United States v. Nakia Adams

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 19-1811 & 19-2574
____________
UNITED STATES OF AMERICA
v.
NAKIA ADAMS, a/k/a S, a/k/a Shawn
Appellant
____________
On Appeal from the District Court for the
Eastern District of Pennsylvania
(D.C. No. 5:15-cr-00580-001)
District Judge: Hon. Jeffrey L. Schmehl
____________
Argued September 8, 2021
Before: KRAUSE, RESTREPO and BIBAS, Circuit Judges
(Opinion Filed: May 26, 2022)
Salvatore C. Adamo [ARGUED]
1866 Leithsville Road – No. 306
Hellertown, PA 18055
Counsel for Appellant
Robert A. Zauzmer
Eric A. Boden [ARGUED]
Eric B. Henson
Office of United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
____________
OPINION OF THE COURT
____________
KRAUSE, Circuit Judge.
With the passage of the Speedy Trial Act, 18 U.S.C.
§§ 3161–3174, Congress codified a defendant’s right either to
be tried within seventy days of arraignment or indictment or to
have all charges dismissed. But it also sought to ensure that
the speedy trial was a fair one, so it excluded from the running
of the so-called “speedy trial clock” certain periods of delay.
Three are at issue in this appeal where Nakia Adams was not
tried until nearly two years after his arraignment and now
contends that his conviction must be vacated on Speedy Trial
Act grounds.
Adams argues that an open-ended continuance granted
by the District Court did not meet the Act’s criteria for tolling
under § 3161(h)(7)(A), that the motions in limine filed by the
Government did not qualify for the Act’s exclusion of “delay
resulting from any pretrial motion” under § 3161(h)(1)(D), and
2
that his motion for discovery did not toll the clock under
§ 3161(h)(1)(D) from its filing through its official disposition.
Because we conclude those periods of delay were excluded, we
reject Adams’s claim that he was tried in violation of the
Speedy Trial Act. And because we also reject Adams’s second
claim—that the District Court plainly erred in failing to instruct
the jury on the “knowledge-of-status” element under Rehaif v.
United States, 139 S. Ct. 2191 (2021)—we will affirm the
District Court as to all counts of conviction.
I. Background
Following a jury trial in October 2017, Nakia Adams
was convicted on twenty counts of a superseding indictment,
including eight for felon-in-possession of a firearm under 18
U.S.C. § 922(g)(1) and twelve for making false statements to
federally licensed firearms dealers under 18 U.S.C.
§ 924(a)(1)(A). These charges arose out of a straw-purchaser
scheme, which Adams devised to illegally acquire firearms that
he then sold or traded for drugs in Newark, New Jersey. Being
himself a convicted felon, Adams was prohibited from legally
possessing firearms; instead, he recruited individuals with
clean criminal records to serve as his straw purchasers.
The scheme ground to a halt after Adams was arraigned
on his original indictment on December 16, 2015.1 Trial was
1
The original indictment included twelve counts: one
for conspiracy under 18 U.S.C. § 371, seven for making false
statements to federal firearms licensees under 18 U.S.C.
§ 924(a)(1)(A), and four for felon in possession of a firearm
3
initially scheduled for February 16, 2016, but it was
rescheduled for May 16 after Adams moved for a continuance
on February 4. The record from that point on is fraught with
what the District Court later characterized as “numerous
continuances [and] unnecessary motions,” caused by Adams’s
“obstreperous behavior.” J.A. 29. The District Court judge
handled these continuances and motions with commendable
professionalism, but they nonetheless resulted in more than a
year of delay. We focus on three sources of that delay central
to this appeal.
First is a continuance that the District Court sought to
enter on May 25. Adams filed two pro se motions on April 4
and April 25, respectively. One was to replace his defense
counsel, and the other was for unspecified discovery materials.
Those motions prompted the District Court to strike the May
16, trial date and to schedule a hearing on them for May 25. At
the hearing, however, it became apparent that the motions’
resolution would not be straightforward. Adams explained that
his discovery motion was motivated, in part, by his desire to
personally review discovery materials, so the Court directed
the parties to negotiate a stipulated protective order to
accommodate Adams’s request without compromising
sensitive cooperator information.
The Court also addressed Adams’s motion for new
counsel, explaining to him that changing attorneys several
months into the case would “delay [his] trial” because the
Court would need to find and appoint a “new attorney” and
under 18 U.S.C. § 922(g)(1). The grand jury returned a
superseding indictment on February 2, 2016.
4
give Adams time to “meet with that . . . attorney.” J.A. 133.
On more than one occasion, Adams acknowledged he
“underst[ood]” that a new appointment would “delay [] trial,”
but he made clear he wished nonetheless to substitute counsel.
Id. The hearing concluded with the Court’s statement that it
would “appoint counsel, and then schedule a future status
hearing . . . and possibly pick a trial date at that point in time.”
J.A. 146. Notably, the judge did not set a particular date for
that future hearing or for trial. He also did not cite 18 U.S.C.
§ 3161(h)(7)(A), which allows district courts to pause the
speedy trial clock by entering a continuance, or state that this
continuance would serve the “ends of justice.”
The May 25 hearing was not the last word on Adams’s
discovery motion, which is the next source of delay that
concerns us. Following the hearing, the Government and
Adams’s new counsel, who entered the case on June 1,
negotiated a stipulated protective order that outlined the
materials Adams was entitled to review personally. That order
was entered on June 21,2 but over the next few weeks, Adams’s
counsel became concerned it was potentially ambiguous.
Thus, at a subsequent hearing on July 11, he suggested that the
parties “present another order for the Court, just so it’s clear to
everyone which documents [counsel was] permitted to give
[Adams].” J.A. 152. The Court agreed and entered a clarifying
order on July 20. On August 18, the Court denied Adams’s
discovery motion on the ground that “he was (and still is)
2
The record is ambiguous on whether this protective
order was entered on June 20 or June 21. The parties agree
that the order was entered on June 21, and we have
accordingly settled on that date.
5
represented by counsel, and therefore, not entitled to file
motions pro se.” Supp. App. 3.
The final delay that looms large here resulted from two
motions in limine filed by the Government on August 17, 2016:
a Rule 404(b) motion to introduce evidence at trial concerning
Adams’s straw purchases and heroin trafficking; and a Rule
609(a) motion to introduce one of his prior felony convictions,
should Adams choose to testify. The District Court issued an
order directing Adams to respond to those motions no later
than September 28 and held argument on November 7. At the
end of argument, however, the Court opted against “making a
ruling” at that time, stating that “motions in limine[] are issues
that continue almost up until the point of trial.” J.A. 189.
At this point, trial was scheduled for November 30.
Before trial could commence, however, Adams requested to
proceed pro se, prompting the District Court to reschedule trial
for June 12, 2017, to allow Adams to move forward without
counsel. And trial did begin on that date. But again, it did not
go smoothly and was cut short due to Adams’s conflict with
his attorney. A new trial commenced several months later.
The jury returned a guilty verdict on all twenty counts
of the superseding indictment on October 17, 2017. And the
evidence supporting those convictions was substantial.
Evidence of the scheme included testimony from five straw
purchasers, who described how Adams inquired into their
criminal records, only recruited buyers without prior
convictions, and typically compensated them with drugs. They
explained how, once recruited, they bought guns at Adams’s
direction at various federally licensed firearm dealers, and
before each transaction, were required to fill out forms issued
6
by the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”). According to these witnesses, Adams directed them
to lie on the forms by attesting that they were the guns’ true
purchasers and coached them on how to respond to each
question, including one confirming that they had no prior
felony convictions. He also advised them that they would be
subject to criminal background checks for the purchases made
in Pennsylvania, which comprised the majority.
Regarding proof of the § 922(g) felon-in-possession
charges, Adams entered a so-called Old Chief stipulation,
confirming the existence of his prior felony conviction, see Old
Chief v. United States, 519 U.S. 172 (1997), and the judge
ultimately instructed the jurors on the elements of a § 922(g)
offense as they were understood at the time, including (1) “that
the defendant has been convicted of a felony,” (2) “that after
this conviction the defendant knowingly possessed a firearm,”
which merely required “the government [to] prove that the
defendant possessed the firearm in question,” and (3) that the
firearm was “in or affected interstate or foreign commerce.”
J.A. 1217–20.
On two occasions in the lead up to his conviction,
Adams argued that he had not been brought to trial within the
time required by the Speedy Trial Act. On November 16, 2016,
he moved to dismiss the superseding indictment, claiming that
his rights under the Act had been violated because his former
counsel had moved for the February 4, 2016, continuance
without his knowledge. The District Court denied that motion
because the continuance was valid, regardless of whether
Adams knew that his attorney had asked for it. In his second
motion to dismiss, Adams again alleged a Speedy Trial Act
7
violation but did not offer specific arguments in support of his
claim. That motion was likewise denied on October 17, 2017.
Upon conviction, Adams again raised this argument in
his motion for acquittal or alternatively for a new trial. The
District Court denied this motion on January 16, 2019, and said
it would not “allow Mr. Adams to use the Speedy Trial Act as
a shield for his obstreperous behavior,” citing his “numerous
continuances, unnecessary motions, and representation by
three different attorneys,” as well as the “numerous delays”
resulting from Adams “attempt[ing] to proceed pro se” after
repeatedly firing his appointed counsel. J.A. 29–30. Because
it viewed “all delays [as] directly attributable to Mr. Adams,”
the District Court concluded there had been no violation of his
right to a speedy trial, and the case proceeded to sentencing.3
Id. at 29.
At his sentencing hearing, Adams raised a different
argument: that he was entitled to a new trial on the felon-in-
possession counts in light of Rehaif v. United States, 139 S.
3
The District Court seems to have improperly
analyzed Adams’s motion as an alleged violation of his
constitutional speedy trial rights, rather than his rights under
the Speedy Trial Act. J.A. 29. As a result, the Court did not
count the days that had elapsed between Adams’s
arraignment and his second trial and did not consider how
much of that time could be excluded under the Act’s
enumerated exceptions. Instead, it applied the four-part
balancing framework outlined in Barker v. Wingo, 407 U.S.
514 (1972), which considers (1) the length of delay, (2) the
reason for the delay, (3) the defendant’s assertion of his right,
and (4) the prejudice to the defendant. J.A. 29–31.
8
Ct. 2191 (2019). The Supreme Court had held in that case
that 18 U.S.C. § 924(a)(2)’s requirement that a defendant
“knowingly violate” § 922(g)(1) demanded proof that the
felon had knowledge of the possession of a firearm, but also
of his status as a felon. Id. at 2194, 2200. It clarified, in
other words, that the mens rea for the offense requires “both
that the defendant knew he possessed a firearm and that he
knew he belonged to the relevant category of persons barred
from possessing a firearm.” Id. at 2200.
Before Rehaif, we and other Courts of Appeals had
believed this knowledge element was limited to the knowing
possession of a firearm, see United States v. Higdon, 638 F.3d
233, 239–40 (3d Cir. 2011), and the District Court’s jury
instructions reflected as much.4 Adams did not object to
those instructions at trial, but, at sentencing, he argued that
the District Court’s failure to instruct the jury on the
“knowledge-of-status” element required that his § 922(g)(1)
convictions be vacated. The District Court disagreed, entered
final judgment of conviction, and sentenced Adams to 235
months’ imprisonment, followed by three years of supervised
release. This appeal followed.
II. Jurisdiction & Standard of Review
The District Court had jurisdiction under 18 U.S.C.
§ 3231 because Adams was charged in an indictment alleging
4
The eight felon-in-possession counts in the
superseding indictment likewise alleged only that Adams
“knowingly possessed” firearms.
9
violations of federal criminal law. We have appellate
jurisdiction under 28 U.S.C. § 1291.
As a general matter, we review a district court’s legal
determinations de novo, its factual findings for clear error, and
its decisions to grant continuances for abuse of discretion.
United States v. Shulick, 18 F.4th 91, 100 (3d Cir. 2021). When
a legal question was not preserved at trial, however, we review
the district court’s ruling for plain error. Greer v. United
States, 141 S. Ct. 2090, 2096 (2021).
III. Discussion
Adams raises two claims on appeal. He first asks that
we vacate his conviction in its entirety on the ground that he
was not brought to trial within the time required under the
Speedy Trial Act. In the alternative, he argues that, because
the District Court’s failure to instruct the jury on the
“knowledge-of-status” element constituted plain error under
Rehaif, he is entitled to a new trial at least on the § 922(g)(1)
counts. For the reasons set forth below, neither argument is
persuasive.
A. The Speedy Trial Act Claim
Under the Speedy Trial Act, a defendant must be
brought to trial within seventy days of the date of the
indictment or the date on which the defendant first appeared in
the court where the charges are pending, whichever is later. 18
U.S.C. § 3161(c)(1). The indictment “shall be dismissed,” if
the defendant is not tried within that time frame. 18 U.S.C.
§ 3162(a)(2). Strict as that rule is, it is tempered by enumerated
exceptions, including two that are relevant here. First, a district
10
court may grant a continuance and toll the speedy trial clock
by making a finding, on the record, that the “ends of justice”
served by granting a continuance “outweigh the best interest of
the public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7). Second, if a party files a “pretrial motion,” the
speedy trial clock is tolled for the “delay resulting from” that
motion from the time of its filing until “the conclusion of the
hearing on, or other prompt disposition of, such motion.” 18
U.S.C. § 3161(h)(1)(D).
In this case, the speedy trial clock commenced with
Adams’s arraignment on December 16, 2015 because he did
“not appear before a judicial officer prior to his original
indictment, [so] his arraignment . . . constituted his initial
appearance for Speedy Trial Act purposes.” United States v.
Willaman, 437 F.3d 354, 357 (3d Cir. 2006); see also United
States v. Reese, 917 F.3d 177, 181 (3d Cir. 2019). The parties
agree that forty-five days had elapsed on the clock as of
February 4, 2016, and Adams does not dispute the exclusion of
all days after September 28, 2016, once he filed responses to
the Government’s motions in limine. This appeal therefore
centers on the 236-day period between February 4 and
September 28.
Certain days during that period were indisputably
excluded, but if twenty-five days ran between those dates, then
those days, combined with the prior forty-five, would exceed
the seventy-day statutory cap. On the other hand, if sufficient
days were excluded by one or more of the motions filed and
continuances granted during that period, Adams’s Speedy Trial
11
Act claim must fail.5 Only three need concern us today, as the
speedy trial clock could not have expired if the District Court
properly entered an ends-of-justice continuance on May 25,
2016 or if the clock was tolled by a combination of Adams’s
April 25, 2016, discovery motion and the Government’s
August 17, 2016, motions in limine. We address each below.
1. Ends-of-Justice Continuance
The Speedy Trial Act permits a district court to pause
the speedy trial clock during “[a]ny period of delay resulting
from [the granting of] a continuance,” but only if 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 [a] continuance outweigh the best interests of the
public and the defendant in a speedy trial.” 18 U.S.C.
5
There is no dispute that one day elapsed on
December 17, 2015, when no pretrial motions or
continuances were outstanding, as did another forty-four
between December 22, 2015 and February 4, 2016. In
addition to the motions and continuances that we address in
detail, the clock was tolled from December 18 through
December 21 by Adams’s pending motion to extend time to
file pretrial motions, by an open-ended continuance entered
by the District Court on February 8, 2016, and by Adams’s
motion to remove his defense counsel on April 4, 2016. The
parties dispute when the February 8 continuance expired, but
we need not resolve that question, as the number of days at
issue is immaterial. They agree that the April 4 motion to
remove his counsel tolled the clock until June 1, when the
Court resolved the issue by appointing replacement counsel.
12
§ 3161(h)(7)(A) (emphasis added). The District Court sought
to enter an open-ended continuance during a hearing on May
25, 2016, in which it considered Adams’s April 4 motion for
new counsel and his April 25 discovery motion.
Adams argues that the Court could not have entered a
valid continuance without either citing the relevant statutory
provision or invoking the words “ends of justice.” This
argument fails because our precedent affords district courts
significant leeway in complying with § 3161(h)(7)(A)’s
procedural requirements.6 It is true that, if a District Court
enters a “continuance order [that] cites the relevant provision
of the [Speedy Trial] Act” or “states that it is for the ‘ends of
justice,’” it streamlines our analysis: in that circumstance, the
court need not provide factual justifications for the continuance
at the time it is entered but can instead “supplement[] the
record with further details” on why a continuance serves the
“ends of justice” at a later date. Reese, 917 F.3d at 182 (citing
United States v. Brooks, 697 F.2d 517, 521–22 (3d Cir. 1982)).
But it is also true that a district court may enter a continuance
without citing the Act or referencing the ends of justice “so
long as the court explains a valid factual basis for the
continuance on the record” and in a manner that shows the
6
The Supreme Court “has not elaborated on the
timing, procedures, or substantive standards that must be
satisfied for a district court” to enter a continuance, Reese,
917 F.3d at 182, apart from requiring factual findings to be
entered “by the time [the court] rules on the defendant’s
motion to dismiss,” Zedner v. United States, 547 U.S. 489,
507 (2006). We have therefore found it necessary to fill in
the gaps through our case law. See Reese, 917 F.3d at 182.
13
court “balanced the interests of the public and of all of the
defendants.” Id. (citing and quoting United States v. Rivera
Constr. Co., 863 F.2d 293, 297 (3d. Cir. 1988)). What a district
court cannot do is exclude time through a continuance “without
either stating the factual basis” for doing so or “using language
that invokes” the statute. Id. (citing United States v. Brenna,
878 F.2d 117, 122 (3d Cir. 1989)) (emphasis added).
During the May 25 hearing, the District Court resolved
to appoint Adams a new attorney and asked the parties to enter
a stipulated protective order, outlining which discovery
materials Adams was entitled to review. Having struck the
outstanding trial date, the Court then explained that:
I’m going to appoint counsel, and then schedule a future
status hearing, so that we can all get together and [] Mr.
Adams [] and his counsel can tell us what they’ve done
so far, what they need to do, what they want to schedule
in the future, and possibly pick a trial date at that point
in time . . . . Because there still are, as I see it, some
outstanding discovery issues.
J.A. 146.
While the District Court did not cite the statute or use
the “magic words,” statements on the record make clear that it
had a “valid factual basis for the continuance” and that it
balanced the relevant interests.7 Reese, 917 F.3d at 182. In
7
To ensure compliance and avoid putting convictions
in jeopardy, some judges in the Eastern District of
Pennsylvania have employed a form of order that excludes
14
considering Adams’s pro se motion for new counsel, the Court
found that there had been an “attorney[-]client breakdown,”
J.A. 132, and that Adams could not mount a proper defense
without new representation. It recognized that new counsel
would be involved in resolving outstanding discovery issues
and explicitly warned Adams that, if he moved forward with
his request to change attorneys, “delay[ing] [his] trial” would
be unavoidable because the Court would need to find and
appoint a “new attorney” and give Adams time to “meet with
that [] attorney.” J.A. 133. In response, Adams repeatedly
acknowledged that changing his representation would cause a
delay and that he nonetheless was requesting new counsel.
That colloquy reflects that the District Court delayed trial to
protect Adams’s Sixth Amendment right to counsel, which is a
time on the basis of ends-of-justice continuances. See, e.g.,
Order, United States v. Myers, No. 20-cr-210, ECF 85 (E.D.
Pa. Jan. 31, 2022); Order, United States v. Brown, No. 20-cr-
013, ECF 45 (E.D. Pa. Oct. 19, 2021); Order, United States v.
Salerno, No. 20-cr-320, ECF 28 (E.D. Pa. July 21, 2021);
Order, United States v. Woodley, No. 15-cr-340, ECF 12
(E.D. Pa. Oct. 7, 2015); Order, United States v. Vargas, No.
14-cr-652, ECF 71 (E.D. Pa. May 11, 2015); United States v.
O’Brien, No. 15-cr-021, ECF 42 (E.D. Pa. Mar. 25, 2015);
United States v. Broaster, No. 12-cr-533, ECF 95 (E.D. Pa.
Jan. 29, 2013); Order, United States v. Sampson, No. 09-cr-
250, ECF 15 (E.D. Pa. July 6, 2009); see also Sample Order
Granting Motion for Continuance, Federal Judicial Center
(July 27, 2021), available at
https://fjc.dcn/sites/default/files/session/2019/Order%20Grant
ing%20Motion%20for%20Continuance_0.pdf. Doing so
avoids unnecessary ambiguity and needless litigation.
15
particularly weighty justification for a continuance,8 see
Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (“the
assistance of counsel” in criminal trials has long been
recognized as “one of the safeguards . . . necessary to insure
[sic] fundamental human rights of life and liberty” (quoting
Johnson v. Zerbst, 304 U.S. 458, 462 (1938))), and that, after
balancing that right against Adams’s (and the public’s) interest
in a speedy trial, the Court concluded that delaying trial was
warranted under those circumstances.
This record is sufficient to meet the requirements of 18
U.S.C. § 3161(h)(7)(A) and therefore to toll the speedy trial
clock from May 25 to November 30, i.e., the new date that the
District Court set for trial. See Reese, 917 F.3d at 182; Rivera
Constr. Co., 863 F.2d at 297.9 And, with this continuance in
8
Protecting defendants’ Sixth Amendment right to
counsel is an especially compelling reason to delay trial, but
similarly weighty interests may justify lengthy continuances
in future cases.
9
Though not disputed by the parties, we note that the
District Court’s decision not to specify an end date for this
continuance poses no issue under our precedents. Open-ended
continuances that otherwise comply with § 3161(h)(7)(A) are
valid if they are not “unreasonably long” in light of the
“particular circumstances of th[e] case,” including which party
bears primary responsibility for delaying trial. United States v.
Lattany, 982 F.2d 866, 881–82 (3d Cir. 1992). Here, the
continuance expired on November 30, 2016, that is, the new
trial date set by the Court. This roughly six-month delay was
not “unreasonably long,” given the nature of the pro se motions
16
effect, twenty-five non-excludable days could not have elapsed
between February 4, 2016 and September 28, 2016. This
provides one basis to deny Adams’s Speedy Trial Act claim,
but there is another, equally valid ground on which to do so.
We therefore turn to our alternative holding.
2. Pretrial Motions
Adams’s Speedy Trial Act claim must be denied for a
second, independent reason: the days excluded as a result of
his April 25, 2016, pro se discovery motion in combination
with the Government’s August 17, 2016, motions in limine.
See United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 440
(3d Cir. 1982) (explaining that “an alternate holding has the
same force as a single holding; it is binding precedent”).
Section 3161(h)(1)(D) of the Speedy Trial Act provides
that the clock is tolled from the filing of “any pretrial motion”
until the “conclusion of the hearing on, or other prompt
disposition of, [that] motion.” This subsection excludes time
in two circumstances: (1) “when a pretrial motion requires a
hearing” and (2) when the motion “result[s] in a ‘prompt
disposition.’” Henderson v. United States, 476 U.S. 321, 329
(1986). The concept of “prompt disposition” in turn is
for discovery and new counsel and the fact that Adams, in
filing the motions, was largely responsible for postponing trial.
Id. at 882 (holding that an open-ended continuance of over a
year was not unreasonable because it was made necessary by
considerable turnover in the defendant’s legal team, for which
the defendant bore significant responsibility).
17
bounded by § 3161(h)(1)(H),10 “which permits an exclusion of
[no more than] 30 days from the time a motion is actually
‘under advisement’ by the court.” Id.
What this means in practice is that, if the district court
chooses to resolve the motion without holding a hearing, the
clock starts ticking a maximum of thirty days after it has
“receive[d] all the papers it reasonably expects” from the
parties. Id. Alternatively, if the court determines a hearing is
warranted to allow for additional evidence or argument before
taking a motion under advisement, the Speedy Trial Act
“exclude[s] all time between the filing of and the hearing on a
motion whether that hearing was prompt or not.” Id. at 326;
see also Lattany, 982 F.2d at 874 (“Subsection (h)(1)[(D)] does
not impose a reasonableness limitation on delay due to pretrial
motions.”). In addition, because it would be illogical “to
exclude . . . all the time prior to the hearing . . . but not the time
during which the court remains unable to rule because it is
awaiting the submission by counsel of additional materials,”
the clock remains tolled up to thirty days beyond the court’s
receipt of any post-hearing submissions that are needed to
“proper[ly] dispos[e] of the motion.” Henderson, 476 U.S. at331–32 (allowing for the exclusion of thirty days “for the
District Court to take [a motion] under advisement” once the
10
Henderson preceded amendments to the Speedy
Trial Act in 2008, so its statutory references correspond to an
earlier version of the Act. The provision excluding time for
the “delay resulting from any pretrial motion” was previously
codified at § 3161(h)(1)(F), while the subsection that
excludes up to thirty days while a motion is “under
advisement” was previously codified at § 3161(h)(1)(J).
18
Court received post-hearing supplementary filings); accord
United States v. Graves, 722 F.3d 544, 548 n.6 (3d. Cir. 2013).
Here, Adams claims that the District Court resolved his
discovery motion on June 21, when it entered a protective order
to facilitate his personal review of discovery materials, rather
than on August 18, when it entered an order denying the
motion. According to Adams, that protective order fully
satisfied his request to review discovery materials himself and
left nothing for the District Court to resolve.
The record shows otherwise. Adams’s pro se discovery
motion related not only to his desire for personal access to
discovery, but also to his dissatisfaction with counsel and his
request for “evidence not otherwise known to him” that could
“disprov[e] his guilt, reduc[e] his punishment, or [be used to]
impeach[] witnesses,” i.e., Brady material. Pro Se Motion for
Discovery, United States v. Adams, No. 15-cr-580, ECF 26
(E.D. Pa. Apr. 25, 2016). True, by June 21, the District Court
had entered a stipulated protective order concerning the
discovery materials. But that did not resolve the personal
access issue, let alone Adams’s request for Brady material.
Instead, due to new counsel’s concerns about ambiguities in
the protective order, the District Court was required to provide
further clarification in a second order entered on July 20.
It was only at that point, with Adams’s demonstrated
willingness to proceed with newly appointed counsel and to
forego pro se status, and with the terms of his personal access
to discovery resolved to all parties’ satisfaction, that the
District Court had the information it needed to take the rest of
the motion “under advisement.” And it did so promptly, ruling
on August 18 that “[Adams] was (and still is) represented by
19
counsel, and therefore, not entitled to file motions pro se.”
Supp. App. 3. As such, all time between the motion’s filing
date and the August 18 ruling was excluded from the speedy
trial clock. See Henderson, 476 U.S. at 331.
The other motions with which Adams takes issue are the
Government’s August 17, 2016, motions in limine, which he
contends do not qualify as true “pretrial motions” within the
meaning of § 3161(h)(1)(D). Our sister circuits are split
concerning the speedy trial implications of motions in limine.
The D.C. Circuit in United States v. Van Smith observed that
motions in limine typically pertain to the admissibility of
evidence at trial, so treating them as “pretrial motions,” i.e.,
excluding time from whenever the motion in limine is filed
through its resolution, could “circumvent the [] Act” altogether
because the Government could theoretically file such motions
“at an early stage” simply to stop the clock indefinitely. 530
F.3d 967, 971 (D.C. Cir. 2008). To avoid that risk and because
motions in limine often do not “require the attention of the []
court” until at or immediately before trial, the court concluded
they were better construed as notices of the Government’s
intent to submit evidence to the jury that do not toll the clock
at all. Id.11
11
See also United States v. Taplet, 776 F.3d 875, 878
(D.C. Cir. 2015) (“Not all motions filed pretrial count as a
‘pretrial motion’ under the [Speedy Trial Act],” including
“government evidentiary filings that invoke Federal Rules of
Evidence 404(b) and 609[.]”); United States v. Harris, 491
F.3d 440, 444 (D.C. Cir. 2007) (holding that the
government’s evidentiary notice “was not a motion” within
the meaning of § 3161(h)(1)(D), but the defendant’s response
20
By contrast, several circuits have held that, because this
tolling provision applies to “any pretrial motion,”
§ 3161(h)(1)(D) (emphasis added), it necessarily covers
evidentiary motions, regardless of whether they are held in
abeyance until trial. See, e.g., United States v. Franklin, 148
F.3d 451, 456 (5th Cir. 1998) (holding that the “government’s
motions seeking evidentiary rulings” tolled the speedy trial
clock, even though their resolution was “deferred by the court
until trial” and they did not “consume the court’s attention” in
the intervening time); United States v. Bloate, 655 F.3d 750,
753 (8th Cir. 2011) (holding that the speedy trial clock was
tolled by the government’s motions in limine even though the
district court disposed of both motions on the first day of
trial).12
The First Circuit has taken a more nuanced approach,
holding that whether motions in limine toll the clock depends
on how the district court approaches them in a given case. In
that circuit, a district court cannot “put off consideration of a[n]
[evidentiary] motion and exclude the time during which the
motion lies dormant,” but it “is entitled to exclude at least the
to that motion tolled the clock because it required the trial
court’s attention).
12
See also United States v. Johnson, 32 F.3d 304, 306
(7th Cir. 1994) (holding that “the seventeen days the court
expended in deciding the government’s motion in limine []
were excludable”); United States v. Riley, 991 F.2d 120, 123
(4th Cir.1993) (excluding all time from the filing of a pretrial
evidentiary motion until its disposition, even though the
hearing on that motion was deferred until after trial).
21
period of time during which it considers [whether] to treat the
filing” as either a pretrial motion, which would fall under
§ 3161(h)(1)(D), or an evidentiary notice, which would not.
United States v. Rojo-Alvarez, 944 F.2d 959, 966 (1st Cir.
1991); see also United States v. Sposito, 106 F.3d 1042, 1045
(1st Cir. 1997) (holding that the Government’s motion in
limine tolled the speedy trial clock from its filing through its
official disposition at trial because “there was no suggestion
that the motion [] had been reserved until trial” or that it had
been “relegated to dormant status for [Speedy Trial Act]
purposes”). But importantly, absent a clear indication that the
motion has been “reserved until trial,” the motion will be
treated as a “pretrial motion” under the Act, excluding time
consistent with § 3161(h)(1)(D). Sposito, 106 F.3d at 1045.
Similarly, the Second and Ninth Circuits, respectively,
have declined to exclude time where “a trial judge postpon[es]
an evidentiary hearing” on the defendant’s motion “until the
conclusion of the case in chief,” United States v. Gambino, 59
F.3d 353, 359 (2d Cir. 1995), or “put[s] off [a motion in
limine’s] hearing . . . until after trial,” United States v.
Springer, 51 F.3d 861, 865 (9th Cir. 1995).13 Under this
13
While the Ninth Circuit has limited this tolling
exception to cases in which a “motion [in limine] is decided
after trial” and not when it is decided “after the jury ha[s]
been impaneled but before the presentation of evidence,” see
United States v. George, 85 F.3d 1433, 1436 (9th Cir. 1996),
we do not agree with that distinction. The Speedy Trial Act
requires trial to “commence within seventy days” of the filing
of an indictment or the defendant’s first appearance in court.
18 U.S.C. § 3161(c)(1). Thus, the speedy trial clock stops
22
approach, if the trial judge simply “table[s]” an evidentiary
motion for resolution at or after trial, time is not automatically
excluded from the speedy trial clock, which should only “be
tolled when the expenditure of judicial resources to decide the
motion would interfere with the case expeditiously proceeding
to trial.” Gambino, 59 F.3d at 359.
In our circuit, the treatment of motions in limine has
remained an open question until today.14 See United States v.
Williams, 917 F.3d 195, 200 n.3 (3d Cir. 2019) (declining to
reach the disputed issue of “whether the Motion In Limine
[was] a ‘pretrial motion’ that stop[ped] the seventy-day clock
pursuant to 18 U.S.C. § 3161(h)(1)(D)”).
running when the defendant’s trial begins, and a district
court’s decision to table a motion in limine for resolution after
trial has the same speedy trial implications as reserving
judgment until the start of trial.
14
In Lattany, we held that “[t]he district court properly
excluded [] time” under the Speedy Trial Act for a variety of
pretrial motions, including the Government’s motion in
limine, 982 F.2d at 872–74, but the specific question of if and
when motions in limine should be construed as evidentiary
notices versus “pretrial motions” under § 3161(h)(1)(D) was
not squarely presented. See Abdelfattah v. U.S. Dep’t of
Homeland Sec., 488 F.3d 178, 185 (3d Cir. 2007) (explaining
that a statement of law in a prior case was “dicta” because the
earlier court had “not [been] presented with the [relevant]
question,” such that the statement “could have been deleted
without seriously impairing the analytical foundations of the
holding” (internal quotation marks omitted)).
23
We now conclude, drawing on the approaches taken in
the First, Second, and Ninth Circuits, that it is necessary to
distinguish between motions in limine that the district court
actively seeks to resolve pretrial and those it decides expressly,
or by routine practice, to hold until trial. We do so primarily
because this distinction comports with the plain language of
the Act, which excludes time only for the “delay resulting from
any pretrial motion.” 18 U.S.C. § 3161(h)(1)(D). As that
phrasing indicates, the purpose of this subsection is “to exclude
all time that is consumed in placing the trial court in a position
to dispose of a motion.” Henderson, 476 U.S. at 331. Many
motions in limine do require the court’s disposition pretrial,
e.g., to confirm the admissibility or inadmissibility of evidence
bearing on witness preparation or trial strategy. But where a
court has no intention of resolving a motion in limine before
trial, that motion cannot be said to “consum[e]” the court’s
time pretrial, id., or to “result[]” in any pretrial delay,
§ 3161(h)(1)(D). Put differently, although § 3161(h)(1)(D)
indeed covers “any” pretrial motion, its text and context make
clear that a “pretrial motion” for these purposes is not simply a
motion that is filed chronologically before trial; it is a motion
that requires the court’s time to resolve pretrial and thereby
delays the commencement of trial by a commensurate number
of excludable days. See § 3161(h)(1)(D); see also Henderson,
476 U.S. at 330–32.
At the same time, we share our sister circuits’ concern
that “[t]here is no reliable way . . . to divine the intent of the
district court with respect to a particular motion or its docket
in general,” and we will not rely on mere speculation to
“determine when a district court’s decision to put off
consideration of a motion” means the motion has been tabled
until trial. Sposito, 106 F.3d at 1045. We therefore hold that a
24
motion in limine is treated as would be any “pretrial motion”
under § 3161(h)(1)(D) except when a district court clearly
indicates that it is reserving judgment until trial, whether by
stating as much or by following a regular practice of
postponing decisions on motions in limine for trial. In sum, as
a general matter, “motions in limine are ‘pretrial motions’ for
the purpose of [§] 3161(h)(1)[(D)],” Sposito, 106 F.3d at 1044,
and, unless the district court tables their resolution until trial,
they toll the speedy trial clock accordingly. See Gambino, 59
F.3d at 359; Rojo-Alvarez, 944 F.2d at 966.
Here, the Government filed two motions in limine: its
Rule 404(b) motion to admit evidence concerning Adams’s
distribution of heroin, his straw purchases, and his prior
conviction for drug trafficking; and its Rule 609(a) motion for
permission to impeach Adams with his prior convictions
should he testify at trial. Initially, the District Court actively
considered those motions, ordering Adams to respond to the
Government’s “outstanding motions in limine no later than
September 28, 2016,” and scheduling a hearing for November
7, 2016. So, up to that point, no days ran on the speedy trial
clock. But at the November 7 hearing, the Court announced it
was reserving judgment because “motions in limine are issues
that continue almost up until the point of trial.” J.A. 189. Thus,
any pretrial delay after November 7 was not “resulting from”
those motions, § 3161(h)(1)(D), and could not be excluded
from the speedy trial clock on that basis.
At issue on appeal, however, are only the days between
February 4 and September 28, and for the reasons we have
explained, the combination of Adams’s motion for discovery
and the Government’s motions in limine prevents Adams from
accumulating twenty-five non-excludable days during that
25
period. Accordingly, Adams cannot establish a violation of his
rights under the Speedy Trial Act, and on this independent and
alternate basis, we will affirm the District Court’s denial of that
claim. See Zelinsky, 689 F.2d at 440.
B. The Rehaif Claim
In the event all counts are not dismissed on Speedy Trial
Act grounds, Adams urges us to vacate at least his felon-in-
possession convictions based on the Court’s failure to instruct
the jury consistent with Rehaif, 139 S. Ct. 2191 (2019).
Because he did not object to the omission of “knowledge of
status” as an element at trial, we review for plain error.15
Adams must meet “three threshold requirements”: (1) there
was an error; (2) that error was plain; and (3) it affected his
“substantial rights.” Greer, 141 S. Ct. at 2096 (quoting
15
Adams’s related argument that the omission of the
“knowledge-of-status” element from the indictment and jury
instructions was structural error, requiring automatic reversal,
is foreclosed by our precedent and that of the Supreme Court,
which do not count Rehaif errors among the “highly
exceptional” constitutional errors considered structural.
Greer v. United States, 141 S. Ct. 2090, 2099–100 (2021)
(failure to charge “knowledge of one’s felon status” or to
instruct the jury on that element does not require automatic
vacatur of a conviction because those errors do not “affect the
entire framework within which the proceeding occurs.”);
United States v. Boyd, 999 F.3d 171, 178–79 (3d Cir. 2021)
(“[F]ailing to include [the knowledge-of-status] element in
the jury instruction was not a structural error that requires
automatic reversal.”).
26
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05
(2018)). And even then, we may exercise our discretion to
grant relief only if “the error had a serious effect on the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 2096–97 (internal quotation marks omitted); see also
United States v. Olano, 507 U.S. 725, 734–36 (1993).
The parties have appropriately focused their arguments
on the third prong: whether the Rehaif error in the District
Court’s jury instructions affected Adams’s “substantial
rights.”16 As the Supreme Court explained in Greer, the
relevant question is whether “there is a ‘reasonable probability’
that [Adams] would have been acquitted” had “the District
Court . . . correctly instructed the jury on the mens rea element
of [his] felon-in-possession offense[s].” Greer, 141 S. Ct. at
2097 (quoting United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004)). As to that question, the Court cautioned that
defendants face “an uphill climb” because “[i]f a person is a
felon, he ordinarily knows he is a felon.” Id. at 2097.
Greer, in effect, created a presumption that the
“knowledge-of-status” element is satisfied whenever a
§ 922(g)(1) defendant is, in fact, a felon. To overcome that
presumption, the defendant must make a “sufficient argument
. . . on appeal that he would have presented evidence at trial
that he did not in fact know he was a felon,” and the appellate
16
In this case, the first two prongs are easily satisfied.
The District Court’s failure to instruct the jury on § 922(g)’s
“knowledge-of-status” element was erroneous, and that error
was plain after Rehaif. See Johnson v. United States, 520
U.S. 461, 468 (1997) (“[I]t is enough that an error be ‘plain’
at the time of appellate consideration.”).
27
court “must [then] determine whether the defendant has carried
the burden of showing a ‘reasonable probability’ that the
outcome of the district court proceeding would have been
different” if the jury had been properly instructed after hearing
that evidence. Id. at 2100. In making that determination, the
appellate court is not bound to consider only what the
government offered in evidence at the trial but can examine
“the entire record,” including the defendant’s pre-sentence
report. Id. at 2097–99.
In light of Greer, Adams cannot establish plain error.
The presumption of knowledge applies to Adams because, at
the time he organized his straw-purchaser scheme, he had been
convicted of four felonies in three separate prosecutions, and,
at trial, he entered an Old Chief stipulation, acknowledging
those prior convictions. See id. at 2098. On the trial record
before us, he cannot overcome that presumption.
Adams’s primary argument is that he is akin to the
hypothetical defendant in Rehaif who might not know he is a
felon because he was convicted of an offense “punishable by
imprisonment for a term exceeding one year” but “sentenced
only to probation.” 139 S. Ct. at 2198 (internal quotation
marks and alterations omitted). Because he never served more
than 364 days in custody for any of his prior convictions, he
contends that he similarly lacked “knowledge of status.”
Adams, however, was not sentenced to probation; rather, he
was charged and convicted on, not one, but four felonies and
was sentenced to nearly a year in prison for one of them. With
that history, it strains credulity that Adams did not know he
was a felon. In any event, the Supreme Court’s far-flung
hypothetical in Rehaif is not enough, without more, to
28
surmount the “uphill climb” necessary to overturn his felon-in-
possession convictions. Greer, 141 S. Ct. at 2097.
Unfortunately for Adams, what “more” there is only
cuts the other way. The trial record makes clear that Adams
devised his straw-purchaser scheme precisely because he knew
he was a felon who could not lawfully possess firearms. And
straw purchasers described how he vetted them for their clean
criminal records, coached them on how to answer each
question on the ATF forms (including one regarding prior
felony convictions), and explained that they would be subject
to criminal background checks. See, e.g., J.A. 418, 517, 613,
653–54, 725, 876. In short, while the Supreme Court
acknowledged that “there may be cases in which a defendant
who is a felon can make an adequate showing on appeal . . .
that he did not in fact know he was a felon when he possessed
firearms,” Greer, 141 S. Ct. at 2097, this is not such a case.
Because Adams has failed to show there is a
“‘reasonable probability’ that he would have been acquitted” if
the jury had been properly instructed, id, his Rehaif claim fails
on plain error review.
IV. Conclusion
For the foregoing reasons, we will affirm the District
Court’s judgment entering conviction on all twenty counts of
the superseding indictment.
29