US v. Turner

• Decision Date: 19 March 2010
• Docket Number: No. 07-3481.,07-3481.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Markeith TURNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

602 F.3d 778

UNITED STATES of America, Plaintiff-Appellee, v. Markeith TURNER, Defendant-Appellant.

No. 07-3481.

United States Court of Appeals, Sixth Circuit.

Argued: November 30, 2009.

Decided and Filed: March 19, 2010.

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ARGUED: Saber W. VanDetta, Squire, Sanders & Dempsey L.L.P., Cleveland, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Saber W. VanDetta, J. Philip Calabrese, Bruce A. Khula, Squire, Sanders & Dempsey L.L.P., Cleveland, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before GUY, SUTTON and GRIFFIN, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Markeith Turner challenges his convictions for seven drug- and gun-related crimes and the sentence that followed. Because Turner's indictment on two counts took longer than the Speedy Trial Act allows, we reverse these two convictions but otherwise affirm the remaining five convictions. We also vacate his sentence and remand to the district court for resentencing.

I.

After hearing gunshots on the evening of February 11, 2005, Officer Jason Rees of the Cincinnati Police Department rushed on foot toward the sound. Along the way, Rees noticed Markeith Turner, who had been walking toward him but changed directions and started walking in the opposite direction when he saw Rees. Rees followed Turner into a building, where Turner climbed the stairs, turned down a hallway and started banging on a door at the end of the hallway. "Let me see your hands," Rees ordered, and Turner complied, after which Rees handcuffed him. Trial Tr. at 2-81.

Meanwhile, Officer Kenneth Kilgore caught up with Rees and Turner, and found a handgun and what turned out to be crack cocaine and heroin lying on the floor where Turner had stood. Searching Turner, Kilgore found eight bullets wrapped in a handkerchief in his back pocket. At the station, Turner admitted that he had been holding the drugs— though for someone else, not for himself— and that he had fired the gun because "he had seen some drug dealers drive by and it made him paranoid" and he had hoped to "scare them out of the area." Id. at 2-25.

In April 2005, the United States charged Turner by complaint with being a felon in possession of a firearm and being a felon in possession of ammunition. See 18 U.S.C. § 922(g). After a lengthy examination to determine his competency, Turner was indicted for, then went to trial on, these two counts plus eight more: possession of a handgun in a school zone, see 18 U.S.C. § 922(q)(2)(A), possession with intent to distribute crack cocaine and heroin, see 21 U.S.C. § 841(a)(1), (b)(1)(C), being a fugitive in possession of a firearm and in possession of ammunition, see 18 U.S.C. § 922(g), being a person under indictment in possession of a firearm and in possession of ammunition, see id. § 922(n), and discharging a firearm during a drug-trafficking crime, see id. § 924(c)(1)(A)(i), (iii).

The jury convicted Turner on all counts save for possession with intent to distribute crack cocaine, and the district court dismissed the two fugitive-in-possession counts for lack of admissible evidence on his fugitive status. The court sentenced him to 382 months on the remaining seven counts.

II.

Turner first argues that the government's delay in indicting him requires us to dismiss two of the charges. The government allowed too much time to pass, he maintains, between his arrest on June 1, 2005, and his indictment on January 18, 2006, breaching its obligation under the indictment prong of the Speedy Trial Act. See 18 U.S.C. § 3161(b).

Under the Act, the government has thirty days to indict an individual after arresting him, see id., though the Act contains many exclusions. Two matter here. One excludes "delay resulting from any proceeding, including any examinations, to determine the mental competency . . . of the defendant." Id. § 3161(h)(1)(A). The other excludes

delay resulting from transportation of any defendant . . . to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date of an order of removal or an order directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable.

Id. § 3161(h)(1)(F).

In this case, the district court excluded "the entire delay" between the request for a competency evaluation and the competency hearing, reasoning that the competency examination exclusion of § 3161(h)(1)(A) trumped the ten-day limit on transportation time of § 3161(h)(1)(F). R.31 at 7. The court reached this conclusion because it believed—quite reasonably —that United States v. Murphy, 241 F.3d 447 (6th Cir.2001), required as much.

After the district court relied on Murphy for this point, this court determined that the relevant language in Murphy was dictum, holding instead that any "delay in transporting a defendant to a mental competency examination beyond the ten day limit imposed by § 3161(h)(1)(F) is presumptively unreasonable, and in the absence of rebutting evidence to explain the additional delay, this extra time is not excludable." United States v. Tinklenberg, 579 F.3d 589, 596 n. 2 (6th Cir.2009). Tinklenberg reasoned that the alternative interpretation—one that would exclude transportation time under § 3161(h)(1)(A) but not limit it under § 3161(h)(1)(F)— would effectively read the latter provision out of the statute. Id. at 596; see Bloate v. United States, ___ U.S. ___, ___ n. 9, 130 S.Ct. 1345, 1353 n. 9, 176 L.Ed.2d 54 (2010) (rejecting an interpretation of the Speedy Trial Act that would "render" a provision of the Act "a nullity"). "The only way to avoid conflict" between those two provisions, we held, "is to read § 3161(h)(1)(F) as a specific exception to the general rule announced in § 3161(h)(1)(A)," imposing a presumptive limit of ten days for transportation on the otherwise unlimited time for competency hearings. 579 F.3d at 596; see Bloate, at ___, 130 S.Ct. at 1353-54 ("a specific provision . . . controls ones of more general application") (quotation marks omitted). The government concedes that Tinklenberg defeats the primary arguments it made in its brief to this court.

In view of Tinklenberg and in view of the language of § 3161(h)(1)(F), we must reverse this aspect of the district court's decision. The relevant period under § 3161(h)(1)(F) began with the "order directing. . . transportation" and ended with the "defendant's arrival at the destination." The clock thus started on June 8, 2005, when the court ordered a competency examination for Turner and stated:

Further, as part of this Order, the United States Marshal and the Bureau of Prisons are hereby directed to conduct the transportation and the evaluation of the defendant in an appropriate, expeditious manner.

R.12 at 2. The clock stopped on August 12, 2005, when Turner arrived at the Metropolitan Detention Center for the evaluation. The government's only explanation for the delay does not rebut the presumption of unreasonableness for delays that last more than ten days. See 18 U.S.C. § 3161(h)(1)(F). In vaguely relying on the "difficulty suffered by the facility and by the United States Marshal Service in effectuating a timely evaluation and transportation to and from the facility," R.30 at 3, the government offers no handhold for rebutting the presumption that it should not take the marshals more than ten days to transport an inmate from a prison to the site of a competency examination. Because the remaining period includes more than thirty days, the Act requires us to dismiss the charges in Turner's original complaint.

The government persists that Turner has forfeited his claim under the Speedy Trial Act. It points to a proposed order that Turner filed with his motion to determine mental competency, which said:

Pursuant to the Speedy Trial Act provisions of 18 U.S.C. § 3161(h)(1)(A), the time required for trial of the defendant shall be tolled from the date of the instant order until the results of said psychiatric examination are received by the Court, such period being a delay contemplated by 18 U.S.C. § 3161(h)(1)(A).

R.10-1 at 2. Because Turner's proposed order purported to exclude all of the time from the issuance of the competency-examination order to the receipt of the examination results, the government says that he may not argue otherwise now.

Yet the government has a forfeiture problem of its own, as it failed to raise this argument below. That is not its only problem: Even assuming that the proposed order could constitute a waiver, the Speedy Trial Act does not allow defendants to waive a deadline prospectively. See Zedner v. United States, 547 U.S. 489, 500, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Unlike many rights, the rights protected by the Speedy Trial Act belong not just to the defendant, but also to the public at large, and "allowing prospective waivers would seriously undermine the Act because there are many cases . . . in which the prosecution, the defense, and the court would all be happy to opt out of the Act, to the detriment of the public interest." Id. at 502, 126 S.Ct. 1976. Turner's proposed order did not—it could not by itself— waive his right to object to the indictment delay.

Judicial estoppel is no more helpful to the government. As an equitable doctrine developed to "protect the integrity of the judicial process," New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quotation marks omitted), it "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich, 530 U.S. 211, 227 n. 8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000); see also Reed Elsevier, Inc. v. Muchnick, ___ U.S. ___, ___- ___, 130 S.Ct. 1237, 1248-49, 176 L.Ed.2d 17 (2...