UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4973

BENNET CHIKA ABOH, a/k/a Chika,

a/k/a JB,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-92-260-WN)

Submitted: January 20, 1998

Decided: April 22, 1998

Before WIDENER and WILKINS, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William B. Purpura, Jeanne Canal, Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Christine Manuelian, Assistant United States Attorney, Baltimore, Maryland, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Bennet Chika Aboh appeals from his convictions for conspiracy to

distribute and possession with intent to distribute heroin, distribution

of heroin, and aiding and abetting, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (1994), and 18 U.S.C. § 2 (1994). Aboh contends

that his right to a speedy trial was violated. Finding no error, we

affirm.

Aboh was convicted on August 13, 1993, and was sentenced to

three concurrent 121-month sentences. Aboh and his codefendant,

Romanus Nwaneri, appealed. This Court, finding that the district

court gave an improper jury instruction, reversed their convictions

and remanded for a new trial. The appellate mandate remanding the

case issued on February 8, 1996. Aboh's retrial began on October 16,

1996, and he orally moved to dismiss the indictment, arguing a violation of the Speedy Trial Act. The district court denied the motion. On

October 28, 1996, Aboh was convicted of the same offenses and

received the same sentence as in the first trial.

We review the legal conclusions of the district court's interpretation of the Speedy Trial Act de novo and review the factual findings

for clear error. United States v. Stoudenmire , 74 F.3d 60, 63 (4th Cir.

1996).

The Speedy Trial Act requires that if a defendant is to be tried

again following an appeal:

[T]he trial shall commence within seventy days from the

date the action occasioning the retrial becomes final, except

that the court retrying the case may extend the period for

retrial not to exceed one hundred and eighty days from the

date the action occasioning the retrial becomes final if

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unavailability of witnesses or other factors resulting from

passage of time shall make trial within seventy days impractical.

18 U.S.C. § 3161(e) (1994). The Act excludes from the computation

period, among other things: delay resulting from any pretrial motion,

from the filing of the motion through the disposition of such motion;

delay resulting from transportation of the defendant; delay resulting

from the absence of or unavailability of an essential witness; and any

period of delay resulting from a continuance by a judge on "the basis

of his findings that the ends of justice served by taking such action

outweigh the best interest of the public and the defendant in a speedy

trial." Id. §§ 3161(h)(1)(F), (h)(1)(H), (h)(3)(A), (h)(8)(A).

On appeal, Aboh contends that the district court should have dismissed the case against him because he was not brought to trial within

seventy days after the issuance of this Court's mandate remanding the

case for retrial. He contends that the district court's three continuances, delaying the retrial 181 days from the date it should have commenced, constituted an unreasonable delay. Aboh asserts that the

district court failed to provide a factual basis supporting its decision

to extend the statutorily mandated seventy-day period.

The appellate mandate reversing Aboh's conviction and remanding

the case for a new trial was issued on February 8, 1996. The mandate

was received and docketed by the district court on February 12, 1996.

On February 13, 1996, after holding a status conference, the district

court, upon its own motion and pursuant to § 3161(e), determined that

it would be impractical to commence the retrial within the statutorily

mandated seventy-day period and postponed retrial until May 20,

1996. The district court found that: (1) due to the complexity of the

case,* court-appointed counsel for codefendant Nwaneri, who entered

his appearance for the first time on appeal, needed adequate time to

review the transcripts of the prior trial; (2) both counsel for Aboh and

Nwaneri had scheduling conflicts that made it impossible to try the

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*The first trial lasted three weeks and involved the presentation of

extensive wiretapped conversations recorded in a Nigerian dialect, physical evidence of the defendants' drug trafficking, and the testimony of

nine cooperating coconspirators.

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case before May 20, 1996; and (3) the Government needed additional

time to locate its nine witnesses, some of whom were no longer incarcerated and readily available to the Government. On May 13, 1996,

the district court postponed retrial until October 15, 1996, because

counsel for Nwaneri was engaged in another trial which was not

expected to conclude until early June. The district court found, pursuant to § 3161(h)(8)(A), that the interest of justice was best served by

the continued representation of counsel familiar with the case, and

that, due to the complexity of the evidence, it would be impractical

and a waste of judicial resources to sever the defendants and try them

in two separate proceedings. The court found the period from May 20,

1996, to October 15, 1996, excludable from speedy trial calculations.

On October 9, 1996, the Government filed a motion in limine. The

district court took the motion under advisement and ruled on the

motion just prior to the commencement of trial on October 16, 1996.

The district court found that the period from October 9 through the

start of trial on October 16 was excluded from speedy trial calculations pursuant to § 3161(h)(1)(F). The district court also delayed

retrial again from October 15 to October 16, pursuant to

§ 3161(h)(3)(A), because transportation of defendant Nwaneri was

delayed by one day.

The district court, exercising its discretion pursuant to § 3161(e),

postponed Aboh's retrial beyond the statutorily mandated seventy-day

period but within the discretionary 180-day period. Taking all excludable time into account, Aboh was retried within 102 days of the issuance of the appellate mandate. See Stoudenmire , 74 F.3d at 63

(excluding period from the day the motion is filed through the day the

district court holds a hearing on the motion for purposes of determining statutorily mandated period). Because the district court did not

exceed the discretionary 180-day period, we affirm.

Lastly, Aboh's assertion that his Sixth Amendment right to speedy

trial was violated, raised for the first time on appeal, lacks merit.

Because Aboh did not raise this issue in the district court, our review

is for plain error under Fed. R. Crim. P. 52(b). See United States v.

Olano, 507 U.S. 725, 732-34 (1993) (finding that error must be plain

under current law, affect substantial rights, and seriously affect fairness, integrity, or public reputation of judicial proceedings). To show

that a delay in disposing of charges violated the defendant's Sixth

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Amendment right to a speedy trial, a court considers four factors:

(1) whether the delay was uncommonly long; (2) whether the government or the defendant is more to blame for the delay; (3) whether,

in due course, the defendant asserted his right to a speedy disposition;

and (4) whether the defendant suffered any prejudice as a result of

the delay. See United States v. Thomas, 55 F.3d 144, 148 (4th Cir.

1995). Aboh has failed to assert that he was prejudiced by any delay;

therefore, he has failed to demonstrate error, plain or otherwise.

Accordingly, we affirm Aboh's conviction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in

the decisional process.

AFFIRMED

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