United States v. Mallett

• Decision Date: 15 May 2014
• Docket Number: 13–2060.,Nos. 13–2059,s. 13–2059
• Citation: 751 F.3d 907
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Christopher MALLETT, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Guy E. Allen, also known as Pickle, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

751 F.3d 907

UNITED STATES of America, Plaintiff–Appellee

v.Christopher MALLETT, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Guy E. Allen, also known as Pickle, Defendant–Appellant.

Nos. 13–2059, 13–2060.

United States Court of Appeals,

Eighth Circuit.

Submitted: Dec. 18, 2013.

Filed: May 15, 2014.

Jessica L. Milburn, argued, Lincoln, NE, for Appellant Mallett.

Gregory C. Damman, argued, Seward, NE, for Appellant Allen.

Bruce Gillan, AUSA, argued, Lincoln, NE, for Appellee.

Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Guy E. Allen and Christopher Mallett (who were sometimes referred to as “Pickle” and “Beans,” respectively) each of conspiring to distribute 280 grams or more of cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Allen appeals his conviction, arguing the prosecution violated his constitutional and statutory rights to a speedy trial and the evidence was insufficient to support his conviction. Mallett appeals his conviction, raising severance issues and arguing the district court ¹ erred in denying Mallett's motion for judgment of acquittal and overruling Mallett's objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

On August 24, 2011, a grand jury indicted Allen for one count of conspiracy to distribute 280 grams or more of crack cocaine. Superseding indictments added Terrelle L. Tyler and Mallett as co-defendants to the existing conspiracy charge.

A few weeks after the defendants were arraigned on the second superseding indictment, Tyler changed his plea to guilty. During Tyler's plea process, Mallett moved to sever his trial from Allen's, which the magistrate judge ² denied. Following the denial, Allen moved to dismiss the second superseding indictment, citing violations of Allen's rights under the Speedy Trial Act of 1974(STA), 18 U.S.C. § 3161 et seq., and right to speedy trial under the Sixth Amendment. Adopting the magistrate judge's findings and recommendation, the district court denied the motion on January 17, 2013.

Mallett's and Allen's jury trial began on January 22, 2013. During jury selection, Mallett raised a Batson objection to the government's use of a peremptory challenge to strike a young African–American woman from the venire. The district court accepted the government's explanation as race neutral and overruled Mallett's objection.

At trial, ten witnesses, including police officers who had been operating undercover, testified about instances where Allen or Mallett sold crack cocaine, often by either delivering the drug to a certain address or by selling out of a customer's house or apartment. Several witnesses testified Allen, Mallett, and Tyler often sold crack cocaine together, either in pairs or as a group, and often cooperated in making sales. At the close of the government's evidence and again after the close of the defendants' evidence, both Allen and Mallett moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). The district court denied both motions. On February 1, 2013, the jury found both defendants guilty of conspiracy to distribute 280 grams or more of crack cocaine. Following sentencing, both Allen and Mallett timely appealed.

II. DISCUSSIONA. Allen's Speedy Trial Rights

Allen argues the district court erred in denying his October 25, 2012, motion to dismiss for violations of his speedy trial rights under both the STA and the Sixth Amendment. Our discussion addresses only the facts pertinent to each argument.

1. Speedy Trial Act

“In the context of Speedy Trial Act rulings, we review a district court's legal conclusions de novo, its factual findings for clear error, and its ultimate determination for an abuse of discretion.” United States v. Porchay, 651 F.3d 930, 935 (8th Cir.2011). “Under the Speedy Trial Act, a defendant must be brought to trial within 70 days of his indictment or first appearance, whichever is later.” United States v. Suarez–Perez, 484 F.3d 537, 540 (8th Cir.2007); see18 U.S.C. § 3161(c)(1). This seventy-day countdown automatically excludes “[a]ny period of delay resulting from other proceedings concerning the defendant,” 18 U.S.C. § 3161(h)(1), including any “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,” id. § 3161(h)(1)(D).³ “ ‘[E]xclusions of time attributable to one defendant apply to all codefendants.’ ” United States v. Arrellano–Garcia, 471 F.3d 897, 900 (8th Cir.2006) (quoting United States v. Patterson, 140 F.3d 767, 772 (8th Cir.1998)).

The magistrate judge found fifty-three non-excluded days had accrued to Allen's STA clock, which was well under the STA's seventy-day limit. See18 U.S.C. § 3161(c)(1). The district court adopted this calculation and denied Allen's motion. On appeal, Allen leaves this calculation unchallenged except to argue that it improperly excluded two periods from his STA clock: (1) a thirteen-day period running from July 4, 2012, through July 16, 2012, and (2) a seven-day period running from July 20, 2012, through July 26, 2012.⁴ Because we conclude the seven-day period was properly excluded, thereby fitting Allen's trial within the seventy-day window, we need not address Allen's argument as to the thirteen-day period.

The magistrate judge entered an order on July 20, 2012, scheduling Tyler's change of plea hearing for July 26, 2012. The order explained that Tyler “has requested to set a change of plea hearing.” There is no dispute as to whether Tyler in fact made the request, though the record shows nothing was filed with the court on July 20, 2012. On July 26, 2012, the hearing proceeded as scheduled, and the magistrate judge recommended the district court accept Tyler's guilty plea.

In the past, we said a defendant's STA clock excludes the period between the district court's order setting a plea hearing and the date of the hearing because this period fits § 3161(h)(1)'s opening language excluding “proceedings concerning the defendant,” 18 U.S.C. § 3161(h)(1). See Arrellano–Garcia, 471 F.3d at 900. However, in Bloate v. United States, 559 U.S. 196, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010), the Supreme Court limited § 3161(h)(1)'s opening language. The Court held that a period of delay “governed by” one of § 3161(h)(1)'s subparagraphs is only automatically excludable—i.e., excludable without an ends-of-justice continuance under § 3161(h)(7)—to the extent permitted by the specific language and limitations of the governing subparagraph. Id. at 207–10, 130 S.Ct. 1345. For example, subparagraph (D) governs all “delay resulting from any pretrial motion,” meaning a period of pretrial motion-related delay is automatically excludable only “from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,” 18 U.S.C. § 3161(h)(1)(D). See Bloate, 559 U.S. at 204–07, 130 S.Ct. 1345. If the delay is governed by subparagraph (D) but fails to meet its requirements, the opening language of (h)(1) cannot operate as a backstop. See id. at 209, 130 S.Ct. 1345. Thus, before applying § 3161(h)(1)'s opening language, as we did in Arrellano–Garcia, we must examine the possible governing subparagraphs and their limitations on exclusion. We need look no further than subparagraph (D).

Relying on our precedent in Bloate II, Allen argues Tyler's July 20, 2012, request for a change of plea hearing is not a “motion” within the meaning of subparagraph (D). We understand Allen to assert that the period between July 20, 2012, and July 26, 2012, was pretrial motion-related delay—i.e., delay governed by subparagraph (D)—whose STA exclusion was prohibited because there was no “filing of [a] motion” to commence subparagraph (D)'s excludable period, 18 U.S.C. § 3161(h)(1)(D). See Bloate II, 655 F.3d at 755–57 (deciding subparagraph (D) governed the delay attributable to defendant's “motion for leave to waive his right to file pretrial motions,” but this period was not excluded because the filing was not a “motion”).

Unlike the filing in Bloate II, Tyler's request “appear[ed] to be a motion.” 655 F.3d at 755.⁵ In Bloate II we explained the defendant's waiver did not “contain[ ] a request for relief that require[d] court intervention” and there was no authority suggesting “a defendant needs the permission of the court to waive the right to file pretrial motions ..., or that a court is required to find whether any waiver is knowing and voluntary.” Id. at 756. For Tyler to plead guilty, Rule 11 of the Federal Rules of Criminal Procedure required the district court to conduct a hearing in open court to determine whether a factual basis supported the plea and whether Tyler's plea was voluntary and made with full knowledge of the consequences. SeeFed.R.Crim.P. 11(b). Tyler's request triggered this necessary hearing and ultimate acceptance of his plea. See id.

We reiterate that “motion” cannot be defined “so broad[ly] that any filing can be deemed a motion,” but we also repeat that a “party's submission—whether express or implied, formal or informal—can be considered a ‘motion’ for Speedy Trial Act purposes if it contains a request for relief that requires court intervention.” Bloate II, 655 F.3d at 756–57. Though Tyler's request “to set a change of plea hearing” was informal, it plainly asked the district court to intervene by scheduling and conducting a change of plea hearing. Other circuits describe a defendant's notice of change of plea as a “motion” for purposes of subparagraph (D). See, e.g., United States v. Loughrin, 710 F.3d 1111, 1120 (10th Cir.2013), cert. granted,––– U.S. ––––, 134 S.Ct. 822, 187 L.Ed.2d 623 (2013)⁶; United States v. Mensah–Yawson, 489 Fed.Appx. 606, 609–10 (3d Cir.2012) (unpublished); United States v. Jenkins, 92 F.3d...