U.S. v. Wragge, 88-3796

• Decision Date: 07 February 1990
• Docket Number: No. 88-3796,88-3796
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael Paul WRAGGE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1296

893 F.2d 1296

UNITED STATES of America, Plaintiff-Appellant, v. Michael Paul WRAGGE, Defendant-Appellee.

No. 88-3796.

United States Court of Appeals Eleventh Circuit.

Feb. 7, 1990.

Patty Stemler, Appellate Section, Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Ray Dvorak, Asst. Federal Public Defender, Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, VANCE ^*, Circuit Judge and PITTMAN ^**, Senior District Judge.

PER CURIAM:

Michael Paul Wragge, appellee, was indicted on February 5, 1979, on two counts of assaulting federal agents with a handgun in violation of 18 U.S.C. Secs. 111, 1114 (1976). On August 24, 1988, the district court dismissed the indictment, holding that Wragge's sixth amendment right to a speedy trial had been violated. The Government appealed that dismissal. We vacate the district court's judgment and remand for further factfinding.

I.

On January 24, 1979, while on duty in the Federal Building in Tampa, Florida, Officer Robert Timberlake of the Federal Protective Service was killed by Wragge. During a struggle in one of the building's elevators, Wragge disarmed Officer Timberlake and mortally wounded him with his own gun. While the two men struggled, the elevator traveled to several floors. As the elevator doors opened on the third floor, Special Agent John Keller of the United States Customs Service ordered Wragge to drop the weapon. Wragge fired one shot at Keller, and Keller returned fire as the doors closed. The elevator then descended to the first floor where it was manually turned off and its doors were locked in an open position. Several FBI agents and three Tampa police officers had taken up position in the first-floor lobby. Wragge was told that if he dropped his weapon, he would not be harmed. In response, Wragge pointed his gun at an officer. The officer fired one shot at Wragge, and Wragge fired a shot in return. The police officers and FBI agent Lawrence Curtain then fired twelve shots at Wragge, striking him four times.

Wragge was arrested, and on February 14, 1979, the Hillsborough County Grand Jury indicted him on charges of first degree murder, four counts of attempted first degree murder, and five counts of aggravated assault. Previously, on February 5, 1979, a federal grand jury had indicted Wragge on charges of assaulting Customs Service agent John Keller and FBI agent Lawrence Curtain. On May 14, 1979, the Hillsborough County Circuit Court found Wragge mentally incompetent to stand trial and committed him to the Florida Health and Rehabilitative Service. A federal detainer was lodged against Wragge with the Hillsborough County Sheriff's Office on January 20, 1980. Apparently, another federal detainer against Wragge had been lodged with the Hillsborough County Jail the preceding year. The record indicates that Wragge did not receive notice of either of these detainers.

On May 9, 1980, the Federal Public Defender was appointed to defend Wragge against the federal charges and has represented him throughout this appeal. The Government attempted to arraign Wragge on the federal charges on May 15, 1980, but was unable to do so due to Wragge's continuing incompetence.

On July 18, 1980, the Hillsborough County Circuit Court declared Wragge competent to stand trial on the state charges and ordered his return to the Hillsborough County Jail. Pursuant to a plea agreement, the circuit court, on April 2, 1981, found Wragge not guilty by reason of insanity on the first degree murder charge. Wragge pled nolo contendere to four of the remaining counts and received prison sentences totaling twenty years. The remaining state charges were dismissed. Because Wragge was found not guilty by reason of insanity, the circuit court committed him to the Department of Health and Rehabilitative Services for involuntary hospitalization on July 2, 1981.

Two more federal detainers were lodged against Wragge with the Florida Department of Corrections on July 9, 1981 and on February 16, 1982. The record indicates that Wragge received a copy of the July 9, 1981 detainer on June 29, 1982, but on February 18, 1982, he had been recommitted to the Department of Health and Rehabilitative Services after being found mentally ill and a danger to himself and others. ¹ Wragge received no notice of the February 16, 1982 detainer. A fifth detainer was lodged against Wragge with the Department of Offender Rehabilitation on August 3, 1983. The record shows that Wragge received this detainer, which informed him of his right to speedy trial, on February 8, 1988.

In July 1984, the state circuit court found Wragge mentally competent to begin serving his twenty-year prison sentence and transferred him to the custody of the Florida Department of Corrections. On March 15, 1985, an Assistant United States Attorney contacted the Florida Parole and Probation Commission and requested that it inform Wragge of the outstanding federal detainer filed in Tampa and of his right to demand trial on the federal charges. During an interview with Wragge on March 29, 1985, Patricia Sanford, an examiner for the Florida Probation and Parole Commission, advised Wragge of the federal detainer filed against him in Tampa, Florida. The record is silent as to whether Ms. Sanford informed Wragge of his right to demand trial.

Almost three years passed with neither the Government nor Wragge or his counsel doing anything to bring the case to trial. On January 21, 1988, Ms. Lee Arnold, of the Polk Correctional Facility, contacted the United States Marshals Service in Tampa on Wragge's behalf and requested a form known as "USM-17, Notification Requirements--Speedy Trial Act." Wragge received this form on February 8, 1988, the same day he received the August 3, 1983 detainer, and, for the first time, demanded his right to a speedy trial. A writ of habeas corpus ad prosequendum was issued, and Wragge was arraigned on March 31, 1988. Trial was set for May 1988 but was continued at Wragge's request until September 1988. On May 11, Wragge filed a motion to dismiss the federal indictment, arguing that his sixth amendment right to a speedy trial had been violated. He specifically alleged that the delay of over nine years between his indictment and his first scheduled trial was inexcusable and severely prejudiced his ability to defend against the charges contained in the indictment.

After an oral hearing, the district court granted Wragge's motion to dismiss without prejudice. The court stated that, for the purposes of the motion, it accepted the Government's contention that Wragge could not have been tried on the federal charges until March 1985. The district court then applied the four-factor test announced in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), ² and held that Wragge's sixth amendment right to a speedy trial had been violated. The court found that three of the four factors--length of delay, reason for the delay, and assertion of the right--weighed against the Government. The court found that Wragge's assertion of his right weighed against the Government because Wragge "asserted his speedy trial right when he first learned of it, in February 1988." Relying on United States v. Dennard, 722 F.2d 1510, 1513 (11th Cir.1984), the court held that, because the first three factors weighed against the Government, it did not need to determine whether Wragge was actually prejudiced by the delay. Nevertheless, the court found that, despite the delay, Wragge would still be able adequately to present an incompetency defense. ³

We think that the district court applied the appropriate legal test and that its findings of fact were not clearly erroneous. ⁴ The court's finding on when Wragge asserted his speedy-trial right, however, is so cursory that we are unable to exercise effective and meaningful appellate review. We therefore vacate the district court's judgment and remand for further factfinding on the issue of when Wragge first learned of his right to demand a trial by jury.

II.

The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. When the Supreme Court articulated the now familiar Barker test to determine whether a defendant's sixth amendment right to a speedy trial has been denied, see 407 U.S. at 530, 92 S.Ct. at 2192, the Court was careful to note that none of the four factors was either necessary or sufficient to support a finding that a defendant's speedy-trial right had been violated, see id. at 533, 92 S.Ct. at 2193. The Court did emphasize, however, "that failure [of a defendant] to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532, 92 S.Ct. at 2193.

Because Wragge's demand for, failure to demand, a jury trial during the alleged delay can significantly impact the balance of the Barker factors, we must know exactly when Wragge was made aware of his right to demand a jury trial. The district court found that "the defendant asserted his speedy trial right when he first learned of it, in February 1988." Nothing in the record directly and substantially contradicts the court's finding on this issue. Therefore, we cannot conclude that the district court's finding was clearly erroneous. ⁵

Ordinarily, we would accept the court's finding and evaluate its other findings to determine whether it properly balanced the four Barker factors. In this case, however, we are not willing to accept, for the purpose of balancing the four factors, the court's finding that Wragge did not delay in asserting his speedy-trial right. ⁶ Holding that a district court's finding of fact is clearly erroneous does not provide the only basis for refusing to accept that finding. We may also refuse to accept those district court findings that are...