United States v. Andrews , 365 F. App'x 480 ( 2010 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4807
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    FREDDIE LEE ANDREWS, III,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. Terrence W. Boyle,
    District Judge. (5:06-cr-00064-BO-1)
    Submitted:    January 20, 2010             Decided:   February 17, 2010
    Before MOTZ, SHEDD, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North
    Carolina, for Appellant.   George E. B. Holding, United States
    Attorney, Anne M. Hayes, Assistant United States Attorney,
    Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
    OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Freddie Lee Andrews appeals from his conviction of offenses
    arising from a bank robbery.                  Andrews alleges violations of his
    constitutional right to a speedy trial and the Speedy Trial Act.
    For the reasons set forth below, we reject these contentions and
    affirm.
    I.
    On March 16, 2006, a federal grand jury in the Eastern
    District of North Carolina indicted Andrews on charges arising
    from    a      bank      robbery       that    occurred        the     previous         March.
    Authorities         arrested     him    two   months      later      on    May    16,       2006.
    Andrews first appeared before a magistrate judge on that date;
    he    did     not     have    legal     representation         and     did      not    request
    appointment         of   counsel.        At    that    time,      he      was    imprisoned,
    serving       another        federal     sentence,        in   Bennettsville,               South
    Carolina.
    On July 10, 2006, the district court appointed the Federal
    Public Defender’s office to serve as Andrews’s stand-by counsel.
    Two    days    later,        Andrews    requested     a    continuance          to    evaluate
    whether he wished to retain private counsel.                               Ultimately, on
    July    26,     2006,        Andrews    sought     appointed         counsel,         and     the
    district court appointed Andrews’s stand-by counsel to represent
    2
    him.     The district court set an arraignment and trial date for
    August 21, 2006.
    Two days after appointment of counsel, on July 28, 2006,
    Andrews sought a continuance of his August 21 trial date to
    allow    his    counsel   adequate      time       to   prepare     a    defense.      The
    district        court   granted       the        continuance       and    ordered      the
    arraignment and trial date be set for the October term of court.
    In its order, the district court stated that the ends of justice
    in    granting    the   continuance         outweighed      the     interests    of    the
    public and defendant in a speedy trial and that the continuance
    was excludable time under the Speedy Trial Act.                           On September
    27,     2006,     Andrews     moved     for        another        continuance,      again
    requesting additional time to prepare for trial.                           The district
    court,    again     finding   the     ends        of    justice    to    be   served    by
    granting the continuance, ordered the trial continued until the
    January 2007 term of court.
    On November 15, 2006, the Federal Public Defender’s office
    sought to withdraw as Andrews’s counsel, citing a conflict of
    interest.        The district court granted the motion.                       One month
    later, on December 14, 2006, Andrews sought a 90-day continuance
    to allow newly-appointed counsel additional time to prepare for
    trial.     The motion detailed that Andrews’s new attorney had just
    recently received discovery materials and had not yet been able
    to visit Andrews in federal custody in South Carolina.                              While
    3
    this   motion    was    pending,   on   December   20,    2006,    the   district
    court set a trial date of January 3, 2007.                Shortly thereafter,
    on December 28, 2006, the Government moved for a continuance
    asserting that the federal marshal would be unable to transport
    Andrews from the correctional facility in Bennettsville, South
    Carolina in time for the January 3 trial date in the Eastern
    District   of    North    Carolina.      The   district    court    granted     the
    Government’s motion and continued the trial until the April 2007
    term of court.         In its order, the district court noted that the
    Government demonstrated good cause for the continuance and found
    the ends of justice best served by granting the continuance.
    On February 20, 2007, the Government notified the district
    court that it was substituting its lead counsel.                   On March 15,
    2007, the district court set a trial date for March 26, 2007;
    the following day the Government requested a continuance because
    its new lead counsel was scheduled to be on leave at that time
    and Government co-counsel was scheduled to be in trial.                   In its
    motion, the Government stated that Andrews did not oppose the
    continuance and, in fact, would favor a continuance to allow for
    additional      discovery.     The    district   court    found    the   ends   of
    justice best served by granting the continuance and so continued
    the arraignment and trial to the July 2007 term of court.
    On June 1, 2007, Andrews and the Government filed a joint
    motion to set a specific trial date in late July to accommodate
    4
    Government witnesses and defense counsel’s scheduled vacation.
    The district court, finding the ends of justice served by a
    continuance,         scheduled      the     trial     for       August      13,        2007.
    Approximately two weeks before the scheduled trial date, defense
    counsel moved to withdraw as Andrews’s attorney citing medical
    reasons that prevented him from adequately preparing for trial.
    The     district     court    granted      the     unopposed       motion,       set    the
    arraignment and trial for the October 2007 term of court, and
    ordered that the intervening time be excluded from speedy trial
    computation under the Speedy Trial Act.
    On September 26, 2007, Andrews sought another continuance
    jointly      with    the   Government      to    continue    the     arraignment        and
    trial    until      January   7,   2008,    to    allow   Andrews’s        new    defense
    counsel      adequate      time    to    prepare    for     trial,    to     allow      the
    Government to make travel arrangements for witnesses in federal
    custody, and to accommodate Government counsels’ trial schedules
    in mid-November and early December.                 The district court granted
    the motion finding the ends of justice served and set the new
    trial    date    for    January    21,    2008.      Thereafter       the    Government
    filed an unopposed motion to set the trial date in mid-February
    2008 to accommodate the January trial schedules of Government
    and defense counsel.          The district court ordered that the trial
    date    be    set    for    February      26,    2008,    and    ordered      that      the
    intervening time be excluded from speedy trial computation.
    5
    On January 31, 2008, Andrews moved for a determination of
    competency, which the Government opposed.                    After the district
    court held a hearing on the motion on February 13, 2008, during
    which Andrews addressed the court, the court denied the motion.
    Andrews’s    trial   commenced       on    February    26,      2008.         The    jury
    convicted Andrews on all three counts charged in the indictment:
    conspiracy   to   commit     armed    bank      robbery    in    violation          of    
    18 U.S.C. § 371
     (2006), bank robbery in violation of 
    18 U.S.C. § 2113
    (a) (2006), and possession of a firearm in relation to a
    crime of violence in violation of 
    18 U.S.C. § 924
    (c)(1) (2006).
    The    district      court     sentenced         Andrews        to      180     months
    incarceration.
    II.
    All told, Andrews did not stand trial until approximately
    650 days after his first appearance before the magistrate judge.
    Andrews’s sole arguments on appeal challenge this delay.                                 He
    argues that the delay violated his rights under the Speedy Trial
    Act, 
    18 U.S.C. §§ 3161
     et seq. (2006), and the Sixth Amendment.
    A.
    The Speedy Trial Act provides that the trial of a defendant
    charged in an indictment “shall commence within seventy days
    from the filing date . . . of the indictment, or from the date
    the   defendant   has   appeared      before     a   judicial     officer       or       the
    6
    court    in    which     such       charge     is     pending,       whichever     date     last
    occurs.”       
    18 U.S.C. § 3161
    (c)(1) (2006).                       If a defendant is not
    brought to trial during this period, and the delays are not
    excludable, the “indictment shall be dismissed on motion of the
    defendant,” although the district court has the discretion to
    dismiss with or without prejudice.                         § 3162(a)(2); United States
    v. Henry, 
    538 F.3d 300
    , 304 (4th Cir. 2008).
    “While       a      defendant         may       not        prospectively      waive     the
    application of the Act, his failure to make a timely motion to
    dismiss       constitutes       a    waiver      of    his       rights    under   the     Act.”
    Henry,     
    538 F.3d at 304
           (internal          citation    omitted);       see
    § 3162(a)(2) (“Failure of the defendant to move for dismissal
    prior to trial . . . shall constitute a waiver of the right to
    dismissal under this section.”).                      Requiring a defendant to file
    a pre-trial motion to dismiss “ensur[es] that an expensive and
    time-consuming trial will not be mooted by a late-filed motion
    under the Act.”           Zedner v. United States, 
    547 U.S. 489
    , 502-03
    (2006).
    Here, Andrews failed to file a timely motion to dismiss the
    indictment.           Relying       on   an    admittedly          “thin    basis,”   Andrews
    argues that he attempted to assert his Speedy Trial Act rights
    before the district court.                    He points to his colloquy with the
    district       court     at     the      February          13     hearing,    in    which     he
    complained       about    having         three   different          attorneys      during    the
    7
    pre-trial period.            Although this exchange suggests Andrews may
    have considered the pre-trial delays to be excessive, it does
    not indicate any intention on the part of Andrews to move for a
    dismissal based on a violation of the Act, as required by 
    18 U.S.C. § 3162
    (a)(2).           Nor is there any indication in the record
    that    the   trial    court,       or    defense    counsel     for   that   matter,
    considered Andrews’s statement to constitute a motion to dismiss
    or even a discussion of his rights under the Act.                        See United
    States v. Register, 
    182 F.3d 820
    , 828 (11th Cir. 1999) (finding
    defendant waived rights under the Act by failing to move the
    court to dismiss the indictment, even though he demanded a jury
    trial   on    more    than    one    occasion      and   moved   for   release   from
    prison based on excessive pretrial detention); United States v.
    Lugo, 
    170 F.3d 996
    , 1001 (10th Cir. 1999) (holding defendant
    failed to move for dismissal under the Act because, although
    defendant     indicated       that   he    might    file   such    a   motion,   “the
    district . . . judge [n]ever indicated that any discussion about
    the Speedy Trial Act issue would be deemed a motion to dismiss
    as required by 
    18 U.S.C. § 3162
    (a)(2)”).
    8
    Accordingly,      by   failing    to   file     a    pre-trial    motion   to
    dismiss, Andrews waived his rights under the Act. See Henry, 
    538 F.3d at 304
    ; see also Zedner, 
    547 U.S. at 502-03
    . *
    B.
    Andrews also asserts the delay violated his constitutional
    right to a speedy trial.        Because Andrews makes this claim for
    the first time on appeal, we review for plain error. Fed. R.
    Crim. P. 52(b); United States v. Olano, 
    507 U.S. 725
    , 731-32
    (1993);   see   also   Barker   v.    Wingo,   
    407 U.S. 514
    ,   528   (1972)
    *
    Andrews’s waiver notwithstanding, we doubt that any
    violation of the Act occurred.      Despite the general 70-day
    deadline, the Act provides for a number of excludable delays; of
    greatest relevance here is delay resulting from the granting of
    a continuance based on a finding that “the ends of justice
    served by taking such action outweigh the best interest of the
    public and the defendant in a speedy trial.”    § 3161(h)(7)(A).
    Factors that a district court must consider in deciding whether
    to grant an ends-of-justice continuance are a defendant’s need
    for “reasonable time to obtain counsel,” and “continuity” and
    “effective preparation” of counsel for the Government or
    defendant. § 3161(h)(7)(B)(iv). Either solely or jointly with
    the Government, Andrews sought the majority of the continuances
    in this case to allow defense counsel adequate time to prepare
    for trial and to enable continuity of counsel.       See United
    States v. Kellam, 
    568 F.3d 125
    , 137-38 & nn.17,19. (4th Cir.
    2009) (holding no Speedy Trial Act violation occurred where pre-
    trial delays were caused by defendant’s or co-defendant’s
    motions, including various motions for continuances).   Further,
    on the two occasions when the Government did move for
    continuances the district court found that the “ends of justice”
    were served by granting those unopposed continuance motions --
    one enabled continuity of counsel for the Government and was
    expressly consented to by Andrews, and the other followed
    Andrews’s own wishes because it was made within days of his own
    motion for a 90-day continuance.       Thus the record in its
    entirety supports these findings.   See United States v. Keith,
    
    42 F.3d 234
    , 240 (4th Cir. 1994).
    9
    (holding that a defendant who fails to demand a speedy trial
    does not forever waive that constitutional right).                                 To assess
    whether a pre-trial delay violates the Sixth Amendment’s speedy
    trial guarantee, we balance four factors:                      (1) length of delay,
    (2) the reason for the delay, (3) the defendant's assertion of
    his right, and (4) prejudice to the defendant.                           See Barker, 
    407 U.S. at 530
    .            Although the first factor -- the length of delay,
    over    650    days      --    weighs    in    favor    of   Andrews,        the   remaining
    factors favor the Government.
    As to the second factor, Andrews sought the majority of the
    continuances        to     allow   counsel       adequate     time      to    prepare      for
    trial.        See Vermont v. Brillon, 
    129 S.Ct. 1283
    , 1291 (2009)
    (holding      that       “assigned      counsel’s       failure    to    move      the    case
    forward does not warrant attribution of delay to the state” for
    purposes      of     speedy      trial        claim)    (internal       quotation        marks
    omitted).       Moreover, Andrews did not oppose the two Government
    continuances, of which he now primarily complains; in fact, the
    record indicates he favored them.                      Furthermore, the record does
    not support a finding that the Government’s continuances were
    the    result      of    prosecutorial         misconduct     or   bad       intent.      See
    United States v. Hall, 
    551 F.3d 257
    , 272 (4th Cir. 2009).                                  The
    first    challenged           Government      continuance     request,        involving      a
    failure to timely writ Andrews from federal custody in South
    Carolina, likely resulted from a reasonable expectation that the
    10
    district court would grant Andrews’s pending continuance motion,
    which sought additional time for his newly-appointed counsel to
    prepare for trial.           The district court had previously granted
    every    such    continuance        requested    by    Andrews.        The    second
    challenged Government continuance sought to accommodate its new
    lead    counsel’s     scheduled      leave.      In    light     of   the    numerous
    schedule changes sought by the defense, the Government’s effort
    to ensure consistency of its counsel does not warrant a finding
    of misconduct or bad intent.              Because the bulk of the delays
    were caused by Andrews and thus weigh against him, see Brillon,
    
    129 S.Ct. at 1290
    ,    and    nothing    in    the    record   suggests    an
    improper       motive    by     the     Government          in   requesting      its
    continuances, the second Barker factor favors the Government.
    The third factor weighs heavily against Andrews because he
    did not assert his right to a speedy trial in the district
    court.     See Barker, 
    407 U.S. at 532
     (“We emphasize that failure
    to assert the right will make it difficult for a defendant to
    prove that he was denied a speedy trial.”); United States v.
    Thomas, 
    55 F.3d 144
    , 150 (4th Cir. 1995).
    Lastly, Andrews has made no showing of prejudice, thus the
    final factor also weighs in favor of the Government.                         Although
    Andrews claims he was prejudiced due to loss of witnesses and an
    alibi defense, he has failed to identify any specific witnesses
    who were unavailable to testify or could not accurately recall
    11
    the events in question, and he does not contend that exculpatory
    evidence was lost or rendered unavailable by the delay.                     See
    Hall, 
    551 F.3d at 273
    .
    Having balanced the Barker factors, we believe it clear
    that the delay did not contravene Andrews’s constitutional right
    to a speedy trial.
    III.
    For the reasons set forth above, we affirm the judgment of
    the district court.          We dispense with oral argument because the
    facts   and   legal    contentions    are    adequately   presented    in   the
    materials     before   the    court   and    argument   would   not   aid   the
    decisional process.
    AFFIRMED
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