UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BAKHTIYOR JUMAEV, Defendant - Appellant. No. 18-1296 (D.C. No. 1:12-CR -00033-JLK-2) (D. Colo.)

________________ _________________ ORDER

________________ _________________ Before MATHESON , LUCERO , and EID , Circuit Judges.

________________ _________________ This matter is before the court on motion by Appellant’s counsel, Caleb Kruckenberg, to correct a clerical error inthe opinion issued December 8, 2021. The opinion incorrectly identified Appellant’s counsel. Upon consideration, the motion is grante d. A correction vers ion of the opinion issued on December 8, 2 021, is attached and shall be issuednunc pro tunc to the original filing date.

Entered for the Court CHRISTOPHER M. WOLPERT, Clerk

by: Jane K. Castro Chief Deputy Clerk FILED United States Court of Appeals Tenth Circuit 

### December 10, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BAKHTIYOR JUMAEV, Defendant - Appellant. No. 18-1296

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:12-CR-00033-JLK-2)

________________ _________________ Caleb Kruckenberg, Washington, D.C., for Defendant-Appellant. James C. Murphy, Assistant United States A ttorney, Denver, Colora do (John C. Demers, Assistant Attorney General, National Security Division, U. S. Department of Justice, Washington, D.C.; Joseph Palmer and StevenL. Lane, Attorneys, National Security Division, U.S. Department of Justice, Wash ington, D.C.; Jason R. Dunn, United States Attorney, Denver, Colorado , with him on the briefs), for Plaintiff-Appellee.

________________ _________________ Before MATHESON , Circuit Judge, LUCERO , Senior Circuit Judge, and EID , Circuit Judge.

________________ _________________ EID , Circuit Judge.

________________ _________________ Defendant-appellant Bakhtiyor Jumaev and his co-defendant Jamshid Muhtorov were convicted, after separate tr ials, of conspiring to provide material FILED United States Court of Appeals Tenth Circuit 

### December 8, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 22 support or resources to a designated foreign terrorist organization, and knowingly providing or attempting to provide material support or resources to a designated foreign terrorist organi zation, in violation of 18 U.S.C. § 2339B. 1 Both appealed, and, with the parties’ consen t, we procedurally consolidat ed the cases. In an opinion issued concurrently with th is one, we reject Muhtorov ’s claims, including his Sixth Amendment speedy trial claim, and affirm his convictions. Muhtorov , slip op. at 1, 106–63. In this decision, we address Jum aev’s claims, of whic h there are three. First, like Muhtorov, Jumaev asserts that his Sixth Ame ndment speedy trial right was violated. Second, Jumaev ma intains that the district c ourt abused its discretion by declining to severely sanction the governme nt for its discovery conduct. Third, Jumaev contends that the ex traterritorial search warran ts for his home, phone, and computer were issued in violation of Ru le 41 of the Federal Rules of Criminal Procedure. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that each of Jumaev’s claims fails, and we affirm.
I
A Jumaev is a refugee from Uzbekistan. In 2009, he met Muhtorov, a fellow Uzbekistan refugee. The tw o lived far apart—Jumaev, in Philadelphia, Pennsylvania, and Muhtorov in Denver, Colorado. But Ph iladelphia, it turned out, was one of the

1 Muhtorov was also convicted on a th ird count not brought against Jumaev. See United States v. Muhtorov , No. 18-1366, slip op. at 1, 3, 115 (10th Cir. Dec. 8, 2021). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 33 few cities in the United Stat es where a trucking class wa s offered in Russian, and Muhtorov, who struggled with English but spoke Russian, wished to obtain a commercial trucker’s license. Muhtorov deci ded to take the class in Philadelphia, and a mutual friend arranged for Muhtorov to stay with Jumaev while Muhtorov was there. Jumaev and Muhtorov became friendly during Muhtorov’s visi t. The two had similar backgrounds. Both had left Uzbe kistan due to government brutality, and both were Muslim. They also shar ed a mutual interest in the Islamic Jihad Union (“IJU”), a State Department–designated foreign terrorist organizati on with ties to al-Qaeda. After Muhtorov returned to Colorado, the two men stayed in contact. Unbeknownst to Jumaev and Muhtorov , the government was intercepting their communications. Through wa rrantless surveillance of a non–United States person living abroad conducted pursuant to s ection 702 of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (“Section 702”), Pub. L. No. 110- 261, 122 Stat. 2436 (codified at 50 U.S.C. § 1881a), the government had become aware that Muhtorov was connected to the IJU. Once Muhtorov was on the government’s radar, the gove rnment used communications intercepted via Section 702 to support applications to surve il Muhtorov under the Foreign Intelligence Surveillance Act of 1978 (“FISA” or “tra ditional FISA”), Pub. L. No. 95-511, 92 Stat. 1783. The government also obtai ned information via traditional FISA surveillance that wa s eventually used against Jumaev. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 44 In the course of surveilling Jumaev and Muhtorov, the government discovered that the men wished to provide money to th e IJU for the “wedding,” a code word that referred to the Jihadist cause . Specifically, they contem plated that Jumaev would send $300 to Muhtorov as a “w edding gift,” and that M uhtorov would then give the money to the IJU. Bank records show that a $300 check da ted on or about March 10, 2011 was made out to Muhtorov by a known associ ate of Jumaev, Ilkhom Sobirov. On January 21, 2012, Muhtorov was arrested at Chicago O’Hare Intern ational Airport. He had on him a one-way ticket to Turkey, nearly $3,000 in cash, two new iPhones, and a new iPad.
B On March 14, 2012, Jumaev was charged, via a criminal complaint filed in the District of Colorado, with conspiring to provide material support or resources to a designated foreign terrorist or ganization. That same day, a magistrate judge in the District of Colorado issued an arrest warrant fo r Jumaev and extrat erritorial searchand-seizure warrants for Ju maev’s home, cellular phone, and laptop computer in Philadelphia. Incriminating material wa s found on Jumaev’s devices, and Jumaev was promptly arrested and detained pending trial. On March 20, 2012, a superseding indictment, charging both Juma ev and Muhtorov, added a second count as to Jumaev alleging that he knowingly provided or a ttempted to provide material support or resources to a designated foreign terroris t organization. On March 22, 2012, a second superseding indictment was re turned, which deleted Jumaev’s and Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 55 Muhtorov’s aliases from the indictment ca ption but was otherwise identical to the first superseding indictment. From the fi ling of the first supe rseding indictment onward, Jumaev’s and Muhtorov’s cases pr oceeded largely in tandem, with the two filing numerous joint motions and objectio ns addressing discove ry, scheduling, and other matters. The pretrial proceedings over the ne xt six years were complicated and protracted. Discovery, in particular, proved to be a bottleneck. Jumaev and Muhtorov together broadly requ ested (1) all statements they had made that were in the government’s possession, by which they m eant “not just the statements made or given to government investigators or agents , but also all record ed conversations or communications including e mails and other written communications that they [were] alleged to have authored, as well as any statements made to third parties in whatever form,” App’x Vol. I at 463; (2) “any tran scriptions or summaries of any such statements and translations into English thereof,” id. ; (3) grand jury materials; and (4) exculpatory evidence under Brady v. Maryland , 373 U.S. 83 (1963), and Giglio v. United States , 405 U.S. 150 (1972). The resulting discovery was voluminous, and, because many of the materials were clas sified, the government had to initiate

numerous ex parte , in camera hearings pursuant to the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3, to determine whether otherwise discoverable classified materi al could be withheld from the defense. Additionally, the government had acquired a large number of recordings of Jumaev and Muhtorov Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 66 speaking in Uzbek, Tajik, and Russian, and translating those mate rials was difficult because Uzbek and Tajik translators with security clearances were scarce. On October 25, 2013, the government provided Muhtorov, but not Jumaev, notice that it would offer ev idence at Muhtorov’s trial th at was obtained or derived from surveillance conducted pursuant to Section 702. On January 29, 2014, Muhtorov moved to suppress th e evidence that was obtaine d or derived from Section 702 surveillance. Before Muhtorov file d his motion, the government informed Jumaev that he was not an “aggrieved pers on” as to the Secti on 702 acquisitions at issue—which was critical information, b ecause by statute only an “aggrieved person” is permitted to “move to suppress . . . evidence obtained or derived from . . . electronic surveillance” conducted pursuant to FISA, including Section 702. 50 U.S.C. § 1806(e); see id. § 1881e(a)(1) (deeming Secti on 702 surveillance to be “electronic surveillance” that falls within the scope of 50 U.S.C. § 1806(e)). Notwithstanding the f act that the government told hi m he had not been “aggrieved,” Jumaev joined Muhtorov’s motion. The district court denied the joint mo tion on November 19, 2015, nearly two years after it was filed. W ith respect to Muhtorov, the district court resolved the motion on the merits in the government’s favor. But with resp ect to Jumaev, the district court concluded, c onsistent with the representa tion the government had made to Jumaev before he joined Muhtorov’s mo tion, that Jumaev was not an “aggrieved Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 77 person” under 50 U.S.C. § 1806( e) and thus he could not seek suppression of Section 702 evidence nor bring an as-applied challe nge to the constitutionality of the statute. 2 On May 18, 2016, the government filed a third superseding indictment. The third superseding indictme nt added two new charge s—counts 5 and 6—against Jumaev and Muhtorov for conspiring to pr ovide personnel to a designated foreign terrorist organization knowing or intending th at the personnel be used to prepare for or carry out a conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country. The government ma intained that Jumaev and Muhtorov had attempted to help Jumaev’s son study at a madrassa with ties to terrorism. Eventually, the district court set a discovery deadline of September 1, 2016 and a trial date of March 13, 2017 for both Ju maev and Muhtorov. On the date of the discovery deadline, the government produced a hard drive containing approximately 39,000 files of recorded statements. This did not, however, prove to be the end of discovery. In fact, discovery producti ons continued well after the discovery deadline—though subsequent productions were much smaller than the one that occurred on September 1, 2016. On October 17, 2016, Muhtorov file d a motion to sever his trial from Jumaev’s. A little over a m onth later, the district c ourt granted the motion. United

2 To the extent Jumaev presented a facial challe nge, it was resolved by the district court’s rejecti on of Muhtorov’s as-applied and facial challenges. See App’x Vol. III at 119; see also Muhtorov , slip op. at 22 n.11 (noting that because Muhtorov’s as-applied Section 702 challenge fa ils, his “facial ch allenge necessarily fails” as well). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 88 States v. Muhtorov , No. 12-cr-33-JLK, 2016 WL 1161 2426, at *1–2 (D. Colo. Nov. 29, 2016). The district court found th e severance to be appropriate because Muhtorov anticipated he might call Jumaev as a witness. Id. at *1. It also concluded that the need for separate, simultaneous translators for th e different languages used in Muhtorov’s and Jumaev’s statements wo uld make a joint trial cumbersome. Id. at *2. Muhtorov’s trial was moved back to July 31, 2017, but Jumaev’s trial remained scheduled to begin on March 13, 2017. De spite the severance, many aspects of the pretrial proceedings remained joined. On November 4, 2016, Jumaev move d to suppress the ev idence derived from the searches of his home, phone, and computer. He asserted that the magistrate judge violated Federal Rule of Cr iminal Procedure 41 when she issued the extr aterritorial warrants pursuant to which the evidence wa s obtained. On January 31, 2017, the district court denied Jumaev ’s motion to suppress. On February 28, 2017, less than two weeks before Jumaev’s trial was set to begin, Jumaev moved for the first time to dismiss the indi ctment on the grounds that his Sixth Amendment right to a speedy trial had been violated. Jumaev argued that the five years he had spent waiting to go to trial were excessive and the fault of the government. Additionally, he maintained that the large quantity of discovery produced on the discovery deadline, th e additional productions made after the deadline, and the government ’s decision to bring two ne w charges (counts 5 and 6) against him more than four years after he was first indicted had prevented his defense team from being ready to go tr ial on the scheduled date. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 99 On March 1, 2017, the government vol untarily dismissed counts 5 and 6—the counts that had been added by the third superseding indictme nt. On March 13, 2017—the day that was meant to be the st art of trial—the dist rict court denied Jumaev’s speedy trial motion. At the same time though, the distri ct court sanctioned the government for its delayed filing and di smissal of counts 5 and 6. Specifically, the district court entered an order pr ohibiting the government from using any evidence pertaining to counts 5 and 6 in its case in chief. Juma ev then moved for a continuance to give his lawyers additional ti me to prepare his defense. The district court granted the motion and rescheduled the trial for January 8, 2018. On November 30, 2017, the district judge informed the parties that he unexpectedly needed to undergo medical treatment. To accommodate this development, Jumaev’s trial st art date was moved again, this time to March 12, 2018. On February 16, 2018, a few weeks be fore the new trial start date, Jumaev moved a second time to dismiss the indictment on speedy trial grounds. The district court again denied Jumaev’s motion. Also in February 2018, the government finally made its last discovery production to Jumaev. On March 2, 2018, the district court sanctioned the govern ment for discovery conduct that had occurred in December 2017 . That month, Jumaev’s defense team traveled to Kazakhstan to depose a witness, Sobirov, who had acted as a confidential human source for the government. The gove rnment, however, failed to disclose potential impeachment information about Sobi rov until the morning of his deposition. The district court determined that the timing of the government’s disclosure Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1010 prevented Jumaev’s defense team from bei ng able to effectively use the potential impeachment information duri ng Sobirov’s deposition. A ccordingly, the district court ordered that the jury be read an in struction concerning “the information that was belatedly disclosed by the government and not elicited duri ng [the] deposition.” App’x Vol. VII at 406. Jumaev’s trial began on March 12, 2018. On Apr il 30, 2018—a little over six years after Jumaev was init ially arrested and charged—Jumaev was convicted on both of the remaining counts ag ainst him (counts 1 and 2). 3 On July 18, 2018, the district court sentenced Ju maev to time served—76 mont hs and 3 days—as well as ten years of supervised release. 4 Jumaev now appeals.
II We begin with Jumaev’s Sixth Amendm ent speedy trial claim. “The Sixth Amendment guarantees that ‘[i]n all crimin al prosecutions, th e accused shall enjoy the right to a speedy and public trial.’” United States v. Medina , 918 F.3d 774, 779 (10th Cir. 2019) (alteration in original) (quoting U.S. Const. amend. VI). To evaluate whether a defendant’s Sixth Amendment sp eedy trial right has been violated, we

3 Counts 3 and 4 pertained solely to Muhtorov.
4 Jumaev was released in to the custody of the U.S. Department of Homeland Security. The government seeks to remo ve Jumaev from the United States, and on January 12, 2021, the Board of Immigration Ap peals entered a final order of removal. Jumaev, though, has challenged that order in a separate appeal. See Jumaev v. Garland , No. 21-9513 (10th Cir. filed Feb. 2, 2021). On May 14, 2021, this court issued a stay of removal. Order, Jumaev , No. 21-9513 (May 14, 2021). Jumaev’s immigration appeal othe rwise remains pending. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1111 apply the four-part balancing test set forth by the Supreme Court in Barker v. Wingo , 407 U.S. 514 (1972). “The four factors ar e: ‘(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of hi s right; and (4) prejudice to the defendant.’” Medina , 918 F.3d at 780 (quoting United States v. Yehling , 456 F.3d 1236, 1243 (10th Cir. 2006)). “We review the legal question of whether there was a Sixth Amendment violation de novo and any underlying dist rict court factual findings for clear error.” United States v. Frias , 893 F.3d 1268, 1272 (10th Cir. 2018). Although six years is an ex ceptionally long time to awa it trial, Jumaev’s claim lacks merit in this instance. As noted above, we conclude in our separate Muhtorov opinion that Muhtorov’s speedy trial clai m fails. And that conclusion resolves Jumaev’s claim, too. In al l critical respects, Jumaev’s cl aim is substantially similar, and often identical, to Muhtorov’s. In f act, as we detail below, to the extent Jumaev’s claim differs from Muhtorov’s, th e material differences render Jumaev’s claim the weaker one. Acco rdingly, for largely the sa me reasons that Muhtorov’s claim falls short, we determine that Ju maev’s Sixth Amendment speedy trial claim likewise fails. 5 We first weigh each of the Barkerfactors. We then balance them.

5 The dissent’s primary criticisms of our speedy trial analysis here are the same as those lodged against our speedy trial analysis in Muhtorov

. See Dissent at 1 (dissenting “[f]or the reasons stated in” the Muhtorov dissent and “incorporat[ing] that dissent in its entire ty”). As we detail in Muhtorov , we respectfully disagree with those objections. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1212 A
1 The first Barkerfactor—the length of the dela y—weighs strongly in Jumaev’s favor. This first factor “typical ly serves as a gatekeeper.” Frias , 893 F.3d at 1272. “We examine the other factors only when the delay is presumptively prejudicial, satisfied by ‘[d]elays approaching one year.’” Id. (alteration in original) (quoting United States v. Batie , 433 F.3d 1287, 1290 (10th Cir. 2006)). “The delay period starts with the indictment or arrest, whichever comes first.” United States v. Nixon , 919 F.3d 1265, 1269 (10th Cir. 2019). It ends “upon conviction.” Betterman v.
Montana , 136 S. Ct. 16 09, 1613 (2016). If a defendant can show that the delay is presumptively prejudicial, we must then “decide how much weight to assign th is delay, considering the length of time and the complexity of the federal case.” Nixon , 919 F.3d at 1270. In making this assessment, we consider “the extent to which the dela y stretches beyond the bare minimum needed to trigger judici al examination of the claim.” Doggett v. United
States , 505 U.S. 647, 652 (1992). Unsurprisingly, “[t]he greater th e delay, the more th[is] factor favors the defendant.” United States v. Hicks , 779 F.3d 1163, 1168 (10th Cir. 2015). Here, the roughly six-year delay “is we ll beyond the one-year delay that courts have deemed sufficient to cl ear the ‘gate’ and allow cons ideration of the remaining three Barkerfactors.” Muhtorov , slip op. at 116. And while it is shorter than the six and a half years that Jumaev ’s co-defendant Muhtorov sp ent waiting for trial, it is Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1313 still longer than delays that we have c oncluded favor the defe ndant at the first Barker factor. See Batie , 433 F.3d at 1290–91 (17-month delay); United States v. Margheim , 770 F.3d 1312, 1326 (10th Cir. 2014) (23-month delay); United States v. Seltzer , 595 F.3d 1170, 1176–77 (10th Cir. 2010) (two-year delay); Jackson v. Ray , 390 F.3d 1254, 1261 (10th Cir. 2004) (four-and-one-third-year delay). Accordingly, “when considered ‘as one factor am ong several,’” this six-yeardelay “weighs strongly in favor of [Jumaev].” Muhtorov , slip op. at 117 (quoting Seltzer , 595 F.3d at 1176). Our conclusion is not altere d by the fact that a long de lay can be justified for a “serious, complex . . . charge.” Barker , 407 U.S. at 531. As we observe in Muhtorov , “[t]his consideration cuts in different directions in [these ] case[s].” Slip op. at 117. “On the one hand, the investiga tion included traditional FISA . . . , which created procedural complexities.” Id. But on the other, th e underlying conduct was straightforward, particularly in Jumaev’s case. The government itself stressed this point during trial, e xplaining to the jury that “this [was] a simple case” concerning a single transaction in which Jumaev “sen t $300 to a man name d Jamshid Muhtorov” “knowing that Jamshid Muhtorov was going to go support a terrorist group called the Islamic Jihad Union.” App’x Vol. XVIII at 598–99, 2662. In the end, we need not resolve this tension. Even assuming that this case was “complex” for purposes of the first Barker factor, a six-year delay is still so long that the first Barker factor weighs strongly in favor of finding a cons titutional violation in this case. See Muhtorov , slip op. at 118 (reaching the same c onclusion with respect to M uhtorov’s delay of six and a half years). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1414 2 The second Barkerfactor—the reason for the de lay—does not weigh in favor of a speedy trial violation. “Because the prosecutor and th e court have an affirmative constitutional obligation to try the defendantin a timely manner the burden is on the prosecution to explain the cause of the pre-trial delay.” Muhtorov , slip op. at 119 (internal quotation marks omitted) (quoting United States v. Brown , 169 F.3d 344, 349 (6th Cir. 1999)). In turn, delays can count in favor of a speedy trial violation even when “there is no ev idence that the government in tentionally delayed the case for the explicit purpose of gaining some advantage.” Seltzer , 595 F.3d at 1179. However, “pretrial delay is often both inev itable and wholly justifiable,” such as when “[t]he government . . . need[s] time to collect witnesses against the accused [and to] oppose his pretrial motions.” Doggett , 505 U.S. at 656. As we explain in Muhtorov , the delay in these case s was due to discovery, which lasted for Jumaev until February 2018. See Muhtorov , slip op. at 127 & n.62. 6

6 As noted above, toward the end of 201 7, the district j udge alerted counsel that he unexpectedly needed to undergo medi cal treatment, and, as a result, Jumaev’s trial was moved from January 2018 to March 2018. App’x Vol. IV at 832, Vol. XIII at 1080. For the same reason, Muhtorov’ s trial was similarl y moved, from March 2018 to May 2018. Muhtorov , slip op. at 127. Beca use the government completed discovery in Muhtorov’s case in January 2018—four months before Muhtorov’s trial occurred—we consider the delay caused by th e district judge’s me dical treatment in the course of assessing Muht orov’s speedy trial claim. See id. at 127, 136–38. But with respect to Jumaev, disc overy was completed later th an in Muhtorov’s case and trial occurred sooner—just one month afte r the government finished its discovery productions. As a result, de lays due to discovery produc tions eclipsed the delay due to the district judge’s medical treatment, eliminating the n eed to address the district judge’s medical situation as part of our analysis of Jumaev’s claim. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1515 The government, therefore, must “provide an acceptable rationale for the delay.” Seltzer , 595 F.3d at 1177. This is no easy task in light of the considerable length of the delay. But, ultimately, the government has carried it s burden. “Given the volume of materials requested, meeting those reque sts required time, particularly when the materials had to be tran slated from uncommon lang uages—Uzbek and Tajik—by translators with security clearances,” who were few and far between. Muhtorov , slip op. at 131. Additionally, “[t]he district court’s and the part ies’ obligations to comply with CIPA significantly complicated the di scovery process” in ways that were unavoidable. Id. at 129. For these reasons, the lengt hy period of discovery was justified. 7

The dissent’s approach differs slightly from ours here. It re asons that “[b]ut for . . . government-caused delay, the tria l would have begun in March 2017,” and “therefore [the dissent] w ould attribute the entire additi onal year’s delay [from March 2017 to March 2018] to the government,” including the “additional two months until March 2018 due to the district court judge’s i llness.” Dissent at 3 n.3. In our view, these different paths l ead to the same destination, fo r, like the dissent , we count the entire period from March 2017 to March 2018 as delay that the government must justify. However, unlike the dissent, our basis for reaching this conclusion is that discovery was not completed until February 2018, making an earlier trial impossible. The dissent’s analysis does not necessar ily conflict with our own—indeed, in Muhtorov we do weigh the delay caused by the judge ’s medical treatment against the government, albeit not heavily. See slip op. at 136–38. But in this case we do not, at the end of the day, reach the issue of the judge’s illness.
7 As we detail in section III, infra , Jumaev asserts that the government violated its discovery obligations in this case by (1) failing to meet the September 1, 2016 discovery deadline; (2) bringing new charge s against him late in to the proceedings, which forced his defense team to revisit an d reevaluate the discovery that had been produced up until that point; and (3) delaying the disclosure of potential impeachment information concerning a witne ss, Sobirov, until the morning of that witness’s deposition. See Reply Br. at 27–28. Althou gh Muhtorov does not also raise these claims on appeal, they do no t render Jumaev’s case dissimilar from Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1616 The dissent takes issue with this analys is. Most of its disagreements concern the reasoning we employ in Muhtorov , see Dissent at 2–3 & n. 2, and we address those critiques in that opinion . But the dissent also posit s, with respect to Jumaev specifically, that “[t]he excessive governmental delay in responding to timely discovery requests made by . . . Jumaev is even more compelling [than in Muhtorov’s case] because the government waited to provi de discovery information long in its possession until the eve of Jum aev’s first scheduled trial, ” “caus[ing] an additional delay of one year.” Id. at 1. It thus concludes that “the second Barker factor” should “weigh[] even more heavily in Jumaev’s favor than,” in th e dissent’s view, “it did for Muhtorov.” Id. at 4. For three reasons, we are unconvinced that Jumaev’s case is stronger than Muhtorov’s when it comes to the second Barkerfactor. First, the dissent’s argument appears to be premised on the notion that the March 2017 postponement of Jumaev’s trial was solely the result of discovery “produced [by the government] for the first

Muhtorov’s for purposes of the second Barkerfactor. Jumaev’s claim concerning the government’s failure to meet the discovery deadline is si mply a recasting of Jumaev and Muhtorov’s general complain ts about the slow pace of discovery. Similarly, the late-filed charges included in the third s uperseding indictment were brought against Jumaev as well as Muhtorov, see App’x Vol. III at 262–63, so any time lost due to that development affected them both, see Muhtorov , slip op. at 139 (explaining that “Muhtorov would not have ‘faced trial . . . ear lier than he did bu t for’ the . . . filing and dismissing of the third superseding indictment” “[g] iven that the discovery process happened before, during, and after [that] event[]” (first omission in original) (quoting Doggett , 505 U.S. at 657)). Finally, while the late disclosu re of potential impeachment information about Sobirov is an issue unique to Jumaev, that late disclosure had no impact on Ju maev’s trial date, and theref ore is not relevant to our assessment of the second Barkerfactor. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1717 time shortly before trial.” Id. at 3. The dissent believes , apparently, that we should look favorably on Jumaev because until he received the govern ment’s “eleventhhour” disclosures, he believe d he would be able to pro ceed to trial on the March 2017 date. Id. Yet the dissent’s factual premise does not hold. As Jumaev himself explained in his first speedy trial motion, “[g]iven the huge number of intercepted communications provided on Sept ember 1, 2016, the Jumaev defense ha[d] not [as of March 2017] had the time or resources to review these communica tions [with Jumaev and an interpreter], let alone know which on es need[ed] to be translated for the preparation of transcripts fo r trial.” App’x Vol. VI at 703. Accordingly, Jumaev would not have been ready to go to trial on the initial start da te even absent the government’s productions afte r September 1, 2016, for hi s defense team was still working through the communications that had been produced by the discovery deadline. Second, the dissen t’s argument similarly lacks s upport in the law. We are unaware of any authority th at suggests the constitutional import of a pretrial delay increases when it occurs close to a scheduled trial date. Third, given that Muhtorov’s trial date was pushed back at the same time as Jumaev’s and for the same amount of time, we fail to see how the delay is mo re “compelling” in Jumaev’s case. If anything, Muhtorov’s situation was the more compelling one, for by that point Muhtorov had already spent r oughly two months longer th an Jumaev in pretrial detention, and the order of Jumaev’s and Muhtorov’s trials gua ranteed that Muhtorov would have to wait longer still fo r a jury to hear his case. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1818 In sum, while the delay in this case was due to discovery, the government has justified the delay. The second Barkerfactor therefore we ighs against finding a constitutional violation.
3

a The third Barkerfactor—Jumaev’s assertion of his right to a speedy trial— also weighs against a speedy tr ial violation. “The defenda nt’s assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether [he] is being deprived of the right.” Barker , 407 U.S. at 531–32. “[F] ailure to assert the right,” on the other hand, “will make it diffic ult for a defendant to prove that he was denied a speedy trial.” Id. at 532. Though a defendant b ears the burden to assert his right, a defendant does not “waive[] any consid eration of his right to speedy trial for any period prior to which he has not demanded a trial.” Id. at 525. Rather, “the ultimate inquiry is ‘whether the defendant’s behavior during the course of litigation evinces a desire to go to trial with dispatch.’” Muhtorov , slip op. at 142 (quoting
Batie , 433 F.3d at 1291). Thus, “‘[w]e may we igh the frequency and force of [the defendant’s] objections’ to the delay.” Margheim , 770 F.3d at 1328 (first alteration in original) (quoting United States v. Latimer , 511 F.2d 498, 501 (10th Cir. 1975)). “A defendant’s early and persis tent assertion of his right to a speedy trial will tip the third factor in his favor, but efforts to stall the proceed ings, such as ‘moving for many continuances,’ will ‘tip the balance of this fa ctor heavily against the Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 1919 defendant.’” Medina , 918 F.3d at 781 (internal quot ation marks omitted) (quoting Margheim , 770 F.3d at 1328). Jumaev argues that the motions to dismi ss he filed in the trial court sufficiently asserted his constitutional right to a spee dy trial. We determine otherwise, for Jumaev’s motions were not timely. The first was submitted on February 28, 2017, less than two weeks before the then-scheduled trial date of March 13, 2017. The second was filed on February 16, 2018, less th an a month before his trial finally did occur and about five years and eleven months after he was arrested and charged. We have previously recognized that the third Barker factor weighs ag ainst a defendant who chooses “not to assert hi s right to a speedy trial until tr ial itself [is] imminent.” United States v. Kalady , 941 F.2d 1090, 1095 (10th Cir. 1991). And we find that that principle applies here. By waiting until just thirteen days before trial was set to begin to raise his first speedy tria l objection, Jumaev tipped this factor in the government’s favor. Notably, Jumaev’s reque sts for a speedy trial diffe r from those of his codefendant Muhtorov, who did adequately assert his spee dy trial right. While both Muhtorov and Jumaev waited years to f ile their first speedy trial motions, Muhtorov’s motions were more frequent and more timely. For instance, Muhtorov, like Jumaev, filed two counseled moti ons. But, unlike Jumaev, Muhtorov also submitted several pro se motions in which he “expressed his frustra tion with delays.” Muhtorov , slip op. at 143. The first of these, in particular, included an analysis of the four Barkerfactors and was filed five months before Muhtorov’s th en–trial date. See Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2020 id. at 143–45. Muhtorov’s counseled motions, too, stand in contrast to Jumaev’s. For example, Muhtorov’s first counsele d motion was filed approximately four months prior to trial instead of only two weeks beforehand. See id. at 143, 145. Muhtorov’s persistence and d iligence show that he “did not intend on waiting until the eve of trial to assert th e right for the first time.” Id. at 145. Jumaev’s tardiness, by contrast, leaves open the possibility that he “merely . . . mov[ed] to dismiss after the delay ha[d] already occurred.” United States v. Gould , 672 F.3d 930, 938 (10th Cir. 2012) (internal quotation marks omitted) (quoting Batie , 433 F.3d at 1291). In reaching this conclusion, we recogni ze that when these cases began, the government believed—and represented—that discovery would be completed within months, not years. See App’x Vol. XI at 228. A full appreciation for the difficulties that discovery would presen t developed only gradually, a nd for that reason, Jumaev and Muhtorov’s failure to register speedy tr ial objections closer to the start of the proceedings is understandable. See Barker , 407 U.S. at 528 (instructing that a defendant is not obligated to submit a “p ro forma demand [for a speedy trial] . . . immediately after appointment of counsel” to preserve his ri ght). Indeed, this context helps explain why Muhtorov’s assertion of his speedy trial right was sufficient despite the late date on wh ich it was lodged; in an or dinary case, a speedy trial objection first raised roughly five years af ter the indictment would be untimely. See
Nixon , 919 F.3d at 1272 (determining that the third Barker factor weighed against a defendant who “waited almost a year to invoke his right to a speedy trial”); United States v. Black , 830 F.3d 1099, 1121 (10th Cir. 2016) (suggesting that an initial Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2121 assertion of the speedy trial right “13 mont hs after the First S uperseding Indictment” is “late”); United States v. Koerber , 10 F.4th 1083, 1110 (10th Cir. 2021) (finding that a first assertion of the speedy trial right “over four years after [the defendant’s] initial indictment” was not “‘frequent’ or ‘fo rceful’”). But this context does not justify the entirety of Jumaev’s delay. It was ultimately Jumaev’s “burden to actively assert his right.” Yehling , 456 F.3d at 1244; see also Muhtorov , slip op. at 140 (“The defendant has the ‘burden of showing he desired a speedy trial.’”) (quoting Gould , 672 F.3d at 938). And Jumaev has not demonstrated that the government’s unexpected discovery delays prevented him from asserting his speedy trial right until trial was virtually at hand. Focusing on the number of motions he fi led, Jumaev insists that he did meet his burden. He observes that he object ed on speedy trial grounds on two separate occasions. Reply Br. at 15. And, citing our decision in United States v. Seltzer , he says that “this Court has held that if a defendant has ‘twice asserted his speedy trial rights’ this ‘put[s] both the district c ourt and the government on notice that the defendant wishe[s] to proceed to a prompt resolution of his case,’ and thus ‘weighs strongly’ in his favor.” Id. (alterations in original) (quoting Seltzer , 595 F.3d at 1179). Jumaev overreads Seltzer

. Seltzer ’s analysis did not turn solely on the number of motions filed; such a rule would permit a defendant to prevail on this factor simply by “rapid-fire filing [speedy trial] motions” shortly before trial. Margheim , 770 F.3d at 1329; see also Batie , 433 F.3d at 1291 (explaining that a speedy trial motion Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2222 submitted after “delay has already occu rred” “could be, indeed may well be, strategic”). Rather, Seltzerheld that the third Barkerfactor weighs in the defendant’s favor when his speedy tria l requests are “repeated” and “prompt.” Seltzer , 595 F.3d at 1179. Applying that principle here, although “both [Jumaev] and the Seltzer defendant ‘brought . . . rep eated requests,’ . . . only the Seltzer defendant did so promptly .” Margheim , 770 F.3d at 1329 (first omission and emphasis in original) (quoting Seltzer , 595 F.3d at 1179). Jumaev’s tw o motions, therefore, did not sufficiently assert his speedy trial right. Finally, Jumaev’s other pr etrial conduct casts furthe r doubt on his claim that he prioritized a speedy trial. See United States v. Tranakos , 911 F.2d 1422, 1429 (10th Cir. 1990) (expla ining that the third Barkerfactor weighs ag ainst a defendant who “moves for dismissal on speedy tria l grounds” but whose “other conduct indicates a contrary desire”). Jumaev points out that he objected to the slow pace of the government’s discovery ef forts throughout the proceedi ngs, which is true. But more revealing is Jumaev’s decision to join Muhtorov’s motion seeking suppression of evidence acquired pursuant to Section 702. This was an issue of significant novelty and complexity, and it was clear th at the issue would take a substantial period of time to litigate. For instance, one filing Jumaev and Muhtorov submitted in support of the motion—a notice of supplem ental authority—was 420 pages long. See App’x Vol. II at 53–472. Moreover, Juma ev knew that his chances of prevailing on the motion were close to zero. After al l, the government informed Jumaev two months before he joined Muhtorov’s motion that he was not an “aggrieved person” as Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2323 to the Section 702 acquisitions at issue. Id. Vol. I at 605, 608. And the district court corroborated this claim—while further indicat ing that Jumaev likely lacked standing to bring the Section 702 challenge—at a hearing that took place when the joint motion was pending. Id. Vol. XI at 266–67. Today, Jumaev acknowledges that “the case against [him] had virt ually nothing to do with FISA.” Reply Br. at 13. 8 Nevertheless, Jumaev insist ed on litigating the Section 702 issue. That choice reveals that he was not “focused co mpletely on proceeding to trial.” Margheim , 770 F.3d at 1329. 9 Based on the foregoing, we conclude that Jumaev did not adequately assert his speedy trial right. 10

8 In keeping with this ac knowledgment, Jumaev has not appealed the denial of the Section 702 suppression motion. Muhtorov, though, has appealed that ruling, and we address it in the opinion dedicated to his claims. See Muhtorov , slip op. at 6–75.
9 The dissent maintains that “Jumaev’s decision to join Muhtorov’s . . . suppression motion in 2014 did not evidence Jumaev’s lack of eagerness to go to trial” because “Jumaev and Muhtorov remain ed as co-defendants in a single trial until the November 2016 severance,” and ther efore, “regardless of whether he joined the motion, [Jumaev] could no t progress toward trial until the motion was decided in November 2015.” Dissent at 7 n.7. Th e dissent never expl ains, however, why Jumaev could not have asked for a severa nce once it became cl ear that Muhtorov’s case would require resolution of the co mplicated issues surrounding Section 702 surveillance. Indeed, when Muhtorov asked for a severa nce, it was granted. See Muhtorov , 2016 WL 11612426, at *1–2.
10 In addition to the foregoing analysis, we note that (1) Jumaev did not object to a number of continuances requested by the government under the Speedy Trial Act (“STA”), 18 U.S.C. §§ 3161–3174, see App’x Vol. I at 489, 491, 529, 542, 548, and (2) Jumaev himself requested a nine-month continuance on March 13, 2017, the date his trial was initially scheduled to occur, see id. Vol. XVIII at 86, 90. We do not, however, count these continuances against Jumaev. Just as in Muhtorov , once Jumaev committed himself to litigating the S ection 702 issue his “failure to object [to STA continuances] sooner wa s understandable in light of [the] pending motions to Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2424 b For four principal reasons, the dissent di sagrees with our analysis of the third Barkerfactor. Though we understand the dissen t’s frustration with the length of time it took for Jumaev’s case to get to trial, we are unpe rsuaded by the dissent’s arguments. First, the dissent contends that by “tip [ping] this factor in favor of Muhtorov because his . . . pro se motions expressed frustration with the delay” but not granting equal credit to Jumaev, we “require counsel ed defendants to file pro se motions in order for Barker’s assertion-of-t he-right factor to weigh in th eir favor.” Dissent at 6.
Not so. We contrast Jumaev’s motions with Muhtorov’s to illustrate why, despite the many similarities between their cases, Jumaev’s assertions of the right fell short even as Muhtorov’s successfully crossed the third- Barker -factor threshold. But what matters for purposes of this comparison is not that some of Muhtorov’s motions were pro se. What matters is that Muhtorov’s motions—regardless of whether they were counseled or pro se—were more frequentand more timely than Jumaev’s. See Medina , 918 F.3d at 781 (explaining that “[ a] defendant’s early and persistent assertion of his right to a sp eedy trial will tip the third [ Barker ] factor in his favor”).

suppress.” Slip op. at 146 (explaining th at “[i]t may have been pointless for [Muhtorov] to object to the STA conti nuances given the pending suppression motions”). As for Jumaev’s own motion for a continuance, he filed it only after his first speedy trial motion was denied, and he maintained that the continuance was necessary, in part, due to the governme nt’s ongoing docume nt productions. See App’x Vol. XVIII at 85–86. Given that the government did continue to produce discovery well after March 13, 2017, we agree that Jumaev’s request for a continuance did not necessarily run counter to a desire to proceed to trial quickly. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2525 To treat Jumaev’s and Muhtor ov’s assertions as equiva lent when conducting this analysis would be to essentially ignore Muhtorov’s pro se mo tions—something that the dissent acknowledges we cannot do. See Dissent at 6 (recognizing that “Barker’s third factor requires us to c onsider the . . . additional pro se motions for a speedy trial filed by Muhtorov”). Thus, accounting fo r Muhtorov’s pro se motions when we weigh Jumaev’s and Muhtorov’s objections , the conclusion that Muhtorov’s were made with greater “frequency and force,” Margheim , 770 F.3d at 1328 (quoting
Latimer , 511 F.2d at 501), is inescapable. 11 Second, the dissent criticizes us for not “weigh[ing] the conduct of both parties.” Dissent at 8 (e mphasis added). In its vi ew, because “the government repeatedly assured [Jumaev] that discovery would be forthcoming,” Jumaev did all that was required of him when “[h]e wa ited on the government to fulfill its responsibilities, diligently and persistently filing discovery motions that were not met in a timely fashion.” Id. at 8–9. 12 Our analysis is not b lind to the government’s conduct. As our discussion in the preceding section makes clear, we have factored

11 The dissent also claims that our analysis, at the very least, “penalize[s] Jumaev by faulting him for not augmenting the motions filed by his counsel with pro se motions.” Dissent at 6. This, again, is an inaccu rate representation of our reasoning. We do not punish Jumaev for not filing pro se motions. We simply adjudge that the two delinquent motions Jum aev did file were in sufficient to tilt the third Barkerfactor in his favor.
12 In expressing this opinion, the disse nt says that “Jumaev did not seek continuances.” Dissent at 9. That is not true. As me ntioned above, Jumaev did, in fact, ask for a nine-month continuance after his first speedy trial motion was denied. See supra note 10. But because we do not c ount this request against Jumaev, see id. , this discrepancy is immaterial. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2626 the government’s initial repr esentations concerning discove ry into our assessment of the timeliness of Jumaev’s first speedy trial motion. See supra section II.A.3.a. But when all is said and done, the burden is on the defendant “to actively assert his right.” Yehling , 456 F.3d at 1244. Consequently, ev en when delay is attributable to the government, the third Barkerfactor weighs against a defendant who “merely . . . mov[es] to dismiss after the delay has already occurred.” Gould , 672 F.3d at 938 (internal quotation marks omitted) (quoting Batie , 433 F.3d at 1291). Nor is it enough for a defendant to complain about the pace of discovery without expressly raising a speedy trial objec tion. As we note in Muhtorov , Jumaev and Muhtorov (and now, too, the dissent) “offer[] no authority th at . . . objections to the slow pace of discovery productions are akin to the asser tion of a speedy trial right.” Slip op. at
144 n.78. Third, the dissent main tains that we act unchari tably toward Jumaev by “[s]imply comparing the time between filing of their first counseled speedy trial motions and Muhtorov and Jumaev’s respective trial dates.” Dissent at 9. It says that such a comparison “ignores that, af ter severance, Jumaev was required to proceed to trial first, before Muhtor ov,” and accordingly there was a “shorter practical window between the November 29, 2016 severance and the first scheduled trial date on March 13, 2017 available for Ju maev to assert his speedy trial right.” Id. This argument is without legal foundation. Our caselaw instruct s that there are two key periods we look to when assessing the tim eliness of a defendant ’s assertion of the right: the time elapsed since indictmentor arrest (whichever comes first), see, e.g. , Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2727 Nixon , 919 F.3d at 1272; Black , 830 F.3d at 1121, and the time left before trial, see Kalady , 941 F.2d at 1095. Nothing in our pr ecedent suggests that we should alter these measurements to account for a co-defendant’s trial da te. Even if, however, we were to make the adjustment the dissent calls for and us e only Jumaev’s initial trial date when comparing Jumaev’s and Muht orov’s first speedy trial objections, the juxtaposition would still be unfavorable to Jumaev. M uhtorov’s initial motion was submitted on February 1, 2017 —roughly four weeks before Jumaev filed his first motion, and nearly six weeks before Jumaev’s trial was set to begi n. This contrast illustrates, once again, that if Jumaev was committed to asserting his speedy trial right, he had no reason to wait until a mere thirteen days prior to trial to start objecting to the length of the proceedings. Fourth, the dissent says we should not “fault Jumaev for joining Muhtorov’s motion to suppress § 702-derived evidence.” Di ssent at 7 n.7. It contends (1) that the legality of the Section 702 surveillance was “a relevant issue in Ju maev’s case” because evidence to be used against Jumaev was, at bottom, the product of that surveillance; (2) that “the government’s assertion that Ju maev was not an ‘aggrieved person’ entitled to notice . . . was open to good faith challenge by Jumaev below”; (3) that “the belated govern ment assurances that Jum aev was not an ‘aggrieved person’ were far from unequivoc al, requiring several defens e motions to gain a clear articulation of the government’s position”; (4) that “Jumaev’s d ecision to join in Muhtorov’s motion . . . was far from a bad faith attempt to delay the trial”; and (5) that “[t]o the extent . . . additional delay resulted from [Jumaev’s] decision [to Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2828 join Muhtorov’s motion], which it did not gi ven that the cases were not severed until a year after the motio n to suppress was decided, it should not be weighed heavily against Jumaev.” Id. at 2, 7 n.7. None of these arguments convinces us to overlook Jumaev’s decision to join Muhtorov’s motion. With respect to the di ssent’s first and sec ond contentions that the Section 702 surveillance wa s relevant to Jumaev’s cas e and open to good faith challenge, Jumaev himself ha s fatally undercut such claims. By Jumaev’s own admission, “the case against [h im] had virtually nothing to do with FISA.” Reply Br. at 13. Similarly, Jumaev has taken the wi nd out of the sails of the dissent’s third contention that the government’s assurances that Jumaev was not “aggrieved” were “belated” and “equivocal.” As Jumaev notes in his reply brief, “[t]he government . . . ‘made clear to [his] counsel in 2013 that the [Secti on 702] Notice did not apply to him.’” Id. (quoting Aple. Br. at 26) . And 2013 was certainly early enough to inform Jumaev’s decision to join Muhtorov’s moti on, which was not filed until 2014. As for the dissent’s fourth contention—concer ning whether Jumaev made a bad faith attempt to delay the trial—this argument in verts the test we a pply when weighing the third Barkerfactor. The question is not whether the defendant acted in bad faith to affirmatively slow down the proceedings; it is whether the defendant demonstrated that he wished to proc eed to trial quickly. See Batie , 433 F.3d at 1291. And Jumaev has not made that showing. Finally, as for the dissent’ s fifth contention, we agree with the dissent that Jum aev’s decision to join Muhtorov’s motion did not produce additional delay. That delay would have occurred anyway due to the slow pace of Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 2929 discovery. See supra section II.A.2. But Jumaev co uld not have known that such delay was inevitable at the time that he jo ined Muhtorov’s motion. Indeed, Jumaev himself states that early in the case he “believed the government’s representations that discovery disclosures would be complete [d]” relatively quick ly and that a trial would “follow[] closely thereafter.” Repl y Br. at 19. Thus, his decision to join Muhtorov’s motion shows that he was more interested in litigati ng a complicated and tangential legal issue than in “go[ ing] to trial with dispatch.” Batie , 433 F.3d at 1291. And that “contrary desire” is what matters for purposes of the third Barker factor. Tranakos , 911 F.2d at 1429. In brief, Jumaev’s long-delayed sp eedy trial motions were inadequate assertions of his speedy trial right. The third Barkerfactor weighs in the government’s favor.
4 Lastly, the fourth Barkerfactor—prejudice—weighs in Jumaev’s favor, though only moderately. “The individual claimi ng the Sixth Amendment violation has the burden of showing prejudice.” Medina , 918 F.3d at 781 (int ernal quotation marks omitted) (quoting Seltzer , 595 F.3d at 1179). However, “[i]n cases of ‘extreme’ delay, the defendant need not present speci fic evidence of prejudice, but can rely on a ‘presumption of prejudice’ resu lting from the prolonged delay.” Id. (quoting United
States v. Frater , 495 F. App’x 878, 882 (10th Cir. 2012) (unpublished)). “Generally, the court requires a delay of six years befo re allowing the delay itself to constitute prejudice.” Seltzer , 595 F.3d at 1180 n.3. “Absen t . . . an ‘extreme’ delay, the Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3030 defendant must provide specific evidence of how the delay was prejudicial.” Medina , 918 F.3d at 781 (quoting Margheim , 770 F.3d at 1329). “[I]n assessing whether [the defendant] has alleged prejudice with su fficient particularity , we focus on the interests the speedy-trial right was designed to safeguard: (1) ‘preventing oppressive pretrial incarceration’; (2) ‘minimizing an xiety and concern of the accused’; and (3) ‘limiting the possib ility that the defense will be impaired.’” Margheim , 770 F.3d at 1329 (brackets omitted) (quoting Barker , 407 U.S. at 532). “Based on our discussion of the second Barkerfactor, we cannot attribute six years of delay to the government.” Muhtorov , slip op. at 152. Accordingly, this fourth factor turns on whether Jumaev has demonstrated specific prejudice. Jumaev attempts to do so by showing oppressive pret rial incarceration and impairment of his defense. We consider each in turn.

a Jumaev has established that he su ffered prejudice due to his pretrial incarceration. “Because the seriousness of a post-accusati on delay worsens when the wait is accompanied by pretrial incarceration, oppressive pr etrial incarceration is the second most important[interest].” Jackson , 390 F.3d at 1264. And as we recognize
in Muhtorov , extended pretrial incarceration, on its own, can be prejudicial. See Muhtorov , slip op. at 153. That is the case here. Just as “the mere fact of [Muhtorov’s] incarceration for six-and-a-ha lf years weighs in favor of finding prejudice,” so too do Jumaev’s six years of pretrial incarcerati on support a prejudice Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3131 finding. Id. “By any measure, [six] years of pret rial incarceration is extraordinary.” Id. Additionally, Jumaev has shown that hi s pretrial incarcerati on was particularly oppressive because he spent that incarceration “in Denver, far from his friends in Pennsylvania,” and during that time was “only . . . able to see one of his sons via videoconference for 10 minutes.” Aplt. Br . at 57 (quoting Suppl. App’x (Pleadings) at 154). Like we do for Muhtorov, we credit Jumaev’s claims. Muhtorov , slip op. at
153. “ Barkeritself noted that time in jail for a pretrial de tainee can disrupt family life and thereby be prejudicial.” Id. And the distance Jum aev was forced to spend away from his home in Philadelphia—over 1700 miles—undoubtedly exacerbated the isolation caused by his incarceration. In two instances, however, Jumaev fails to show a ne xus between his pretrial incarceration and the conditions th at he claims were oppressi ve. He contends that he experienced prejudice because (1) Denver was particularly far away from his family in Uzbekistan and (2) he had to “live[] with the knowledge th at his communications with his family and friends were monitored for an extende d period of his life, such that his private concerns ha[d] become pub lic.” Aplt. Br. at 57–58 (second alteration in original) (internal quotation marks omitt ed) (quoting Suppl. App’x (Pleadings) at 154). Neither of these arguments withsta nds scrutiny. As for the first argument, Jumaev’s theory appears to be that his pr etrial imprisonment w ould have been less burdensome vis-à-vis his sepa ration from his family in Uz bekistan had he been in Pennsylvania rather than Colorado. Yet give n that Pennsylvania is still half a world Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3232 away from Jumaev’s homeland, this proposition makes little sense. As for the second argument, Jumaev apparently references the fact that the government surveilled him while it was building its case . That surveillance, though, would have come to light regardless of whether Jumaev was incarcerated before trial. Therefore, th e fact that Jumaev learned he was surveilled bear s no relation to whether his pretrial incarceration was oppressive. We are also unpersuaded by Jum aev’s final argument concerning the oppressiveness of his pretrial incarceration. Jumaev ma intains that his pretrial incarceration was oppressive becau se “it is likely that [he] would have received a . . . shorter . . . term of impris onment” had he not been incar cerated before trial, given that “his time served was al ready near the top of his a dvisory guideline range by the time of sentencing.” Reply Br. at 24. Observing that “[t]he Supreme Court has recognized that pretrial custody can be part icularly oppressive when it involves ‘dead time’ in jails that ‘o ffer little or no recr eational or rehabilitativ e programs,’” he says that “[h]ad [he] gone to trial earlier , he likely would have spent less total time in custody that [sic] he did in pretrial custody.” Id. at 25 (quoting Barker , 407 U.S. at 532–33). 13 This in turn, he continues, “suggests that the time in custody was particularly oppressive.” Id.

13 Although Jumaev references the pr inciple that incarceration is more oppressive when it occurs in “local jails” that “lack . . . rehabilitation programs and visiting privileges,” Muhtorov , slip op. at 154, he does not specifically claim that he spent time in such a place, and the record discloses that he was incarcerated at a federal facility—the Englew ood Federal Detention Ce nter—from March 30, 2012 through his release in 2018, see, e.g. , App’x Vol. VI at 695. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3333 This argument carries no water. Jum aev cites no case th at has treated the sentence imposed post -conviction as relevant to asse ssing the constitutional validity of pre trial proceedings. And ev en supposing a defendant’s sentence can be a valid component of the speedy trial an alysis in an appropriate ca se, Jumaev fails to present a compelling argument as to w hy the sentence imposed in th is instance rendered the pretrial incarceration oppressive. Jumaev’s period of pretrial detention—76 months and 3 days—fell within the applicable sentencing guidelines range of 63 to 78 months. Suppl. App’x (Pleadings) at 145. And although, practi cally speaking, the length of that pretrial incarceration preven ted the district court from selecting a sentence on the low end of the relevant range, see id. at 158, it is not clear that, at bottom, Jumaev’s pretrial detention was the reason he received a long sentence. After all, the district court said during the sentencing heari ng that “[t]he crimes with which Mr. Jumaev has been convicted ar e undoubtedly grave and he must be sentenced accordingly”—reasoning that indi cates a sentence on the high end of the guidelines range was on the ta ble regardless of how much time Jumaev had already served. Id. at 153. In these circumstances, we cannot say that Jumaev’s sentence of time served demonstrates that his pretrial incarceration was oppressive. Notwithstanding the failu res of some of Jumaev’s arguments, on the whole, Jumaev has demonstrated prejudice due to th e nature and length of his six years of pretrial incarceration. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3434 b Jumaev has also demonstrated prejudice due to impairment of his defense. “[T]he most serious [interes t] is the ‘hindrance of the defense’ because the inability of a defendant to adequately prepare his case skews the fairness of the entire system.” Seltzer , 595 F.3d at 1179–80 (quoting United States v. Toombs , 574 F.3d 1262, 1275 (10th Cir. 2009)). “On this interest, we have held that a defendant should show ‘that the delay resulted in the lo ss of specific evidence or th e unavailability of certain witnesses.’” Frias , 893 F.3d at 1273 (quoting Hicks , 779 F.3d at 1169). Impairment of the defense also occurs when “witnesses lose their me mory of events that are critical to the theory of defense.” Margheim , 770 F.3d at 1329. To establish impairment from lost te stimony, a defendant must make three showings. First, the defenda nt must “state[] with partic ularity what . . . testimony would have been offered,” Jackson , 390 F.3d at 1265 (alterati on in original) (internal quotation marks omitted) (quoting Tranakos , 911 F.2d at 1429), and explain how the lost testimony was “material,” Margheim , 770 F.3d at 1330, or “meaningful,” Medina , 918 F.3d at 782. Second, the defe ndant must “present evidence that the delay caused the . . . unavailability.” Jackson , 390 F.3d at 1265. Third, the defendant must establish that he “t[ook] step s, when possible, to preserve testimony.” Id. “But when a defendant is not ‘on notice of the need to preserve testimony’ or has no ‘realistic opportunity to do so,’” we do no t “view the failure to preserve testimony as fatal to a claim of prejudice.” Muhtorov , slip op. at 150–51 (quoting Jackson , 390 F.3d at 1265). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3535 Jumaev tries to demonstrate prejudice due to loss of testimony in two ways: the failure of his own memory, and the unavailability of his former roommate Jakhonghir Rakhimov as a witness. He succeeds in the latter attempt, but the weight of his showing is reduced because Rakhi mov’s testimony would not have been exculpatory or central to Jumaev’s defense. We first address Jumaev’s assertion that his own reco llection suffered from the passage of time. Jumaev says that becaus e his memory failed, he was unable “to give context to the volumes of recorded conversa tions he had been a part of seven years prior to his trial.” Reply Br. at 21. And he further claims that “[ t]hese lapses in his memory were exploited by the government” at trial, used to show “that [his] explanations about his discussions with the FBI and Mr. Muhtorov were ‘neither reliable nor credible.’” Id. at 22 (emphasis omitted) (quoting App’x Vol. XVIII at 2717). We accept that Jumaev can satisfy th e second and third impairment-of-thedefense requirements with re spect to this lost testim ony. We do not doubt that Jumaev’s recollection of the re levant events faded, to atleast some degree, over the long span of time at issue. See Seltzer , 595 F.3d at 1177 n.2 (n oting “the dangers of memory loss or distortion over time”); see also Edmaiston v. Neil , 452 F.2d 494, 500 (6th Cir. 1971) (concluding that the de fendant’s “own memo ry was understandably vague with regard to events occurring ei ght and one-half years before trial”). Additionally, there is no i ndication that Jumaev had reason to know—at the outset, when his memory was still fresh—that the proceedings w ould last so long as to cause Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3636 his memory to falter, su ch that he needed to take step s to preserve his own testimony. Finally, even if Jumaev had anticipated that his memory would fail, preserving his testimony was not a realistic opt ion: it would have been impr actical for him to record every detail he could reca ll about every conversation he had ever had (1) with Muhtorov or (2) that pertained to the IJU. Accordingly, Jumaev has established that the delay here produced the loss of his te stimony and that pres ervation was neither required nor feasible. Jumaev falls short, however, in his attempt to show that the lost testimony was material. Jumaev does not assert prejudice on the grounds that his testimony would have been exculpatory. Instead, he claims that the gove rnment used his poor recollection against him “as evidence of hi s evasiveness,” undermin ing his credibility with the jury. Aplt. Br. at 55. Th e record does not bear out Jumaev’s characterization of the government’s trial arguments. True, the prosecutor who made the government’s closing statem ent contended that Jumaev “s aid plenty of things that are neither reliable nor credible.” App’ x Vol. XVIII at 2717. But she was likely referring to the fact that, by Jumaev’s ow n admission, he had lied to the FBI on multiple occasions, not to the fact that Ju maev had struggled to remember certain details when he testified. See id. at 1879, 1882–83, 1887. Fu rther, at that point in her closing, the prosecutor was not trying to cast doubt on Jumaev’s testimony. To the contrary, she was trying to convince the jury that, de spite the lies Jumaev had previously told to the FBI, incriminating statements he ma de to the FBI after he was arrested were credible. See id. at 2710–13, 2717. Jumaev t hus fails to show that the Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3737 government used his lack of recollection against him. Er go, he has not demonstrated that he was prejudiced by the loss of his own testimony. Turning to Jumaev’s argument about the unavailability of Rakhimov, we conclude that Jumaev fares better on this score. The government does not contest that the march of time rendered Rakhimov—who could not be located for Jumaev’s trial—unavailable as a witne ss. Nor does the government maintain that Jumaev had notice that he needed to attempt to preserve Rakhimov’s testimony. The sole question, then, is whether Jumaev has point ed to particular testimony from Rakhimov that would have been mate rial to Jumaev’s case. Jumaev has done so. Relying on an interview of Rakhimov conducted by the FBI, he shows that, had Rakhimov been av ailable, Rakhimov wo uld have testified that Jumaev “was a simple primitive man w ho did not understand Is lam.” Aplt. Br. at 56 (internal quotation marks om itted) (quoting App’x Vol. V at 37). And this testimony, Jumaev further explains, could have cast doubt on the government’s claim that Jumaev was serious about joini ng Muhtorov in the pursuit of religious extremism. Id. ; see App’x Vol. XVIII at 2707–09. Thus, Rakhimov’s testimony “arguably ‘would have aided [Jumaev’s] defense,’” rendering it material. Muhtorov , slip op. at 156 (quoting United States v. Trammell , 133 F.3d 1343, 1351 (10th Cir. 1998)). That said, “we do not weigh this prejudice heavily” because Rakhimov’s testimony “would not have been exculpat ory or central to the defense.” Id. at 158. Rakhimov’s testimony would not have directly contradicted the government’s theory Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3838 that Jumaev was radicalized; the jury could have determin ed that Jumaev turned to religious extremism even though he “did not understand Islam.” Moreover, the actions charged in the indictment occu rred in 2011 and 2012, while Rakhimov was Jumaev’s roommate only until 200 8. App’x Vol. V at 37. The jury, therefore, could have concluded that in the years afte r Rakhimov lived with Jumaev, Jumaev’s understanding of Islam grew. Indeed, lending support to such a conclusion, Rakhimov himself would have testified that Jumaev “was teaching himself” about Islam using “videos and . . . tapes” and by “listening to sermons from . . . Anwar Aulaqi,” a well-known cleric who had been “‘blacklisted’ by the United States.” Id. In short, even though Rakhimov’s testimony was material, it was neither exculpatory nor central to his defense. For that reas on, we do not find this prejudice substantial.
B We now turn to balancing the Barkerfactors, but give n the substantial similarities between this case and Muhtorov’s , we need not belabor the analysis. The first, second, and fourth Barkerfactors carry essentially th e same weights here that they carry in Muhtorov . In both cases, (a) the first Barker factor weighs heavily in favor of finding a constitutiona l violation because a delay of six years or more is substantial, (b) the second Barkerfactor does not weigh in favor of a violation because the government has justified the disc overy delay, and (c) the fourth factor weighs in favor of a violation due to the oppressive pretrial in carceration and the loss of a witness, though does not weigh as heavily as it would had the witness’s testimony been exculpatory or central to the defense. Muhtorov , slip op. at 158. The Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 3939 only significant difference between these case s is that for Jumaev , the third factor— assertion of the right to a speedy tria l—weighs against fi nding a violation. Muhtorov makes clear that even if the third factor tipped toward a constitutional violation, Jumaev’s claim would not succeed “given th e quantity and nature of the discovery, and the overall good faith and diligence of th e government and the district court in bringing this case to trial.” Id. at 162–63. A fortiori , with the third factor weighing against Jumaev, his spee dy trial claim fails.
III We next consider Jumaev’s discovery-sanctions claim. 14 “We review a district court’s decision to impose sanctions, and the court’s choice of sanction, for an abuse of discretion.” United States v. Golyansky , 291 F.3d 1245, 1249 (10th Cir. 2002). Jumaev maintains th at the government “violated th e court’s discovery orders in two ways.” Reply Br. at 27. First, he says that “[t]he government undoubtedly

14 In his opening brief, Jumaev appeared to raise, in addition to the argument we consider here, an argument that the government failed to timely fulfill its obligations under Brady v. Maryland

. See Aplt. Br. at 59 (“The court erred in declining to impose sufficient sanctions for the government’s repeated violations of its Brady obligations and the court’s discovery or ders.”). In his re ply brief, however, Jumaev clarifies that he does not “argu[e] a constitutional violation based on the late disclosure of Brady material.” Reply Br. at 27. Rather, he argues only “that the district court erred by declining to im pose sufficient sanctions for discovery violations.” Id. Because Jumaev has “int entionally relinquished” his Brady argument, we do not address it. Folks v. State Farm Mut. Auto. Ins. Co. , 784 F.3d 730, 737 (10th Cir. 2015) (interna l quotation marks omitted) (quoting Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1127 (10th Cir. 2011)); see also United States v. Augustine , 742 F.3d 1258, 1264 n. 1 (10th Cir. 2014) (dec lining to consider arguments that were “abandoned . . . in [the] reply brief”). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4040 disregarded the September 1, 2016, disc overy deadline imposed by the court.” Id. Yet rather than, as Jumaev argues the district cour t should have done, penalize the government for this conduct, the district court granted a nine-month continuance. See id. at 27–28; App’x Vol. XVIII at 86, 90. 15 Second, Jumaev observes that “the trial court twice sanctioned th e government for” its discove ry conduct. Reply Br. at 28 (emphasis omitted) (citing App’x Vol. VII at 406, Vol. XVIII at 82–83). The first sanction was issued after the district f ound that the government “caused the defense team to have to revisit and r eevaluate all of the discovery that had been provided to it by the Government” by waiting over four years after the initial indictment to bring two new charges against Jumaev (count 5 and count 6). App’x Vol. XVIII at 83. As remedies for the government’s conduct, the district court granted the aforementioned continuance (which served multiple functi ons), as well as entered “[a]n order of preclusion . . . prevent[ing] the Government from offeri ng any of the Count 5 and 6 evidence in its possession in its case in chief.” Id. The second sanction was issued when the district court de termined that the governme nt “disturbed the balance between the parties” by waiting to disclose potential impeachment information about a witness, Sobirov, until the morning of the witness’s deposition in Kazakhstan. App’x Vol. VII at 406. The district court corrected this imbalance by “instruct[ing]

15 Jumaev moved for this continuance b ecause he needed more time to review discovery produced by the September 1, 2016 deadline. See supra notes 10, 12. He also did so, though, because (among ot her reasons) the government produced discovery after the September 1, 2016 deadline. See id. Hence, we agree with Jumaev that the continuan ce was, in part, a means of addressing the government’s post-deadline discovery production. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4141 the jury on the information that was bela tedly disclosed by the government and not elicited during Mr. Sobirov’s deposition.” Id. The question Jumaev presents on appeal is whether the district court’s choice of remedies in these three instances was an abuse of discretion. 16 Under Rule 16(d)(2) of the Federal Rule s of Criminal Procedure, a district court has broad discretion in choosing a sa nction upon determining that a party has violated a discovery obligation. “[T]he court may: (A) or der that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a conti nuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances.” Fed. R. Crim. P. 16( d)(2). When selecting the sanction, a

16 The government contends that Jumaev “has not shown any discovery order . . . violations,” Aple. Br. at 19, a claim that appears to be premised on the fact that, although the government was sanctioned fo r its discovery conduct, it was not sanctioned for violating an order of the district court pert aining to discovery. While the government’s assertion is partially co rrect as a factual ma tter, the government offers a distinction without a difference. The government is subject to discovery obligations in a criminal case regardless of whether the di strict court issues discovery orders, and the district court’s authority to order sanctions for late compliance with discovery obligations—as well as our review of such an order—is unaffected by the source of the discovery oblig ation that was violated. See Fed. R. Crim. P. 16(d)(2) (authorizing a district court to issue sa nctions for violations of the discovery obligations imposed by Rule 16 of the Fe deral Rules of Criminal Procedure, including those obligations crea ted by a district court order issued pursuant to Rule 16(d)(1)); United States v. Burke , 571 F.3d 1048, 1054 (10t h Cir. 2009) (indicating that district courts have authority under Rule 16 to remedy bela ted disclosures that violate Brady rather than Rule 16 itself); United States v. Gonzales , 164 F.3d 1285, 1291–92 (10th Cir. 199 9) (observing that “[e]ven where Rule 16 is inapplicable, the courts have discretion to exclude evidence as a sanction for viol ation of a discovery order,” id. at 1291, and employing the same lega l standard used in Rule 16 cases). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4242 district court considers the fa ctors we first announced in United States v. Wicker , 848 F.2d 1059 (10th Cir. 1988) : “(1) the reasons the gove rnment delayed producing the requested materials, including whether ornot the government acted in bad faith when it failed to comply w ith the discovery [obligation] ; (2) the extent of prejudice to the defendant as a result of the government’s delay; and (3) the feasibility of curing the prejudice with a continuance.” Id. at 1061. “[T]hese three factors,” however, “should merely guide the district court in its consideration of sanctions; they are not intended to dictate the bounds of the court’s discretion.” Id. Although the choice of sanction is committ ed to the district court’s discretion, we have instructed that “[t] he court should impose the leas t severe sanction that will accomplish prompt and full co mpliance with” the violated discovery requirement. Gonzales , 164 F.3d at 1292. “The preferre d sanction is a continuance.” Golyansky , 291 F.3d at 1249. “It would be a rare case where, absent bad faith, a district court should exclude evidence rather than continue the proceedings.” Id. Here, “the government acte d diligently and without bad faith or negligence.” Muhtorov , slip op. at 118. 17 Accordingly, to establish th at the district court abused

17 This observation from Muhtorov concerns the overall pace of discovery, and thus applies here only to the government’s failure to complete discovery by the September 1, 2016 deadline. But we similarly find no evidence of bad faith concerning the filing of the third superseding indictment and the delayed disclosure of potential impeachment information abou t Sobirov. Jumaev points to only one possible instance of bad faith related to eith er of these events: th at in response to Jumaev’s motion to have Sobirov—an im migrant who had left the country after serving as a confidential human source fo r the government—paroled into the United States to testify at Jumaev’s trial, the government asserted that the motion should be denied “because there was no way of kn owing whether [Sobi rov] would leave Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4343 its discretion by declining to impose more severe sanctions, Jumaev must demonstrate (1) prejudice to hi s defense (2) that the distri ct court’s sanctions did not

cure. See Golyansky , 291 F.3d at 1249. 18 Jumaev fails to ma ke such a showing. We start with prejudice. Jumaev conte nds that “[t]he prej udice [he] suffered was, primarily, the extrem e delay” caused by the bela ted discovery productions. Aplt. Br. at 64. He does not claim that this delay caused “prejudice as it relates to guilt or innocence.” Reply Br. at 28. Bu t, pointing to a Sixth Amendment speedy trial case, he says that “prejudice can come in the form of delay itself.” Id. (citing Doggett , 505 U.S. at 657). Jumaev’s attempt to show that delay itself c onstitutes prejudice comes up short. Although Jumaev is correct that delay itself can be prejudicial for purposes of

willingly after the trial.” App’x Vol. VII at 405; see Aplt. Br. at 62, 64. The district court determined that “[t]hi s representation by the governme nt was not forthright and bordered on deceitful,” given that the government “had previously granted Mr. Sobirov deferred action and Significant Public Benefit Parole so that he could remain in the U.S.” App’x Vol. VII at 405. While the government’s misrepresentation is troubling, in th is appeal Jumaev does not take issue with the fact that Sobirov was unavailable to testify at Jumaev’s trial. And critically, Jumaev never explains how the gove rnment’s lack of candor in opposing his motion to have S obirov paroled into the United States demonstrates that the timing of its disclosure of potential impeachment in formation about Sobirov was the product of bad faith. Indeed, any c onnection between the motion and the delayed disclosure is tenuous at bestgiven that, a month before Sobirov’s deposition, the government dropped its opposition to permitting Sobirov to enter the United States to testify. See id. at 332. Jumaev thus has not establ ished that the discovery violations at issue were the product of bad faith.
18 We have also indicated that, absent prejudice, a district court may suppress evidence that did not comply with discovery orders when doing so is necessary “to maintain the integrity and schedule of the court.” Wicker , 848 F.2d at 1061. Jumaev does not argue that such circumstan ces were presented in this case. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4444 a constitutional speedy trial claim, see, e.g. , Frias , 893 F.3d at 1272 (noting that when assessing the first Barker factor, delay “is presump tively prejudicial” if it “‘approach[es] one year’” (quoting Batie , 433 F.3d at 1290)), “prejudice” means different things in differen t legal contexts. For instan ce, even in the speedy trial context, the prejudice analys is differs depending on which Barkerfactor is under consideration. See Muhtorov , slip op. at 148 n.81. So too, the Wickerprejudice analysis is its own inquiry. Specifically, when applying the Wickerprejudice factor, we ask whether “the delay im pacted the defendant’s ability to prepare or present its

case .” Golyansky , 291 F.3d at 1250 (emphasis added). Delay, therefore, is relevant to assessing prejudice under Wickeronly to the extent th at delay impaired the defendant’s ability to mount his defense. Jumaev makes no effort to show such impairment here. As discussed supra in section II.A.4.b., Jumaev argues as part of his speedy trial claim th at the time his case took to get to trial (1) impaired his ability to reca ll important details when he testified and (2) rendered a witness who would ha ve testified on his behalf, Rakhimov, unavailable. But Jumaev does not presen t these arguments in support of this discovery-sanctions claim. Nor is it clear that he coul d have made such arguments here—the delay at issue for this discovery-violation claim is not the entire pretrial period, but just the time from the Sept ember 1, 2016 discovery deadline until the government made its final pr oduction to Jumaev in Febr uary 2018. Consequently, Jumaev has not demonstr ated that he suffered Wickerprejudice due to delay. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4545 This is not to say that Ju maev suffered no prejudice. To the contrary, the late discovery productions and the belated s uperseding indictmentcaused Jumaev’s defense team to need more time to prepare for trial. See Golyansky , 291 F.3d at 1250 (explaining that late productio ns can cause “unfair surpri se”). And the last-minute disclosure of potential impeachment inform ation about Sobirov prevented Jumaev’s defense team from being able to effectiv ely use that information during Sobirov’s deposition. But it is only these harms—not “delay itself”—that the district court’s orders needed to address. With these harms in mind, we turn to whether the district court’s sanctions cured the prejudice to Jumaev’s defense, a nd we conclude that the district court crafted adequate remedies. Fi rst, to ensure that Jumaev’s defense team was able to review discovery materials produced after September 1, 2016, as well as to make up for time that Jumaev’s defens e team had spent revisiting ev idence after the filing of the third superseding indictment, the district court granted a continuance. App’x Vol. XVIII at 86, 90. Second, to prevent the late-filed charges from creating further additional work for the defense team, the district court forbade the government from using any evidence associated with counts 5 and 6 in its case in chie f, even in support of the other counts. Id. at 83–84. 19 Third, to make up for the defense team’s inability

19 Prohibiting the use of such evidence in support of the othe r counts is what gave this part of the distri ct court’s order its teeth, as by the time the court was ready to rule on this discovery issue, the gove rnment had voluntarily dismissed counts 5 and 6. See App’x Vol. XVIII at 83. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4646 to use potential impeachment evidence during Sobirov’s deposition in Kazakhstan, the district court “instruc t[ed] the jury on the inform ation that was belatedly disclosed by the government and not elic ited during Mr. Sobirov’s deposition.” Id. Vol. VII at 406. These orders redre ssed the prejudice cause d by the government’s delays and in turn were a proper exerci se of the district court’s discretion. Focusing on the continuance remedy, Ju maev protests that the continuance actually “made [things] worse” because by th at point he had already suffered through years of pretrial delays. Aplt . Br. at 64. In this respec t, Jumaev is correct that a district court must keep a defendant’s right to a speedy trial in mind when determining whether a continuance is an appropriate sanction for a discovery violation. See United States v. Yepa , 608 F. App’x 672, 680 (10th Cir. 2015) (unpublished) (determining that the distri ct court acted within its discretion in deciding that a continuance was not a feas ible sanction because a continuance would have “inequitably extend[ed] [the de fendant’s] pretrial incarceration”); United States v. Ivory , 131 F. App’x 628, 631 (10t h Cir. 2005) (unpublished) (upholding the district court’s decision to order a continuance as a discovery sanction when doing so “would solve the problem with re spect to [the defendant] without impairing his speedy trial rights” (emphasis added)). 20 But here, for the reasons stated supra in section II,

20 Unpublished cases cited in this opi nion are not binding precedent, but we consider them for thei r persuasive value. See Fed. R. App. P. 32 .1(a); 10th Cir. R. 32.1(A), (C). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4747 Jumaev’s speedy trial right was not violated . It follows, then, that Jumaev’s speedy trial right did not render a continuance an inappropriate sanction in this instance. To summarize, although the slow pace of discovery, the late-filed charges, and a last-minute disclosure of potential imp eachment information ca used Jumaev some prejudice, the district court’ s orders were sufficiently curative. The remedy that Jumaev most strongly objects to—the conti nuance—was not only within the district court’s discretion to order, but is generally the prefer red method for dealing with discovery violations. Accord ingly, Jumaev’s challenge to the district court’s choice of discovery sanctions fails.
IV Finally, we turn to Jumaev’s clai m that the eviden ce obtained from the execution of extraterritorial search warrants for his hom e, cellular phone, and laptop computer should have been suppressed. In considering Jumaev’s challenge to the district court’s denial of his suppression motion, we re view the district court’s legal determinations de novo and its factual findings for clear error, viewing the evidence in the light most favorab le to the government. United States v. Trujillo , 993 F.3d 859, 864 (10th Cir. 2021). The search warrants at issu e were authorized by a fe deral magistrate judge, a federal judicial officer whose power to issu e warrants is geographi cally constrained. As relevant here, Federal Rule of Crimin al Procedure 41 “gener ally limits a federal magistrate judge’s warrant-issu ing authority to the districtwhere he or she sits.” United States v. Krueger , 809 F.3d 1109, 1110–11 (10th Cir. 2015); see Fed. R. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4848 Crim. P. 41(b)(1) (“[A] magistrate judge w ith authority in the district . . . has authority to issue a warrant to search for and seize a person or property located within the district . . . .”). 21 This general limitation, however, is subject to exceptions. See 28 U.S.C. § 636(a) (indicating that a federal magistrate judge has powers outside of “the district in which” he or she sits “as au thorized by law”). Here, the government invoke s the exception found in Fe deral Rule of Criminal Procedure 41(b)(3), which provides that “a magistrate judge—in an investigation of domestic terrorism or internat ional terrorism—with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district.” Fed. R. Crim. P. 41(b)(3); see also Uniting and Strengthening Ameri ca by Providing Appropriate Tools Required to Intercept and Obstruct Terro rism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 219, 115 Stat. 272, 291 (inserting Rule 41(b)(3) into the Federal Rules of Criminal Procedure). Be cause Federal Rule of Criminal Procedure 41(b) is entitled “Venue for a Warrant A pplication,” we refer to Rule 41(b)(3)’s requirement that there be a connection between the magistrate judge ’s district and the terrorism activities under investiga tion as a “venue requirement.” Jumaev does not dispute that the inve stigation into his conspiracy with Muhtorov to provide material support to the IJU was an i nvestigation of domestic or

21 There are also statutory limits on a magistrate judge’s authority. See 28 U.S.C. § 636(a); see also Krueger , 809 F.3d at 1117–18 (Gorsuch, J., concurring in the judgment) (emphasizing the im portance of these statutory limits). Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 4949 international terrorism sufficient to trigger Rule 41(b)(3). Nor does he contest that “activities related to the te rrorism” occurred within the District of Colorado, the judicial district in which the magistrate j udge who issued the warrants sat. Instead, his argument is a procedural one concer ning the sufficiency of the warrant application materials that were s ubmitted to the magistrate judge. See Aplt. Br. at 68. He contends that the material s “were deficient because they failed to attest to a single fact showing any connection to Colorado.” Id. Due to this alleged failure to “present[] information to the magistrate demonstrati ng that she had statutory authority to issue the warrants,” Reply Br. at 29, Jumaev argues that the magistrate judge’s issuance of the warrants violated Rule 41, and that in turn the evidence obtained via those warrant s must be suppressed, see Aplt. Br. at 68–69. 22 Jumaev’s argument founders because it is not supported by the text of Rule 41. No provision of Rule 41 mandates that an application for a Rule 41(b)(3) warrant

22 We assess whether a Rule 41 viol ation justifies suppression using the analytical framework this court adopted in United States v. Pennington , 635 F.2d 1387 (10th Cir. 1980). “Under this framew ork, we begin by considering whether Rule 41 was in fact violated.” Krueger , 809 F.3d at 1113. “If so, we typically proceed by determining whethe r that specific Rule 41 viola tion rises to the level of a Fourth Amendment violation.” Id. “If we determine that the Rule 41 violation is not of constitutional import, we then consider wh ether the defendant can establish that, as a result of the Rule violation, ‘(1) there wa s “prejudice” in the se nse that the search might not have occurred or wo uld not have been so abrasi ve if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.’” Id. at 1114 (quoting Pennington , 635 F.2d at 1390). Because we conclude that Ru le 41 was not violated, we resolve this case at the first step of the Pennington analysis. Further, for the same reason, we do not address the government’s alternative argument that the good faith exception to the exclusionary rule applies. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 5050 address 41(b)(3)’s venue requirement. Th e only reference to the 41(b)(3) venue requirement is found in Rule 41(b) itself, a part of Rule 41 that other circuits have recognized “is a substantive provision,” not one that “detail[s] the procedures for obtaining and issu ing warrants.” United States v. Berkos , 543 F.3d 392, 397–98 (7th Cir. 2008) (emphasis omitted); see also United States v. Ackies , 918 F.3d 190, 201 (1st Cir. 2019) (adopting the Seventh Circuit’s view). By contrast, the part of Rule 41 that does speak to the proce dure for obtaining a search-and-seizure warrant—Rule 41(d)—points to just one thi ng that must be shown in a search-andseizure warrant’s application materials: “probable cause to search for and seize a person or property.” Fed. R. Crim. P. 41(d)(1) (“After rece iving an affidavit or other information, a magistrate judge . . . must issue the warrant if there is probable cause to search for and seize a person or property . . . .” (emphasis added )). Given that this is the only application requirement identif ied in the rule, it follows that an application’s omission of information pertai ning to the 41(b)(3) venue requirement is not a Rule 41 violation. “After all, ‘common sens e, reflected in the canon expressio unius est exclusio alterius , suggests that the specific ation of [one requirement] implies’ the exclusion of others.” Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla. , 693 F.3d 1303, 1312 (10th Cir. 2012) (Gorsuch, J.) (brackets omitted) (quoting Arizona v. United States , 567 U.S. 387, 432 (2012) (Scalia, J., concurring in part and dissenting in part)); see also Keene Corp. v. United States , 508 U.S. 200, Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 5151 208 (1993) (noting that cour ts have a “duty to refrain from reading a phrase into [a] statute when Congress has left it out”). 23 Although we determine that Rule 41 does not obligate the government to address the 41(b)(3) venue requirement in its warrant applicati on materials, we do not go so far today as to hold that a magist rate judge may issue an extraterritorial warrant pursuant to Rule 41(b)(3) without having any basis for concluding that activities related to the te rrorism under investigation may have occurred in her district, so long as the govern ment could have showed su ch a connection at the time the warrant was issued. We need not decide that question, because in this case the magistrate judge was given the information she needed to determine that relevant terrorism activities had occu rred in Colorado. To star t, the warrant application materials here may have been enough on th eir own to allow the magistrate judge to discern the Colorado connection, for in support of the warrant applications the government submitted an affidavit that deta iled at length Jumaev’s interactions with Muhtorov, and Muhtorov had al ready been indicted on a terrorism charge in the District of Colorado. See App’x Vol. I at 217, Vol. VI at 52–70. But even if the application materials themselves failed to establish the li nk to Colorado, the government provided more: it also filed a criminal complaint ag ainst Jumaev that alleged he had “conspire [d]” “with others” “ in the county of Denver in the State and

23 Rule 41 also lays down requirements as to what must be in a warrant. See Fed. R. Crim. P. 41(e)(2) (“Contents of the Warrant”). Again, information about venue is not among t hose requirements. See id. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 5252 District of Colorado .” Id. Vol. VI at 50–51 (empha sis added). The warrant applications, the affidavit, and the criminal complaint we re clearly intended to be considered as a single packag e; in fact, the affidavit pulled double duty, expressly supporting both the warrant appli cations and the complaint. Id. at 52. And together, these submissions allowed the magistrate judge to discern that at least some of the numerous terrorism-related act ivities described in the affidavit had occurred in Colorado. No more was necessary. Jumaev argues that this analysis confli cts with the Supreme Court’s decision in Whiteley v. Warden , 401 U.S. 560 (1971). There, th e Court held that “an otherwise insufficient affidavit cannot be rehabilita ted by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate,” because “[a] cont rary rule would . . . render the warrant requirements of the Fourth Amendment meaningless.” Id. at 565 n.8. Extending this logic, Jumaev contends that to permit the government to re ly on a criminal complaint to help satisfy the 41(b)(3) venue requirement would be to sanction the very type of “rehabilitation” that Whiteley forbids. See Reply Br. at 31–32. Jumaev’s reliance on Whiteley misses the mark. The government here did not try to supplement its warrant affidavit after re alizing that the affida vit was deficient. Rather, the government submitted the co mplaint that referenced Colorado alongside the affidavit and the a pplications. Further, Whiteley concerned the probable-cause requirement imposed by the Fourth Amendment, see 401 U.S. at 564–65, not a venue Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 5353 requirement listed in a rule of procedure. Whiteley , therefore, is easily distinguished from the case at hand. Jumaev nevertheless insists that the “reasoning behind” Whiteley is “in play here.” Reply Br. at 31–32. He says that “the magistrate must be informed of some of the underlying circumstances”; “otherwise, th e inferences from th e facts which lead to the complaint will be drawn not by a neutral and detached magistrate, as the Constitution requires, but instead, by a police officer engaged in the often competitive enterprise of ferreting out crime.” Id. at 32 (brackets and internal quotation marks omitted) (quoting Aguilar v. Texas , 378 U.S. 108, 11 4–15 (1964)). Jumaev again ignores that this reasoning concerned the process by which the government establishes probable cause —something that the Constitution identifies as essential to the issuance of a warrant. See U.S. Const. amend. IV (“[N]o Warrants shall issue, but upon probable cause, supported by Oath or af firmation . . . .”). The process a magistrate judge mu st use to determine that the government has satisfied a venue provision found in rules of criminal procedure, by contrast , is a subject about which the Fourth Amendment has nothing to say. Whiteley ’s reasoning thus has no application in this case. In sum, no provision of Rule 41 de mands that Rule 41(b)(3)’s venue requirement be addressed in the warrant application mate rials. And even assuming without deciding that a magistrate judge must have a basis fo r concluding that Rule 41(b)(3)’s venue requirement is satisf ied before issuing a 41(b)(3) warrant, we conclude that the magistrate judge had such a basis here. Thus, the extraterritorial Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 5454 search warrants for Jum aev’s home, cellular phone, a nd laptop computer did not violate Rule 41.
V For the foregoing reasons, we AFFIRM Ju maev’s convictions and the district court’s judgment. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 551 18-1296, United States v. Jumaev LUCERO , Senior Judge, dissenting. For the reasons stated in my dissent in the companion case of co-defendant Jamshid Muhtorov, I respectfully dissent from the decision not to vacate Bakhtiyor Jumaev’s conviction for want of a speedy trial. 1 See United States v. Muhtorov, No. 18- 1366, slip op. at 1-24 (10th Cir. Dec. 8, 2021) (Lucero, Senior J., dissenting) (hereinafter “Muhtorov dissent”). I incorporate that disse nt in its entirety herein. The excessive governmental delay in res ponding to timely discovery re quests made by defendant Bakhtiyor Jumaev is even mo re compelling because the go vernment waited to provide discovery information long inits possession until the eve of Jumaev’s first scheduled trial. This caused an additio nal delay of one year. Such delay is attributable to the government under the Barker factors discussed in my earlier dissent. Barker v. Wingo, 407 U.S. 514 (1972). As in that dissent, th e government has faile d to show that the delays resulting from its discre tionary decisions were necessary. See United States v. Seltzer, 595 F.3d 1170, 1178 (10th Cir. 2010).
I Jumaev was indicted for conspiring with Muhtorov to provide material support to a designated terrorist organizatio n and for knowingly providing such support. From their indictments in 2012 to the severing of th eir cases on November 29, 2016, Jumaev and

1 Jumaev also contends that the district court abused its disc retion by declining to severely sanction the government for its discove ry violations and that the extraterritorial search warrants issued in his case violated Rule 41. (Op. at 2.) Because I would vacate his conviction on the basis of a speedy trial violation, I do not address these contentions. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 562 Muhtorov were fused together as defendants in a joint trial. As a result, the government’s decisions on § 702 notice, disc overy production, and CIPA pr ocedures directly affected both defendants, because absent severance, one could not go to trial without the other. Adding to their conjoined destiny, the evid ence against Jumaev was directly derived from the traditional FISA surveillance of Muhtorov , itself a product of the § 702 surveillance of Muhtorov, making the legality of its collection a relevant issu e in Jumaev’s case. The unwarranted delays caused by the go vernment that are described in the Muhtorov dissent—the delay in th e provision of the § 702 notic e, the delay in meaningful discovery production, and the failure to begin the CIPA § 4 evaluation until after November 19, 2015—are present in full meas ure in Jumaev’s case, as are the delays resulting from the government’s d ecisions not to clear counsel, its failure to adequately resource translation services, its seeking of a third superseding indictment in May 2016, and its chosen CIPA procedures. I weigh the government’s conduct heavily against it under the second factor of Barker to concl ude that Muhtorov’s right to a speedy trial was violated. 2 See Muhtorov dissent, at 4-23. Perforc e, the same conclusion that I drew with

2 For Jumaev, my colleagues de termine that “the first, second, and fourth Barker factors carry essentially the same weights here that they carry in Muhtorov.” (Op. at 38.) In other words, for them, the length of the delay weighs heavily in favor of a constitutional violation and the prejudice aris ing from this delay weighs in Jumaev’s favor, but the decisive second factor—the re ason for the delay—weighs against him. (Op. at 38-39.) As I did in Muhtorov, I would also weigh the prejudice factor more heavily in Jumaev’s favor. In evaluating this factor we must “recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Doggett v. United States, 505 U.S. 647, 655 (1992). This presumption of prejudice “cannot al one carry a Sixth Amendment claim without regard to the other Barker criteria, [but] it is part of the mix of relevant facts, and its Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 573 respect to Muhtorov is applicable here. Further, my colleagues in the majority conducted a rigid and formalistic Barker an alysis and fault Jumaev for no t filing a pro se speedy trial motion separate and apart from those filed by his counsel.
II Jumaev was incarceratedfor six years as he awaited trial, hostage to the same series of inexplicable—or at least unexpla ined—government decisions I described in depth in the Muhtorov dissent. See id. Exac erbating the unwarranted delay described in the Muhtorov dissent, eleventh-hour discovery production by the gove rnment caused an additional year’s delay in Jumaev’s trial from March 2017 to March 2018 3 while he “languish[ed] in confinement under unresolved charges.” Betterman v. Montana, 136 S. Ct. 1609, 1614 (2016). The cont ext of Jumaev’s motion for a sp eedy trial is telling. In late February 2017, just two weeks before the scheduled trial date and after years of futilely filing motions to compel discovery, Jumaev so ught dismissal of the charges because of the government’s belated disclosure of a substantial porti on of Brady and Rule 41 material that included 29 tria l exhibits it produced for the fi rst time shortly before trial.

importance increases withthe length of delay.” Id. at656 (citation omitted and emphasis added).

3 Although the initial continuance granted af ter the district court denied Jumaev’s requested remedy of dismissal was for ten months until January 2018, the trial was delayed for an additional two months until Marc h 2018 due to the di strict court judge’s illness. But for the government-caused delay, the trial would have begun in March 2017, therefore I would attribute the entire additio nal year’s delay to the government. See United States v. Carini, 56 2 F.2d 144, 149 (2d Cir. 1977) (illnesses of judges are institutional delays properly ch argeable to the government). As the record makes clear, replacement of the trial judge during his treatm ent would have delayed the trial longer as the available replacement would have require d time to become familiar with the case. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 584 This late production of evidence—evidenc e that had been in the custody of the government since the time of Jumaev’s arrest or before—made it impossible for his counsel to be prepared for th e trial that was scheduled to begin on March 13, 2017. For Jumaev, this eve-of-trial production of co nstitutionally-required ev idence necessitated dismissal for violation of a speedy trial because, as his counsel argued, counsel would be forced to provide ineffective assistance if the trial proceeded. His first speedy trial motion was filed to oppose the unwarranted a dditional delay staring Jumaev in the face— delay directly caused by the unexplained late production of evidence in the possession of the government for more than five years. 4 Jumaev, like Muhtorov, was not required to trade one constitutional right for another; the Constitution protects both. Muhtorov dissent, at 17-18. Because the governmental delays described in the Muhtorov dissent were exacerbated for Jumaev, wh ose scheduled trial was continued as a direct result of the government’s eleventh-hour production of discovery material it long had in its possession, the second Barker factor weighs ev en more heavily in Jumaev’s favor than it did for Muhtorov.

4 Jumaev’s March 2017 motion was filed only after his speedy trial motion was denied, a decision which the district court recognized forced hi s counsel to seek a continuance or go to trial and provide ine ffective assistance. For Jumaev, the March 2017 speedy trial motion was filed to avoi d the additional delay necessitated by the government’s late produc tion of discovery, including disclo sure of trial exhibits on the eve of trial; it was not filed “after the delay has already occurred.” (Op. at 26 (quotation omitted).) The record is clear that absent the government ’s late disclosures, Jumaev was ready to proceed to trial inMarch 2017. Late productio n of constitutionally required discovery by the government cont inued until the eve of the Marc h 2018 trial. (See Op. at 14 n.6.) Counsel for Jumaev argued below that these late disclosures included unclassified evidence lo ng in the possession of the government that was not required to be analyzed under CIPA. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 595 III The third Barker factor—assertion of th e speedy trial right—similarly supports Jumaev’s claim. The majority comes to th e opposite conclusionbecause (1) Jumaev neither augmented his counseled motions with pro se filings nor (2) filed his speedy trial motions as early as did Muhtorov. The Bark er analysis conducted by my colleagues is not faithful to the requirements of that case. Barker requires that its balancing test weigh “the conduct of both the prosecuti on and the defendant.” 407 U.S. at 530. Rather than carrying out this ad hoc and contextual anal ysis, the majority instead conducts a highly rigid and formulistic evaluation of whether Juma ev asserted his right to a speedy trial. See id. at 522 (“[A]ny inquiry into a speedy tr ial claim necessitates a functional analysis of the right in the particular c ontext of the case . . . .”). My research fails to disclose any cases or authorities that hold that a counseled defendant must file pro se motions for deni al of a speedy trial separate and apart from those of his counsel. My colleagues fail to enlighten me further on that point. To the extent that the majority creates a new preced ent for this circuit compelling defendants to file pro se motions separate and apart from those of their coun sel in order to assert speedy trial rights or implies that such filings give gr eater weight to an asse rtion of the right to a speedy trial, I am compelled to separate my self from this jurisprudentially problematic proposition. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 606 Although Barker’s third factor requires us to consider the two additional pro se motions for a speedy trial filed by Muhtorov, 5 it is obvious that we cannot require counseled defendants to file pro se motions in order for Barker’s assertion-of-the-right factor to weigh in their favor. To say it another way, although we must consider Muhtorov’s pro se motions whenevaluating whether he assert ed his speedy trial right, we cannot penalize Jumaev in comparison. 6 My colleagues so pe nalize Jumaev by faulting him for not augmenting the motions filed by his counsel with pro se motions. (Op. at 19- 20.) The majority appears to tip this factor in favor of Muhtorov because his two pro se motions expressed frustration with the delay. Yet Jumaev did not accede happily to the delays in bringing his case to trial. The tw o speedy trial motions filed by his counsel, which exhaustively detail his persistent and diligent efforts to access the discovery to which he was constitutionally entitled and to move the case to trial, are equally expressive of his frustration, and additiona l pro se motions were not necessary. Although my colleagues acknowl edge that Jumaev “objected to the slow pace of the government’s discovery efforts throughout the proceedings,” (Op. at 22), they give

5 Appellate review of Muhtorov’s pro se motions is problematic because the motions were, permissibly, not accepted by the district court. See generally United States v. Dunbar, 718 F.3d 1268, 1278 (10th Cir. 2013) (“Defendant ha[s] no right to submit motions other than through hi s attorney.”); United States v. Bennett, 539 F.2d 45, 49 (10th Cir. 1976) (“[P]ermission for [hybrid representation is] recognized as being discretionary with the trial court.”).

6 Both Muhtorov and Jumaev filed tw o counseled motions for a speedy trial violation; the sole difference in the number of speedy trial motions are the two pro se motions filed by Muhtorov. I conclude th at both Muhtorov and Jumaev sufficiently asserted their right to a speedy trial, and disa gree that this factor weighs against Jumaev. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 617 him little credit for these effo rts, and instead focus myopi cally on measuring the time between the filing and the scheduled trial dates. 7 This type of formulistic, truncated

7 My colleagues in the majo rity fault Jumaev for jo ining Muhtorov’s motion to suppress § 702-derived evidence. They assert that Jumaev “knew that his chances of prevailing on the motion were cl ose to zero,” in part becaus e the “government informed Jumaev two months before he joined Muhtorov’s motion that he was not an ‘aggrieved person’ as to the Section 702 acquisitions at issue,” and therefore, Jumaev’s decision to join the motion demonstrates that he was not actually eager to go to trial. (Op. at 22-23.) Problems abound with this anal ysis. First, the government’s assertion that Jumaev was not an “aggrieved person” entitled to noti ce is an unsettled question of statutory interpretation that, although not presently contested in this appeal, was open to good faith challenge by Jumaev below. Second, contrary to the majority’s assertion, the belated government assurances that Jumaev was not an “aggrieved person” were far from unequivocal, requiring several defense motions to gain a clear articulation of the government’s position. Third, in accordance with the government’s decision to try them jointly, Jumaev and Muhtorov remained as co-defendants in a single trial until the November 2016 severance. Therefore, Ju maev’s decision to jo in Muhtorov’s second suppression motion in 2014 di d not evidence Jumaev’s lack of eagerness to go to trial because, regardless of whether he joined the motion, he c ould not progress toward trial until the motion was decided in November 20 15, which was more th an a year before severance. Finally, as recogn ized by the district court, th e government’s interpretation that Jumaev was not an “aggrieved person ” under the statute does not resolve the constitutional derivative evidence inquiry or his facial cha llenge to the constitutionality of § 702 surveillance. The majority asserts that “the district c ourt corroborated this claim [that Jumaev’s chances of success on the motion to suppress were close to zero] . . . at a hearing that took place when the joint moti on was pending.” (Op. at 22 .) In doing so, the majority once again ignores contex t—at this June 2015 hearing, the district court told the parties “what he was going to do, and what it means” in regard to the defendants’ motion to suppress § 702 evidence. Far from evidencing a foregone conclusion that Jumaev’s “chances of prevailing on the mo tion were close to zero,” id ., it instead was a preliminary ruling on that very question. Given that th e evidence used against Jumaev was derived from § 702 surveillance, albeit one step re moved from that of Muhtorov, Jumaev’s decision to join in Muhtor ov’s motion to suppress evidence derived from § 702 surveillance was far from a bad faith attempt to delay the trial. To the extent that additional delay resulted from this decision, wh ich it did not given that the cases were not severed until a year after the motion to suppr ess was decided, it should not be weighed heavily against Jumaev. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 628 analysis was rejected by the Supreme Court as “insensitive to a right which we have deemed fundamental.” Barker, 407 U.S. at 5 29-30. Barker requires “a balancing test, in which the conduct of both th e prosecution and the defendant are weighed.” Id. at 530. Our analysis must decide “whether the de fendant’s behavior dur ing the course of litigation evidences a desire to go to trial withdispatch.” United States v. Batie, 433 F.3d 1287, 1291 (10th Cir. 2006). When I weigh th e conduct of both parties as required by Barker, I cannot conclude that Jumaev did not sufficiently assert his right to a speedy trial. In the initial years of Jumaev’s incarcerat ion, the government repeatedly assured him that discovery would be forthcoming. InMay 2012, it asserted that discovery would be provided in June 2012. When that did not ensue, in October 2012, the government asserted that the required discovery (which included the requested defendants’ statements and Brady material) woul d be provided by June 2013. Very little was provided, with no discovery provided between September 2014 and April 20 15. In March 2016, the government resisted defense efforts to compel discovery and a trial date. The defendants

My colleagues contend that Jumaev acknowle dges that “the case against [him] had virtually nothing to do with FISA,” cherry picking this purported admission from his reply brief. (Op. at 23 (citing Reply Br. at 13 ).) To the contrary, in his reply Jumaev was pointing out the contradiction in the governme nt’s simultaneous assertion that FISA and CIPA did not apply to him and its insistence that FISA and CIPA still limited its ability to comply with its discovery ob ligations. My colleagues further question my failure to explain why Jumaev could not ha ve moved for severance earlie r. (Op. at 23 n.9.) The more appropriate question is how he was to assess this decision without notice of the involvement of § 702 evidence in the case against him fo r more than 23 months, or any meaningful discovery until Sept ember 2016. His inability to evaluate this decision was caused by the government’s obfuscation of the source of its ev idence against him until after October 2013. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 639 requested a discovery cut-off of July 1, 2016 to facilitate progress to trial, but the government pushed the date back to September 1, 2016. The filing of the Third Superseding Indictment by the government inMay 2016 “mandated” an additional trial delay. Finally, as discussed above, belated discovery following the court-imposed discovery cut-off resulted in an additional year’s delay in trial. Unlike Batie, Jumaev did not seek continuances. He waited on the government to fulfill its responsibilities, diligently and persistently fili ng discovery motions that were not met in a timely fashion. If this is the conduct I am weighing, the balance easily comes down on Jumaev’s side of the scale. The majority also ignores th at, after severance, Jumaev was required to proceed to trial first, before Muhtorov. Simply comp aring the time between filing of their first counseled speedy trial motions and Muhtorov and Jumaev’s respective trial dates ignores the shorter practical window between the No vember 29, 2016 severance and the first scheduled trial date on March 13, 2017 availa ble for Jumaev to assert his speedy trial right. It similarly ignores that Jumaev’s first motion to dismiss on speedy trial grounds was not filed to take advantag e of delay that had already oc curred. (Op. at 25-27.) Although significant, and in my mind unexplained, delay ha d already occurred, this motion was instead filed because the governme nt’s continued discov ery delays and late production had necessitated a nother year’s delay in add ition to the years-long delay already caused by the government. Jumaev’s second motion to dismiss for a speedy trial violation highlighted the late production of requi red discovery that continued throughout this additional year of delay. The majority agrees that “discovery was not completed Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 6410 until February 2018, maki ng an earlier trial impo ssible.” (Op. at 15 n.6.) Such continued late production of constitutiona lly required discovery raises significant questions about the readiness of the government to have gone to trial in March 2017, and failure to meet its discovery obligations does not show “necessity” for the delay under Seltzer. My colleagues view the motions filed by Juma ev as not timely. (Op. at 19.) But Jumaev had been eager to proceed to tria l in March 2017 before the government’s eleventh-hour disclosure that required the additional delay in trial. Far from being untimely, Jumaev’s motions re present the culmination of ye ars of conduct seeking to proceed to trial. When I a ssess Jumaev’s conduct during the course of the litigation, his persistent motions seeking th e disclosure he had requeste d and was constitutionally due does not show a defendant “who moves for dismissal on speedy trial grounds when his other conduct indicates a contrary desire.” United States v. Tranakos, 911 F.2d 1422, 1429 (10th Cir. 1990). As a result, I would weigh Barker’s third assertion-of-the-right factor heavily in Jumaev’s favor.
IV For the reasons described herein and in the Muhtorov dissent, I weigh all four Barker factors heavily in favor of Jumaev and conclude hi s conviction must be vacated for want of a speedy trial. Any other result w ould “not [be] consistent with the interests of defendants, society, or the Constitu tion.” Barker, 407 U.S. at 528. Appellate Case: 18-1296 Document: 010110617734 Date Filed: 12/10/2021 Page: 65