Speedy Trial Act Claims Rejected in Katrina-Related Fraud Case

United States v. Green, No. 07-60184 (5th Cir. Nov. 9, 2007) (Reavley, Smith, Garza)

Green rejects a couple of novel (in the Fifth Circuit) Speedy Trial Act arguments, but doesn't completely close the door on one of them. All of you STA mavens out there will definitely want to read on to find out what this font of future litigation might be.

In September 2005, in the wake of Hurricane Katrina, Green fraudulently obtained a Red Cross debit card. The next day he used that debit card and a counterfeit Social Security card to get into a Red Cross hurricane shelter. Green was arrested when he refused to leave the shelter, and held on a variety of state charges. The sheriff's office contacted the local U.S. Attorney, who asked the state authorities to hold off on interviewing Green until he had a chance to review the case. A few weeks later, a Social Security Administration agent attempted to question Green in connection with an SSA investigation into the case. Green refused to talk to the agent, who made no further attempt to contact Green.

In June 2006, Green was indicted for two counts of wire fraud and one count of misuse of a Social Security number. He was arrested on the federal charges a week after the return of the indictment. A few months later, the Government filed a "Motion for Special Trial Setting" because the Speedy Trial Act clock was about to expire. Green eventually pled guilty to all three charges in December 2006.

Green's appeal raised a couple of Speedy Trial Act issues that the Fifth Circuit hadn't yet confronted. The first issue was whether the Government's "Motion for Special Trial Setting" tolled the STA's 70-day indictment-to-trial clock under 18 U.S.C. § 3161(h)(1)(F), which excludes "delay resulting from any pretrial motion[.]" Green argued, based on the language of (h)(1)(F), "that the motion did not toll the clock because the Government failed to demonstrate that its motion 'result[ed]' in any pretrial delay." Following the lead of eleven other circuits, and rejecting some dicta to the contrary from a Fifth Circuit case, the court held that "under 18 U.S.C. § 3161(h)(1)(F), any pretrial motion, including a motion to set a trial date, tolls the speedy trial clock automatically, and the Government is not required to prove that the motion actually delayed trial."

The second issue concerned the 30-day arrest-to-indictment deadline under § 3161(b). The Fifth Circuit has held that the 30-day clock doesn't start running until a person is arrested for the purpose of answering federal charges. But of all places the Fourth Circuit has held, in United States v. Woolfolk, that there are "limited circumstances" in which a state arrest can trigger the § 3161(b) deadline:

[Woolfolk] reasoned that “something other than actual federal custody and federal arrest” can trigger the Speedy Trial Act, namely, “any restraint resulting from federal action.” Therefore, the court stated: “[W]e believe that a ‘restraint resulting from federal action,’ sufficient to trigger the time limits of the Speedy Trial Act, occurs when the Government [knew or should have known] that an individual is held by state authorities solely to answer federal charges.”

(internal citations shorn). The court declined to decide whether Woolfolk is right about all that, holding that even if the Woolfolk standard applied here, Green did not satisfy it. The court concluded, with little analysis, that neither the U.S. Attorney's request to hold off on interviewing Green until it could review the case, nor the SSA's investigation, "establish[ed] either that (a) Green was being held solely to answer federal charges or that (b) even if he was, the Government knew or should have known about it."

So although the first issue is now settled, consider the second one open.