United States v. Jenerette Dixon

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JENERETTE CHARLES DIXON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Senior District
Judge. (1:10-cr-00552-BEL-1)
Argued: September 20, 2013 Decided: October 18, 2013
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Gerald Chester Ruter, THE LAW OFFICES OF GERALD C.
RUTER, Baltimore, Maryland, for Appellant. James G. Warwick,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Benjamin Walter, Legal Assistant, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jenerette Charles Dixon was convicted by a jury of
conspiracy to commit bank robbery, 18 U.S.C. §§ 371 and 2113;
bank robbery, id. § 2113; and brandishing a firearm during and
in relation to a crime of violence, and aiding and abetting the
same, id. §§ 2 and 924(c). He was sentenced to a total of 240
months’ imprisonment for these offenses. On appeal, Dixon
claims that his speedy trial rights under the Speedy Trial Act
(STA), id. § 3161 et seq., and the Sixth Amendment were
violated. We affirm.
I
On March 11, 2010, Dixon, with the help of two accomplices,
Kelly Woods and Nebuzarada Nisseau-Bey, robbed the Harbor Bank
at 1000 Lancaster Street in Baltimore, Maryland at gunpoint. On
July 16, 2010, United States Magistrate Judge Grimm issued a
warrant for Dixon’s arrest. Five days later, on July 21, 2010,
Dixon was arrested on the warrant and made his initial
appearance before United States Magistrate Judge Bredar. 1 That
1
Both Magistrate Judge Grimm and Magistrate Judge Bredar
resolved certain pretrial matters in this case. At present,
both serve as a United States District Judge for the District of
Maryland.
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same day, counsel was appointed to Dixon, and the government
moved for an order of detention pursuant to 18 U.S.C. § 3142.
On July 23, 2010, a detention hearing was held, and Dixon
was ordered detained. On July 28, 2010, Dixon’s counsel sent a
letter to Magistrate Judge Grimm requesting that the preliminary
hearing set for August 4, 2010 be continued for sixty days,
through September 22, 2010, in order to allow the parties to
discuss a resolution of the case pre-indictment. This letter
was filed on August 2, 2010, and the motion was granted by
Magistrate Judge Bredar the same day.
On August 23, 2010, Dixon sent a letter, properly construed
as a motion to substitute counsel, to Magistrate Judge Grimm
asking that his current counsel be removed and new counsel be
appointed. On September 9, 2010, Magistrate Judge Grimm held a
hearing on Dixon’s motion to substitute counsel. At the
conclusion of the hearing, Magistrate Judge Grimm granted
Dixon’s motion and appointed new counsel. On the same day, the
grand jury returned an indictment charging Dixon with bank
robbery, id. § 2113, and brandishing a firearm during and in
relation to a crime of violence, and aiding and abetting the
same, id. §§ 2 and 924(c).
On September 22, 2010, the grand jury returned a
superseding indictment charging Dixon, Woods, and Nisseau-Bey
with conspiracy to commit bank robbery, id. §§ 371 and 2113
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(Count One); bank robbery, id. § 2113 (Count Two); and
brandishing a firearm during and in relation to a crime of
violence, and aiding and abetting the same, id. §§ 2 and 924(c)
(Count Three). On November 5, 2010, Woods and Nisseau-Bey were
arrested and brought before United States Magistrate Judge
Gauvey for their initial appearances.
On November 24, 2010, Nisseau-Bey filed a motion to
suppress. While this motion was pending, Dixon filed a variety
of motions, including several motions to suppress. On February
7, 2011, Dixon sent a letter to the district court complaining
that his new counsel had not filed a motion to dismiss based on
STA violations. The government was ordered to respond to
Dixon’s STA assertions, which it did on March 1, 2011.
With regard to the STA’s requirement that an indictment be
returned within thirty days of arrest, the government contended
that, because Dixon’s counsel sought a continuance to resolve
the case pre-indictment, the STA’s indictment clock was tolled
from August 2, 2010 to September 9, 2010, the date the
indictment was returned. With regard to the STA’s requirement
that the defendant’s trial take place seventy days from the
later of the filing of the information or indictment or the
defendant’s initial appearance before a judicial officer, the
government argued that there were excludable periods of delay
under 18 U.S.C. § 3161 that rendered Dixon’s trial timely.
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After reviewing the government’s response, the district court,
without setting forth any reasoning, concluded that “[n]o
violation of the Speedy Trial Act [had] occurred.” (S.J.A. 23).
On April 21, 2011, the district court held a hearing on
Dixon’s pretrial motions, including an April 19, 2011 pro se
motion to dismiss based on STA violations and Dixon’s Sixth
Amendment right to a speedy trial. These motions were denied
the following day. With regard to Dixon’s speedy trial claims,
the district court concluded, again without expressing any
reasoning, that “there [was] no speedy trial violation in this
case.” (S.S.J.A. 36).
On April 28, 2011, Dixon filed a motion to have DNA tested.
This motion was denied on April 29, 2011. On May 2, 2011,
Dixon’s jury trial commenced. Dixon was convicted of all three
counts and sentenced to a total of 240 months’ imprisonment.
After filing a timely notice of appeal, Dixon’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), finding no meritorious grounds for appeal but raising
five challenges to Dixon’s convictions. In response, we
directed the parties to submit supplemental briefing on the
issue of whether Dixon’s speedy trial rights were violated and
set the case down for oral argument. Having heard oral argument
on September 20, 2013, the case is now ready for decision.
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II
Dixon argues that his speedy trial rights, both under the
STA and the Sixth Amendment, were violated below. We turn first
to Dixon’s two STA arguments and then to his Sixth Amendment
argument.
We review the district court’s interpretation of the STA de
novo and any related factual findings for clear error. United
States v. Rodriguez–Amaya, 521 F.3d 437, 440 (4th Cir. 2008).
The STA requires that a defendant be indicted within thirty days
of his arrest and tried within seventy days from the later of
the filing of the information or indictment or the defendant’s
initial appearance before a judicial officer. 18 U.S.C.
§ 3161(b), (c)(1); United States v. Leftenant, 341 F.3d 338, 343
(4th Cir. 2003). An indictment in violation of the thirty-day
time limit must be dismissed. 18 U.S.C. § 3162(a)(1). Failure
to begin the trial within the seventy-day time limit shall, upon
motion of the defendant, result in dismissal of the charging
instrument either with or without prejudice. Id. § 3162(a)(2).
The requirement of dismissal, however, is not absolute.
Section 3161(h) provides for certain periods of excludable delay
that extend the thirty-day time limit of § 3161(b) and the
seventy-day time limit of § 3161(c)(1). Several periods of
excludable delay are relevant here.
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The first is set forth in 18 U.S.C. § 3161(h)(1). That
section requires the exclusion of “[a]ny period of delay
resulting from other proceedings concerning the defendant,
including but not limited to” eight enumerated subcategories of
proceedings. Id. § 3161(h)(1). “Although § 3161(h)(1)
exclusions often fall within the eight specifically listed
subcategories, various non-enumerated delays have also been held
to be automatically excluded by virtue of the non-limiting
‘other proceedings’ clause.” United States v. Valdivia, 680
F.3d 33, 38 (1st Cir. 2012). In our circuit, delays related to
plea negotiations constitute non-enumerated “other proceedings”
under § 3161(h)(1). Leftenant, 341 F.3d at 344–45 (holding that
plea negotiations trigger automatic exclusion under 18 U.S.C.
§ 3161(h)(1)). 2
2
Some courts have held that the delay resulting from plea
negotiations is not automatically excludable under the STA. See
United States v. Mathurin, 690 F.3d 1236, 1240-41 (11th Cir.
2012) (holding that the time devoted to plea negotiations is not
automatically excludable under the STA); United States v.
Alvarez–Perez, 629 F.3d 1053, 1058 (9th Cir. 2010) (noting that,
“in general, time devoted to plea negotiations is not
automatically excluded”); and United States v. Lucky, 569 F.3d
101, 107 (2d Cir. 2009) (noting that “plea negotiations do not
fit comfortably into the ‘other proceedings’ language of section
3161(h)(1)”). These courts do recognize that the delay
resulting from plea negotiations can toll the STA indictment
clock where an appropriate ends-of-justice finding is made.
See, e.g., Mathurin, 690 F.3d at 1241.
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The second period of excludable delay relevant here is set
forth in 18 U.S.C. § 3161(h)(7)(A). That section excludes the
delay resulting from a continuance granted by a court sua sponte
or at the request of a party, but only upon findings “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.” 18 U.S.C. § 3161(h)(7)(A). The court is not
required to make the ends-of-justice finding contemporaneous
with the granting of the continuance; rather, the findings must
be made no later than the time the district court rules on the
defendant’s motion to dismiss under the STA. Zedner v. United
States, 547 U.S. 489, 507 (2006). 3
The third period of excludable delay relevant here is set
forth in 18 U.S.C. § 3161(h)(1)(D). That section excludes the
“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.” Id. § 3161(h)(1)(D). Such
time is excluded even if a delay in holding a hearing is not
“reasonably necessary.” Henderson v. United States, 476 U.S.
321, 330 (1986).
3
As noted by the Supreme Court in Zedner, “[t]he best
practice, of course, is for a district court to put its [ends-
of-justice] findings on the record at or near the time when it
grants the continuance.” 547 U.S. at 507 n.7.
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Dixon’s first STA argument concerns the timeliness of his
indictment, which was returned on September 9, 2010. He posits
that his indictment was untimely under the STA’s thirty-day time
limit.
Dixon was arrested on July 21, 2010. Thus, in the absence
of excludable periods, the government had to return an
indictment by August 20, 2010, thirty days from July 21, 2010.
The period between July 21, 2010, when the government moved for
pretrial detention, and July 23, 2010, when the motion was
granted, is excludable. United States v. Wright, 990 F.2d 147,
149 (4th Cir. 1993). Thus, the STA indictment clock did not
start running until July 24, 2010. The STA indictment clock ran
nine days and then stopped on August 2, 2010, when Dixon’s
motion for continuance was filed. 18 U.S.C. § 3161(h)(7)(A).
The parties disagree on whether the STA indictment clock
restarted on August 3, 2010. Dixon asserts that the STA
indictment clock restarted because there was nothing akin to an
ends-of-justice finding made, either before or after the
granting of the continuance. See Zedner, 547 U.S. at 506-07
(noting that “without on-the-record findings” concerning the
ends-of-justice, time period covering continuance cannot be
excluded under the STA); see also United States v. Kellam, 568
F.3d 125, 137 (4th Cir. 2009) (noting that, “[i]n order for a
delay resulting from a continuance to be excludable, the court
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is to explain, ‘either orally or in writing, its reasons for
finding’ that the ends of justice served by granting the
continuance outweigh the interests of the public and the
defendant”) (quoting 18 U.S.C. § 3161(h)(7)(A)).
In response, the government first argues that the STA
indictment clock did not restart on August 3, 2010 because the
parties were actively involved in plea negotiations at that
time. The government posits that any delay attributable to plea
negotiations is excludable as “other proceedings” under 18
U.S.C. § 3161(h)(1). In pressing this argument, the government
neither points to any record evidence of actual plea
negotiations (e.g., when they began or when the finished), nor
points to any findings by Magistrate Judge Bredar or the
district court concerning such negotiations.
Perhaps sensing the dearth of evidence on the plea
negotiations question, the government presses a second argument.
The government argues that Dixon should not be entitled to
benefit from Magistrate Judge Bredar’s or the district court’s
failure to make appropriate findings. Cf. United States v.
Hopkins, 310 F.3d 145, 150 (4th Cir. 2002) (rejecting the
defendant’s STA claim because “none of the delay in getting to
trial was attributable to the government”); United States v.
Keith, 42 F.3d 234, 240 (4th Cir. 1994) (holding that, if a
defendant affirmatively consents to a motion for a continuance
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and the reasons for the granting of that motion as garnered from
the record are sufficient to support a finding that the ends-of-
justice would be met by granting the motion, the defendant
cannot take advantage of that discrete period of time covered by
the continuance in asserting a violation of the STA).
We need not decide if the STA indictment clock restarted on
August 3, 2010. This is so because, even assuming, without
deciding, the STA indictment clock restarted on August 3, 2010,
it stopped twenty days later on August 23, 2010, the date on
which Dixon sent his motion to substitute counsel. Cf. Houston
v. Lack, 487 U.S. 266, 276 (1988) (holding that a prisoner’s
notice of appeal is deemed filed on the date he delivers it to
prison authorities for mailing to the court). Thus, the time
period between August 23, 2010 and September 9, 2010 (the date
the motion to substitute was granted) is excludable. At most,
then, only twenty-nine non-excludable days elapsed between
Dixon’s arrest and indictment, because Dixon’s motion to
substitute counsel was resolved the same day as the day the
indictment was returned, September 9, 2010. Of particular note,
candidly, at oral argument, counsel for Dixon essentially
conceded that the STA indictment clock stopped running on August
23, 2010, and, therefore, the return of the indictment was
timely. Accordingly, there was no STA violation based on pre-
indictment delay.
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Dixon’s second STA argument concerns the timeliness of his
trial. He posits that his trial was untimely under the STA’s
seventy-day time limit.
Although the original indictment was returned on September
9, 2010, the grand jury returned a superseding indictment
against Dixon and his co-defendants on September 22, 2010. The
filing of the superseding indictment in this case restarted the
STA trial clock. See United States v. King, 483 F.3d 969, 973
(9th Cir. 2007) (holding that the filing of a superseding
indictment adding a new defendant restarts the STA clock for all
defendants); United States v. Barnes, 251 F.3d 251, 257 (1st
Cir. 2001) (holding that a superseding indictment returned the
day before the speedy trial deadline, containing the same
charges and adding only one new, albeit previously known,
defendant served to restart the STA clock); United States v.
Gambino, 59 F.3d 353 (2d Cir. 1995) (holding that the STA clock
in cases involving multiple defendants begins with the running
of the clock for the most recently added defendant). Such
restarting was further delayed because Dixon’s co-defendants
were not arrested until November 5, 2010. See United States v.
Shealey, 641 F.3d 627, 632 (4th Cir. 2011) (“‘All defendants who
are joined for trial generally fall within the speedy trial
computation of the latest codefendant.’”) (quoting Henderson,
476 U.S. at 323 n.2); see also United States v. Jarrell, 147
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F.3d 315, 316 (4th Cir. 1998) (“[T]ime excludable for one
defendant is excludable for all defendants.”); United States v.
Sarno, 24 F.3d 618, 622 (4th Cir. 1994) (noting that, if one co-
defendant files a motion to continue and the district court
grants it, then that time is excluded as to all co-defendants
regardless of whether a motion to sever has been filed). Thus,
the STA trial clock began to run on November 6, 2010.
The STA trial clock ran for seventeen days. The STA trial
clock stopped on November 24, 2010, when Nisseau-Bey filed a
motion to suppress. Jarrell, 147 F.3d at 316; 18 U.S.C.
§ 3161(h)(1)(D). While the STA trial clock was stopped, Dixon
filed several motions. The STA trial clock began to run on
April 23, 2011, because the district court ruled on Dixon’s
pretrial motions on April 22, 2011. 18 U.S.C. § 3161(h)(1)(D).
The STA trial clock ran for another five days, but then stopped
because, on April 28, 2011, Dixon filed a motion to have DNA
evidence tested. Id. The STA trial clock recommenced the day
after the motion was denied on April 29, 2011. Four days later,
on May 2, 2011, Dixon’s trial began.
Given all these exclusions, less than thirty days counted
toward the seventy-day time limit. Thus, there was no post-
indictment STA violation because Dixon’s trial was timely.
Dixon also presses a speedy trial claim under the Sixth
Amendment. We review the district court’s legal conclusions on
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this issue de novo and its factual findings for clear error.
United States v. Woolfolk, 399 F.3d 590, 597-98 (4th Cir. 2005).
The Sixth Amendment provides, in relevant part, that, “[i]n
all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial.” U.S. Const. amend. VI. To
establish a violation of this constitutional guarantee, a
defendant first must show that the Sixth Amendment’s protections
have been activated by an “arrest, indictment, or other official
accusation.” Id. at 597 (citation and internal quotation marks
omitted).
When the Sixth Amendment’s protections have been activated
by a qualifying event, we engage in the four-factor balancing
test set forth in Barker v. Wingo, 407 U.S. 514 (1972), and
consider whether: (1) the delay before trial was uncommonly
long; (2) the government or the defendant is more to blame for
that delay; (3) in due course, the defendant asserted his right
to a speedy trial; and (4) the defendant suffered prejudice from
the delay. Shealey, 641 F.3d at 634. The duration of the
delay, in addition to being a factor in this test, also is a
threshold requirement because the defendant must establish that
the length of the delay is at least presumptively prejudicial.
Doggett v. United States, 505 U.S. 647, 651–52 (1992).
In this case, Dixon clearly asserted his speedy trial
rights. However, the total time that elapsed from the initial
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appearance to the trial was a little over nine months, an amount
of time in which Dixon concedes is not excessively long. Cf.
id. at 652 n.1 (noting that “postaccusation delay [is]
‘presumptively prejudicial’ at least as it approaches one
year”). Moreover, most of the delay in bringing Dixon to trial
was not attributable to the government. Dixon sought to explore
a pre-indictment resolution of the case through a successful
motion for continuance, successfully filed a motion to
substitute counsel, and filed a variety of pre-trial motions.
These actions substantially delayed the start of the trial.
More importantly, Dixon has not specified how his case was in
any way prejudiced by the delay. As in Hopkins, he “has not
shown, or even argued, that any evidence was damaged or lost,
that any witnesses could not be found, or that his case was
harmed in any manner by the delay.” 310 F.3d at 150. After
weighing the Barker factors, we conclude there was no Sixth
Amendment violation.
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III
For the reasons stated herein, the judgment of the district
court is affirmed. 4
AFFIRMED
4
We have considered the other issues raised by Dixon’s
counsel pursuant to Anders and find them to be without merit.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal other
than the speedy trial issues addressed herein.
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