U.S. v. Peeples, No. 86-1654

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, GARWOOD, and HILL; PER CURIAM
Citation811 F.2d 849
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph Shea PEEPLES, Defendant-Appellant. Summary Calendar.
Docket NumberNo. 86-1654
Decision Date20 February 1987

Page 849

811 F.2d 849
UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph Shea PEEPLES, Defendant-Appellant.
No. 86-1654
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Feb. 20, 1987.

J. Kevin Charters, Lexington, Ky., for defendant-appellant.

Sidney Powell, Asst. U.S. Atty., Marvin Collins, U.S. Atty., David B. Lewis, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, GARWOOD, and HILL, Circuit Judges.

PER CURIAM:

Joseph Shea Peeples contends that the district court erred in dismissing without prejudice a prior indictment against him. He was subsequently reindicted and convicted on all counts. Peeples argues that the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174, requires that the prior indictment be dismissed with prejudice. Finding no abuse of discretion by the district court in dismissing without prejudice, we affirm the judgments of conviction.

I.

Peeples was indicted on three counts of wire fraud and one count of conspiracy to commit wire fraud. His two codefendants were indicted on a number of related counts. Peeples was arraigned on June 8, 1984. The district court set trial for August 6, 1984. Peeples moved for a continuance on June 29, 1984, and waived his right to a speedy trial. In addition, on July 16, 1984, Peeples filed a document styled "Waiver pursuant to Speedy Trial Act" which provided as follows:

I, Joseph S. Peeples, understand that I have the right to a Speedy Trial, as provided

Page 850

by the Constitution and laws of the United States.

I, Joseph S. Peeples, hereby waive any right under the Speedy Trial Act and request a continuance of the trial date, pursuant to Title 18, United States Code, Section 3161(h)(8), et seq.

The district court granted Peeples' motion for a continuance on July 16 and entered an order as required by 18 U.S.C. Sec. 3161(h)(8)(A) that the continuance was justified because the ends of justice outweighed the interest of the public and the defendant in a speedy trial. Trial was reset for October 1, 1984. On September 7, 1984 Peeples filed a motion to sever his trial from the trials of his codefendants, which the district court granted on October 1, 1984. The court reset Peeples' trial for February 4, 1985.

The trial was never held on February 4. The docket sheet reflects no order granting a continuance. Instead, the trial date was reset twice more and ultimately scheduled for January 6, 1986. On December 13, 1985, however, Peeples moved to dismiss his indictment alleging that the delay in commencing trial violated the Speedy Trial Act. The district court granted the motion to dismiss but provided it was to be without prejudice to the government's right to reindict. The court reasoned that any violation of the Act that had occurred was due to "honest confusion" over whether Peeples' waiver of speedy trial rights was a general waiver or whether it was limited to his motion for a continuance, and stated that the government was not at fault for the delay. In response to a memorandum by Peeples in support of his motion to dismiss with prejudice, the district court added that the case against Peeples was serious, Peeples' own conduct was responsible for much of the delay, and he was not prejudiced by the delay.

Peeples was reindicted on April 9, 1986 on three counts of wire fraud. He moved to dismiss the indictment on the grounds that the prior dismissal should have been with prejudice. At a hearing on Peeples' motion, the FBI agent in charge of preparing Peeples' prior case for trial testified that the U.S. Attorney's office repeatedly inquired of the court about the status of the case. No other witness testified. The district court refused to dismiss the second indictment, declining to reconsider the prior dismissal. Peeples was convicted on all three counts and he now appeals, arguing that the prior indictment should have been dismissed with prejudice.

II.

The Speedy Trial Act requires the trial of a federal criminal defendant to commence within 70 days of arraignment or of the filing of the indictment, whichever is later. 18 U.S.C. Sec. 3161(c)(1). The Act lists a variety of delays that are excludable from the 70-day limit. Id. Sec. 3161(h). If trial is not held within 70 days, on motion of the defendant the indictment must be dismissed. Id. Sec. 3162(a)(2). The defendant has the burden of proving that dismissal is appropriate. Id. Although dismissal is mandatory when the Act is violated,...

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19 practice notes
  • US v. Kington, No. CR 1-85-001-R.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • June 9, 1989
    ...of the Act and justice in general. United States v. Salgado-Hernandez, 790 F.2d 1265 (5th Cir. 1986); United States v. Peeples, 811 F.2d 849, 850-51 (5th Cir.1987).18 U.S.C. § 3162(a)(2), which provides: If a defendant is not brought to trial within the time limit required by section 3161(c......
  • U.S. v. Clark, No. 07-51442.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 24, 2009
    ...United States v. Melguizo, 824 F.2d 370 (5th Cir.1987) (failure to file currency transaction reports); United States v. Peeples, 811 F.2d 849, 850 (5th Cir.1987) (wire fraud); and United States v. Wollschlager, 588 F.Supp. 1572, 1579 (N.D.Ill.1984) (tax fraud), aff'd, 782 F.2d 1045 (7th Cir......
  • U.S. v. Doran, No. 87-2385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 14, 1989
    ...mandatory. See United Page 1518 States v. Richmond, 735 F.2d 208, 211 (6th Cir.1984); Tunnessen, 763 F.2d at 76; United States v. Peeples, 811 F.2d 849, 850 (5th Cir.1987). In applying this series of seemingly hyper-technical requirements, a court is not completely robbed of flexibility, fo......
  • United States v. Koerber, 19-4147
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 26, 2021
    ...that we might otherwise attribute in favor of dismissal with prejudice. Saltzman , 984 F.2d at 1094 (quoting United States v. Peeples , 811 F.2d 849, 851 (5th Cir. 1987) ).B. Impact of Reprosecution on the Administration of Justice Finally, the third factor considers whether reprosecution w......
  • Request a trial to view additional results
19 cases
  • US v. Kington, No. CR 1-85-001-R.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • June 9, 1989
    ...of the Act and justice in general. United States v. Salgado-Hernandez, 790 F.2d 1265 (5th Cir. 1986); United States v. Peeples, 811 F.2d 849, 850-51 (5th Cir.1987).18 U.S.C. § 3162(a)(2), which provides: If a defendant is not brought to trial within the time limit required by section 3161(c......
  • U.S. v. Clark, No. 07-51442.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 24, 2009
    ...United States v. Melguizo, 824 F.2d 370 (5th Cir.1987) (failure to file currency transaction reports); United States v. Peeples, 811 F.2d 849, 850 (5th Cir.1987) (wire fraud); and United States v. Wollschlager, 588 F.Supp. 1572, 1579 (N.D.Ill.1984) (tax fraud), aff'd, 782 F.2d 1045 (7th Cir......
  • U.S. v. Doran, No. 87-2385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 14, 1989
    ...mandatory. See United Page 1518 States v. Richmond, 735 F.2d 208, 211 (6th Cir.1984); Tunnessen, 763 F.2d at 76; United States v. Peeples, 811 F.2d 849, 850 (5th Cir.1987). In applying this series of seemingly hyper-technical requirements, a court is not completely robbed of flexibility, fo......
  • United States v. Koerber, 19-4147
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 26, 2021
    ...that we might otherwise attribute in favor of dismissal with prejudice. Saltzman , 984 F.2d at 1094 (quoting United States v. Peeples , 811 F.2d 849, 851 (5th Cir. 1987) ).B. Impact of Reprosecution on the Administration of Justice Finally, the third factor considers whether reprosecution w......
  • Request a trial to view additional results

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