NOT RECOMMENDED FOR PUBLICATION 

File Name: 17a0650n.06 

Nos. 16-6320/6321 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

SAMUEL ROSSE III, 

 Defendant-Appellant. 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF TENNESSEE 

BEFORE: MERRITT, MOORE, and ROGERS, Circuit Judges. 

 ROGERS, Circuit Judge. Samuel Rosse III pled guilty to selling and conspiring to sell 

methamphetamine, but he reserved the right to appeal the district court’s rulings on a number of 

motions. In particular, Rosse argues that the district court should have: dismissed the first 

indictment with prejudice in response to his first speedy-trial motion; dismissed the second 

indictment for either vindictive prosecution or excessive pre-indictment delay; dismissed the 

second indictment for various speedy-trial-related reasons; granted his motion to dismiss or, in 

the alternative, allowed him to withdraw his guilty plea due to prosecutorial misconduct; and 

held another sentencing hearing after we initially remanded his case. In the end, each of these 

arguments lacks merit. 
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I. 

 On April 28, 2012, Arkansas police arrested Jeff Culbreath for attempting to sell 

methamphetamine. Culbreath claimed to have received those drugs from Rosse. Culbreath then 

cooperated with the investigators, making recorded calls to Rosse in order to arrange a controlled 

purchase of one pound of methamphetamine. The two met on May 3 in Memphis, TN, where 

Rosse handed Culbreath a plastic bag. Investigators arrested Rosse and seized the bag, which 

contained between six- and seven-hundred grams of 99.2% pure methamphetamine. 

In subsequent searches of the warehouse where Rosse was believed to have lived and 

manufactured methamphetamine, officers found a large sum of cash, 37 firearms, ammunition of 

various calibers, laptop computers, and cell phones that contained pictures of the 

methamphetamine manufacturing process. Further investigation revealed that Rosse had for 

years enlisted the help of others, including Jeff and Paula Culbreath (Rosse’s then-girlfriend), to 

sell the methamphetamine he manufactured. 

 On September 19, 2012, a federal grand jury indicted Rosse on one count of possession 

with intent to distribute more than fifty grams of methamphetamine in violation of 21 U.S.C. 

§ 841(a)(1). Rosse made his initial appearance in federal court on September 20, made bond, 

and was arraigned on October 17. The court initially set the report date for February 1, 2013, 

and after a great number of continuances for various reasons,1

 Rosse eventually appeared in 

 

1

 The case was first continued until March 27 to allow for further preparation. On March 27 defense 

counsel requested time to complete a mental evaluation, so the court continued the case until April 26. 

The court again continued the case until May 23. On May 22 Rosse moved to continue the report date 

due to illness, the court granted that motion and set the report date for June 19. On that date and after 

denying another motion to continue, the court set an August 19 trial date. On August 9, Rosse, wishing to 

interview additional witnesses, filed another motion to continue. After initially denying the motion, the 

court granted a short continuance after a meeting in camera, continuing the trial until August 26. The 

court set a hearing on August 22 for Rosse to change his plea, but Rosse did not appear due to an apparent 

suicide attempt. At the August 22 hearing, the government moved to revoke Rosse’s bond pending a 

competency evaluation, arguing that Rosse was either a danger to himself or was intentionally delaying 
Nos. 16-6320/6321, United States v. Rosse 

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court on September 9, 2013. On that date, the court granted the government’s pending motion 

for a mental evaluation and ordered Rosse into custody for a competency determination. Rosse 

changed counsel on September 12, and at his new counsel’s request, the court set a detention 

hearing for September 18 to decide whether Rosse could self-report for the competency 

evaluation. On September 18 the court concluded that either Rosse had a mental health issue or 

else he was a flight risk, so it ordered him to submit to the mental competency exam in custody. 

 Meanwhile Rosse had filed his first motion to dismiss on September 16, arguing that the 

abovementioned delays violated the Speedy Trial Act, 18 U.S.C. §§ 3161–3162. The court 

referred that motion to a magistrate judge. The government conceded a technical violation of the 

Speedy Trial Act but maintained that dismissal should be without prejudice based on the factors 

enumerated in 18 U.S.C. § 3162(a)(1). On October 7 the magistrate judge recommended that the 

court dismiss the indictment because the 77-day delay between Rosse’s arraignment and trial 

violated the Speedy Trial Act. However, considering “the seriousness of the offense; the facts 

and circumstances of the case which led to the dismissal; and the impact of a reprosecution on 

the administration of this chapter and on the administration of justice,” as 18 U.S.C. § 3162(a)(1) 

instructs, the magistrate judge agreed with the government that the dismissal should be without 

prejudice. First, the magistrate judge found that the charged drug offense was categorically 

serious under United States v. Moss, 217 F.3d 426, 431 (6th Cir. 2000). Second, the magistrate 

judge found that the 77-day delay was a mere oversight, led to no tactical advantage for the 

government, and did not prejudice Rosse. Third, the magistrate judge found that, under United 

States v. Robinson, 389 F.3d 582, 587–88 (6th Cir. 2004), because the delay caused no actual 

 

the case. The government also informed the court that Rosse had asked Jeff Culbreath to perjure his 

testimony, and defense counsel confirmed that there had been contact between the two men. Rosse did 

not appear on August 26 because he was still in the hospital, so the court reset the matter for September 3. 

On September 3 Rosse’s counsel informed the court that Rosse had been transferred to a different medical 

facility. The court again reset the case for September 9. 
Nos. 16-6320/6321, United States v. Rosse 

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prejudice and there was no prosecutorial misconduct, reprosecution would not impact the 

administration of justice. Rosse objected to the magistrate judge’s recommendation, arguing that 

the delay was actually 107 days. Rosse also argued for the first time that the § 3162(a)(1) factors 

favored dismissal with prejudice, maintaining that he was and continued to be prejudiced by the 

delay and that the prosecution’s motion for a mental evaluation amounted to prosecutorial 

misconduct. 

 In a January 22, 2014 order, the district court agreed with Rosse that the delay was 

actually 107 days but otherwise adopted the magistrate judge’s recommendation. Responding to 

Rosse’s objections, the district court found that the 107-day delay was neither excessive nor did 

it prejudice Rosse. The court further refused to find prejudice because Rosse was out on bond 

during the non-excludable portion of the delay, until the court deemed custodial treatment and 

mental evaluation necessary. Finally, the Court found that “the process and the ultimate report 

stemming from the mental evaluation will not impact [Rosse’s] defense upon reprosecution[,] 

nor does it demonstrate any Governmental misconduct,” noting that Rosse’s counsel had also 

sought a competency determination earlier in the litigation. The district court dismissed the 

indictment without prejudice. 

 On the previous day, January 21, the government filed a criminal complaint against 

Rosse, and a grand jury re-indicted him on January 30, charging him with possession with intent 

to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). At 

a detention hearing held that day, a magistrate judge granted Rosse conditional release on a 

$15,000 bond. The next day, the government appealed that release order to the district court, 

which granted a stay and set the matter for hearing on February 5. At that hearing the 

government put on evidence and argued that Rosse had failed to appear for his scheduled trial in 
Nos. 16-6320/6321, United States v. Rosse 

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order to locate and threaten the government’s witnesses. The government also announced that it 

was preparing a superseding indictment based on that new information. After a continuance at 

the request of defense counsel, the court denied bond on February 18. 

 On March 19, the grand jury returned a superseding indictment charging Rosse with 

conspiracy to manufacture, possess with intent to distribute, and distribute more than 50 grams of 

methamphetamine in violation of 21 U.S.C. § 846, and with possession with intent to distribute 

670.5 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). The indictment also 

sought criminal forfeiture of property derived from Rosse’s alleged crimes. At his initial 

appearance on March 27, Rosse requested additional time to review discovery and prepare a 

motion to dismiss alleging prosecutorial vindictiveness, which the court granted. 

 On April 11, 2014, Rosse filed his second motion to dismiss, which alleged vindictive 

prosecution. Rosse argued that the government had sought the superseding indictment in 

retaliation for Rosse’s successful exercise of his right to dismiss the first indictment under the 

Speedy Trial Act and for his detention hearing before the magistrate judge. Rosse also claimed 

that his Fifth Amendment rights were violated by a pretrial delay of more than a year. In 

response, the government argued that Rosse had not shown a realistic probability of 

vindictiveness and had failed to demonstrate the prejudice necessary to his constitutional claim. 

The court referred the motion to a magistrate judge, who, after a continuance at the request of 

defense counsel, held a hearing on May 28. After that hearing Rosse filed a bench brief in which 

he, among other things, argued for the first time that the prosecution was “actually vindictive,” 

i.e., that the prosecution acted with the actual intent to punish him for the exercise of his rights, 

after having conceded at the hearing that he was not pursuing such a claim. After considering 

the evidence, including an in-camera review of the grand jury testimony, the magistrate judge 
Nos. 16-6320/6321, United States v. Rosse 

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issued a recommendation on June 25, which rejected all of Rosse’s arguments and recommended 

that the motion be denied. Rosse objected to the magistrate judge’s findings on his actual 

vindictiveness and realistic probability of vindictiveness arguments. 

 After a de novo review of the magistrate judge’s recommendation, the district court 

rejected the two arguments raised in Rosse’s objections. Although the court found the actual 

vindictiveness argument waived, the district court considered the claim “out of an abundance of 

caution,” before finding it “substantially without merit.” The district court also rejected Rosse’s 

reasonable likelihood of vindictiveness argument. Relying on Bragan v. Poindexter, 249 F.3d 

476 (6th Cir. 2001), the court noted that Rosse’s claim required him to “establish[] [that] he 

exercised a protected right, the prosecutor has some ‘stake’ in deterring the petitioner’s exercise 

of his right[,] the prosecutor’s conduct was somehow ‘unreasonable[,]’ and there was as an intent 

to punish.” The district court found that, because the prosecution would not have to retry the 

case or incur considerable additional expenditures after either motion, “the Magistrate analyzed 

the facts of this case and correctly found that, at this stage, no perceived prosecutorial stake 

existed.” The court then rejected Rosse’s argument that the government’s seeking of the 

superseding indictment was unreasonable, noting: 

 The Magistrate Judge determined that the prosecutor’s decision to seek the 

superseding indictment, even if evidence of more severe charges was available 

and known to the Government at the time the original indictment was sought, was 

not unreasonable. The Magistrate determined that not only does a prosecutor 

have the right to negotiate a guilty plea but also has the discretion to seek 

additional charges. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Allegations 

that AUSA Kitchen’s conduct was unreasonable in this case [are] speculative and 

without support in the record. 

Finally, the court found that the mere filing of a superseding indictment does not reflect an intent 

to punish generally and that here specifically the two sentences would most likely merge and 
Nos. 16-6320/6321, United States v. Rosse 

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cause no increase to Rosse’s total punishment. Thus, the district court adopted the magistrate 

judge’s recommendation and denied Rosse’s motion to dismiss.2

 While Rosse’s second motion to dismiss was still pending, he filed a third motion to 

dismiss on July 22, which alleged that the government had violated the Speedy Trial Act, 

Western District of Tennessee Speedy Trial Plan, Fed. R. Crim. P. 48(b), and the Sixth 

Amendment. The district court denied the motion two days later. The court found that the 

although the seventy-day period under the Speedy Trial Act had passed, all of that time except 

for seven days was excludable, most of it due to Rosse’s several motions and continuances. The 

court also found that the delay from Rosse’s prior case did not count towards any constitutional 

violation because “a new Speedy Trial clock starts each time the Government re-indicts a 

defendant.” 

 On July 25 Rosse pled guilty to both counts in the superseding indictment, but he 

reserved the right to appeal the district court’s rulings on his various motions. The court held a 

sentencing hearing over two days in early 2015. Several witnesses, including Paula and Jeff 

Culbreath, testified against Rosse. The court ultimately sentenced Rosse to a below-guidelines 

term of 324 months’ imprisonment. Rosse appealed, but before briefing Rosse’s counsel 

discovered evidence that he believed to show that state prosecutors had treated Jeff Culbreath 

leniently in exchange for his cooperation with federal authorities. Rosse’s counsel also 

discovered the 2014 felony drug conviction of Paula Culbreath that the government did not 

disclose. Rosse also claimed that, based on this new information, the government had knowingly 

allowed both Paula and Jeff Culbreath to testify falsely at his sentencing hearing. With consent 

 

2

 The district court did not consider the Fifth Amendment and Speedy Trial arguments in the second 

motion because Rosse did not object to the magistrate judge’s finding on those points. 
Nos. 16-6320/6321, United States v. Rosse 

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of both parties, we vacated the judgment and remanded the case for the district court to consider 

whether the government had violated Brady and Giglio. 

 On remand Rosse again moved to dismiss the indictment or, in the alternative, to 

withdraw his guilty plea. He alleged that the government had violated Brady and Giglio by 

failing to disclose relevant impeachment evidence of Jeff and Paula Culbreath, and that “the 

government allowed [the Culbreath siblings] to testify falsely under oath.” After a two-day 

evidentiary hearing, at which both Paula and Jeff Culbreath testified, along with several other 

witnesses, the court denied the motion. The court concluded that there were no Brady violations 

with regard to Jeff Culbreath because: 

 There has been no showing that the Government failed to knowingly 

disclose Jeffrey Culbreath’s cooperation and the leniency afforded him in his 

Arkansas case. Culbreath’s drug-related arrests and his cooperation with officials 

were openly disclosed and discussed in all proceedings before this Court. What 

happened at Culbreath’s sentencing hearing and the content of the Hansom letter 

have now been fully presented and explored. This Court concludes that this 

additional information is cumulative and of little value, given the totality of 

Culbreath’s past, as communicated to the Court throughout the pendency of this 

case. The Court finds there were no Brady violations in reference to Jeffrey 

Culbreath. Kyles, 514 U.S. at 437-38. 

Similarly, the government committed no Brady violations with respect to Paula Culbreath 

because: 

 Paula Culbreath admitted that she was sentenced to serve ten years of 

probation for the Arkansas state court charges. She freely discussed and admitted 

her extensive drug use, criminal convictions and her involvement with Rosse’s 

methamphetamine operation. Ultimately, given the facts of this case, if the 

Government failed to timely disclose all of Paula Culbreath’s prior convictions, or 

correct any misstatements or omissions, it does not rise to the level of a Brady 

violation or impact the outcome of this case or the sentence imposed. . . . 

 The Court finds the inconsistencies in Paula Culbreath’s testimony 

regarding the total number of her drug convictions are inconsequential to the 

Court’s determination regarding her credibility. This so called new information 

has no impact on Rosse’s final sentence. 
Nos. 16-6320/6321, United States v. Rosse 

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Finally, the district court found that any withheld evidence would have been cumulative and thus 

non-prejudicial, noting that: 

 The bottom line is that the Court is fully aware of the nature of 

cooperators, and the fact that cooperators are usually not members of church 

choirs. As noted, the nature of the additional information about the Culbreaths is 

cumulative. In other words, it is more of the same type of impeachment 

information that they had already admitted to. In this case, there is no 

prosecutorial misconduct or “corruption of the truth-seeking function of the trial 

process.” United States v. Agurs, 427 U.S. 97, 120 (1976). Therefore, the 

Defendant has not established cause or prejudice under Brady for the Court to 

grant the motion to dismiss this case. 

 The court also denied Rosse’s motion to withdraw his guilty plea. The court relied on the 

seven-factor test from United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994): 

When deciding whether there is a “fair and just reason” to grant a defendant’s 

motion to withdraw his guilty plea, the district court must consider several factors 

including: 1) the timeliness of the motion; 2) any reason for the untimeliness; 

3) assertion of innocence; 4) the circumstances surrounding the guilty plea; 5) the 

background of the defendant; 6) the defendant’s exposure to the criminal justice 

system; and 7) prejudice to the government if the motion is granted. 

To the first point, the court found that Rosse’s motion, having been filed 18 months after his 

plea, was untimely, and to the second point, that Rosse lacked good reason for that delay. To the 

third and fourth points, the court found that Rosse had never maintained his innocence, and that 

nothing in the record suggested that he would have pled differently had the withheld evidence 

been turned over. The court also found the fifth and sixth factors to weigh against allowing 

withdrawal, noting that, although this was Rosse’s first offense, he led a very large and 

successful drug enterprise and understood the charges and proceedings against him. Relying on 

United States v. Lineback, 330 F.3d 441, 445 (6th Cir. 2003) (Gilman, J., concurring), the court 

did not consider the seventh factor because all of the others weighed against Rosse. Having 

found Rosse’s allegations to be without merit and thus finding no need to reconsider his 
Nos. 16-6320/6321, United States v. Rosse 

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sentence, the court then re-imposed the same below-guidelines 324-month sentence without 

further hearing. 

 Rosse now appeals the district courts’ rulings on several of the motions he has filed 

across his two cases, and he claims procedural error in his sentence on remand. We address each 

argument in turn. 

II. First Motion to Dismiss (Speedy Trial Act) 

 The district court did not abuse its discretion when it dismissed the first indictment 

without prejudice.3 The Speedy Trial Act instructs courts, when deciding whether to dismiss an 

indictment with or without prejudice, to consider “the seriousness of the offense; the facts and 

circumstances of the case which led to the dismissal; and the impact of a reprosecution on the 

administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(1). All 

of these factors weigh against dismissal with prejudice in this case. First, drug offenses are 

categorically serious for purposes of the Speedy Trial Act, see United States v. Moss, 217 F.3d 

426, 431 (6th Cir. 2000), and Rosse has marshalled no authority to support his argument that the 

government’s refusal to indict his coconspirators somehow makes his offense less serious. 

Second, the facts and circumstances that led to the dismissal do not show any bad faith or 

attempt to gain a tactical advantage on the part of the government. Rosse’s argument that the 

government, in “bad faith,” sought a “frivolous” mental competency evaluation as a way around 

 

3

 Where, as here, the district court “set[s] forth written findings with regard to the[] factors [enumerated in 

the Speedy Trial Act, 18 U.S.C. § 3162(a)],” United States v. Moss, 217 F.3d 426, 430 (6th Cir. 2000) 

(quoting United States v. Pierce, 17 F.3d 146, 148 (6th Cir. 1994)), we review the court’s decision to 

dismiss an indictment with or without prejudice under a “modified abuse of discretion standard,” id.

(quoting United States v. Kottmyer, 961 F.2d 569, 572 (6th Cir. 1992)). Under that standard, “the district 

court’s factual findings will be reversed only if the findings are clearly erroneous,” id. at 430–31 (quoting 

United States v. Taylor, 487 U.S. 326, 336 (1988)), and the district court’s “judgment of how opposing 

considerations balance” in applying those statutory criteria to the facts “should not be lightly disturbed.” 

Id. at 431 (quoting Taylor, 487 U.S. at 337). 
Nos. 16-6320/6321, United States v. Rosse 

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the Speedy Trial Act is particularly weak because it was defense counsel who first suggested the 

need for a competency evaluation. To the third point, the most relevant considerations are 

“whether the defendant suffered actual prejudice as a result of the delay and whether the 

government engaged in prosecutorial misconduct that must be deterred to ensure compliance 

with the Act.” United States v. Robinson, 389 F.3d 582, 589 (6th Cir. 2004). Rosse has not 

shown that he suffered any actual prejudice due to the delay, and the only misconduct he alleges 

is the government’s having sought a competency evaluation, which as noted above is baseless.4 

Finally, Rosse has not shown any of the district court’s factual findings undergirding the above 

analysis to be clear error. Therefore, dismissal without prejudice was proper. 

III. Second Motion to Dismiss 

(Vindictive Prosecution and Fifth Amendment Pre-Indictment Delay) 

 The district court’s denial of Rosse’s second motion to dismiss was not erroneous 

because he did not show that the prosecution acted vindictively or that any pre-indictment delay 

violated the Fifth Amendment. 

 Rosse has not made out a vindictive prosecution claim because he has failed to show a 

“reasonable likelihood of vindictiveness,”5

 so the district court did not abuse its discretion when 

it denied his motion on that ground. See United States v. Young, 847 F.3d 328, 361 (6th Cir. 

2017) (motion to dismiss for prosecutorial vindictiveness reviewed under abuse of discretion 

standard). Rosse argues that he is entitled to a “presumption of vindictiveness” that the 

 

4

 The government’s subsequent actions (e.g., anything relating to the second indictment, including the 

alleged Brady violations discussed infra), have no bearing on whether the first indictment should have 

been dismissed with prejudice because the district court judge could not have seen the future. 

5

 The district court correctly found that Rosse did not preserve his “actual vindictiveness” argument. 

Rosse raised this argument for the first time in his Bench Brief before the magistrate judge, but he had 

already abandoned the argument during the evidentiary hearing. The magistrate judge considered the 

argument waived and did not address it. Because failing to raise an argument before a magistrate judge 

precludes appellate review, Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000), explicit waiver 

of an argument before a magistrate judge must also do the same a fortiori. 
Nos. 16-6320/6321, United States v. Rosse 

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government has failed to rebut. But in order to invoke that presumption, a defendant must show 

that “the prosecutor has some stake in deterring the petitioner’s exercise of his rights,” Bragan v. 

Poindexter, 249 F.3d 476, 482 (6th Cir. 2001) (internal numbering quotations omitted), which 

Rosse has not done. The government had no “stake” in Rosse’s motions contesting his detention 

and lack of speedy trial. Invoking a presumption of vindictiveness in a pretrial setting, though 

possible, see United States v. Andrews, 633 F.2d 449, 453–56 (6th Cir. 1980) (en banc), is 

necessarily difficult. That is because “a defendant before trial is expected to invoke procedural 

rights that inevitably impose some ‘burden’ on the prosecutor,” and “[i]t is unrealistic to assume 

that a prosecutor’s probable response to such motions is to seek to penalize and to deter.” United 

States v. Suarez, 263 F.3d 468, 479–80 (6th Cir. 2001) (quoting United States v. Goodwin, 

457 U.S. 368, 381 (1982)). Here, the burden imposed on the prosecution by Rosse’s pretrial 

motions was minimal. As in Goodwin, id. at 383, Rosse’s motions did not require the 

prosecution to “do over what it thought it had already done correctly,” United States v. Roach, 

502 F.3d 425, 444 (6th Cir. 2007). Unlike in Blackledge v. Perry, 417 U.S. 21 (1974), Rosse’s 

motions did not “clearly require increased expenditures of prosecutorial resources.” Id. at 27. 

Rosse’s motions were merely garden-variety pretrial motions of the kind found not to burden the 

prosecution in Suarez, 263 F.3d at 479–80, which involved motions to dismiss the indictment 

and suppress evidence. Because the prosecution here lacked a sufficient “stake,” there is no 

reason to presume vindictiveness.

 United States v. LaDeau, 734 F.3d 561 (6th Cir. 2013), is not to the contrary. There, the 

defendant, charged with possessing child pornography, successfully moved to suppress “crucial 

evidence” underlying his possession charge, thereby “eviscerat[ing] the government’s possession 

case.” Id. at 569. We held that the prosecution had a stake in the defendant’s exercise of that 
Nos. 16-6320/6321, United States v. Rosse 

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right because it “forced the government to restart its prosecution from square one.” Id. at 570. 

The case here is very different. After Rosse successfully moved to dismiss the first indictment, 

the government simply filed a criminal complaint and sought a new indictment. In United States 

v. Moon, 513 F.3d 527 (6th Cir. 2008), we held that the need to refile an indictment did not 

create a sufficient prosecutorial “stake” in the outcome, id. at 536, and the same is true here. In 

addition, after Rosse’s successful bond hearing before a magistrate judge, the government 

appealed that determination to the district court with relative ease. Unlike in LaDeau, where the 

defendant’s exercise of his rights saddled the government with the considerable burden of 

starting its entire case from scratch, 734 F.3d at 570, Rosse’s motions were at most a minor 

inconvenience. Thus, because Rosse’s motions hurt the prosecution far less than LaDeau’s, that 

case gives no reason to presume here that the government sought the superseding indictment as 

retaliation for Rosse’s pretrial motions. 

 Rosse also makes an argument that pre-indictment delay violated his Fifth Amendment 

rights, but that is not so. To claim pre-indictment delay in violation of the Fifth Amendment, a 

defendant must show that the delay itself has caused actual prejudice. United States v. Schaffer, 

586 F.3d 414, 425–26 (6th Cir. 2009). Rosse has not made that argument. 

IV. Third Motion to Dismiss (W.D.T.N. Speedy Trial Plan, Fed. R. Crim. P. 48, 

Speedy Trial Act, Sixth Amendment Speedy Trial Clause) 

 The district court did not err by denying Rosse’s third motion to dismiss because Rosse 

did not state a violation of any of the proffered legal bases. 

 First, Rosse’s claim that the second indictment should be dismissed with prejudice 

because the government did not comply with the Western District of Tennessee Speedy Trial 

Plan is baseless. That plan does not create enforceable substantive rights; it merely reflects that 

court’s strategy for implementing the requirements of the Speedy Trial Act. In United States v. 
Nos. 16-6320/6321, United States v. Rosse 

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Cianciola, 920 F.2d 1295 (6th Cir. 1990), we held that the government’s failure to comply with 

the same speedy-trial plan did not establish a violation of the Speedy Trial Act itself. See id. at 

1299. Thus, the district court’s rejection of this argument was proper. 

 Second, Rosse’s claim under the Speedy Trial Act fails because it does not account for 

excludable time. The Speedy Trial Act requires a defendant’s trial to “commence within seventy 

days from the filing date (and making public) of the information or indictment, or from the date 

the defendant has appeared before a judicial officer of the court in which such charge is pending, 

whichever date last occurs,” 18 U.S.C. § 3161(c)(1), but delays attributable to pretrial motions 

and continuances are excluded from the seventy-day limitation. United States v. Gardner, 

488 F.3d 700, 717 (6th Cir. 2007). Here, the district court calculated each excludable day, noting 

the event that triggered the exclusion, and Rosse does not argue that those calculations were 

erroneous. The district court correctly rejected this claim. 

 Third, the delay did not violate Fed. R. Crim. P. 48 for basically the same reason. That 

rule gives the district court discretionary authority to dismiss an indictment when an 

“unnecessary delay occurs in[] . . . bringing a defendant to trial.” Fed. R. Crim. P. 48(b)(3). The 

delay in Rosse’s case was not unnecessary: there were no statutory or constitutional speedy-trial 

violations, and as noted above, there were only seven days of non-excludable delay, a calculation 

that Rosse does not challenge. Thus, because Rosse has not shown that he suffered an 

“unnecessary delay,” the district court did not err. 

 Finally, there was no Sixth Amendment Speedy Trial violation here. To assess whether 

there has been a constitutional speedy-trial violation, courts balance four unweighted factors: 

“Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to 

the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). To make out a Sixth Amendment 
Nos. 16-6320/6321, United States v. Rosse 

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violation, a defendant must first show a delay that is “uncommonly long,” otherwise, “judicial 

examination ceases.” United States v. Ferreira, 665 F.3d 701, 705 (6th Cir. 2011) (quoting 

United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006)). Rosse’s argument on this point, 

and in particular the dates from which he calculated the delay, is not entirely clear, but his claim 

of “twenty-two months” is sufficient to put the other factors into play, see Robinson, 455 F.3d at 

607 (one-year delay presumptively prejudicial). That assumption turns out to be inconsequential, 

though, because the remaining factors weigh so strongly against him. Most pertinent here is “the 

reason for the delay,” see Barker, 407 U.S. at 530, where “[t]he core task is determining which 

party shoulders the balance of blameworthiness for this delay.” United States v. O’Dell, 

247 F.3d 655, 667 (6th Cir. 2001). As noted earlier, the vast majority of the delay resulted 

directly from Rosse’s litany of pretrial motions and continuances granted at his request, and 

Rosse has not shown that calculation to be erroneous. The remaining factors weigh against 

Rosse as well. Rosse did not assert his speedy-trial rights until his third motion to dismiss,6

 after 

all of his other arguments had failed before a magistrate judge. Finally, the only forms of 

“prejudice” Rosse points to are the increased charges in the superseding indictment and the less 

favorable plea bargain he received. Those matters are not directly related to time delay in the 

way that “dimming memories and loss of exculpatory evidence” (the examples focused upon in 

Doggett v. United States, 505 U.S. 647, 654 (1992)) might be. Rosse does not come close to 

stating a Speedy Trial Clause violation under Barker.

 

6

 Rosse also asserted his Sixth Amendment Speedy Trial Clause right under the first indictment, but he 

has not preserved that claim. Failure to object to a magistrate judge’s Report and Recommendation 

precludes appellate review. United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). Here, Rosse 

raised his Sixth Amendment argument in his motion to dismiss the first indictment, which the district 

court referred to a magistrate judge. The magistrate judge rejected the argument as not adequately 

developed, and Rosse did not object. That failure prevents appellate review. 
Nos. 16-6320/6321, United States v. Rosse 

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V. Fourth Motion to Dismiss (Prosecutorial Misconduct) 

 The government did not violate Brady v. Maryland, 373 U.S. 83 (1963), or Giglio v. 

United States, 405 U.S. 150 (1972). For that reason, the district court was correct to deny 

Rosse’s motion to dismiss on that ground and to reject his alternative request to permit him to 

withdraw his guilty plea. 

 First, the government did not fail to disclose evidence that Jeff Culbreath had agreed to 

cooperate with either federal or state authorities in exchange for lenient treatment. To establish a 

violation of Brady or Giglio, a defendant must show that the prosecution had favorable and 

material evidence in its control and failed to disclose it. Moore v. Illinois, 408 U.S. 786, 794–95 

(1972). Because the evidence pointed to by Rosse does not contradict Jeff Culbreath’s 

testimony, does not suggest that any leniency agreement between Culbreath and federal officials 

existed, and in any event would be cumulative, the government did not withhold any favorable 

and material impeachment evidence. 

 The transcript of Jeff Culbreath’s Arkansas-state sentencing hearing was not Brady or 

Giglio material. At that hearing, Charles Easterling, the prosecuting attorney, said to the court: 

Your Honor, just as I read that I kinna shutter [sic] with regards to this. However, 

as I have indicated to the Court as Mr. Stanley has indicated to the Court, Mr. 

Culbreath cooperated fully with local officers and also with federal officers with 

regards to a, what I would classify as a very high scale investigation that 

commenced after his arrest and that is the basis for the State’s very lenient 

treatment for this case. 

First, the transcript would not have impeached Culbreath because it was not inconsistent with his 

testimony, in which he merely said that he did not recall what Easterling had said at the hearing. 

Second, the transcript does not show that there was any kind of leniency agreement that would 

have resulted in biased testimony against Rosse. Easterling testified that he alone made the 

decision to grant Culbreath probation, and he could not recall any federal officials contacting 
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him to suggest leniency. Ancel Jines, the state investigator who told Easterling about 

Culbreath’s cooperation, also testified that Easterling was the one who had recommended 

probation. At most, the transcript shows that Culbreath had a leniency agreement with state 

officials due to his cooperation with federal investigators. But any state-level agreement would 

have given Culbreath no reason to give biased testimony at Rosse’s sentencing hearing because 

the state case had concluded long before federal officials ever contacted Culbreath about 

testifying. Because the decision to grant probation was an independent decision made by a state 

prosecutor in a long-since-concluded case, rather than a bargained-for exchange with federal 

officials, there was no motive for Culbreath to fabricate testimony in this case. 

 Nor does the transcript support an inference that, even in the absence of an explicit 

leniency agreement with federal officials, Jeff Culbreath might have testified against Rosse to 

ward off potential federal prosecution. Culbreath already testified that he was aware of the 

possibility that the federal government could charge him at any point, that the government had 

told him that it could not offer him immunity, and that the government made no promise not to 

charge him. So although Culbreath may have had a subjective hope that he would not face 

federal prosecution, that impeachment topic was adequately covered during Rosse’s sentencing 

hearing, and the transcript would not have added anything to that line of inquiry. 

 The letter sent to Easterling by Ted Hansom, Culbreath’s defense attorney in his state 

case, was also not Brady material. The letter merely mentions Culbreath’s cooperation with 

federal officials. It does not suggest that anybody had agreed to treat Jeff Culbreath leniently in 

exchange for that cooperation. Joe Murphy, the Assistant U.S. Attorney whom the letter 

mentioned, testified that standard practice would have been to record in writing any grant of 

immunity to Culbreath, and Murphy further testified that he could not find such a document after 
Nos. 16-6320/6321, United States v. Rosse 

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a diligent search. The record made Jeff Culbreath’s mere cooperation abundantly clear, so this 

letter would have been cumulative where relevant.

 Second, the withheld conviction of Paula Culbreath was not material because it was 

cumulative. The government concedes that it failed to disclose Paula Culbreath’s 2014 

conviction for delivery of methamphetamine when it produced the rest of her criminal history 

prior to Rosse’s sentencing, and it also agrees that the conviction is impeachment material. But 

Rosse was not prejudiced because the impeachment evidence was not material. 

“[The] touchstone of materiality is a ‘reasonable probability’ of a different result,” Kyles v. 

Whitley, 514 U.S. 419, 434 (1995), and when, as here, a defendant’s sentencing hearing follows a 

guilty plea, the question is whether there is a reasonable probability that the favorable 

information would have caused a different result at sentencing. See Banks v. Dretke, 540 U.S. 

668, 698–99, 703 (2004). Prior to his sentencing hearing, the government gave Rosse the 

records of Paula’s many other prior convictions, which all involved methamphetamine. During 

her testimony at Rosse’s sentencing hearing, she admitted to having used methamphetamine 

extensively and having sold several packages of methamphetamine obtained from Rosse. The 

2014 conviction was just more of the same. As the district court explained, “[C]ooperators are 

usually not members of church choirs. As noted, the nature of the additional information about 

the Culbreaths is cumulative. In other words, it is more of the same type of impeachment 

information that they had already admitted to.” At bottom, there is no way that evidence of one 

more conviction, of the same type that Paula Culbreath had already admitted to and had been 

cross-examined about, would have made any difference if introduced at Rosse’s sentencing 

hearing. 
Nos. 16-6320/6321, United States v. Rosse 

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 Rosse has also failed to show that the government suborned perjury. His claim as to Jeff 

Culbreath is meritless because Rosse has failed to show that there was an undisclosed leniency 

agreement between Jeff Culbreath and either state or federal prosecutors, so Jeff Culbreath could 

not have perjured himself when he said that no such agreement existed. As to Paula Culbreath, 

Rosse has failed to show that the government knew her testimony to be false. Of course the 

government can neither knowingly put on false testimony nor fail to correct it, even on matters 

going only to witness credibility. See Napue v. Illinois, 360 U.S. 264, 269 (1959). Paula 

Culbreath did testify in Rosse’s sentencing hearing that her most recent conviction was in 2010, 

when in reality she also had the 2014 conviction discussed above. But Rosse has pointed to no 

evidence, and a search of the record has revealed none, that the government knew about this 

conviction at the time of the sentencing hearing. Moreover, because the conviction was 

cumulative, it would have made no sense for the government to break the law by intentionally 

not correcting the record if it had known about the conviction. The government appears to have 

made an unintentional mistake, and if the government failed to disclose the 2014 conviction due 

to its inadvertence, then it could not have corrected Paula’s now-known-to-be-false testimony 

concerning it. 

 Because there is no evidence of prosecutorial misconduct, the district court did not abuse 

its discretion when it denied Rosse’s request to withdraw his guilty plea. And to the extent that 

Rosse argues that, even apart from any constitutional violation, he might never have pled guilty 

had he known all of the abovementioned information, the argument fails because Rosse would 

never have been entitled to that information—or any impeachment evidence at all—prior to 

entering his guilty plea. See United States v. Ruiz, 536 U.S. 622, 629, 633 (2002). 
Nos. 16-6320/6321, United States v. Rosse 

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VI. Scope of Remand 

 Rosse’s final argument—that the district court erred by not holding a new sentencing 

hearing after we vacated the judgment and remanded the case—is also without merit. Our 

remand order did not require the district court to hold a new sentencing hearing. The entire order 

read: 

 Defendant Samuel Rosse III appeals the order dismissing without 

prejudice an indictment based on speedy-trial violations (Case No. 15-5235) and 

the February 20, 2015 judgment convicting him of two counts of conspiracy to 

manufacture, to possess with intent to distribute, and to distribute 

methamphetamine (Case No. 15-5236). He moves for a remand to the district 

court to address his claim that the government violated the disclosure obligations 

under Brady v. Maryland, 373 U.S. 83 (1963). The government agrees that a 

remand to the district court to address the issues raised by Rosse is necessary. 

 Rosse maintains that the government failed to produce Brady material 

concerning two of the witnesses who testified at his sentencing hearing. The 

documents relied on by Rosse are not part of the district court record and were not 

considered by the district court. The government states that a remand would 

permit the district court to consider these documents and to take additional 

testimony and documents, if necessary, to resolve Rosse’s allegations of 

impropriety. In light of the agreement of the parties, a remand to the district court 

is warranted. 

 The motion to remand, as supplemented, is GRANTED, the February 20, 

2015 judgment is VACATED, and these appeals are REMANDED to the district 

court for further proceedings. 

Our mandate to the district court could not have been clearer: the court was to address the Brady 

allegations that prompted the parties’ consent to a remand. The district court did just that. In the 

counterfactual where those allegations had any merit, then a new sentencing hearing would 

probably have been necessary, but that is not this case. 

 Rosse’s last argument, that the district court committed a procedural error on remand by 

not stating the reasons for its sentence “in open court,” in violation of 18 U.S.C. § 3553(c), also 

fails. The district court initially held a two-day sentencing hearing, in which Rosse called and 

cross-examined witnesses, made arguments to the court, and was given the opportunity to be 
Nos. 16-6320/6321, United States v. Rosse 

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present and allocute. The district court sentenced Rosse in open court after considering the § 

3553 factors. On remand, Rosse had another two-day hearing, in which he again called and 

cross-examined witnesses to support his argument that the government had violated Brady and 

Giglio. After fully considering Rosse’s arguments and the evidence supporting them—as that 

evidence related to both his motion to dismiss and his sentence—the district court rejected those 

arguments and re-imposed the original sentence. Given that well-developed sentencing record—

bolstered on remand—and the district court’s careful initial sentencing and rejection of Rosse’s 

Brady arguments, there is ample evidence in the record of how the court reached its sentencing 

decision under 18 U.S.C. § 3553. 

 Based on those extensive proceedings, Rosse’s claim that he “does not know what criteria 

and factors the district court utilized to determine his sentence,” cannot be maintained. None of 

the facts changed between Rosse’s sentencing hearing and the district court’s re-imposing of the 

same sentence; the only development was Rosse’s meritless claim of withheld impeachment 

evidence. Because nothing was different, the district court relied on the same factors as it did 

when it first handed down the sentence. After finding no Brady violation, there was no reason to 

disturb the findings made at the prior sentencing hearing and spend another two days re-litigating 

the exact same issues to achieve the same result. District court judges can rely on factual 

findings made at prior sentencing hearings. See United States v. Walls, 546 F.3d 728, 735 (6th 

Cir. 2008). The district court committed no error. 

VII. 

 The judgment of the district court is affirmed.