U.S. v. Blankenship, 94-3963

• Decision Date: 07 November 1995
• Docket Number: No. 94-3963,94-3963
• Citation: 67 F.3d 673
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth BLANKENSHIP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 673

67 F.3d 673

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth BLANKENSHIP, Defendant-Appellant.

No. 94-3963.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1995.

Decided Oct. 6, 1995.

Rehearing Denied Nov. 7, 1995.

Jeffrey Rosanswank, Cape Girardeau, MO, argued, for appellant.

Thomas Mehan, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before MAGILL and HANSEN, Circuit Judges, and GOLDBERG, ^* Judge.

HANSEN, Circuit Judge.

Kenneth Blankenship entered a conditional plea of guilty to a one-count indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g) (1988). He conditioned his plea upon the right to appeal two pretrial orders. Blankenship now appeals the district court's ¹ orders denying his motion to dismiss the indictment based upon the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174, and sustaining the government's motion to exclude testimony on his alleged justification or coercion defense. We affirm.

I. Background.

The parties stipulated that on February 20, 1992, law enforcement officers received a call that an individual, John Kellick, had been shot at the home of Kenneth Blankenship. When a deputy arrived, he saw a person in the yard with a gun. Some distance away an ambulance crew was waiting, afraid to approach and treat the victim until law enforcement officers were able to secure the area. After securing the area, police interviewed several people on the scene and learned that Kellick, accompanied by his son and two women, had come to the Blankenship's trailer home late that evening seeking the return of money that Kellick claimed Blankenship owed him for an automobile part. Kellick and Blankenship began arguing, Blankenship went back into the trailer, and returned to the argument with a shotgun. The shotgun discharged, and Kellick was killed.

The government charged Blankenship with possessing a firearm that had been transported in interstate commerce, having previously been convicted of a felony. See 18 U.S.C. Sec. 922(g). Blankenship pleaded not guilty and maintained that his actions were justified because he was acting to protect his family. Both Blankenship and the government filed several pretrial motions. Following a hearing, the magistrate judge ² filed a report and recommendation concerning the disposition of these motions, which the district court adopted.

Before jury selection on the scheduled date of trial, the district court entertained two additional motions. Blankenship sought dismissal of the indictment, alleging a violation of the Speedy Trial Act. The district court denied the motion on the grounds that, assuming there had been a "technical" violation of the Act, (Pretrial Motions Hrg. Tr. at 10), there was no actual violation because "the ends of justice would not be met by dismissal either with or without prejudice." (Id. at 15.)

The government sought to exclude testimony which Blankenship intended to offer to prove a justification or coercion defense. Blankenship intended to demonstrate that he and his family were faced with an immediate threat of serious bodily injury and that he had no opportunity to avoid the possession of the shotgun. The district court sustained the government's motion, finding that even if this court would recognize such a defense, Blankenship had not presented evidence on every element necessary to submit it to the jury.

Following the district court's rulings on these motions, Blankenship entered a conditional plea of guilty. Blankenship now appeals the district court's denial of his motion to dismiss and the district court's decision to exclude testimony.

II. Speedy Trial.

"The Speedy Trial Act requires that a federal criminal defendant be brought to trial within 70 days of the filing of the indictment or of arraignment, whichever is later." United States v. Koory, 20 F.3d 844, 846 (8th Cir.1994); 18 U.S.C. Sec. 3161(c)(1). When computing the 70-day time period, certain periods of delay are excluded. See 18 U.S.C. Sec. 3161(h). "If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by [the excluded delays of] section 3161(h), the information or indictment shall be dismissed on motion of the defendant." 18 U.S.C. Sec. 3162(a)(2) (emphasis added); see also Koory, 20 F.3d at 846 ("When a violation of the time limits of the Act is shown to have occurred, dismissal is mandatory on motion of the defendant.") (citing United States v. Kramer, 827 F.2d 1174, 1176 (8th Cir.1987), and United States v. Wiley, 997 F.2d 378, 385 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 600, 126 L.Ed.2d 565 (1993)). "Although dismissal upon a violation of the Act is mandatory, the Act grants the trial judge the discretion to dismiss the case with or without prejudice" upon consideration of all of the factors listed by Congress in section 3162(a)(2). Kramer, 827 F.2d at 1176; see also Koory, 20 F.3d at 846. We review the facts of a speedy trial determination for clear error and the legal conclusions de novo. See United States v. Duranseau, 26 F.3d 804, 808 (8th Cir.) (citing Koory, 20 F.3d at 847), cert. denied, --- U.S. ----, 115 S.Ct. 341, 130 L.Ed.2d 298 (1994); see also United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir.1994), cert. denied, --- U.S. ---- and --- U.S. ----, 115 S.Ct. 1113 and 115 S.Ct. 1825, 130 L.Ed.2d 1077 and 131 L.Ed.2d 746 (1995).

In this case, the district court assumed from the dates in issue that there was a technical violation of the Act. The district court then considered the statutory factors of the prejudice determination and chose not to dismiss the case. Finding no violation of the Act, we affirm the district court's decision to deny Blankenship's motion to dismiss but for different reasons than those articulated by the district court.

The relevant timeline for this case is as follows:

January 27, 1994 Arraignment.

February 3, 1994 Pretrial motions were filed.

March 14, 1994 Hearing was held on pretrial motions (Blankenship requested hearing transcript).

April 15, 1994 Hearing transcript was filed.

June 21, 1994 Magistrate judge filed report & recommendation.

July 19, 1994 District court adopted report & recommendation.

August 12, 1994 Blankenship moved to dismiss indictment.

From this chronology we can draw several conclusions. The speedy trial clock began to run on the date of arraignment. See 18 U.S.C. Sec. 3161(c)(1). From arraignment to the filing of the pretrial motions, six speedy trial days ran. See United States v. Moses, 15 F.3d 774, 777 (8th Cir.) (stating the date on which the motion is filed is excludable), cert. denied, --- U.S. ----, 114 S.Ct. 2691, 129 L.Ed.2d 822 (1994). The period between the filing of the pretrial motions (February 3) and the hearing on the pretrial motions (March 14) is an excluded period of delay under the Act, which does not count against the 70-day limit. See 18 U.S.C. Sec. 3161(h)(1)(F). See also Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 1876-77, 90 L.Ed.2d 299 (1986) (subsection (F) excludes "all time between the filing of a motion and the conclusion of the hearing on that motion").

A period of 98 days elapsed between the hearing on the pretrial motions (March 14) and the date when the magistrate judge filed his report and recommendation (June 21). The parties disagree on which portion of this time period is excluded from the speedy trial calculation because, although the hearing concluded on March 14, the hearing transcript, which the magistrate judge used in his decision, was not filed until April 15. Two subsections are key to determining the excludable time here: subsection (F) and subsection (J).

Subsection (F) excludes the period of delay from the filing of a pretrial motion through the conclusion of the hearing, "whether or not a delay in holding that hearing is 'reasonably necessary.' " Henderson, 476 U.S. at 330, 106 S.Ct. at 1877 (overruling United States v. Ray, 768 F.2d 991 (8th Cir.1985)). Subsection (J) provides that a period of 30 days "during which any proceeding concerning the defendant is actually under advisement by the court" is excluded from the statutory speedy trial calculation. 18 U.S.C. Sec. 3161(h)(1)(J). This 30-day period of allowable delay applies to magistrate judges as well as to district judges. United States v. Long, 900 F.2d 1270, 1275 (8th Cir.1990). Subsection (J) and subsection (F) are intertwined, to an extent, because a judge does not necessarily take every motion "under advisement" within the meaning of subsection (J) at the close of the hearing. Occasionally, there is a need for additional materials to be submitted after the hearing in order to properly dispose of the motion. For this reason, the Supreme Court has held that "subsection (F) excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion." Id. at 331, 106 S.Ct. at 1877. Similarly, our court has stated that "when a pretrial motion requires a hearing, the excludable period runs ... until the date when the parties have submitted any additional materials requested by the court." Long, 900 F.2d at 1274.

In this case, the hearing encompassed several pretrial motions. Blankenship's motions to suppress required highly fact-intensive inquiries into the admissibility of evidence and particular statements. The magistrate judge notes in the introductory paragraph of the report and recommendation that Blankenship requested the transcript and recites its filing date. The magistrate judge wrote a very factually detailed 30-page report and used direct quotes from the hearing transcript in the analysis of important issues. Precise facts and statements were crucial to the disposition of the motions to suppress. We conclude that the transcript, requested by Blankenship and extensively relied upon by the magistrate judge in the report...