United States v. Martin , 16 F. App'x 943 ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    AUG 13 2001
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                             Nos. 00-2138 & 00-2251
    (D.C. No. CR-00-94-BB)
    JOSEPH R. MARTIN,                                     (D. N.M.)
    Defendant-Appellant.                      No. 00-2139
    (D.C. No. CR-96-255-BB)
    (D. N.M.)
    ORDER AND JUDGMENT            *
    Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
    Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Defendant Joseph R. Martin was convicted of threatening to assault and
    murder a federal official. Defendant seeks to have his conviction vacated on the
    grounds that the district court violated his statutory and constitutional right to a
    speedy trial. We affirm.
    I. Background
    In district court case No. CR-96-255, defendant was indicted for
    threatening to assault and murder a federal official in violation of 
    18 U.S.C. § 115
    . Defendant was taken into federal custody and arraigned on June 13, 1996.
    On July 19, 1996, defendant’s counsel filed a motion requesting that the district
    court order a competency examination of defendant. The district court granted
    the motion, and defendant underwent a competency examination. On
    September 27, 1996, the district court held a competency hearing, and the court
    determined that defendant was incompetent to stand trial. Pursuant to 
    18 U.S.C. § 4241
    (d), the district court therefore ordered defendant committed to the custody
    of the Attorney General for competency treatment for a reasonable period of time
    not to exceed four months. The district court subsequently extended defendant’s
    commitment for an additional four months.
    -2-
    On June 11, 1997, the district court held a second competency hearing, and
    the court determined that defendant was competent to stand trial. However,
    defendant’s counsel subsequently filed an unopposed motion requesting that
    defendant be recommitted for further evaluation. The district court granted the
    motion and ordered defendant recommitted for a reasonable period of time not to
    exceed four months. The court subsequently extended defendant’s commitment
    for an additional four months.
    On July 2, 1998, the district court held a third competency hearing, and the
    court determined that defendant was incompetent to stand trial. The court
    therefore ordered defendant committed for further evaluation, and he remained in
    the custody of the Attorney General for the next year. A fourth competency
    hearing was subsequently scheduled for August 16, 1999. At the hearing,
    defendant requested that the court appoint new counsel to represent him, and the
    court granted defendant’s request. Defendant’s new counsel then filed an
    unopposed motion requesting another competency examination. The district court
    granted the motion, and defendant underwent another competency examination.
    After holding a fourth competency hearing, the court entered on order on
    January 11, 2000, finding defendant competent to stand trial.
    On January 24, 2000, the government filed a motion to dismiss the
    indictment in case No. CR-96-255 without prejudice. The basis of the motion was
    -3-
    that the seventy-day statutory time limit under the Speedy Trial Act, 
    18 U.S.C. § 3161
    (c)(1), had expired in July of 1997. The government claimed that, through
    inadvertence, it did not discover the violation of the Speedy Trial Act until
    January 21, 2000. On February 2, 2000, the district court granted the
    government’s motion and dismissed the indictment without prejudice.
    On January 28, 2000, in district court case No. CR-00-94, the government
    filed a new criminal complaint against defendant. On February 7, 2000, a bench
    trial was held, and the district court found defendant guilty of violating 
    18 U.S.C. § 115
    . The district court then sentenced defendant to forty-six months in prison.
    Because defendant had already been in custody for fifty-five months,    1
    he was
    given credit for time served and was released to serve a three-year term of
    supervised release. However, on June 14, 2000, the district court determined that
    defendant had violated the terms of his supervised release, and it was revoked.
    The district court then sentenced defendant to fourteen months in prison, which
    was reduced to five months due to his previous good time credits, and a thirty-
    month term of supervised release.
    1
    This includes defendant’s incarceration on state charges prior to his transfer
    to federal custody.
    -4-
    II. Defendant’s Appeals
    Defendant has filed three separate appeals. First, in appeal No. 00-2139,
    defendant is appealing the district court’s dismissal of the original indictment
    without prejudice in case No. CR-96-255. Second, in appeal No. 00-2138,
    defendant is appealing his conviction in case No. CR-00-94. Third, in appeal No.
    00-2251, defendant is appealing the revocation of his supervised release in case
    No. CR-00-94. It is important to note, however, that defendant is not challenging
    the merits of his conviction or the revocation of his supervised release. Instead,
    based on the alleged violations of his statutory and constitutional right to a speedy
    trial, defendant’s only claim on appeal is that the district court should have
    dismissed the original indictment with prejudice and thereby prohibited the
    government from reprosecuting him on the same charges.
    This court does not have jurisdiction over appeal No. 00-2139 because the
    district court’s dismissal of the original indictment without prejudice was not an
    appealable final judgment.    See United States v. Tsosie , 
    966 F.2d 1357
    , 1361
    (10th Cir. 1992). Nonetheless, in appeal No. 00-2138, defendant has properly
    appealed his conviction in case No. CR-00-94, and we have jurisdiction in appeal
    No. 00-2138 to consider defendant’s claim that the district court erred by failing
    to dismiss the original indictment with prejudice.   See United States v. Kelley , 
    849 F.2d 1395
    , 1397 (11th Cir. 1988) (holding that a defendant may appeal order
    -5-
    dismissing indictment without prejudice for violation of Speedy Trial Act after
    conviction is obtained in subsequent prosecution).
    III. Speedy Trial Act
    “The Speedy Trial Act . . . requires that a criminal defendant’s trial
    commence within 70 days after his indictment or initial appearance, whichever is
    later.” United States v. Hill , 
    197 F.3d 436
    , 440 (10th Cir. 1999) (citing 
    18 U.S.C. § 3161
    (c)(1)). However, “certain periods of delay are excluded [under the Act]
    and do not count toward the 70-day limit.”         
    Id.
     In particular, “any period of delay
    resulting from the fact that the defendant is mentally incompetent . . . to stand
    trial” is excluded, see § 3161(h)(4), as is any “delay resulting from any
    proceeding, including any examinations, to determine the mental competency . . .
    of the defendant,” see § 3161(h)(1)(A).
    Under § 3162(a)(2), once the district court determines that seventy non-
    excludable days have passed, the sanction is mandatory dismissal of the
    indictment, and the only issue is whether the dismissal is with or without
    prejudice. See Tsosie, 
    966 F.2d at 1358
    . To make this determination, the district
    court must consider “‘the seriousness of the offense; the facts and circumstances
    of the case which led to the dismissal; and the impact of a reprosecution on the
    administration of [the Act] and on the administration of justice.’”       United States
    -6-
    v. Jones , 
    213 F.3d 1253
    , 1256 (10th Cir. 2000) (quoting § 3162(a)(2)). The
    district court must also consider any prejudice to the defendant.    Id. at 1256-57.
    The district court found, and the government does not dispute, that the
    government violated the Speedy Trial Act in case No. CR-96-255 because
    seventy-five non-excludable days passed between: (1) the day of defendant’s
    arraignment and the date defendant’s counsel first moved for a competency
    examination; and (2) the date the district court initially determined that defendant
    was competent to stand trial and the date defendant’s counsel filed his unopposed
    motion to have defendant recommitted. Applying the relevant factors, the district
    court then determined that the indictment should be dismissed without prejudice
    because: (1) the offense of threatening to assault and murder a federal official is
    “obviously” serious; (2) the delay in bringing defendant to trial was not the result
    of prosecutorial bad faith, but was instead the result of defendant’s “wavering
    between competency and incompetency, by a thin margin on either side;”
    (3) defendant suffered little, if any, prejudice as a result of the delay; and (4) a
    dismissal with prejudice was not necessary to ensure future compliance with the
    Speedy Trial Act.   See R., No. 00-2139, Vol. 1, Tab 71, at 4-5. We review the
    district court’s decision to dismiss the indictment without prejudice for an abuse
    of discretion. See Jones , 
    213 F.3d at 1256
    .
    -7-
    We agree with the district court’s analysis. As the district court found,
    threatening to assault and kill a federal official is clearly a serious offense, and
    the seriousness of the offense was compounded by the fact that two firearms were
    found in defendant’s motor home at the time of his arrest. This case is also
    unique in that defendant was repeatedly found to be incompetent to stand trial,
    and he is not challenging the propriety of any of the actions taken by the district
    court or his own counsel in having him committed for competency examinations
    and extensive treatment. We hold, therefore, that the district court did not abuse
    its discretion in refusing to dismiss the original indictment with prejudice.
    IV. Sixth Amendment
    Defendant also alleges that he was denied his Sixth Amendment right to a
    speedy trial. “In determining whether a defendant has been deprived of his
    constitutional right to a speedy trial under the Sixth Amendment, a court should
    consider and balance the following factors: (1) the length of the delay; (2) the
    reason for the delay; (3) the defendant’s assertion of his right to a speedy trial;
    and (4) prejudice to the defendant.”   Hill , 
    197 F.3d at 443
     (quotation omitted).
    Here, the lengthy delay in bringing defendant to trial was necessitated by
    his incompetency; defendant’s defense in case No. CR-00-94 was not prejudiced
    by the delay; and defendant did not assert his right to a speedy trial until
    December 8, 1999--almost three-and-a-half years after he was taken into federal
    -8-
    custody, see R., No. 00-2139, Vol. I, Tab 57, at 1. Accordingly, we hold that
    defendant was not deprived of his Sixth Amendment right to a speedy trial.
    V. Conclusion
    The district court’s order of dismissal without prejudice in case No.
    CR-96-255 and defendant’s conviction in case No. CR-00-94 are AFFIRMED.
    Because defendant has not challenged the merits of the revocation of his
    supervised release, the district court’s revocation of defendant’s supervised
    release in case No. CR-00-94 is also AFFIRMED. We DISMISS appeal No.
    00-2139 for lack of jurisdiction.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge
    -9-
    

Document Info

Docket Number: 00-2138, 00-2251

Citation Numbers: 16 F. App'x 943

Judges: Brorby, McKAY, Seymour

Filed Date: 8/13/2001

Precedential Status: Non-Precedential

Modified Date: 10/19/2024