United States v. Tinklenberg , 579 F.3d 589 ( 2009 )

JULIA SMITH GIBBONS, Circuit Judge,

concurring.

I agree that Jason Tinklenberg’s trial violated the Speedy Trial Act and concur in all of the majority opinion except for Part I.C. I write separately to clarify my views on several of the difficult issues presented.

First, I agree with the majority that the plain language of § 3161(h)(1)(D) requires us to exclude from the Speedy Trial Act clock the day on which a motion is filed. See 18 U.S.C. § 3161(h)(1)(D) (excluding “delay resulting from any pretrial motion, from the filing of the motion” (emphasis added)). To the extent that our case law on this point conflicts, the earlier in time disposition controls because a published opinion of this court is binding on subsequent panels. See United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir.2008). The earliest case I have located, United States v. Richmond, 735 F.2d 208, 212 (6th Cir.1984), held that the day on which a motion is made is “automatically excludable.” Richmond is both consistent with the statutory language and, absent any prior published opinion of this court to the contrary, controlling. In light of Richmond, I concur in the majority’s conclusion that the day on which a motion is filed is excludable.

I disagree, however, with the majority’s conclusion regarding delays in transportation time to and from a mental competency examination. The Speedy Trial Act requires that a defendant be brought to trial within seventy days, see 18 U.S.C. § 3161(c)(1), subject to certain excludable periods. One such excludable period is any period of “delay resulting from any proceeding, including any examinations, to determine the mental competency ... of the defendant.” 18 U.S.C. § 3161(h)(1)(A). Consequently, all “time associated with mental competency examinations [is] excluded from the Speedy Trial clock.” United States v. Murphy, 241 F.3d 447, 455-56 (6th Cir.2001); see also Henderson v. United States, 476 U.S. 321, 327, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). Here, the period from November 2, 2005, through March 23, 2006, was excludable pursuant to § 3161(h)(1)(A). Notwithstanding the plain language of § 3161(h)(1)(A), however, the majority concludes that § 3161(h)(1)(F) limits the amount of excludable time spent in transportation to a mental competency examination. (Maj. Op. at 596.) I respectfully disagree. Section 3161(h)(1)(F) provides that any “delay [in excess of ten days] resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization ... shall be presumed to be unreasonable.” As is clear from the language of § 3161(h)(1)(F), that provision does not speak to competency proceedings. Rather, it addresses more generally those situations in which a defendant may need to be transported to the hospital for testing. See, e.g., United States v. Garrett, 45 F.3d 1135, 1137, 1139-40 (7th Cir.1995) (defendant transported to hospital for pulmonary testing). Section 3161(h)(1)(A), by contrast, provides a specific exclusion for any time associated with mental competency proceedings. I see no reason why the specific provision of § 3161(h)(1)(A) should be qualified by the more general provision of § 3161(h)(1)(F). See Sprague v. Gen. Motors Corp., 133 F.3d 388, 405 (6th Cir.1998). In fact, we reached the same conclusion in Murphy. See 241 F.3d at 456; see also United States v. Vasquez, 918 F.2d 329, 333 (2d Cir.1990). The defendant in Murphy raised the same argument that Tinklenberg raises here, namely, that “a total of ten days can count as excludable time for transportation ‘to and from’ the place of examination and that any other delay is ‘presumed to be unreasonable.’ ” Murphy, 241 F.3d at 455. We rejected this argument:

We note that Defendant fails to point this Court to any evidence in the record demonstrating the dates upon which he was transported to and from the facility where the examination was conducted or the actual dates that Defendant was admitted or released from the facility. We also conclude that Defendant’s contention is without merit.

Id. (emphasis added). The majority insists, however, that we did not decide the question in Murphy because “the defendant’s failure to submit any evidence of the duration of his transportation in support of his argument for a ten-day limitation allowed this Court to reject the defendant’s argument without reaching its merits.” (Maj. Op. at 596 n. 2.) This characterization of Murphy is refuted by the language quoted above.

Based on the plain language of the Speedy Trial Act and our prior decision in Murphy, I would find all time associated with Tinklenberg’s mental competency examination, including transportation time, excludable pursuant to § 3161(h)(1)(A). Tinklenberg entered his initial appearance on October 31, 2005. One day elapsed before Tinklenberg filed a motion for a psychological evaluation to determine his competency to stand trial on November 2, 2005. The district court granted the motion and ordered psychological testing. After receiving a written evaluation and holding a competency hearing, the court found Tinklenberg to be competent in an order dated March 23, 2006.¹ Five days elapsed between the court’s finding of competency on March 23, 2006, and March 29, 2006, when Tinklenberg filed a motion for an independent psychological examination. The court granted Tinklenberg’s motion, received the second written evaluation on June 9, 2006, and made a second finding of competency. Sixty-five additional days elapsed between June 9, 2006, and the start of Tinklenberg’s trial on August 14, 2006. By my calculations, a total of seventy-one nonexcludable days elapsed between October 31, 2005, and August 14, 2006 — one day beyond what the Speedy Trial Act allows. See 18 U.S.C. § 3161(c)(1).

As to motions that do not delay the start of trial, several prudential considerations would prevent me from reaching the issue. First, it appears to be waived. Tinklenberg has not raised it in his appellate brief, a fact that ordinarily precludes our review. See Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir.2003). Nor did he raise it in his August 11, 2006, Speedy Trial Act motion to the district court. See Molinar-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 662 (6th Cir.2008). To the contrary, in his motion for reconsideration in the district court, Tinklenberg apparently accepted the proposition that certain days in August of 2006 were properly excluded pursuant to § 3161(h)(1)(D) although they did not delay trial. Second, I would not penalize the government and the district court for acting, in the absence of any controlling authority, upon the quite reasonable assumption that our circuit would align with the others to have considered the issue in finding those days to be ex-cludable. Nevertheless, because the majority reaches the issue, I note my agreement with the majority’s reading of § 3161(h)(1)(D) as a matter of statutory interpretation. After today, district courts should not exclude from the Speedy Trial clock days that are consumed by motion practice but that do not cause actual delay.

I agree, therefore, that the Speedy Trial Act was violated. Whether Tinklenberg’s indictment should be dismissed with or without prejudice presents a closer question. As the majority acknowledges, several of the statutory factors point toward dismissal without prejudice. See 18 U.S.C. § 3162(a)(2). There is no suggestion of improper behavior on anyone’s part. Rather, “the district court’s error in this case was a good-faith misinterpretation of the Speedy Trial Act’s requirements that resulted in a relatively short delay of the trial.” See United States v. Howard, 218 F.3d 556, 561 (6th Cir.2000). Neither the government nor the district court could have been expected to anticipate our disagreement with the other ten circuits to have considered the § 3161(h)(1)(D) issue. Moreover, a dismissal with prejudice may have a negative impact on the administration of justice, see § 3162’(a)(2), in that the instant offense will be erased from Tinklenberg’s record. Should Tinklenberg be prosecuted again in the future, his record will not reflect the true extent of his criminal history. Despite these concerns, I agree that retrying Tinklenberg would be a poor use of government resources and serve no worthwhile purpose. I therefore join the majority in finding that dismissal with prejudice is warranted.

1 . Although not dispositive in this case, I note that the court actually concluded that Tinklenberg was competent at the hearing held on the previous day. We have held, albeit in an unpublished disposition, that the § 3161(h)(1)(A) proceeding to determine the mental competency of the defendant is complete "when, after a competency hearingL] the court declare[s the defendant] competent to stand trial.” United States v. Moore, 961 F.2d 1579, 1992 WL 92740, at *5 (6th Cir. 1992) (per curiam). That is, the day on which the court makes a finding of competency, rather than the day on which the written order of competency is docketed, should control the Speedy Trial Act clock. Here, the difference of one day does not affect my conclusion that the Speedy Trial Act was violated.