U.S. v. Van Smith, No. 06-3099.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGriffith
Citation530 F.3d 967
Decision Date01 July 2008
Docket NumberNo. 06-3099.
PartiesUNITED STATES of America, Appellee v. Readie VAN SMITH, Appellant.
530 F.3d 967
UNITED STATES of America, Appellee
v.
Readie VAN SMITH, Appellant.
No. 06-3099.
United States Court of Appeals, District of Columbia Circuit.
Argued November 19, 2007.
Decided July 1, 2008.

[530 F.3d 968]

Appeal from the United States District Court for the District of Columbia (No. 04cr00271-01).

Mary E. Davis, appointed by the court, argued the cause and filed the briefs for appellant.

Sarah T. Chasson, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Thomas J. Tourish, Jr., and Jay I. Bratt, Assistant U.S. Attorneys.

Before: RANDOLPH, ROGERS, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Dissenting opinion filed by Circuit Judge ROGERS.

GRIFFITH, Circuit Judge:


"The Speedy Trial Act requires that a criminal trial must commence within 70 days of the latest of a defendant's indictment, information, or appearance, barring periods of excludable delay." Henderson v. United States, 476 U.S. 321, 326, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). More than twenty-one months passed between Readie Van Smith's indictment and trial, and he seeks the dismissal of his indictment on that ground. The government argues that two pretrial filings and a superseding indictment trigger periods of excludable delay that bring Smith's trial within the required seventy days. For the reasons set forth below, we conclude that Smith's trial did not violate the Speedy Trial Act and affirm the judgment of the district court.

I.

On June 9, 2004, a federal grand jury returned a six-count indictment against Readie Van Smith and co-defendant Paul

530 F.3d 969

Rangolan charging them, inter alia, with unlawful possession of cannabis with intent to distribute, and unlawful possession of a firearm. Smith's trial before the district court began nearly two years later, on March 20, 2006. After three days of trial, the jury convicted Smith of unlawful possession of a firearm by a convicted felon and unlawful possession of cannabis. 18 U.S.C. § 922(g)(1); 21 U.S.C. § 844(a). He was sentenced to eighty-four months in prison.

Smith appeals the district court's refusal to dismiss his indictment on the ground that the delay of his trial violated the Speedy Trial Act. He made a Speedy Trial Act challenge before the district court, and filed a timely notice of appeal on June 26, 2006. We have jurisdiction to hear the case under 28 U.S.C. § 1291. We review a Speedy Trial Act challenge "de novo on matters of law, and for clear error as to findings of fact." United States v. Sanders, 485 F.3d 654, 656 (D.C.Cir.2007) (internal citations omitted).

II.

The Speedy Trial Act excludes from its seventy-day limit certain periods of pretrial delay. See 18 U.S.C. § 3161(h). Only a few of the Act's exclusions are relevant to this case. First, the time it takes the trial court to decide a pretrial motion does not count toward the seventy-day limit. Id. § 3161(h)(1)(F) (excluding "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion"). The amount of time properly excluded due to a pretrial motion depends in part on whether the court holds a hearing on the motion. If the court holds a hearing, the Act excludes the period of time between the filing of the motion and the conclusion of the hearing, whether or not consideration of the motion caused "actual delay of the trial," United States v. Wilson, 835 F.2d 1440, 1443 (D.C.Cir.1987), and whether or not the amount of delay that occurred was "reasonable," Henderson, 476 U.S. at 326-27, 106 S.Ct. 1871. As the Supreme Court has explained, "Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is `reasonably necessary.'" Id. at 330, 106 S.Ct. 1871. If, after the hearing, the court takes the motion "under advisement," up to thirty days more may be excluded for delay occasioned by the court's consideration of the matter. 18 U.S.C. § 3161(h)(1)(J); United States v. Saro, 24 F.3d 283, 292 (D.C.Cir.1994).

If the court does not hold a hearing for the pretrial motion, the Act excludes the period of time between the filing of the motion and "`the day the court receives all the papers it reasonably expects' to help it decide the motion." Saro, 24 F.3d at 292 (quoting Henderson, 476 U.S. at 329, 106 S.Ct. 1871). After the court receives the necessary papers, the motion is considered "under advisement by the court," and up to thirty days more may be excluded while the court considers the matter. 18 U.S.C. § 3161(h)(1)(J); Henderson, 476 U.S. at 328-29, 106 S.Ct. 1871; see also Wilson, 835 F.2d at 1442 (explaining that the Act excludes "the time between the filing of a motion and the date it is taken under advisement by the court, plus the time during which the court holds the motion under advisement (up to 30 days)").

The Act also excludes from the speedy trial calculation delay associated with the addition of a co-defendant. 18 U.S.C. § 3161(h)(7) (excluding "[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"). The

530 F.3d 970

Supreme Court has stated: "All defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant.... [T]heir 70-day period [is] measured with respect to his." Henderson, 476 U.S. at 323 n. 2, 106 S.Ct. 1871; see also United States v. Sutton, 801 F.2d 1346, 1365 (D.C.Cir.1986) (explaining that the exclusion of time for the addition of a codefendant ensures that the government is not forced to choose between prosecuting defendants separately and violating the Speedy Trial Act). Accordingly, upon the addition of a new co-defendant, all defendants' speedy trial clocks are reset to day zero. See 5 WAYNE R. LAFAVE ET. AL., CRIMINAL PROCEDURE § 18.3(b), at 144 n. 36 (3d ed. 2007) ("Under [18 U.S.C. § 3161(h)(7)], the speedy trial clock does not begin to run in a multi-defendant prosecution until the last codefendant makes his initial appearance in court."). The Act also excludes delay caused by a co-defendant's pretrial proceedings, as "we have understood § 3161(h)(7) to mean that `an exclusion applicable to one defendant applies to all codefendants.'" Saro, 24 F.3d at 292 (quoting United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.1980)).

III.

This appeal turns on the effect of two pretrial filings and a superseding indictment on the computation of the seventy-day deadline called for by the Speedy Trial Act. The government contends that each of these events results in an exclusion of time from the computation. Smith argues they do not.

Rule 609 Filing

On July 27, 2004, the government filed a notice of its intent to use the defendants' prior convictions to impeach their testimony if offered at trial. The government styled its filing a "Motion Regarding Rule 609 Evidence" and contends that it tolled the speedy trial clock from its filing date through the day it was heard by the court on the third day of trial.1 Smith argues that the Rule 609 filing is better viewed as an evidentiary notice that does not qualify as a pretrial motion under the Speedy Trial Act and has no effect on the speedy trial clock.2 We agree with Smith and conclude that the Rule 609 filing did not toll the speedy trial clock.

In United States v. Harris, we recently held that a filing like the one made by the government in our case, a "Notice of Intent To Impeach Defendant with His Prior Convictions Pursuant to Fed.R.Evid. 609," was not a pretrial motion for purposes of the Speedy Trial Act, but was instead the type of notice described in Federal Rule of Criminal Procedure 12(b)(4).3 491 F.3d 440, 443-44 (D.C.Cir.2007); see also United States v. Bryant, 523 F.3d 349, 358 (D.C.Cir.2008) (explaining that in Harris "we held that a document titled `Government's Notice of Intent to Impeach Defendant [Harris] with His Prior Convictions

530 F.3d 971

Pursuant to Federal Rule of Evidence 609' was `not a motion'") (alteration in original). In Harris, the defendant responded to the notice by requesting the court bar the government's use at trial of his prior convictions. It was only then that the issue was joined for the court's consideration, and we held that the defendant's response was a motion that tolled the speedy trial clock. 491 F.3d at 443-44. But in the present case, neither Smith nor co-defendant Rangolan responded in any way to the government's Rule 609 filing. Furthermore, the district court did not treat the filing as a motion. Rather, the court ignored the filing for almost twenty months, addressing it only at trial when it became relevant because of the government's planned cross-examination of Smith and after asking to be reminded by the government as to whether there were any Rule 609 issues pending. The Rule 609 filing thus fits our description of notices in Harris, and therefore was not a pretrial motion that tolled the speedy trial clock.

Our conclusion that the government's evidentiary filing was not a pretrial motion, in addition to being compelled by Harris, is animated by our understanding of the purpose of the Speedy Trial Act. The Act excludes time for the consideration of "any pretrial motion," see United States v. Mentz, 840 F.2d 315, 327 n. 25 (6th Cir.1988), but does not define the term "motion." In determining whether a filing is a motion, we are mindful of the Supreme Court's statement in Henderson that "[t]he provisions of the [Speedy Trial] Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion." 476 U.S. at 331, 106 S.Ct. 1871. Where, as here, the...

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35 practice notes
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 2020
    ...he was simply responding to contentions made by Kiewit. This is the very nature of a reply brief. See, e.g. , United States v. Van Smith , 530 F.3d 967, 973 (D.C. Cir. 2008). Nor has Kiewit demonstrated that rebuttal argument is warranted to respond to several alleged misstatements in the S......
  • United States v. Morrow, Criminal No. 04cr355-01 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 30, 2015
    ...involving multiple defendants, the speedy trial clock resets upon the initial appearance of a new defendant. United States v. Van Smith, 530 F.3d 967, 969-70 (D.C. Cir. 2008). In other words, all codefendants share the speedy trial computation of the latest codefendant. Id. (quoting Henders......
  • Aamer ex rel. Aamer v. Obama, Nos. 13–5223
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 2014
    ...to trial or set them free. Appellants' Br. 40. Accordingly [742 F.3d 1042]this argument is forfeited. See United States v. Van Smith, 530 F.3d 967, 973 (D.C.Cir.2008) (“We require petitioners and appellants to raise all of their arguments in the opening brief, and have repeatedly held that ......
  • United States v. McGill, Nos. 06–3190
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 1, 2016
    ...the same Yates argument, which was raised there without citation in a footnote of the opening brief); United States v. Van Smith, 530 F.3d 967, 973 (D.C.Cir.2008) (dismissing an argument raised in the reply brief).XVII. Prosecutorial Misconduct During Closing and Rebuttal ArgumentsAppellant......
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35 cases
  • Kiewit Power Constructors Co. v. Sec'y of Labor, No. 18-1282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 15, 2020
    ...he was simply responding to contentions made by Kiewit. This is the very nature of a reply brief. See, e.g. , United States v. Van Smith , 530 F.3d 967, 973 (D.C. Cir. 2008). Nor has Kiewit demonstrated that rebuttal argument is warranted to respond to several alleged misstatements in the S......
  • United States v. Morrow, Criminal No. 04cr355-01 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 30, 2015
    ...involving multiple defendants, the speedy trial clock resets upon the initial appearance of a new defendant. United States v. Van Smith, 530 F.3d 967, 969-70 (D.C. Cir. 2008). In other words, all codefendants share the speedy trial computation of the latest codefendant. Id. (quoting Henders......
  • Aamer ex rel. Aamer v. Obama, Nos. 13–5223
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 2014
    ...to trial or set them free. Appellants' Br. 40. Accordingly [742 F.3d 1042]this argument is forfeited. See United States v. Van Smith, 530 F.3d 967, 973 (D.C.Cir.2008) (“We require petitioners and appellants to raise all of their arguments in the opening brief, and have repeatedly held that ......
  • United States v. McGill, Nos. 06–3190
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 1, 2016
    ...the same Yates argument, which was raised there without citation in a footnote of the opening brief); United States v. Van Smith, 530 F.3d 967, 973 (D.C.Cir.2008) (dismissing an argument raised in the reply brief).XVII. Prosecutorial Misconduct During Closing and Rebuttal ArgumentsAppellant......
  • Request a trial to view additional results

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