U.S. v. Toombs

• Decision Date: 03 August 2009
• Docket Number: No. 08-3278.,08-3278.
• Citation: 574 F.3d 1262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marlo L. TOOMBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

574 F.3d 1262

UNITED STATES of America, Plaintiff-Appellee, v. Marlo L. TOOMBS, Defendant-Appellant.

No. 08-3278.

United States Court of Appeals, Tenth Circuit.

August 3, 2009.

Melanie Morgan, Morgan Pilate LLC, Olathe, KS, for Appellant.

Terra D. Morehead, Assistant United States Attorney (Marietta Parker, Acting

United States Attorney, with her on the brief), Kansas City, KS, for Appellee.

Before MURPHY, SEYMOUR, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Following his arrest on and arraignment for various drug and firearm possession charges, defendant Marlo Toombs remained incarcerated for approximately twenty-two months before his trial began. During this time period, the district court granted seven continuances under the ends-of-justice provision of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7) ("ends-of-justice continuances"). In a motion to dismiss, Toombs claimed the district court failed to make the requisite factual findings when it granted the ends-of-justice continuances, and therefore over seventy non-excludable days had passed between his arraignment and trial in violation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The district court denied the motion to dismiss, concluding it had made the factual findings required by the Speedy Trial Act for each of the continuances. The matter then proceeded to trial, and Toombs was convicted on all counts. On appeal, Toombs challenges, inter alia, the denial of his motion to dismiss. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

II. BACKGROUND

On April 26, 2006, Toombs and co-defendant Arlynda Osborn were indicted for various firearm and drug possession offenses. Toombs was arraigned on May 2, 2006, and remained incarcerated for approximately twenty-two months preceding his trial, which began on March 4, 2008. During the time period between Toombs's arraignment and trial, the district court granted nine continuances, the latter seven of which were granted pursuant to the ends-of-justice provision of the Speedy Trial Act:

1. On May 22, 2006, defense counsel moved for additional time to file pretrial motions, contending he had not yet received discovery. The motion contained a limited waiver of Toombs's Speedy Trial Act rights and stated the government had no objection to the continuance. In its order granting the motion, the district court excluded the time from May 22, 2006 to July 10, 2006, for purposes of the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(1)(D).

2. On June 19, 2006, defense counsel moved again for additional time to file pretrial motions, contending counsel had not yet received discovery. The motion contained a limited waiver of Toombs's Speedy Trial Act rights and stated the government had no objection to the request. In its order granting the motion, the court excluded the time from June 19, 2006 to July 31, 2006, for purposes of the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(1)(D).¹

3. On August 31, 2006, defense counsel filed a motion to continue on the grounds that new counsel needed additional time to review discovery and prepare for trial.² On September 5, 2006 the district court, for good cause, granted the motion to continue, stating that the ends of justice outweighed the best interest of the public and the defendant in a speedy trial under 18 U.S.C. § 3161(h)(7).³ The district court excluded the time from August 31, 2006 to November 6, 2006, the new trial date, for purposes of the Speedy Trial Act.

4. On October 23, 2006, the government filed a motion to continue contending it was making a concerted effort to locate and arrest co-defendant Osborn. The motion stated the evidence against Toombs would be largely the same as that against Osborn, who remained a fugitive. The motion further stated counsel for Toombs had no objection to the continuance. The district court granted the continuance on October 27, 2006, finding that the basis of the continuance was proper under the provisions of 18 U.S.C. § 3161(h)(6) and the ends of justice outweighed the best interest of the public and the defendant in a speedy trial under 18 U.S.C. § 3161(h)(7). The court excluded the time from October 23, 2006 to February 5, 2007, the new trial date, for purposes of the Speedy Trial Act.

5. On January 23, 2007, defense counsel filed a motion to continue stating he needed more time to prepare for trial due to three other cases for which he was scheduled to appear in the weeks before Toombs's scheduled trial date. The motion stated the government did not object to the continuance. The district court granted the motion on February 5, 2007, stating the ends of justice served by granting the continuance outweighed the best interest of the public and the defendant in a speedy trial under 18 U.S.C. § 3161(h)(7). The court excluded the time from January 23, 2007 to May 7, 2007, the new trial date, for purposes of the Speedy Trial Act.

6. On April 30, 2007, defense counsel filed a motion to continue stating additional discovery had recently been disclosed requiring additional investigation. The motion further stated the government had no objection to the continuance. On May 1, 2007, the district court issued an order granting the continuance "in order for the defense to adequately prepare and for the reasons stated in the motion." The order further stated the ends of justice outweighed the best interest of the public and the defendant in a speedy trial pursuant to 18 U.S.C. § 3161(h)(7). The court excluded the time from April 30, 2007 to July 9, 2007, the new trial date, for purposes of the Speedy Trial Act.

7. On July 5, 2007, defense counsel filed another motion to continue based upon newly disclosed discovery. The motion was nearly identical to the April 30, 2007 motion. On July 10, 2007, in an order identical to the May 1, 2007 order with the exception of the dates provided, the district court granted the continuance "in order for the defense to adequately prepare and for the reasons stated in the motion." The order further stated the ends of justice outweighed the best interest of the public and the defendant in a speedy trial pursuant to 18 U.S.C. § 3161(h)(7). The court excluded the time from July 5, 2007 to September 4, 2007, the new trial date, for purposes of the Speedy Trial Act.

8. On August 14, 2007, Toombs retained the services of Melanie Morgan, who entered her appearance as counsel of record. On August 24, 2007, defense counsel filed a motion to continue which detailed the current status of the case and indicated she needed additional time to review discovery and prepare for trial. On August 28, 2007, the district court issued an order granting the continuance. The order stated the ends of justice outweighed the best interest of the public and the defendant in a speedy trial pursuant to 18 U.S.C. § 3161(h)(7). The court excluded the time from August 24, 2007 to November 5, 2007, the new trial date, for purposes of the Speedy Trial Act.

9. On October 24, 2007, the government filed a motion to continue on the grounds that Osborn had been arrested and was in federal custody en route to Kansas. Toombs filed a motion to sever on October 29, 2007, arguing the lengthy delay that would be caused by a joint trial was unreasonable and asserting his Sixth Amendment right to a speedy trial. A hearing was held and the district court denied the motion to sever. The district court then issued an order granting the government's requested continuance. The order stated that the basis of the continuance was proper under the provisions of 18 U.S.C. § 3161(h)(6) and the ends of justice outweighed the best interest of the public and the defendant in a speedy trial under 18 U.S.C. § 3161(h)(7). The court excluded the time from October 24, 2007 to the commencement of the trial, not yet scheduled, for purposes of the Speedy Trial Act.

On December 11, 2007, Toombs filed a motion to dismiss alleging a violation of his Sixth Amendment right to a speedy trial. The district court denied this motion. On February 26, 2008, Toombs filed another motion to dismiss. In this motion, Toombs alleged the district court erroneously excluded the time periods identified in the seven ends-of-justice continuances because it did not make the factual findings required by the ends-of-justice provision of the Speedy Trial Act. Toombs argued that over seventy non-excludable days had passed between the time of his arraignment and the start of the trial in violation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(1).

At the hearing on the motion, the district court clarified its findings as to the continuances granted on September 5, 2006 and August 28, 2007. The district court explained that at the time those continuances were granted, this court had not issued its decision in United States v. Williams, 511 F.3d 1044 (10th Cir.2007). The district court acknowledged that, in light of Williams, its findings for those two continuances were not sufficient. To remedy the perceived deficiencies, the district court stated that in granting the motions it considered defense counsel's statements that additional time was needed to review discovery in order to effectively prepare for trial and weighed this against the interests of Toombs and the public in a speedy trial. The district court explained that while adding such findings to the record so long after granting the continuances was not the preferred practice, it was nonetheless appropriate because the court had made the findings when it initially granted the motions. The district court then concluded Toombs's rights under the Speedy Trial Act had not been violated because for each continuance it had properly balanced the appropriate considerations and included its findings in the record. The district court therefore denied the motion to dismiss.

Toombs's trial began on March 4, 2008. The...