United States v. James Caswell Jones , 241 F. App'x 676 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 2, 2007
No. 07-10317 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00283-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES CASWELL JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 2, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
James Caswell Jones, who is serving a 77-month sentence for possession
with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C); possession with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C); and being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1), appeals his convictions. The indictment under which
Jones was convicted followed an earlier indictment, which was dismissed without
prejudice for violations of the Speedy Trial Act, 18 U.S.C. § 3161-3174. The
indictment under which Jones was convicted, however, is based on the same facts
as the earlier indictment.
I.
Jones first argues that his confession, and the firearms obtained through a
search warrant based on his confession, should have been suppressed. Jones
argues that his motion to suppress was timely because he reserved the right to
supplement the motion to suppress that he originally filed. Jones asserts that he
attempted to raise the motion to suppress before the jury was empaneled, but the
district court did not give him the opportunity to do so. Jones additionally
contends that the district court was required to excuse the jury and conduct a voir
dire hearing to resolve his motion to suppress.
A district court’s denial of a motion to suppress as untimely is reviewed for
abuse of discretion. United States v. Milian-Rodriguez, 828 F.2d 679, 683 (11th
2
Cir. 1987). A motion to suppress evidence must be made before trial.
Fed.R.Crim.P. 12(b)(3)(c). However, a district court may, “at the arraignment or
as soon afterward as practicable, set a time for the parties to make pretrial motions
and may also schedule a motion hearing.” Fed.R.Crim.P. 12(c). “A party waives
any Rule 12(b)(3) defense, objection, or request not raised by the deadline the
court sets under 12(c) or by any extension the court provides. For good cause, the
court may grant relief from the waiver.” Fed.R.Crim.P. 12(e). A district court may
deny a motion to suppress as untimely without conducting a voir dire hearing, even
where the motion concerns the voluntariness of statements made to the police. See
United States v. Taylor, 792 F.2d 1019, 1025 (11th Cir. 1986) (holding that while
it may be permissible for the district court to consider a motion to suppress
involuntary statements despite its untimeliness, the district court is not required to
do so). An amended motion to suppress may be considered untimely even where
the initial motion was timely filed. See United States v. Hirschhorn, 649 F.2d 360,
364 (5th Cir. 1981).
“A motion to suppress must in every critical respect be sufficiently definite,
specific, detailed, and nonconjectural to enable the court to conclude that a
substantial claim is presented . . . . A court need not act upon general or
conclusory assertions.” United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir.
3
2000) (quoting United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.
1985)).
In this case, the district court did not abuse its discretion in denying Jones’s
motion to suppress. Despite Jones’s assertion, the motion to suppress was not
timely. Jones’s first motion to suppress was completely conjectural and wholly
lacked the detail that we require. Cooper, 203 F.3d at 1284. Moreover, Jones has
conceded that the motion to suppress was denied in its entirety. Accordingly, that
portion of the motion in which he asked to reserve the right to amend the motion to
suppress also was denied.
Even if Jones successfully had reserved the right to amend his motion to
suppress, the district court has the right to manage its docket. See Fed.R.Crim.P.
12(c). Thus, the district court may limit the time for filing pretrial motions,
including amended motions to suppress. Fed.R.Crim.P. 12(c); Hirschhorn, 649
F.2d at 364. In this case, the district court limited the time for filing pretrial
motions to 10 days after the arraignment. Jones’s amended motion to suppress,
raised orally at trial more than nine months after the district court disposed of the
other pretrial motions, was well outside that time limit.
Finally, Jones has not shown good cause for relief from the waiver of his
motion to suppress. See Fed.R.Crim.P. 12(e). As the district court noted in the
4
denial of Jones’s request for an evidentiary hearing, the facts of the case are the
same as those under the previous indictment, and Jones was provided open
discovery. Given that all the files were available at least nine months before the
trial, there is no reason Jones’s counsel should not have previously discovered the
basis for this motion to suppress. See Taylor, 792 F.2d at 1025. However, the
motion was filed on the day of the trial, more than nine months after the facts
underlying the motion were made available to Jones and after the time for filing
motions to suppress expired. “These facts demonstrate inexcusable delay and last-
minute motion filing.” Milian-Rodriguez, 828 F.2d at 683. Accordingly, the
district court properly denied Jones’s motion to suppress as untimely.
II.
Jones next argues that the district court erred in dismissing without prejudice
the earlier indictment against him. Jones contends that the district court misapplied
the statutory factors for determining whether to dismiss without prejudice. Jones
argues that his offense was not very serious because: (1) he was initially arrested
for failure to pay child support; (2) there was no evidence that he used the firearms
or possessed the firearms during the commission of a crime; and(3) the lack of
violence in the charges against him. Jones adds that the facts and circumstances
leading to dismissal mandated dismissal with prejudice because the government
5
and the court were responsible for most of the delay while the speedy trial clock
was ticking. Jones also argues that the interests of justice would best have been
served by dismissal with prejudice because he was forced to live under restrictions
for the entirety of the delay. Jones asserts that the district court should also have
considered the deterrent effect on governmental delay that would have been made
by a dismissal with prejudice. Finally, Jones argues that the district court erred in
finding that his rights to a speedy trial were not violated because most of the delay
was the government’s fault, and he was incarcerated for the entire time.
We review a district court’s determination to dismiss a case with or without
prejudice upon finding a violation of the Speedy Trial Act for abuse of discretion.
United States v. Brown, 183 F.3d 1306, 1309 (11th Cir. 1999).
Under the Speedy Trial Act:
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). Thus, if the defendant moves for dismissal, and the 70
days have expired, the district court must dismiss the case. United States v.
Miranda, 835 F.2d 830, 834 (11th Cir. 1988). The district court has discretion to
dismiss the case with or without prejudice, and we do not perceive a preference for
6
either form of dismissal. Id. at 834. However, the district court must balance the
statutory factors under 18 U.S.C. § 3162(a)(2), which are: (1) the seriousness of the
offense; (2) the facts and circumstances of the case which led to the dismissal; and
(3) the impact of a reprosecution on the administration of the Speedy Trial Act and
the administration of justice. 18 U.S.C. § 3162(a)(2).
We review de novo a motion to dismiss based upon the Sixth Amendment
right to a speedy trial. United States v. Harris, 376 F.3d 1282, 1286 (11th Cir.
2004). Pursuant to the Sixth Amendment, “the accused shall enjoy the right to a
speedy and public trial . . . .” U.S. Const. amend VI. As we have held:
In order to determine whether a defendant has been deprived of his
[Sixth Amendment] right to a speedy trial, this court must consider (1)
whether the delay before trial was uncommonly long; (2) whether the
government or the defendant is more to blame for that delay;
(3) whether, in due course, the defendant asserted his right to a speedy
trial; and (4) whether the defendant suffered prejudice as a result of
the delay (the ‘Barker factors’).
Harris, 376 F.3d at 1290 (citations omitted). “The first factor serves a triggering
function; unless some ‘presumptively prejudicial’ period of delay occurred, we
need not conduct the remainder of the analysis.” Id. However, unless the first
three factors weigh heavily against the government, the defendant must show
actual prejudice to prevail on a Sixth Amendment violation. Id. at 1296.
Moreover, that prejudice must be to his defense. Doggett v. United States, 505
7
U.S. 647, 656, 112 S.Ct. 2686, 2693, 120 L.Ed.2d 520 (1992).
The district court did not err in dismissing Jones’s original case without
prejudice. As the district court found, the fact that Jones had not been caught using
the gun or committing violent acts does not detract from the fact that Jones was a
repeated felon who possessed firearms. Accordingly, the district court did not
abuse its discretion in finding that Jones’s offense was serious enough to weigh in
favor of dismissal without prejudice. 18 U.S.C. § 3162(a)(2). Moreover, the
district court found that the majority of the delay was the result of administrative
confusion, and was its fault. Where delay is the result of administrative confusion,
we have expressed a preference for dismissal without prejudice. Miranda, 835
F.2d at 834. Finally, as the district court noted, Jones was partially responsible for
the delay because he did not assert his speedy trial rights until after a trial date was
set. Accordingly, dismissal with prejudice would have permitted Jones to use the
Speedy Trial Act as an offensive tool. On the other hand, the public has an interest
in seeing that convicted felons do not possess firearms. Thus, the public interest
also dictates dismissal without prejudice.
The district court also did not err in finding that Jones’s Sixth Amendment
rights were not violated. While both parties agree that the delay before trial was
uncommonly long, that the government received extensions for its briefs, and the
8
government filed its motion for reconsideration and notice of appeal 30 days after
the orders complained of were entered, the delay is not purely the government’s
fault. Much of the delay was the result of disposing of the government’s appeal
and Jones’s petition for certiorari. Moreover, Jones could have moved to dismiss
the indictment for a violation of the Speedy Trial Act within 8 days of the district
court’s receipt of the denial of certiorari rather than waiting until a trial date was
set. Jones did not do so, thus adding to the delay. Because the majority of the
delay was not any one party’s fault, but rather the result of disposing of motions,
appeals, and petitions for certiorari, and Jones did not timely assert his right to a
speedy trial, both of those factors weigh against finding a Sixth Amendment
violation. Harris, 376 F.3d at 1290. Finally, Jones has not argued that he suffered
prejudice to his case as a result of the delay. Accordingly, that factor weighs
against finding a Sixth Amendment violation as well. Doggett, 505 U.S. at 656,
112 S.Ct. at 2693. Because the factors weigh against finding a Sixth Amendment
violation, the district court did not err in denying Jones’s motion to dismiss on this
ground.
III.
Jones argues that his speedy trial rights were violated under the current
indictment because more than 70 days passed between his indictment and the trial.
9
Jones asserts that the time was not tolled by his appeal of the dismissal of the prior
indictment without prejudice. According to Jones, because the current case
contains charges that were not included in the prior indictment, it could have
moved to trial regardless of the disposition of the appeal.
We review a claim under the Speedy Trial Act de novo and review a district
court’s factual determinations on excludable time for clear error. United States v.
Dunn, 345 F.3d 1285, 1288 (11th Cir. 2003). According to 18 U.S.C. § 3161(h),
certain periods of delay are excluded when computing the time within which a trial
must commence. 18 U.S.C. § 3161(h). Included on that list is “a period of delay
resulting from other proceedings concerning the defendant, including but not
limited to” delays resulting from proceedings listed in the statute. 18 U.S.C.
§ 3161(h)(1).
In United States v. Davenport, 935 F.2d 1223 (11th Cir. 1991), a defendant
awaiting trial filed a petition for writ of habeas corpus alleging a violation of the
Speedy Trial Act. Id. After the defendant was eventually convicted of the crime
for which he was awaiting trial, he argued on appeal that his trial was outside of
the Speedy Trial Act’s limitations period. Id. at 2131. Specifically, he contended
that the speedy trial clock should have run while his habeas petition, alleging
violations of the Speedy Trial Act, was pending. Id. We rejected his contention
10
and found that the petition was an “other proceeding concerning the defendant,”
and was analogous to an interlocutory appeal. Id. at 2131-32. Thus, the resulting
delay was excluded from the speedy trial clock. Id. at 2132.
In the instant case, Jones appealed a speedy trial decision rather than filing a
habeas corpus case. However, the Supreme Court already has held that a criminal
defendant may not immediately appeal a district court’s order dismissing an
indictment until after conviction because the indictment is but a step toward final
disposition of the merits of the case and will be merged in the final judgment. Parr
v. United States, 351 U.S. 513, 519, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956).
Accordingly, Jones’s appeal of the dismissal without prejudice also is analogous to
an interlocutory appeal. As such, the district court did not err in comparing Jones’s
case to Davenport and finding that the proceeding tolled the speedy trial clock
under 18 U.S.C. § 3161(h)(1).
IV.
Jones argues that his initial arrest was unconstitutional because Detective
Hein “pocketed” the warrant and then delayed serving it in hopes of conducting a
search of Jones at a time when he would be able to find drugs.
During the pendency of Jones’s prior indictment, we entertained an appeal
on the issue of whether Jones’s arrest was illegal. United States v. Jones, 377 F.3d
111313 (11th Cir. 2004). We held, in a published opinion, that subjective intentions
should play no role in Fourth Amendment analysis. Id. at 1314. Accordingly, we
held that the district court erred in considering Hein’s subjective intent in serving
the warrant. Id. We also explicitly found that Jones’s arrest was constitutional.
Id. Now Jones argues that, under the same facts, his arrest was unconstitutional
because of Detective Hein’s subjective intent. This argument is foreclosed by our
prior precedent, which held otherwise. Id. Accordingly, Jones’s arrest was
constitutional.
Accordingly, upon review of the record and the arguments of both parties,
Jones’s convictions are
AFFIRMED.1
1
Jones’s motion to file his reply brief out of time is granted but his request for oral
argument is denied.
12