U.S. v. Taylor

• Decision Date: 14 August 2007
• Docket Number: No. 05-3125.,05-3125.
• Citation: 497 F.3d 673
• Parties: UNITED STATES of America, Appellee v. Thomas TAYLOR, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

497 F.3d 673

UNITED STATES of America, Appellee v. Thomas TAYLOR, Appellant.

No. 05-3125.

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 2007.

Decided August 14, 2007.

Appeal from the United States District Court for the District of Columbia (No. 03cr00217-01).

Richard Seligman, appointed by the court, argued the cause and filed the briefs for appellant.

Robert E. Leidenheimer, Jr., Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S. Attorney.

Before: GARLAND and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

BROWN, Circuit Judge:

Appellant Thomas Taylor challenges his 18 U.S.C. § 922(g)(1) conviction, arguing that the charge should have been dismissed on statutory and constitutional speedy trial grounds and that in any case his trial was contaminated by improperly admitted evidence. For reasons detailed below, we reject his contentions and affirm his conviction.

I

On March 6, 2003, shortly before 9:00 A.M., a warrant squad from the U.S. Marshals Service went to 722 Quincy Street, N.W., to execute a parole warrant for Mr. Taylor. The officers knocked on the door and the appellant's grandmother, Mildred Alice Taylor, answered. Deputy Bob Haufmaster¹ said, "Thomas Taylor." Mrs. Taylor, who owned the house, responded "yes" and stepped aside, whereupon the officers entered. When they again asked for the appellant, Mrs. Taylor directed them downstairs.

While two of the officers remained with Mrs. Taylor, the rest proceeded downstairs to search. Deputy Andrew Fang lifted a blanket that covered a bed and peered underneath to see if Mr. Taylor was hiding there. Instead of a person, he found what he instantly recognized as a gun case.

The team eventually located the appellant in the basement bathroom and arrested him. Deputy Fang then extracted the case from beneath the bed and opened it, confirming it contained a loaded gun.

Shortly thereafter, Agent Jeffrey Meixner from the Bureau of Alcohol, Tobacco, Firearms and Explosives came to 722 Quincy Street to collect the gun. Mrs. Taylor gave him permission to look around. While downstairs, he noticed an ID and a checkbook sitting in plain view on a nightstand by the bed. He took custody of those materials and of the weapon.

Mr. Taylor was arrested for parole violation. Two months later, on May 27, 2003, he was indicted for possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). For reasons not relevant to our disposition, but apparently based at least in part on governmental negligence, Mr. Taylor was not arraigned until March 5, 2004. At that time, Mr. Taylor, through his attorney, orally moved for dismissal based on the delay.

This motion to dismiss was reduced to writing on May 3, 2004, and filed in conjunction with a motion to suppress the gun. Mr. Taylor argued the Speedy Trial Act—specifically 18 U.S.C. § 3161(b) and (j)—required dismissal. The court took both motions under advisement on May 12 when the government submitted oppositions. The court denied the dismissal motion orally on August 5, and denied the suppression motion in writing the following day.

Meanwhile, the trial was scheduled to begin May 20 but was delayed. Mr. Taylor offered on May 20 to "waive his right to a speedy trial up until August 18th." Eventually the trial was rescheduled for August 10. That morning, Mr. Taylor moved for reconsideration of the order denying suppression, and the court denied the motion. The trial then began at last, and the jury convicted Mr. Taylor two days later, on August 12.

II

We consider first Mr. Taylor's argument that his interest in a speedy trial requires dismissal of the charges against him, addressing his statutory and constitutional arguments in turn.

A

Before the district court, Mr. Taylor moved to dismiss based on 18 U.S.C. § 3161(b), which limits the time between arrest and indictment.² Mr. Taylor has however not renewed this argument before us, and we treat it as abandoned. Instead he now seeks dismissal based on § 3161(c)(1), which requires a criminal defendant's trial to begin "within seventy days from the . . . indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs."

As Mr. Taylor did not make this argument below, we review the district court's decision not to dismiss (sua sponte) on § 3161(c)(1) grounds for plain error only. See Johnson v. United States, 520 U.S. 461, 464, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing FED.R.CRIM.P. 52(b)).³ Under that standard of review, we will correct a district court's error only if (1) there is in fact an error to correct; (2) the error is "plain"; (3) it "affects substantial rights"; and (4) it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 466-67, 117 S.Ct. 1544 (alterations and internal quotation marks omitted).

The Speedy Trial Act excludes certain periods from its seventy-day clock, two of which are important here. First, we exclude any "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." 18 U.S.C. § 3161(h)(1)(F). If no hearing is held, this exclusion runs through "the day the court receives all the papers it reasonably expects to help it decide the motion." United States v. Saro, 24 F.3d 283, 292 (D.C.Cir.1994) (internal quotation marks omitted). Second, once that period expires, we exclude "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(J).

Mr. Taylor was indicted on May 27, 2003, but did not make his first appearance before the court until March 5, 2004. The Speedy Trial Act clock would normally start with that latter date, but at that appearance Mr. Taylor entered an oral motion to dismiss. We now join several of our sister circuits in holding that exclusion under § 3161(h)(1)(F) is triggered by written and oral motions alike. Accord, e.g., United States v. Broadwater, 151 F.3d 1359, 1361 (11th Cir.1998) (per curiam); United States v. Rodriguez, 63 F.3d 1159, 1164-65 (1st Cir.1995); United States v. Moses, 15 F.3d 774, 776 n. 3 (8th Cir.1994); United States v. Nixon, 779 F.2d 126, 130-31 (2d Cir.1985). Thus, we exclude March 5 through May 12, when the final papers related to Mr. Taylor's motions to dismiss and to suppress were filed. We then exclude the next thirty days, through June 11, based on § 3161(h)(1)(J). Under Zedner v. United States, ___ U.S. ___, 126 S.Ct. 1976, 1985, 164 L.Ed.2d 749 (2006), Mr. Taylor's attempted prospective waiver of his Speedy Trial Act rights on May 20 had no effect. Therefore, we begin counting on June 12 and continue counting through August 10, the day the trial began. See United States v. Harris, 491 F.3d 440, 443 n. 1 (D.C.Cir. 2007) ("[A] logical consequence of not counting the date of indictment toward the seventy-day total is that we must count the date of trial. . . .").⁴ That comes to sixty days, well within § 3161(c)(1)'s seventy-day limit. Hence, there was no Speedy Trial Act violation, and we deny Mr. Taylor's request that we remand with instructions to dismiss on this ground.

B.

In the alternative, Mr. Taylor seeks dismissal of the charge against him based on the Speedy Trial Clause of the Constitution. See U.S. CONST. amend. VI. We review claimed violations based on "four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

As Doggett explained, "[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." Id. at 651-52, 112 S.Ct. 2686. Moreover, "as the term is used in this threshold context, `presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the [constitutional] enquiry." Id. at 652 n. 1, 112 S.Ct. 2686. "Depending on the nature of the charges," the Court noted, "the lower courts have generally found postaccusation delay `presumptively prejudicial' at least as it approaches one year." Id.

Here, the entire delay between indictment and trial barely exceeded one year. Assuming this is sufficient to trigger the Doggett inquiry, we must next "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. at 652, 112 S.Ct. 2686. This is because "the presumption that pretrial delay has prejudiced the accused intensifies over time." Id. In this case, because the delay only just exceeded that bare minimum, the presumption has not "intensifie[d]" at all. Nor has Mr. Taylor been able to establish any actual prejudice, which the Court identified as including "oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the [accused's] defense will be impaired by dimming memories and loss of exculpatory evidence." Id. at 654, 112 S.Ct. 2686 (alteration in original) (internal quotation marks omitted). Because "presumptive prejudice cannot alone carry a Sixth Amendment claim...