U.S. v. Sanders

• Decision Date: 11 May 2007
• Docket Number: No. 05-3155.,No. 05-3133.,05-3133.,05-3155.
• Citation: 485 F.3d 654
• Parties: UNITED STATES of America, Appellee v. Lorenzo R. SANDERS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

485 F.3d 654

UNITED STATES of America, Appellee v. Lorenzo R. SANDERS, Appellant.

No. 05-3133.

No. 05-3155.

United States Court of Appeals, District of Columbia Circuit.

Argued March 14, 2007.

Decided May 11, 2007.

Howard B. Katzoff, appointed by the court, argued the cause for appellant Lorenzo R. Sanders. Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant John Turner. With them on the briefs was A.J. Kramer, Federal Public Defender. Shawn Moore, Assistant Federal Public Defender, entered an appearance.

John P. Mannarino, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III and David B. Goodhand, Assistant U.S. Attorneys.

Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

In this appeal, the court must decide whether the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., was violated in the prosecutions of Lorenzo R. Sanders¹ and John Turner. The Act requires criminal trials to commence within seventy days after a defendant is indicted or appears in court, whichever is later, after certain periods prescribed by the statute are excluded. Following appellants' convictions by a jury, the Supreme Court clarified the operation of the Act in view of its twin goals of effectuating the interests of the public and of the defendant in a speedy trial. See Zedner v. United States, ___ U.S. ___, 126 S.Ct. 1976, 1984, 164 L.Ed.2d 749 (2006). Given the guidance of this new decision, we hold that the district court did not make the necessary findings to support its exclusion of certain periods of delay. As a result, appellants' rights under the Act were violated and our only recourse is to vacate the convictions and remand to the district court with instructions to dismiss the indictment. See id. at 1989-90.

I.

Sanders and Turner were indicted on February 5, 2002, on charges stemming from the execution of a search warrant the month before, when they were found in an apartment containing evidence of a drug trafficking operation and a loaded pistol that was stowed between the headboard and a bedroom wall. A trial commenced in December 2002 that resulted in a conviction of both appellants of possession with intent to distribute a detectable amount of heroin; the jury was unable to reach a verdict on the remaining counts. The district court declared a mistrial on the deadlocked counts and granted a motion for a new trial on the heroin count because a poll of the jury revealed that its verdict was not unanimous.

A second trial was held in September 2003 that resulted in convictions of both appellants of possession with intent to distribute cocaine base and heroin and possession of a firearm by a felon; the jury acquitted on the charge of possession of a firearm in furtherance of a drug trafficking offense. On appeal, this court vacated the original sentences, imposed on March 12, 2004, in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). United States v. Saunders, No. 04-3040 (D.C.Cir. Apr. 7, 2005); United States v. Turner, No. 04-3024 (D.C.Cir. Apr. 7, 2005). On remand, the district court sentenced Sanders to concurrent terms of imprisonment of 168 months and Turner to concurrent terms of imprisonment of 200 months. Sanders and Turner now challenge their convictions, contending among other things that they were denied their right to a speedy trial.

II.

The Speedy Trial Act provides that "the trial of a defendant . . . shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). The Act lists periods of delay that are excludable from the seventy-day maximum, see id. § 3161(h). On appeal, Sanders and Turner contend that their convictions must be reversed and the indictment dismissed because more than seventy non-excludable days elapsed before their trial began. The speedy trial challenge is reviewed de novo on matters of law, United States v. Fonseca, 435 F.3d 369, 371 (D.C.Cir.2006), and for clear error as to findings of fact, see United States v. Badru, 97 F.3d 1471, 1476 (D.C.Cir.1996). We first address the government's waiver arguments and then turn to appellants' contentions that not enough days were properly excluded by the district court to satisfy the Act.

A.

The Speedy Trial Act provides that "[f]ailure of the defendant to move for dismissal prior to trial . . . constitute[s] waiver of the right to dismissal." 18 U.S.C. § 3162(a)(2); see also United States v. McNeil, 911 F.2d 768, 772 (D.C.Cir. 1990) (dictum). The government maintains that appellants waived their rights because, first, they failed to file a formal motion to dismiss the indictment for lack of a speedy trial, and second, they failed to reassert their right at the second trial. Neither argument has merit.

Prior to the first trial, the district court alerted the parties that the Clerk's Office had discovered a possible Speedy Trial Act issue. After consulting the parties' counsel as to which periods of delay might be excludable, the district court stated: "nobody has made a motion, but I'm going to deem defense motions to dismiss to have been made for violations of the Speedy Trial Act, and . . . I'm going to deny the motions." The government maintains that, notwithstanding the district court having deemed the motion filed, because appellants themselves never filed a formal motion, the speedy trial right has been waived. However, it would be odd if a defendant relinquished a right after the district court acknowledged the issue and resolved it by ruling on the merits. By deeming a motion to dismiss the indictment on speedy trial grounds to have been filed, the district court obviated any need for appellants to raise the issue themselves. The government points to no reason for adding an unneeded layer of complexity to the statutory scheme. See also United States v. Arnold, 113 F.3d 1146, 1148-49 (10th Cir.1997).

The government further maintains, albeit only in a footnote to its brief, cf. Covad Commc'ns Co. v. FCC, 450 F.3d 528, 546 (D.C.Cir.2006), that appellants waived their rights under the Act by failing to renew their speedy trial objection at the second trial. It relies on United States v. Akers, 702 F.2d 1145 (D.C.Cir.1983), where the court emphasized that a defendant cannot justifiably rely on a judge making identical evidentiary rulings at a retrial following a mistrial, see id. at 1147-48. Akers does not support a requirement to relitigate all pretrial issues before a second trial. Although the partial mistrial and partial grant of a new trial nullified the original trial, those rulings did not nullify all proceedings. For example, the indictment underlying the speedy trial issue was not compromised by the first jury's failure to reach a unanimous verdict on all counts. Further, the Act provides for a separate seventy-day clock to run upon a mistrial or new trial, see 18 U.S.C. § 3161(e), and nowhere provides that the original speedy trial right is affected when the right is not reasserted upon retrial. In any event, the law-of-the-case doctrine underlying Akers does not support the government's position. In Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988), the Supreme Court summarized the doctrine as providing that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case." For mid-trial evidentiary rulings, a new trial will result in different factual and evidentiary circumstances occasioning a new exercise of the district court's discretion. However, an alleged violation of the Speedy Trial Act will not change between trials and is constrained by the principle that "the same issue presented a second time in the same case in the same court should lead to the same result." LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir. 1996) (en banc). Thus, requiring a defendant to re-raise the issue upon a retrial would be an exercise in wasteful formality.

B.

The speedy trial clock begins to run when a defendant is indicted or first appears in court, whichever is later. 18 U.S.C. § 3161(c)(1). For a case involving multiple defendants, the Act excludes "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Id. § 3161(h)(7). Consistent with the statute, the parties agree that the clock began to run when Sanders first appeared in court on March 4, 2002. They also agree that the clock was tolled (after 59 days had elapsed) from May 3, 2002, through July 2, 2002, when the district court was considering appellants' motion to suppress evidence, see 18 U.S.C. § 3161(h)(1)(F), and stopped again on July 25, 2002, when appellants filed another motion. This adds up to 81 days, 11 in excess of maximum prescribed by the Act.

When the district court addressed the speedy trial issue on August 5, 2002, it acknowledged that "[t]he Speedy Trial Act . . . confers real rights which in this case have been bruised but ... not broken." In denying relief under the Act, the district court relied principally on appellants' prospective waiver of their speedy trial rights when they agreed, before the speedy trial clock had run, to a trial date of August 5, 2002. In Zedner, however, the Supreme Court held that a district court may not rely upon a defendant's prospective waiver of speedy trial rights because such an approach would bypass the Act's comprehensive scheme for granting ends-of-justice continuances and would eliminate consideration of the public's interest...