United States v. Carl Romero , 833 F.3d 1151 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30023
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00388-MJP-1
CARL ROMERO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted May 5, 2016
Seattle, Washington
Filed August 15, 2016
Before: Susan P. Graber, Marsha S. Berzon,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Berzon
2 UNITED STATES V. ROMERO
SUMMARY*
Criminal Law
Affirming a conviction for being a felon in possession of
a firearm, the panel held that the Speedy Trial Act
unambiguously requires the exclusion of all time during
which a defendant is incompetent to stand trial, 18 U.S.C.
§ 3161(h)(4), and other delays that may or may not occur
during a period of incompetency are irrelevant to the Speedy
Trial Act calculation.
COUNSEL
William C. Broberg, II (argued), Law Office of William
Broberg, Seattle, Washington, for Defendant-Appellant.
Teal Luthy Miller (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; Office of the
United States Attorney, Seattle, Washington; for Plaintiff-
Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ROMERO 3
OPINION
BERZON, Circuit Judge:
Appellant Carl Romero challenges his conviction for
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) on the ground that it violated the
Speedy Trial Act. He contends that the district court
improperly excluded 81 days that he maintains amounted to
an “unreasonable” delay under 18 U.S.C. § 3161(h)(1)(F),
which governs the exclusion of transportation-related periods
of delay. Because Romero was incompetent to stand trial
during the relevant period, we conclude that all of the days
were properly excluded under 18 U.S.C. § 3161(h)(4), and we
therefore affirm.
I.
On November 3, 2012, Carl Romero was arrested by
police officers who found a firearm on his person. Romero
had previously been convicted of a felony in Washington
State court. After his 2012 arrest, a grand jury returned an
indictment against Romero, charging him with being a felon
in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). Romero pleaded not guilty.
On the day of his arraignment, the court granted a motion
by Romero’s appointed counsel requesting a mental
competency evaluation. Following that evaluation and a
competency hearing, the court found that Romero was
competent to stand trial. Shortly thereafter, Romero’s
counsel notified the court that Romero wished to represent
himself and asked leave to withdraw on that ground. After
conducting a hearing pursuant to Faretta v. California,
4 UNITED STATES V. ROMERO
422 U.S. 806 (1975), the court found that Romero had
knowingly and voluntarily waived his right to appointed
counsel and allowed him to proceed pro se.
On May 13, 2013, the parties appeared for the first day of
trial. Before beginning jury selection, the court sought to
confirm that Romero wanted to represent himself and that he
would be able to follow the court’s instructions if he did so.
In the exchange that followed, Romero was argumentative,
aggressive, and at times rambling and incoherent. In light of
this behavior, the court determined that Romero would be
unable to follow its directives and, relying on Indiana v.
Edwards, 554 U.S. 164 (2008), ruled that Romero, while
competent to stand trial, was not competent to represent
himself. The court adjourned the case to allow for the
appointment of counsel.
Romero’s newly appointed counsel moved for an
additional continuance to conduct a further evaluation of
Romero’s competence. The district court granted the motion.
Beginning on November 21, the court conducted a two-day
competency hearing. After hearing testimony from the two
experts who had already evaluated Romero, the court ordered
a third, independent competency evaluation.
The next competency hearing took place in March 2014.
Testifying during that hearing, the independent expert opined
that Romero was not competent to stand trial. The district
court issued an order on March 19, 2014, finding Romero not
competent and ordering him “committed to the custody of the
Attorney General for a reasonable period of time, not to
exceed four months, for the purpose of restoration of
competency, pursuant to 18 U.S.C. § 4241(d).” The court
further ordered that “the period of time from November 21,
UNITED STATES V. ROMERO 5
2013, through the conclusion of the period of the defendant’s
commission to the custody of the Attorney General as
referenced above, be excluded from a Speedy Trial Act
computation pursuant to 18 U.S.C. § 3161(h)(1)(A).”
On July 7, 2014, the district court received a letter from
the warden of the United States Medical Center for Federal
Prisoners stating that Romero had not been received for
psychological evaluation and treatment until June 19, 2014.
The letter gave no explanation for the three-month delay
between the court’s transfer order and Romero’s arrival at the
treatment facility. In light of that delay, however, the warden
requested an extension of the period of Romero’s
commitment to 120 days from the date of his arrival.
Romero, through counsel, objected to the proposed extension
and asserted that he “does not waive any rights that he may
have under the Speedy Trial Act.” The district court granted
the extension in a minute order.
In early November, the warden sent the district court a
Certificate of Competency and the report of the doctor who
had treated Romero. The parties next appeared before the
court for a status conference on November 18, 2014, at which
point the court set a trial date for January 20, 2015.
In the interim, the parties jointly moved for a competency
evaluation based on the report of the doctor who evaluated
Romero at the United States Medical Center, along with an
“Addendum Evaluation” by the doctor who initially
determined that Romero was not competent. At a hearing on
December 12, the court determined that Romero was now
competent to stand trial. Upon a renewed request by Romero
to proceed pro se, and after further examination, the court
6 UNITED STATES V. ROMERO
again determined that Romero was not competent to represent
himself.
At the same hearing, the court also reviewed a proposed
order filed by the government, making factual findings and
conclusions of law relevant to the Speedy Trial Act
calculation for the case and setting a new trial date of
December 15, 2014. The order excluded various periods
from the Speedy Trial Act period under different statutory
exclusions. As relevant here, the order excluded the entire
period from December 6, 2013, through December 12, 2014,
under 18 U.S.C. § 3161(h)(1)(A), because Romero’s
“competency was being evaluated,” and also under 18 U.S.C.
§ 3161(h)(7)(B)(i) and (ii) because of the complexity of the
case and because “[a] miscarriage of justice would also likely
result were the Court to proceed to trial without addressing
the competency questions raised by the defense.” Romero’s
counsel conceded that the government’s “calculation of the
excluded periods is correct,” but stressed that Romero “has
not waived any of his speedy trial rights and he continues to
insist on his right to [a] speedy trial.” The court adopted the
proposed order.
At trial, a jury convicted Romero, and the court sentenced
him to 36 months of imprisonment and another 36 months of
supervised release. This appeal followed.
II.
“The Speedy Trial Act of 1974 . . . requires that a
criminal defendant’s trial commence within 70 days after he
is charged or makes an initial appearance, whichever is later.”
Bloate v. United States, 559 U.S. 196, 198–99 (2010)
(citation omitted). The Act further provides, however, that
UNITED STATES V. ROMERO 7
delays caused by certain enumerated events “shall be
excluded in computing . . . the time within which the trial . . .
must commence.” 18 U.S.C. § 3161(h). Romero argues on
appeal that the district court erred in making its Speedy Trial
Act calculation by excluding 81 of the 91 days between
March 19, 2014, when the court ordered Romero committed
to the custody of the Attorney General for the purpose of
restoring his competency, and June 19, 2014, the day on
which Romero actually arrived for treatment.1
The parties’ dispute on this point hinges on the
intersection of several of the exclusion provisions in the Act.
Title 18 U.S.C. § 3161(h)(1) provides for the exclusion of
various “period[s] of delay resulting from other proceedings
concerning the defendant.” As relevant here, these include
“delay resulting from any proceeding, including any
examinations, to determine the mental competency or
physical capacity of the defendant,” id. § 3161(h)(1)(A), and
“delay resulting from transportation of any defendant from
another district, or to and from places of examination or
hospitalization, except that any time consumed in excess of
ten days from the date 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). The statute also provides for the exclusion
of “[a]ny period of delay resulting from the fact that the
defendant is mentally incompetent or physically unable to
stand trial.” id. § 3161(h)(4).
1
Romero suggests that the district court may also have wrongly
excluded certain periods between October 18, 2014, and November 17,
2014, but he nowhere identifies those periods. He concedes that the
remainder of the district court’s Speedy Trial Act calculations were
correct.
8 UNITED STATES V. ROMERO
The district court’s Order Governing Speedy Trial Act
Computation excluded the entire period from December 6,
2013, through December 12, 2014, under 18 U.S.C.
§ 3161(h)(1)(A), because Romero’s “competency was being
evaluated,” and also under 18 U.S.C. § 3161(h)(7)(B)(i) and
(ii) because of the complexity of the case and because “[a]
miscarriage of justice would also likely result were the Court
to proceed to trial without addressing the competency
questions raised by the defense.” The order did not
differentiate among any specific periods within that time
frame.
As an initial matter, the parties agree that the district court
could not properly rely on § 3161(h)(1)(A) to exclude the
period beginning on March 19, 2014, when the court found
that Romero was not competent to stand trial. That section
applies to delays “resulting from any proceeding . . . to
determine the” competency of a defendant. 18 U.S.C.
§ 3161(h)(1)(A) (emphasis added). As of March 19,
however, Romero’s competency had been determined — his
examinations and treatment from that point onward were for
the purpose of restoring his competency.
The government nonetheless argues that this error was
harmless because, “[w]hen the district court found that
Romero was incompetent, a different provision of the [Act]
came into play: section 3161(h)(4).” The government argues
that § 3161(h)(4) automatically excludes all time during
which a defendant is incompetent, whether or not any other
provisions of the Act apply. Romero, on the other hand,
argues that the period between the district court’s March 19,
2014 order and June 19, when Romero arrived at the
treatment facility, is governed by § 3161(h)(1)(F), the so-
called transportation exclusion. Because § 3161(h)(1)(F)
UNITED STATES V. ROMERO 9
provides that any delays in excess of 10 days are presumed
unreasonable and thus not excluded, Romero maintains that
the Speedy Trial Act clock ran for 81 of the 91 days before he
was transferred for treatment, and that his conviction
therefore violated the Act.
We agree with the government that the entire period
between March 19, 2014 — when Romero was declared
incompetent — and December 12, 2014 — when the district
court determined that his competency had been restored — is
excludable under § 3161(h)(4). The plain meaning of the
statute supports this conclusion. The statute provides that
“[a]ny period of delay resulting from the fact that the
defendant is mentally incompetent” “shall be excluded” from
the Speedy Trial Act calculation. 18 U.S.C. § 3161(h)(4)
(emphases added). On its face, this provision is absolute; any
period during which a trial cannot commence because of a
defendant’s incompetence must be excluded. The provision’s
legislative history supports this interpretation, explaining that
§ 3161(h)(4) “provides for the exclusion from the time limits
between arrest and trial of the period during which a
defendant is incompetent to stand trial.” H.R. Rep. No. 93-
1508, at 33 (1974), as reprinted in 1974 U.S.C.C.A.N. 7401,
7426.
The Supreme Court’s Speedy Trial Act case law further
supports this result. In United States v. Tinklenberg, 563 U.S.
647, 650 (2011), the Court held that the exclusions listed
under § 3161(h)(1) apply automatically, “irrespective of
whether” one of the enumerated events “actually causes, or is
expected to cause, delay in starting a trial.” Section
3161(h)(1), the Court explained, should be understood as an
example of a statute that “specif[ies] that a set of
circumstances exhibits a certain characteristic virtually as a
10 UNITED STATES V. ROMERO
matter of definition and irrespective of how a court may view
it in a particular case.” Id. at 654. Because requiring a
factual inquiry into the applicability of the provisions in every
instance would render them “significantly more difficult to
administer,” and thus “significantly hinder the Speedy Trial
Act’s efforts to secure fair and efficient criminal trial
proceedings,” the Court held that § 3161(h)(1) should apply
automatically, without regard to the factual circumstances of
individual cases. Id. at 657.
The same reasoning applies to § 3161(h)(4), which, like
§ 3161(h)(1), describes a specific “period of delay” which
“shall be excluded” from the Speedy Trial Act calculation.
The Supreme Court has “repeatedly and consistently
recognized that ‘the criminal trial of an incompetent
defendant violates due process.’” Cooper v. Oklahoma,
517 U.S. 348, 354 (1996) (quoting Medina v. California,
505 U.S. 437, 453 (1992)). Given this foundational principle
of our criminal justice system, it would make little sense to
require a district court to inquire into the applicability of
§ 3161(h)(4) in individual cases. Rather, given that a
defendant’s incompetence makes a trial impossible in every
instance, § 3161(h)(4) applies upon a finding of
incompetence “as a matter of definition and irrespective of
how a court may view it in a particular case.” Tinklenberg,
563 U.S. at 654.
In short, we conclude that the Speedy Trial Act
unambiguously requires the exclusion of all time during
which a defendant is incompetent to stand trial. Because this
is so, other delays that may or may not occur during a period
UNITED STATES V. ROMERO 11
of incompetence are irrelevant to the Speedy Trial Act
calculation;2 they cannot change the statutory bottom-line.
With respect to the transportation exclusion in particular,
we first note our skepticism that it applies at all in
circumstances like those presented here. Section
3161(h)(1)(F) appears under the broader umbrella of
§ 3161(h)(1), which requires the exclusion of “[a]ny period
of delay resulting from other proceedings concerning the
defendant, including but not limited to” the section’s eight
subparts. 18 U.S.C. § 3161(h)(1) (emphasis added). Because
each of the subparts is listed as an example of “delay
resulting from . . . proceedings concerning the defendant,” it
appears that a transportation delay under § 3161(h)(1)(F)
must, in some way, be related to such a “proceeding.”
“Proceeding,” in legal parlance, ordinarily refers to a
transaction before a court or other adjudicatory or
administrative body. See Black’s Law Dictionary (10th ed.
2014). Thus, for example, the provision would apply to a
delay in transporting a defendant for psychological evaluation
as part of a legal “proceeding” to determine his competency.
But here, as discussed above, all such proceedings concluded
with the determination that Romero was not competent.
Section 3161(h)(1)(F), then, is likely inapplicable for the
same reason § 3161(h)(1)(A) does not pertain — there was no
proceeding pending when the delay took place. To the
contrary, all proceedings had necessarily been put on hold
until Romero’s competency was restored.
2
We express no opinion here as to whether such delays may affect the
reasonableness of an incompetent defendant’s detention under 18 U.S.C.
§ 4241(d)(2). See United States v. Strong, 489 F.3d 1055, 1061 (9th Cir.
2007).
12 UNITED STATES V. ROMERO
Ultimately, however, we need not resolve this question.
Even if § 3161(h)(1)(F) does apply in the absence of a
“proceeding,” nothing in that provision suggests that it should
trump the requirements of § 3161(h)(4). As noted,
§ 3161(h)(1)(F) requires the exclusion of any “delay resulting
from transportation of any defendant . . . except that any time
consumed in excess of ten days . . . shall be presumed to be
unreasonable.” 18 U.S.C. § 3161(h)(1)(F). The presumption
that delays in excess of ten days are “unreasonable” is best
understood merely to preclude the application of the
transportation exclusion itself to the additional time. Where,
as here, a different exclusion provision also applies, nothing
in the statute suggests that it should not operate as usual.
Romero argues that § 3161(h)(1)(F) must control under
the “specific-controls-the-general canon,” according to which
we “avoid interpretations that render superfluous more
specific [Speedy Trial Act] provisions.” United States v.
Hernandez-Meza, 720 F.3d 760, 764 (9th Cir. 2013). That
canon does not apply here, because neither section is
necessarily more specific than the other. Section
3161(h)(1)(F) applies to the transportation of defendants not
only as a result of their incompetence, but also “from another
district, or to and from places of examination or
hospitalization.” While it might be argued that the
transportation exclusion is more specific, because it applies
only when a defendant is moved from one place to another,
it could just as well be argued that § 3161(h)(4) is the more
specific provision, given that it applies only in the case of
incompetence, whereas § 3161(h)(1)(F) applies to a wide
range of transportation delays. Section 3161(h)(1)(F), in
other words, applies in circumstances where § 3161(h)(4)
does not, and vice versa, so our reliance on § 3161(h)(4)
UNITED STATES V. ROMERO 13
cannot “render [§ 3161(h)(1)(F)] superfluous.” Hernandez-
Meza, 720 F.3d at 764.
For these reasons, we affirm the district court’s Speedy
Trial Act ruling.3
AFFIRMED.
3
Because we affirm on this basis, we do not consider the government’s
alternative argument that the time was excludable as a so-called “ends of
justice” continuance under 18 U.S.C. § 3161(h)(7).