U.S. v. Williams

• Decision Date: 20 December 2007
• Docket Number: No. 06-5036.,06-5036.
• Citation: 511 F.3d 1044
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Demarco Deon WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

511 F.3d 1044

UNITED STATES of America, Plaintiff-Appellee, v. Demarco Deon WILLIAMS, Defendant-Appellant.

No. 06-5036.

United States Court of Appeals, Tenth Circuit.

December 20, 2007.

Fred Randolph Lynn, Tulsa, OK, for Defendant-Appellant.

Joseph F. Wilson, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before KELLY, MURPHY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

This case requires us to dismiss a criminal indictment because of the failure to comply with the requirements of the Speedy Trial Act of 1974 (the "Act"), 18 U.S.C. § 3161 et seq.

Following a jury trial, Defendant-Appellant DeMarco Deon Williams was convicted of two counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii); one count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(2); and one count of possession of a firearm after a prior felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pursuant to a sentencing enhancement information filed by the government under 21 U.S.C. § 851(a)(1), Mr. Williams was sentenced to mandatory life in prison without the possibility of parole due to his three prior state felony drug convictions. Mr. Williams now appeals his conviction and sentence on numerous grounds, including a violation of the Act.

We have jurisdiction under 28 U.S.C. § 1291. Because we REVERSE and REMAND for a violation of the Act, we do not address Mr. Williams's other grounds for appeal.

I. BACKGROUND

Mr. Williams was charged by indictment on October 7, 2004, and entered his first appearance on October 19, 2004. More than a year elapsed before his jury trial began on October 24, 2005. During this period, Mr. Williams filed numerous pretrial motions and, because he "experienced difficulty finding a lawyer with whom he could get along," changed counsel five times. Aplt.'s Br. at 3.

On November 19, 2004, Mr. Williams moved for a continuance citing the need of his new counsel to "become familiar with the case." Dist. Ct. Doc. 22, at 1.¹ The district court granted the continuance during a November 22, 2004 hearing. Accordingly, the district court rescheduled the trial from December 6, 2004 to February 7, 2005 and excluded the intervening sixty-three days for purposes of the Act.

Subsequently, on January 18, 2005, after Mr. Williams changed counsel again, the district court sua sponte granted an ends-of-justice continuance noting, "the jury trial of this matter is continued and the period of time occasioned by this delay from: 2/7/05 to 2/14/05 is excludable pursuant to [18] U.S.C. Sec. 3161(h)(8)(A)." Dist. Ct. Doc. 33 (Amended Scheduling Order, dated January 18, 2005).

On February 14, 2005, Mr. Williams filed a signed Speedy Trial Act Waiver "freely and voluntarily" waiving his rights to a speedy trial and agreeing "that the dates for the pretrial conference and the trial be continued in order to allow time [ ] for new counsel to enter the case and prepare for trial or seek another resolution of the pending charges." Dist. Ct. Doc. 37, at 1 (Waiver of Speedy Trial, dated February 14, 2005). Further, the waiver stated that Mr. Williams had "no objection to this Court ordering that all delays resulting from this continuance be excluded under the Speedy Trial Act and that the ends of justice served by the continuance outweigh the interests of the public and Mr. Williams in a speedy trial." Id.

Subsequently, on July 19, 2005, the district court issued a summary order stating that the "jury trial of this matter is RESET and the period of time occasioned by this delay from: 2/14/05 to 9/12/05 is excludable pursuant to [18] U.S.C. § 3161(h)(8)(A)." Dist. Ct. Doc. 47 (Scheduling Order for Jury Trial, dated June 19, 2005).

On September 9, 2005, Mr. Williams moved to dismiss the case on speedy trial grounds arguing that he had been incarcerated for eleven months without trial. Mr. Williams claimed that he intended to waive only the period of time until he obtained new counsel and not until his new counsel was ready to proceed to trial. After holding a hearing on September 13, 2005, however, the district court found that Mr. Williams had waived his right to a speedy trial and denied his motion to dismiss.

Mr. Williams's jury trial commenced on October 24, 2005. He was subsequently convicted on all counts and sentenced to life in prison. Mr. Williams timely filed this appeal.

II. DISCUSSION

A. Standards

The Act generally requires a federal criminal trial to begin within seventy days from the filing of an information or indictment, or from the date of the defendant's initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). The Act serves two distinct interests: (1) to protect a defendant's right to a speedy indictment and trial, and (2) to serve the public interest in ensuring prompt criminal prosecutions. Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 1985, 164 L.Ed.2d 749 (2006) (emphasizing that Act intended not only to protect defendant's right to speedy trial, but also "designed with the public interest firmly in mind"); United States v. Vogl, 374 F.3d 976, 982 (10th Cir.2004). In balancing these two often-competing interests, the Act provides a detailed scheme under which a number of specified intervals are excluded from the seventy-day computation, thus tolling the speedy trial calendar. See 18 U.S.C. § 3161(h).

The statutory provisions most relevant to this case exclude time based upon the filing of pretrial motions, and for continuances filed in furtherance of the ends of justice. Specifically, 18 U.S.C. § 3161(h)(1)(F) provides for the exclusion of periods of "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." Section 3161(h)(1)(J) further defines the parameters of subsection (F) by excluding periods of "delay reasonably attributable to any period not exceeding thirty days, during which any proceeding concerning the defendant is actually under advisement by the court."

In Henderson v. United States, 476 U.S. 321, 329, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the Supreme Court interpreted subsection (F) and explicated its interplay with subsection (J):

Subsection (F), written in the disjunctive, excludes time in two situations. The first arises when a pretrial motion requires a hearing: subsection (F) on its face excludes the entire period between the filing of the motion and the conclusion of the hearing. The second situation concerns motions that require no hearing and that result in a "prompt disposition." There, the promptness requirement was "intended to provide a point at which time will cease to be excluded, where motions are decided on the papers filed without hearing." S.Rep. No. 96-212, at 34. The "point at which time will cease to be excluded" is identified by subsection (J), which permits an exclusion of 30 days from the time a motion is actually "under advisement" by the court. Without the promptness requirement in subsection (F), a court could exclude time beyond subsection (J)'s 30-day "under advisement" provision simply by designating the additional period as time "from the filing of the motion" through its "disposition" under subsection (F).

Id. Therefore, if a motion is one that does not require a hearing, the Act excludes time through the period of its prompt disposition, but only if that period does not exceed thirty days from the date the motion is taken under advisement. See, e.g., United States v. Willie, 941 F.2d 1384, 1387 (10th Cir.1991). After the thirty-day period lapses, the pendency of the motion, without more, will not act to exclude time. See, e.g., United States v. Pasquale, 25 F.3d 948, 950-51 (10th Cir.1994).²

The Act also permits a district court to grant a continuance and to exclude the resulting interlude if it finds, on the record, that the ends of justice served by granting the continuance outweigh the interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(8).³ This provision affords a trial court substantial discretion to accommodate periods of delay to address the specific needs of a particular case. Zedner, 126 S.Ct. at 1984. However, ends-of-justice continuances should not be granted cavalierly. See United States v. Doran, 882 F.2d 1511, 1515 (10th Cir.1989) (observing that such continuances were "meant to be a rarely used tool" (internal quotation marks omitted) (quoting United States v. Tunnessen, 763 F.2d 74, 76 (2d Cir.1985))).

The sanction for violation of the Act is mandatory dismissal of the indictment. 18 U.S.C. § 3162(a)(2). However, the district court retains "broad discretion whether to dismiss the indictment with or without prejudice." United States v. Abdush-Shakur, 465 F.3d 458, 462 (10th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1321, 167 L.Ed.2d 130 (2007). When an indictment is dismissed without prejudice, the prosecution may seek a new indictment within six calendar months of the date of the dismissal, even if the period prescribed by the applicable statute of limitations has expired. 18 U.S.C. § 3288.

Compliance with the Act's requirements presents an issue of law which we review de novo. Abdush-Shakur, 465 F.3d at 461. We review the district court's underlying factual findings for clear error. Id. Finally, we review the district court's decision to grant an ends-of-justice continuance for abuse of discretion. See United States. v. Gonzales, 137 F.3d 1431, 1433 (10th Cir.1998).

In this case, the speedy trial clock began to run on October 19, 2004, when Mr Williams made his initial appearance. By September 13, 2005, when the district court denied Mr. Williams's Motion to Dismiss based on speedy trial grounds, 330 days had elapsed. By the time Mr....