UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

YELVERTON, WILLIE L.


99-3032a

D.C. Cir. 1999


*	*	*


Rogers, Circuit Judge: Appellant Willie L. Yelverton ap- peals his
conviction by a jury of kidnaping and related  charges on four
principal grounds.1 Only two require more  than brief discussion.
Specifically, Yelverton contends that  the district court erred by (1)
enhancing his sentence under  United States Sentencing Guidelines s
2A4.1(b)(3) for "use"  of a gun where he did no more than display or
brandish the  gun during the course of the kidnaping, and (2) denying
his  motion to dismiss the indictment for violation of his Sixth 
Amendment right to speedy sentencing. We hold that  s 2A4.1(b)(3) is
properly applied where the gun is employed  in a manner designed to
coerce a third party so as to  complete the kidnaping offense, that
is, where a photograph  of a person pointing a gun at the head of a
kidnaping victim is  shown to the victim's parent in tandem with a
telephonic  threat of further injury to the victim in order to coerce
the  parent into paying a ransom. Assuming that the Sixth  Amendment
right to a speedy trial extends to sentencing, see  Pollard v. United
States, 352 U.S. 354, 361 (1957), we hold  that Yelverton fails to
meet his burden under Barker v.  Wingo, 407 U.S. 514 (1972). Although
his sentencing was  unnecessarily delayed for thirty-three months
despite his  repeated requests for prompt sentencing, he has
demonstrat- ed neither prosecutorial misconduct nor prejudice, key
factors  in the determination of whether a defendant has been de-
prived of his Sixth Amendment right. Concluding further  that
Yelverton's other challenges to his conviction are merit- less, we




__________

n 1 Yelverton was convicted of conspiracy to kidnap, in violation  of
18 U.S.C. s 371, kidnaping, 18 U.S.C. s 1201(a) and s 2, interfer-
ence with commerce by threats and violence, 18 U.S.C. s 1951 and  s 2,
and interstate transmission of extortionate threats, 18 U.S.C.  s 2.


I.


Under the United States Sentencing Guidelines ("Guide- lines" or
"U.S.S.G."), the punishment for kidnaping, abduc- tion, and unlawful
restraint is to be increased by two levels  "[i]f a dangerous weapon
was used." U.S.S.G. s 2A4.1(b)(3)  (1995). The Application Notes state
that the phrase " '[a]  dangerous weapon was used' means that a
firearm was dis- charged, or a 'firearm' or 'dangerous weapon' was
'otherwise  used.' " U.S.S.G. s 2A4.1 comment, n.2. The U.S.S.G. com-
mentary defines the term "otherwise used" to mean "that the  conduct
did not amount to the discharge of a firearm but was  more than
brandishing, displaying, or possessing a firearm or  other dangerous
weapon." U.S.S.G. s 1B1.1 comment, n.1(g).  Additionally, "brandished"
is defined to mean that the weapon  was "pointed or waved about, or
displayed in a threatening  manner." U.S.S.G. s 1B1.1 comment,


The district court enhanced Yelverton's sentence based on  evidence
that he and his co-defendants informed the kidnap- ing victim's mother
and a detective posing as his father that  their son was in custody
and would be tortured and killed  unless they paid a ransom. During a
subsequent telephone  call, the mother and the detective were directed
to a photo- graph that showed the son blindfolded and another person's
 arm holding a gun to his head.


Yelverton contends that the pointing of a gun at the son's  head in a
photograph seen by his mother, combined with  threats to the son's
safety directed at his mother in an effort  to extract ransom money
from her, cannot constitute "use" of  a firearm under the Sentencing
Guidelines. Specifically, Yel- verton contends that the case law
establishes that a firearm is  "otherwise used" only where the firearm
is pointed at a  specific victim, and is accompanied by a specific
command to  the same victim to facilitate the underlying crime.
Because  the basis for enhancement here was the use of a gun pointed 
at the son in order to coerce his mother to pay a ransom,  Yelverton
contends that the district court erred; the gun was  merely
"brandished" or "displayed." Our review of the dis- trict court's
application of a Sentencing Guideline is for clear 


error as to factual findings and with due deference to the  district
court's application of the guideline to a factual setting.  See United
States v. Becraft, 117 F.3d 1450, 1451 (D.C. Cir.  1997); United
States v. Kim, 23 F.3d 513, 516-17 (D.C. Cir.  1994).


Virtually all of the circuits to address the question have  held that
where a dangerous weapon is pointed at a person  and some further
verbal threat or order accompanies the  pointing of the weapon to
facilitate commission of the under- lying crime, an enhancement for
the use of the weapon is  justified. See, e.g., United States v.
Wooden, 169 F.3d 674,  676-77 (11th Cir. 1999); United States v.
Gilkey, 118 F.3d  702, 705 (10th Cir. 1997); United States v.
Hernandez, 106  F.3d 737, 741 (7th Cir. 1997); United States v.
Fuller, 99 F.3d  926, 927 (9th Cir. 1996); United States v. Elkins, 16
F.3d 952,  953-54 (8th Cir. 1994); United States v. Johnson, 931 F.2d 
238, 240-41 (3d Cir. 1991); United States v. De La Rosa, 911  F.2d
985, 992 (5th Cir. 1990).2 The underlying rationale of  the majority
view suggests that the key consideration is  whether a gun (or other




__________

n 2 Two decisions to the effect that a dangerous weapon is merely 
"brandished" rather than "used" when it is pointed directly at a 
person and is accompanied by an express demand or threat, are 
contrary to weight of authority and distinguishable on their facts. 
See Wooden, 163 F.3d at 677 n.5 (citing United States v. Gonzales,  40
F.3d 735, 740 (5th Cir. 1994), and United States v. Matthews, 20  F.3d
538 (2d Cir. 1994)). In Gonzales, the Fifth Circuit vacated and 
remanded for re-sentencing, holding that the district court erred in 
ruling that pointing a gun at a cashier, coupled with a demand for 
money, was "use" of a gun. Unlike the instant case, there were no 
explicit threats communicated that anyone would be tortured and 
killed absent cooperation by others in facilitating the robbery. And 
while the Second Circuit in United States v. Matthews, 20 F.3d 538, 
554 (2d Cir. 1994), vacated and remanded for re-sentencing because 
the district court erred in ruling that pointing a gun combined with 
an explicit threat constituted "use," the court noted that "[i]t could
 well be concluded that the expressed threat to shoot one person in 
order to extort action from another goes beyond what [the sentenc- ing
guidelines are] intended to encompass in 'brandish[ing].' " Id.  The


person in an effort to create fear so as to facilitate compliance  with
a demand, and ultimately to facilitate the commission of  the crime.
See, e.g., Hernandez, 106 F.3d at 741; Fuller, 99  F.3d at 927;
Gordon, 19 F.3d at 1388. This is distinct from a  rationale based on
the fact that the gun was pointed at the  same person in whom fear was
sought to be instilled, or even  that the person sought to be coerced
was the victim of the  crime, as opposed to a third party whose
complicity the  perpetrator sought to ensure. With regard to the
latter, for  example, courts have found "use" of a weapon where a
knife  was held to the throat of a third party (a bank patron) to 
facilitate commission of a bank robbery, see Elkins, 16 F.3d  at
953-54, and where a gun was waved by a kidnaper during  an argument
with her accomplices, and she "warned that  anyone going to the police
would have to deal with her." De  La Rosa, 911 F.2d at 993.


What distinguishes Yelverton's case from the other cases is  the fact
that the gun and the threats were directed at two  different people in
two different locations at two different  times. While Yelverton
conceded at oral argument that  s 2A4.1(b)(3) would apply where the
gun holder did some- thing that increased the inherent threat to those
in his  presence, he asserts that extension of the enhancement to a 
person who is not at the same location as the weapon carries  the
enhancement farther than was intended. We find nothing  to suggest
that the temporal and spatial elements he identi- fies are necessary,
in contrast to sufficient, in order for  s 2A4.1(b)(3) to apply. While
we have found no case directly  on point, inasmuch as most of the
cases involve the time and  space elements that Yelverton posits,
nothing in the language  of the Guidelines or the case law suggests
that a weapon can  only be "otherwise used" in those circumstances.
Instead,  the rationale of the weight of authority focuses on the use
of  the gun or other dangerous weapon to instill fear to promote 
commission of the underlying crime. See, e.g., Hernandez,  106 F.3d at
741; Fuller, 99 F.3d at 927; Gordon, 19 F.3d at  1388. Splitting the
"use" of the gun between two persons at  different locations, so long
as the pointing of the gun at one  person is used to instill fear in


coerce compliance, and hence facilitate commission of the  underlying
crime, does not diminish the culpable "use" at  issue in the
Guidelines.


Yelverton and his accomplices sought to coerce the moth- er's payment
of a ransom by putting her in fear for her  kidnaped son's life. That
the mother learned of the gun at a  different time and in a different
place than when and where  the gun actually was held to her son's head
is irrelevant; the  photograph to which the mother was directed,
combined with  explicit threats to her son's life and safety, and the
fact that  the son remained in custody at the time his mother's atten-
tion was directed to the photograph, make clear that the gun  was used
to suggest it would be used against her son if she  did not pay the
ransom. Given the approach of the Guide- lines toward the use of
dangerous weapons as increasing the  coerciveness or dangerousness of
criminal activity, cf., e.g.,  Hernandez, 106 F.3d at 741, it is
entirely fitting that "use" of  a dangerous weapon include situations
where a gun is pointed  at a victim in involuntary custody in an
effort to frighten a  family member to pay a ransom, thereby
completing the  kidnaping scheme by seeking "ransom or reward." 18
U.S.C.  s 1201(a). This is particularly so where the threat of poten-
tial torture or murder of the kidnaping victim should ransom  not be
paid is made explicit to the family member, as here by  a telephone
call to the mother that enhanced the significance  of the dangerous
situation portrayed in the photograph.  Where, then, the deployment of
the gun is accompanied by  direct and explicit threats to a mother
about her son's well- being in order to coerce her into paying a
ransom, holding  s 2A4.1(b)(3) inapplicable would serve no purpose
other than  to undercut the purpose of the enhancement provision. 
Therefore, we hold that the district court did not err in  enhancing




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n 3 Yelverton's contention that enhancement for "use" of a fire- arm is
inappropriate because he was acquitted of firearms charges  under 18
U.S.C. s 924(c), is meritless. A sentencing court may  consider
conduct for which a defendant was acquitted, "so long as  that conduct
has been proved by a preponderance of the evidence." 


II.


Yelverton contends that the thirty-three month delay be- tween the
return of the jury's verdict and the imposition of  his sentence
violated his Sixth Amendment right to speedy  sentencing. The Sixth
Amendment to the United States  Constitution provides:


In all criminal prosecutions, the accused shall enjoy  the right to a
speedy and public trial, by an impartial  jury of the State and
district wherein the crime shall  have been committed, which district
shall have been  previously ascertained by law, and to be informed of
the  nature and cause of the accusation; to be confronted with  the
witnesses against him; to have compulsory process  for obtaining
witnesses in his favor, and to have the  Assistance of Counsel for his


U.S. Const. amend. VI. Neither the Supreme Court nor this  court has
held that the Sixth Amendment right to a speedy  trial reaches
sentencing, but in Pollard v. United States, 352  U.S. 354, 361
(1957), the Supreme Court assumed that it did.  In Pollard, the Court
explained that "the delay must not be  purposeful or oppressive,"
observing that "[t]he time for  sentence is of course not at the will
of the judge [because]  Rule 32(a) of the Federal Rules of Criminal
Procedure re- quires the imposition of a sentence 'without
unreasonable  delay.' "4 Id. Subsequently, in establishing the test
for  determining whether a defendant has been deprived of his  Sixth
Amendment rights due to unreasonable pre-trial delay,  the Court cited
Pollard, as well as cases involving pre-trial  delay. Barker v. Wingo,
407 U.S. 514, 531 n.32 (1972). That 




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n United States v. Thomas, 114 F.3d 228, 261 (D.C. Cir. 1997); see 
also United States v. Dozier, 162 F.3d 120, 125 (D.C. Cir. 1998).


4 Rule 32(a) was amended in 1994 to read:


In General; Time for Sentencing. When a presentence  investigation and
report are made under subdivision (b)(1),  sentence should be imposed
without unnecessary delay follow- ing completion of the process
prescribed by subdivision (b)(6).  The time limits prescribed in
subdivision (b)(6) may be either  shortened or lengthened for good


test involved the balancing of four factors: the "[l]ength of  delay,
the reason for delay, the defendant's assertion of his  right, and
prejudice to the defendant." Id. Yelverton main- tains that the
district court abused its discretion by failing to  apply this
four-factor balancing test and thus erred in deny- ing his motion to
dismiss the indictment.5


The record shows that Yelverton's sentencing hearing orig- inally was
to be held on August 19, 1996. The district court  held a pre-sentence
hearing on August 14, 1996, which result- ed in a continuance until
September 5, 1996, to allow Yelver- ton time to respond to the
government's motion for an  upward departure under U.S.S.C. s 4A1.3,
which he did on  August 20, 1996. At the September 5th hearing, the
district  court rejected the government's attempt to rely on an armed 
robbery conviction that was more than twenty-five years old  to
justify an upward departure, but stated that it wished to  examine the
record of the 1987 drug conspiracy conviction  reversed on appeal to
obtain information about Yelverton's  underlying conduct; accordingly
sentencing was continued  until September 16, 1996, to permit review
of the 1987  records. By that date, the 1987 records had not been
located,  and the district court again continued Yelverton's
sentencing  hearing while imposing sentences on co-defendants Seals


On September 25, 1996, Yelverton filed a motion for imme- diate
sentencing within the guideline range, which was 135 to  168 months
imprisonment. No action appears to have been  taken on this motion. On
January 16, 1997, the government 




__________

n 5 Those Circuit Courts of Appeals that have considered the  question
apply a Barker v. Wingo analysis in evaluating speedy  sentencing
claims. See, e.g., United States v. Thomas, 167 F.3d  299, 303 (6th
Cir. 1999); United States v. Abou-Kassem, 78 F.3d  161, 167 (5th Cir.
1996); United States v. Rothrock, 20 F.3d 709,  711-12 (7th Cir.
1994); United States v. Martinez, 837 F.2d 861,  866-67 (9th Cir.
1988); Perez v. Sullivan, 793 F.2d 249, 252-54  (10th Cir. 1986);
United States v. Campisi, 583 F.2d 692, 694 (3d  Cir. 1978).


6 Both co-defendants were sentenced to life imprisonment.


filed a supplemental memorandum citing United States v.  Watts, 519
U.S. 148 (1997), for the proposition that acquitted  conduct may be
considered in sentencing, and pointed to the  statement of facts in
its 1987 appellate brief; no transcripts  relating to the 1987
conviction were produced. The govern- ment requested that the district
court set a sentencing date  and rule on the motion for an upward
departure. Yelverton  filed a response on February 10, 1997,
purportedly arguing  that the government's materials did not shed
light on the  evidence in the 1987 case and that the government thus
failed  to meet its burden of demonstrating that he had engaged in 
conduct that supported an upward departure; he requested  again that
he be sentenced within the Guideline range.


By letter of June 25, 1997, Yelverton's counsel alerted the  district
court that Yelverton still had not been sentenced and  that no
sentencing date had been set. On March 25, 1998,  Yelverton filed a
motion requesting that a sentencing date be  set, purportedly noting
that almost two years had elapsed  since the date of his conviction,
and repeating that the  government had found no information about his
prior criminal  conduct that would support an upward departure and had
 apparently abandoned its effort. The government did not  respond.


Finally, sentencing was set for February 19, 1999. Yelver- ton filed a
motion to dismiss the indictment on the grounds  that the district
court had failed to impose sentence in a  timely manner. At the
hearing, the district court ruled that  it lacked sufficient evidence
to support an upward departure  based on Yelverton's conduct
underlying the 1987 conviction,  denied Yelverton's motion to dismiss
the indictment in the  absence of evidence of prejudice from the delay
of sentencing,  and sentenced him to 150 months' imprisonment, in the 
middle of the Guideline range, in consideration of the delay.7




__________

n 7 In declining to impose an upward departure based on Yelver- ton's
conduct underlying a 1987 narcotics conspiracy conviction that  had
been overturned on appeal, the district court determined that it 
"could not be satisfied that [it] had reviewed sufficient evidence to 
find as a factual matter ... that the defendant committed the 


From this record, Yelverton draws the conclusion that the  first three
factors of the Barker v. Wingo test weigh heavily  in favor of
dismissal of the indictment and that he also  presented evidence of
the requisite prejudice. He notes,  first, that the length of the
delay--thirty-three months--was  exceptional.8 He maintains, second,
that the reason for the  delay demonstrates its unreasonableness: his
sentencing was  substantially delayed as a result of the government's
efforts  to obtain information to support an upward departure under 
U.S.S.G. s 4A1.3, although it was clear by at least February  1997
that the government had come up empty-handed be- cause its extended
searches had produced only its own brief.  To the extent that the
government sought to supplement its  motion for enhancement of
Yelverton's sentence with any  information that the district court's
own efforts might uncov- er, Yelverton's counsel had inspected that
information and  advised the district court by memorandum filed
February 10,  1997, that the records did not support the government's 
position. Still sentencing did not occur for two more years.  As to
the third Barker v. Wingo factor, Yelverton notes his  repeated
requests for sentencing. Finally, he maintains, he  was prejudiced by
the delay in exercising his right of appeal;  by a lengthy and
unnecessary period in the District of  Columbia Jail, "a facility with
well publicized shortcomings";  and by almost three years' anxiety as
a result of the govern- ment's prolonged efforts to obtain a life


We agree that Yelverton's sentencing was unnecessarily  delayed.
Assuredly, both the prosecutor and the district  court bear
responsibility for ensuring that sentencing occurs  within a
reasonable time after conviction. See Pollard, 352 




__________

n offense [of murder, on which the jury apparently hung]," having 
access only to briefs and other materials but not a transcript of the 
trial proceedings or other evidence.


8 The court has noted in the context of pre-trial delay that "any 
delay of a year or more triggers our scrutiny." United States v. 
Lindsey, 47 F.3d 440, 443 (D.C. Cir. 1995), vacated on other  grounds,
Robinson v. United States, 516 U.S. 1023 (1995); see also  Thomas, 167
F.3d at 304.


U.S. at 486 (citing Fed. R. Crim. P. 32(a)). Yelverton points  to the
government's neglect in failing to respond to his motion  to dismiss
the indictment, and he faults the district court for  failing to
consider the Barker factors other than prejudice at  the time of
sentencing, much less for failing to respond to his  requests for
prompt sentencing. Once the government ad- vised the district court
that its repeated searches of the 1987  records were unproductive, the
need for further delay ap- pears to have evaporated and Yelverton
should have been  promptly sentenced. While it was in his interest to
be  sentenced without waiting for the government to uncover  material
to support an upward departure, his requests to be  sentenced took on
added significance as the delay in sentenc- ing increased. According
leeway to the district court in light  of demands on its schedule,
thirty-three months is too long.  The district court was apparently of
the same view, sentenc- ing Yelverton in the middle rather than at the
high end of the  Guideline sentencing range in view of the delay.


On the other hand, despite the excessive delay and re- peated requests
for sentencing, Yelverton fails to show any  misconduct by the
government; rather the record shows that  the delay was inadvertent or
accidental, not purposeful or due  to malevolent conduct by the
government. See Pollard, 352  U.S. at 361-62. Initially, the
government could not locate the  1987 records; when it did, it
proceeded to search for relevant  material. Yelverton properly
concedes that some delay to  allow the government to search for
information to support an  upward departure is appropriate. His
complaint arises once  the government reported the futility of its
efforts. That he  did not seek mandamus from this court to compel the
district  court to impose sentence, suggests, perhaps, that he saw no 


Consequently, as the district court recognized, the key  factor in
evaluating his Sixth Amendment claim is prejudice,  and here the delay
of Yelverton's right of appeal is the most  problematic.9 The
government ignores this claim of prejudice 




__________

n 9 Yelverton's other evidence of prejudice is unavailing. First,  mere
generalized anxiety is insufficient to establish prejudice, even 


in its brief on appeal. Obviously, where a defendant proves  to have a
meritorious claim on appeal, the prejudice from a  delayed appeal is
clear. But a showing of prejudice cannot be  entirely contingent upon
success on appeal, for that would  seriously undermine the right to a
speedy sentencing, if such  a right exists. Consequently, it is
precisely because it will be  difficult to determine at the time of
sentencing whether an  appeal will result in a reversal of the
conviction or other relief  for a defendant that the requirement of
Rule 32(a) that  sentence be imposed "without unnecessary delay"
assumes  added significance. Put otherwise, prejudice caused by a 
delayed "right of appeal" does not fit easily within the pre- trial
jurisprudence on the prejudice factor of the Barker v.  Wingo test.
Protection of the right of appeal, insofar as it is  implicated by the
right to speedy sentencing, rests heavily on  the government and the
district court. This we view to be  implicit in the mandate of the




__________

n when such anxiety is due to a pre-trial delay in excess of four
years.  Barker, 407 U.S. at 534. As this court has noted, such
generalized  anxiety in itself "is neither 'necessary [n]or sufficient
... to the  finding of a deprivation of the right of speedy trial.' "
Lindsey, 47  F.3d at 443 (quoting Baker, 407 U.S. at 533). Cf. Perez,
793 F.2d at  257. Of course, a life sentence, which Yelverton knew the
govern- ment sought, is significantly different from fourteen-years
imprison- ment under the Guidelines, and some generalized anxiety on
his  part as he awaited sentencing was understandable. However, 
absent evidence of severe anxiety, as, perhaps, documented by 
psychiatric records or expert testimony, we are left with what 
amounts to rank speculation about Yelverton's general state of  mind,
and this is insufficient to establish a Sixth Amendment  violation.
See id.; see also Thomas, 167 F.3d at 305; Rothrock, 20  F.3d at 712;


Likewise, little weight need be given to Yelverton's complaint  about
his extended stay at the D.C. Jail while he awaited sentencing  in the
absence of any evidence that he was a victim of untoward or  unusual
suffering as a result. To the contrary, it is well established  that a
prisoner does not have a right to be housed in a particular 
institution. See, e.g., Sandin v. Conner, 515 U.S. 472, 478-79 
(1995); Meachum v. Fano, 427 U.S. 215, 224 (1976); Thomas, 167  F.3d
at 305; Perez, 793 F.2d at 257.


protections fail, the question of appropriate remedy, if any, 
remains.


Yelverton's complaint that a judicial apology for the delay  and
several months' reduction in sentence as a result of the  delay is an
inadequate remedy overlooks the jurisprudence  under Barker v. Wingo,
which takes into account the severity  of the prejudice in evaluating
a Sixth Amendment claim. See,  e.g., Lindsey, 47 F.3d at 443. The fact
that Yelverton's  challenges to the legitimacy of his conviction
clearly lack  merit, see infra n.11, combined with the fact that
Yelverton  was facing a minimum sentence--even if his sentencing en-
hancement argument under U.S.S.G. s 2A4.1(b)(3) had pre- vailed--far
in excess of his delay in sentencing, suggest that  any prejudice
suffered by Yelverton with respect to the delay  of his right to
appeal did not merit a remedy greater than  that provided by the
district court. Cf. Pollard, 352 U.S. at  362. He makes no claim that
the delay affected his ability to  present his position on his
sentence or adversely affected the  sentence he received. There also
is nothing in the record to  suggest that he suffered the type of
"purposeful or oppres- sive" delay that was of concern to the Supreme
Court in  Pollard. Id. at 361. Absent some indication that Yelverton's
 sentence would have been shorter or substantively different  without
the delay, his status as a convicted defendant weighs  more heavily in
evaluating the appropriate remedy. See, e.g.,  Thomas, 167 F.3d at
305; Rothrock, 20 F.3d at 712; Mar- tinez, 837 F.2d at 867; Perez, 793
F.2d at 257. Of course,  "inadvertent delay" or "accidental delay" of
this magnitude,  particularly in view of defense and government
requests that  sentencing proceed, might, notwithstanding the change
in the  defendant's status after conviction, take on added weight 
were there evidence of meaningful prejudice, as discussed in  Barker,


Accordingly, in view of the inadvertence of the delay after  January
1997 and the absence of any evidence of prosecutori- al misconduct or
of serious prejudice, Yelverton's Sixth  Amendment claim fails under
the Barker v. Wingo test,10 and 




__________

n 10 Because of the clarity of the record on which Yelverton  relies, a
remand, which Yelverton suggests as alternative relief to 


because his other challenges to his conviction are meritless,11  we
affirm.




__________

n dismissal of the indictment, to allow the district judge to place on 
the record its findings about the Barker factors in addition to 
prejudice, see United States v. Mills, 925 F.2d 455, 464 (D.C. Cir. 
1991), would be meaningless. See United States v. Davis, 181 F.3d 
147, 150 (D.C. Cir. 1999).


11 Yelverton's contention that the district court erred in deny- ing
his motion to dismiss the indictment for violation of the Speedy 
Trial Act, 18 U.S.C. s 3161 et seq., where the government proceed- ed
in the Superior Court of the District of Columbia until a federal 
indictment was brought more than thirty days later, is controlled by 
United States v. Seals, 130 F.3d 451, 454-55 (D.C. Cir. 1997), cert. 
denied, 118 S.Ct. 2323 (1998), and 119 S.Ct. 111 (1998), where the 
court rejected a similar claim by one of his co-defendants.


Nor do we find an abuse of discretion by the district court in  denying
Yelverton's motion for severance under Fed. R. Crim. P.  14, because
his defense was not fundamentally inconsistent with  that of his
co-defendants and there was no risk that the jury would  infer his
guilt from a conflict. See United States v. Tarantino, 846  F.2d 1384,
1399 (D.C. Cir. 1988); see also United States v. Halde- man, 559 F.2d
31, 71 (D.C. Cir. 1976). Credibility problems arising  from his
co-defendants' evidence attempting to exculpate him is not  the kind
of conflict that a severance is designed to cure, see id.,  especially
where Yelverton did not present a defense, much less  testify himself.
Yelverton presents no authority to the contrary. Cf.  Zafiro v. United
States, 506 U.S. 534, 540 (1993).