U.S. v. Hall

• Decision Date: 09 March 1999
• Docket Number: No. 98-30118,98-30118
• Citation: 181 F.3d 1057
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIS TOMMIE HALL, Defendant-Appellant. Argued and Submitted:
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1057

181 F.3d 1057 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIS TOMMIE HALL, Defendant-Appellant.

No. 98-30118

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: March 9, 1999

Filed: June 21, 1999

[Copyrighted Material Omitted] Wendy Holton, Helena, Montana, for the defendant-appellant.

James E. Seykora, Assistant United States Attorney, Billings, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana. Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR 96-00101-JDS.

Before: Betty B. Fletcher, Stephen Reinhardt, and Sidney R. Thomas, Circuit Judges.

FLETCHER, Circuit Judge:

On December 16, 1996, Appellant Willis Tommie Hall was arraigned on a three-count indictment alleging various offenses relating to the manufacture of methamphetamine, in violation of 21 U.S.C. 841(a)(1), 841(d)(1), & 846. Hall's trial began on October 6, 1997, 293 days after his arraignment. He was convicted and sentenced to 135 months in prison. Hall appeals from his conviction and sentence, claiming, inter alia, that the delay between arraignment and trial violated his rights under the Speedy Trial Act, 18 U.S.C. 3161-74. We have jurisdiction under 28 U.S.C. 1291. We reverse Hall's conviction and vacate his sentence.

I.

On October 18, 1996, Hall and his codefendant Tawni Nelson were charged together in a three-count indictment. Hall and Nelson were arraigned as codefendants on December 16, 1996. On December 30, 1996, the district court scheduled trial to begin on February 18, 1997. Over the course of the next several months, the district court issued a total of five continuances postponing the trial:

1. On February 18, 1997, the court granted a continuance at the request of Hall's counsel, and rescheduled the trial for April 7, 1997. The court granted the continuance to give Hall's counsel "adequate opportunity to investigate and prepare this matter for trial."

2. On March 28, 1997, in light of pending pretrial motions, the court sua sponte rescheduled the trial for April 21, 1997.

3. On April 4, 1997, the court granted codefendant Nelson's motion for a continuance on the grounds that she was scheduled to undergo surgery and would be physically unable to stand trial on April 21. Finding that a continuance served the "ends of justice," the court rescheduled trial for July 21, 1997.

4. On June 16, 1997, the court granted Nelson's second request for a continuance on the grounds that her new counsel (who had begun work on her case on May 7, 1997) required more time to prepare the case. Again finding that a continuance served the "ends of justice," the court rescheduled trial for August 11, 1997.

5. On July 10, 1997, the court granted Nelson's third request for a continuance on the grounds that her new counsel needed still more time to prepare. Again finding that a continuance served the "ends of justice," the court rescheduled trial for October 6, 1997.

Each time it granted a continuance, the district court identified a provision of the Speedy Trial Act under which the delay was excludable from the 70 days permitted by the Act between arraignment and trial. The district court also included both codefendants in each continuance, citing 18 U.S.C. 3161(h)(7). On February 26, 1997, shortly after the district court granted the first continuance at the request of Hall's counsel, Hall filed a pro se motion for substitution of counsel. Hall claimed that counsel's request for a continuance ignored Hall's specific instructions to assert his right to a speedy trial. Hall repeated that allegation in an "Objection to Counsel's Waiver of Defendant's Rights under the Speedy Trial Act," which he filed on March 12, 1997. In that filing, Hall stated that his counsel's motion for a continuance "was made over the oral and written objections of the defendant." The district court held a hearing on Hall's motion for substitution on March 20, 1997, and denied the motion orally at the conclusion of the hearing. The court did not address Hall's assertion of his rights under the Speedy Trial Act.

Hall's counsel did not object to any of the continuances granted by the district court over the next several months. However, on September 29, 1997, Hall himself again asserted his right to a speedy trial, this time by filing a pro se motion to dismiss for violation of the Speedy Trial Act. The motion stated that "notwithstanding the actions of appointed counsel, defendant has never waived or given up any of the rights to a Speedy Trial. . . ." Hall claimed that he had objected to every continuance granted by the district court, and that "Defense Counsel, the Court, and the United States Attorney had received actual knowledge" of his objection to the continuances by way of his submissions to the court in February and March. The district court took no action on Hall's motion.

On October 1, 1997, five days before trial was to begin, Nelson entered into a plea agreement with the government, pursuant to which she agreed to testify against Hall in return for being allowed to plead guilty to the third count of the indictment. This plea agreement was the product of several months' negotiations, as evidenced by a statement in Nelson's June 11 continuance motion that "the parties are engaged in plea negotiations which may or may not be fruitful, but additional time is needed to complete those negotiations."

On October 6, 1997, 293 days after his arraignment, Hall's trial began.

II.

The Speedy Trial Act, 18 U.S.C. 3161-74, requires that a defendant be tried within 70 days of his first appearance in court. See id. at 3161(c)(1). The Act contains certain exclusions that toll the running of the 70 days. See id. at 3161(h). "If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant." Id. at 3162(a)(2). "Failure of the defendant to move for dismissal prior to trial," however, "shall constitute a waiver of the right to dismissal." Id. Thus, the first issue here is whether Hall competently and timely challenged the pretrial delay so as to preserve his right of dismissal under the Speedy Trial Act.

Hall's counsel failed to move for dismissal under 3162(a)(2). This failure is not, however, dispositive of the issue. In United States v. Lloyd, 125 F.3d 1263, (9th Cir. 1997), we treated a defendant's own pretrial assertions of his speedy trial rights as adequate to preserve those rights on appeal, even though the defendant was represented by counsel who failed to raise the issue. Thus, under Lloyd, where defense counsel does not assert his client's right to a speedy trial, a defendant may alert the court directly of his desire not to waive those rights. See id. at 1267-71. In this case, there can be no doubt that Hall alerted the district court to his desire to have his speedy trial rights honored. Hall asserted those rights on at least three separate occasions. On February 26, 1997, Hall moved for substitution of counsel, claiming defense counsel's earlier request for a continuance had "disregarded [Hall's] specific instructions regarding the speedy trial concerns." Next, on March 12, 1997, Hall filed a written objection to any waiver of his speedy trial rights, emphasizing his wish to assert those rights despite defense counsel's failure to do so. Finally, on September 29, 1997, Hall filed a motion to dismiss for violation of his speedy trial rights. The motion stated that all continuances had been granted over Hall's objections, and that defense counsel, the government, and the court knew of those objections at the time the continuances were granted. Thus, we hold that Hall did adequately assert his rights under the Speedy Trial Act.

We also hold that Hall's September 29, 1997 motion to dismiss preserved his Speedy Trial Act objection to the entire pretrial delay, up to the commencement of his trial on October 6, 1997. As a general rule, a motion to dismiss for violation of the Speedy Trial Act does not, in the absence of a further motion, preserve an objection to subsequent periods of delay that occur following the denial of the motion. See United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir. 1989); United States v. Berberian, 851 F.2d 236, 239-40 (9th Cir. 1988). By the same token, and especially where the motion to dismiss is filed by a defendant acting in propria persona, we find it reasonable to deem the motion continuing until it is denied, thus preserving an objection to the delay up until that time. In this case, the district court never ruled on Hall's September 29 motion to dismiss. Thus, the motion remained live when trial commenced on October 6, preserving for appeal Hall's Speedy Trial Act challenge to the entire pretrial delay.¹

III.

Having found that Hall timely and competently asserted his right to a speedy trial, we turn now to the merits of his claim. Hall contends that more than 70 of the 293 days between his arraignment and trial should be included in Speedy Trial Act calculations, and that the indictment against him should therefore be dismissed. It is uncontested that the period between Hall's arraignment on December 16, 1996 and the filing of his counsel's continuance motion on February 14, 1997 - an interval of 60 days - is includable in Speedy Trial Act calculations.² The question, then, is whether more than 10 of the next 233 days are also includable.

We review questions of law under the Speedy Trial Act de novo. See United States v. George, 85 F.3d 1433, 1436 (9th Cir. 1996). In so doing, we note, as did the House Judiciary Committee in its Report recommending passage of the Speedy Trial Act, that "the right to a speedy trial belongs not only to the defendant but to society as well." H.R. Rep. 93-1508, at 15 (1974), reprinted in 1974 U.S.C.C.A.N. 7401, 7408. Indeed, "Congress...