Full opinion text
HOLMES, Circuit Judge. Defendants-Appellants David A. Banks, Kendrick Barnes, Demetrius K. Harper, Clinton A. Stewart, Gary L. Walker, and David A. Zirpolo (collectively “Defendants”) were convicted following a jury trial in the District of Colorado of multiple counts of mail fraud and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343, and conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C. § 1349. Defendants were sentenced to terms of imprisonment ranging from 87 to 135 months. Defendants assert the following four issues on appeal: (1) their right to a speedy trial was violated when the district court granted multiple continuances of the trial date (at Defendants’ request); (2) the district court compelled co-Defendant Barnes to testify in violation of his Fifth Amendment privilege against self-incrimination and failed to give a proper curative instruction; (3) the district court abused its discretion in excluding the testimony of two witnesses Defendants sought to call at trial; and (4) the cumulative effect of the district court’s otherwise harmless errors prejudiced them and requires reversal. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm. I Defendants operated or were associated with the entities Leading Team, Inc. (“LT”) and DKH, Inc. (“DKH”). LT and DKH were formed to produce and assist in the production of software. In 2003, Defendants stopped operating LT and began operating a third entity, IRP Solutions Corporation (“IRP”). IRP was formed to produce computer software, including a software program called Case Investigative Life Cycle (“CILC”), that would supposedly provide a nationally accessible database for law-enforcement agencies, “computerize their systems,” and “prevent hacking and identity theft.” R., Vol. 2, at 1288 (Jury Trial Tr., dated Sept. 29, 2011) (Test of Karen Chavez of Today’s Office Staffing); see also id. at 845 (Jury Trial Tr., dated Sept. 27, 2011) (explanation of co-Defendant Harper that he intended the software to “help our men and women on the front lines against terrorism, against cyber crimes, to help them do their jobs better”); id. at 862-63 (explanation of co-Defendant Stewart that he expected the software to eliminate “process inefficiencies, like the ones that law enforcement officials did not connect the dots from one piece of intelligence information to another, which was the route that caused 9/11”). Mr. Walker was the President of IRP, Mr. Banks was the Chief Operating Officer, and the remaining Defendants held other executive positions. Beginning around October of 2002, acting on behalf of DKH, LT, and IRP, Defendants contacted numerous staffing agencies to “assist in providing temporary services.” Id. at 1638 (Jury Trial Tr., dated Oct. 3, 2011) (Test, of Courtney Mullen of The Computer Merchants). Most of these staffing companies provide two core services: “staff augmentation and payroll-ing.” Id. at 2619 (Jury Trial Tr., dated Oct. 12, 2011) (Test, of Joseph Thurman of Innovar Group). In the first type of transaction — staff augmentation — “clients” like Defendants’ entities “ask for certain skills,” and the staffing company’s “recruiters ... find candidates” with those skills “and then place them on assignment.” Id. at 1015 (Jury Trial Tr., dated Sept. 28, 2011) (Test, of Donald Crockett of CTG, Inc.). By contrast, in the second type of transaction — payrolling—the client has already pre-selected individuals it would like the staffing company to retain. The staffing company therefore simply hires those individuals for the client and subsequently pays those employees’ wages and handles their taxes and workers’ compensation. Id. at 741-42 (Test, of Renee Rodriquez of Express Employment Professionals); see id. at 693 (Test, of Scott Tait of Adecco) (“Payrolling is where the company already knows who they want to hire, they run it through us as W2’d employees, so that they are covered under their insurance and workman’s comp, unemployment and the risk liability.”). The staffing company receives a premium for its services in both of these transactions. However, because in a payrolling transaction the staffing company is “not doing as much work,” its “profit margin is significantly lower.” Id. at 1507 (Jury Trial Tr., dated Sept. 30, 2011) (Test, of Susan Sla-key of ESG Consulting). As is relevant here, witnesses from multiple staffing companies testified that a Defendant (or someone acting as Defendants’ agent) approached them and expressed the desire for payrolling services. One exemplar transaction, as described by a representative of ESG Consulting, arose when Mr. Banks, on behalf of IRP, contacted ESG regarding “a project that [IRP] wanted ESG to support them with by bringing in a consultant to do some technical work.” Id. at 1476. In that particular transaction, Mr. Banks requested that ESG retain “[t]he services of Kendrick Barnes” for IRP. Id. at 1477. No doubt aware that payrolling “isn’t that lucrative for the [staffing] company,” id. at 1639, Mr. Banks assured ESG that IRP was developing software for “Homeland Security, FBI and [the] police,” id. at 1476. He did so presumably to signify that IRP’s “business was to grow,” id. at 1639, and that, because IRP “had money coming in through the software they were developing for Homeland Security and other government entities,” id. at 1491, ESG (and the other staffing companies) could expect more lucrative transactions with IRP in the future. See also id. at 1400 (Test, of Gregory Krueger of Agile 1) (explaining that, from his company’s perspective, if Defendants’ companies “were actually in business and engaging in a source of revenue, then we knew we were going to be paid for providing our payrolling service”); id. at 1414 (noting that eo-Defendants Stewart and Harper “led [his staffing company] to believe that the business was being conducted” and “that DKH was invoicing a [law-enforcement] client and getting paid for the work it was performing” vis-a-vis software development). In other words, the staffing-company witnesses testified that they were induced into believing that Defendants’ companies were either doing business with major law-enforcement agencies or were on the verge of selling CILC software to these agencies. These witnesses also testified that Defendants (or Defendants’ agents) assured them that this alleged law-enforcement business would enable Defendants’ companies to pay the staffing companies’ invoices — and, critically, that they relied on these representations in choosing to do business with Defendants. See, e.g., id. at 726 (affirming that “[we] made a decision to engage in business based on ... contacts [Defendants] may have had”); id. at 763 (noting that the effect of Defendants’ representations concerning law-enforcement contacts was “[a] large one” because those government agencies are considered “stable customers”). As a result, the staffing companies agreed to hire Defendants’ pre-selected contract employees and pay their salaries. For example, in the situation detailed above, ESG hired Mr. Barnes “as a W2 employee, which means [ESG was] responsible for paying him, for paying all payroll taxes and statutory insurance and taxes on him.” Id. at 1482. Trial testimony from representatives of the law-enforcement agencies with whom Defendants claimed to be doing business— including the Department of Homeland Security (“DHS”), the New York City Police Department (“NYPD”), and the Department of Justice (“DOJ”) — revealed the falsity of Defendants’ representations to the staffing companies. These witnesses averred that Defendants’ companies had not, in fact, sold CILC software to their respective agencies and, moreover, that Defendants lacked any basis for believing that any such sales were imminent. See id. at 1135 (Test, of Paul Tran of DHS) (answering “no” to the question, “[D]id you make any representations that [DHS] would buy the CILC software?”); id. at 2977-78 (Jury Trial Tr., dated Oct. 17, 2011) (Test of Steven Cooper of DHS) (answering “no” to the question, “[W]ould you have made any statements that would have suggested that [DHS] was going to buy their software?”). The cracks in the foundation of misrepresentations constructed by Defendants began to show when the time came for the staffing companies to be compensated by Defendants’ companies for having paid the contract employees’ wages. Seeking remuneration for their services, the staffing companies would send invoices to Defendants’ companies to cover the wages and a small markup. See, e.g., id. at 697 (“Adec-co paid [the employees of] DKH.... And Leading Team was supposed to pay Adec-co.”); id. at 2169 (Jury Trial Tr., dated Oct. 5, 2011) (Test of U.S. Att’y Auditor) (describing invoices relating to “Leading Team account”). When Defendants did not pay the invoices, they initially attempted to fend off the staffing companies’ collection efforts by explaining that they were “working with the government, and ... waiting on some payments” because of “how slow the government could be.” Id. at 752. Stated otherwise, when questioned about their failure to pay the staffing companies’ invoices, Defendants gave false assurances that payment would be .forthcoming, and they continued to imply that they were doing business with large government law-enforcement agencies. Evidence adduced at trial also demonstrated that Defendants employed various tactics to prevent the victim companies from learning that they would not be paid. Most notably, Defendants used entities they controlled as references in credit applications, see id. at 1478 (noting that Mr. Banks provided “DKH” as a credit reference); submitted time cards to staffing companies in which they reported time using various aliases, see id. at 2059 (Test, of FBI Agent Eric Black) (directing the jury’s attention to “the name in parentheses next to Rico Howard called Clint Stewart”); and reported overlapping hours for the same employee at multiple staffing companies, see id. at 2383-88 (Jury Trial Tr., dated Oct. 7, 2011) (Test, of software developer William Williams) (providing the example that Mr. Barnes reported working a total of twenty-four or more hours in a day for three different staffing companies on approximately twenty-three different days). In the end, forty-two different staffing companies were left with outstanding invoices totaling in excess of $5,000,000— amounts Defendants’ companies had not paid (and apparently could not pay), and which could not be submitted to the government agencies, which had no business relationship with Defendants’ companies. On June 9, 2009, Defendants were indicted on multiple counts of conspiracy to commit mail fraud and wire fraud, and committing mail fraud and wire fraud, in violation of 18 U.S.C. §§ 1349, 1341, and 1343. Trial commenced on September 26, 2011. Although Defendants were represented by counsel prior to trial, they elected to proceed pro se during trial. On October 20, 2011, the jury returned guilty verdicts as to all Defendants on one or more counts of mail fraud and wire fraud, and conspiracy to commit mail fraud and wire fraud. This consolidated appeal followed. II Defendants assert four issues on appeal. First, Defendants argue that the district court violated their statutory and constitutional rights to a speedy trial by granting four continuances that were requested by Defendants. Second, Defendants contend that the district court compelled co-Defendant Barnes to testify in violation of the Fifth Amendment privilege against self-incrimination, thereby prejudicing all Defendants, and failed to give a proper curative instruction. Third, Defendants argue that the district court abused its discretion in excluding the testimony of two purported expert witnesses. And, finally, Defendants contend that the cumulative effect of the district court’s otherwise harmless errors prejudiced them and constitutes reversible error. We address each of these arguments in turn. A We review the denial of a motion to dismiss for violation of the Speedy Trial Act (the “Act”) for abuse of discretion. See United States v. Thompson, 524 F.3d 1126, 1131 (10th Cir.2008). We also review the decision to grant an ends-of-justice continuance for abuse of discretion. See United States v. Toombs, 574 F.3d 1262, 1268 (10th Cir.2009). In other words, we review the district court’s compliance with the legal requirements of the Act de novo and its underlying factual findings for clear error. See id. “We review [a defendant’s] Sixth Amendment [speedy-trial] claim de novo, but accept the district court’s factual determinations unless clear error is shown.” United States v. Gould, 672 F.3d 930, 935 (10th Cir.2012); accord United States v. Madden, 682 F.3d 920, 929 (10th Cir.2012); see also United States v. Larson, 627 F.3d 1198, 1207 (10th Cir.2010) (“[Defendant’s] claim that his Sixth Amendment speedy trial right was violated is reviewed de novo.”). Defendants first argue that their statutory right to a speedy trial, under 18 U.S.C. § 3161(c)(1), was violated when the district court granted multiple continuances of their trial date. Defendants also argue that their Sixth Amendment right to a speedy trial was violated. We begin by addressing whether Defendants’ statutory right to a speedy trial was violated, and then proceed to address the separate question of whether Defendants’ constitutional right to a speedy trial was violated. 1 The Speedy Trial Act requires that a federal criminal trial commence within seventy days of the filing of the indictment or the defendant’s initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1); Toombs, 574 F.3d at 1268. The Act excludes from this seventy-day period, inter alia, “[a]ny period of delay resulting from a continuance ... if the judge granted such a continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). A court is required to set forth on the record, either orally or in writing, its reasons for making such a determination. See id. We have repeatedly noted that an ends-of-justice continuance is “meant to be a rarely used tool for those cases demanding more flexible treatment,” Toombs, 574 F.3d at 1269 (quoting United States v. Doran, 882 F.2d 1511, 1515 (10th Cir.1989)) (internal quotation marks omitted), and “should not be granted cavalierly,” United States v. Williams, 511 F.3d 1044, 1049 (10th Cir.2007). In determining whether to grant an ends-of-justice continuance, the district court must consider the factors listed in 18 U.S.C. § 3161(h)(7)(B). These factors include: (i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice[;] (ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section[;] (iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex[; and] (iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence. 18 U.S.C. § 3161(h)(7)(B). “[T]he record must clearly establish [that] the district court considered the proper factors at the time such a continuance was granted.” Larson, 627 F.3d at 1204 (alterations in original) (quoting Toombs, 574 F.3d at 1269) (internal quotation marks omitted). “If the district court fails to consider these factors, the continuance ‘period cannot be excluded under the Act’s ends-of-justice provision.’ ” Id. (quoting Williams, 511 F.3d at 1057). Similarly, if the court fails to make its findings on the record, “there can be no exclusion ... [and] the delay resulting from the continuance must be counted.” Id. (quoting Zedner v. United States, 547 U.S. 489, 507-08, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006)) (internal quotation marks omitted); see also United States v. Occhipinti, 998 F.2d 791, 797 (10th Cir.1993) (“[T]he trial court must make explicit findings regarding why granting the continuance will strike a proper balance between the ends of justice and the best interest of the public and the defendant in a speedy trial.”). Although the record “must explain ‘why the mere occurrence of the event identified by the party as necessitating the continuance results in the need for additional time,’ ” Larson, 627 F.3d at 1204 (quoting Toombs, 574 F.3d at 1271), “the district court need not articulate facts which are obvious and set forth in the motion for the continuance itself,” id. (quoting Toombs, 574 F.3d at 1269) (internal quotation marks omitted). With this framework in mind, we turn now to the four continuances at issue. 1. Continuance Granted on July 9, 2009 On July 6, 2009, then-counsel for co-Defendant Banks filed an unopposed motion for an ends-of-justice continuance of ninety days under 18 U.S.C. § 3161(h). In support of the motion, Mr. Banks made the following allegations: (1) the investigation into Defendants’ conduct spanned multiple years and involved several federal agencies; (2) the indictment contained twenty-five counts and listed six defendants and forty-two separate victims; (3) Defendants had been informed by the government that discovery materials occupied approximately thirty boxes, which the government was working to organize and scan into a digital format; (4) the government had informed defense counsel that discovery would be made available in stages, with an expected completion date of July 27, 2009; and (5) it was unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself by the September 1, 2009, speedy-trial deadline due to the voluminous discovery, multiple defendants, and complex nature of the allegations in the matter. On July 9, 2009, the district court issued a written order granting the motion for a continuance pursuant to 18 U.S.C. § 3161(h)(8)(A). As the basis for its order, the court found as follows: Due to the voluminous discovery, multiple defendants, and complex nature of the allegations in this matter, denying the requested continuance would result in a miscarriage of justice by denying Defendants an adequate opportunity to prepare for trial, despite the exercise of due diligence. Pursuant to 18 U.S.C. § 3161(h)(8)(A) and (B)(ii), the ends of justice that will be served by excluding the requested period of continuance from the speedy trial calculation outweigh the best interests of the public and the Defendants in a speedy trial. R., Vol. 1, at 89-90 (Order Granting Continuance, filed July 9, 2009). Defendants now contend that the ninety-day continuance should not have been granted because: (1) defense counsel had yet to receive discovery; (2) the court failed to hold a hearing on the matter; (3) the government failed to voice any opposition to the motion; and (4) the court could not have known whether the case was complex as of the date the motion was granted. We do not find Defendants’ assertions persuasive. Rather, we find that the facts alleged in Defendants’ motion warranted the district court’s issuance of a continuance. As detailed in Defendants’ motion, the investigation underlying the charges at issue spanned several years, involved the production of thousands of documents, and implicated Defendants in crimes involving forty-two victim companies. Thus, it was reasonable for the court to conclude that Defendants required additional time in order to effectively prepare for trial. See United States v. Spring, 80 F.3d 1450, 1457 (10th Cir.1996) (recognizing that “[a]dequate preparation time ... [is] clearly [a] permissible reason[] for granting a continuance and tolling the Speedy Trial Act”). Moreover, it was not necessary for the district court to conduct a hearing, given that the facts alleged in the motion were undisputed. The district court’s order makes clear that it properly considered the required statutory factors and determined that the ends of justice would be served by granting a ninety-day continuance. For these reasons, we conclude that the district court’s grant of a ninety-day continuance was not an abuse of discretion. 2. Continuance Granted on August 20, 2009 On August 18, 2009, co-Defendant Stewart filed an unopposed motion under 18 U.S.C. §§ 3161(h)(7)(A) and (B), seeking an ends-of-justice continuance of 110 days. All Defendants concurred in the motion. In support of the motion, Mr. Stewart alleged, inter alia, that: (1) the FBI investigation of Defendants began on March 25, 2004 and resulted in a search of Defendants’ offices on February 9, 2005; (2) the affidavit supporting the search included reports from ten witness interviews and indicated that thirty-three employees of Defendants’ companies were staffed through victim companies; (3) the search involved as many as twenty law-enforcement officers and spanned a period of over fourteen hours; (4) over twenty boxes of paper documents were seized during the search of Defendants’ offices; (5) the government made electronic copies of the hard drives of seven computer servers and over forty individual computers, resulting in approximately 1.8 terabytes of electronic data; (6) discovery produced by the government consisted of approximately 20,000 scanned images, which Defendants were continuing to review at that time; (7) the indictment charged a conspiracy involving forty-two victim companies, requiring defense counsel to investigate and interview witnesses regarding events that occurred over a nearly seven-year time period; (8) defense counsel estimated that it would need to conduct nearly one hundred interviews during the pretrial preparation period; and (9) Defendants needed to review the discovery materials and interview witnesses in order to effectively prepare for trial, and this could not be reasonably completed by October 7, 2009, taking into account the exercise of due diligence. See R., Vol. 1, at 98 (Mot. for Excl. of Time, filed Aug. 18, 2009) (noting, with regard to interviews, that this “[was] a conservative estimate” of what would be necessary). At the August 20, 2009, status conference, the district court considered Defendants’ motion and made oral findings that the ends of justice would be served by granting the requested continuance. During the hearing, the court confirmed with the government that the factual allegations set forth in Defendants’ motion were accurate and that all parties believed a continuance was necessary in order to allow Defendants to adequately prepare for trial. The court then made the following factual findings: (1) Defendants were charged with engaging in a complex financial scheme occurring over a seven-year period; (2) defense counsel was in the process of reviewing extensive discovery involving thousands of pages of documents and needed to conduct between fifty and one hundred witness interviews; and (8) defense counsel and the government had been “diligent in conforming to their discovery obligations and obtaining the appropriate witnesses.” Id., Vol. 2, at 27 (Status Conf. Tr., dated Aug. 20, 2009). The court then expressly concluded that the ends of justice served by granting the continuance outweighed the interest of the public and Defendants in a speedy trial, and that the failure to grant the continuance “would likely result in a miscarriage of justice by precluding [Defendants from adequately preparing for trial,” most notably by preventing Defendants from “thoroughly reviewing the 20,000 scanned images produced by the Government in July of 2009, and unreasonably limiting [Defendants’ ability to interview the necessary witnesses, including law enforcement officers and employees of the companies involved.” Id. at 28. The court further concluded that the case was “so unusual and complex that it would be unreasonable” to expect Defendants to prepare for trial within the time limits set forth by the Act and the district court’s previous order. Id. In addition to making the above findings and conclusions, the court questioned defense counsel regarding when they would be prepared to file pretrial motions and to set a trial date. Thus, contrary to Defendants’ assertions, the court fully set forth the bases for granting the continuance and supported its conclusions with detailed factual findings. As such, the district court did not violate Defendants’ rights under the Act by granting the continuance and excluding 110 days from the speedy-trial calculations. 3. Continuance Granted on December 18, 2009 On December 14, 2009, defense counsel jointly moved for an additional ends-of-justice continuance of 361 days. In their motion, Defendants set forth “particularized facts supporting the requested exclusion of time,” id., Vol. 1, at 103 (Joint Mot. for Excl. of Time, filed Dec. 14, 2009) (capitalization altered), and recited factual details regarding the extensive amount of discovery required, the number of witnesses involved, and the length of the government’s investigation, see id. at 103-07. The motion also recited how Defendants had used the previous 110-day period excluded by the court and why Defendants needed additional time to prepare for trial. Specifically, Defendants alleged, inter alia, that: (1) due to the volume of material produced during discovery, it was not enough for Defendants to merely review the material; rather, the documents — including emails, letters, FBI 302 reports, and civil pleadings — needed to be cross-referenced in order to be reviewed, compared, and contrasted; (2) Defendants needed additional time to learn and become familiar with industry and government practices; (3) review of the discovery to date revealed at least 130 potential witnesses, many of whom were located outside of Colorado; (4) Defendants needed to obtain permission from the court to travel, and interviews could not be conducted until Defendants had reviewed enough of the discovery to have a clear understanding of the issues to be covered in the interviews and to fully assess any prior statements made by the prospective witness in those discovery materials; (5) Defendants would need considerable time to review any co-conspirator statements the government might seek to introduce pursuant to Federal Rule of Evidence 801(d)(2)(E); and (6) Defendants and the government had met to discuss the contents of the motion, and there was no dispute with respect to any of the facts set forth in the motion. At the next status conference, the court questioned the parties in detail regarding the need for the continuance. The court noted that it was “very hesitant to enter an order that would extend this case by almost a year, especially given the other extensions [it had] already granted.” Id., Vol. 2, at 85. As a result, the court questioned Defendants “about what ha[d] already been done in this case” and why they needed an additional year’s time to prepare. Id. For example, the court inquired as to whether Defendants had “devised a system where ... [they were] not duplicating efforts,” id. at 39, and confirmed that the government did not dispute the amount of time Defendants estimated they needed to review documents and prepare for trial, see id. at 41-42, and that the amount of time requested was consistent with what the government had “seen defense attorneys request and receive and use in order to work on preparing motions in a case like this,” id. at 42. The government also noted that having this additional time would ultimately promote efficiency, as there were “a number of witnesses” involved in the case, and being able to issue subpoenas “well in advance” would be helpful in ensuring the witnesses’ availability. Id. at 44. In addition, the district court heard detailed arguments regarding the amount of discovery at issue, the need to retain computer experts, the need to coordinate with witnesses and counsel, and the difficulties faced by the defense in getting up to speed on an investigation that had been conducted over a period of several years. Based on the “very well drafted joint motion” and the arguments presented at the status conference, the district court concluded that the ends of justice would be served by granting the requested continuance. Id. at 44-45. The court then worked with the parties to establish a detailed schedule setting forth specific deadlines for upcoming motions and hearing dates. After setting a schedule and determining the amount of time needed by the parties to effectively prepare for trial, the court concluded: Id. at 54. Accordingly, the district court excluded 361 days from the speedy-trial calculations. [T]he Court finds that for the reasons stated in detail in the joint motion, and for reasons further clarified here in this hearing, that the complexity of this case and the evidence and witnesses involved justify the Court making the legal conclusion that the ends of justice served by granting the joint motion outweigh the interest of the public and the defendants in a speedy trial. The failure to grant the joint motion would likely result in a miscarriage of justice by precluding the defendants from adequately being able to prepare for trial. And because of the number of the defendants and the nature of the prosecution, and the fact that this case involves an intricate 7 year financial conspiracy involving massive amounts of discovery, render this case so unusual and complex that it would be unreasonable to expect the defendants to prepare for trial in a shorter period of time and within the time limits set forth by the Speedy Trial Act and the Court’s previous orders. Based on the above, it is clear that the court properly weighed the factors set forth in 18 U.S.C. § 3161(h)(7)(B) and made sufficiently detailed findings to support granting an ends-of-justice continuance. Although the period of time granted was significant — and the district court noted its concerns with granting such a lengthy continuance — the district court properly concluded that the exclusion of this time was warranted based on the complexity of the case and the extensive preparation required. Defendants’ assertions to the contrary are unpersuasive. For example, Defendants argue that the district court’s ruling failed to comply with the requirements of Toombs or Bloate v. United States, 559 U.S. 196, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010). However, Defendants support this argument with nothing more than conclu-sory assertions that the motion was granted in a “superficial fashion” and failed to include the “necessary analysis.” Aplts.’ Principal Br. at 36. These assertions are belied by the record, which establishes that the court fully questioned the parties regarding the need for a continuance and made detailed findings setting forth the reasons that an ends-of-justice continuance was warranted. Similarly, Defendants’ argument that the court was required to set forth its findings prior to ruling, and failed to do so, is unpersuasive. All that the Act requires is that the findings supporting an ends-of-justice continuance be made contemporaneously with the granting of the continuance. See, e.g., United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir.1998) (observing that “the [court’s] balancing must occur contemporaneously with the granting of the continuance”); accord United States v. Apperson, 441 F.3d 1162, 1180 (10th Cir.2006). That is exactly what occurred here. Specifically, the court questioned the parties regarding the need for a continuance, determined that a continuance was warranted, established the amount of time that would be needed for motions and hearings, and then set forth its ruling along with detailed findings supporting the granting of the continuance. Accordingly, the court fully complied with the requirements for granting an ends-of-justice continuance, and the time was properly excluded for purposes of the Act. 4. Continuance Granted on November 22, 2010 Counsel for five of the six Defendants filed yet another motion for a continuance on November 18, 2010, seeking a 120-day continuance of the trial date. The motion was joined by five of the Defendants, and the sixth, Mr. Stewart, did not oppose it. In their motion, Defendants reiterated the breadth of discovery and noted pending brief-submission deadlines and the need for two defense counsel to take possibly two out-of-state trips, which would span approximately a week in duration, to interview witnesses. The motion also noted that the government’s James proffer, submitted October 28, 2010, listed 401 coconspirator statements, and that other items “must be reviewed and considered in order to put many of the designated statements into context.” R., Vol. 1, at 564 (Joint Mot. to Continue, filed Nov. 18, 2010). The motion further noted that “[c]ounsel ... ha[d] been experiencing difficulties in finding and opening” some of the computer discovery materials containing the statements at issue. Id. In addition, more documents had been disclosed to Defendants on November 8, 2010, and while the documents were not to be used by the government at trial, Defendants needed time to obtain, review, and analyze the documents for themselves. During the James hearing on November 19, 2010, the district court also addressed Defendants’ motion for a continuance and informed counsel that it would grant the continuance. On November 22, 2010, the district court issued an order to that effect stating: Due to the voluminous discovery, multiple defendants, and complex nature of the allegations in this matter, denying the requested continuance would result in a miscarriage of justice by denying Defendants an adequate opportunity to prepare for trial, despite the exercise of due diligence. Pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B)(ii) and (iv), the ends of justice that will be served by continuing the January 31, 2011 trial date for the requested 120 days outweigh the best interests of the public and the Defendants in a speedy trial. Id. at 571-72 (Order Granting Continuance, filed Nov. 22, 2010). The district court then rescheduled the final pretrial preparation conference and six-week jury trial accordingly. The district court’s November 22, 2010, order was somewhat less detailed than its prior orders; however, in setting forth its findings, a district court “need not articulate facts which are obvious and set forth in the motion for the continuance itself.” Toombs, 574 F.3d at 1269 (internal quotation marks omitted); see United States v. Loughrin, 710 F.3d 1111, 1119 (10th Cir.2013) (“In determining whether the district court relied on sufficient facts in granting an ends-of-justiee continuance, [this court] can look to the oral and written statements of both the district court and the moving party.” (internal quotation marks omitted)), aff'd, — U.S. -, 134 S.Ct. 2384, 189 L.Ed.2d 411 (2014). Here, Defendants’ motion was extremely thorough and spanned numerous pages. The motion set forth with specificity the reasons Defendants needed more time to address problems with discovery materials, supplemental briefing on suppression motions, and witness preparation. Accordingly, even though the district court’s ruling on this matter was less detailed than its prior orders, when considered in conjunction with the facts set forth in Defendants’ motion, the order complied with the requirements for granting an ends-of-justice continuance, and the exclusion of an additional 120 days did not constitute an abuse of discretion. 2 Having determined that Defendants’ statutory right to a speedy trial was not violated, we proceed to address whether Defendants’ constitutional right to a speedy trial was violated. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI. A defendant’s constitutional speedy-trial right attaches when he is arrested or indicted on federal charges, whichever come first. See Larson, 627 F.3d at 1207. “To determine whether a defendant’s Sixth Amendment right has been violated, the court balances four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his speedy trial right; and (4) whether the delay prejudiced the defendant.” Id. “None of the factors is itself necessary or sufficient to conclude that the Sixth Amendment speedy trial right has been violated.” Id. “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” United States v. Kalady, 941 F.2d 1090, 1095 (10th Cir.1991) (quoting Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)) (internal quotation marks omitted). 1. The Length of the Delay “[S]imply 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.” United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir.2010) (quoting Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)) (internal quotation marks omitted). “[I]f 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. (quoting Doggett, 505 U.S. at 652, 112 S.Ct. 2686) (internal quotation marks omitted). Here, the length of the delay was slightly over two years. “Generally, delays approaching one year are presumptively prejudicial.” Larson, 627 F.3d at 1208. “The longer the delay, the more likely it is that the first factor will weigh in the defendant’s favor.” Id. However, in Seltzer, we observed that “even a two-year interval between charges and trial may not be deemed a ‘delay’ when the charges are complex.” 595 F.3d at 1176. Defendants argue that “the charges were not complicated as recognized by the Court and supported by the record,” and that the delay was excessive given “the simplicity of the case.” Banks’s Opening Br. at 18. However, the record belies the accuracy of this statement. As set forth above, and as argued in Defendants’ motions for continuances, the case involved thousands of pages of discovery and an investigation period that spanned approximately seven years. The case also involved multiple defendants and over one hundred potential witness interviews, and the district court’s finding that the case was complex was not clearly erroneous. We note that whether this factor weighs in favor of Defendants is a close call. On the one hand, the case involved a significant amount of time-consuming discovery and multiple parties. However, a delay of over two years is “twice the time presumed to be ordinary.” Seltzer, 595 F.3d at 1176. Ultimately, our sensitivity to the presumption of prejudice that attaches to delays greater than one year and our willingness to give Defendants the benefit of the doubt regarding the proper resolution of this close issue lead us to conclude that this factor weighs in favor of Defendants. 2.The Reason for the Delay “The second factor, the reason for the delay, is especially important, and the burden is on the government to provide an acceptable rationale for the delay.” Larson, 627 F.3d at 1208 (quoting Seltzer, 595 F.3d at 1177) (internal quotation marks omitted); see also Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir.2004) (“The Supreme Court places the burden on the state to provide an inculpable explanation for delays in speedy trial claims.”). That being said, “[djelays attributable to the defendant do not weigh against the government,” and “[w]here the defendant’s actions were the primary cause of the delay, the second factor weighs heavily against him.” Larson, 627 F.3d at 1208 (citation omitted) (internal quotation marks omitted). Here, the entirety of the delay is attributable to Defendants, who filed multiple continuances with the district court and argued that they would be prejudiced if the court refused to grant them additional time to prepare. None of the continuances now challenged by Defendants were sought by the government. Accordingly, the “especially important” second factor weighs heavily against Defendants. Cf. United States v. Batie, 433 F.3d 1287,1293 (10th Cir.2006) (“Absent extraordinary circumstances, Barker counsels us not to find a violation of the right to a speedy trial when the defendant’s actions indicate he had no desire for a speedy trial.”). 3. Defendants’ Assertion of Their Right to a Speedy Trial “The third factor, a defendant’s assertion of his speedy trial right, is also given strong evidentiary weight.” Larson, 627 F.3d at 1208. We have noted that “this factor weighs against a defendant who requests continuances and waits for months to assert his speedy trial right.” Id.; see also Toombs, 574 F.3d at 1274-75 (holding that this factor weighed heavily against the defendant where many of the continuances were granted at the defendant’s request and the defendant waited until after the continuances to assert his right to a speedy trial). Here, Defendants did not demand a speedy trial until the first day of the trial itself. Accordingly, given that Defendants waited until trial to assert their right to a speedy trial, after requesting all of the continuances, this factor also weighs heavily against them. Accord United States v. Shepard, 462 F.3d 847, 864 (8th Cir.2006) (reaching the same conclusion and noting that, “[l]ooking to the third factor, while [Defendant] did file a motion to dismiss based on a speedy trial violation, he waited until the first day of trial to do so”). 4. Whether the Delay Prejudiced Defendants Defendants bear the burden of showing that they were prejudiced by the delay. See Larson, 627 F.3d at 1208-09. However, “[i]n cases of extreme delay, the defendant may rely on the presumption of prejudice and need not present specific evidence of prejudice.” Id. at 1209. “Generally, ' the court requires a delay of six years before allowing the delay itself to constitute prejudice.” Id. (quoting Seltzer, 595 F.3d at 1180 n. 3) (internal quotation marks omitted). Accordingly, this case does not present an instance of “extreme delay,” and Defendants must present spe-cifíc evidence of prejudice. See Jackson, 390 F.3d at 1264 (noting that “the mere ‘possibility of prejudice is not sufficient to support [the] position that ... speedy trial rights [are] violated’ ” (alterations in original) (omission in original) (quoting United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986))). In determining whether a defendant has made “a particularized showing of prejudice,” Larson, 627 F.3d at 1209, we have identified three main interests: “(i) the prevention of oppressive pretrial incarceration; (ii) the minimization of anxiety and concern of the accused; and (iii) minimization of the possibility that the defense will be impaired,” Seltzer, 595 F.3d at 1179. We have held that the third interest— impairment of the defense — is the most important, and the first interest — prevention of oppressive pretrial incarceration— is the second most important. See Larson, 627 F.3d at 1209. Here, Defendants were not detained before trial, so the oppressive-pretrial-incarceration interest is of no assistance to them. Moreover, Defendants have not shown that their defense was impaired as a result of the delay. Rather, Defendants simply list record citations (without accompanying explanatory parentheticals) taking up over one-half of a page, which they claim support their contention that the delay worked to their detriment. See Banks’s Opening Br. at 22-23. Defendants then make vague and conclusory assertions regarding “problem[s] with accurate memories” and their view that “cross-examination was hampered” because “Government witnesses [were] motivated to provide favorable testimony.” Id. at 23. Defendants also claim that “[(Identification and interviews of Government witnesses were delayed until the Indictment revealed witnesses involved in the case.” Id. It is unclear how some of these allegations are even related to the delay in trial. To the extent they are related, however, Defendants have failed to make any specific allegations — such as which witnesses were affected by the delay and how this resulted in prejudice — that support their contentions. Accordingly, this factor weighs in favor of the government. Cf. Castro v. Ward, 138 F.3d 810, 820 (10th Cir.1998) (“[D]espite [Defendant’s] general allegation that the passage of time made it more difficult for him to present a defense, he points to no specific prejudice he claims he suffered from the delay. He has not claimed that any specific witness or evidence was somehow rendered unavailable or less persuasive because of the passage of time.” (emphasis added)). At best, Defendants have demonstrated only one factor, the first, that weighs in favor of finding a violation of their constitutional right to a speedy trial. All other factors weigh against them. Accordingly, the balancing of the four factors establishes that Defendants’ Sixth Amendment right to a speedy trial was not violated. B We turn now to Defendants’ argument that their Fifth and Sixth Amendment rights were violated as a result of the testimony of co-Defendant Barnes. Specifically, Defendants argue that they were compelled to call co-Defendant Barnes as a witness in violation of their Fifth Amendment privilege against self-incrimination and that the district court failed to give a proper curative instruction to the jury following Mr. Barnes’s testimony in violation of their Sixth Amendment right to a fair trial. Whether a defendant’s Fifth Amendment privilege against self-incrimination has been violated is a legal question we review de novo. See United States v. Rivas-Macias, 537 F.3d 1271, 1276 (10th Cir.2008). In reviewing jury instructions for legal error, “we view them as a whole to determine whether the jury may have been misled, upholding the judgment in the absence of substantial doubt that the jury was fairly guided.” United States v. Fabiano, 169 F.3d 1299, 1303 (10th Cir.1999) (quoting United States v. Wiktor, 146 F.3d 815, 817 (10th Cir.1998)) (internal quotation marks omitted). As with its decision whether to give a specific instruction at all, see, e.g., United States v. Haslip, 160 F.3d 649, 654 (10th Cir.1998) (“We review a district court’s decision whether to give a particular jury instruction for abuse of discretion.”); accord Quigley v. Rosenthal, 327 F.3d 1044, 1062 (10th Cir.2003), ordinarily we review a trial court’s decision regarding the timing of when to provide a specific curative instruction to the jury for an abuse of discretion, cf. United States v. Moore, 376 F.3d 570, 577 (6th Cir.2004) (“A district court has broad discretion to supervise, control, and determine the issues the jury is to decide and the manner in which it is to do so.”); United States v. Zlatogur, 271 F.3d 1025, 1030 (11th Cir.2001) (“We review the district court’s failure to provide additional jury instructions for abuse of discretion.”). However, when a party fails to lodge an objection at trial to purported errors — be they instructional or otherwise — ordinarily he cannot “prevail unless he could successfully run the gauntlet created by our rigorous plain-error standard of review.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir.2012); see United States v. Rosales-Miranda, 755 F.3d 1253, 1258, 2014 WL 3033419, at *3 (10th Cir.2014) (“The parties also agree that [the defendant] failed to preserve an objection to that error. This forfeiture triggers plain-error review.”); Fabiano, 169 F.3d at 1302 (“We review a jury instruction ... for plain error when no objection was made.”). It is axiomatic that [u]nder this demanding standard, [a litigant] must demonstrate: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies these criteria, this Court may exercise discretion to correct the error if [4] it seriously affects the fairness, integrity, or public reputation of judicial proceedings. McGehee, 672 F.3d at 876 (third alteration in original) (quoting United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.2011)) (internal quotation marks omitted). Furthermore, “[a] forfeiture implicating plain error review does not just occur when a litigant completely fails to object but also when he or she ‘fail[s] to make the timely assertion of a right.’ ” United States v. Wardell, 591 F.3d 1279, 1309-10 (10th Cir.2009) (second alteration in original) (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In other words, a litigant must lodge an objection to a purported error while the district court still has an opportunity to fix it. See Donley v. Christopher, 320 F.2d 24, 26 (10th Cir.1963) (“Having failed to object to the records at the time of their production and tender, the contention at this belated juncture comes too late.”); accord Macsenti v. Becker, 237 F.3d 1223, 1230-31 (10th Cir.2001) (considering the defendant’s objection untimely and applying plain-error review when the defendant “did not object to the testimony when it was admitted during trial” but, rather, raised the objection “after the close of all the evidence by a motion”); United States v. Walsh, 75 F.3d 1, 6 (1st Cir.1996) (“[B]oth objections are subject to review only for plain error. It is true that both issues were raised in the trial court after the verdict.... But the usual rule is that an objection must be made known at the time that the court is making its decision to act-”). We begin by briefly addressing the factual events leading up to Mr. Barnes’s testimony. Then, we turn to Defendants’ argument that Mr. Barnes was compelled to take the stand in violation of Defendants’ Fifth Amendment privilege. Finally, we examine Defendants’ argument that the district court failed to provide adequate curative instructions to the jury in violation of their Sixth Amendment right to a fair trial. Ultimately, we conclude that all of Defendants’ arguments are unpersuasive. 1 On October 5, 2011, the government informed Defendants that it was ahead of schedule and would be resting its case on October 6, 2011. The district court informed Defendants at this time that they needed to have their witnesses ready and available to testify. See R., Yol. 2, at 2203-07. On October 7, 2011, the district court again admonished Defendants that they needed to have their witnesses available and ready to testify. See id. at 2473. Yet, on October 11, 2011, Defendants were still not prepared to present their defense, and they informed the district court during a sidebar that they were expecting to run out of witnesses for the day. The court informed Defendants that this was “unacceptable” and instructed them to call their next witness. Supp. R., Vol. 1, at 149-50 (Jury Trial Tr., dated Oct. 11, 2011). Then, after conferring among themselves, and without interposing any objection, Defendants called co-Defendant Barnes to the stand. The exchange, as captured by the court reporter, between the district court and co-Defendant Walker is as follows: The Court: Thank you.... Defense may call its next witness. Mr. Walker: Your honor, the defense— can we approach? The Court: You may. (A bench conference [i.e., sidebar] is had, and the following is had outside the hearing of the jury.) Mr. Walker: Our next witness is scheduled at 10:30. We anticipated — it’s going quicker. The Court: That is unacceptable. I told you to have witnesses here. We are not going to recess again until 10:30. That is 40 minutes away. I told you to be prepared. They need to be here. Your witnesses are not taking long. We are going to go. The eight you named, you still have time. So you better get them here. So call your next witness. Mr. Walker: Yes, Your Honor. (The following is had in the hearing of the jury.) Mr. Walker: Your Honor, we would like to check to see if Mr. Reese is in the witness room. The Court: You may. Mr. Walker: Your Honor, defense calls Ken Barnes. Id. at 149-50 (capitalization altered). As the transcript reflects, the district court expressed its dissatisfaction in a bench conference (i.e., sidebar) with Defendants’ failure to have their witnesses lined up to testify. However, the court “has acknowledged that a portion of the sidebar was not transcribed.” Id. at 431 (Order Rejecting Proposed Stip., filed Oct. 16, 2012); see R., Yol. 1, at 1591 (noting that a “portion of the sidebar was not transcribed by the court reporter”). As the court has put it, “[f]or whatever reason, whether the parties spoke too far from the microphone or the court reporter took off her headphones, the court reporter did not hear everything that was said at the sidebar and therefore did not transcribe anything besides what is contained in the edited transcript.” Supp. R., Vol. 1, at 430. Defendants and the court disagree on what was said in the untranscribed portion of the sidebar. Their disagreement persisted “[d]uring trial and in various post-trial motions.” Id. Defendants contend that the court said words to this effect: “Put one of your witnesses on or one of the defendants will have to testify.” Id. at 390 (Proposed Stip., filed Aug. 30, 2012) (internal quotation marks omitted). On the other hand, the court recalls saying, “[I]f you intended to testify, then one of you should take the stand, because we weren’t going to continue.” Id. at 430 (internal quotation marks omitted). It is undisputed, however, that at the time of the sidebar there was in fact a defense witness present in the courtroom under subpoena — specifically, FBI Special Agent John Smith — who was available to testify, see R., Vol. 1, at 1591-92; indeed, Defendants called Agent Smith to testify two days later. After Mr. Barnes took the stand, he was examined by co-Defendants Walker, Banks, and Harper. At no time did Mr. Barnes invoke his Fifth Amendment privilege against self-incrimination. Nor, during the course of his direct examination, did any Defendant object to the fact that Mr. Barnes was offering testimony or to the substance of that testimony. Indeed, the district court found that Mr. Barnes’s direct testimony was “favorable” to Defendants. Supp. R., Vol. 1, at 238. However, shortly after the government began its cross-examination, co-Defendant Walker— who had originally called Mr. Barnes to the stand — moved for a mistrial, claiming that he was asserting Mr. Barnes’s Fifth Amendment privilege against self-incrimination. The other Defendants did not object to Mr. Walker’s invocation of Mr. Barnes’s Fifth Amendment privilege or otherwise express concerns about it. Following Mr. Walker’s motion for a mistrial, the government requested that the court inform the jury that one defendant may not assert the Fifth Amendment privilege on behalf of another defendant and, therefore, that the jury should disregard Mr. Walker’s statements. The district court stated that it would defer giving an instruction until it had ruled on the matter. The jury was then sent on a lunch recess while the district court considered the matter. After considering the matter, and still outside the presence of the jury, the district court advised the parties that the Fifth Amendment privilege “is an individual one which can only be exercised by the defendant, himself.” Id. at 228. The court then asked Mr. Barnes if he wanted to assert the privilege, and Mr. Barnes stated that he did. The government then suggested that “the Court could instruct the jury that all of Mr. Barnes’ testimony, both on direct and on cross, should be stricken; that the jury should not consider it, [and] they should put it out of their mind[ ].” Id. at 231. The government also suggested that the court provide a second curative instruction to address Mr. Walker’s misguided attempt to invoke Mr. Barnes’s Fifth Amendment privilege. See id. at 231-32 (indicating that government counsel proposed “a very brief additional limiting instruction” that it considered “appropriate given Mr. Walker’s inappropriate objection made in the presence of the jury prior to trial”). At this time, both Mr. Walker and Mr. Barnes began arguing to the court that Mr. Barnes had been forced to testify against his will and that this had caused “extreme prejudice” to all Defendants. Id. at 233 (Statement of Gary Walker); see id. (Statement of Kendrick Barnes) (“I was compelled to take the stand from our discussion up at the bench, as we approached the bench.”); see also id. at 232 (“The only reason I took the stand, Your Honor, was I was basically — when we approached, we were told [by the court] that someone needed to from us if we can’t get our witnesses to testify, and that is the reason why I took the stand. It is on the premise that I had to. If we don’t have a witness, one of us is going to have to take the stand. So I took the stand.”). The district court repeatedly rejected these arguments and noted: “[Mr. Barnes] wasn’t compelled. He got on the stand voluntarily. You asked him questions, he answered questions. This was not an issue that was raised until after he had finished giving all of his direct testimony.” Id. at 234; see also id. at 248 (“All the Court directed was that the defendants should call their next witness, at which time defendants called Mr. Barnes, and Mr. Barnes voluntarily took the stand.”). The district court then offered to strike Mr. Barnes’s testimony and offer the curative instruction provided by the government. Mr. Barnes stated that he would finish his cross-examination and did not want a curative instruction regarding his testimony. See id. at 253 (“The Court: You do not want a curative instruction? Mr. Barnes: No, I don’t want a curative.” (capitalization altered)). The court then informed Mr. Barnes that he could not selectively invoke his Fifth Amendment privilege. Rather, because Mr. Barnes chose to testify and proceed with cross-examination, he had waived his Fifth Amendment privilege regarding any questions within the scope of his direct examination, and the government could permissibly “comment on [his] refusal to answer those questions” if he invoked his Fifth Amendment privilege on cross-examination. Id. at 255. Mr. Barnes then requested an additional twenty minutes to think over how he wished to proceed, which the court granted. When the court reconvened, Mr. Barnes stated that he wanted to continue with cross-examination, and again stated that he did not want a curative instruction regarding his testimony. Before he testified, however, the court did provide the jury with a curative instruction relating to Mr. Walker’s objection, along the lines proposed by the government, which stated, “Immediately before the break, there was an objection, and I just wish to remind you again that statements or objections made by attorneys or the defe