author: KAYATTA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Efrén IRIZARRY-COLÓN, Defendant, Appellant.
    No. 15-1550
    United States Court of Appeals, First Circuit.
    February 8, 2017

      Linda A. Backiel, with whom Efrén Iri-zarry-Colón, pro se, was on brief, for appellant.
    Juan Carlos Reyes-Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

The defendant, Efrén Irizarry-Colón, pled guilty to participating in a conspiracy to defraud the federal government in violation of 18 U.S.C. § 371. His plea agreement reserved his right to appeal the district court’s denial of his motion to dismiss the indictment with prejudice based on violations of the Speedy Trial Act, the Speedy Trial Clause of the Sixth Amendment, and the Due Process Clause of the Fifth Amendment. For the following reasons, we find that the district court was misled by dicta in one of our prior opinions in calculating the length of delay relevant to evaluating the alleged Sixth Amendment violation. Consequently, wé vacate the district court’s denial of Irizarry’s Sixth Amendment claim and remand for reconsideration of that claim. In all other respects, we affirm.

I. Background

Irizarry was a closing agent for the Farm Service Agency (FSA) and an “attorney for emergency and operating loans disbursed to farmers” after Hurricane Georges struck Puerto Rico in 1998. Between September 1998 and September 2000, Irizarry participated in a conspiracy to defraud the FSA. In the words of the version of the facts incorporated into the plea agreement:

The essence of the conspiracy to defraud involved the filing of applications for emergency loans for farmers through the FSA.... The applications would contain false information and would also be accompanied by false documentation. The defendant ... would not timely present the mortgages for recording at the Property Registrar, at the time of the disbursement of the loans, contrary to his obligations as closing agent, thereby deceiving FSA into believing that the loan had not yet closed, and as a mechanism to delay the collection of payments by the FSA from the particular Farmers.

The government first indicted Irizarry on July 28, 2005. This indictment contained thirty-seven counts. Count one charged that Irizarry participated in a conspiracy to defraud the government in violation of 18 U.S.C. § 371. The other thirty-six counts charged various specific instances of false statements concerning the presentation of mortgage deeds in favor of FSA to the registry of deeds, in violation of 18 U.S.C. § 1006, or furnishing the government with false information (or failing to disclose relevant information) in connection with the loans, in violation of 18 U.S.C. § 1014. The indictment also sought forfeiture.

On March 13, 2007, the court dismissed the indictment pursuant to Federal Rule of Criminal Procedure 48(b) for violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3162, on Irizarry’s motion. The district court found that 294 nonexcludable days had passed between the indictment and the first tolling of the Speedy Trial Act clock. See United States v. Irizarry Colón, 477 F.Supp.2d 419, 421-22 (D.P.R. 2007). The district court also concluded that there had been no bad faith on the part of the government in allowing that time to elapse, that the parties were “immediately ready to go to trial,” and that Irizarry could have sought dismissal of the indictment much earlier “but waited to do so.” Id. at 423. For those reasons, the district court elected to dismiss the indictment without prejudice. Id at 422-23. Irizarry did not appeal that order.

The government indicted Irizarry again on April 4, 2007. The second indictment charged thirty-five of the thirty-seven counts in the first indictment as well as seven new counts charging bank fraud, in violation of 18 U.S.C. § 1344.

On August 10, 2009, and again on Irizar-ry’s motion, the court dismissed the second indictment pursuant to Rule 48(b) for violation of the Speedy Trial Act. The district court found that “approximately 140 or 148” nonexcludable days had passed since the indictment. This time, the court found that the parties had agreed to begin the trial on a date after the Speedy Trial Act clock expired and that, when setting this date, the court had failed to make any findings as to tolling. The court found that the parties had acted “in good faith” and that defense counsel’s acquiescence to the late trial date “weighs heavily in favor of the without prejudice [dismissal].” Accordingly, the district court once again elected to dismiss the indictment without prejudice. Irizarry also did not appeal that order.

The government indicted Irizarry for a third time on January 27, 2010. The third indictment charged the same counts as the second but with the bank fraud counts removed (leaving thirty-five counts and a request for forfeiture).

On May 12, 2010, Irizarry moved to dismiss the third indictment on the ground that ninety nonexcludable days had passed and that he had been prejudiced by the cumulative delay up to that point. His motion sought to take advantage of a recent Supreme Court decision, Bloate v. United States, 559 U.S. 196, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010), that had abrogated a prior rule in this circuit that automatically excluded time for the parties to prepare pretrial motions from the Speedy Trial Act clock. See United States v. Huete-Sandoval, 668 F.3d 1, 4 (1st Cir. 2011) (recognizing abrogation). The district court dismissed the indictment, again without prejudice to refiling. We discuss the precise details of how it did so in Section II of this Opinion. Irizarry did not appeal that order.

The government indicted Irizarry for the fourth and final time on June 17, 2011. The indictment was identical to the third indictment.

On August 25, 2011, Irizarry filed a motion to dismiss the fourth indictment for violation of the Speedy Trial Act and the Fifth and Sixth Amendments to the United States Constitution. On October 18, 2011, the district court denied the motion. See United States v. Irizarry-Colón, 820 F.Supp.2d 306, 317 (D.P.R. 2011). On October 22, 2014, Irizarry entered a conditional guilty plea to count one, reserving his right to bring this appeal as to the denial of his motion to dismiss. On April 9, 2015, he was sentenced to time served, one year of supervised release, $50,000 in restitution, and a special monetary assessment. On the government’s request, the remaining counts were dismissed. This appeal followed.

II. Discussion

Irizarry argues that his fourth indictment should have been dismissed because the government violated the Speedy Trial Act, his Sixth Amendment right to a speedy trial, and his Fifth Amendment right to due process. We address each argument in turn.

A. Speedy Trial Act

“This circuit reviews a denial of a statutory speedy trial claim de novo as to legal rulings, and for clear error as to factual findings.” United States v. Carpenter, 781 F.3d 599, 616 (1st Cir.), cert. denied, — U.S. -, 136 S.Ct. 196, 193 L.Ed.2d 126 (2015). Applying this standard of review, we affirm the district court’s application of the Speedy Trial Act.

In the event that a defendant pleads not guilty, the Speedy Trial Act requires that “the trial of a defendant charged in an information or indictment with the commission of an offense shall 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). This Speedy Trial Act clock runs from the indictment or appearance until the beginning of defendant’s trial, unless some other provision of the Speedy Trial Act resets or pauses it.

The Speedy Trial Act issue raised on this appeal is whether the seventy-day clock limiting the time between indictment or appearance and trial reset to zero after dismissal of the third indictment. If so, the district court properly rejected Irizarry’s motion to dismiss the fourth indictment under the Act. If not, Irizarry was entitled to a fourth dismissal because any prosecution on the subject of the third indictment would have necessarily violated the Act on the day the defendant first appeared in court.

The rules that govern resolution of this issue are well understood. Relying on the express language of 18 U.S.C. § 3161(d)(1) and § 3161(h), on the plain negative inferences drawn from that language, and on “common sense,” United States v. Myers, 666 F.3d 402, 404 (6th Cir. 2012), courts differentiate between cases dismissed at a defendant’s behest and those dismissed by motion of the government. When an indictment is dismissed on a defendant’s motion, the clock resets, but when it is dismissed on the government’s motion, it merely pauses until a new indictment is filed. See United States v. Rojas-Contreras, 474 U.S. 231, 239, 106 S.Ct. 555, 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring in the judgment); Myers, 666 F.3d at 405 (collecting cases); cf. United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988) (acknowledging this distinction in dicta); United States v. Krynicki, 689 F.2d 289, 292-93 (1st Cir. 1982) (reaching similar conclusion with regard to thirty-day period between arrest or service with summons and indictment).

The parties agree on the basic facts to which we apply these rules. When the court dismissed the third indictment, ninety nonexcludable days had passed since Irizarry’s first appearance before a judicial officer without commencement of trial. Hence, the district court was required to dismiss the case upon Irizarry’s request, leaving open only the question as to whether the dismissal was with or without prejudice to reindictment. 18 U.S.C. § 3162(a)(2). Irizarry made such a request and filed a memorandum asking that the dismissal be with prejudice. The government filed a responsive brief in which it contended that the factors listed in 18 U.S.C. § 3162(a)(2), as well as additional miscellaneous factors that this court has found relevant in Speedy Trial Act cases, see United States v. Barnes, 159 F.3d 4, 16 (1st Cir. 1998), required that the dismissal be without prejudice. The magistrate judge concluded that the indictment “must be dismissed,” but recommended that it “be dismissed without prejudice.” Irizarry objected to this Report and Recommendation both because it concluded that the dismissal under the Speedy Trial Act should be without prejudice and because of the magistrate judge’s “failure to find that the government ... affirmatively moved for dismissal of the indictment” under Rule 48(a). The district court then issued an order stating that the magistrate judge’s “Report and Recommendation is APPROVED and ADOPTED in its entirety,” that “defendant’s Motion to Dismiss Indictment With Prejudice ... is DENIED,” and that “the United States’ request contained in its response ... for a dismissal of the indictment without prejudice is GRANTED.” The clerk issued a form Judgment of Discharge, on which the deputy clerk (who signed the form) checked the box indicating that “[t]he Court has granted the motion of the government for dismissal pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure,” rather than the box indicating that “[t]he Court has dismissed the charges for unnecessary delay, pursuant to Rule 48(b).” As described above, the government then filed a fourth indictment. Without including the nonexcludable days that passed during the pendency of the third indictment, only forty-five nonexcludable days passed between the filing of the fourth indictment and the filing of the motion to dismiss that is the subject of this appeal. See Irizarry-Colón, 820 F.Supp.2d at 312. On all this, the parties agree.

The pivotal question is whether the third indictment was dismissed at the defendant’s behest or at the government’s. To answer this question, both parties urge us to review as a whole the record and docket in the third proceeding. Irizarry makes no argument that we must limit our inquiry to the face of the form Judgment of Discharge. Instead, Irizarry points to the Judgment, the court’s order, the magistrate judge’s Report and Recommendation, and the government’s memoranda— all in the proceedings under the third indictment — as collectively revealing that the dismissal of that indictment was at the government’s behest. Like the district court, we disagree.

The entire effort to dismiss the third indictment began with a motion filed by Irizarry. That motion sought dismissal with prejudice. On the record as it then stood, Irizarry was entitled to dismissal by right. As the magistrate judge recognized, “the parties agree, the indictment ... must be dismissed; the question remaining is whether to dismiss with or without prejudice.” In short, the only issue that was disputed and required adjudication was whether the dismissal would be with prejudice. The briefing, argument, and analysis then trained on that question, which the magistrate judge and then the district court expressly resolved against Irizarry, stating explicitly that dismissal was without prejudice.

Read in the context of this plain record, the references to the government requesting dismissal without prejudice, or the district court “granting]” the government’s request, were references not to a government motion to dismiss — there was no such motion, as dismissal was a done deal — but rather to its request that the dismissal be without prejudice. At no point in the proceeding did Irizarry argue that the indictment should not be dismissed unless it was dismissed with prejudice. And when he objected to the magistrate judge’s recommendation, he objected not to dismissal itself, but to the decision to dismiss the indictment without prejudice on Rule 48(b) grounds. In fact, his objection clearly recognized that the magistrate judge did not find that the government’s request for dismissal without prejudice amounted to a motion under Rule 48(a), and he argued that this was error.

To construe the record otherwise would defy common sense. Under Irizarry’s revamped view, the government moved to dismiss the third indictment after the running of seventy nonexcludable days. Thus, the Speedy Trial Act clock would not have reset — because it would only do so on a motion by Irizarry — and a fourth indictment would have been timed-out at the outset, cf. Myers, 666 F.3d at 404, and so subject to dismissal at any point Irizarry chose. Only if that fourth indictment was then dismissed without prejudice could the government bring a hypothetical fifth indictment with a reset clock.

It is unlikely that a prosecutor would take the obviously self-defeating step of moving to dismiss an indictment after seventy nonexcludable days, particularly where the defendant has already filed a motion to dismiss. We do not read the record to suggest that this prosecutor did so. Rather, the government conceded a clear fact — that the Speedy Trial Act clock had run on the third indictment — but disputed Irizarry’s contention that the indictment should be dismissed with prejudice. The government could properly argue against dismissal with prejudice in its opposition to Irizarry’s motion without implicitly converting that opposition into a motion to dismiss, and it did so. Therefore, the district court did not err in treating the dismissal of the third indictment as a dismissal on the defendant’s motion that reset the Speedy Trial Act clock. It follows that the denial of the motion to dismiss the fourth indictment forty-five nonexcludable days after it was filed was correct.

B. Sixth Amendment Right to a Speedy Trial

The Sixth Amendment to the United States Constitution also protects a defendant’s interest in having a speedy trial, and it does so in a manner that does not necessarily track that of the more mechanistic statutory rules set forth in the Speedy Trial Act. The Supreme Court has identified four factors that courts should assess when considering whether a defendant has been deprived of the right to a speedy trial. These are “[ljength 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, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The first factor — the length of delay — “is actually a double enquiry. Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay....” Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). “If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Id.; see also United States v. Souza, 749 F.3d 74, 81 (1st Cir.), cert. denied, - U.S. -, 135 S.Ct. 418, 190 L.Ed.2d 303 (2014). “There is no bright-line time limit dividing the lengths that trigger further Barker inquiry from those that do not. Whether a particular delay will warrant further speedy trial scrutiny ‘is necessarily dependent upon the peculiar circumstances of the case.’ ” United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) (quoting Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). However, “[d]elay of around one year is considered presumptively prejudicial, and the presumption that delay prejudices the defendant ‘intensifies over time.’ ” United States v. Carpenter, 781 F.3d 599, 610 (quoting Doggett, 505 U.S. at 652, 112 S.Ct. 2686); see also Doggett, 505 U.S. at 652 n.1, 112 S.Ct. 2686.

The dispute in this case concerns how a court should measure the length of delay under the first Barker factor. Irizarry argues that the court should consider the delay across all four indictments, and not just the sixty-nine days that had passed between when the government filed the fourth indictment and when he filed his motion to dismiss. The district court ruled, and the government argues on appeal, that the court should consider only the sixty-nine-day delay after the fourth indictment was filed. Both parties agree that if the length of delay is measured across all four indictments, it was presumptively prejudicial and therefore triggers the full Barker analysis.

The parties also disagree about the appropriate standard of review. This circuit generally reviews district court rulings on speedy trial motions for abuse of discretion. Carpenter, 781 F.3d at 607; United States v. Salimonu, 182 F.3d 63, 69 (1st Cir. 1999); United States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir. 1997); United States v. Colombo, 852 F.2d 19, 21 (1st Cir. 1988). We noted in Carpenter, however, that applying an abuse of discretion standard of review to constitutional speedy trial claims is in tension with the rules of other circuits, as well as this circuit’s standard of review when considering other similar issues (e.g., applying the Speedy Trial Act or the Eighth Amendment). 781 F.3d at 607-08. Carpenter did not resolve this tension because the defendant’s claims failed under any standard of review. We need not resolve it in this case, either. Rather, for reasons we will explain, we find that the district court committed a type of error — applying an incorrect legal interpretation of the first Barker factor— that must be set aside even under an abuse of discretion test. See United States v. Bater, 594 F.3d 51, 54 n.1 (1st Cir. 2010) (“Although suggesting great latitude, ‘abuse of discretion’ has this meaning only where the issue invites it — usually in applying a general standard to specific facts (the test being essentially one of reasonableness); but (confusingly) ‘abuse of discretion’ is used as well to embrace mistakes on abstract issues of law (reviewed de novo) and errors of fact (for which clear error is the customary test).” (citing Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 132 (1st Cir. 2005))).

The district court was led astray by our statement in Colombo that it “makes sense” that “[t]he courts have implicitly assumed that if an indictment is dismissed on motion of a defendant, and the defendant is subsequently reindicted for the same offense, only the delay in prosecution of the second indictment is relevant for Sixth Amendment speedy trial purposes.” 852 F.2d at 23 (citations omitted). That statement was plainly dicta, as the holding of Colombo concerned an indictment dismissed on the motion of the government (and concluded, in that instance, that the time elapsed under prior indictments is included). See id. at 23-24.

Instead, this case is controlled by United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), which both the Colombo dicta and the district court’s application of that dicta contradict. There, the Court treated the entire ninety-month period between the initial indictment and the dismissal just prior to trial as the period of delay under the first factor, triggering the full Barker analysis. See id. at 304, 314, 106 S.Ct. 648. This ninety-month period included both periods during which the defendants were “neither under indictment nor subject to any restraint on their liberty,” id. at 310, 106 S.Ct. 648, and periods during which either the government or the defendants were pursuing interlocutory appeals, id. at 312-14, 316-17, 106 S.Ct. 648. In applying the second Barker factor, the Court gave periods of the first type no weight under United States v. MacDonald, 456 U.S. 1, 8-9, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1981), and periods of the second type no weight under a new rule announced in Loud Hawk itself. See Loud Hawk, 474 U.S. at 310-12, 314-16, 106 S.Ct. 648. The Court did so despite the fact that, after a series of appeals and remands, some of the counts against the defendant had been dismissed without prejudice on the defendant’s motion pursuant to Rule 48(b), and the government had subsequently obtained a superseding indictment. See United States v. Loud Hawk, 564 F.Supp. 691, 695 (D. Or. 1983) (recounting procedural history); United States v. Loud Hawk, 628 F.2d 1139, 1151 (9th Cir. 1979) (reversing dismissal of those counts insofar as they were with prejudice).

In a recent unpublished decision reviewing a California state court case with a similar procedural history to this one, the Ninth Circuit held that Loud Hawk constituted clearly established federal law that the period of delay under the first Barker factor included the entire period from initial indictment to trial. See Carreon v. Long, 612 Fed.Appx. 877, 878 (9th Cir. 2015) (“[M]easur[ing] the delay as the time between the second felony complaint and [the defendant’s] trial ... was ‘an unreasonable application of [] clearly established Federal law, as determined by the Supreme Court of the United States.’ ” (citing 28 U.S.C. § 2254(d)(1) and Loud Hawk, 474 U.S. at 314, 106 S.Ct. 648)); People v. Carreon, No. E052856, 2012 WL 5992736, at *2 (Cal. Ct. App. Nov. 29, 2012) (recounting that the first felony complaint was dismissed without prejudice because of a violation of the statutory right to a speedy trial after the defendant sought a “writ of mandate,” and that after the writ issued, “the district attorney immediately filed a new felony complaint”); see also United States v. Sears, Roebuck & Co., 877 F.2d 734, 739 (9th Cir. 1989) (noting that for the first Barker factor, “[t]he delay is measured from the time of the indictment to the time of trial, excluding periods during which the indictment is dismissed”).

While one might correctly argue that the Supreme Court in Loud Hawk did not expressly rule that the manner in which it measured the length of the delay was proper, such an argument would provide a poor justification for a lower court to proceed otherwise. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (“[F]ederal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings.”). Instead, like the Ninth Circuit did in Carreon, we conclude that the district court should count the entire period of time since the first indictment when calculating the length of delay for the first Barker factor.

Because the district court’s opinion turned entirely on the first factor, it made no findings regarding what portion of the longer period of delay was attributable to the government, whether Irizarry promptly asserted his speedy trial rights, or whether Irizarry was prejudiced. It engaged in no weighing of these factors against each other. Because we review factual findings and judgmental weighings for abuse of discretion, see Colombo, 852 F.2d at 21, we decline to make them ourselves in the first instance as an alternative basis for affirmance. Rather, we remand the case to the district court for proper application of all four Barker factors.

C. Pre-Indictment Delay

Next, Irizarry argues that the delay before the first indictment violated his right to due process. Reviewing the district court’s decision not to dismiss the indictment on this ground for abuse of discretion, United States v. Bater, 594 F.3d 51, 53 (1st Cir. 2010), we reject that argument.

Even when an indictment is brought within the statute of limitations, “excessive pre-indictment delay can sometimes, albeit rarely, violate the Fifth Amendment’s Due Process Clause if the defendant shows both that the ‘delay caused substantial prejudice to his right to a fair trial’ and that ‘the [government intentionally delayed indictment ... to gain a tactical advantage.’ ” Id at 54 (alterations in original) (quoting United States v. Picciandra, 788 F.2d 39, 42 (1st Cir. 1986)). “With respect to prejudice, a defendant must do more than allege that witnesses’ memories had faded or that evidence had been lost that might have been helpful to him.” United States v. Muñoz-Franco, 487 F.3d 25, 58 (1st Cir. 2007). With respect to intentional delay for tactical reasons, this court has indicated that such delay violates the Due Process Clause when it is the product of “ ‘bad faith’ reasons.” United States v. Crooks, 766 F.2d 7, 11 (1st Cir. 1985). For instance, pre-indictment delay for the purpose of investigation, see United States v. Lovasco, 431 U.S. 783, 790-92, 795-96, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), for the purpose of discovering all the participants in a conspiracy so they could be tried together, see id. and for the purpose of letting state authorities pursue their own prosecution, see United States v. Marler, 756 F.2d 206, 214-15 (1st Cir. 1985), is permissible. Delay in order to deprive the defendant of witnesses, see Bater, 594 F.3d at 54, or impose the burden of defending oneself in back-to-back trials, see United States v. Ramos-González, 775 F.3d 483, 491 (1st Cir. 2015), may not be.

Irizarry cannot show substantial prejudice. He argues that he was prejudiced in two ways. First, he claims that he was “forced ... to deplete his financial resources” so that “his defense would be no match for [the government’s] team of prosecutors, investigators and co-operators.” Even assuming that this is the type of prejudice that could ground a due process claim, Irizarry does not cite anything in the record establishing his financial position immediately after the conspiracy or at the time of the first indictment. Second, he asserts that the prosecution’s decision to indict him after it had already indicted and reached plea agreements with several potential codefendants deprived him of witnesses on his behalf. He does not, however, cite anything in the record to explain why individuals who had already pled guilty would be prevented from testifying at his trial or to establish what testimony those individuals would have offered otherwise.

Irizarry also may not be able to show an intentional delay for improper reasons. He argues that it was improper for the government to indict his co-conspirators first and strike plea deals with many of them so that they could testify against him. The Supreme Court has indicated that tactical decisions of this sort may be permissible reasons to delay trial under the Sixth Amendment. See Barker, 407 U.S. at 534, 92 S.Ct. 2182 (noting that, under the Sixth Amendment, “[p]erhaps some delay would have been permissible under ordinary circumstances, so that [a co-conspirator] could be utilized as a witness in [the defendant’s] trial”). If the Constitution permits some delay to try a co-conspirator after indictment, it would be difficult to show that a delay for the same reason before indictment was in bad faith. Ultimately, we need not decide this issue, as Irizarry’s due process claim falters on the substantial prejudice prong.

III. Conclusion

We vacate the district court’s decision on Irizarry’s Sixth Amendment claim and remand for the district court to apply the full Barker analysis in analyzing' that claim. If the district court concludes that Irizarry’s Sixth Amendment rights were violated, it should vacate his conviction and sentence and grant appropriate relief. Otherwise, it should reaffirm the conviction and sentence. We affirm the district' court’s decision in all other respects.

      . He first appeared in court after the indictment was filed.

      . This statute reads, in relevant part: "If any indictment or information is dismissed upon motion of the defendant ... and thereafter ... an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of subsection[ ] ... (c) of this section shall be applicable with respect to such subsequent ... indictment, or information, as the case may be.” Id. § 3161(d)(1).

      .This statute reads, in relevant part: "If the information or indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge,” id. § 3161(h)(5), is "excluded in computing the time within which ... the trial of any such offense must commence,” id. § 3161(h).

      . Presumably, he decided that such an argument, had he made it in the district court, might well have led the prosecution to seek a correction under Federal Rule of Criminal Procedure 32.

      . The district court also relied on United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1981). MacDonald held only that when charges are dropped on a first indictment, "the speedy trial guarantee is no longer applicable” until a second indictment is filed. Id. at 8, 102 S.Ct. 1497. This holding has no bearing on how a court should calculate the length of delay for the first Barker factor.

      . The ninety-month period used by the Supreme Court in its analysis of the first Barker factor spanned from the initial indictment on November 25, 1975 to the order dismissing the indictment on May 20, 1983, which the Supreme Court was reviewing. IL at 304-10, 106 S.Ct. 648.

      . He also argued that if the Sixth Amendment analysis did not include time prior to the fourth indictment, then he should be entitled to argue that the total delay before the fourth indictment violated his due process rights. Since we have agreed with him about the Sixth Amendment, we do not consider this alternative argument.

      . Irizarry made a similar due process argument in his motions to dismiss the first indictment and the third indictment, but he elected not to appeal either dismissal without prejudice. Cf. United States v. Worthy, 772 F.3d 42, 46-48 (1st Cir. 2014) (noting that the decision to dismiss with prejudice rather than without is appealable). The government does not argue that Irizarry has thereby forfeited the opportunity to raise this issue in the present appeal. Expressing no opinion as to whether such an argument would be successful, we consider the merits of Irizarry’s due process argument.


source: Caselaw Access Project

author: TORRUELLA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Julio ROMÁN-HUERTAS, Defendant, Appellant.
    No. 15-2109
    United States Court of Appeals, First Circuit.
    February 9, 2017

      Eleonora C. Marranzini, Research and Writing Specialist, San Juan, PR, Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, on brief for appellant.
    Francisco A. Besosa-Martinez, Assistant United States Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant ■ United States Attorney, Chief, Appellate Division, on brief for appellee.
    Before TORRUELLA, LYNCH, and THOMPSON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Julio Román-Huertas (“Román”) pled guilty to being a felon in possession of a-firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His plea agreement recommended a total offense level under the United States Sentencing Guidelines (the “Guidelines”) of seventeen. At his sentencing hearing, Román objected to the total offense level of seventeen, arguing that it should instead be twelve because his prior felony was not “a controlled substance offense” under the Guidelines. Relying on an untranslated Spanish document, the' district court ruled that his total offense level was seventeen. The Guidelines’ recommended sentence, was twenty-seven to thirty-three months’ imprisonment, but the district court sentenced Ro-mán to forty-six months’ imprisonment. Because the district court improperly relied on an untranslated document, we vacate Román’s sentence and remand for resentencing.

I. BACKGROUND

On March 8, 2014, while Román and another man were driving in San Juan, Puerto Rico, Román fired one shot from his pistol into the air. Agents from the Puerto Rico police department were in the area, and they arrested Román and seized Román’s pistol and an additional magazine. Román was charged with being a felon in possession of a firearm.

On April 16, 2014, Román entered into a plea agreement, which included “advisory Guideline calculations” of a base offense level of twenty and a three-level credit for acceptance of responsibility, for a total offense level of seventeen. This calculation assumed that Román’s prior conviction had been a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A). Although the parties did not stipulate to a Criminal History Category (“CHC”), the plea agreement’s advisory Guideline calculations indicated that Román’s recommended sentence would be twenty-seven to thirty-three months if he had a CHC of II. “The parties agree[d] to recommend the lower end of the applicable guideline range.”

On August 12, 2014, the probation officer filed a presentence investigation report (the “PSR”). The PSR calculated a total offense level of seventeen and a CHC of II, resulting in a recommended sentence of twenty-seven to thirty-three months. Román’s sentencing memorandum, filed on September 5, 2014, stated that'his “offense level [was] expected to be level 17.” On August 27, 2015, the probation officer filed an addendum to the PSR, which stated that Román “ha[d] not filed any written objections.”

On September 2, 2015, more than a year after the PSR was filed, Román filed objections to it. Román argued that the PSR improperly calculated his total offense level as seventeen, because Román’s prior conviction under Article 406 of the Puerto Rico Controlled Substances Act, P.R. Laws tit. 24, § 2406, “is not a ‘controlled substance offense’ in regards to the Guideline Section 2K2.1.” Specifically, Román asserted that “not all offense[s] under [Article 406] meet [U.S.S.G. § 4B1.2(b)’s] definition” of a controlled substance offense. Thus, Román contended that his total offense level should be twelve, not seventeen as the PSR and his plea agreement recommended.

The district court held a sentencing hearing the next day, and Román affirmed that he “reinstate[d] this objection” to the total offense level of seventeen. The Government responded that under “a modified categorical approach” the district court could “examine if there - are existing documents that allow us to determine whether [Román’s] particular violation of [Article] 406” was a controlled substance offense. The district court then stated that it had “the document here which has the legal basis.” According to the district court, that document “indicate[d] ... that the charges were for violation of ... [A]rtiele 401 that entails distribution of a controlled substance” but were “reduced to a violation of [A]rticle 406.” The district court further explained that “the description” in “this criminal complaint ... entails and encompasses the possession with intent to distribute a controlled substance.” The district court then stated that “the offense charged meets the definition of ... a controlled substance offense.” When Román asserted “that the document[s] that the Court can examine are limited,” the district court replied that it had “exercise[d its] due diligence in terms of checking that we had the proper documents.”

The document the district court relied on was never entered into the record, and so it is not available to us on appeal. The parties agree, and it is clear from the record, however, that the document was in Spanish.

During the argument concerning the proper calculation of Román’s total offense level, the Government opposed Román’s arguments on the merits. It never objected, either in writing or at the hearing, to Román’s untimely objection to the PSR. After Román presented his mitigating facts, the Government recommended a sentence at the “lower end” of the Guidelines’ recommended range.

After the exchange concerning the nature of the controlled substance offense, Román “ask[ed] the Court to follow the joint recommendation and impose a sentence of 27 months.” The district court ultimately sentenced Román to forty-six months’ imprisonment, highlighting the fact that Román had fired his gun into the air “while driving a vehicle” in a city, reflecting a “blatant disregard for the law and public safety.”

Román timely appealed his sentence. He argues that the district court (1) committed a procedural error when it determined that Román’s prior conviction was a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A), (2) committed plain error by relying on an untranslated Spanish document, (3) committed a procedural error by failing to justify its upward variance, and (4) imposed a sentence that was substantively unreasonable.

II. ANALYSIS

A. The English Language Requirement and the Standard of Review

The Jones Act requires that “[a]ll pleadings and proceedings in the United States District Court for the District of Puerto Rico ... be conducted in the English language.” 48 U.S.C. § 864. “It is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English.” United States v. Millán-Isaac, 749 F.3d 57, 64 (1st Cir. 2014) (quoting United States v. Rivera-Rosario, 300 F.3d 1, 5 (1st Cir. 2002)). This rule applies to all stages of a federal court proceeding, including a sentencing hearing. Id.

Román concedes that he did not object to the district court’s use of the untranslated document. The parties therefore assume that the plain error standard of review applies. They are incorrect. In Rivera-Rosario, the defendants’ attorney did not object to the presentation of Spanish tape-recordings and documents to the jury and in fact objected to an English translation it considered faulty. 300 F.3d at 5. We rejected the Government’s argument that the plain error standard applied, holding that the district court had an “independent duty” to ensure the proceedings were conducted in English, and so “we relieve[d] the parties of their usual duty to contemporaneously object.” Id. at 6-7. Instead, we held that “violations of the English language requirement will constitute reversible error whenever the appellant can demonstrate that the untranslated evidence has the potential to affect the disposition of an issue raised on appeal.” Id. at 10. We reaffirmed this standard of review in Millán-Isaac, rejecting the Government’s assertion that we had “confined Rivera-Rosario to its facts” and declining to follow any opinions that implied a different standard. Millán-Isaac, 749 F.3d at 64 n.1. We will therefore overturn Román’s sentence if “the untranslated [document] has the potential to affect the disposition” of his appeal. Id. at 64.

B. Román Did Not Waive His Objection to the Calculation of His Total Offense Level

We must first address the Government’s contention that Román knowingly waived his objection to the calculation of his total offense level. ‘Waiver, where it occurs, is treated as an ‘intentional,’ and therefore permanent, abandonment of a position.” United States v. Torres-Rosario, 658 F.3d 110, 115 (1st Cir. 2011) (citing United States v. Walker, 538 F.3d 21, 22 (1st Cir. 2008)). “[A] waived issue ordinarily cannot be resurrected on appeal.” United States v. Rodríguez, 311 F.3d 435, 437 (1st Cir. 2002). “By contrast, a mere failure to object ‘forfeits’ a claim, so review on appeal is [generally] only for plain error.” Torres-Rosario, 658 F.3d at 115. If Román waived his objection to his calculated total offense level of seventeen, the district court’s use of the untranslated document — which related only to that calculation — cannot affect the disposition of his appeal.

The Government identifies three ways in which Román waived his objection: first, by stipulating to the calculation in the plea agreement; second, by failing to file a written objection to the PSR until the day before the sentencing hearing; and third, by acquiescing at the sentencing hearing. The Government did not raise Román’s stipulation or untimely objection before the district court, however, and instead addressed the merits of Román’s objection, and so it waived the first two asserted bases. See United States v. Castro-Taveras, 841 F.3d 34, 54 (1st Cir. 2016) (“[T]he government did not argue forfeiture and instead addressed the merits of [the] claim.... Hence, the government waived its forfeiture argument....”); Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010) (holding that the government waived its procedural default defense by failing to raise it in the district court). For its third basis, the Government relies on a statement by Román’s counsel at the sentencing hearing: “Then Your Honor I would ask the Court to follow the joint recommendation and impose a sentence of 27 months.” Absent context, this may seem like acquiescence, but it came after the district court had already ruled that “the offense charged meets the definition of ... a controlled substance offense” and that it “had the proper documents” to make that determination. Accepting the district court’s ruling and moving to a fallback position is neither waiver nor forfeiture.

C. The Untranslated Document Had the Potential to Affect the Disposition of Román’s Appeal

We must therefore examine whether the district court’s use of the untranslated document “has the potential to affect” Román’s argument that his prior conviction under Article 406 was not a controlled substance offense. U.S.S.G. § 4131.2(b) defines a “controlled substance offense” to include the violation of a state law “that prohibits ... the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” This encompasses “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1. It does not, however, include mere possession offenses. See United States v. Ramos-González, 775 F.3d 483, 507 n.27 (1st Cir. 2015).

Román previously pled guilty to Article 406, but, as the Government concedes, that statute “encompasses both predicate and non-predicate conduct.” It was the Government’s burden to establish, through the kinds of documents approved by Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), that Román’s prior conviction was a controlled substance offense. United States v. Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011). The Government contends that Ro-mán “does not refute — and indeed, concedes” that he was charged under Puerto Rico Laws tit. 24, § 2401 (“Article 401”), which the Government asserts must be a controlled substance offense. But the Government must show that Román was convicted of a controlled substance offense, and he pled guilty under Article 406, not Article 401. To bridge this gap, the Government further asserts that “the record” shows that Román was “charged under Article 401’s ‘possession with intent to distribute’ modality,” and so his Article 406 guilty plea was a distribution conviction. The Government cites to the PSR in support of this proposition, however, and a PSR is not “an approved source for determining whether” a defendant’s conviction was based on a controlled substance offense. Ramos-González, 775 F.3d at 506 (citing United States v. Carter, 752 F.3d 8, 20 (1st Cir. 2014)).

Because the district court relied only on the untranslated document to calculate Román’s total offense level, that document “affect[s] the disposition” of his appeal. See Millan-Isaac, 749 F.3d at 64. We therefore must vacate Román’s sentence and remand for resentencing. We need not reach Román’s remaining claims of error.

Finally, we briefly address re-sentencing. The untranslated document was not evidence, and so any certified translation would constitute new evidence. In general, “the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals’ decision” on remand for resentencing. United States v. Dávila-Félix, 763 F.3d 105, 110 (1st Cir. 2014) (alteration omitted), (quoting. United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999)). We have previously allowed additional factfinding where the Government did not have an incentive to present evidence, but not “where the government asked for the enhancement but failed to adduce sufficient proof for its imposition — a situation in which there would not likely be reason to permit a second bite at the apple.” United States v. Montero-Montero, 370 F.3d 121, 124 (1st Cir. 2004). Here, the Government asked for a total offense level of seventeen “but failed to adduce sufficient proof for its imposition.” See id. The Jones'Act requires federal courts to conduct proceedings “in the. English language,” 48 U.S.C. § 864, and our case law has reaffirmed this many times. E.g., Rivera-Rosario, 300 F.3d at 5; Millán-Isaac, 749 F.3d at 64. The Government therefore had every incentive to ensure that the district court relied only on evidence presented in the English language. “[N]o party — including the government — is entitled to an unlimited number of opportunities to seek the sentence it desires.” Ramos-González, 775 F.3d at 508 (quoting Dávila-Félix, 763 F.3d at 113). On remand, therefore, the Government may not present new evidence of Román’s prior conviction.

III. CONCLUSION

We vacate Román’s sentence and remand for resentencing because the district court improperly relied on an untranslated document in calculating Román’s offense level.

Vacated and Remanded.

      . U.S.S.G. § 4B1.2(b) provides the Guidelines’ definition of a "controlled substance offense” and is cross-referenced by other sections of the Guidelines, including U.S.S.G. § 2K2.1(a)(4)(A).

      . If his prior conviction was not for a controlled substance offense, Roman’s base offense level would be fourteen, rather than twenty, see U.S.S.G. § 2K2.1(a)(6), but he would only be eligible for a two-level acceptance of responsibility credit, see U.S.S.G. § 3E1.1(b).

      . The district court and the parties used both “document” and "documents” to describe what they were reviewing. It is not clear from the hearing transcript whether there was a single document or multiple documents, and the document or documents are not part of the record. Except where quoting from the transcript, we will use "document” to describe what the parties reviewed.
      To facilitate meaningful review of sentences, we urge parties to include in the appellate record any documents relied upon below.

      . The fact that a probation officer, rather than a party, supplied the untranslated document to the district court is irrelevant to our analysis. The Jones Act applies with equal force to any material that a probation officer wants the district court to consider at sentencing.

      . In Rivera-Rosario, we reviewed all five of the defendants' convictions for reversible error under the Jones Act, even though only two had “raised this issue on appeal,” because "violations of the English language requirement ... have the potential' to eviscerate a party’s right to meaningful appellate review." 300 F.3d at 10 n.11. We therefore review Román’s Jones Act claim under the correct standard even though he mistakenly believed that it was subject to plain error review.

      . Román disputes whether convictions under Article 401 are categorically controlled substance offenses. We have previously stated that they are not, Dávila-Félix, 667 F.3d at 56, but we do not rely on that holding here, and so we need not address the Government's argument that we were not apprised of controlling Puerto Rico case law in that case.


author: WINTER, Circuit Judge:

text:
    Jia SHENG, Plaintiff-Appellant, v. M&TBANK CORPORATION, Manufacturers & Traders Trust Company, d/b/a M&TBank, Defendants-Appellees.
    Docket No. 14-4467-CV
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: October 21, 2015
    Decided: February 2, 2017

      GEORGE D. VALLAS, The Ottinger Firm, P.C., New York, NY, for Plaintiff-Appellant.
    JUSTIN C. ELLER, Miles & Stock-bridge, P.C., Baltimore, MD, for Defendants-Appellees.
    Before: KEARSE, WINTER, and CABRANES, Circuit Judges.
   WINTER, Circuit Judge:

Jia Sheng brought this action against appellees (collectively MTBank ), claiming violations of various state and federal statutes by not allowing her to work remotely when she became pregnant. After the close of evidence, Magistrate Judge Scott ruled as a matter of law against appellant on a number of claims, while the jury found for MTBank on the remaining claims.

On appeal, appellant contends that the district court erred by: (i) admitting evidence in violation of Fed. R. Evid. 408 that MTBank made an offer of reinstatement allowing her to work remotely, (ii) disqualifying the attorneys for both parties under the advocate-witness rule, (iii) not instructing jurors on her claim that MTBank violated the Americans with Disabilities Act of 1990 (ADA) by failing to engage in an interactive process, and (iv) dismissing as a matter of law appellant’s New York State Human Rights Law (NYSHRL) claim, which appellant argues had the same legal and factual underpinnings as her ADA claim that was presented to the jury-

We hold that (i) the district court abused its discretion in admitting evidence of the reinstatement offer because the offer was, as a matter of law, not unconditional; (ii) the district court erred in sua sponte disqualifying the attorneys, because the disqualification depended on the erroneous admission of evidence relating to the reinstatement offer; (iii) the jury instructions were not erroneous; and (iv) we lack jurisdiction over appellant’s challenge to the district court’s NYSHRL ruling.

We vacate the judgment in part, insofar as it adopted the jury’s verdict and the. district court’s disqualification order; dismiss the appeal in part, insofar as it pertains to claims under the NYSHRL; and remand for further proceedings consistent with this opinion.

BACKGROUND

“In reviewing this record we construe all evidence, draw all inferences, and make all credibility determinations in favor of the party that prevailed before the jury.” DiBella v. Hopkins, 408 F.3d 102, 110 (2d Cir. 2005).

In January 2010, appellant began her employment with MTBank in Buffalo, New York as a Lead on its Quality Assurance Test (QAT) team in the bank’s Central Technology (CT) Department. The QAT team executes system testing of computer programs for bank applications. In March 2011, appellant decided to resign her position and relocate to Los Angeles, where her husband had taken a job. However, her supervisor, Monica Holcomb, suggested that she continue to work at MTBank remotely through the bank’s Alternative Work Arrangement (AWA) policy. Under the AWA policy, “[a]n employee’s failure to resume [a] traditional work schedule or location upon revocation of an AWA will be considered a voluntary resignation of employment.” J. App’x at 77. Appellant accepted Holcomb’s offer and began working remotely from California.

In the spring of 2012, MTBank’s management began exploring a reorganization of the CT Department, including the QAT team. This reorganization was intended to facilitate the Voyager Project, a planned overhaul of MTBank’s existing online banking system. On May 30, 2012, MTBank announced the reorganization to CT Department employees. In a meeting attended remotely by appellant, management explained that, in light of the reorganization, all AWAs would be reviewed. Later that day, Holcomb called appellant, who confirmed that she understood that her AWA status could be affected by the reorganization.

The next day, appellant notified Lonnie Basciani — who had replaced Holcomb as appellant’s supervisor and in turn reported to Holcomb — that she was pregnant. Shortly thereafter, she expressed concern about her AWA policy. Management determined, however, that team leads would need to be physically present in Buffalo at least two days per week in order to communicate and work directly with the individuals implementing the Voyager Project. At the time, appellant was the only employee on AWA status and not based in Buffalo. On June 27, 2012, Holcomb notified appellant that her AWA status would be altered, and that she would need to begin traveling to Buffalo.

The following day, on June 28, 2012, appellant emailed Holcomb and MTBank’s Human Resources Department, requesting a meeting to discuss the possibility of delaying the start of her commute to Buffalo until after she gave birth. At a July 3, 2012 meeting with Holcomb, however, appellant was informed that her request to be exempted from traveling to Buffalo during the duration of her pregnancy was denied. Appellant was given a deadline of July 27 to confirm that she would begin reporting to Buffalo in early August.

On July 19, appellant submitted a letter from her obstetrician to Holcomb and MTBank’s Human Resources Department, stating that, for health reasons, she should not engage in air travel for the duration of her pregnancy. After receiving this letter, Human Resources and MTBank management examined whether appellant could work on non-Voyager Project matters until she gave birth in December 2012. They concluded that there was not enough non-Voyager work to keep her occupied.

For the next eight weeks, appellant received minimal communication from MTBank, except for periodic directives that she continue working. Finally, on September 11, 2012, MTBank notified appellant that she should either permanently relocate to Buffalo within thirty days or apply for and, if eligible, take early short-term disability leave, allowing her to remain in California through the end of her pregnancy. If she chose neither of these options, she would be terminated and given eleven weeks of severance pay.

On September 14, 2012, appellant emailed MTBank, rejecting its offers. She explained that she was “not able to relocate to Buffalo within the next 30 days due to medical restrictions on [her] ability to travel during [her] pregnancy.” J. App’x at 78. On September 20, 2012, Ariel Y. Graff, an attorney for appellant, wrote a letter to MTBank’s General Counsel stating that appellant had been “effectively terminated ... because of her pregnancy ... Constituting] unlawful discrimination on the basis of gender, pregnancy and pregnancy-related medical conditions.” Id. at 60-62. He also stated that he was writing, in part, “to offer the Company and potential individually named Defendants the opportunity to avoid a costly legal action that will result in substantial liability and adverse publicity for the Company and its executives.” Id. at 62.

The letter was forwarded to MTBank’s vice-president and counsel, Sean Ronan, who spoke with Graff by telephone on October 12, 2012. At the start of the conversation, Graff made clear, and Ronan agreed, that Rule 408 of the Federal Rules of Evidence, Fed. R. Evid. 408 (providing that offers of settlement are inadmissible in later proceedings under certain conditions), would govern the conversation. Graff then made a settlement offer demanding $200,000. Ronan responded that the bank was not prepared to agree to such a monetary settlement. Instead, he suggested that appellant be reinstated and that she be allowed to work remotely from Los Angeles for the remainder of her pregnancy. No explicit statement was made that the reinstatement offer was conditioned upon the execution of a release of appellant’s claims for monetary damages. Later, in a letter to the Equal Employment Opportunity Commission (EEOC), Ronan described his oral offer to appellant as follows: “Our decision to offer [appellant] the accommodation she had demanded was not unlike any other offer of compromise [MTBank] — and a myriad of other parties — may offer to stave-off the vicissitudes of litigation. Distasteful and disruptive as it may have been, we ultimately decided to capitulate to [appellant’s] demand solely because we recognized that it would be better than incurring time and expense fighting the issue.” J. App’x at 75.

On November 8, 2012, appellant filed a Charge of Discrimination with the EEOC. On the same day, appellant filed the present action, eventually amending her complaint to allege that MTBank had: (i) engaged in unlawful interference under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the California Family Rights Act, Cal. Gov’t Code § 12945.2, and the California Pregnancy Disability Leave Law, Cal. Gov’t Code § 12945(a); (ii) unlawfully retaliated under the FMLA, Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the ADA, 42 U.S.C. § 12101 et seq., and the NYSHRL, N.Y. Exec. Law § 290 et seq.; (iii) unlawfully discriminated under Title VII, the ADA, and the NYSHRL; and (iv) failed to provide a reasonable accommodation under the ADA, the NYSHRL, and the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940.

Before trial, appellant filed a motion m limine with the district court, seeking to exclude “[a]ll offers made by [MTBank] to reinstate [appellant] in exchange for settling the instant action” pursuant to Federal Rule of Evidence 408. See J. App’x at 8. MTBank opposed the motion. It argued, first, that the reinstatement offer was admissible to show that appellant failed to mitigate damages and, second, should not be excluded under Rule 408 because the offer was unconditional, i.e., was not contingent on appellant’s releasing MTBank from liability.

After an evidentiary hearing, the district court denied appellant’s motion. The court reasoned that, under Pierce v. F.B. Tripler & Co., 955 F.2d 820, 827 (2d Cir. 1992), an offer of settlement made by defendant’s counsel to plaintiffs counsel is presumed to be inadmissible unless there is “convin-cin[g evidence] that the offer was not an attempt to compromise the claim.” Sheng v. M & T Bank Corp., 2014 WL 5500632, at *3 (W.D.N.Y. Oct. 30, 2014). The court suggested that Pierce may no longer be good law in light of our decision in Lightfoot v. Union Carbide Corp., 110 F.3d 898 (2d Cir. 1997), which validated the proposition that an unconditional offer “cannot be construed as an offer to settle or compromise under Rule 408.” Sheng, 2014 WL 5500632, at *3. The district court concluded that there was “no evidence to suggest that the offer of reinstatement was conditioned upon the compromise of the plaintiffs claims,” and, therefore, the evidence of the reinstatement offer was admissible to show that appellant had not attempted to mitigate damages. Id. The court further ruled that both Graff and Ronan were disqualified from acting as trial counsel under the advocate-witness rule because they were the only witnesses who could testify before the jury as to whether MTBank extended an unconditional offer and whether appellant unreasonably rejected that offer. Id. at *4.

A jury trial began on November 3, 2014. After the close of evidence, the district court granted MTBank’s motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) on a number of appellant’s claims, including the failure to accommodate under the NYSHRL. The court also declined to instruct the jury that the ADA imposes an affirmative duty on employers to engage in an interactive process with all employees who have requested accommodations.

On November 7, 2014, the jury returned a verdict for MTBank on the four remaining claims: interference under the FMLA, retaliation under the FMLA, failure to accommodate under the ADA, and failure to accommodate under the California FEHA. On December 2, 2014, appellant appealed from “the jury verdict entered in this action on the 7th day of November 2014.”

DISCUSSION

a) Admissibility of the Reinstatement Offer and Attorney Disqualification

Appellant argues that the district court abused its discretion by admitting evidence of MTBank’s offer of reinstatement. We agree and find that this error was not harmless. Because the admission of the evidence served as the basis for Graff and Ronan’s disqualification, they may appear in subsequent proceedings.

We review evidentiary rulings for abuse of discretion, United States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013), a standard that is met only when the district court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions,” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, citations, and alterations omitted). We will not vacate for a new trial, however, if any error was harmless, i.e., where we “can conclude with fair assurance that the evidence did not substantially influence the jury.” United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009) (internal quotation marks omitted).

Rule 408(a) prohibits, inter alia, the admission of “[e]vidence of the following ... to prove or disprove the validity or amount of a disputed claim ...: (1) ... offering ... valuable consideration in ... attempting to compromise the claim....” Fed. R. Evid. 408(a)(1) (emphasis added).

In Pierce, we held that “where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Rule 408.” 955 F.2d at 827. The Pierce presumption can be rebutted only if “[t]he party seeking admission of [the] offer ... demonstrate^] convincingly that the offer was not an attempt to compromise the claim.” Id.

We do not agree with the district court that Pierce is “no longer ... good law” in light of our decision in Lightfoot. See Sheng, 2014 WL 5500632, at *3. Lightfoot ’s only citation to Pierce approved the earlier decision. See 110 F.3d at 909 (citing Pierce, 955 F.2d at 826-29). Indeed, Lightfoot simply stated the obvious: “By definition, an unconditional offer may not require the employee to abandon or modify his suit, and ... therefore cannot be considered an offer of settlement or compromise.” Id.

Analogizing to Pierce, we conclude that the district court erred in admitting evidence of MTBank’s reinstatement offer. While Pierce uses the word “presumed,” it did not relegate the issues to the tangled analysis sometimes employed in the area of legal presumptions. See generally Fed. R. Evid. 301, Advisory Committee notes. Rather, it simply recognized the self-evident inference that, even when a lawyer informs counsel for a (potential) plaintiff that the (potential) defendant agrees to all relief believed to be demanded, some sort of release, at the very least, is expected in return. This expectation, which is almost universal, absent express reservations to the contrary, renders the offer conditional and subject to exclusion under Rule 408.

To be sure, there may be exceptional circumstances in which the parties understand that an unconditional offer is being made, but no such circumstances exist here. Appellant was represented by counsel who initiated the first steps toward the litigation by sending a letter dated September 20, 2012 to MTBank’s General Counsel alleging unlawful discrimination on the basis of gender and pregnancy. The letter prompting the call was marked “CONFIDENTIAL COMMUNICATION FOR SETTLEMENT PURPOSES ONLY,” and the two attorneys, Graff and Ronan, began their October 12, 2012 call by agreeing that Rule 408 would govern the conversation. Of course, such an agreement by itself does not preclude a party from making an unconditional offer, but it does suggest that the parties here were hoping to take advantage of Rule 408’s protection — protection available only for conditional offers. Further, although Ro-nan had not explicitly made reinstatement contingent upon the execution of a release and waiver of claims, the reinstatement offer was made immediately after Graffs settlement offer of $200,000 was rejected.

Moreover, Ronan himself admitted the offer was conditioned on appellant’s forgoing litigation when he told the EEOC that “[MTBank’s] decision to offer [appellant] the accommodation she had demanded was not unlike any other offer of compromise [MTBank] — and a myriad of other parties — may offer to stave-off the vicissitudes of litigation. Distasteful and disruptive as it may have been, [MTBank] ultimately decided to capitulate to [appellant’s] demand solely because we recognized that it would be better than incurring time and expense fighting the issue.” J. App’x at 75. This constitutes an admission by MTBank that the reinstatement offer was conditioned upon dropping the lawsuit and its monetary demand, eliminating, as a matter of law, any factual issue as to whether the offer was conditional.

While “evidentiary rulings are subject to harmless error analysis,” Mercado, 573 F.3d at 141, our review of the record convinces us that this error was hardly harmless. See, e.g., J. App’x at 94 (MTBank’s opening statement (“[Appellant] was offered ultimately exactly what she had asked for.... So, why are we standing here today if that’s what she was offered?”)); id. at 260 (MTBank’s closing statement (“The bottom line I’m going to offer is, [appellant’s] attorneys know that the offer is a game changer.... You don’t always get what you want exactly when you want it, but here, [appellant] was offered exactly what she asked for.”)). The reinstatement offer may, therefore, have substantially affected the jury’s verdict.

Accordingly, we vacate the judgment insofar as it adopted the jury’s verdict. In addition, we also vacate the appeal insofar as it adopted the district court’s order sua sponte disqualifying Graff and Ronan, because that order rested on the erroneous admission -of evidence relating to MTBank’s reinstatement offer.

b) The Jury Instructions

“We review a claim of error in the district court’s jury instructions de novo, disturbing the district court’s judgment only if the appellant shows that the error was prejudicial in light of the charge as a whole.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 152-53 (2d Cir. 2014) (internal quotation marks omitted). “A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 153 (2d Cir. 1997) (internal citation omitted). We will not require a new trial “[i]f the instructions, read as a whole, presented the issues to the jury in a fair and evenhanded manner.” Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir. 2012).

Before this case was submitted to the jury, appellant objected to the district court’s proposed jury instructions on the ground that the instruction on the ADA failure-to-aecommodate claim did not “include within the definition of failure to accommodate a failure to engage in the interactive process with the employee in violation of [the] Code of Federal Regulations and Brady v. Walmart.” J. App’x at 251. Appellant presses this contention on appeal, arguing in effect that a defendant’s failure to engage in an interactive process is alone sufficient to support a failure-to-accommodate claim under the ADA. We disagree. We do hold, however, that district courts may admit an employer’s failure to engage in an interactive process as evidence of discrimination under the ADA.

“Discrimination in violation of the ADA includes, inter alia, ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.’ ” McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009) (quoting 42 U.S.C. § 12112(b)(5)(A)). A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A plaintiff makes out a prima facie case of disability discrimination arising from a failure to accommodate by showing each of the following:

(1) [P]laintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.

McBride, 583 F.3d at 96-97 (internal quotation marks omitted).

In McBride, we agreed with “each of our sister Circuits ... that failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that accommodation was possible.” Id. at 100-01 (collecting cases). Therefore, there is no valid independent claim under the ADA for failure to engage in an interactive process. See Noll v. Int’l Bus. Machines Corp., 787 F.3d 89, 97 (2d Cir. 2015) (“[Plaintiff-employee] contends that [defendant-employer] failed to engage in [an interactive] process, and advances an argument that this failure gave rise to an independent cause of action [under the ADA]. We disagree.”). We clarify, however, that an employer’s failure to engage in a good faith interactive process can be introduced as evidence tending to show disability discrimination, McBride, 583 F.3d at 101 (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc), rev’d on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002); Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1020-21 (8th Cir. 2000); F.jellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317-20 (3d Cir. 1999)), and that “the employer has refused to make [a reasonable] accommodation,” 583 F.3d at 96-97.

The regulations implementing the ADA are consistent with our view that a failure to engage in a good faith interactive process is not an independent violation of the ADA. They state that, “[t]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [qualified] individual with a disability in need of the accommodation.”' 29 C.F.R. § 1630.2(o)(3) (emphasis added). Even where the employer has refused to interact with the claimant, a violation of the ADA requires a showing of a disability as defined by the ADA, proof of qualification, and the existence of a reasonable accommodation. See McBride, 583 F.3d at 101 (“[A]n employer’s failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA and evidence thereof does not allow a plaintiff to avoid summary judgment unless she also establishes that, at least with the aid of some identified accommodation, she was qualified for the position at issue.”).

We see no conflict between this proposition and our ruling with regard to the exclusion of Ronan’s offer under Rule 408, discussed supra, and admitting evidence of MTBank’s failure to discuss possible accommodations. An offer of an accommodation conditioned upon the dropping of monetary claims does not fulfill the requirements of the ADA as to an interactive process. The Act clearly imposes a duty to provide an accommodation in job requirements, if feasible. The discussion obligation relates only to the feasibility of accommodating employer/employee needs. Conditioning proposed accommodations on the dropping of claims does not fulfill that obligation.

c) The NYSHRL Claim

Appellant contends that the district court erred in granting MTBank’s motion for judgment as a matter of law, Fed. R. Civ. P. 50(a), on her failure to accommodate claim under the NYSHRL — arguing that this claim had the same factual premises and was governed by the same legal principles as her ADA failure-to-accommodate claim, which was allowed to proceed to trial. However, appellant did not properly preserve this issue for appeal.

A notice of appeal must “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). The requirement is jurisdictional, Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct. 641, 651-52, 181 L.Ed.2d 619 (2012), but “it is well settled that courts should apply a liberal interpretation to that requirement,” Conway v. Vill. of Mount Kisco, 750 F.2d 205, 211 (2d Cir. 1984).

Here, appellant’s Notice of Appeal appealed “from the jury verdict entered in this action on the 7th day of November 2014,” not from the district court’s prior judgment as a matter of law. J. App’x at 272 (emphasis added). Indeed, appellant argued for the first time in her opening brief to this court that the district court erred in its entry of judgment on the NYSHRL claims. As a result, we find that appellant did not properly preserve her argument that the district court erred in granting MTBank’s Rule 50(a) motion.

CONCLUSION

For the foregoing reasons, we vacate the judgment in part, insofar as it adopted the jury’s verdict and the district court’s disqualification order; dismiss the appeal in part, insofar as it pertains to claims under the NYSHRL; and remand for further proceedings consistent with this opinion.

      . Appellant named as defendants in her complaint "M&T Bank Corporation, and Manufacturers & Traders Trust Company d/b/a M&T Bank.” We refer to them collectively herein as “MTBank.”

      . The court ultimately allowed the jury to resolve “questions of fact” over whether MTBank “made an unconditional offer of reinstatement and whether the plaintiff reasonably refused the offer.” IR at *4 & n.6. This procedure followed Fed. R. Evid. 104, which directs that the trial court decide "preliminary questions” of fact governing issues of admissibility — here, whether the reinstatement offer was conditional or not — -but allow the jury to determine the same facts where the same preliminary questions of fact go to the merits — here, whether appellant failed to mitigate damages by declining an unconditional offer of reinstatement.

      . An employer engages in an interactive process by, for example, “meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, asking the employee what he or she specifically wants, showing some sign of having considered the employee’s request, and offering and discussing available alternatives when the request is too burdensome.” Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 218-19 (2d Cir. 2001) (internal quotation marks and alterations omitted).


author: PER CURIAM:

text:
    The CADLE COMPANY, Plaintiff-Appellee, v. Marguerite FLETCHER and Terry B. Fletcher, Defendants-Appellants.
    No. 14-3404-cv
    August Term 2015
    United States Court of Appeals, Second Circuit.
    Argued: September 25, 2015
    Decided: February 6, 2017

      Paul N. Gilmore, Updike, Kelly & Spel-lacy, P.C., Hartford, CT, for Plaintiff-Ap-pellee.
    John W. Larson (Nicholas J. Harding, on the brief), Reid & Riege, P.C., Hartford, CT, for Defendants-Appellants.
    Before: CABRANES and POOLER, Circuit Judges, and GARDEPHE, District Judge.

       Judge Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

Defendants-Appellants Marguerite Fletcher and Terry B. Fletcher appeal the August 13, 2014 judgment of the District Court granting summary judgment to Plaintiff-Appellee on its claim of fraudulent transfer of assets and denying a motion by Defendants-Appellants for partial summary judgment. The primary question on appeal is whether a judgment debtor’s residual wages after garnishment are exempt from further execution under Conn. Gen. Stat. §§ 52-361a and 52-367b, and thus should not be considered “assets” under the Connecticut Uniform Fraudulent Transfer Act, Conn. Gen. Stat. § 52-552a et seq.

On October 14, 2015, we entered an order certifying the question of whether Conn. Gen. Stat. §§ 52-361a and 52-367b exempt a judgment debtor’s post-garnishment residual wages from further execution to the Connecticut Supreme Court. See Cadle Co. v. Fletcher, 804 F.3d 198 (2d Cir. 2015) (per curiam). The Connecticut Supreme Court has answered that question in the negative. See Cadle Co. v. Fletcher, 324 Conn. 228, 244-45 (Dec. 23, 2016).

We have considered all of the Defendants’ remaining arguments on appeal and find them to be without merit. Accordingly, for substantially the reasons set forth by the Connecticut Supreme Court, we AFFIRM the judgment of the District Court.

      . The underlying facts, procedural histoiy of the case, and issues on appeal are set forth in our opinion of October 14, 2015.

      . In light of the paucity of state precedent, we held that it was more appropriate for the Connecticut Supreme Court to interpret the relevant state statutes in light of Connecticut's overall statutory scheme. See Cruz v. TD Bank, N.A., 711 F.3d 261, 267-68 (2d Cir. 2013). Our decision to certify this question is fully explained in our previous opinion. See Cadle Co., 804 F.3d at 199-202.