U.S. v. Williams, 98-8986

• Decision Date: 08 December 1999
• Docket Number: No. 98-8986,98-8986
• Citation: 197 F.3d 1091
• Parties: (11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Angelo Eugene WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1091

197 F.3d 1091 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee, v. Angelo Eugene WILLIAMS, Defendant-Appellant.

No. 98-8986.

United States Court of Appeals, Eleventh Circuit.

Dec. 8, 1999.

Appeal from the United States District Court for the Southern District of Georgia.(No. CR498-43), B. Avant Edenfield, Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS^*, Senior District Judge.

EDMONDSON, Circuit Judge:

Defendant Angelo Eugene Williams, under 18 U.S.C. 2244(a)(1), was convicted of abusive sexual contact in the territorial jurisdiction of the United States. We vacate the conviction and sentence and remand.

BACKGROUND

This case arises from an incident at the Hunter Army Airfield Youth Center ("Youth Center") in October 1997. At that time, Defendant was employed as a computer specialist at the Youth Center, a recreational facility for children living on the base. Defendant's duties included maintaining the Youth Center computer room and supervising children's use of the computers.

According to the Government's evidence at trial, Defendant engaged in abusive sexual contact with K.T., a ten year-old female, in the Youth Center computer room on October 14, 1997. The Government's evidence established that K.T. arrived at the Youth Center and that she went to the computer room. In the computer room, K.T., with Defendant's permission, seated herself at Defendant's computer terminal.

K.T. testified that, while sitting at Defendant's terminal, Defendant touched her leg and chest and asked her for a kiss. An Army investigator testified that K.T. told him that Defendant touched her chest, buttocks, and vaginal area. The Government also introduced a statement in which Defendant admitted that he rubbed the inside of K.T.'s leg, that he hugged her, that he touched her chest and buttocks, and that he asked her to kiss him.

At trial, Defendant testified that K.T. had indeed come to the computer room and that he had permitted her to use his computer. He testified, however, that after K.T. had used his computer for some time, he asked her to get up because he needed to use the computer. He stated that, as he instructed K.T. to leave his terminal, he rolled toward her in a roll-away chair, hitting her leg with his hand. K.T., according to Defendant, then moved away from the terminal, but later returned and attempted to use Defendant's computer again. Defendant said that he, at that point, grabbed K.T.'s shoulder and instructed her to leave his computer alone. Defendant testified that K.T. used another computer for some time and then left the computer room. Defendant admitted giving an incriminating statement to investigators, but he denied the statement was true, explaining that he caved in to the investigator's promise that he could "put this thing behind [him]" if he made a statement.

Defendant requested at trial that the district court give a lesser included offense jury instruction on simple assault (18 U.S.C. 113(a)(5)). The court refused to give the instruction, explaining that "[t]he evidence does not fit." Defendant was then convicted of violating 2244.

DISCUSSION

Defendant asserts five grounds for his appeal.¹ We find it necessary to address two of Defendant's contentions here. First, we address Defendant's claim that the Speedy Trial Act was violated in his case and, concluding that this claim has merit, vacate the conviction. Second, because the Government may seek to retry Defendant for this offense, we also address Defendant's claim that the district court erred in refusing to give an instruction on assault as a lesser included offense of abusive sexual contact.

1.THE SPEEDY TRIAL ACT

Defendant contends that the district court erred by denying his motion to dismiss the indictment under the Speedy Trial Act, 18 U.S.C. 3161 et seq.² In particular, Defendant argues that the district court, in finding that the seventy-day limitation had not been violated in Defendant's case, improperly excluded from its Speedy Trial Act calculation twenty days allowed for the filing of pretrial motions. We agree that these days were improperly excluded.³

The Speedy Trial Act provides that a defendant must be brought to trial within seventy days of the filing of his indictment, or his first appearance before a judicial officer, whichever is later. United States v. Davenport, 935 F.2d 1223, 1227 (11th Cir.1991). Certain periods, however, are excluded from the seventy-day limit. United States v. Schlei, 122 F.3d 944, 985 (11th Cir.1997). "Any period of delay resulting from other proceedings concerning the defendant" must be excluded from the seventy-day calculation. 18 U.S.C. 3161(h)(1).

In this case, the Magistrate Judge voluntarily ordered that all pretrial motions be filed no later than twenty days after the Defendant's arraignment.⁴ The district court excluded this twenty-day period from its Speedy Trial Act calculations. The Government urges that this exclusion was proper under 3161(h)(1) and our decision in United States v. Mejia, 82 F.3d 1032 (11th Cir.1996). We disagree.

In Mejia, we decided that, where a defendant moved for, and the court granted, an extension of time for filing additional pretrial motions, the district court properly excluded the extension period from Speedy Trial Act calculations. Id. at 1035-36. We reasoned that such an extension falls within 3161(h)(1)'s language about "[a]ny period of delay resulting from other proceedings concerning the defendant." Id. It does not follow from Mejia, however, that the twenty-day period in the instant case is excludable.⁵

Instead, we think that Mejia presented a case different from the present case. In Mejia, the defendant sought and obtained an extension of time in which to file his motions. Id. at 1035. Implicit in the term "extension" is the notion that the defendant sought additional time not normally permitted for the filing of motions. In other words, he sought to delay the forward progression of the proceedings. That an extension of time in which to file motions will work a delay in bringing the defendant to trial seems likely.

Here, on the other hand, there was no extension of time; twenty days after arraignment was the original deadline set by the court for filing pretrial motions. Moreover, twenty days after arraignment is, by local rule, the ordinary time allowed for the filing of motions in the Southern District of Georgia. See S.D. Ga. Local Criminal Rule 12.1. Therefore, even if the Magistrate by order had entered no deadline in this case, the parties would have had twenty days after the arraignment to prepare and to file their pretrial motions. In our view, such a routine time prescription is no "delay" in bringing the defendant to trial. To qualify as an excluded period under 3161(h)(1), the period must constitute a "delay." 18 U.S.C. 3161(h)(1).

Moreover, the twenty-day period in this case was hardly extraordinary or specifically-tailored to the needs of this case. It was not the result of a motion to enlarge the time to file motions. Instead, it was "based merely upon the entry of a standard scheduling order." See United States v. Hoslett, 998 F.2d 648, 656 (9th Cir.1993). An exclusion based on a case-specific determination that additional time is needed for the disposition of pretrial motions is one matter; an across-the board exclusion of twenty days in every case arising in a judicial district is quite another. See id. Therefore, Mejia does not control the outcome of this case.

Because our duty is to carry out the intent of Congress, we must look to the language of the statute itself. As noted previously, 3161(h)(1) requires a "delay" as a prerequisite to exclusion. On this record, we see no indication that the judge's setting of a deadline for the filing of motions worked a "delay" within the meaning of the statute.

We also look to the structure of the statute as a whole. The Speedy Trial Act makes allowance for the delay occasioned by the exigencies of particular cases. The automatic exclusions of 3161(h)(1)(A)-(J) take account of the delay that may result from an array of particular pretrial circumstances. In addition, 3161(h)(8)(A) excludes delay resulting from a continuance where the court specifically finds that the interests of justice furthered by the continuance outweigh the interests of the public and the defendant in a speedy trial. But, none of the exclusion provisions of the Act specifically address the situation in this case; and, they do not indicate, in our view, an intention on the part of Congress to allow for broad, across-the-board exclusions created by a district court's standard scheduling practices or local rule.⁶ See generally 18 U.S.C. 3161(h)(8)(C) (providing that no continuance "because of general congestion of the court's calendar" is excludable).

The twenty days allowed for the filing of pretrial motions were not properly excludable in this case.⁷ Therefore, more than seventy-at least eighty-one-non-excludable days elapsed between the Defendant's first appearance and the commencement of his trial. The trial court thus erred in denying Defendant's motion to dismiss the indictment under the Speedy Trial Act.

2.LESSER INCLUDED OFFENSE

Defendant also asserts, on appeal, that the district court erred in declining to instruct the jury on assault as a lesser included offense of abusive sexual contact. We agree. And, because the Government may re-indict and retry Defendant for abusive sexual contact, and because the pertinent evidence in a new trial may be like the evidence in this trial, we address the issue.

To establish that the district court erred in refusing to give the lesser included offense instruction, Defendant must satisfy a two-part test. First, he must show that the charged offense encompasses all of the elements of the lesser offense (the "elements" test). Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989). Second, he...