U.S. v. Taylor, No. 85-3127

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before POOLE, NORRIS and BEEZER; BEEZER; POOLE
• Citation: 821 F.2d 1377
• Parties: UNITED STATES of America, Plaintiff/Appellant, v. Larry Lee TAYLOR, Defendant/Appellee.
• Docket Number: No. 85-3127
• Decision Date: 13 July 1987

Page 1377

821 F.2d 1377 UNITED STATES of America, Plaintiff/Appellant,
v.
Larry Lee TAYLOR, Defendant/Appellee. No. 85-3127. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Aug. 4, 1986.
Decided July 13, 1987.

Page 1378

Thomas C. Wales and Portia R. Moore, Seattle, Wash., for plaintiff-appellant.

Ian G. Loveseth, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before POOLE, NORRIS and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

The United States appeals from the district court's dismissal with prejudice, under the Speedy Trial Act ("STA"), 18 U.S.C. Secs. 3161-3174, of its superseding indictment charging defendant Larry Lee Taylor with conspiracy to possess cocaine and possession with intent to distribute. The dismissal was granted based upon the government's violation of the STA's 70-day indictment-to-trial provision, 18 U.S.C. Sec. 3161(c)(1).

The government contends the 70-day STA time "clock" should start over when a fugitive is apprehended after failing to appear for trial. The government also contends that the district court improperly computed the delays excludable under the STA. Finally, the government maintains that the district court abused its discretion in dismissing the indictment with prejudice. We affirm.

I BACKGROUND

Larry Lee Taylor was indicted on July 25, 1984, for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846, and for actual possession of cocaine with intent to distribute in violation

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of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A), and 18 U.S.C. Sec. 2. He was scheduled for trial on these criminal charges before the United States District Court for the Western District of Washington on November 19, 1984. Taylor failed to appear for trial and a fugitive bench warrant was issued. Taylor was apprehended in California on February 5, 1985, by officers of the San Mateo County sheriff's department.

After his arrest, Taylor was held in San Mateo County jail on both the federal bench warrant and a state bench warrant issued following Taylor's failure to appear for trial on a petty theft charge. The federal government obtained a superseding indictment on April 24, 1985. ¹

Taylor was transferred from San Mateo County custody to federal custody on February 7, 1985, pursuant to a writ of habeas corpus ad testificandum issued by the United States District Court for the Northern District of California to obtain his testimony in another federal narcotics case, United States v. Seigert. He testified in the Seigert trial on February 21, and was held for possible recall in Seigert through February 22.

On February 28, the charges pending against Taylor in San Mateo County were dismissed, and the United States Marshal Service ("USMS") was notified on March 1 that local holds were released. On March 6, Taylor made an initial appearance on the federal fugitive warrant before a magistrate in the Northern District of California. On April 3, the magistrate signed an order directing that defendant be transported to the Western District of Washington.

On April 8, Taylor was transferred from San Francisco County Jail to Sutter County Jail while the USMS waited to assemble other prisoners for transport to Oregon and Washington rather than traveling with defendant alone. On April 17, Taylor was transported to Portland, Oregon, but the following day the United States District Court for the Northern District of California issued a second writ of habeas corpus ad testificandum ordering defendant returned to California for the retrial of Seigert. Taylor was returned to California on April 23, retrial began around May 7, and on May 17 he was transported to the Western District of Washington. On April 24, a grand jury in the Western District had returned a superseding indictment, adding a charge of failure to appear to the original narcotics charges.

After Taylor's return, the United States District Court for the Western District of Washington held that, since only one day had remained on the STA clock when trial was scheduled on November 19, 1984, and since the clock did not begin anew when defendant was arrested on February 5, the court had to examine the time which had elapsed between his disappearance on November 19, 1984, and the issuance of the superseding indictment on April 24, 1985, to determine which delays were excludable under 18 U.S.C. Sec. 3161(h). The court concluded that fifteen days of the delay were not excludable. Since the STA clock had expired fourteen days before Taylor was brought to trial, the district court dismissed the narcotics charges under the superseding indictment.

II RESTARTING THE CLOCK

We review de novo the district court's interpretation of the provisions of the Speedy Trial Act. United States v. Gallardo, 773 F.2d 1496, 1501 (9th Cir.1985); United States v. Henderson, 746 F.2d 619, 622 (9th Cir.1984), aff'd, --- U.S. ----, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986).

The STA, 18 U.S.C. Sec. 3161(c)(1), "operates like a statute of limitations." United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir.1980). Pursuant to the statute, a defendant must be brought to trial within 70 days from the later of (1) the filing date of the information or indictment, or (2) the

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date of his initial appearance before a judicial officer in the charging district. The STA provides numerous exclusions from this 70-day period. See 18 U.S.C. Sec. 3161(h). But if the defendant is not brought to trial within the 70-day period plus the period allowed under the exclusions, the court must dismiss the indictment on motion of the defendant. 18 U.S.C. Sec. 3162(a)(2).

The district court concluded that the time which elapsed between Taylor's failure to appear for trial on November 19, 1984, and his apprehension on February 5, 1985, was excludable under 18 U.S.C. Sec. 3161(h)(3)(A), (B). This section provides:

(h) The following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence:

....

3(A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.

(B) For purposes of subparagraph (A) of this paragraph, a defendant or an essential witness shall be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. For purposes of such subparagraph, a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.

As applied under the facts of this case, section 3161(h)(3) clearly tolled the STA time "clock" for that period during which Taylor was a fugitive. However, upon his apprehension, the clock simply resumed from the point at which it was stopped by defendant's absence. In this case, there was one day remaining before Taylor was to be tried. According to the district court, fifteen days after Taylor's arrest were identified as unexcludable under STA. As a consequence, the government failed to comply with the statutory time period by fourteen days.

The United States contends that section 3161(h)(3) does not control under the circumstances of this case. The government instead argues that the clock should have been restarted on Taylor's apprehension, thereby giving the government an additional 70 days within which to bring Taylor to trial upon the superseding indictment.

Although the government failed to cite any authority for this proposition, we have discovered the following dicta in a footnote of an Eleventh Circuit decision:

Appellant assumes, as do we, that where a defendant fails to appear for trial and is recaptured a year later and placed in federal custody, the Government has 70 days in which to try him for the offense for which he was originally charged. Requiring that the period during which a defendant is a fugitive be excluded from the original 70-day calculation would be unfair to the government, for if defendant became a fugitive 69 days after his initial appearance before a judicial officer, upon his recapture one year later, the Government would have only one day to try him for the original offense. We reject, however, the Government's argument that upon becoming a fugitive, a defendant waives his right to speedy trial upon recapture. Requiring that the 70-day period begin anew upon a defendant's recapture is the most reasonable result.

United States v. Studnicka, 777 F.2d 652, 657 n. 16 (11th Cir.1985).

However, all other courts which have considered the problem presented when a defendant had been at large for some period after the STA time clock had started, with the filing of an indictment or an initial appearance, have held that the delay occasioned by the defendant's absence should simply be excluded under section 3161(h)(3). ² None of these decisions

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suggests that the clock should be restarted upon the defendant's apprehension.

These holdings comport with the plain language of the STA. Since section 3161(h)(3) expressly provides a scheme for considering the effect of a defendant's absence or unavailability, we should not try to improve upon the statutory scheme by implying a provision restarting the clock upon apprehension of an absent defendant. Indeed, holding that the clock is to be restarted whenever a defendant is absent or unavailable would render section 3161(h)(3) meaningless. There could be no purpose in the exclusion of delays instigated by a defendant's absence or unavailability if the clock would instead be restarted upon his reappearance. We will not accept an interpretation of a statute which renders any part of the statutory scheme superfluous. People of California v. Tahoe Regional Planning Agency, 766...