U.S. v. Vogl

Decision Date07 July 2004
Docket NumberNo. 03-1132.,03-1132.
Citation374 F.3d 976
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rocky J. VOGL, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Philip A. Cherner, Law Office of Philip A. Cherner, Denver, CO, for Defendant-Appellant.

James C. Murphy, Assistant U.S. Attorney, Denver, CO (John W. Suthers, U.S. Attorney, Denver, CO, with him on the briefs), for Plaintiff-Appellee.

Before EBEL, BRISCOE and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.

Rocky Vogl ("Defendant") entered a conditional plea of guilty to a charge of cultivating marijuana, and then appealed in part on the ground that his rights under the Speedy Trial Act had been violated. We held that the district court had erred in finding an "ends of justice" continuance under 18 U.S.C. § 3161(h)(8)(A), and remanded for the court to determine whether Defendant's speedy trial clock had expired. See United States v. Vogl, 49 Fed.Appx. 861 (10th Cir.2002). On remand, the district court held that the Speedy Trial Act had not been violated. Defendant now appeals that order.

Defendant raises two main arguments on appeal: (1) that the district court erred in excluding as "reasonable delay" a time period that accompanied the disposition of the government's motion to reconsider suppression of evidence against a codefendant; and (2) that the district court erred in tolling the speedy trial clock on the basis of the government's motion to reconsider because the motion did not cause any "actual delay." Because we find no error on the part of the district court, we now AFFIRM.1

BACKGROUND2

On June 25, 1998, Rocky Vogl ("Defendant") and his wife Karen ("Codefendant") were jointly charged in the District of Colorado with cultivating marijuana in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(B), and 18 U.S.C. § 2.3 On September 1, 1998, the defendants filed separate motions for separate trials, and on September 11, 1998, they filed a joint motion to suppress evidence obtained in a search of their house. On the same day, Codefendant also filed a motion to suppress a key taken from her purse at the time of the search. The district court held hearings on these two suppression motions on January 5 and 20, 1999, at which time the district court did not take up the motions for separate trials, deferring consideration of that matter until after a ruling on the suppression motion. The district court then took "this all under advisement."

The parties next appeared in court on September 7, 1999, at which time the district court heard further argument on Codefendant's motion to suppress, as well as the two severance motions. The district court then took those motions under advisement. During this hearing, although the parties indicated that they were "ready for trial," the court stated that it had a "very congested trial calendar" and that the first available trial date was November 22, 1999. After this hearing, Defendant and the government each filed briefs regarding their respective positions on the speedy trial deadline.

On October 7, 1999, the district court granted Codefendant's motion to suppress the key, but denied both motions for separate trials. It did not, however, rule on the joint motion to suppress. At the end of this October 7 order, the court held:

[T]he time from October 8, 1999 to November 24, 1999 shall be considered "excludable time" under 18 U.S.C. § 3161(h)(8)(A)(iv) upon the Court's own motion after consideration of the factual and legal issues which remain for trial in view of the status of the case based on the rulings contained in this Order. Further, the Court concludes that the ends of justice served by granting this period of delay outweigh the best interest of the public and the Defendants in a speedy trial.

On November 8, 1999, the government filed a motion to reconsider the part of this order granting Codefendant's motion to suppress. While the court was considering the government's motion, Defendant filed a motion to dismiss for violation of the Speedy Trial Act on November 10, 1999. The government's motion to reconsider was denied on November 17, 1999. In that same November 17 order, the court denied the defendants' joint motion to suppress the evidence seized in the search of their residence.

By a separate order issued on November 19, 1999, the district court granted a continuance (requested by both parties) and took under advisement Defendant's additional request that the indictment be dismissed on speedy trial grounds. On July 27, 2000, the district court denied Defendant's motion to dismiss for speedy trial violation, holding that its "ends of justice finding satisfies the requirements of 18 U.S.C. § 3161(h)(8)(A)."

Pursuant to a plea agreement, Defendant entered a conditional plea of guilty on June 20, 2001 to the charge of cultivating marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. In that agreement, Defendant reserved the right to appeal the district court's denial of his motion to dismiss for violation of his rights under the Speedy Trial Act, 18 U.S.C. § 3161, and its denial of his motion to suppress the evidence obtained in the search of his home. Thereafter, Defendant was sentenced on September 27, 2001 to a term of five years probation with 90 days to be spent in community corrections and 90 days in home detention.

Defendant appealed both the denial of his motion to suppress and the denial of his motion to dismiss for violation of his speedy trial rights under 18 U.S.C. § 3161. On October 31, 2002, we affirmed the denial of his motion to suppress, but reversed and remanded the issue of speedy trial. United States v. Vogl, 49 Fed.Appx. 861 (10th Cir.2002). Specifically, we held that the district court had provided inadequate findings to support its "ends of justice" holding and had not otherwise considered Defendant's motion to dismiss for violation of speedy trial. Id. at 864. Therefore, we remanded and charged the district court with the following: "The district court, for example, should find, inter alia, when the speedy trial clock started, when the clock was tolled, when the clock thereafter resumed operation, and then determine whether the 70-day requirement of the Speedy Trial Act was met." Id.

On remand, the district court held a hearing on the speedy trial issue and then issued an order thoroughly analyzing all of the relevant dates and their tolling effect under the Speedy Trial Act. Ultimately, it concluded that Defendant's speedy trial rights had not been violated and it accordingly denied his motion to dismiss for lack of speedy trial under § 3161. Defendant now appeals this order.

DISCUSSION

Jurisdiction:

In an April 25, 2003 Show Cause Order, we questioned the timeliness of Defendant's appeal under Rule 4(b)(1)(A). In response, Defendant forwarded us a copy of the district court's May 9, 2003 order, in which the court held that Defendant made a showing of "excusable neglect" for the late filing of his appeal. Although neither Defendant nor the government disputes this finding, we review it sua sponte as it pertains to our jurisdiction. See City of Chanute, Kansas v. Williams Natural Gas Co., 31 F.3d 1041, 1045 n. 8 (10th Cir.1994); see also Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) (stating that a timely notice of appeal is "mandatory and jurisdictional"). As explained below, we conclude that we have jurisdiction over the instant case.

Pursuant to Rule 4(b)(1)(A)(i), a defendant in a criminal case is generally required to file a notice of appeal in the district court within ten days after entry of the order being appealed. An order is "entered" for the purposes of Rule 4(b) when it is entered on the criminal docket. Fed. R.App. P. 4(b)(6). The district court's order denying Defendant's motion to dismiss for violation of the Speedy Trial Act was docketed on March 14, 2003, and the ten day period thus expired on March 28, 2003. Because Defendant did not file his notice of appeal until March 31, 2003, the notice was untimely filed.

However, if a district court finds "excusable neglect or good cause," it may extend the time to file a notice of appeal up to thirty days after expiration of the original deadline. Fed. R.App. P. 4(b)(4). In making this determination, a court must "tak[e] account of all relevant circumstances surrounding the party's omission." Pioneer Investment Servs. v. Brunswick Assocs., Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (bankruptcy context); see also United States v. Torres, 372 F.3d 1159, 1160, 2004 WL 1345104, *3 (10th Cir.2004) (applying Pioneer Investment Services in Rule 4(b) context). The four factors to be considered are: (1) the danger of unfair prejudice to the nonmoving party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. Id. at 979. We will not overturn a district court's determination that there has been "excusable neglect" under Rule 4(b) unless there has been a "clear abuse of discretion." Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.1974).

In its May 9, 2003 order, the district court cited the above standard and considered the relevant factors before finding the existence of "excusable neglect." It noted that the length of delay was minimal and that the appeal was filed on the next business day following the deadline's expiration. It emphasized the "inclement weather that disrupted defense counsel's (as well as this Court's) operations during this time period," in addition to "defense counsel's mistaken belief that Fed. R.App. P. 26(c) extended the ten-day period from which to appeal." Although most of this analysis was proper, the court's reliance on counsel's mistake was not.

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