at 533, the complete lack
of any precedent for throwing out a guilty verdict when the
defendant has not demonstrated prejudice (beyond the considerable
anxiety felt by many criminal defendants post-conviction) strongly
supports our own conclusion that, under Barker, Carpenter's Sixth
Amendment rights have not been violated. We do not reject the
notion that post-conviction delay might give rise to a remedy,
perhaps on mandamus review (which Carpenter never sought). Cf.
-32-
Dolan v. United States, 560 U.S. 605, 616-17 (2010) (indicating
that mandamus could be used to compel a district court to hasten a
ruling under certain rare circumstances). However, the relief
Carpenter seeks--dismissal of the indictment for which he has twice
been found guilty--is unwarranted here.
B. Speedy Trial Act
Carpenter next makes a more technical, statutory version
of a speedy trial claim. He argues that the district court erred
in its April 8, 2008, order by not dismissing the indictment for
purportedly violating the Speedy Trial Act, 18 U.S.C. §§ 3161-3174,
during the period of time between the district court's first grant
of a new trial on December 15, 2005, and setting the date for that
trial on November 26, 2007. United States v. Carpenter, 542 F.
Supp. 2d 183, 183-85 (D. Mass. 2008). This circuit reviews a
denial of a statutory speedy trial claim de novo as to legal
rulings, and for clear error as to factual findings. United States
v. Valdivia, 680 F.3d 33, 38 (1st Cir. 2012).
The Speedy Trial Act imposes a seventy-day deadline on
bringing a defendant to trial, which normally runs from the later
of the filing of the information or indictment, or the first
appearance of the defendant. See 18 U.S.C. § 3161(c)(1). However,
a specific provision covers retrials: section 3161(e) provides
that if the defendant is to be tried again "following a declaration
by the trial judge of a mistrial or following an order of such
-33-
judge for a new trial," or "following an appeal or a collateral
attack," that new trial must commence within seventy days "from the
date the action occasioning the retrial becomes final." Id.
§ 3161(e). In addition, section 3161(h) provides a list of eight
kinds of delay that "shall be excluded . . . in computing the time
within which the trial of any such offense must commence." This
list includes "delay resulting from any interlocutory appeal." Id.
§ 3161(h)(1)(C).
In Carpenter's case, the district court ordered a new
trial on December 15, 2005. The government appealed thirteen days
later on January 9, 2006. After this court affirmed the new trial
order, fifty-eight more days elapsed before the status conference
in which the district court set a new trial date and granted a socalled
"ends-of-justice" continuance until that date, as is allowed
by 18 U.S.C. § 3161(h)(7)(A). From this timeline, Carpenter makes
two arguments for why the government violated the Speedy Trial Act.
1. When the "Action Occasioning Retrial" Becomes Final
The parties' first disagreement concerns when, under
section 3161(e), the "action occasioning retrial becomes final" and
the seventy-day clock begins to run in a case where the district
court set aside a verdict and ordered a new trial, the prosecution
appealed that order, and the appellate court confirmed the order.
Carpenter argues that the clock began to run upon the district
court's new trial order; the government counts from the date on
-34-
which the court of appeals' mandate issued. Under Carpenter's
view, the thirteen pre-appeal days added to the fifty-eight postappeal
days exceed by one day the seventy-day limit.
Neither the Supreme Court nor our circuit has interpreted
the phrase "the date the action occasioning the retrial becomes
final" as applied to a district court's retrial order that is
affirmed on appeal. Here, though, we require no precedent to
answer the question posed. Rather, we look to the statutory
language, which we read as plainly providing that the seventy days
starts when the appellate mandate affirming the district court
order issues,15 thereby rendering that order final. We read the
language in this manner primarily because there is no reason to
have used the term "becomes final" if the drafters actually meant
the date the challenged order was entered.
Carpenter's argument to the contrary turns on section
3161(h)(1)(C), which provides that the time for "any" interlocutory
appeal is "excluded" from Speedy Trial Act calculations. Carpenter
argues that because this latter provision covers "any"
interlocutory appeal, Congress intended to account for an appeal
after a new trial order by "excluding" the time of the appeal from
the seventy days that began to run on the date of the district
15 An appeal ends for Speedy Trial Act purposes when the
mandate issues. United States v. Rush, 738 F.2d 497, 509 (1st Cir.
1984).
-35-
court order, and not by postponing the beginning of the seventy-day
period until the court of appeals affirms the order.
Carpenter's argument faces an uphill battle, given that
the text of section 3161(h)(1)(C) does not address the question of
when the seventy-day clock begins to run. The strongest argument
in support of Carpenter's position (albeit one that Carpenter
didn't make) is that section 3161(e) contains a provision that
"[t]he periods of delay enumerated in section 3161(h) are excluded
in computing the time limitations specified in this section." If
the seventy-day clock doesn't even start running until the
conclusion of the appeal, why incorporate the exclusion for
interlocutory appeals under section 3161(h)(1)(C)?
The answer is that our reading of section 3161(e) does
not render entirely unnecessary the need to have a tolling period
for interlocutory appeals in cases where new trial orders are
affirmed on appeal. It is entirely possible for an appeals court
to affirm a new trial order, triggering the seventy-day clock under
section 3161(e), and for a party to file a different interlocutory
appeal before the seventy days expires. In that case, the seventy
days would start when the retrial order became final--either when
it was entered for cases that are not appealed, or when the
-36-
appellate court's mandate issued for cases that are--and would be
tolled for the duration of any subsequent appeal.16
This plain reading of section 3161(e) is supported by
Congress' use of identical language in section 3161(d)(2). That
section addresses the scenario in which a district court dismisses
an indictment, but an appeals court causes it to be reinstated. In
such a case, the only possible candidate for the "action
occasioning retrial" is the action of the appeals court. Yet
section 3161(d)(2) also includes a statement that "the periods of
delay enumerated in section 3161(h) are excluded." Clearly, that
incorporation of section 3161(h) in section 3161(d)(2) cannot mean
that the seventy-day clock begins to run before the appeal is
concluded. The wholesale incorporation of section 3161(h) into
section 3161(d), then, simply covers the possibility that some
other interlocutory appeal might cause some need to toll the
16 For example, the prosecution might appeal from the granting
of a motion to exclude before the new trial commences, or a
defendant might appeal the denial of a double jeopardy motion
before the second trial, as the defendant did in United States v.
Pitner, 307 F.3d 1178, 1182-83 (9th Cir. 2002).
-37-
running of the seventy days.17 We read it to do the same in section
3161(e).
Our interpretation is also consistent with the Guidelines
to the Administration of the Speedy Trial Act, As Amended, issued
by a United States Judicial Conference committee. 106 F.R.D. 271,
282 (1984) ("[I]f an appeal or petition for certiorari is filed,
the action occasioning the retrial should not be considered final
until the appeal or petition has been disposed of.") The
government also points to legislative history tending to suggest
that the "becomes final" language was added to clarify that the
seventy days were triggered by the conclusion of any appeals. See
Anthony Partridge, Legislative History of Title I of the Speedy
Trial Act of 1974 80-82 (Fed. Judicial Center 1980).
The circuit court opinions Carpenter cites as support for
his reading are not to the contrary, despite language seeming to
suggest otherwise. See United States v. Pitner, 307 F.3d 1178,
1182-83 (9th Cir. 2002) ("interlocutory appeals interrupt the
seventy day period; they do not start it running") (internal
quotation marks omitted); United States v. Rivera, 844 F.2d 916,
17 Granted, an appeal covered by section 3161(d) is a direct
appeal, and thus section 3161(h)(1)(C) does not pose precisely the
same question of apparent redundancy as an interlocutory appeal of
a new trial order under section 3161(e). Nevertheless, it still
demonstrates how section 3161(h)(1)(C) plays an important role in
the statutory framework unrelated to the question of when the clock
begins to run, which suggests Congress did not intend it to
obliquely define the starting point of the seventy-day clock in a
retrial case under section 3161(e).
-38-
919 (2d Cir. 1988).18 ("[T]he 70-day period . . . started . . .
when the mistrial was declared, and the speedy trial clock resumed
on the date the exclusion allowed for an interlocutory appeal . . .
ended.") In both cases, the actual issue concerned an
interlocutory appeal of an order other than the mistrial orders
that made a new trial necessary. In Rivera, there was actually no
dispute--or material issue--concerning when the seventy-day clock
started to run. Rivera, 844 F.2d at 919-22. In Pitner, there was
such a dispute, but we would have reached the same result under our
reading of section 3161(e). There, the district court declared a
mistrial because the jury was deadlocked, and the prosecution did
not (and likely could not) appeal. Pitner, 307 F.3d at 1180. The
"action occasioning the retrial" was thus the mistrial order, the
finality of which was never delayed or suspended. Months later,
the defendant appealed from the denial of a motion to dismiss on
double jeopardy grounds. Just as we would, the Ninth Circuit held
that the time taken by that interlocutory appeal was simply to be
excluded in calculating the seventy days that began running when
the mistrial was declared. Id. at 1182. To the extent the court
18 Carpenter also cites to United States v. Ginyard, 572 F.
Supp. 2d 30, 36 (D. D.C. 2008), for the sentence "an interlocutory
appeal interrupts, but does not restart the running of the clock."
The issue in Ginyard--was whether an extension provision in section
3161(e) applies retroactively--is even further removed from the
question here.
-39-
explained that holding in terms that went beyond the facts
presented, we disagree for the reasons stated above.
For these reasons, we have little trouble concluding that
when a party appeals a district court order granting a new trial,
the action occasioning the retrial becomes final when the mandate
of the appellate court issues. Here, that happened when this
circuit upheld the grant of a new trial fifty-eight days before the
district court set a new trial date and granted an ends-of-justice
continuance for the time before trial.
2. The Sufficiency of the Ends-of-Justice Findings
Carpenter next argues that the district court's November
28, 2007, ends-of-justice continuance, which excluded from Speedy
Trial Act calculations all time between the status conference
setting the trial date and the commencement of trial, was invalid
because the district court did not at the time make specific
findings in the record as to why it was granting the continuance,
as required by 18 U.S.C. § 3161(h)(7)(A). This provision allows
the district court to grant a continuance on the basis of findings
that "the ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy trial."
Id. It further provides that delay resulting in the continuance is
not excludable "unless the court sets forth, in the record of the
case, either orally or in writing, its reasons for finding that the
ends of justice" are served in light of statutory factors defined
-40-
in section 3161(h)(7)(B).19 Id. § 3161(h)(7)(A). One of the
factors is whether failure to grant a continuance would
unreasonably deny the defendant the ability to obtain counsel or
continuity of counsel, or would deny counsel for either party time
to prepare. Id. § 3161(h)(7)(B)(iv).
The Supreme Court has emphasized the importance of onthe-
record findings, albeit in the context of a case where the
defendant, at the district court's urging, waived for all time his
speedy trial rights, and the government argued that the prosecution
could be salvaged by granting a retroactive ends-of-justice
continuance. United States v. Zedner, 547 U.S. 489, 507-08 (2006).
Zedner held that findings must be made "if only in the [trial]
judge's mind" by the time the continuance is granted, and must be
entered in the record by the time the district court denies the
motion to dismiss on STA grounds. Id. at 506-07. Because the
district court "entered" its reasons for granting a continuance
into the record through the order denying the motion to dismiss,
Carpenter, 542 F. Supp. 2d at 183-84, as well as in the hearing on
19 The factors are (i) whether failure to grant the continuance
would make the continuation of the proceeding impossible or result
in a miscarriage of justice, (ii) whether the case is particularly
unusual or complex, (iii) whether a grand jury proceeding is
unusual or complex, or (iv) in a case that is not particularly
unusual or complex, whether failure to grant the continuance would
unreasonably deny the ability to obtain counsel, or the continuity
or preparation of that counsel. 18 U.S.C. § 3161(h)(7)(B).
-41-
that motion, Carpenter focuses his argument on whether the district
court "made" the findings at the time it granted the motion.
This argument fails. The transcript of the January 24,
2008, hearing in which the district court granted the continuance
demonstrates the court carefully considered why and for how long
the government and Carpenter's counsel would be unavailable in
light of countervailing considerations such as the availability of
witnesses. It rejected Carpenter's request to put off scheduling
a trial until a status conference in March, and it ultimately set
a trial date earlier than the one Carpenter's counsel requested.
The record is clear that the district court balanced counsels'
schedules with the public's interest in a speedy trial, and thus
its decision represents a determination that granting a continuance
served the ends of justice.
C. Sufficiency of the Evidence and Jury Instructions
Carpenter next argues that the district court erred when
it denied Carpenter's motion for acquittal in which he argued that
the government did not prove that he had an affirmative duty to
disclose anything to the investors, which is a necessary element of
a theory of fraud by omissions. This argument fails because the
government did not prosecute a theory of fraud by omission: its
theory was that the marketing materials and agreements contained
-42-
misleading affirmative statements.20 As the district court noted,
"[a]rguing that the defendant omitted material information
necessary to make the affirmative statements not misleading did not
transform the case from one of affirmative misrepresentations to a
case of misrepresentation solely by reason of omission."
Carpenter, 2014 WL 691659 at *5. In its 2013 decision, this court
shared the district court's view of the prosecution's theory. See
Carpenter, 736 F.3d at 623-24 (noting that the government's theory
was that the marketing materials "effectively promised" the
exchangors' funds would be kept safe). Under the theory of
misleading affirmative statements, there was no need to prove the
elements of a pure failure-to-disclose case.
D. Motion for New Trial Because of Newly Discovered Evidence
Carpenter next challenges the district court's denial of
his motion for a new trial based on the Merrill Lynch documents
that appeared after his second trial. As described above, those
documents indicated that Merrill Lynch knew that Carpenter was
20 Carpenter first raised the issue of whether the government's
theory was misrepresentation or omission as one of three issues in
a July 2008 supplemental motion for acquittal. This motion was
summarily denied in the September 1, 2011, order granting Carpenter
a new trial. Carpenter, 808 F. Supp. 2d at 386. The order did not
specifically discuss whether the government had, in fact, offered
a theory of fraud by omission at trial. However, in a separate
motion for a new trial, he recast the same basic argument as a
challenge to the indictment, arguing that the government charged
him with affirmative misrepresentation, but at trial argued fraud
by omission. It is in this context that the district court
determined that the theory was one of affirmative
misrepresentation.
-43-
investing other people's money, and thus supported Carpenter's
claim that he did not hide that fact from Merrill Lynch. All of
this, he claims, would have turned the tide on his good faith
defense. In its 2011 order, the district court did not buy this
argument.21 Carpenter, 808 F. Supp. 2d at 379-86. We now review
that decision.22
21 In the September 1, 2011, order, the district court
explicitly rejected the argument that the Merrill Lynch evidence
constituted grounds for a judgment of acquittal, and also did not
list it as one of the grounds on which it granted a new trial.
Carpenter, 808 F. Supp. 2d at 378-79.
22 The district court did not expressly consider these claims
as a motion for a new trial based on newly discovered evidence, but
did state in a February 10, 2014, status conference that its
September 1, 2011, order was an implicit denial on those grounds.
The reason for this approach is as follows: Carpenter began
introducing emerging evidence from the Merrill Lynch trial in March
2009. He presented this information as relevant to his pending
motions, not as the basis for a new motion. In fact, when the
government argued that Carpenter was, in essence, making an
argument for a new trial based on newly discovered evidence,
Carpenter expressly denied that he was.
When the district court granted Carpenter's motion for a new
trial on September 1, 2011, it summarily denied all other pending
motions. Carpenter, 808 F. Supp. 2d at 386. After we reversed the
second grant of a new trial, Carpenter argued in a February 10,
2014, status conference that one of his submissions regarding
Merrill Lynch--the October 28, 2009, "Memorandum in Support" of his
pending motions (ECF No. 355)--was an undecided motion for a new
trial. The district court instead held Carpenter to his prior
position that the new information was part of his previous motions
and not a distinct motion, and treated the argument as having been
implicitly decided against Carpenter in the September 1, 2011
motion. It did so over the government's contention that Carpenter
had waived any argument for a new trial based on newly discovered
evidence.
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"Ordinarily we will affirm the trial court's denial of a
new trial" based on claims of newly discovered evidence "unless the
court has manifestly abused its discretion." United States v.
Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). This remains the case
even when the district court did not clearly articulate its reasons
for denying the motion, which, because of the complexities
introduced by the voluminous filings in this case, is the situation
presented here. Id.; United States v. Connolly, 504 F.3d 206, 212
(1st Cir. 2007). Although the standard is somewhat heightened when
the government knowingly presents false testimony, the district
court rejected the claim that the government did so in any way that
affected the integrity of the trial, and we agreed.23 See
Carpenter, 731 F.3d at 630-31. Thus, we reject Carpenter's
argument that a heightened standard is called for in this case.
A district court may grant a motion for a new trial based
on newly discovered evidence if (1) the evidence was unknown or
unavailable to the defendant at the time of trial; (2) failure to
learn of it was not because of lack of due diligence; (3) the
evidence is material, and not merely cumulative or impeaching; and
(4) it will probably result in acquittal upon retrial. Wright, 625
23 We decline Carpenter's invitation to revisit this
determination, which he argues is warranted because the new
evidence even more strongly suggests that GL's testimony was not to
be believed. The fact remains that the government presented
evidence from which a jury could conclude that the questionable
portion of his testimony was not to be believed.
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F.2d at 1019. Here, we need not discuss the first two prongs,
because Carpenter's claims founder on the latter two. See United
States v. Hernández-Rodríguez, 443 F.3d 138, 143 (1st Cir. 2006)
(noting that "we have no discretion to grant a motion for a new
trial if any one of the four factors is lacking").
In the first trial, Carpenter's attorney presented strong
impeachment evidence that GL, one of Carpenter's brokers at Merrill
Lynch, was lying when he said he had never spoken with Patterson,
the lawyer of one of the investors. Yet the jury returned a guilty
verdict. Second and more importantly, the entire "good faith"
argument was, at best, something of a bank-shot: whether or not
Carpenter told Merrill Lynch that Carpenter was managing and
investing the funds of his clients said very little about whether
Carpenter believed the representations that Carpenter made to his
clients; presumably most investment managers disclose to their
brokers that the funds they invest belong to others. That hardly
proves the good faith of statements made by the manager to the
investors (other than a statement that the broker would know that
the funds belonged to investors).
Of course, Carpenter might well have recognized that, to
the extent Merrill Lynch knew third-party investors were involved,
the likelihood of further inquiry by Merrill Lynch increased. So
in that sense we do not suggest that the evidence would have been
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irrelevant. Rather, we hold only, on abuse of discretion review,
that it was not so probative as to have mandated a new trial.
E. Carpenter's Sentence
We need not tarry long on Carpenter's argument that the
district court abused its discretion with a sentence of thirty-six
months' imprisonment, well below the recommended sentence of fiftyone
to sixty-three months. In justifying its downward departure,
the district court stated that it wanted to avoid sentencing
disparities, and presented data that First Circuit fraud sentences
tend to be in the two- to three-year range. Nevertheless,
Carpenter challenges both the procedural and substantive
reasonableness of the sentence. This court reviews sentencing
decisions for abuse of discretion, reviewing findings of fact for
clear error and its interpretations of the sentencing guidelines de
novo. United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir.
2013).
Carpenter argues that his sentence was procedurally
flawed because the district court considered two impermissible
factors: the effect of the long proceedings on the investors, and
the fact that a grand jury recently found probable cause to indict
Carpenter in Connecticut. As for the first, the district court's
only reference to the effect of the long proceedings on the
exchangors came in a single sentence explaining why the length of
the proceedings were not a factor in Carpenter's favor, not as a
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reason for imposing a sentence higher than would otherwise have
been imposed. As for the second, the district court must consider
a defendant's "history and characteristics," 18 U.S.C.
§ 3553(a)(1), and this circuit has stated that in doing so, it may
consider brushes with the law, such as arrests, that have not
resulted in convictions. See Flores-Machiote, 706 F.3d at 21.
However, Carpenter correctly notes that the government does not
cite to a case that directly considers the role of indictments on
unrelated charges in sentencing.
For the proposition that the fact of indictment should
not be considered in sentencing, Carpenter cites United States v.
Williams, 22 F.3d 580, 581-82 (5th Cir. 1994). In Williams, a
defendant pled guilty to providing about ten grams of cocaine to an
undercover agent as part of a deal that dismissed a conspiracy
charge. Id. at 581. The district court sentenced the defendant
based on the entire amount of drugs sold by the conspiracy, as
quantified in the indictment. Id. The Fifth Circuit held that the
fact of the indictment was an impermissible factor, but that this
was harmless error because other evidence supported a larger role
in the conspiracy. Id. at 582.
We need not delve into the issue of when an indictment
may be considered, however. Even if the indictment was an
impermissible factor, there is no indication that it played a
"significant" role in the sentence. See United States v. Mangual-
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Garcia, 505 F.3d 1, 16 (1st Cir. 2007) (quoting United States v.
Haack, 403 F.3d 997, 1004 (8th Cir. 2005)).
Carpenter next argues his sentence was substantively
unreasonable because the district court failed to sufficiently
consider the fact that the investors' losses were at least
partially caused by the stock market downturn in 2000. When a
defendant challenges a within-guidelines sentence, he bears the
"heavy burden" of marshaling "fairly powerful mitigating reasons
and persuad[ing] us that the district judge was unreasonable."
United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011)
(internal quotation marks omitted). Here, Carpenter challenges a
sentence that is not within the recommended guidelines, it is
actually below those guidelines, and he fails to meet this burden.
Under the United States Sentencing Guidelines, a "key
determinant" of the sentence for fraud claims is the amount of
loss, which is a proxy for the seriousness of the offense. United
States v. Rostoff, 53 F.3d 398, 405 (1st Cir. 1995); see U.S.S.G.
§ 2F1.1. Here, the sentence was calculated based on the amount the
investors actually lost, which was over nine million dollars.
Carpenter is correct that when a loss is the product of
multiple factors, district courts may depart from the guidelines.
See United States v. Gregorio, 956 F.2d 341, 345-46 (1st Cir.
1992). However, Carpenter is the reason that the investors' money
was exposed (and greatly so) to market risk in the first place.
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If he had promised to buy fire insurance for his clients but failed
to do so, he could hardly cite the fire as a cause for mitigation
when their homes burned down. The district court was not
unreasonable in failing to find that the stock market downturn did
not justify a downward departure.24
F. Forfeiture Order
Because both parties now agree that the forfeiture order
is not properly before this court, we do not reach this issue.

* * *

24 The district court was also not unreasonable for failing
to depart downward on the grounds that Carpenter has already
suffered for his crime.
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Outcome: For the foregoing reasons, we affirm the orders of the
district court on all counts.

Plaintiff's Experts:

Defendant's Experts:

Comments: