U.S. v. Howard

• Decision Date: 02 May 2000
• Docket Number: No. 99-5163,99-5163
• Citation: 218 F.3d 556
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Jerry Lee Howard, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 556

218 F.3d 556 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Jerry Lee Howard, Defendant-Appellant.

No. 99-5163

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 2, 2000

Decided and Filed: July 6, 2000

Appeal from the United States District Court for the Western District of Kentucky at Louisville; No. 98-00033--John G. Heyburn II, District Judge. [Copyrighted Material Omitted] Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

Joseph D. Heyd, GENERAL ELECTRIC AIRCRAFT ENGINES, LEGAL OPERATIONS, Cincinnati, Ohio, Joseph S. Justice, TAFT, STETTINIUS & HOLLISTER, Cincinnati, Ohio, for Appellant.

Before: MOORE and GILMAN, Circuit Judges; McKEAGUE, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Jerry Lee Howard was convicted in 1994 of aggravated sexual assault in violation of 18 U.S.C. § 2241(a) and first-degree wanton endangerment pursuant to 18 U.S.C. § 13 (which applies state law to individuals on federal property) based on an attack that took place at Fort Knox, Kentucky. In an earlier appeal, this court concluded that Howard was held for too long prior to trial in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. It vacated the judgment of the district court and remanded the case for a determination of whether the indictment should be dismissed with or without prejudice.

The district court dismissed the indictment without prejudice. A second indictment was filed and Howard was again convicted of the same crimes. Howard's primary contentions in the present appeal revolve around alleged violations of the Speedy Trial Act and his Sixth Amendment right to a speedy trial in connection with both his first and second convictions. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

On May 5, 1993, Howard drove Katina Lynn Porter, the girlfriend of a male friend of his, to Crystal Lake on the Fort Knox United States Military Reservation. After unsuccessfully propositioning Porter, Howard beat her and forcibly performed oral sex on her at knife-point. Porter eventually managed to escape, seeking the help of three men who were fishing by the side of the lake. Two of these men happened to be off-duty police officers. As Howard started up his van, Lamar Jones, one of the officers, approached Howard's van with gun and badge drawn and ordered Howard to stop. Instead, Howard sped towards Jones in an attempt to run him over. Jones managed to step out of the way and avoid injury. He then jumped in his truck to pursue Howard, radioing for police assistance. After a fifteen-mile chase, Howard was stopped and arrested.

B.Procedural background

On May 19, 1993, a grand jury in the Western District of Kentucky indicted Howard for aggravated sexual assault based on his attack on Porter and for first-degree wanton endangerment based on his attempt to run over Jones. The district court granted the government's request to detain Howard pending trial, which was originally scheduled for July 28, 1993. Trial did not commence until August 15, 1994, however, because the district court granted four successive continuances. The first and fourth continuances were sought by Howard, and Howard joined the government in requesting the second. The only delay that was not at least partly attributable to Howard was the third continuance, from February 2, 1994 to May 9, 1994, which the government sought in order to compare samples of Howard's blood, saliva, and hair with samples found on Porter and her clothing.

On May 23, 1994, Howard moved to dismiss the indictment against him because he had not been brought to trial within the time limit specified by the Speedy Trial Act. The district court denied the motion, finding that Howard's "waiver" of the Speedy Trial Act defense when seeking his first continuance in July of 1993 precluded him from raising that defense thereafter. After being tried and convicted on both counts of the indictment Howard was sentenced to a term of life imprisonment plus sixty months.

In his appeal of the 1994 conviction, Howard raised several substantive challenges and reiterated his allegations that he was denied a speedy trial. This court noted that the provisions of the Speedy Trial Act are not waivable by a defendant and that, in any case, Howard's purported waiver when seeking his first continuance did not bar him from opposing a subsequent continuance sought by the government. See United States v. Howard, No. 94-6543, 1997 WL 705077, at *11 (6th Cir. Nov. 6, 1997). Focusing on the three-month continuance requested by the government, this court concluded that the district court had improperly failed to make an "ends of justice" finding as required by the Speedy Trial Act. See 18 U.S.C. § 3161(h)(8). Because more than seventy non-excluded days elapsed from the time of Howard's indictment without any such finding, the judgment of the district court was vacated and the case remanded for a determination as to whether the dismissal ought to be with or without prejudice.

Upon remand, the district court considered the factors governing dismissals as set forth in the Speedy Trial Act, see 18 U.S.C. § 3162(a)(2), and concluded that Howard's indictment should be dismissed without prejudice. On April 6, 1998, Howard was indicted for a second time and the trial tentatively set for June 8, 1998. The government then moved for a continuance until September 28, 1998, claiming that Porter, the victim and central witness in the government's case, had been hospitalized for premature labor and would be unavailable for at least eight weeks. The district court granted the motion, expressly finding that the four-month delay would serve the ends of justice by allowing the primary witness in the case to testify.

On September 14, 1998, Howard sought a continuance, claiming that his forensic expert would be unavailable to testify during the week set for trial. The trial eventually commenced on October 23, 1998. Howard was again convicted and sentenced to the same term as before--life plus sixty months' imprisonment.

II. ANALYSIS

The primary thrust of Howard's appeal is that the delays before each of his two trials violated both the Speedy Trial Act and his Sixth Amendment right to a speedy trial. For the reasons set forth below, we disagree.

A. Speedy Trial Act

1. Howard's first trial

The district court granted four continuances prior to Howard's original trial. Three of these continuances--the first, second, and fourth--were either requested by Howard or jointly requested by Howard and the government. In Howard's first appeal, he therefore focused on the third continuance, a three-month delay granted at the government's request. See United States v. Howard, 1997 WL 705077, at *3. Noting that the district court had not made "ends of justice" findings to determine whether this period was excludable from the Speedy Trial Act computation, this court agreed that the three-month continuance violated the Speedy Trial Act and remanded for a determination as to whether dismissal should be with or without prejudice. The district court dismissed Howard's indictment without prejudice.

Howard argues on appeal that his indictment should have been dismissed with prejudice, thus foreclosing future prosecution. In reviewing such a decision, we employ a "modified abuse of discretion standard." United States v. Pierce, 17 F.3d 146, 148 (6th Cir. 1994). This review differs from the typical abuse of discretion standard in that it "requires the reviewing court to undertake more substantive scrutiny to ensure that the judgment is supported in terms of the factors identified in the statute." United States v. Taylor, 487 U.S. 326 337 (1988).

The Speedy Trial Act does not specify whether dismissal should be with or without prejudice, nor does it contain a default presumption one way or the other. See 18 U.S.C. § 3162(a)(2); Taylor, 487 U.S. at 334. Congress did, however, provide three factors that a court should consider when making this determination. They are "the seriousness of the offense, the facts and circumstances of the case which led to the dismissal, and the impact of a reprosecution on the administration of this chapter and on the administration of justice." Id.

Howard does not dispute that the first factor militates against dismissal with prejudice. The district court properly determined that "Howard's alleged crimes, aggravated sexual abuse . . . and wanton endangerment, are serious and violent ones." Indeed, the aggravated sexual abuse charge carries a maximum sentence of life imprisonment, underscoring the gravity with which it was viewed by Congress. See United States v. Koory, 20 F.3d 844, 847 (8th Cir. 1994) (looking to the length of a sentence to determine the seriousness of an offense for the purposes of the Speedy Trial Act).

Howard argues, however, that the district court failed to properly consider the second factor--"the facts and circumstances which led to dismissal." In his opinion, "[t]he bulk of the unjustified delay that violated the Speedy Trial Act was caused by the government's failure to prepare and test its evidence in a timely manner."

The record indicates otherwise. On May 24, 1993, five days after Howard was indicted, the government moved for an order requiring Howard to tender blood, saliva, and hair samples. That motion was granted on July 12, 1993. As of November 29, 1993, however, Howard had still failed to comply with the district court's order. The government ultimately procured the samples with a search warrant in December of 1993. When the second continuance (requested by both parties) expired on February 2, 1994, the government requested a third continuance in order to complete tests on the samples provided by Howard.

Given these circumstances, the district court determined that "the violation did not result from...