U.S. v. Willaman

• Decision Date: 17 February 2006
• Docket Number: No. 05-1336.,05-1336.
• Citation: 437 F.3d 354
• Parties: UNITED STATES of America v. Terrance Ross WILLAMAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 354

437 F.3d 354

UNITED STATES of America v. Terrance Ross WILLAMAN, Appellant.

No. 05-1336.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a) December 9, 2005.

February 17, 2006.

Mary Beth Buchanan, United States Attorney, Laura Schleich Irwin, Assistant United States Attorney, Pittsburgh, PA, for Appellee.

Terrance Ross Willaman # 20193-068, Federal Correctional Institution, Morgantown, WV, Appellant pro se.

Before RENDELL, FISHER, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on defendant Terrance Ross Willaman's appeal from a judgment of conviction and sentence entered on January 27, 2005, in the district court.¹ The case originated on March 26, 2004, when Maurice Ferentino, an ATF agent, and two other federal agents approached Willaman at a hotel in Erie, Pennsylvania, where he was staying with his wife. Ferentino, who had obtained information that Willaman possessed a machine gun, at that time intended to serve a grand jury subpoena on him, apparently related to an ongoing investigation regarding weapons matters.² Willaman admitted to Ferentino at the hotel that he possessed a machine gun but told Ferentino that he would turn it over to the agents. Willaman and the agents subsequently left the hotel in separate cars to retrieve the weapon at Willaman's residence. Once they arrived at the residence, he dug up the machine gun from the place where he had buried it, and the agents took possession of it. Nevertheless, notwithstanding Willaman's apparent criminal conduct, Ferentino twice informed him that he was free to go at any time. Moreover, Willaman has acknowledged that he was not coerced or treated badly in any way by the agents at his residence.

On May 11, 2004, a grand jury indicted Willaman for knowingly and unlawfully possessing a firearm in violation of 26 U.S.C. § 5861(d), and, on September 15, 2004, a grand jury returned a superseding indictment charging Willaman with knowingly and unlawfully possessing a machine gun in violation of 18 U.S.C. § 922(o)(1). Following the original indictment, Willaman appeared before a magistrate-judge on May 12, 2004, at which time she set bail. Nevertheless, Willaman was not arraigned until May 17, 2004, at which time he pleaded not guilty. On May 25, 2004, eight days after his arraignment, Willaman filed several pre-trial motions: (1) a motion to dismiss the indictment under Federal Criminal Rule 12(b)(2); (2) a motion to dismiss and a motion to suppress statements and evidence based on alleged violations of the First, Second, Fourth, and Fifth Amendments; (3) a motion to dismiss based on double jeopardy; and (4) a motion seeking to have the court instruct the jury that it could nullify the effect of the law in this case. The district court denied these four motions on August 18, 2004.

The trial in this case commenced on October 19, 2004. Immediately prior to the trial, Willaman unsuccessfully moved to dismiss the indictment based on asserted Speedy Trial Act, 18 U.S.C. § 3161 et seq., violations. At the trial's conclusion the jury found Willaman guilty on the superseding indictment. The court subsequently sentenced Willaman to a custodial term of 27 months to be followed by a three-year period of supervised release. Willaman timely appealed.

II. DISCUSSION

A. Second Amendment

Willaman first argues that 18 U.S.C. § 922 ("section 922") violates the Second Amendment, and that "Congress had no right to amend the Second Amendment merely by legislation," Reply Br. at 7. Thus, in his view, the district court should have dismissed the indictment and allowed him to make a jury nullification argument. We review the district court's order upholding the constitutionality of section 922 and refusing to dismiss the indictment or allow a jury nullification argument on a plenary basis. See United States v. Rybar, 103 F.3d 273, 275 (3d Cir.1996). We will not linger on this point inasmuch as a number of our cases, including Rybar in which we held that "this court has on several occasions emphasized that the Second Amendment furnishes no absolute right to firearms," 103 F.3d at 286, foreclose Willaman's Second Amendment arguments. Though Willaman argues that Rybar "is simply bad law," Reply Br. at 8, plainly it is binding on this panel. See Third Circuit I.O.P. 9.1.

B. Speedy Trial Act

Next, Willaman argues that he was denied the right to a speedy trial under 18 U.S.C. § 3161(c)(1) ("section 3161(c)(1)"), a section of the Speedy Trial Act. Willaman asserts that "[e]ven excluding the time of filing and ruling on pretrial motions," more than 100 days passed between his arraignment and the commencement of his trial, which exceeded the 70 days allowed under section 3161(c)(1). App. at 22. We exercise plenary review over the district court's application of the Speedy Trial Act. See United States v. Hamilton, 46 F.3d 271, 273 (3d Cir.1995).

The Speedy Trial Act provides that if a plea of not guilty is entered, the trial of a defendant charged in an information or indictment "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 the charge is pending, whichever date last occurs." Section 3161(c)(1); Gov't of Virgin Islands v. Duberry, 923 F.2d 317, 320 (3d Cir.1991). However, delay during the time between the filing of a pretrial motion "through the conclusion of the hearing on, or other prompt disposition of, such motion" is excluded from the computation of Speedy Trial Act time. Section 3161(h)(1)(F); see United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir.1993).

Inasmuch as Willaman did not appear before a judicial officer prior to his original indictment, his arraignment on May 17, 2004, at which time he pleaded not guilty, constituted his initial appearance for Speedy Trial Act purposes, and thus that appearance triggered the running of the Speedy Trial Act 70-day time period. Our conclusion on this point is in harmony with our opinion in United States v. Carrasquillo, 667 F.2d 382, 384 (3d Cir. 1981), in which we said that "[w]hen there is no [pre-indictment] appearance because an information or indictment is the first step in a criminal case, then post-indictment arraignment will be the relevant `last occurring' date." (emphasis added).³ We recognize that Willaman physically appeared before a magistrate judge on May 12, 2004, at which time she set bail, and we further recognize that section 3161(c)(1) indicates that the 70-day clock runs from the time the defendant "has appeared" before a judicial officer. Nevertheless, inasmuch as Willaman did not plead on May 12, 2004, the Speedy Trial clock did not begin to run until May 17, 2004, when he was arraigned and pleaded not guilty as Carrasquillo indicated that an arraignment triggers the running of the 70-day period. See also United States v. Zandi, 769 F.2d 229, 233 (4th Cir.1985) ("Since the appellants, in the instant case, appeared before a judicial officer after the date of the indictment, the dates of arraignment, and not the date of indictment, are relevant to our Speedy Trial inquiry.") (emphasis partially added); United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982) ("When a defendant is indicted prior to his arrest, the seventy-day pretrial period runs from the date of his arraignment.") (emphasis added). In this regard we point out that under Federal Rule of Criminal Procedure 10(a) an arraignment requires the court to ask "the defendant to plead to the indictment or information," an event that occurred here on May 17, 2004.

We have not overlooked the arguable anomaly in the distinction between the effect of a defendant's pre-indictment and post-indictment appearance under section 3161(c)(1). After all, under Carrasquillo a defendant's pre-indictment physical appearance before a magistrate-judge will constitute a defendant's "appearance before a judicial officer," 667 F.2d at 384, so that his subsequent indictment will trigger the running of the 70-day period even though he could not have pleaded before his indictment and thus could not have been arraigned at his appearance before his indictment.⁴ Yet under our result a post-indictment physical appearance will not trigger the running of the 70-day clock until the defendant pleads, or at least is asked to do so, because in the absence of that request he will not have been arraigned.

Nevertheless we are satisfied that the distinction is justified. As we indicated in Carrasquillo, the courts are required to treat an indictment of a defendant as the triggering event for running the clock under section 3161(c)(1) when a defendant has appeared before a judicial officer prior to indictment because otherwise "the date of an indictment could never be the date that `last occurs' under section 3161(c)(1)," 667 F.2d at 384, so that the choice of triggering events between when the defendant "has appeared" or is indicted would be superfluous. On the other hand, if the defendant has not physically appeared before a judicial officer prior to indictment, as is the case here, then the indictment never can be the triggering event under section 3161(c)(1). Consequently, a court has flexibility in determining what Congress meant when it used the words "has appeared" in a case in which a defendant's first appearance is after his indictment that a court could not have when the defendant physically has appeared before a judicial officer prior to his indictment.

We think that it is logical to hold that Congress intended when a defendant's first appearance before a judicial officer is after an indictment for purposes of section 3161(c)(1), the appearance must be an arraignment to trigger the 70-day period. That result is consistent with section 3161(c)(1) as the section, by its terms, is...