U.S. v. Hessman

• Decision Date: 20 July 2007
• Docket Number: No. 06-2360.,06-2360.
• Parties: UNITED STATES of America, Appellee, v. Jay Todd HESSMAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

493 F.3d 977

UNITED STATES of America, Appellee, v. Jay Todd HESSMAN, Appellant.

No. 06-2360.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2007.

Filed: July 20, 2007.

Rehearing and Rehearing En Banc Denied August 30, 2007.

Counsel who presented argument on behalf of the appellant was Joseph J. Hrvol, Council Bluffs, Iowa.

Counsel who presented argument on behalf of the appellee was AUSA John H. Lammers, Sioux City, Iowa. Also appearing

on the brief is AUSA Janet L. Petersen, Sioux City, Iowa.

Before RILEY, MELLOY and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Jay Todd Hessman was convicted at a jury trial of conspiracy to manufacture and distribute five grams or more of methamphetamine after having been previously convicted of a felony drug offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. He was sentenced to 360 months of imprisonment. On appeal, Hessman asserts that the district court¹ erred in: denying his motion to dismiss based upon the Speedy Trial Act, 18 U.S.C. § 3161; its handling of government hearsay testimony; admitting evidence of prior convictions; refusing a jury instruction offered by Hessman; failing to grant a downward departure at sentencing; and applying an enhancement for prior drug convictions. We affirm.

I.

The indictment in this case was filed on October 24, 2002, Hessman was arraigned on November 15, 2002, and trial was scheduled for January 6, 2003. After several motions to continue were granted, trial was scheduled for March 24, 2003, however on March 3, 2003, Hessman filed a motion to suppress evidence seized from his residence pursuant to a search warrant, and the trial was again continued. The district court granted the motion to suppress, and on May 9, 2003, the district court granted the motion of the United States to continue the trial to allow it to pursue an interlocutory appeal. On June 1, 2004, this court reversed the district court and found that the evidence was not subject to suppression. See United States v. Hessman, 369 F.3d 1016 (8th Cir.2004). The certified judgment from this court was received and docketed by the district court on August 16, 2004. On September 8, 2004, Hessman moved to continue the trial to allow him to petition the Supreme Court of the United States for writ of certiorari with respect to this court's decision on the suppression issue. The district court granted the motion for continuance and excluded the period of September 8, 2004, to the date of trial for Speedy Trial purposes. The order also instructed the parties to "notify the court when a ruling was issued on Hessman's petition for certiorari."

On January 10, 2005, the Supreme Court denied the petition for writ of certiorari and so notified the clerk of this court. Hessman v. United States, 543 U.S. 1072, 125 S.Ct. 917, 160 L.Ed.2d 809 (2005); see Sup.Ct. R. 16(3) ("Whenever the Court denies a petition for a writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed."). On January 20, 2005, the clerk of this court mailed to the district court a memorandum and a copy of the Supreme Court order. However, the district court never received this communication nor did counsel for the United States or Hessman advise the district court of the Supreme Court's action.

On March 11, 2005, the counsel for Hessman filed a motion in the district court seeking leave to withdraw. The filing of this motion apparently prompted the district court to investigate the status of Hessman's certiorari petition, and the court discovered that the petition had been denied two months earlier. On March 14, 2005, the district court entered an order granting the motion of Hessman's attorney for leave to withdraw, setting trial to begin on May 16, 2005, and finding that the time from September 8, 2004, until May 16, 2005 was excluded for Speedy Trial purposes. The trial was subsequently continued and began on November 10, 2005. It is undisputed that the time period from March 14, 2005, to the date of trial, is excluded for Speedy Trial purposes.

On May 13, 2005, Hessman filed a motion alleging that the Speedy Trial Act had been violated and that the excludable time period related to his Supreme Court petition ended on January 11, 2005. By order entered on June 16, 2005, the district court denied the motion to dismiss finding that time period from January 11, 2005, to March 11, 2005, the date the court learned of the action of the Supreme Court, is excludable as "delay resulting from any interlocutory appeal." See 18 U.S.C. § 3161(h)(1)(E). The district court further found that the parties had a court-ordered duty to advise the district court of any action by the Supreme Court and that both parties had failed to do so. On November 7, 2005, Hessman proceeded to trial and was convicted on November 10, 2005.

II.

With respect to the appeal of Speedy Trial issues, we review the district court's findings of fact for clear error and its legal conclusions de novo. United States v. Titlbach, 339 F.3d 692, 698 (8th Cir.2003) (quotation marks and citations omitted). Under the Speedy Trial Act, a defendant's trial must commence within 70 days of the latter of the filing of the indictment or the defendant's arraignment. 18 U.S.C. § 3161(c)(1); United States v. McKay, 431 F.3d 1085, 1091 (8th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2345, 164 L.Ed.2d 859 and ___ U.S. ___, 127 S.Ct. 46, 166 L.Ed.2d 48 (2006). Delays occasioned by continuances granted on motion of the defendant are excluded from the 70 day period. 18 U.S.C. § 3161(h)(8). Where the rights of a defendant under the Speedy Trial Act are violated, the indictment must be dismissed. 18 U.S.C. § 3162(a)(2). However, "the burden is on the defendant to show his right to a speedy trial has been violated." United States v. Cordova, 157 F.3d 587, 599 (8th Cir.1998).

In this case, 24 days of the 70 day Speedy Trial period elapsed from the date of Hessman's arraignment to December 9, 2002, the date of the filing of Hessman's first motion to continue trial. Another 23 days elapsed from August 16, 2004, the date the district court received the certified judgment from this court with respect to the interlocutory appeal until September 8, 2004, the date on which Hessman filed a motion for continuance in order to allow him to seek certiorari on the suppression issue. Therefore, a total of 47 days elapsed, with 23 days remaining of the 70 day Speedy Trial time limit. The parties agree that Speedy Trial tolling resumed on September 8, 2004.

Hessman asserts that Speedy Trial Act tolling ended on January 10, 2005 when the Supreme Court denied certiorari. If so, the Speedy Trial time period expired on February 2, 2005. The United States argues that tolling continued until March 11, 2005, thus, no Speedy Trial Act violation occurred.

Although the district court found excludable the time period which began on September 8, 2004, as delay occasioned by an interlocutory appeal, see 18 U.S.C. § 3161(h)(1)(E), and the parties have characterized the delay in this same fashion, the time period in question is more accurately described as "[a]ny period of delay resulting from a continuance granted by any judge . . . at the request of the defendant or his counsel." 18 U.S.C. § 3161(h)(8)(A); United States v. Leone, 823 F.2d 246, 248 n. 2 (8th Cir.1987) (Speedy Trial Act excludes periods of delay resulting from a continuance granted at the request of the defendant).²

On August 4, 2004, we denied Hessman's petition for rehearing with respect to our judgment reversing the district court's grant of Hessman's motion to suppress. While Hessman could have moved for a stay of the mandate pending his filing of a petition for writ of certiorari in the Supreme Court, he elected not to do so. See Fed. R.App. P. 41(d)(2) (a party may move to stay the mandate pending the filing of petition for certiorari in the Supreme Court; absent good cause, the stay may not exceed 90 days unless the party who obtained the stay files a petition for the writ and so notifies the clerk of the court of appeals; the mandate must issue immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed); Sup.Ct. R. 13 (a petition for writ of certiorari seeking review of a judgment of a United States court of appeals is timely when filed within 90 days from the date of denial of rehearing). Thus, upon the receipt of our certified judgment on August 16, 2004, the district court was again vested with jurisdiction and could proceed. United States v. Arrellano-Garcia, 471 F.3d 897, 900 (8th Cir. 2006) (the district court is without jurisdiction to act until the mandate is received from the court of appeals); see also United States v. Scalf, 760 F.2d 1057, 1059 (10th Cir.1985) (an application to seek certiorari has no effect on the finality of an appellate decision unless the mandate of the court is stayed or withdrawn).

Having failed to request a stay of the mandate, Hessman filed for an open-ended continuance from the district court so his prosecution would be stayed while he sought certiorari. This motion was granted and both parties were ordered to notify the district court when a ruling was made on the petition. There is no rule requiring the Clerk of the Supreme Court to officially notify the district court of the action of the Supreme Court with respect to a petition for certiorari to review a decision of the court of appeals. However, Supreme Court Rule 16(3) does require the Supreme Court Clerk to notify counsel "forthwith" of the Supreme Court's grant or denial of certiorari, therefore the district court was justified in ordering Hessman and the United States to notify the court when a ruling was issued on the petition.³ This order was entirely appropriate under the circumstances and was not objected to by Hessman....