PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12-3933

______

UNITED STATES OF AMERICA

v.

CRAIG CLAXTON,

 Appellant

______

On Appeal from the District Court 

of the Virgin Islands

(D. VI. No. 3-06-cr-00080-009)

District Judge: Honorable Curtis V. Gomez

______

Argued on Monday, December 9, 2013

Before: FISHER, COWEN and NYGAARD, Circuit Judges

(Filed: August 18, 2014)

Susan B. Moorehead, Esq. (ARGUED)

Smock & Moorehead

No. 11A Norre Gade
2

P.O. Box 1498

St. Thomas, VI 00804

Counsel for Appellant

Nelson L. Jones, Esq. (ARGUED)

Office of United States Attorney

5500 Veterans Building, Suite 260

United States Courthouse

St. Thomas, VI 00802

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge

Defendant Craig Claxton appeals his conviction and 

sentence for conspiracy to possess with intent to distribute 

cocaine from 1999 to 2005, in violation of 21 U.S.C. § 841. 

The allegations against Claxton and several co-defendants 

stem from a wide-ranging drug conspiracy involving the 

importation of large quantities of cocaine from the British 

Virgin Islands to the Territory of the Virgin Islands and 

ultimately to the United States mainland. Claxton raises five 

challenges to various aspects of the proceedings in the 

District Court. We will affirm his conviction and sentence.
3

I.

This case has a lengthy history involving several codefendants and multiple appearances before this Court. The 

case commenced on December 19, 2006, when a federal 

grand jury returned a fourteen-count indictment charging 

Claxton in Count One1 with conspiring to possess with intent 

to distribute five kilograms or more of cocaine between 1999 

and 2005, in violation of 21 U.S.C. § 841(a)(1), 

(b)(1)(A)(ii)(II). A warrant was issued that day for Claxton’s 

arrest. 

A. The first trial and Claxton’s arrest

The first jury trial commenced on September 5, 2007 

without Claxton’s participation because he had not yet been 

arrested. Two of Claxton’s co-defendants were found guilty 

during the first trial, and a mistrial was declared as to the 

remaining co-defendants. Prior to retrial, Swann and Mark 

appealed the denial of their motion to dismiss the indictment 

and Mark filed a motion for a stay of the trial. We granted 

the motion to stay on January 22, 2008, and ultimately 

affirmed the denial of the motion to dismiss. United States v. 

Mark, 284 F. App’x 970 (3d Cir. 2008). We denied a petition 

for rehearing en banc on August 19, 2008. 

While the appeal was pending, Claxton was arrested 

on April 23, 2008 in Orlando, Florida. He waived his right to 

a removal hearing pursuant to Federal Rule of Criminal 

Procedure 5(c)(2), and was ordered transferred to the District 

of the Virgin Islands on April 25, 2008. On that date he was 

 

1

The indictment also charged Gelean Mark, Vernon Fagan, 

Walter Ells, Kelvin Moses, Kerry Woods, Henry Freeman, 

Glenson Isaac, Everette Mills and Dorian Swann.
4

transported to Guaynabo MDC in Puerto Rico, where he was 

held until the transfer to the Virgin Islands was completed on 

July 16, 2008. Claxton was arraigned on July 21, 2008, at 

which time he entered a plea of not guilty. The District Court 

ordered his continued detention that same day.

B. Proceedings involving Claxton

Claxton moved to dismiss the charge against him on 

October 23, 2009 on the grounds that the proceedings 

violated both the Sixth Amendment and the Speedy Trial Act, 

18 U.S.C. § 3161 (“STA”). At a motions hearing held on 

March 23, 2010, the District Court denied the motion for 

relief with respect to the Sixth Amendment, but declined to 

hear argument on the STA, noting that it would render a 

written decision based upon the parties’ submissions. A 

review of the record reveals that the District Court never 

entered a written opinion. Claxton renewed his STA motion 

on May 20, 2010, which the District Court denied prior to 

trial.

Claxton also joined in a motion to continue the trial 

based upon pre-trial publicity on May 14, 2010. The moving 

defendants objected to having the trial commence two weeks 

after the completion of a racketeering trial involving Gelean 

Mark and Police Officer Jerome Blyden (the “Mark/Blyden 

trial”). That case involved charges of drug dealing, gambling, 

and dog fighting, and featured the testimony of three 

cooperating witnesses: James Springette, Elton Turnbull, and 

Glenson Isaac. Each of those witnesses would ultimately 

testify in Claxton’s case. The motion argued that prejudice 

stemmed from media reports about the Mark/Blyden trial, 

even though Mark was ultimately dismissed as a defendant in 

Claxton’s case on May 24, 2010. Counsel for the moving 

defendants specifically referenced an organizational chart 
5

used in the Mark/Blyden trial that was broadcast on a news 

station and had Claxton’s name on it. The District Court 

denied the motion, stating:

In the Court’s view, voir dire will 

address the concerns and ensure 

that we have a jury that can be fair 

and impartial. Since the 

touchstone is not whether 

someone has read something or 

heard something, but whether 

they can maintain fairness and 

impartiality. 

I know there has been some 

concern because Mr. Mark was on 

trial a few weeks ago with this 

court. Significantly he is no 

longer on trial in this court. Also, 

to the extent that there was 

publicity, it seems that there was 

publicity with respect to Mr. 

Mark. If there was some spillover 

with respect to other defendants, 

as counsel indicated this morning 

. . . the Court will try to address 

those concerns during voir dire.

App. at 206-07. The defendants also objected to selecting a 

jury from the same panel of jurors used to select a jury in the 

Mark/Blyden trial. 

C. Jury selection and trial
6

Claxton’s trial began on May 24, 2010. During voir 

dire, the District Court inquired into, among other things, 

whether potential jurors had read or heard anything about the 

case involving the defendants. Only one juror had. The 

District Court excused that juror for cause along with another

juror who participated in voir dire in the Mark trial.

The government presented the testimony of James 

Springette and Elton Turnbull in its case-in-chief. Springette 

testified that he had been involved in drug trafficking in the 

Virgin Islands prior to 1999 and that the alleged conspiracy in 

Claxton’s case began in 1999. Turnbull testified that he 

managed the collection and distribution of the cocaine after it 

arrived in the United States. During his testimony, he made 

reference to numerous letters he had written to the United 

States Attorney’s Offices (“USAO”) in North Carolina and 

the Virgin Islands, other federal law enforcement authorities 

in North Carolina, and the District Court. 

Following Turnbull’s direct examination, Claxton and 

his co-defendants requested copies of those letters. The 

Virgin Islands USAO provided the defendants with four 

letters written by Turnbull the next day. After further review, 

the North Carolina USAO admitted that they had 

inadvertently overlooked a file containing letters written by 

Turnbull and immediately faxed those documents to the 

Virgin Islands USAO. The letters were provided to the 

defendants on the evening of May 25, 2010, and the 

corresponding envelopes were provided on May 27, 2010. 

Upon reviewing the letters, the District Court stated:

It seems to me with Mr. Turnbull . 

. . there are three basic things he’s 

concerned with. One is witness 

protection . . . which is something 
7

I don’t think you want the jury to 

be considering . . . . Two, he 

wants witness fees for his 

testimony . . . [a]nd the other 

thing, which seems to be that he 

wants to get a Rule 35 . . . But the 

first and the last thing I mentioned 

seem to be connected. He says, “I 

have testified and put myself in 

great peril . . . I’ve lost my family 

. . . I’ve lost this, I’ve lost that.” 

And so you are correct, he wants 

to get a Rule 35. But I haven’t yet 

seen or heard anything from you 

that says that, “I will testify. Now 

give me a Rule 35.” [Y]ou’re 

going to get to inquire and you’re 

going to get plenty of leeway 

from the Court, given the timing 

of this disclosure. But I’m just 

pointing out to you that . . . in 

every letter that I have recently 

just pulled up, it seems that he is 

saying [the same thing]. I’m not 

going to do anything that would 

cause you to prejudice your 

client’s right to a fair defense. So 

you take as much time as you 

need [to prepare].

Trial Tr. May 27, 2010 (ECF No. 1137-2), at 106-17. The 

District Court ultimately permitted the defendants to cross 

examine Turnbull and Springette regarding the letters.
8

On May 26, 2010, Juror 125 informed the District 

Court that she had been approached by an individual who 

offered her $1,500 to say “nitroglycerin,” which she was told 

meant “not guilty.” Juror 125 testified that she knew the 

person by sight and told the District Court the person’s full 

name. Juror 125 also revealed that she had discussed the 

event with her brother, sister, and Juror 159. The District 

Court inquired into these events with Jurors 125 and 159, and 

received assurances from both that they could remain fair and 

impartial. The defendants moved for removal of the two 

affected jurors, or, alternatively, for a mistrial. The District 

Court denied the motion for a mistrial, but did not rule on the 

motion to remove. It did, however, sequester the jury from 

that point forward. Jurors 125 and 159 ultimately did not 

participate in the jury’s deliberations.

During trial the government presented evidence of 

thirty kilograms of cocaine seized in September 2003 by 

Immigration and Customs Enforcement at the Cyril E. King 

Airport in St. Thomas. Isaac testified that the cocaine seized 

in September 2003 was part of the cocaine importation 

scheme, that some of that cocaine was intended to be 

delivered to him, and that Mark advised him of the seizure 

when it occurred. Isaac testified that after he received the 

drugs he relied upon female couriers to carry the drug 

proceeds back to the Virgin Islands. He identified Claxton as 

a member of the organization whose role was to pick up the 

female couriers from the airport to transport the money to 

Mark, after which Claxton would check them into a hotel and 

make sure the couriers were paid. 

D. Judgment of acquittal

Claxton moved for a judgment of acquittal pursuant to 

Federal Rule of Criminal Procedure 29 at the close of the 
9

government’s case. The District Court expressed concern 

about the sufficiency of the evidence against Claxton, but 

reserved judgment on the motion and submitted the case to 

the jury. Thereafter, the jury found Claxton guilty.

Claxton also sought a new trial pursuant to Federal 

Rule of Criminal Procedure 33 on the grounds that certain 

evidence was improperly admitted and that the government 

had improperly withheld certain documents during trial. On 

September 24, 2010, Claxton supplemented his new trial 

motions and requested a hearing pursuant to the Supreme 

Court decision in Remmer v. United States, 347 U.S. 227 

(1954). He contended that he learned after trial that one of 

the jurors, Juror 161, had previously worked at the Virgin 

Islands Housing Authority with government witness Mark 

Joseph and failed to disclose this relationship during voir 

dire.

The District Court heard arguments on Claxton’s Rule 

29 motion on several occasions between the final day of trial 

and the May 11, 2011 sentencing hearing, at which time the 

District Court granted the motion. In granting the judgment 

of acquittal, the District Court failed to address Claxton’s 

outstanding motions for a new trial. The government 

appealed, and this Court reversed the judgment of acquittal 

and remanded to the District Court. We held that the 

evidence was sufficient to establish Claxton’s involvement in 

the charged conspiracy and that Claxton knew he was 

participating in a criminal enterprise that involved drugs. 

United States v. Claxton, 685 F.3d 300, 301, 313 (3d Cir. 

2012). 

E. Sentencing

Following remand, Claxton was sentenced on October 

4, 2012. He moved for a downward departure from the 
10

mandatory minimum sentence based upon cooperation he had 

provided at the government’s request in a separate conspiracy 

case. The District Court denied the motion, and Claxton was 

sentenced to the mandatory minimum sentence of 120 

months’ imprisonment. This appeal followed.

II.

The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231 and this Court has jurisdiction pursuant to 28 

U.S.C. § 1291 and 18 U.S.C. § 3742(a). 

III.

Claxton raises several challenges on this appeal. First, 

he seeks dismissal of the indictment on the grounds that the 

delay in bringing him to trial violated both the STA and the 

Sixth Amendment right to a speedy trial. Second, he asserts 

his right to a new trial on grounds that: (a) he was denied his 

Sixth Amendment right to an impartial jury; (b) the District 

Court improperly admitted certain drug evidence; and (c) he 

was prejudiced by the government’s failure to turn over 

certain documents in violation of the rules set forth in Brady 

v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 

405 U.S. 150 (1972). Finally, Claxton challenges his 

sentence insofar as he was denied a sentence below the 

statutory minimum despite having given information to

government investigators in a separate case. We will address 

each argument in turn, but we first address the issue of 

waiver.

A. Waiver

Waiver is implicated here because the District Court 

failed to comply with Federal Rule of Criminal Procedure 
11

29(d) when it entered a judgment of acquittal in Claxton’s 

favor.2 Specifically, the District Court never entered a 

conditional ruling on Claxton’s new trial motions based upon 

the admission of the drug evidence and the alleged 

Brady/Giglio violations. Claxton never raised the Rule 29 

error in his first appeal, nor did he renew the outstanding new 

trial motions on remand. We questioned whether Claxton 

was required to raise the Rule 29 error in a cross-appeal in his 

first appeal in order to preserve the underlying new trial 

motions and, if not, whether he had an obligation to renew the 

new trial motions on remand. We now conclude that he was 

not required to file a cross-appeal and will consider the merits 

of his arguments despite his failure to renew them following 

remand.

We agree with the parties that Claxton was not 

required to file a cross-appeal. See United States v. Miranda, 

425 F.3d 953, 963 (11th Cir. 2005) (finding that, despite the 

district court’s failure to enter a conditional ruling and the 

defendant’s failure to file a cross-appeal, the district court 

“ha[d] the authority, upon remand, after reversal of a 

judgment of acquittal, to consider whether it should grant or 

deny a motion for a new trial.” Id. (citing United States v. 

Ward, 274 F.3d 1320, 1323 (11th Cir. 2001)). The holding in 

Miranda therefore permits a defendant to renew his new trial 

motions on remand despite not having filed a cross appeal. 

 

2 Under Rule 29(d), a district court is required to 

conditionally determine whether any motion for a new trial 

should be granted if the judgment of acquittal is later vacated 

or reversed by specifying the reasons for that determination. 

Fed. R. Crim. P. 29(d). Failure to make such a conditional 

ruling is error. See United States v. Wasserson, 418 F.3d 225, 

240 n.10 (3d Cir. 2005).
12

Id. See also Ward, 274 F.3d at 1321 (holding that when a 

court of appeals reverses a judgment of acquittal, the district 

court retains authority to grant a new trial provided the 

appeals court’s mandate only addresses the judgment of 

acquittal).

Unlike the defendant in Miranda (who was given an 

opportunity to raise his new trial arguments on remand) 

Claxton failed to renew his Rule 33 motions following the

first appeal. As a consequence, the District Court never ruled 

upon those motions and the government now maintains that 

those arguments have been waived. We disagree because 

Claxton did preserve the arguments in his initial motion for a 

new trial so they are not, in a strict sense, waived for a failure 

to raise them at all. Indeed, the government never raised 

waiver until we ordered the parties to address it. In light of 

the unique procedural posture of this case, we will exercise 

our discretion and consider the merits of Claxton’s appeal by 

treating the District Court’s failure to issue an explicit ruling 

as an implicit denial of his Rule 33 motion. See Freeman v. 

Pittsburgh Glass Works, LLC, 709 F.3d 240, 249 (3d Cir. 

2013) (“[I]t is within our discretion to consider an issue that 

the parties did not raise below.”). In reaching this conclusion, 

we are guided by two principles. 

First, we are unwilling to pin the District Court’s error 

in failing to make a conditional ruling on Claxton, who did 

timely file a motion for a new trial. See United States v. 

Kellington, 217 F.3d 1084, 1096 (9th Cir. 2000) (rejecting the 

government’s argument that the defendant should suffer the 

consequences of the district court’s failure to comply with 

Rule 29(d) and the defendant’s failure to raise that error on a 

prior appeal). It would be wholly improper to deny Claxton 

a ruling on his new trial motion simply because the District 

Court erred in the first place by failing to comply with the 
13

dictates of Rule 29(d). See Wasserson, 418 F.3d at 240 n.10 

(acknowledging district court error in failing to make a 

conditional ruling). The court in Kellington acknowledged 

that “[t]he right to a new trial where the interests of justice so 

require—a right which antedates the Constitution itself—

must weigh in the balance of our construction of Rule 29(d).” 

217 F.3d at 1096 n.14 (quoting our decision in Ogden v. 

United States, 112 F. 523, 525 (3d Cir. 1902), for the 

proposition that “[t]he right to move for a new trial, and to 

have that motion considered upon the reasons presented for it, 

is an absolute one, and the granting or refusal thereof does not 

rest in the discretion of the court.”). Considerations of 

judicial economy likewise dictate that the ruling should not be 

delayed merely to give the District Court yet another 

opportunity to rule on the motions, which would result in 

further delay and possibly another appeal. 

Second, we are guided by decisions of several of our 

sister courts of appeals that have treated a district court’s 

failure to rule on an outstanding motion as an implicit denial 

of that motion. See e.g., United States v. Jasso, 634 F.3d 305, 

307 n.2 (5th Cir. 2011) (treating a district court’s failure to 

rule on a motion for reconsideration as an implicit denial); 

United States v. Depew, 210 F.3d 1061, 1065 (9th Cir. 2000) 

(treating a district court’s failure to rule on a motion for 

employment of an expert witness as an implicit denial). In 

Tollett v. City of Kemah, the Fifth Circuit addressed a new 

trial motion that remained outstanding on the district court’s 

docket following the entry of the final judgment in that case. 

285 F.3d 357, 370 n.* (5th Cir. 2002). In concluding that it 

would address the motion on appeal, the court emphasized 

that “[d]espite the district court’s failure to rule, neither side 

subsequently requested that it do so.” Id. (emphasis in 

original). Likewise in this case, the entry of the Judgment 
14

and Commitment order following Claxton’s sentencing 

constituted “the entry of a final judgment or of an order 

inconsistent with the granting of the relief sought by the 

motion [for a new trial].” Norman v. Apache Corp., 19 F.3d 

1017, 1021 (5th Cir. 1994). Neither party raised this issue 

before the District Court and we will treat Claxton’s motions

as having been implicitly denied and consider them on the 

merits. 

B. Speedy Trial Act/Sixth Amendment right to a 

speedy trial

Claxton raises two issues with respect to the delay in 

commencing the trial against him, one under the STA, and the 

other under the Sixth Amendment. The essence of these 

challenges is that the time between when he was indicted 

(December 2006), and the start of his trial (May 2010), 

violated his statutory and constitutional rights to a speedy 

trial. 

1. Speedy Trial Act Violation

Claxton first challenges the validity of the proceedings 

against him under the STA. “We exercise plenary review 

over the district court’s construction and interpretation of the 

[STA] and its provisions regarding excludable time.” United 

States v. Hamilton, 46 F.3d 271, 273 (3d Cir. 1995) (citation 

omitted). The findings of fact to which the District Court 

applied the STA are reviewed for clear error. Id. 

The STA generally requires a trial to begin within 

seventy days of the filing of an information or indictment, or 

the defendant's initial appearance, whichever last occurs. 

Zedner v. United States, 547 U.S. 489, 497 (2006) (citing 18 

U.S.C. § 3161(c)(1)). Violations of the STA require 

dismissal of the indictment. 18 U.S.C. § 3162(a)(2). The 

STA recognizes, however, "that criminal cases vary widely 
15

and that there are valid reasons for greater delay in particular 

cases." Id. To accommodate this need for flexibility, the 

STA sets forth periods of time that are excludable from the 

speedy trial clock. See 18 U.S.C. § 3161(h). Relevant to the 

instant case, § 3161(h)(6) provides for the exclusion of a 

"reasonable period of delay when the defendant is joined for 

trial with a codefendant as to whom the time for trial has not 

run and no motion for severance has been granted." 18 

U.S.C. § 3161(h)(6). We have observed that, "under this 

provision, and until severance is granted, 'an exclusion 

applicable to one defendant applies to all codefendants.'" See 

United States v. Novak, 715 F.2d 810, 814 (3d Cir. 1983) 

(quoting United States v. Edwards, 627 F.2d 460, 461 (D.C. 

Cir. 1980)), abrogated on other grounds by United States v. 

Felton, 811 F.2d 190, 200 (3d Cir. 1987) (en banc); see also 

United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993). 

Because Claxton was joined as a defendant with nine other 

co-defendants pursuant to § 3161(h)(6), any exclusion 

applicable to his co-defendants will also apply to him. 

Claxton contends that 220 days of non-excludable 

STA time elapsed between his initial appearance and the start 

of his trial. He points first to the period of time between his 

initial appearance on July 16, 2008 and a motion filed by one 

of his co-defendants on August 19, 2008 to continue the trial, 

which he acknowledges stopped the STA clock. He asserts 

that, up until that point, thirty-three days of non-excludable 

time had passed. Claxton also points to the period between 

January 14, 2009 and July 20, 2009, a 187-day period in 

which he claims the only motions filed were those requesting 

a trial date.

With respect to the first period, § 3161(h)(1)(C) 

provides that delay resulting from interlocutory appeals is 

considered excludable time. See 18 U.S.C. § 3161(h)(1)(C). 
16

Claxton's co-defendants appealed the denial of their motions 

to dismiss on January 21, 2008. We affirmed the District 

Court's decision on July 9, 2008 and, on July 23, 2008, the 

defendants filed a petition for rehearing en banc. Those 

petitions were denied by order dated August 19, 2008. 

Therefore, the only time for which Claxton could plausibly 

claim non-excludable time was between the date of his initial 

appearance or arraignment and the date his co-defendants 

filed their petitions for rehearing—which amounts to only 

seven days.3 

The second period of time occurred between January 

14, 2009 and July 20, 2009. During that time, Claxton argues 

that 187 days passed during which the only motions filed 

were those requesting a trial date. A review of the record, 

however, reveals that much more actually occurred. During 

that time, there were numerous emergency motions filed by 

his co-defendants requesting extensions of time to file 

responses and objections to pre-sentence reports, notices of 

unavailability, motions to continue status conferences, 

requests for hearings, and even a motion to extend the time to 

file pretrial motions. See generally Dist. Ct. Docket, ECF 

Nos. 717-72. These motions served to toll the speedy trial 

clock for all defendants until the District Court held a hearing 

on the motions. See 18 U.S.C. § 3161(h)(1)(D) (tolling of 

STA clock occurs during time between filing of a pretrial 

motion and the required hearing on that motion); see also 

 

3 Claxton claims that his speedy trial clock began to run from 

the date of his initial appearance on July 16, 2008, while the 

government argues that the clock did not begin to run until 

July 21. For purposes of STA calculations, however, this 

dispute has no bearing on the outcome because the five days 

at issue are not sufficient to find a STA violation.
17

United States v. Tannehill, 49 F.3d 1049, 1052 n.4 (5th Cir. 

1995) (finding that where defendants requested a hearing, it 

was unnecessary to determine whether the hearing was 

“required” for STA purposes). The record reveals that the 

District Court conducted a hearing on at least some of these 

motions at the moving defendants’ request on October 7, 

2009, at which time the District Court set a date for trial. The 

intervening time, therefore, was excludable under the STA. 

See Henderson v. United States, 476 U.S. 321, 326 (1986) 

(“The plain terms of the [STA] appear to exclude all time 

between the filing of and the hearing on a motion whether 

that hearing was prompt or not.”). Given the complexities of 

the case, the number of defendants, and the logistics of 

bringing so many defendants to trial, we cannot say, based 

upon the record as a whole, that Claxton has demonstrated a 

violation of his speedy trial rights under the STA.

2. Sixth Amendment speedy trial right

Claxton argues that his Sixth Amendment right to a 

speedy trial was violated by the government’s delay in 

bringing him to trial. We exercise de novo review over legal 

questions in a claim of Sixth Amendment error and review 

the underlying factual findings for clear error. United States 

v. Velazquez, 749 F.3d 161, 174 (3d Cir. 2014).4

The Supreme Court decision Barker v. Wingo, 407 

U.S. 514 (1972), set forth a four-factor test that courts use to 

 

4 On April 22, 2014, we ordered the parties to file letter briefs 

addressing the impact of our recent decision in Velazquez on 

Claxton’s Sixth Amendment argument. As we discuss below, 

we find Velazquez to be distinguishable and will affirm the 

District Court’s conclusion that no Sixth Amendment 

violation occurred. 
18

examine alleged Sixth Amendment violations. “The inquiry 

focuses on: (1) the length of the delay before trial; (2) the 

reason for the delay and, specifically, whether the 

government or the defendant is more to blame; (3) the extent 

to which the defendant asserted his speedy trial right; and (4) 

the prejudice suffered by the defendant.” Velazquez, 749 

F.3d at 174 (citing Barker, 407 U.S. at 530-31). No single 

factor in the Barker calculus is “‘talismanic.’” Id. (quoting 

Hakeem v. Beyer, 990 F.2d 750, 759 (3d Cir. 1993)). 

“[B]ecause of the imprecision of the right to speedy trial, the 

length of delay that will provoke such an inquiry is 

necessarily dependent upon the peculiar circumstances of the 

case.” Barker, 407 U.S. at 530-31. Thus, “the delay that can 

be tolerated for an ordinary street crime is considerably less 

than for a serious, complex conspiracy charge.” Id. at 531. 

Velazquez reaffirmed the need to apply the factors set 

forth in Barker when addressing alleged Sixth Amendment 

speedy trial violations and involves facts that are somewhat

analogous to this case. Velazquez was being investigated by 

the Drug Enforcement Administration (“DEA”) in 

Philadelphia for suspected trafficking in cocaine. 749 F.3d at 

168. Velazquez (who lived in California) and his codefendants were indicted on August 2, 2005, and a warrant 

was issued for Velazquez’s arrest shortly thereafter. Id. Over 

the next five years, investigators did little more than 

occasionally run Velazquez’s name through the National 

Crime Information Center (“NCIC”) database. Id. at 170-71. 

It was not until nearly six-and-a-half years later that 

Velazquez was apprehended on an unrelated narcotics charge 

and was returned to Philadelphia to face trial for the charges 

alleged in the 2005 indictment. Id. at 173.

Velazquez sought to dismiss the indictment on Sixth 

Amendment speedy trial grounds, and the district court 
19

denied the motion. Id. The court concluded that because the 

government felt that it was unlikely to locate the defendant, it 

reasonably conserved its resources and waited for further 

information before pursuing its investigation. Id. We 

reversed after analyzing each of the Barker factors and 

concluding: (1) the length of delay triggered the need to 

analyze all four factors; (2) the government was not 

reasonably diligent in pursuing its investigation; (3) 

Velazquez was diligent in asserting his speedy trial rights; 

and (4) the government failed to overcome the general 

presumption of prejudice that arises in cases of excessive 

delay. Id. at 174-86. In weighing all the factors, we 

concluded that the delay violated Velazquez’s constitutional 

right to a speedy trial, and that dismissal of the indictment 

was required. Id. at 186. 

The parties here dispute whether Velazquez controls 

the outcome in the present case. We will consider its 

relevance along with each of the Barker factors, below.

Length of delay

The threshold question under Barker is whether the 

length of delay was sufficient to trigger analysis of the 

remaining factors. This involves “a double enquiry.” 

Doggett v. United States, 505 U.S. 647, 652 (1992). “In other 

words, a court first decides whether the delay is long enough 

that it should trigger analysis of the other Barker factors. . . . 

If it is, the length of the delay is also separately weighed in 

the court’s analysis of the remaining factors.” Velazquez, 749 

F.3d at 174 (citations omitted). The length of delay is 
20

measured “from the date of arrest or indictment, whichever is 

earlier, until the start of trial.” United States v. Battis, 589 

F.3d 673, 678 (3d Cir. 2009) (citing Hakeem, 990 F.2d at 

760). “We have previously held that a delay of even fourteen 

months is sufficient to trigger review of the remaining Barker

factors. Id. (citing Hakeem, 990 F.2d at 760). 

In the present case, both parties concede that review of 

the remaining factors is necessary because the period of time 

between Claxton’s indictment and trial sufficiently exceeds 

the fourteen-month threshold recognized in Hakeem. This 

factor will therefore weigh in Claxton’s favor. Velazquez, 

749 F.3d at 174. 

The reason for the delay

The government bears the burden of justifying the 

delay in bringing a defendant to trial. Battis, 589 F.3d at 680 

(citing Hakeem, 990 F.2d at 770). “In evaluating this factor, 

we subtract the amount of delay caused by the defendant from 

the delay caused by the Government.” Id. (citing United 

States v. Dent, 149 F.3d 180, 184-85 (3d Cir. 1998)). In 

Battis, we set forth the three categories of delay and the 

resulting weight each carries against the government: (1) “A 

deliberate effort by the Government to delay the trial in order 

to hamper the defense weighs heavily against the 

government;” (2) “A more neutral reason such as negligence 

or overcrowded courts also weighs against the Government, 

though less heavily;” and (3) “a valid reason, such as a 

missing witness, should serve to justify appropriate delay.” 

Id. at 679 (internal quotation marks and citations omitted). 

“By contrast, delay caused by the defense weighs against the 

defendant.” Id. at 680 (internal quotation marks omitted).

This case presents a sparse record from which to 

determine which party has captured “the ‘flag all litigants 
21

seek.’” Velazquez, 749 F.3d at 175 (quoting United States v. 

Loud Hawk, 474 U.S. 302, 315 (1986)). Despite the 

shortcomings, the delay caused by the defendants in this case 

dramatically reduces the length of the delay we must consider 

for purposes of this element. Claxton’s trial commenced in 

May of 2010, twenty-two months after his arraignment in the 

District of the Virgin Islands in July of 2008. As discussed 

above, however, that delay was excusable as a result of the 

myriad motions and appeals filed by Claxton and his codefendants. Such excusable delay is subtracted from the 

delay attributable to the government. See Battis, 589 F.3d at 

680. The remaining delay—the nineteen months between the 

indictment in December 2006 and Claxton’s initial 

appearance in July 2008—is more than offset by the twentytwo month post-appearance delay that is attributable to the 

defendants. 

The nineteen-month delay attributable to the 

government, moreover, is also likely justified in light of the 

record in this case. At Claxton’s initial appearance on July 

16, 2008, the government’s witness testified that information 

obtained by government agents indicated that Claxton could 

be found in Orlando, Florida, and that agents ultimately 

arrested him there pursuant to a warrant. The government 

witness at Claxton’s subsequent arraignment and detention 

hearing observed in response to a question about Claxton’s 

residence that: “Mr. Claxton used to reside in St. Thomas. As 

of 2005, it’s been unclear exactly where Mr. Claxton resides. 

Otherwise, I think we’d have picked him up.” App. at 86-87. 

Our review of the record reveals that none of the grounds 

outlined in Battis appears to be implicated in this case such 

that this period should weigh against the government. 589 

F.3d at 679-80. Under the circumstances presented here, it 

appears as though the government promptly acted upon 
22

information it obtained in the course of its investigation and 

arrested Claxton when it discovered his whereabouts. 

More important, however, is the fact that this case is 

easily distinguishable from Velazquez. That case involved an 

extensive record of less than enthusiastic government pursuit. 

As we pointed out in Velazquez, almost five years elapsed 

during which investigators input Velazquez’s name into the 

NCIC database only eight times. 749 F.3d at 180. The 

government conceded that it had made a “tactical choice” to 

pursue other leads during that time, and to essentially ignore 

Velazquez. Id. at 176-78. This case simply does not reflect 

the complete “lack of effort by law enforcement authorities” 

at issue in Velazquez for four reasons. Id. at 178. First, the 

investigatory period was far shorter—less than two years in 

Claxton’s case as opposed to more than five years in 

Velazquez. Second, Claxton’s case involved a complex 

international drug-smuggling operation as opposed to the 

more straightforward domestic drug trafficking scheme in 

Velazquez. See 749 F.3d at 167-68 (outlining the conduct at 

issue in that case). Third, Velazquez did not involve the type 

of delay attributable to the defendants that occurred in 

Claxton’s case—delay that offsets any delay attributable to 

the government. Finally, the break in Claxton’s case was the 

result of police work—he was arrested after investigators 

followed up on his attempts to obtain a passport—as opposed 

to Velazquez, who was arrested on an unrelated controlled 

substance charge. These facts, combined with the substantial 

delay attributable to the defendants in this case, demonstrate 

that the government has met its burden of justifying any delay 

that occurred. See Barker, 407 U.S. at 530-31 (noting that 

delay for Sixth Amendment purposes is dependent upon the 

facts of the individual case). This factor will, therefore,

weigh in the government’s favor. 
23

Defendant’s assertion of the right

The third factor in the Barker analysis is the degree to 

which the defendant asserts his speedy trial right, “including 

‘the frequency and force’ of such assertions.” Velazquez, 749 

F.3d at 183 (quoting Barker, 407 U.S. at 529). The parties 

both concede that Claxton has repeatedly asserted his speedy 

trial rights. This factor therefore weighs in his favor.

Prejudice suffered by the defendant

The final consideration in the Barker analysis is the 

prejudice suffered by the defendant. The Doggett Court 

identified three types of harm that arise from unreasonable 

delay between formal accusation and trial: (1) “oppressive 

pretrial incarceration;” (2) “anxiety and concern of the 

accused;” and (3) “the possibility that the [accused’s] defense 

will be impaired by dimming memories and loss of 

exculpatory evidence.” 505 U.S. at 654 (internal quotation 

marks omitted) (alteration in original). The Doggett Court 

also acknowledged that excessive delay can lead to a 

presumption of prejudice, but added that “such presumptive 

prejudice cannot alone carry a Sixth Amendment claim 

without regard to the other Barker criteria . . . it is part of the 

mix of relevant facts, and its importance increases with the 

length of delay.” Id. at 655-56. See also id. at 657 (noting 

that “to warrant granting relief, negligence unaccompanied by 

particularized trial prejudice must have lasted longer than 

negligence demonstrably causing such prejudice.”). 

Claxton claims both presumptive prejudice and actual 

prejudice stemming from the delay in bringing him to trial. 

We first find that no presumption of prejudice exists in this 

case. In total, less than three-and-a-half years elapsed 

between Claxton’s indictment and the start of his trial. Of 

that time, however, only nineteen months are attributable to 
24

governmental delay in apprehending Claxton and bringing 

him before the District Court. That is not substantially more 

than the fourteen-and-a-half months of pretrial incarceration

at issue in Hakeem. 990 F.2d at 771 (declining to find that a 

fourteen-and-a-half month period of pretrial incarceration was 

per se oppressive or prejudicial). Claxton was, of course, free 

during that entire period and by his own admission was 

unaware of the charges pending against him such as would 

cause anxiety or concern. See Claxton Ltr. Br. May 2, 2014, 

at 5. Doggett and Velazquez are also distinguishable from the 

present case, as those cases involved eight-and-a-half years 

(Doggett) and more than five years (Velazquez) of pre-arrest 

delay, as well as findings that the government’s efforts in 

apprehending the defendants were negligent at best. See 

Doggett, 505 U.S. at 657; Velazquez, 749 F.3d at 184-86. 

The post-arrest delay in this case was also not 

prejudicial because it was largely caused by the number of 

defendants, the extensive motions practice and the delay 

resulting from the appeals undertaken in this complex and 

large-scale drug conspiracy prosecution. See Barker, 407 

U.S. at 531 (acknowledging that longer delays are tolerable 

based upon the seriousness or complexity of a particular 

case). We therefore conclude that the delay at issue in the 

present case does not rise to the level of presumptively 

prejudicial.

Claxton next argues that he suffered specific prejudice 

stemming from the eighty-four day period that he was held in 

Puerto Rico prior to being brought before the District Court. 

He characterizes this period as “oppressive pretrial 

incarceration” that rose to the level of a Sixth Amendment 

violation. We have held that a finding of prejudice based 

upon oppressive pretrial incarceration cannot be premised 

upon even seven months of pretrial incarceration, “absent [a 
25

showing of] substandard conditions.” Hakeem, 990 F.2d at 

760 (citing Wells v. Petsock, 941 F.2d 253, 257-58 (3d Cir. 

1991)). Claxton has given no indication that he faced 

substandard conditions as compared to those generally 

associated with the transfer of prisoners, nor has he identified 

any decision finding that a two-and-a-half month delay 

constitutes oppressive pretrial incarceration. See id. (sevenmonth delay insufficient to be prejudicial).5

 

Because we conclude that Claxton neither suffered 

from a presumption of prejudice nor has he identified a 

specific occurrence of prejudice, the final Barker factor 

weighs in the government’s favor. 

In weighing the Barker factors, we note that the reason 

for the delay and the prejudice factors both weigh in the 

government’s favor. These factors certainly carry a great deal 

of weight insofar as they relate to the substantive facts of the

case. We do acknowledge, however, that Claxton did assert 

his speedy trial rights and that the delay was sufficient to 

trigger the Barker analysis. Nevertheless, the fact remains 

that much of the delay at issue in this present case was 

attributable to his co-defendants’ own conduct, and Claxton 

has not shown either presumed or actual prejudice. In light of 

these facts, we conclude that the balance weighs in favor of 

 

5 Claxton’s reliance upon the STA is equally unavailing. He 

asserts that the eighty-four day delay was prejudicial because 

it “exceed[ed] the 70 day limit contemplated by the [STA].” 

Claxton Ltr. Br. May 2, 2014, at 7. As he is forced to 

concede, however, time during which a defendant is being 

transferred between districts is excluded from consideration 

for STA purposes, and this argument is, therefore, a non 

sequitur.
26

the government, and Claxton has not demonstrated a Sixth 

Amendment speedy trial violation. 

C. Sixth Amendment right to an impartial jury

Claxton seeks a new trial on the basis that his Sixth 

Amendment rights were violated when he was deprived of the 

right to a fair and impartial jury. “We analyze [a] defendant’s 

claims of lack of an impartial jury by conducting an 

independent review of the voir dire of the empaneled [sic] 

jurors to determine whether [the defendant] has demonstrated 

that ‘substantial prejudice’ arose from the publicity.” Gov’t 

of Virgin Islands v. Riley, 973 F.2d 224, 226 (3d Cir. 1992) 

(quoting United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir. 

1991)). Our review of a district court’s investigation of juror 

misconduct, as well as its denial of a mistrial, is for abuse of 

discretion. United States v. Resko, 3 F.3d 684, 688 (3d Cir. 

1993). Claxton asserts three grounds for this alleged 

violation: (1) pretrial publicity; (2) jury tampering; and (3) 

juror misconduct. We address each argument below.

1. Pretrial publicity

Claxton first argues that the publicity surrounding the 

Mark/Blyden trial, which concluded two weeks prior to the 

Claxton trial and involved an organizational chart that listed 

Claxton’s name as well as those of his co-defendants, was so 

prejudicial that he was denied a fair and impartial trial. Our 

review of the record has revealed no evidence that Claxton’s 

trial was prejudiced by pretrial publicity.

The Sixth Amendment guarantees the right to a trial by 

a fair and impartial jury. United States v. Jones, 566 F.3d 

353, 358 (3d Cir. 2009). Therefore, a conviction may be 

overturned if a defendant’s “trial atmosphere was so pervaded 

by publicity that no jury could be empaneled [sic] which did 

not have a preconceived determination of guilt.” Riley, 973 
27

F.2d at 226 (citing Irwin v. Dowd, 366 U.S. 717 (1961)). The 

Supreme Court has cautioned, however, that the “relevant 

question is not whether the community remembered the case, 

but whether the jurors at [the] trial had such fixed opinions 

that they could not judge impartially the guilt of the 

defendant.” Patton v. Yount, 467 U.S. 1025, 1035 (1984) 

(rejecting fair trial argument even though pretrial publicity 

revealed defendant’s previous murder confession and his plea 

of temporary insanity). Therefore, “‘[p]retrial publicity 

exposure will not automatically taint a juror.’” Riley, 973 

F.2d at 227 (quoting United States v. Provenzano, 620 F.2d 

985, 995 (3d Cir. 1980)). Even in instances where a “‘juror 

has heard of or about the case and of the allegations of a 

defendant’s guilt, he may sit if he is still capable of 

abandoning his prior impressions and rendering a fair verdict 

on the evidence.’” Id. (citing Provenzano, 620 F.2d at 995-96 

(rejecting a fair trial argument based upon jury members’ 

knowledge of certain terms such as “Mafia,” “gangster,” and 

“organized crime” used in the media to refer to the 

defendant’s case)). The Supreme Court aptly summarized: 

“pretrial publicity – even pervasive, adverse publicity – does 

not inevitably lead to an unfair trial.” Skilling v. United 

States, 561 U.S. 358, 384 (2010).

In Claxton’s case, the District Court took great pains 

during the voir dire process to ensure that it eradicated any 

potential prejudice stemming from the earlier Mark/Blyden

trial. Specifically, the District Court asked the venire panel: 

“Have any of you read, or heard anything about this case 

involving those Defendants? If so, raise your card. . . . 176. 

All right. All right.” App. at 222. Upon further examination, 

the District Court established as follows:
28

THE COURT: You indicated you 

had read something about this 

case?

JUROR 176: Yes.

THE COURT: Tell us what your 

source was.

JUROR 176: I read The Daily 

News, the Judge report, and dem 

man say every day, and I’m pretty 

sure I read something about a 

large trafficking case, and there 

were a lot of other people 

implicated that were still left to go 

to trial.

THE COURT: All right. Your 

duty as a juror is to be fair and 

impartial as you listen to the 

evidence, and to follow my 

instructions on the law. Is there 

anything that you have read or 

seen or heard that would prevent 

you from listening to the evidence 

in this case fairly and impartially?

JUROR 176: I think I know one 

of the Defendants, and I know 

him to be a drug dealer, but I 

can’t tell you how that 

relationship or when I met him 

before.

THE COURT: I’m sorry. You 

said who?
29

JUROR 176: One, Mr. Moses, I 

know to be a drug dealer, but I 

can’t tell you how I know that. I 

just seen him on the street when I 

worked at my other job.

THE COURT: All right. Thank 

you.

App. at 225-26. Juror number 176 was ultimately excused by 

the Court for cause. The District Court also excused for 

cause the one juror who attended voir dire in the 

Mark/Blyden trial. None of the other potential jurors 

participating in voir dire in this case expressed any 

knowledge of the prior trial. Absent such knowledge, we 

cannot say that the jury was unfairly tainted in Claxton’s case.

Even if other jurors had been aware of the prior trial 

(although the record is devoid of such evidence), the District 

Court further protected against potential prejudice by 

instructing the jurors that the defendants were to be presumed 

innocent until the government was able to prove each 

defendant’s guilt beyond a reasonable doubt, and the jurors 

were instructed to decide the case based solely on the 

evidence presented in the courtroom, disregarding anything 

that they may have seen or heard prior to trial. These 

instructions provided a further level of insurance against 

prejudice. See Riley, 973 F.2d at 227 (relying, in part, on 

district court’s instructions in finding no prejudice). Jurors 

are presumed to follow the instructions they are given, and 

Claxton offers no evidence to rebut that presumption. E.g., 

Penry v. Johnson, 532 U.S. 782, 799 (2001) (“We generally 

presume that jurors follow their instructions.”). Because 

nothing in the record indicates that the jurors who were 
30

ultimately impaneled had already determined Claxton’s guilt, 

or that they could not maintain an open mind in determining 

his guilt based upon the evidence presented at trial, Claxton’s 

Sixth Amendment claim with respect to pretrial publicity 

fails. 

2. Jury tampering

Claxton next argues that he was denied a fair and 

impartial jury as a result of the unauthorized contact with 

Juror 125, who in turn discussed that contact with Juror 159. 

We conclude that the District Court did not abuse its 

discretion by denying Claxton’s motion for a mistrial because 

it conducted a thorough examination of both jurors, 

sequestered the jury for the remainder of the trial, and 

ultimately excluded both jurors from deliberations. 

“‘It is fundamental that every litigant who is entitled to 

trial by jury is entitled to an impartial jury, free to the fullest 

extent practicable from extraneous influences that may 

subvert the fact-finding process.’” United States v. Bertoli, 

40 F.3d 1384, 1393 (3d Cir. 1994) (quoting Waldorf v. Shuta, 

3 F.3d 705, 709 (3d Cir. 1993)). In this regard, “‘any private 

communication, contact, or tampering directly or indirectly, 

with a juror during a trial about the matter pending before the 

jury is . . . deemed presumptively prejudicial.’” United States 

v. Vega, 285 F.3d 256, 266 (3d Cir. 2002) (quoting Remmer, 

347 U.S. at 229). This presumption is not conclusive, 

however, and the district court should conduct a hearing in 

the defendant’s presence, at which the government has the 

burden of proving that the communication did not and will 

not prejudice the defendant. Id. A district court has the 

sound discretion to conduct the hearing as it sees fit, but it 

“must conduct a voir dire of all jurors with whom the 

improper communication occurred that is sufficiently tailored 
31

to probe adequately the possibility of prejudice.” Id.

(emphasis added).

Claxton argues that the District Court had a duty to 

conduct a Remmer hearing of the entire jury after it learned of 

the improper contact with Juror 125.6 This is simply 

incorrect—Vega and Remmer instruct that courts need only 

hear from those jurors to whom the improper communication 

was made. Id. That occurred in this case insofar as Jurors 

125 and 159 indicated that they only discussed the incident 

with each other (along with some family members) and not 

with any other jurors. Claxton speculates that one of the 

affected jurors might have been lying when asked if they had 

talked to other jurors, but provides no basis in the record for 

 

6 Claxton relies upon the Ninth Circuit’s decision in United 

States v. Angulo in making this argument. 4 F.3d 843 (9th 

Cir. 1993). In that case, a juror was threatened in a phone call 

and she promptly told all the remaining jurors about the call. 

Id. at 846. The district court in that case had to examine the 

entire jury panel because the threat “was communicated to the 

other jurors.” Id. at 847. Angulo is thus distinguishable 

because such communication to the entire jury panel did not 

occur in this case. 
32

arriving at such conclusion.7 The District Court, which was 

in the best position to judge the jurors’ credibility, examined 

the jurors and found their testimony to be credible and 

consistent. The District Court thus did not abuse its 

discretion in concluding that further voir dire was 

unnecessary.

The record also demonstrates that the District Court 

conducted a sufficiently thorough investigation and properly 

concluded that Claxton suffered no prejudice. As required by 

this Court’s decision in Vega, the District Court questioned 

the affected jurors about their ability to remain fair and 

impartial and both reported that they could. The record also 

reveals other objective evidence of the jurors’ ability to 

remain impartial. See Vega, 285 F.3d at 267 (requiring courts 

to look beyond a potentially tainted juror’s subjective 

assessment of their impartiality). Juror 125 was extremely 

candid about the improper contacts and answered all of the 

District Court’s questions in a way that it found to be 

believable. Her candor is reflected by the admission that she 

 

7 Claxton points to Juror 125’s testimony at a subsequent trial 

as being inconsistent with what she reported to the District 

Court in Claxton’s case. This effort to impugn Juror 125’s 

testimony is of little consequence. The District Court was in 

the best position to determine whether the jurors were 

credible, and found them to be so. Nothing about Juror 125’s 

subsequent testimony, even if it was inconsistent, reveals that 

she told any of the other jurors about her encounter during the 

Claxton trial. Under an abuse of discretion standard, we will 

not second-guess the District Court’s determination, 

particularly where it turns on a credibility finding that is not 

contradicted by the record before it. See United States v. 

Pungitore, 910 F.2d 1084, 1140 (3d Cir. 1990).
33

did, in fact, discuss the contacts with Juror 159 and other 

family members. Juror 159 was likewise the person who told 

Juror 125 to report the improper contacts to the District 

Court—thus demonstrating her willingness to follow its 

instructions. Finally, we note the most critical insurance 

against prejudice in this case—the fact that neither Juror 125 

nor 159 actually participated in the jury’s deliberations. In 

light of these facts, we cannot conclude that the District Court 

abused its discretion in addressing the juror tampering issue.

3. Juror misconduct

Claxton’s final argument is that the District Court 

erred in failing to grant a new trial despite his allegations that 

a juror concealed a prior work relationship with a government 

witness. Specifically, Claxton alleged that Juror 161 failed 

during voir dire to disclose that he had previously worked at 

the Virgin Islands Housing Authority with government 

witness Mark Joseph and defense witness Calford 

Charleswell.8 The District Court never ruled on this motion, 

and no hearing was held. We therefore treat the motion as 

having been implicitly denied. See Section III.A., supra.

“A trial represents an important investment of private 

and social resources, and it ill serves the important end of 

finality to wipe the slate clean simply to recreate the 

peremptory challenge process because counsel lacked an item 

of information which objectively he should have obtained 

from a juror on voir dire examination.” McDonough Power 

Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984). In 

 

8 We note that Claxton was not so vociferous in pointing out 

the potential bias in his favor based upon the fact that Juror 

161 also worked with Mr. Charleswell, who was a witness for 

co-defendant Woods.
34

order to obtain a new trial on the basis of false juror 

testimony, a party must establish: (1) that the “juror failed to 

answer honestly a material question on voir dire;” and (2) 

“that a correct response would have provided a valid basis for 

a challenge for cause.” Id. at 556. 

Because the District Court failed to conduct a hearing 

with respect to Claxton’s assertions about Juror 161’s past 

employment relationship with the government witness, we 

will presume that the allegations are true—i.e. that Juror 161 

failed to honestly answer the Court’s voir dire questions 

about knowing witnesses—and consider whether the second 

prong is met. At the outset, we note that the District Court 

did not commit an error of law insofar as the law “does not 

categorically impute bias to coworkers of key Government 

witnesses.” United States v. Mitchell, 690 F.3d 137, 150 (3d 

Cir. 2012) (declining to find implied-in-law bias when a juror 

was a coworker of police officers who testified in a criminal 

trial). Claxton has likewise failed to demonstrate any basis 

for finding actual prejudice. His assertions establish only 

that, at some unspecified time in the past, Juror 161 worked 

with both a government and defense witness. The motion 

does not indicate that Juror 161 actually knew either of the 

witnesses, nor does it indicate any possible basis for bias 

beyond having shared a former employer. We cannot say that 

the District Court abused its discretion in implicitly finding 

that this was not a basis for a challenge for cause. 

Moreover, Claxton’s allegations also fail to rise to the 

level of “clear, strong, substantial and incontrovertible 

evidence that a specific, nonspeculative impropriety has 

occurred” such that a hearing was necessary. United States v. 

Stewart, 433 F.3d 273, 302-03 (2d Cir. 2006) (internal 

quotation marks omitted). He offers nothing more than 

speculation that Juror 161even knew the witnesses, much less 
35

that the juror was biased in the government’s favor—

particularly when Juror 161 also worked with a defense 

witness. Absent such a showing, and in light of the Supreme 

Court’s admonition that we should not “wipe the slate clean 

simply to recreate the peremptory challenge process,” 

McDonough, 464 U.S. at 555, we conclude that the District 

Court did not abuse its discretion in implicitly denying 

Claxton’s motion and for not holding a hearing. 

D. Drug evidence

Claxton argues that the District Court abused its 

discretion when it admitted evidence related to the September 

2003 drug seizure because the evidence was highly 

prejudicial, irrelevant to the charged conspiracy, and was not 

probative with respect to the charges against him. He 

maintains that there was no connection drawn between the 

drug evidence and the charged conspiracy. We review the 

District Court’s decision to admit that evidence for an abuse 

of discretion. United States v. Bobb, 471 F.3d 491, 497 (3d 

Cir. 2006). “[T]o the extent the District Court’s admission of 

evidence was based on an interpretation of the Federal Rules 

of Evidence, the standard of review is plenary.” Id. 

Federal Rule of Evidence 403 provides that a “court 

may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice, 

confusing the issues, misleading the jury, undue delay, 

wasting time, or needlessly presenting cumulative evidence.” 

Fed. R. Evid. 403. Rule 403 creates a presumption of 

admissibility. United States v. Cross, 308 F.3d 308, 323 (3d 

Cir. 2002). When weighing the Rule 403 factors, courts 

“must appraise the genuine need for the challenged evidence 

and balance that necessity against the risk of prejudice to the 

defendant.” Gov’t of Virgin Islands v. Archibald, 987 F.2d 
36

180, 186 (3d Cir. 1993) (internal quotation marks omitted). 

Evidence should not be excluded under Rule 403 “merely 

because its unfairly prejudicial effect is greater than its 

probative value. Rather, evidence can be kept out only if its 

unfairly prejudicial effect ‘substantially outweigh[s]’ its 

probative value. . . . [W]hen evidence is highly probative, 

even a large risk of unfair prejudice may be tolerable.” 

Cross, 308 F.3d at 323 (quoting Fed. R. Evid. 403). 

The drug evidence at issue here (which included 

photographs and physical evidence of the seized drugs) was 

highly probative of the government’s case and relevant to 

establishing the overall drug conspiracy with which Claxton 

was charged. The government established the connection 

between the drug evidence and the conspiracy through 

Glenson Isaac, who testified about his participation in the 

conspiracy with Mark and about his expectation that he would 

receive a shipment of five kilograms of cocaine in September 

2003. He did not receive that shipment, however, because 

according to Mark, the drugs “were seized [at] the [Cyril E. 

King] airport.” Supp. App. at 12. From this testimony, it can 

be reasonably inferred that the drugs admitted into evidence 

were the same drugs that Isaac expected to obtain. Isaac 

further testified that Claxton “was a member of the 

organization.” Supp. App. at 14-15. Based upon this 

testimony, the drug evidence was highly relevant to 

establishing both the existence of a conspiracy and Claxton’s 

involvement in it, both of which the government had the 

burden of proving in order to obtain the conviction. 

The evidence was also highly probative of Claxton’s 

involvement in the conspiracy despite his arguments to the

contrary. He maintains that the seized drugs were related to a 

separate conspiracy based upon inconsistencies in the way the 

drugs were transported and in the testimony from government 
37

witnesses. Despite these inconsistencies—which go to the 

weight of the evidence and not its admissibility—the fact 

remains that the drugs, along with Isaac’s testimony, provided 

crucial circumstantial evidence of the existence of the 

conspiracy and Claxton’s role in it. See United States v. 

Boria, 592 F.3d 476, 481 (3d Cir. 2010) (drug evidence 

necessary to impute knowledge of a drug conspiracy to coconspirators); Claxton, 685 F.3d at 308 (affirming Claxton’s 

conviction on sufficiency of the evidence grounds and relying 

upon Boria). In light of the probative value of the drug 

evidence at issue here, we conclude that its value 

substantially outweighed any possible prejudice to Claxton 

and that the District Court did not abuse its discretion in 

allowing its admission. 

E. Brady/Giglio evidence

Claxton argues that he is entitled to a new trial based 

upon alleged violations of the rules in Brady, Giglio, and the 

Jencks Act, 18 U.S.C. § 3500.9 He identifies two categories 

of letters that were allegedly not disclosed by the government 

and contain information that could have been used to impeach 

key government witnesses. The first category involved 

twenty-eight letters sent by Turnbull and Springette to various 

government officials, including federal agents, the District 

Court, and several government attorneys (the “Turnbull and 

Springette Letters”). Claxton sought these letters on the 

 

9 Although Claxton alludes to the Jencks Act, his evidentiary 

argument focuses solely on the Brady issue. To the extent 

that he attempts to assert the Jencks Act as a basis for a new 

trial, that argument is waived. Kost v. Kozakiewicz, 1 F.3d 

176, 182 (3d Cir. 1993) (“It is also well settled . . . that casual 

mention of an issue in a brief is cursory treatment insufficient 

to preserve the issue on appeal.”).
38

ground that they revealed Turnbull’s and Springette’s belief 

that their sentences would be shortened as a result of their 

cooperation. These letters were disclosed during Claxton’s 

trial, and defense counsel was given the opportunity to cross 

examine Springette and Turnbull about the contents. The 

second category involved letters exchanged between Turnbull 

and Isaac (the “Isaac Letters”), which had been the subject of 

questioning during an earlier trial but were never turned over 

by the government at Claxton’s trial. Claxton’s counsel did, 

however, utilize the earlier testimony when questioning 

government witnesses about the Isaac Letters. The letters

discussed Turnbull and Isaac’s plan to “put a case” against an 

individual in an effort to take focus off another coconspirator. 

Brady and Giglio claims involve mixed questions of 

law and fact, and as such, we review the questions of law de 

novo and the district court’s factual findings for clear error. 

United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006). 

Brady holds that “the suppression by the prosecution 

of evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the 

prosecution.” 373 U.S. at 87. A successful Brady claim, 

therefore, consists of three elements: “(1) the prosecution 

must suppress or withhold evidence, (2) which is favorable, 

and (3) material to the defense.” United States v. Perdomo, 

929 F.2d 967, 970 (3d Cir. 1991). “When the ‘reliability of a 

given witness may well be determinative of guilt or 

innocence,’ nondisclosure of evidence affecting credibility 

falls within this general rule.” Giglio, 405 U.S. at 154 

(quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). “We 

do not . . . automatically require a new trial whenever ‘a 

combing of the prosecutors’ files after the trial has disclosed 
39

evidence possibly useful to the defense but not likely to have 

changed the verdict.’” Id. (quoting United States v. Keogh, 

391 F.2d 138, 148 (2d Cir. 1968)). A new trial is only 

warranted when “‘the false testimony could . . . in any 

reasonable likelihood have affected the judgment of the 

jury.’” Id. 

Claxton’s Brady argument with respect to the Turnbull 

and Springette Letters is necessarily limited, of course, by the 

fact that the government provided the letters to the defense. 

The District Court permitted additional cross examination of 

both witnesses, giving counsel “plenty of leeway” to impeach 

the witnesses and as much time as counsel needed to prepare. 

Trial Tr. May 27, 2010, at 114, 117. To the extent that the 

jury heard the additional cross examination made with the 

benefit of the letters, therefore, Claxton cannot argue that the 

evidence was suppressed or that it was material to the issue of 

guilt because he ultimately used those materials at trial. See 

United States v. Johnson, 816 F.2d 918, 924 (3d Cir. 1987) 

(“Where the government makes Brady evidence available 

during the course of a trial in such a way that a defendant is 

able to effectively use it, due process is not violated and 

Brady is not contravened.”). 

Instead, Claxton argues that he was prejudiced by the 

government’s intentional suppression of the materials and that 

dismissal of the indictment is the appropriate remedy. In 

Fahie v. Government of the Virgin Islands, we held that 

“dismissal for a Brady violation may be appropriate in cases 

of deliberate misconduct . . . where a defendant can show 

both willful misconduct by the government, and prejudice.” 

419 F.3d 249, 254-55 (3d Cir. 2005). We are not persuaded 

by Claxton’s argument that this case presents an opportunity 

to impose the “rare sanction” of dismissal. Id. at 254. 
40

Claxton offers no record evidence demonstrating that 

the government in this case willfully withheld the Turnbull 

and Springette Letters. Indeed, the letters were promptly 

turned over during trial once they were located by the various 

government agencies, all in time for Claxton to conduct cross 

examination using the materials. Although the government 

did initially fail to promptly turn these letters over to Claxton 

at the appropriate time, we cannot conclude that this delay 

was willful or that it impacted Claxton’s due process rights, 

and we thus reject Claxton’s Brady argument with respect to 

the Turnbull and Springette Letters.

We also reject Claxton’s contention that he was unable 

to obtain the Isaac Letters. In essence, his argument appears 

to be little more than an attempt to manufacture a Brady claim 

despite his failure to obtain the material by other means. In 

Perdomo, we recognized that “[e]vidence is not considered to 

be suppressed if the defendant either knew or should have 

known of the essential facts permitting him to take advantage 

of any exculpatory evidence.” 929 F.2d at 973 (citing United 

States v. Torres, 719 F.2d 549 (2d Cir. 1983)). Here, 

Claxton’s examination of Isaac demonstrated counsel’s 

knowledge of the “essential facts” of the Isaac Letters, and 

touched on many of the points counsel believed to be relevant 

to that examination. 

Moreover, counsel’s examination was undertaken 

using the transcript from the 2007 trial, in which Mark’s 

counsel conducted cross examination using the letter itself—

thus indicating that Mark’s counsel possessed the letter and 

that it was available to Claxton’s counsel independent of the 

government. Contrary to Claxton’s assertion, therefore, it 

appears as though he could have obtained the Isaac Letters 

from a co-defendant’s counsel. This would have obviated the 

need for the government to turn it over. In light of these 
41

facts, it is Claxton who must bear the burden of his failure to 

“‘diligently seek . . . discovery.’” U.S. v. Dula, 989 F.2d 772, 

775 n.9 (5th Cir. 1993) (quoting United States v. McKenzie, 

768 F.2d 602, 608 (5th Cir. 1985)). We therefore conclude 

that the District Court’s implicit denial of Claxton’s claimed 

Brady violations was proper.

F. Safety valve relief 

Claxton’s final contention is that the District Court 

erred in finding that he did not qualify for safety valve relief 

as provided in United States Sentencing Guidelines 

(“U.S.S.G.”) § 5C1.2. We exercise plenary review over a 

district court’s interpretation of the sentencing guidelines, but 

we may reject the court’s underlying factual findings only on 

a showing of clear error. United States v. Sabir, 117 F.3d 

750, 752 (3d Cir. 1997). 

The safety valve provision in § 5C1.2 provides that a 

district court may disregard an otherwise applicable statutory 

mandatory minimum sentence in certain drug crimes, 

provided that the five factors set forth in 18 U.S.C. §§ 

3553(f)(1)-(5) are met. U.S.S.G. § 5C1.2(a). The parties 

only dispute the applicability of the fifth factor in this case, 

which permits a district court to impose a sentence “without 

regard to any statutory minimum sentence,” provided that:

[N]ot later than the time of the 

sentencing hearing, the defendant 

has truthfully provided to the 

Government all information and 

evidence the defendant has 

concerning the offense or offenses 

that were part of the same course 

of conduct or of a common 

scheme or plan, but the fact that 
42

the defendant has no relevant or 

useful other information to 

provide or that the Government is 

already aware of the information 

shall not preclude a determination 

by the court that the defendant has 

complied with this requirement.

Id.

Claxton raised the applicability of § 5C1.2 at the 

sentencing hearing, at which time he submitted evidence of a 

proffer session held with investigators with respect to a 

separate investigation targeting corruption in the Virgin 

Islands Police Department. The evidence adduced at 

sentencing demonstrated that Claxton was questioned for 

approximately forty-five minutes primarily about his 

knowledge of alleged dog fighting activities. The 

investigators did question Claxton about whether he had ever 

seen Mark or Blyden at any of the dog fights, but asked 

nothing about the drug conspiracy with which Claxton was 

charged, nor did Claxton independently offer any information 

about that crime. At the end of the proffer session, the 

investigators met privately for approximately ten minutes, at 

which time they returned and informed Claxton that “‘[they] 

ha[d] no use for [him].’” App. at 486.

Claxton maintains that the proffer session was 

sufficient to meet the requirements of the fifth element of § 

5C1.2; thus rendering him eligible for safety valve relief. We 

disagree. To be eligible for such relief, Claxton must have 

shown that he “provided to the Government all information 

and evidence [he had] concerning the offense or offenses that 

were part of the same course of conduct or of a common 
43

scheme or plan” as the charged offense. U.S.S.G. § 

5C1.2(a)(5) (emphasis added). Such a showing “requires the 

defendant to reveal a broader scope of information about the 

relevant criminal conduct to authorities.” Sabir, 117 F.3d at 

753. Claxton bears the burden of establishing that each 

element of the safety valve criteria applies by a 

preponderance of the evidence. Id. at 754.

The District Court noted at sentencing that: 

[E]ven if the questions were 

propounded in the manner that the 

defense recollects, and the 

defendant answered those 

questions, if those questions have 

no bearing on the offense that’s 

being charged or related offenses, 

it seems that it doesn’t obviate the 

need for the defendant still to do 

as the statute requires, which is to 

share with the government all 

information and evidence that the 

defendant has concerning the 

offense or offenses that were part 

of the same scheme. 

App. at 508-09. A review of Claxton’s affidavit reveals that 

the dog fighting activities he discussed at the proffer session 

do not appear to be related to the drug trafficking offense for 

which he was charged. To the extent that he was asked about 

co-defendants Mark and Blyden, Claxton could only report 

having seen Mark at the dog fights. Based upon Claxton’s 

recollection, there was no questioning about the drug 

conspiracy whatsoever. On these facts, we cannot say that 
44

Claxton has met his burden of demonstrating by a 

preponderance of the evidence that he provided “all 

information” he had regarding the drug trafficking 

conspiracy. U.S.S.G. § 5C1.2(a)(5) (emphasis added). The 

mere fact that the investigators did not ask the “right” 

questions for purposes of Claxton’s safety valve claim did not 

relieve him of his burden under the safety valve provision. 

The District Court did not err in concluding the same, and we 

will affirm its decision.

IV.

For the reasons set forth above, we will affirm 

Claxton’s conviction and sentence.
COWEN, Circuit Judge.

I write separately because I believe that Claxton failed 

to preserve his Sixth Amendment challenge for our 

consideration, and I would not reach the merits of that issue. 

I join the majority’s opinion in all other respects.

I would conclude that Claxton failed to preserve his 

Sixth Amendment challenge because he failed to adequately 

compose the record. On March 23, 2010, the District Court 

orally denied his motion to dismiss on Sixth Amendment

grounds. The transcript of that proceeding (“the 3-23-10 

Transcript”) constitutes a necessary part of the record on 

appeal. See FED. R. APP. P. 10(a)(2), 30(a)(1); 3d Cir. L.A.R. 

30.3(a) (establishing that transcripts must be included in the 

appendix if they are “necessary for an understanding of the 

issues presented for decision”). Although Claxton ordered 

the 3-23-10 Transcript,1and although it was made part of the 

 

1

See Tr. Purchase Order, United States v. Mark, No. 

06-cr-80 (D.V.I. Nov. 26, 2012), ECF No. 1402. Notably, 

Claxton’s request for the transcript was untimely. He filed 

the notice of this appeal in the District Court on October 9, 

2012. He was then bound to order the 3-23-10 Transcript 

within fourteen days. See FED. R. APP. P. 10(b)(1). But he 

did not order the 3-23-10 Transcript until November 26, 

2012, forty-eight days later. It appears that this, too, might 

warrant dismissal of this aspect of the appeal. See 3d Cir. 

L.A.R. 11.1 (2010) (“Within 14 days after filing a notice of 

appeal, the appellant must deposit with the court report the 

estimated cost of the transcript of all or the necessary part of 
2

District Court’s record,2he has failed to include, provide 

explicit citation to, or otherwise refer to it on appeal.

Claxton’s failure to include, explicitly cite, or 

otherwise refer to the relevant portions of the District Court 

record warrants dismissal pursuant to the Federal Rule of 

Appellate Procedure 30 and related case law. Marcinak v. W. 

Indies Inv. Co., 299 F.2d 821, 823 (3d Cir. 1962) (“Although 

all of the record is ‘available’ to the court on appeal, unless 

there is some special circumstance nothing will be noticed 

that does not appear in the appendix of the appellant or the 

appellee.”); Hornin v. Montgomery Ward & Co., 120 F.2d 

500, 504 (3d Cir. 1941); see also Abner v. Scott Mem’l Hosp., 

634 F.3d 962, 964-65 (7th Cir. 2011) (surveying cases from 

both the United States Court of Appeals for the Seventh 

Circuit and other courts that dismissed appeals (or summarily 

affirmed district court judgments) as sanction for violating 

Federal Rule of Appellate Procedure 30); United States v. 

Kush, 579 F.2d 394, 397 (6th Cir. 1978) (“In published 

Opinions, this court has dismissed appeals for failure to 

comply with Rule 30.”). Such dismissal, though generally 

disfavored, falls within the exercise of this Court’s sound 

 

the notes of testimony taken at trial. . . . Failure to comply 

with this rule constitutes grounds for dismissal of the 

appeal.”); Horner Equip. Int’l, Inc. v. Seascape Pool Ctr., 884 

F.2d 89, 92-93 (3d Cir. 1989).

2

See 3-23-10 Transcript, United States v. Mark, No. 

06-cr-80 (D.V.I. Jan. 20, 2013), ECF No. 1408. Because the 

3-23-10 Transcript was docketed in the District Court in 

January of 2013, three months before the defendant filed the 

Joint Appendix, his failure to include, cite, or refer to the 3-

23-10 Transcript on appeal is puzzling.
3

discretion. See FED. R. APP. P. 3(a)(2); see also Horner 

Equip., 884 F.2d at 93.

To be sure, dismissal seems particularly appropriate 

here. As noted in the margin, Claxton ordered a copy of that 

transcript before assembling an appendix for appeal. Further, 

it appears that he had ample opportunity to review and 

analyze the substance of the 3-23-10 Transcript, which was 

docketed in the District Court approximately three months 

before he submitted his appendix to this Court. Accordingly, 

he has no excuse for failing to either point us generally to that 

document or draw our attention to specific portions of it.

It has been oft-noted that “‘Judges are not like pigs, 

hunting for truffles buried in’ the record.” Doeblers’ Pa. 

Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 (3d Cir. 2006) 

(quoting Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 

309 F.3d 433, 436 (7th Cir. 2002) (quoting United States v. 

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam))). 

And this Court has frequently instructed parties that they bear 

the responsibility to comb the record and point the Court to 

the facts that support their arguments. See id.; Hornin, 120 

F.2d at 504; see also Chavez v. Sec’y Fl. Dep’t of Corr., 647 

F.3d 1057, 1061 (11th Cir. 2011) (“Making [the] courts dig 

through volumes of documents and transcripts would shift the 

burden of sifting from [appellants] to the courts. With a 

typically heavy caseload and always limited resources, [the 

courts] cannot be expected to do [an appellant’s] work for 

him.”); Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 

F.3d 990, 1001 (7th Cir. 2004) (“[W]e will not root through 

the hundreds of documents and thousands of pages that make 

up the record here to make [the appellant’s] case for him.”). 

Because Claxton failed to heed those warnings, his appeal, 
4

insofar as it relates to that failure, should have been 

dismissed.