NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0717n.06 No. 11-4063 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , ) ) Plaintif f-Appellee , ) ON APPEALFROM THE U NI TED ) STATES DI STRI CT COURT FOR v. ) THE SOUTHERN D I STRI CT OF ) OHI O T H O M A S B A L L A T O , ) ) Defendant-

Appellant. )

Be fore : SUTTON and GRI FF I N, Circuit J udg es; and HO OD, District Judge. * PER CURI AM. Thomas Ba llato, a fede ral prisoner convicted of possession of child pornog raphy , challeng es his conviction base d on the delay betwee n this Court’s rema nd order and the district court’s decision on the rema nded matter. He bases his challeng e on his Six th Amendment rig ht to a speedy trial and, in the alterna tive, on his Fifth Amendment rig ht t o due proce ss. He also challeng es the di s t ri ct co u rt’s calc ulation under the Speedy Trial Act. After revie wing the rec ord and considering the arg uments prese nted on appeal , we AF F IRM Ba llato’s conviction. I. Background On September 26, 2006, Ba llato was char g ed with one count of rec eiving child pornog raphy , in violation of 18 U.S.C. § 2252(a) (2) and (b )( 1 ). During a subsequent bond hear ing, the district

The Honora

ble J oseph M. Hood, United States District J udg e for the Easter n District of Kentucky , * sitti ng by desig nation.No. 11-4063

United States v. Ballato court instructed Ba llato to keep the court informed of the status of proce eding s in state domestic court i nvolving Ba llato and his estrang ed wife. On J une 25, 2007, Ba llato filed a motion for supervised visitation or communi cation with his son and a rene wed moti on to strike or amend his bond conditions. On October 12, 2007, Ba llato moved to dismiss the char g es ag ainst h i m d u e to alleg ed violations of the Speedy Trial Act. The court denied the motion on April 8, 2008. Ba llato conditionally pleade d gu i l t y to count 2 of the superse ding indictment on Dec ember 8, 2008, prese rving his rig ht to appea l the distr i ct co u rt’s Speedy Trial Act ruling

. He was sentenc ed on April 10, 2009. He filed a notice of appea l one wee k later. On Aug ust 26, 2010, this Court vacated the district court’s Speedy Trial Act deci s i on based on the Court’s understanding of 18 U.S.C. § 3161(h)( 1)(D) and rema nded the case for rec onsideration in light of our decision in United States

v. Tinklenberg, 579 F.3d 589 (6th Cir. 2009)

. Shortly there afte r, the United States Supreme Court g rante d a petition for writ of cer tiorari in Tinklenberg. See Tinklenberg, 579 F.3d 589, cert. granted, 131 S.Ct

. 62 (2010). This Court’s mandate issu ed o n S ep t em b er 30. On October 22, 2010, the district court set a seventy -five day period in which t h e p ar t i es were to brief the issues under this Court’s mandate. During the rema

nd period, Ba llato filed a motion for bond and multipl e motions for a status confe renc e to revie w pending matters, including the motion for bond. On May 26, 2011, the Supreme Court issued its decision in Tinklenberg, 131 S. Ct. 2007 (2011), re v er s i n g the decision upon which the rema

nd of B allato’s ca se wa s based. The district court then direc ted the parties to brief the rema

nded is sues i n light of t h e S u p re m e C o u rt’s decision in Tinklenberg. I n addition to analy zing the issues in lig ht of Tinklenberg, Ba llato raised a Six th Amendment claim based on the 2No. 11-4063

United States v. Ballato leng th of time it was taking the di s trict court to rea ch its decision on rema nd. On September 30, 2011, the district c ourt aff irmed its previous judgme nt and denied Ba llato’s motion to dismiss on Speedy Trial Act g rounds. The district court additi onally found that, based on his g uilty plea, Ba llato no longe r had a S ix th Amendment right t o a speedy trial and ins tead analy zed the l eng th of delay under the Fifth Amendme nt Due Proce ss Clause. The district cour t found t hat there had been no Fifth Amendment violation. Ba llato filed this appea l on October 7, 2011. For the following rea sons, the district court’s de cision will be aff irmed. II. Discussion A. Ballato’s Claim s Under the Sixth and F if th Am endm ents Be cause Ba llat o wa s n o t prejudice d by the leng th of time that passed during rema nd, his claims under the Six th and Fifth Amendments fa i l

. “I n deter mining whether a defe ndant’s Six th Amendment rig ht to a speedy trial has been violated, we revie w questions of law de novo and questions of fac t under the clea rly -er roneous standard.” United States v. Brown, 498 F.3d 523, 530 (6 t h C i r. 2007) (citing United States v. Jack son, 473 F.3d 660, 664 (6th Cir. 2007)). Assu m i n g, arguendo, that, during rema nd, Ba llato was still protec ted by the Six th Amendment’s Speedy Trial Clause, he has not demonstrated prejudice as co n t emplated by Barker v. W ingo, 407 U.S. 514 (1972). The prese nce or absenc e of prejudice is deter mined by considering three fac tors: the Court’s desire “(I ) to pr event oppressive pr etrial inca rce ration; (ii) to minimi ze the anxiety and conc ern of the acc used; and (iii) to limit the possibili ty that the defe nse will be impaired.” Barker, 407 U.S. at 532. Although Ba l l at o was incar cer ated during the rema nd period, his incar cer ation was not oppressive. Ba sed on the Court’s holding today , his appea l is without merit, and, t h u s , h e was 3No. 11-4063

United States v. Ballato

mere ly serving his sentenc e as require d by law. See United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir. 1990) (“[W] hether this incarce ration is unjustified a nd thus oppr essive depends upon the outcome of his appea l on the merits, or subsequent retria l, if any . I f his conviction was proper , there has been no oppressive confine ment: he has mere ly been serving his sentenc e as mandated by law.”) ;

see also United States v. Gray, 52 F. App’x 650, 654 (6th Cir. 2002) (unpublished opinion) (citing Antoine, 906 F.2d at 1382) (“[T]he defe ndant was not subject to oppressive incar cer ation while the motion was pending beca use, as it turned out, the ne w trial motion was without merit.”) Whil e it is possible that Ba llato experience d enhanc ed “anxiety and conce rn” while awa iting the district c ourt’s decision on re mand, he ha s failed to de monstrate that his de fense was impaired in any way . See Barker, 407 U.S. at 532. Circums tance s considere d prejudicia l in this context ty pically involve trial issues, such as the loss of witnesses or evidenc e. See id; United S t ates v. Ferr ei r a , 6 6 5 F.3d 701, 706 (6th Cir. 2011); United States v. Y oung, 657 F.3d 408, 420 (6th Cir. 2011). Ba llato fails t o arg ue that any such pre judice has oc curr ed, but, ra ther, that he would be in

a differ ent proce dural posture had the dist ri ct co u rt not awa ited the Supreme Court’s decision in Tinklenberg. Essentially , Ba llato s eeks to profit from a decision that was later deter mined to be

er ro n eo u s by the United States Supreme Court. This is not the ty pe of prejudice envisioned by Barker and its prog eny . See United States v. Smith, 94 F.3d 204, 209-10 (6th Cir. 1996) (“A lthough these succes s i v e defe rra ls combined to cre ate a period of almost three y ear s betwee n the g overnme nt’s notice of appea l and the Six th Circuit’s final opinion, it cannot be said that just period

was unjustified, g iven the unusual flux in the case law on point.”). Acc ording ly , the Court finds no violation of Ba llato’s Six th Amendment rig ht to a speedy trial. 4No. 11-4063

United States v. Ballato Reviewing the di strict court’s de termination de novo , we ag ree that the l eng th of t ime that passed during the rema

nd period did not constitute a violation of Ba llato’s rig ht to due proce ss. See United States v. Sanders, 452 F.3d 572, 578 (6th Cir. 2006) (citing W illiams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001)) (“A due proce ss claim raising a mix ed question of law and fac t is revie wed de

novo .”). Be cause we apply the Barker analy sis to Ba llato’s due proce ss claim, he is prec luded from preva iling on it for the same rea sons that his Six th Amendment claim fails. See Sanders , 452 F.3d at 578 (Supreme Court has applied Barker fra mework to claims broug ht under th e Due Process Clause when the Barker interests are implicated). The Court notes that even if we applied the more g ener al test set forth in United States v. Lovasco, 431 U.S. 783 (1977), as did the district court, the ultimate result is the same. Lovasco require s the Court to examine the rea sons for the delay and the p re j u d i ce s uffe red by the defe ndant as a result of the delay

. Sanders, 452 F.3d at 580 (citing Lovasco, 431 U.S. at 795-96). Throug h the filing of motions, both parties contributed to the district court’s delay in rende ring a decision. Fur ther, the district court’s decision to awa it the Supreme Court’s decision in Tinklenberg was a judicious one. Rendering a potentially incorre ct decision for the sake of expediency while that very i s sue was pending befor e the Supreme Court was not

war rante d. See Smith, 94 F.3d at 210. Additionally , the Court cannot see that Ba llato has suffe red any prejudice , other than the em o t i o n al t u rm oil he may have experience d as the result of being a d efendant in his position. This alone is not enoug h to establish a due proce ss violation. Acc ording ly , we find that Ba llato’s due proce ss rig hts under the Fifth Amendment wer e not violated

as a r esult of the dela

y of the district cour

t’s decision upon re mand.

5No. 11-4063

United States v. Ballato B. Speedy Trial Act Ba llato contends that the t ri al court incorrec tly tolled the S peedy Trial Act clock based on

a document that he filed on J une 25, 2007, sty led “De fenda nt’s Motion for Supervised Visitation or Communi cation Wit h Def endant’ s Son/R enew ed Motion to Strike/Amend Bond Conditi ons.” He

now contends that this filing was not a motion but, rathe r, a status repor t that should not have resulted in a tolling of the Speedy Trial Act clock. Ba llato’s arg ument cente rs around a footnote in the district court’s opinion deny ing Ba llato’s motion to dismiss , in which the court commented that, althoug h a status r eport reque sted from Ba llato ha d never been rec eived, the motion at issue could have be en construe d as the re quested status re port, since both involved domestic re lations. W hile Ba llato did, in the J une 25 filing , provide a n update on the pr ocee dings in state dome stic relations court, he did so only in the context of supporting his motion to alter his bond conditions. Ba llato’s filing is char acte rized prop er l y as a m otion, since, throug h it, he soug ht the court’s permission to visit or communicate with his son, as well as a ruling that his bond conditions wer e unconstitutional. Acc ording ly , the district court did not err in tolling the Speedy Trial clock from J une 25, 2007 to J uly 25, 20 0 7

. Ba l l at o conce des that both of his Speedy Trial Act arg uments would have to succe ed befor e a violation of the Speedy Trial Act could be found. Acc ording ly , it i s u n n ec es s ary for the Court to consider Ba llato’s other point of err or with respe ct to the district court’s Speedy Trial Act deter mination. III. Conclusion For the re asons set for

th above, we AF F IRM the judg ment of the district cour t.

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