United States v. Grimes

• Decision Date: 21 December 2012
• Docket Number: No. 11–3702.,11–3702.
• Citation: 702 F.3d 460
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jeffrey J. GRIMES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

702 F.3d 460

UNITED STATES of America, Plaintiff–Appellee

v.Jeffrey J. GRIMES, Defendant–Appellant.

No. 11–3702.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 18, 2012.

Filed: Dec. 21, 2012.

Ronald A. Parsons, Jr., argued, Sioux Falls, SD, for appellant.

Heather Thompson, USA, argued, Rapid City, SD, for appellee.

Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Jeffrey Grimes appeals his conviction and sentence for nineteen counts based on stalking and his use of the mails and telephone for threatening and harassing communications. Grimes contends that the district court erred in several of its rulings, including the court's denials of his motions to dismiss based on the Speedy Trial Act (“STA”) and based on multiplicity. He also challenges his sentence. For the reasons stated below, we vacate the conviction on five counts but affirm as to the fourteen remaining counts and his sentence, except for five special assessments.

I. BACKGROUND

Grimes married Linda Kari Fall in 2007. In the summer of 2008, Fall brought Grimes to Bison, South Dakota, to meet her parents, Mark and Bernice Kari, and her brother and his wife, Dan and Marcie Kari (collectively “the Karis”). Unbeknownst to the Karis, Grimes had a long history of abusing Fall and threatening to hurt her family if she tried to leave him. During Grimes's and Fall's visit to Bison, the couple had an argument and Grimes left. After Grimes's departure, he made a series of harassing and threatening telephone calls to both Mark and Bernice Kari and to Dan and Marcie Kari. The messages included threats to the Karis and to Dan and Marcie Kari's young children. Even after the Karis obtained protection orders against Grimes, they continued to receive repeated hang-up telephone calls from him.

In January 2011, after Fall tried to end her relationship with Grimes, the calls to the Karis intensified. Marcie Kari's notes documenting the calls indicated that Grimes called the Kari residence and hung up at least eighty-three times between January 1 and 11, 2011, while phone company logs indicated that there might have been as many as 113 calls. Phone company records also indicated that Mark and Bernice Kari received 160 hang-up calls during the same period. Based on these hang-up calls, Grimes was charged with two counts of making repeated telephone calls in violation of 47 U.S.C. § 223(a)(1)(D) (the “subsection D offenses”)—one count for the series of calls made to Mark and Bernice Kari (Count 4) and the second count for the calls made to Dan and Marcie Kari (Count 5). In addition to the hang-up calls underlying the subsection D offenses, Dan and Marcie Kari also received a total of twenty-six voicemail messages from Grimes, with Grimes leaving several messages each day on January 4, 10, 11, 23, 24, and 25 (representing Counts 12–17, respectively). These messages included threats to embarrass Dan and Marcie Kari and ruin their reputation in the community. Each count charged Grimes with making repeated harassing communications in violationof 47 U.S.C. § 223(a)(1)(E) (the “subsection E offenses”).¹

After a federal arrest warrant was issued, Grimes was arrested in Virginia following a traffic violation. Grimes made his initial appearance in the Western District of Virginia on March 24, 2011. The U.S. Marshal Service then transported Grimes to South Dakota, where he was arraigned and entered a plea of not guilty to all counts on April 21, 2011. On June 15, 2011, Grimes filed a motion to dismiss his indictment pursuant to the STA, arguing that the STA's seventy-day period for the beginning of his trial began when he first appeared in the Western District of Virginia. The district court denied the motion, concluding that the relevant time period did not begin until Grimes was arraigned in South Dakota, where the indictment was pending.

At his jury trial in August 2011, Grimes moved at the close of the Government's case to dismiss the subsection D offense charged in Count 5 and the subsection E offenses charged in Counts 12–17 on the grounds of multiplicity. Grimes argued that the Count 5 subsection D offense and the subsection E offenses did not require the Government to prove different elements for each offense, a violation of the Double Jeopardy Clause. He also moved to dismiss Counts 12–17 as multiplicitous because the six days of messages involved only one course of conduct, not six separate courses of conduct as charged in the indictment. The district court denied the motion, and the jury ultimately found Grimes guilty on all nineteen counts. Grimes filed a renewed post-trial motion raising the same multiplicity arguments. The district court again denied the motion.

At sentencing, the district court concluded that Grimes had two prior qualifying felony convictions, making him a career offender under the United States Sentencing Guidelines. SeeU.S.S.G. § 4B1.1. The district court decided to impose a sentence above the advisory guidelines range of 140 to 175 months based on an upward departure or, alternatively, on an upward variance. As a result, the district court sentenced Grimes to 24 months each on Counts 1–3 to run concurrently with each other but consecutively with the concurrent 24 month sentences on each of Counts 4–17. The district court also sentenced Grimes to 120 months each on Counts 18 and 19 to run consecutively to each other and to Counts 1–17, for a total prison term of 288 months. The district court also imposed a special assessment of $100 for each count, for a total assessment of $1,900.

On appeal, Grimes argues that the district court erred in denying his motion to dismiss under the STA and in denying his motions to dismiss based on multiplicity. Grimes also alleges that the district court erred in imposing his sentence by improperly classifying him as a career offender, by failing to consider his military service and associated mental health issues, and by imposing a substantively unreasonable sentence.

II. DISCUSSIONA. Speedy Trial Act

Grimes argues that the district court erred in denying his motion to dismiss pursuant to the STA because the time between his appearance in the court in which the charges against him were pending and the start of his trial exceeded the seventy days permitted by the STA. The STA provides that:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense 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 such charge is pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1) (emphasis added).

Grimes argues that the phrase “the court in which such charge is pending” means all federal courts of the United States. Under this interpretation, Grimes argues that the STA's seventy-day time period began to accrue when he made his initial appearance in the Western District of Virginia on March 24, 2011, and therefore eighty days had elapsed when he filed his motion to dismiss under the STA. However, the district court held that the clock started on April 21, 2011, when Grimes was arraigned in the District of South Dakota where the indictment was filed and pending.

We review a district court's legal conclusions on a motion to dismiss de novo. United States v. Howell, 531 F.3d 621, 622 (8th Cir.2008). We previously addressed a similar issue involving the phrase “the court in which such charge is pending” in United States v. Thirion, 813 F.2d 146 (8th Cir.1987). In Thirion, the defendant was arrested in Monaco and held at the request of the United States for nearly three months before being extradited to the United States. Id. at 153. In concluding that the STA had not been violated, we said that “Thirion's statutory right to a speedy trial did not accrue until he appeared before a judicial officer of the District of South Dakota,” the district court in which Thirion's case was pending. Id. Although this language suggests that Grimes's interpretation is incorrect, we did not address explicitly in Thirion the situation here where a defendant makes his initial appearance in a federal district court other than where the indictment is pending.

When interpreting a statute, we start with its plain language. United States v. Talley, 16 F.3d 972, 975 (8th Cir.1994). Looking to the text of the STA, then, Congress's use of the definite article “the” followed by the singular noun “court” suggests that the phrase “the court” refers to a single district court, rather than all ninety-four district courts that make up the federal court system. This plain reading is consistent with Rule 20 of the Federal Rules of Criminal Procedure, which sets forth the circumstances under which “[a] prosecution may be transferred to the district where the indictment or information is pending, or from which a warrant on a complaint has been issued, to the district where the defendant is arrested, held, or present.” Fed.R.Crim.P. 20. If Grimes's reading of the STA were correct, Rule 20 would be superfluous—there would be no reason to transfer prosecution from one district to another because the indictment or information already would be pending in all federal districts simultaneously. Further, this conclusion is consistent with the other circuits that have addressed this issue and concluded that the STA time period does not begin to accrue until a defendant appears in the particular district court in which the charges against him are pending. See United States v. Palomba, 31 F.3d 1456, 1461–62 (9th Cir.1994); United States v. O'Bryant, 775 F.2d 1528, 1531 (11th Cir.1985).

Because we conclude that “the court in which such charge is pending” was solely the District of South Dakota, the relevant period for STA purposes did not begin to accrue until...