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983 F.2d 1068
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gerald C. ALEXANDER, Defendant-Appellant.No. 91-2210.
United States Court of Appeals, Sixth Circuit.
Dec. 8, 1992.
Before KEITH, NATHANIEL P. JONES and BOGGS, Circuit Judges.
PER CURIAM:
1Appellant, Gerald Charles Alexander ("Alexander"), appeals his conviction and sentence imposed following his guilty plea to a charge of kidnapping for the purpose of engaging in a sexual act by force, in violation of 18 U.S.C. § 1201. The district court imposed a sentence of 120 months imprisonment followed by five years of supervised release. For the reasons stated below, we AFFIRM the conviction and sentence.
I.
2Alexander's principal challenge to his conviction and sentence arises under the Speedy Trial Act. 18 U.S.C. § 3161 (1982). Because of the time sensitive nature of such a challenge, a detailed exposition of the proceedings below is necessary. Accordingly, a timeline of the proceedings in this case follows.
3April 19, Alexander is arraigned on a three-count indictment: aggravated
41990" sexual abuse, kidnapping and aggravated assault in violation of
518 U.S.C. §§ 2241, 1201, and 113(c), respectively.
6May 4, Alexander moved for an extension of time to file pretrial motions.
71990"
8May 18, Alexander filed a second motion for extension of time to file
91990" pretrial motions.
10May 25, Alexander filed three defense motions: a motion to dismiss, a
111990" motion to suppress his prior record, and a motion to suppress
12statements.
13June 8, The government responded to Alexander's motions.
141990"
15June 11, A hearing on the motion took place before Magistrate Judge Timothy
161990" Greeley.
17June 15, Magistrate Greeley issued his report recommending that Alexander's
181990" statements be suppressed but that the other motions should be
19denied.
20June 25, The government filed objections to the Magistrate's report and
211990" recommendation.
22July 2, Alexander filed his response to the government's objection and
231990" filed two additional motions: motion to continue trial and
24petition to hire a private investigator.
25July 3, The district court filed an order adopting the Magistrate's report
261990" and recommendation.
27July 5, The district court denied both of Alexander's July 2d motions.
281990"
29July 6, The government filed a motion to stay the proceedings to file an
301990" interlocutory appeal challenging the suppression of Alexander's
31statements.
32July 25, While the government's appeal was pending, Alexander renewed his
331990" request to hire a private investigator. This request was granted
34in the fall of 1990.
35February This Court heard oral arguments concerning the district court's
368, 1991" suppression of Alexander's statements. Pursuant to Rule 19, the
37panel ruled from the bench affirming the district court's
38decision.
39March 18, This Court issued its mandate returning jurisdiction to the
401991" district court.
41April 1, This Court's mandate was filed along with the record with the
421991" district court.
43April 19, Magistrate Judge Greeley conducted a status conference call with
441991" the parties to this proceeding. During the conversation, the
45Magistrate was informed that Alexander's attorney had not yet
46retained a private investigator. Alexander's counsel informed the
47district court that it would file a pretrial motion to dismiss.
48The government also advised the district court that one of its
49primary witnesses would be unavailable during the first two weeks
50of July 1991.
51April 22, The district court entered an order setting the date for trial on
521991" July 22, 1991. The court also entered an "ends of justice"
53continuance until the trial date based upon the April 19th
54conference call. The court stated:
55On April 19, 1991, Magistrate Judge Timothy P. Greeley conducted a conference pursuant to Fed.R.Crim.P. 17.1. During that conference, defense counsel advised that he had not yet retained a private investigator as authorized by this court's letter of November 19, 1990. Counsel requested a brief period of time to retain the private investigator so that he could adequately prepare for trial. He also requested an opportunity to file a pre-trial motion on or before April 26, 1991. The Government agreed to file its response to that motion on or before May 7, 1991.
56In addition, the Government informed the court that one of its primary witnesses would not be available during the first half of July, 1991.
57In light of the foregoing, the court concludes that trial within seventy days would be impractical, and that the ends of justice served by the continuance outweigh the best interest of the public and the defendant in a speedy trial. See, 18 U.S.C. § 3161(d)(2), (h)(8).
58April 26, Alexander filed a motion to dismiss the indictment for violation of
591991" the Speedy Trial Act.
60May 9, The government filed its response to Alexander's motion.
611991"
62June 19, Alexander petitioned to withdraw the motion.
631991"
64June 25, The district court permitted Alexander to withdraw the motion.
651991"
66July 12, Alexander filed a second motion to dismiss for violation of the
671991" Speedy Trial Act.
68July 19, The district court entered an opinion and order denying the
691991" defendant's motion to dismiss.
70July 22, Alexander and the government entered a plea agreement in which
711991" Alexander pled guilty to kidnapping and agreed to a sentence of
72ten years. The plea agreement also preserved the denial of his
73motion to dismiss pursuant to the Speedy Trial Act.
74July 23, Alexander filed a motion in the district court to reconsider the
751991" denial of his Speedy Trial Act motion requesting a dismissal of
76the indictment with prejudice.
77August 2, The government responded to Alexander's motion for reconsideration.
781991"
79August 9, The district court denied the motion to reconsider. The court
801991" stated further that even if the Speedy Trial Act had been
81violated the district court would not dismiss the case with
82prejudice.
83October 7, The district court sentenced Alexander to 120 months imprisonment,
841991" followed by five years of supervised release.
85October The defendant made a timely appeal.
8611,
871991"
II.
88In United States v. Mentz, 840 F.2d 315 (6th Cir.1988), this Court observed that:
89The Speedy Trial Act, 18 U.S.C. §§ 3161-74 (1982) requires that the accused be brought to trial within 70 days from the filing of the information or indictment, or from the date he first appears before a judicial officer of the court in which the charge against him is pending, whichever date last occurs. 18 U.S.C. §§ 3161(c)(1) (1982). The harshness of this strict deadline is mitigated by section 3161(h), which excludes certain periods from the 70-day calculation. S.Rep. No. 212, 96th Cong., 1st Sess. 9 (1979) (Congress saw the need to "build into [the Act's] fixed limits sufficient flexibility to make compliance with them a realistic goal"). See also United States v. Richmond, 735 F.2d 208, 211 (6th Cir.1984).
90Id. at 325 (footnote omitted). The purpose of the Speedy Trial Act "is to quantify and make effective the Sixth Amendment right to a speedy trial." United States v. Robinson, 887 F.2d 651, 656 (6th Cir.1989).
91Alexander challenges the district court's application and interpretation of the Speedy Trial Act. He also challenges the district court's grant of the April 22, 1991, continuance. Because seventy statutorily-defined nonexcludable days did not pass between the indictment and the day scheduled for trial, we AFFIRM the district court's dismissal.
A.
92We review the district court's interpretation of the Speedy Trial Act de novo. United States v. Robinson, 887 F.2d 651, 656 (6th Cir.1989). Alexander makes several discrete challenges to the district court's applications of the Speedy Trial Act on this appeal. We address each contention seriatim below.
93The date of arraignment is excluded for purposes of the Speedy Trial Act. United States v. Mentz, 840 F.2d 315, 326 (6th Cir.1988). We also note that the date on which a motion is filed is also excluded under the Act. United States v. Bond, 956 F.2d 628, 632 (6th Cir.1992).
94Alexander first argues that his motions for extension of time to file pretrial motions (filed on May 4 and May 18) are merely "housekeeping" motions that are granted as a matter of course. See United States v. Crane, 776 F.2d 600, 605 (6th Cir.1985). The Crane court stated that a defense counsel's failure to comply "with certain pretrial orders requiring him to submit lists of trial exhibits and witnesses to the District Court" were "housekeeping orders" that do not toll the running of the Speedy Trial Act. Id. The Court also cautioned against allowing the defense to "sandbag" the trial court with delaying tactics. Id. The government counters that Alexander may not move for a delay in the proceedings and simultaneously get the benefit of that delay for purposes of the Speedy Trial Act.
95As noted in Crane, "[o]ne weakness of the Speedy Trial Act is that it tempts defense counsel to 'sandbag' the trial judge" without tolling the statute. The potential for this abuse is duly noted by this court. Moreover, Alexander's motions for extension are not the types of housekeeping orders referenced by this Court in Crane. Accordingly, the May 4, 1990, motion for extension of time tolled the running of the statute. Fourteen (14) days had passed for purposes of the Act while that motion was pending.
96The time that expires while a motion is pending is also excluded for purposes of the Speedy Trial Act. See 18 U.S.C. § 3161(h)(1)(F) ("delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion"). The district court adopted the Magistrate's report and recommendation on July 3, 1990. The clock would have started to run on July 4. Alexander, however, filed additional motions on July 2, 1990, that remained unresolved until July 5, 1990, when the court denied these motions without requiring a response from the government.
97The government filed leave for an interlocutory appeal from the district court's suppression order on July 6, 1990. Accordingly, once the matter was before this Circuit, the case passed from the jurisdiction of the district court. 18 U.S.C. (h)(1)(E) ("delay resulting from any interlocutory appeal"). This Circuit heard oral arguments on February 8, 1991, and issued its mandate on March 18, 1991, returning jurisdiction to the district court. On April 1, 1991, the clerk of the district court filed this Court's mandate.
98Alexander next contends that the March 18, 1991, issuance of the mandate once again starts the Speedy Trial Act. The government counters that the clock does not restart until the district court has received and filed the mandate. We have recognized that a split of authority does exist, but this Court has not yet addressed the question. United States v. Bond, 956 F.2d 628, 632 (6th Cir.1988). Three of our sister circuits have held that the clock restarts on the day that the mandate issues. See United States v. Crooks, 826 F.2d 4, 5 (9th Cir.1987); United States v. Felton, 811 F.2d 190, 198 (3d Cir.) (en banc), cert. denied, 483 U.S. 1008 (1987); United States v. Robertson, 810 F.2d 254, 259 (D.C.Cir.1987). Conversely, two circuits have held that the date that the mandate is received and filed by the district court is determinative for Speedy Trial Act purposes. United States v. Lasteed, 832 F.2d 1240, 1243 (11th Cir.1987), cert. denied, 485 U.S. 1022 (1988); United States v. Long, 900 F.2d 1270, 1276 (8th Cir.1990).
99This Court finds the Eighth Circuit rationale in Long persuasive. The Eighth Circuit observed in Long that "[t]he district court is unable to proceed to trial until it has received the appellate court's mandate." Long, 900 F.2d at 1276. This approach properly examines when the district court can proceed towards trial following appellate intervention. Accordingly, April 1, 1991, is the date on which the nonexcludable time again began to run under the Act.
100Twenty-two additional excludable days accrued between the filing of the mandate and the district court's grant of the "ends of justice" continuance on April 22, 1991. At this point, thirty-five (35) nonexcludable days had passed for purposes of the Speedy Trial Act.
101The April 22 continuance order tolled the Speedy Trial Act. The continuance was granted in accordance with 18 U.S.C. § 3161(h)(8)(A) until the date set for trial, July 22, 1991. Assuming that the ends of justice continuance was improvidently granted, this Court will determine whether the total number of nonexcludable days between April 22 and July 22, absent the continuance, will give rise to a violation of the Speedy Trial Act.
102On April 26, 1991, Alexander filed a motion to dismiss for violation of the Speedy Trial Act. Three additional days elapsed before this motion was filed bringing the total nonexcludable days to thirty-eight (38). See 18 U.S.C. § 3161(h)(1)(F). The briefing period on this motion, however, was cut short when the district court allowed Alexander to withdraw his motion on June 25, 1991.
103Sixteen additional days elapsed before Alexander renewed his motion to dismiss on July 12, 1991. This brought the number of nonexcludable days for Speedy Trial Act Purposes to fifty-four (54).
104The second motion to dismiss tolled the Speedy Trial Act until the district court denied Alexander's motion to dismiss on July 19, 1991. On July 22, 1991, after two additional days had passed for purposes of the Speedy Trial Act, the case was scheduled to begin trial. Alexander entered the plea agreement which led to the conviction and sentence at issue in this case on July 22. At this point, assuming the ends of justice continuance was improper, only fifty-six (56) nonexcludable days had indeed elapsed. Thus, no Speedy Trial Act violation has occurred.
B.
105The Sixth Circuit has committed the decision to grant a continuance to the sound discretion of the district court as long as it states permissible reasons for granting the delay. United States v. Monger, 879 F.2d 218, 221 (6th Cir.), cert. denied, 110 S. Ct. 552 (1989). Our limited review of the district court's decision to grant a continuance is for abuse of discretion. See id. Reversal of the district court's action requires a showing of actual prejudice by the defendant. Id. Moreover, the Speedy Trial Act states in relevant part:
106Any period of delay resulting from a continuance granted by any judge on his own motion 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 this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
10718 U.S.C. § 3161(h)(8)(A).
108As required by the statute, the district court did affirmatively set forth his rationale for granting the continuance in a written order, which affirmatively stated several rationales for the continuance. If legitimate, any one may serve as a justification for entering this continuance. See 18 U.S.C. § 3161(h)(8).
109Note, however, that we assumed that the "ends of justice" continuance was improper for purposes of the Speedy Trial Act. The outcome of Alexander's appeal, therefore, would be unaffected were we to decide that the continuance was improvidently granted. Accordingly, this Court finds it unnecessary to discuss the propriety of the district court continuance ruling.
III.
110For the foregoing reasons, we AFFIRM the conviction and sentence imposed by the Honorable R. Allan Edgar, United States District Judge for the Eastern District of Tennessee.
Document Info
Docket Number: 91-2210
Citation Numbers: 983 F.2d 1068, 1992 U.S. App. LEXIS 37063
Filed Date: 12/8/1992
Precedential Status: Non-Precedential
Modified Date: 12/22/2014