U.S.A. v. Hemmings

• Decision Date: 12 July 2001
• Docket Number: No. 00-3835,00-3835
• Citation: 258 F.3d 587
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODNEY E. HEMMINGS, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 587

258 F.3d 587 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODNEY E. HEMMINGS, Defendant-Appellant.

No. 00-3835

In the United States Court of Appeals For the Seventh Circuit

ARGUED May 17, 2001

DECIDED July 12, 2001

Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. EV 99-39-CR--Richard L. Young, Judge. [Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., KANNE, and ROVNER, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

On May 2, 2000, defendant-appellant Rodney E. Hemmings was charged in a five-count superseding indictment in the United States District Court for the Southern District of Indiana. On July 6, 2000, a jury convicted Hemmings on all five counts. Counts 1, 2, and 3 alleged violations of 18 U.S.C. sec. 922(a)(6) (making false statements in connection with the acquisition of firearms), Count 4 alleged a violation of 18 U.S.C. sec. 922(g)(1) (felon in possession of firearms), and Count 5 alleged a violation of 18 U.S.C. sec. 922(g)(9) (possession of firearms by person convicted of a domestic violence crime). Hemmings appeals his conviction on all five counts. His appeal is in large part based on alleged violations of the Speedy Trial Act, 18 U.S.C. sec. 3161. For the reasons set forth in the following opinion, we affirm the conviction.

I. Background

On December 19, 1998, Hemmings entered Goldman's Pawn Shop in Evansville, Indiana, and attempted to retrieve a shotgun he had previously pawned. This act required the completion of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") Firearms Transaction Record, referred to as Federal Form 4473. On this form Hemmings denied that he had been convicted of a crime punishable by imprisonment for a term exceeding one year, denied that he had been convicted of misdemeanor crimes of domestic violence, and denied that he was under indictment for a crime punishable by a year in jail. In actuality, Hemmings had several prior convictions, including a 1992 felony conviction for attempted voluntary manslaughter and a 1990 misdemeanor conviction for battery of a person under thirteen years of age. Also, Hemmings had been arrested on December 3, 1998 on felony battery charges. These charges, which were later dismissed, were pending on December 19, 1998. In spite of Hemmings' misrepresentations, Goldman's Pawn refused to return the gun to Hemmings. Hemmings did regain possession of the shotgun along with a second shotgun he had pawned by giving his friend Frederick Draper the pawn tickets and the money to pick up the guns at the pawn shop for him.

On July 28, 1999, a Warrick County Sheriff's deputy interviewed Hemmings about the ATF form he had filled out at the pawn shop. Hemmings denied possessing any firearms at that time. After the interview, Hemmings, fearing a search warrant for guns would be issued, gave the various guns in his possession, including the two named in the indictment, to his ex-wife, Deneisa Hemmings. On August 6, 1999, Deneisa Hemmings, because of her fear of Hemmings, met with members of the Warrick County Sheriff's Department to turn over the guns Hemmings had given to her. Deneisa Hemmings then signed a written statement explaining how she came to possess the guns. Hemmings and Deneisa Hemmings remarried in December 1999.

Because the main issue of this appeal is the Speedy Trial Act, a close review of the procedural history is necessary. Hemmings was first indicted by a federal grand jury on December 21, 1999 on three counts alleging violations of 18 U.S.C. sec. 922(a)(6). Hemmings was arrested, and he made his initial court appearance on December 23, 1999. A detention hearing occurred on December 27, 1999, resulting in Hemmings' release on his own recognizance. The court set the trial date for February 22, 2000, but the defense filed a motion for continuance, which the court granted on February 17, 2000. The district judge then set a new trial date of April 24, 2000. On April 17, 2000, the government filed a motion in limine asking the court to determine whether the statement made by Deneisa Hemmings on August 6, 1999 was precluded by spousal privilege because of her subsequent remarriage to Hemmings. The government then made a motion to compel Hemmings to produce a fingerprint exemplar on April 19, 2000.

A pre-trial conference was held on April 21, 2000, at which time the court stated that it would not be able to conduct the trial on April 24, 2000, and rescheduled the trial for July 10, 2000. The judge individually asked defense counsel, Hemmings, and the prosecutor whether they had any objection to rescheduling the trial. Each person indicated that they did not. The judge also inquired as to the government's motion in limine. The judge stated that he was sure defense counsel wanted to have some time to respond to the government's motion, to which defense counsel responded, "Yes, I do." The judge then replied, "I'm inclined to grant their motion and allow the statement in, but certainly I'll allow you an opportunity to respond to the motion, and we'll rule on it at that time." Defense counsel never filed a response to the motion in limine, and the district court never ruled on the motion.

On May 2, 2000, the government filed a superseding indictment, adding Counts 4 and 5. The superseding indictment also added the word "knowingly" to the first three counts. Hemmings made his initial appearance on the superseding indictment on May 25, 2000, at which time his trial date was moved to July 5, 2000.

On June 15, 2000, the district court granted the government's motion to compel production of a fingerprint exemplar, and on June 19, 2000, Hemmings filed a motion to dismiss for alleged violations of the Speedy Trial Act. In his motion, Hemmings asserted first that the superseding indictment should be dismissed as untimely and secondly, that the allotted time to bring the initial three charges to trial had elapsed. The government filed its opposition to Hemmings' Speedy Trial motion on June 27, 2000, and the court denied the motion on June 30, 2000. In making that decision, the district court found that the Speedy Trial Act did not require the superseding indictment to be filed within thirty days of Hemmings' arrest, even though the government did possess the information necessary for the superseding indictment at the time of Hemmings' first indictment.¹ The district judge further found that the case was well within the seventy days allotted to bring a case to trial under 18 U.S.C. sec. 3161(c)(1). In calculating the amount of time before the trial began, the district court excluded the period from December 23, 1999 to December 27, 1999, because of the government's motion for pre-trial detention. The time from February 7, 2000 until April 24, 2000 was excluded because of Hemmings' motion for a continuance. The district court also excluded the time from April 21, 2000 (the date of the court's sua sponte continuance) until June 19, 2000 (the date Hemmings filed the motion to dismiss) "pursuant to the Court's continuance at the pretrial conference." Finally, the court determined that the period from April 17, 2000 (the date of the government's motion in limine) to June 19, 2000 was also excludable based on Hemmings' failure to respond to the government's motion.

The trial began on July 5, 2000, and a jury convicted Hemmings of all counts on July 6, 2000. Hemmings was sentenced to seventy months imprisonment. He filed this timely appeal, challenging the district court's denial of his Speedy Trial Act motion and raising constitutional issues.

II. Analysis

A. The Speedy Trial Act

"We review a district court's interpretation of the Speedy Trial Act de novo." United States v. Salerno, 108 F.3d 730, 734 (7th Cir. 1997). We turn first to Hemmings' contention that the Speedy Trial Act prohibited the government from bringing a superseding indictment more than thirty days after his arrest. Hemmings contends that Counts 4 and 5 should be dismissed as untimely under 18 U.S.C. sec. 3161(b). The Speedy Trial Act does not expressly address cases in which the government files a superseding indictment with additional charges more than thirty days after arrest, and the matter is one of first impression in this circuit.

Under 18 U.S.C. sec. 3161(b), "[a]ny . . . indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." Other circuits have uniformly held that sec. 3161(b)'s thirty-day rule is not violated "[w]hen a defendant is indicted within the thirty- day period and then re-indicted on identical charges based on identical facts after the expiration of the thirty- day period." United States v. Berry, 90 F.3d 148, 151 (6th Cir. 1996); see also United States v. Perez, 845 F.2d 100, 103 (5th Cir. 1988) (finding that initial indictment returned by a grand jury whose term had expired tolled the thirty-day period such that a subsequent valid indictment which was "identical in all material respects to the void indictment" was timely); United States v. Mitchell, 723 F.2d 1040, 1044-45 (1st Cir. 1983) (holding that, when initial indictment was filed within the thirty-day period, a superseding indictment filed outside the thirty-day window which did not change the original charges did not violate the Speedy Trial Act); United States v. Rabb, 680 F.2d 294, 297 (3d Cir. 1982) ("in the absence of bad faith on the part of the government or prejudice to the defendant, an indictment returned by a grand jury whose term has expired is sufficient to toll Speedy Trial Act sec. 3161(b), if it is followed by a valid indictment, identical in all material respects"). Several circuits have also held that superseding indictments filed longer than thirty days after an arrest which add charges to those contained in the original...