United States v. Thomas

• Citation: 726 F.3d 1086
• Decision Date: 08 August 2013
• Docket Number: No. 11–10451.,11–10451.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jonathan Michael THOMAS, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

726 F.3d 1086

UNITED STATES of America, Plaintiff–Appellee,

v.Jonathan Michael THOMAS, Defendant–Appellant.

No. 11–10451.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 18, 2013.

Filed Aug. 8, 2013.

Brian I. Rademacher, Assistant Federal Public Defender, District of Arizona, Tucson, AZ, argued the cause and filed the briefs for the appellant. With him on the briefs were Jon M. Sands, Federal Public Defender, and Richard W. Raynor, Assistant Federal Public Defender, District of Arizona.

Bruce M. Ferg, Assistant United States Attorney, District of Arizona, Tucson, AZ, argued the cause and filed a brief for the appellee. With him on the brief were John S. Leonardo, United States Attorney, and Christina M. Cabanillas, Appellate Chief, District of Arizona.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 4:10–cr–00628–CKJ–GEE–1.

Before: ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN, and N. RANDY SMITH, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

This criminal appeal raises two issues of first impression. We are called upon to consider the demands of the Speedy Trial Act in the case of a superseding indictment as well as to explore the emerging parameters for the constitutional use of drug-detection dogs.

I

A

In the early afternoon on February 28, 2010, Jonathan Thomas approached a highway checkpoint in southern Arizona manned by the United States Border Patrol. He was driving a silver pick-up truck with a large black toolbox attached to the bed. Border Patrol Agent Christopher LeBlanc had a partner that day: “Beny–A,” his drug-detection dog, who was trained in the detection of concealed humans and controlled substances. LeBlanc was stationed about fifteen feet in front of a “primary inspection” area. As Thomas's truck passed, Beny–A started to demonstrate what LeBlanc described as “alert behavior.” The dog's tail and ears went up, his posture and breathing pattern changed, and he started “air-scenting.”

Based on those responses, agents directed Thomas to secondary inspection where he and his three young children exited the truck.¹ Starting at the tailgate, LeBlanc walked Beny–A counterclockwise around the truck. As they encountered areas of interest, LeBlanc signaled Beny–A to go there. The dog was “in odor” throughout, meaning he was very animated and excited. Near the gas tank on the passenger side the dog exhibited more alert behavior. Beny–A is trained to perform what is known in the trade as an “indication” when he discovers contraband: he “rock[s] back into a sit.”

When the team came upon the toolbox, LeBlanc cast his hand low-to-high. In response, Beny–A jumped up and placed his paws on the vehicle and pressed his nose against Thomas's toolbox. LeBlanc testified that the dog then tried to sit, but that he did not allow him to complete that trained indication. Next, LeBlanc returned Beny–A to his kennel, obtained Thomas's keys, and searched the locked toolbox. Inside was a blanket and, underneath, bundles of marijuana weighing about 150 pounds. Thomas was arrested, advised of his Miranda rights, and transported to the Tucson Border Patrol station. During interviews with the Border Patrol, Thomas said he had knowingly transported the marijuana but under duress.

B

Thomas was indicted on a single count of Possession with Intent to Distribute Marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C), on March 24, 2010. On May 18, 2011, a superseding indictment issued. In addition to renewing the possession offense, the superseding indictment added a charge: Conspiracy to Possess with Intent to Distribute Marijuana, 21 U.S.C. § 846.

Invoking the Speedy Trial Act, 18 U.S.C. §§ 3161, et seq., Thomas sought to have both counts in the superseding indictment dismissed. The court noted that 454 calendar days had elapsed since the original single-count indictment. Of that time, seventy-six days were non-excludable. Because that period exceeded the seventy-day “clock” under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), the district court entered a dismissal of the possession charge without prejudice.² However, the court kept the conspiracy count alive, reasoning that under the Act the government could avail itself of a second seventy-day clock, triggered by the superseding indictment.

Before trial Thomas also filed a motion to suppress evidence of the marijuana obtained at the checkpoint. Thomas, Agent LeBlanc, and K9 Coordinator Paul Dubois testified about the circumstances surrounding the February 2010 search. Thomas pursued two arguments. He claimed that the search of the toolbox had violated the Fourth Amendment because the drug dog's failure to indicate meant probable cause had not been established. And during the suppression hearing, Thomas also objected to receiving heavily redacted training- and performance-evaluation records on Beny–A and his handler. After deciding that these limited disclosures satisfied the government's discovery obligation under Federal Rule of Criminal Procedure 16, the district judge ruled that the government had met its burden of establishing probable cause. Thomas's motion to suppress was denied.

The case proceeded to trial. Thomas took the stand in his defense. Having been unsuccessful in excluding the marijuana, Thomas argued the legal excuse of duress. He did not deny having knowingly possessed the drugs, nor did he contest entering into a conspiracy to distribute them. Instead, he argued that he had been an unwilling courier. Thomas testified that a Hispanic man with a gun had lured him into the desert under false pretenses and threatened to harm him and his family unless he transported the marijuana. After a two-day trial, the jury returned a guilty verdict as to conspiracy—the only count remaining in the superseding indictment. The court sentenced him to thirty months of incarceration, followed by thirty-six months of supervised release. Thomas timely appealed.

II

A

First, we consider Thomas's claim that the Speedy Trial Act required the district court to dismiss both counts of the superseding indictment—not simply the possession offense that traced to the original one-count indictment. What distinguishes a superseding indictment from a reindictment is that the former is issued without the original charge first being dismissed. See United States v. Hoslett, 998 F.2d 648, 657 n. 11 (9th Cir.1993). Although the issue Thomas raises is one of first impression, other circuits have confronted it, and there is some prior guidance in our case law as to when a subsequent indictment triggers a new speedy-trial period.

B

The Speedy Trial Act has three “clocks” that are relevant to this statutory interpretation issue. For the most part, the Act is designed to expedite the trial in that: (i) it “establish[es] a thirty-day limit for filing an indictment after an arrest,” United States v. Wilson, 690 F.2d 1267, 1276 (9th Cir.1982) (citing 18 U.S.C. § 3161(b)), and—central to this case—(ii) it demands that a defendant have the opportunity to be tried within seventy days of indictment. 18 U.S.C. § 3161(c)(1). Conversely, to safeguard against the risk of undue haste, section 3161(c)(2) prevents the government from insisting that the trial begin “less than thirty days from the date on which the defendant first appears.”

We begin by considering the subsection creating the seventy-day clock:

[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared ... whichever date last occurs.

18 U.S.C. § 3161(c)(1) (emphasis added). The most straightforward reading is that such provision applies to the superseding indictment here. Under that view, the issuance of the new indictment triggered a new seventy-day period in which to bring Thomas to trial. Since the jury was empaneled just over one month after the filing of the superseding indictment, there would be no violation of the Speedy Trial Act.

Matters are not quite so simple, however. We previously have acknowledged that the Act does not expressly provide for superseding indictments. See United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir.1989). Instead, the Act speaks directly as to reindictments only. On that score, section 3161(d)(1) provides that when the defendant secures a dismissal “both the 30–day trial preparation period and the 70–day speedy trial time period start over.” Karsseboom, 881 F.2d at 606. We have also held that when the defendant is reindicted after a sua sponte dismissal by the court, the seventy-day clock is reset. United States v. Feldman, 788 F.2d 544, 549 (9th Cir.1986).

Thomas argues this new-clock rule, which applies to these reindictment scenarios, has no application to indictments that are superseding. In Karsseboom, we held that some superseding indictments do not restart the original speedy-trial clock. 881 F.2d at 607 (“When a superseding indictment merely corrects technical errors but charges again the same offenses the 70–day clock continues and does not begin anew unless the original indictment in its entirety has been previously dismissed.”). However, that case left open whether in a situation such as this, where the new indictment introduces different charges, the seventy-day clock starts running anew. ³

To resolve this problem (to which section 3161(c)(1) does not provide a plain answer), we think it useful to consider other aspects of the Speedy Trial Act. See Dada v. Mukasey, 554 U.S. 1, 16, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (“In reading a statute we must not look merely to a particular clause but consider in connection with it the whole statute.” (internal quotation marks omitted)).

Somewhat analogous to the government obtaining a superseding indictment...