United States v. Smith
| Decision Date | 07 January 2013 |
| Docket Number | No. 11-5520,11-5520 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BOBBY DEANGELO SMITH, aka Bobby Nelson, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0018n.06
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
Before: BATCHELDER, Chief Circuit Judge, KEITH and MARTIN, Circuit Judges.
Defendant-Appellant Bobby Deangelo Smith contends that he was denied a speedy trial because numerous ends-of-justice continuances were granted without the requisite findings of fact, thus invalidating them. Although Smith is correct that the district court likely failed to make a sufficient record with respect to some continuances, there were multiple grounds for exclusion that are fatal to his claim for relief. We AFFIRM the district court's judgment.
The criminal charges against Smith arise out of an incident that occurred on June 3, 2008. Smith and his co-defendant and then-girlfriend, Regina Hinton, allegedly attempted to pass counterfeit Federal Reserve Notes ("FRNs") at retail stores in Memphis, Tennessee. Secret Service agents detained Smith and Hinton as they were leaving a local department store. The agents found a roll of FRNs in Smith's pocket, including some counterfeit notes.
At the Secret Service field office in Memphis, Smith and Hinton were questioned. Later that day, Hinton gave the Secret Service agents consent to search the apartment she said she shared with Smith. During the search, agents found a handgun and ammunition, which led to additional charges against Smith.
On June 4, 2008, a criminal complaint was filed against Defendant-Appellant Bobby Deangelo Smith for possessing counterfeit currency in violation of 18 U.S.C. § 472. Smith made an appearance that day in front of Magistrate Judge Tu Pham.1 Smith remained in continuous detention from June 4, 2008—the day of his initial appearance in court—until the end of his trial on December 3, 2010.
On June 26, 2008, a federal grand jury issued a ten-count indictment against Smith and his co-defendant Regina Hinton. The grand jury charged them both with four counts of aiding and abetting each other in the production of counterfeit FRNs and four counts of possessing and concealing counterfeit FRNs in violation of 18 U.S.C. §§ 471 and 472. Smith was also charged with two counts of being a felon in possession of a handgun and ammunition in violation of 18 U.S.C. § 922(g). On March 26, 2009, the Government filed a six-count superseding indictment against Smith and Hinton.2 A second superseding indictment was filed on June 23, 2009. Another defendant, Dannette Ross, and new charges were added.3 With her, charges of conspiracy to obstructjustice were brought against all three defendants. Smith was held for a total of 887 days between the date of the indictment and the start of his trial, which was November 30, 2010.
The district court granted numerous continuances in the case.4 For many of the continuance requests, the district court docket shows a minute entry followed by a written order. Almost all of the continuances were requested by Defendants for additional time to prepare. Days were also excluded for the unavailability of Smith's co-defendant, Hinton, while she was a fugitive.
Smith raised the Speedy Trial issue three times throughout the pretrial period. First, Smith filed a Motion Requesting Speedy Trial on March 2, 2009, which was denied because he filed the motion pro se while represented by counsel. Second, Smith filed a Motion for Review of Pretrial Detention Period Exceeding 90-Days and Request for Immediate Release pursuant to 18 U.S.C. § 3164. The denial of his second motion included a thorough analysis of the Speedy Trial issues under § 3161(h). Third, Smith filed a Motion for Dismissal of Indictment for Violation of the Speedy Trial Act on November 30, 2010, the eve of trial. The court denied his third motion as well. Smith filed an interlocutory appeal of the denial of his third motion, which was denied by this Court, No. 10-6516 (6th Cir. Mar. 18, 2011).
It is relevant to note that Smith has had multiple attorneys throughout the proceedings, contributing to the need for more time to prepare. The first three attorneys, in order of appearance, were Larry Fitzgerald, Bernard Weinman, and Marty B. McAfee. Attorney McAfee requested to withdraw when he became a witness to the fabrication of an affidavit involving his client Smith's case. Smith's fourth attorney was Stephen Leffler. Smith, however, chose to proceed pro se withAttorney Leffler as elbow counsel. On January 29, 2010, Attorney Leffler moved to withdraw as counsel, but the parties subsequently agreed to try to "work it out." Smith and Attorney Leffler ended up working throughout the trial together.
A jury trial was held on November 30, 2010. The jury returned a guilty verdict on Counts 1-8 of the second superseding indictment. Smith was sentenced to 252 months of imprisonment. On April 21, 2011, Smith filed a timely Notice of Appeal.
We review a district court's interpretation of the Speedy Trial Act de novo. United States v. Robinson, 887 F.2d 651, 656 (6th Cir. 1989). "The [district] court's factual findings under the Speedy Trial Act are reviewed for clear error." United States v. Nelson, 137 F.3d 1094, 1108 (9th Cir. 1998), cert. denied, 525 U.S. 901 (1998).
The district court's decision whether to grant a continuance under the Speedy Trial Act, however, is reviewed for an abuse of discretion. United States v. Monger, 879 F.2d 218, 221 (6th Cir. 1989) (internal citations omitted). Proof of actual prejudice is required to reverse the district court's decision. Id.
Smith argues that his right to a speedy trial was violated and a dismissal of his indictment is warranted. After a careful review of the record, we disagree.
Under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., in "any case in which a plea of not guilty is entered, the trial . . . shall commence within seventy days" from the later of (1) the "filing date" of the information or indictment or (2) a defendant's first appearance before a judicial officer, e.g. an arraignment. 18 U.S.C. § 3161(c)(1).
"Where, as is the case at bar, multiple defendants are charged together and no severance has been granted, one speedy trial clock governs." United States v. Cope, 312 F.3d 757, 776 (6th Cir. 2002) (citing 18 U.S.C. § 3161(h)(7)). "Moreover, the excludable delay of one defendant is also excluded for his codefendants." United States v. Sobh, 571 F.3d 600, 602 (6th Cir. 2009) (citing United States v. Blackmon, 874 F.2d 378, 380 (6th Cir. 2009)).
Smith argues that under the one-clock method, the speedy trial clock began to run on June 23, 2009—the date of the filing of the second superseding indictment. See Appellant's Br. 28-29. Neither the Government nor the district court addressed this issue.
Sixth Circuit precedent, however, establishes an even later clock restart date than what Smith concedes. It is true that the second superseding indictment against all three defendants, including the newly added Dannette Ross, was filed on June 23, 2009. As established by the Speedy Trial Act, however, the clock starts from the date of indictment or arraignment, whichever is later. 18 U.S.C. § 3161(c).
Here, each Defendant was arraigned on a different date. Ross was arraigned and entered a plea of not guilty on July 8, 2009. (R. 120.) Smith was arraigned on the second superseding indictment and entered a plea of not guilty on July 21, 2009. (R. 127.) Hinton was the last to be arraigned, on September 30, 2009. Accordingly, the speedy trial clock for Smith and his co-defendants, ran anew on September 30, 2009. This opinion, therefore, focuses on the time between the restart of the speedy trial clock and the trial—September 30, 2009 to November 30, 2010.
The 70-day period is subject to numerous exclusions. Courts are given discretion to accommodate delays for case-specific needs. Zedner v. United States, 547 U.S. 489, 499 (2006).Section 3161(h) identifies the types of delays that are excludable. Bloate v. United States, 130 S. Ct. 1345, 1351-52 (2010). Some exclusions are automatic; others require specific findings by the district court. Id.
Smith concedes to the following exclusions during the relevant period:
Appellant's Br. 21-23. The total number of days that Smith concedes were properly excluded is 286. Id. By Smith's count, there would be 140 non-excludable days left between September 30, 2009 and November 30, 2010. Smith's count, however, is not accurate.
1. Validity of the Ends-of-Justice Continuances
Smith argues that essentially all of the ends-of-justice continuances in this case should be held invalid. While Smith has shown that certain ends-of-justice continuances were likely invalid, there are ample valid exclusions that prevent him from succeeding on appeal.5
Smith's focus on appeal relates to § 3161(h)(7)(A), which provides:
Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under...
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