PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-1601

___________

UNITED STATES OF AMERICA

v.

JAMES BAILEY-SNYDER,

Appellant

___________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 3-16-cr-00175-001)

District Judge: Honorable Malachy E. Mannion

___________

Argued February 6, 2019

Before: HARDIMAN, SCIRICA, and RENDELL, Circuit 

Judges.

(Filed: May 3, 2019)

Todd K. Hinkley [Argued]

Office of United States Attorney

235 North Washington Avenue
2

P.O. Box 309, Suite 311

Scranton, PA 18503

Attorneys for Appellee

Brandon R. Reish [Argued]

31 North 7th Street

Strousburg, PA 18360

Attorney for Appellant

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OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal presents a question of first impression in 

this Court: does an inmate’s placement in administrative 

segregation while he is under investigation for a new crime 

trigger his right to a speedy trial under the Sixth Amendment 

or the Speedy Trial Act? We hold it does not, so Bailey-Snyder 

was not entitled to dismissal of his complaint. Nor was there

improper vouching or cumulative error in Bailey-Snyder’s 

trial. We will affirm.

I

While incarcerated at the Federal Correctional 

Institution, Schuylkill, James Bailey-Snyder was moved to 

administrative segregation after officers found a seven-inch 

homemade plastic weapon (shank) on his person. United States 

v. Bailey-Snyder, 2017 WL 6055344, at *1 (M.D. Pa. Dec. 7, 

2017). He remained in isolation in the Special Handling Unit 

(SHU) pending further investigation by the FBI. Id.
3

Ten months later, Bailey-Snyder was indicted in June 

2016 on one count of possession of a prohibited object in 

prison. Id.; see 18 U.S.C. § 1791(a)(2), (b)(3). He pleaded not 

guilty and filed a number of motions for extension before filing 

a motion to dismiss in November 2017. Bailey-Snyder, 2017 

WL 6055344, at *1. Focusing on his placement in 

administrative segregation as the start of the speedy trial clock, 

Bailey-Snyder moved to dismiss his indictment, alleging

violations of his constitutional and statutory rights to a speedy 

trial. Id.

The District Court denied the motion to dismiss without 

an evidentiary hearing, reasoning that placement in the SHU 

does not constitute an arrest or accusation that would trigger 

speedy trial rights. See id. at *2. The case went to trial a month 

later.

The trial focused on the credibility of the two officers 

who testified that they found a shank on Bailey-Snyder’s 

person when they searched him in a staff bathroom that was 

not equipped with cameras. In an effort to undermine the 

officers’ credibility, defense counsel cross-examined them 

regarding the Bureau of Prisons incentive programs for 

recovering contraband. On redirect, the Government elicited 

that the programs do not reward individual contraband 

recoveries and that one of the officers did not receive any 

award for the search of Bailey-Snyder. The other officer had 

made similar points during the defense’s cross-examination. 

Neither officer discussed the potential consequences they 

would face for planting a shank on an inmate and then lying 

about it. The Government’s only other witness was the FBI 

agent who investigated the case. The defense rested without 

offering testimony or evidence.
4

Following the Court’s charge to the jury, both parties 

gave closing statements. The Government’s closing and 

rebuttal drew two defense objections relevant to this appeal. 

During summation, the prosecutor concluded: “I feel as if I’m 

not up here long enough. There really isn’t much to say. The 

defendant is guilty of his crime and we’re asking you to find 

him guilty of it. Thank you, your Honor.” App. 232. The 

defense objected on the basis that the prosecutor expressed 

personal belief in the defendant’s guilt; the District Court 

agreed, so the prosecutor had to make a corrected statement to 

the jury.1 The defense’s closing focused on the searching 

officers’ “believability.” App. 234. After tying “policy 

incentives of the Bureau of Prisons” to the searching officers’ 

motives, the defense claimed: “[a]nd I wouldn’t buy the home 

on the word of either of the two people that were on that stand 

if I were you.” App. 234–35. In response to that challenge to 

the officers’ credibility, the Government argued in rebuttal:

“[i]t’s conjecture to say that these correctional officers would 

put their jobs, their careers, their livelihoods on the line to 

possibly plant a shank on this defendant to maybe, maybe, have 

a little notch to get a promotion.” App. 237. The defense 

objected, claiming the Government was “arguing a fact not in 

evidence,” but the Court overruled the objection. App. 238.

 

1

“Ladies and gentlemen, I think near the end of my oral 

argument to you I indicated that if you find that the defendant is

guilty you should find him so. I think I may have mumbled 

during the beginning of that and said the defendant is guilty, you 

should find him guilty. What I really meant to say if you found, 

if within your common sense, and when you look at all the 

testimony and all the evidence presented, if you find that he’s 

guilty you should find him guilty.” App. 233–34.
5

The jury convicted Bailey-Snyder and he was sentenced 

to 30 months’ imprisonment to run consecutively to his 

underlying offense of conviction. This timely appeal followed.

II

The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742(a). 

III

The question whether speedy trial rights attach when a 

prisoner is placed in administrative segregation is one of first 

impression for our Court. Bailey-Snyder argues that the 

District Court should have dismissed his indictment because 

the 10 months and 18 days2 between his placement in the SHU 

and his indictment violated his right to a speedy trial under the 

Sixth Amendment to the Constitution and the Speedy Trial 

Act.

A

We begin with Bailey-Snyder’s constitutional 

argument. The Sixth Amendment states: “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and 

 

2 Although Bailey-Snyder’s brief references 

“approximately eleven-month segregation,” e.g., Opening Br. 

14, it also concedes we should not count “approximately 75 

days” from this period because of “violations committed while 

in SHU.” Id. So the time period at issue is closer to eight 

months. Bailey-Snyder also does not challenge the time 

between the indictment and trial.
6

public trial.” U.S. CONST. amend. VI. This guarantee attaches 

at a defendant’s arrest or indictment, whichever comes first, 

because it does not “require the Government to discover,

investigate, and accuse any person within any particular period 

of time.” United States v. Marion, 404 U.S. 307, 313 (1971);

see id. at 321 (declining to extend the constitutional speedy 

trial right “to the period prior to arrest”); United States v. 

Velazquez, 749 F.3d 161, 183 (3d Cir. 2014). 

We again decline to extend the constitutional speedy 

trial right “to the period prior to arrest.” Id. (quoting Marion, 

404 U.S. at 321). Unlike police and prosecutors, the Bureau of 

Prisons does not operate in a prosecutorial posture when it 

decides to place prisoners in administrative segregation. Such 

decisions are not dependent on a decision to prosecute. Indeed, 

here it preceded any such decision. Prison officials instead 

segregate inmates for myriad reasons, including: investigation, 

discipline, protection, prevention, and transition. See generally

FEDERAL BUREAU OF PRISONS, PROGRAM STATEMENT

CPD/CSB 5270.10 (effective Aug. 1, 2011) (detailing 

objectives and policies of SHUs, including reasons for 

placement there), superseded by PROGRAM STATEMENT

CPD/CSB 5270.11 (effective Nov. 23, 2016) (same). Neither 

the United States Attorney nor the FBI orders these placements

and they are not typically notified when such placements are 

made. For that reason, SHU placements have their own 

administrative review and appeals processes. See generally id.

(citing Administrative Remedy Program, 28 C.F.R. § 542, 

subpart B).

Our holding today is consistent with all five courts of 

appeals that have considered the issue. See United States v. 

Wearing, 837 F.3d 905, 909 (8th Cir. 2016) (per curiam); 

United States v. Daniels, 698 F.2d 221, 223 (4th Cir. 1983); 
7

United States v. Mills, 641 F.2d 785, 787 (9th Cir. 1981); 

United States v. Blevins, 593 F.2d 646, 647 (5th Cir. 1979) (per 

curiam); United States v. Bambulas, 571 F.2d 525, 527 (10th 

Cir. 1978) (per curiam). Our sister courts have persuasively 

rebutted the reasons Bailey-Snyder asks us to break ranks with 

them. Citing the factors in Marion that inform the speedy trial 

right, Bailey-Snyder argues that SHU placement (like an 

arrest): restrains the inmate’s liberty, worries friends and 

family, prevents the inmate from gathering evidence, and 

focuses the prison population’s obloquy on the segregated 

inmate. But such placement occurs in “the peculiar context of 

a penal institution where the curtailment of liberty is the 

general rule, not the exception.” Daniels, 698 F.2d at 223 n.1

(quoting Mills, 641 F.2d at 787). That administrative context 

explains why inmates like Bailey-Snyder have an opportunity

to administratively challenge their segregation’s length prior to 

arrest or accusation, and why administrative segregation does 

not constitute an arrest or public accusation for purposes of the 

Sixth Amendment right to a speedy trial.

In sum, because Bailey-Snyder was not arrested when 

he was placed in administrative segregation, his Sixth 

Amendment right to a speedy trial did not attach and his 

constitutional right was not violated.

B

We turn next to Bailey-Snyder’s statutory argument. 

Congress enacted the Speedy Trial Act to give effect to the 

Sixth Amendment’s speedy trial guarantee by setting time 

limits within which trials must begin. United States v. Rivera 

Constr. Co., 863 F.2d 293, 295 (3d Cir. 1988). The Speedy 

Trial Act requires the Government to “file an indictment or 

information against a defendant ‘within thirty days from the 
8

date on which such individual was arrested or served with a 

summons in connection with such charges.’” United States v. 

Oliver, 238 F.3d 471, 473 (3d Cir. 2001) (quoting 18 U.S.C. 

§ 3161(b)). 

For the same reasons we rejected Bailey-Snyder’s 

constitutional argument, we hold that administrative 

segregation is not an arrest for purposes of § 3161(b). In doing 

so, we again join every other circuit court of appeals that has 

addressed this question. See Wearing, 837 F.3d at 908 (per 

curiam); United States v. Harris, 12 F.3d 735, 736 (7th Cir. 

1994); United States v. Jackson, 781 F.2d 1114, 1115 (5th Cir. 

1986) (per curiam). Bailey-Snyder was already imprisoned for 

another offense, so several non-prosecutorial reasons justified 

his segregation once he was found in possession of a lethal 

weapon. Moreover, he could have challenged his prolonged 

SHU placement independent of the Speedy Trial Act. See

Administrative Remedy Program, 28 C.F.R. § 542, subpart B; 

PROGRAM STATEMENT 5270.11.

IV

In addition to his legal arguments regarding his speedy 

trial rights, Bailey-Snyder claims he is entitled to a new trial 

because of improper comments by the prosecutor during his 

summation. Bailey-Snyder claims the prosecutor’s comments 

about the credibility of the Government’s two key witnesses 

constituted improper vouching. 

Three things are required to reverse a conviction for 

improper vouching: (1) the prosecution assured the jury of its 

witnesses’ credibility, (2) the assurance came from fact(s) not 

in the record, and (3) the assurance prejudiced the defendant. 

See United States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998); 
9

United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) 

(en banc). A statement that an “officer would be risking his 

career to lie under oath” may or may not constitute improper 

vouching, depending on the context. United States v. 

Weatherly, 525 F.3d 265, 271 (3d Cir. 2008).

In Weatherly, the prosecutor posed this rhetorical 

question to the jury: “Why would Officer[s] . . . risk their 32–

34 years of experience on the police force over this case?” 525 

F.3d at 271. We held that question was not improper for three 

reasons. See id. at 271–73. First, evidence in the record showed 

that discipline generally affects officers’ careers, which 

allowed the jury to conclude that officers could risk their 

careers by committing misconduct. That defeated an element 

of improper vouching: fact(s) not of record. See id. at 271–72. 

Second, the prosecutor’s question reasonably responded to the 

defense’s own speculative attacks on the officers’ credibility, 

which excused any impropriety. See id. at 272. And third, even 

if improper, the defendant was not prejudiced because the 

brief, isolated comment was responsive to defense attacks and 

because the judge had “thoroughly instructed” the jury that 

counsel’s statements were not evidence. Id. at 272–73. We also 

noted that arguing an officer “had too much to lose to commit 

perjury merely to convict th[e] defendant” could be “a common 

sense conclusion” the prosecution may properly ask the jury to 

reach without evidence in the record to support it. Id. at 271 

n.7 (quoting United States v. Bethancourt, 65 F.3d 1074, 1082 

(3d Cir. 1995) (McKee, J., dissenting)). In other words, such a 

statement may not be improper vouching at all.

In this appeal, the Government’s comment was similar 

to the rhetorical question in Weatherly. The prosecutor said: 

“It’s conjecture to say that these correctional officers would put 

their jobs, their careers, their livelihoods on the line to possibly 
10

plant a shank on this defendant to maybe, maybe, have a little 

notch to get a promotion.” App. 237. We hold that this common

sense conclusion was not improper vouching, even without 

explicit evidence in the record to support it. Although neither 

officer testified that they risked their jobs if they planted a 

shank on Bailey-Snyder, it should be obvious that falsifying 

evidence, filing dishonest sworn reports, and lying in open 

court should (and would) jeopardize one’s career as a 

correctional officer. The Government’s comment was “brief 

and appropriate,” Weatherly, 525 F.3d at 272, and exactly “the 

kind of effective and logical response to an attack on an agent’s 

credibility that has been made in countless numbers of closing 

arguments, and will be made in countless more.” Id. at 271 n.7 

(quoting Bethancourt, 65 F.3d at 1082 (McKee, J., 

dissenting)). Although there was no admitted evidence of 

discipline affecting these officers’ careers—and although the 

Government’s case depended entirely on the officers’ 

testimony—the Government briefly responded to the defense’s 

credibility attacks with a proper, common sense conclusion.

Also like in Weatherly, the challenged statement here 

does not involve the prosecutor “invok[ing] his own oath of 

office to defend the [officers’] credibility,” which we have held 

to be improper. Id. (citing United States v. Pungitore, 910 F.2d 

1084, 1125 (3d Cir. 1990)). In Pungitore, the prosecutor’s 

improper vouching took the form of claiming “the U.S. 

Attorneys and law enforcement could not have behaved as 

unscrupulously as defense counsel alleged they did without 

violating their oaths of office and jeopardizing their careers.” 

910 F.2d at 1125. Here, the prosecutor did not invoke his oath 

of office. Indeed, the Government here did not “vouch” in the 

strictest sense of the word: it did not swear to or make promises 

about the officers’ credibility. Instead, the Government 
11

supported its witnesses’ credibility by pointing out obvious 

consequences they would face for lying after the defense 

insinuated they had a motive to do so. The Government need 

not have elicited testimony or admitted evidence that planting 

evidence and then lying about it under oath would harm their 

careers before saying so in rebuttal.

We also note that, even if the Government’s comment 

were improper vouching, it still would be excusable here as “a 

reasonable response to allegations of perjury by [the defense.]” 

Weatherly, 525 F.3d at 272. As in Weatherly, Bailey-Snyder’s 

single theory was that the officers who discovered the shank 

had a motive (the prison’s incentive policies) and opportunity 

to fabricate doing so. See id. The defense’s closing focused on 

those motives and incentives to find shanks, even though 

nothing in the record established they affected these officers. 

So the defense speculated about the officers’ motives, and the 

Government’s brief, logical response appropriately 

characterized that as “conjecture.” App. 237; see Weatherly, 

525 F.3d at 272.

V

Lastly, we address cumulative error. To reverse a 

conviction for cumulative error requires more than one error. 

See United States v. Hill, 976 F.2d 132, 145 (3d Cir. 1992). 

And this is a demanding standard that warrants reversal only 

when the combined errors “so infected the jury’s deliberations 

that they had a substantial influence on the outcome of the 

trial.” Id.

Because the Government’s comment about its 

witnesses’ credibility was proper, there is no error to 

compound with the Government’s comment on Bailey-
12

Snyder’s guilt. Even if there were unexcused improper 

vouching, the Government’s brief comment about BaileySnyder’s guilt was stricken by the Court, and immediately 

corrected by the Government itself. See supra Note 1.

Furthermore, the Court had instructed the jury before closing 

that lawyers’ statements, including those made in closing, are 

not evidence. These facts leave us with little reason to believe 

that the Government’s statements improperly influenced the 

jury at all, let alone substantially. Thus, there was no 

cumulative error.

* * *

The District Court did not err in denying BaileySnyder’s motion to dismiss the indictment for a speedy trial 

violation. Nor was there improper vouching or cumulative 

error at trial. We will therefore affirm the judgment of 

conviction and sentence.