Speedy Trial Issues: Notice of Intent to File Guilty Plea Tolls Clock

United States v. Dignam, No. 12-30262 (May 28, 2013) (Davis, Graves, Higginson)

Notice of Intent to File Guilty Plea Tolls Speedy Trial Clock
The Fifth Circuit joined six other circuits by finding that the delay prompted by the parties’ notice of intent to file a guilty plea was excludable under 18 U.S.C. § 3161(h)(1)(D). Section 3161(h)(1)(D) excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Why is a Notice of Intent to File a Guilty Plea considered a motion? Well, the panel reasoned, notice of intent to change a plea to guilty triggers Federal Rule of Criminal Procedure 11, which requires the court to hold a hearing to accept that plea. So, such a notice is a pretrial motion per § 3161(h)(1)(D).

The panel rejected the district court’s conclusion that the notice of intent to file a guilty plea tolled the Speedy Trial clock pursuant to 18 U.S.C. § 3161(h)(1)(G), which excludes "delay resulting from consideration by the court of a proposed plea agreement." In this case, the parties never filed the proposed plea agreement with the court, so the court could not have been probably considering it. The district court’s error, however, was harmless since the time was excludable under § 3161(h)(1)(D).

Successor Judge’s Articulation of Predecessor Judge’s Reasoning Satisfies Findings for "Ends of Justice" Continuance 
The panel also rejected Dignam’s arguments that turned on the fact that the original district judge passed away before he ever stated on the record the exact reasons for granting the defense attorney’s unopposed motions for continuances. The district judge who later took over the case made written findings as to why the deceased judge granted the continuances—"because of defense counsel’s need for additional preparation time following his total hip replacement surgery." The panel found that "[a] successor judge’s later articulation of a predecessor judge’s reasoning does not frustrate the ‘two-fold’ purposes of the [Speedy Trial] Act’s requirement that the court set forth its reasons for granting a continuance. Those purposes are, first, to establish ‘that a clear record will exist for appeal,’ and second, to ensure ‘that the trial court will carefully consider all relevant factors.’"

Open-Ended Continuance Resulting in 7-Month Delay Permissible
At one point, the district court granted a continuance due to defense counsel’s need to recover from hip surgery without setting a new trial date. The Fifth Circuit allows a district court to continue a trial indefinitely under § 3161(h)(7) "when it is impossible, or at least quite difficult, for the parties or the court to gauge the length of an otherwise justified continuance." Since the motion did not specify the amount of time the attorney needed to recover, the panel found that it was "quite difficult" to gauge the necessary length of the continuance, that the seven-month delay was not extreme, and that did not prejudice Dignam. Her conviction was affirmed.

Panel Majority Finds Constitutional Speedy Trial Violation, Holds Standard of Review is De Novo

United States v. Molina-Solorio, No. 08-10167 (5th Cir. July 27, 2009) (Stewart, Southwick; King, dissenting)

It's not every day that you see the court of appeals reverse a district court's denial of a constitutional speedy trial claim—much less when the charge is escaping from federal custody—but that's just what happened in this case. Let's dig in, shall we?

The timeline:

• 1997: Molina is convicted in federal court of participating in a marijuana conspiracy, escapes from prison, and is indicted for escaping from federal custody (18 U.S.C. § 751(a)).
• 1999: Molina is sentenced in Texas state court for possession of cocaine. After he serves his sentence, state authorities release him to ICE custody. Federal authorities are aware of the warrant for the 1997 escape charge.
• 2001: ICE deports Molina to Mexico.
• December 2006: ICE catches Molina in Texas.
• July 2007: Molina is sentenced to 51 months' imprisonment for illegal reentry.
• September 2007: Molina is arrested and arraigned on the escape charge.
• November 2007: Molina moves to dismiss the escape indictment due to statutory and constitutional speedy trial violations.
• Next: The district court denied the motion. Molina pleaded guilty conditionally, reserving his right to appeal the denial of the motion to dismiss. He was sentenced to 30 months' imprisonment.
  

Molina appealed, pressing only the constitutional claim. But before getting to the meat of the matter, the court had to figure out what the standard of review was: "Surprisingly, still unsettled in this circuit is the proper standard for reviewing the district court’s application of the four-factor balancing test from Barker v. Wingo, 407 U.S. 514 (1972)." In an earlier case that declined to resolve the question, United States v. Frye, the court noted that, while factual findings are typically reviewed for clear error, balancing tests are at least mixed questions of fact and law, and are typically reviewed de novo. Molina-Solorio holds: "We agree with the Frye court that application of the Barker test is at least a mixed question of fact and law, and we hold that the appropriate standard of review of the district court’s application of the Barker factors is de novo." This accords with at least five other circuits.

That having been resolved, the court moved on to balance the Barker factors anew:

• Length of Delay: The 10-year delay weighed heavily in Molina's favor.
• Reason for the Delay: "[T]his case falls in the 'middle ground' that exists 'between diligent prosecution and bad faith delay and demonstrates negligent prosecution.'" Given the Government's failure to diligently pursue Molina, coupled with the length of the delay, this factor also weighed heavily in Molina's favor.
• Assertion of Right: This one was a closer call, but ultimately weighed in Molina's favor because there was no evidence that he was aware that he had been indicted for escape until late summer 2007, and he filed his motion to dismiss soon after he was arraigned.
• Prejudice: Because the first three factors collectively weighed heavily in Molina's favor, the court presumed prejudice. And the Government failed to rebut the presumption (although the court doesn't really explain why).

Consequently, the delay violated Molina's right to a speedy trial, and the court vacated the conviction and remanded with instructions to dismiss the indictment.

Judge King dissented. Although she agreed with the majority that prejudice should be presumed—principally because of the "egregious length of the delay"—she believed the Government successfully rebutted the presumption. In Judge King's view, the Government

argues persuasively that the delay in bringing Molina-Solorio to trial does not implicate the three key interests that “the speedy trial right was designed to protect”: (1) “to prevent oppressive pretrial incarceration”; (2) “to minimize anxiety and concern of the accused”; and (3) “to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. Regarding the “most serious” of the three interests, Molina-Solorio does not even argue that his defense was impaired, nor could he. Id. He makes no claim that his ability to defend against the charge specified in the indictment—specifically, escaping from the Big Spring Prison Camp—has been impaired by the amount of time that elapsed after the indictment. As for the other two interests, again, neither is even claimed by Molina-Solorio to have been infringed. Molina-Solorio’s primary assertion—that had he been incarcerated for escape, he might not have committed the subsequent crimes of possession of a controlled substance (cocaine) and illegal reentry and would not have been charged with the resulting criminal history points—not only fails to demonstrate prejudice; it is, as the government says, “preposterous.” His second assertion—that Texas “might have been willing to run his state sentence of three years imprisonment for possession of a controlled substance . . . concurrent or partially concurrent with his federal charge of escape”—is pure speculation.

It's unlikely that you'll ever have a case presenting similar facts, but this is a good opinion to keep on hand because it canvasses a lot of the Fifth Circuit case law on the constitutional speedy trial right, making it a both a good overview of the issue and a handy starting point for further research.

How to Preserve Argument That Indictment Dismissed Because of Speedy Trial Act Violation Should Have Been Dismissed With Prejudice

United States v. Stephens, No. 07-30837 (5th Cir. Dec. 19, 2007) (per curiam) (Jolly, Prado, Southwick)

In United States v. Jackson, the Fifth Circuit held that a dismissal of an indictment without prejudice (due to a Speedy Trial Act violation) is not a final appealable order. Instead, "appellate review of a dismissal without prejudice must await final judgment after re-indictment." To preserve the issue, a defendant must move to dismiss the second indictment on the ground that the first one should have been dismissed with prejudice, and, if that's denied, either go to trial or enter a conditional guilty plea preserving the right to appeal that decision.

Stephens presents a slightly different procedural posture:

Eddie Stephens was convicted of armed bank robbery and firearm offenses in 2003. On appeal, this court found a violation of the Speedy Trial Act. The court reversed Stephens’s convictions, vacated his sentence, and remanded the case to the district court for a determination of whether dismissal of the indictment should be with or without prejudice.

On August 21, 2007, the district court dismissed the indictment without prejudice. Stephens appealed that ruling. Soon thereafter, he was indicted a second time, in United States.

The court held that Jackson still applies, even though the order of dismissal occurred after remand. It's still a non-final, non-appealable order in these circumstances. The court therefore dismisses this appeal, but notes that

Stephens may preserve the issue for appeal in the manner explained in Jackson, that is, he should move to dismiss the second indictment at the earliest practicable stage of those proceedings on the grounds that his first indictment should have been dismissed with prejudice under the Speedy Trial Act, and consequently he should not have been re-indicted.

If Defendant Appears Before Being Indicted, then Indictment Starts Speedy Trial Clock Running

United States v. Lopez-Valenzuela, No. 05-61130 (5th Cir. Dec. 19, 2007) (Jolly, Clement, Owen)

This is a Speedy Trial Act case, so let's start with the timeline:

• Lopez is arrested for illegal reentry and appears before a magistrate judge
• Lopez is indicted for illegal reentry
• Lopez signs a "Waiver of Appearance and Entry of Not Guilty Plea" form
• more than three months later, the waiver form is filed
• the next day, Lopez files a motion to dismiss the indictment because he wasn't brought to trial within 70 days of his indictment, as required by the STA

The district court denied Lopez's motion, so he entered a conditional guilty plea reserving the right to appeal that ruling.

The issue is when the STA clock began to run. The STA provides that "[i]n any case in which a plea of not guilty is entered," a trial must commence within 70 days from the filing of the indictment, or the date the defendant appears in the court in which the charge is pending, "whichever date last occurs." 18 U.S.C. § 3161(c)(1).

The Government argued that the clock didn't begin to run until Lopez filed his waiver of arraignment "because it was only then that the case became one 'in which a plea of not guilty is entered.'" The court disagreed:

Like many other circuits, this court has “construe[d] ‘appearance before a judicial officer’ to mean a defendant’s initial appearance before a judicial officer.” Thus, in cases in which the defendant appears before being indicted, the indictment is the start date. To hold otherwise would render the choice of dates specified in § 3161(c)(1) superfluous; “[i]f a pre[-]indictment initial appearance were not considered to be an ‘appearance before a judicial officer of the court in which such charge is pending,’” the date of the indictment could never be the date that “last occurs.

It further explained that the phrase "'in which a plea of not guilty is entered'" determines only whether the time restrictions apply. It does not determine when the clock starts."

So in this case, that meant Lopez's STA clock began running when he was indicted. Since he wasn't brought to trial within 70 days of that date, the court remands with instructions to dismiss the indictment.

Perhaps to assauge prosecutors' fears about the effect of this holding, the court adds this caveat:

This does not mean that a defendant can withdraw a guilty plea and thereby take advantage of § 3161(c)(1) by pleading not guilty after seventy days have elapsed from the triggering event. As § 3161(i) makes clear, in situations in which a defendant pleads guilty or nolo contendere and later withdraws that plea, the defendant shall be deemed indicted on the day the order permitting withdrawal of the plea becomes final.

There's also some interesting dicta concerning the situation in which a defendant is not arrested until after the indictment:

Here, Valenzuela first appeared pre-indictment, and the speedy-trial clock began to run on the date of his indictment regardless of the date he ultimately pleaded not guilty. If Valenzuela had been indicted before his arrest, however, his “Waiver of Appearance and Entry of Not Guilty Plea” could be the “date the defendant has appeared,” but not necessarily so. Consistent with our precedent, a post-indictment arraignment would trigger the speedy-trial clock only if it is the initial post-indictment “appear[ance] before a judicial officer.” Although other courts have held differently, a post-indictment appearance need not be an arraignment in order to act as the start date because the text of § 3161(c)(1) does not require that the appearance be an arraignment. Section 3161(c)(1) merely requires an “appearance before a judicial officer.” To hold otherwise would require us to ascribe different meanings to the same words depending on whether a defendant first appeared pre- or post-indictment. Such a result is not only inconsistent with customary standards of statutory interpretation, but it would also invite unnecessary delay in holding an arraignment.

So how 'bout that? We're on the good side of a circuit split.

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.

Delay While Court Considered Co-Defendan'ts Guilty Plea, and While Severance Motion Was Pending, Did Not Toll Speedy Trial Act Deadline

United States v. Stephens, Nos. 04-30185, 05-30668 (5th Cir. June 14, 2007) (King, Garza, Owen)

Take care not to read this opinion while driving or operating heavy machinery. As is perhaps inevitable for a case dealing with periods of excludable delay under the Speedy Trial Act, the procedural history is INVOLVED, to say the least. Fortunately, you don't need to keep track of the exact dates and time periods in order to understand the case, so feel free to put away your calendar, slide rule, and giant Thermos of coffee. On second thought, you might want to keep one cup o' joe at hand as you read this post. We are talking about the STA after all.

Stephens was indicted in November of 2000, along with his co-defendant Turner, for conspiracy to commit bank robbery, armed bank robbery, and using a firearm in a bank robbery. The case dragged on for some time, due in large part to lengthy competency proceedings involving Turner. In April 2002, one day after the court determined that he was competent to stand trial, Turner pled guilty. The court took the plea under consideration, instead of accepting it at that time. Seven weeks later, in May 2002, a superseding indictment was returned against Stephens. He finally went to trial in October 2003.

Three weeks before his trial Stephens filed a motion to dismiss the indictment due to a failure to bring him to trial within 70 days, as required by the Speedy Trial Act. The district court denied the motion, finding that, "after factoring in all excludable delays, only sixty-nine days had elapsed on the Speedy trial clock." Stephens was found guilty at trial, and the district court sentenced him to a total of 50 years and 10 months' imprisonment.

Stephens pressed his STA claim on appeal, and won himself a reversal of his conviction. The court of appeals agreed that the seven weeks that elapsed in-between Turner's guilty plea and the return of the superseding indictment were not excludable from the STA's 70-day indictment-to-trial deadline. The court observed that under § 3161(h)(7), “the excludable delay of one codefendant may be attributable to all codefendants.” But the attribution is not automatic; it must be reasonable. And it was unreasonable here for three reasons. First, the purpose of § 3161(h)(7) is to facilitate joint trials, and that consideration falls by the wayside when one of two co-defendants pleads guilty. Second, even though a co-defendant's guilty plea doesn't automatically eliminate the possibility of a joint trial, there was little likelihood of a joint trial here. That's because Turner had agreed to testify against against Stephens, and the Government wanted Turner's sentencing put off until after the trial so that the court would be able to determine whether Turner complied with the plea agreement before accepting his plea. Third, Stephens had been detained without bond for three years, he had been asserting his speedy trial rights one way or another during much of that time, and Stephens' trial had already been postponed for 15 months during the pendency of Turner's competency proceedings.

The court also rejected the Government's argument that the seven weeks were excludable for reasons other than the district court's delay in accepting Turner's guilty plea. The Government argued that Stephens' STA clock was tolled from the time he filed a severance motion in January 2001 until the superseding indictment in May 2002. The court acknowledged that the STA clock stops running while pretrial motions are pending or under advisement. But the "under advisement" period lasts for no longer than 30 days, after which the STA clock starts running again even if the district court hasn't ruled on the motion. For reasons which you can read if you're interested, the court held that the advisement period began in May 2001, and that it expired thirty days later in June 2001. Consequently, the un-ruled-upon severance motion did not toll the STA clock during the seven-week period in 2002.

Accordingly, the court reversed Stephens' conviction, dismissed the indictment, and remanded for the district court to determine whether the dismissal would be with or without prejudice.