511 F.3d 487, 490 (5th Cir. 2007) (emphasis in original)
(quoting 18 U.S.C. § 3161(c)).
° As will be explained in greater detail below, because the Court concludes that the defendant’s appeal of the
C0urt’s Order in Criminal Case No. l 1-60 was untimely, the Court has not been divested ofjurisdiction to
adjudicate these issues.
"Begin[ning] with ‘the language itself [and] the specific context in which that language is
used,"’ McNeil v. United States, _ U.S. _, _,
131 S. Ct. 2218, 2221 (2011) (quoting Robinson
v. Shell Oil Co.,
519 U.S. 337, 341 (1997)), this Court, like the Fifth Circuit in L_op_e;
Valenzuela, "can find no basis . . . from the text of 3161(c)(1) for utilizing the date of a not guilty
plea as the commencement date of the seventy-day period." 511 F.3d at 490. An explication of
the statutory text makes clear that the entering of a plea of not guilty is the sole factor necessary
to make the statute, and consequently its various provisions, app_ly to any given case.? Once the
statute applies to a case, the statute just as clearly establishes only two points from which the
Speedy Trial clocks can start to run. 1n other words, the statute clearly contemplates that it is the
later-occurrence of either the date of the indictment or the date of the defendant’s first
appearance that will @ggg the start of the Speedy Trial clock. lt seems, then, that there are two
questions that must be answered in response to a motion to dismiss alleging the violation of the
Speedy Trial Act: first, does the Act apply?; and second, when did the Speedy Trial clock begin
to run?g
The government contends in its supplemental brief that "[i]n the [April 4, 2012] Order,
the Court noted that it appeared that the [Speedy Trial Act] did not apply in this case because the
defendant had not yet entered a plea of not guilty as required by 18 U.S.C. § 316l(c)(1), and
therefore the Speedy Trial [c]lock had not yet been triggered." Gov’t’s 11-cr-60 Supp’l Brief at
7 Although the defendant advances the argument that "Mr. Sparks was constructively arraigned in [Criminal
Case No. 11-60]," Def.’s Mot. at 8, the Court is unwilling to go against the clear language of the statute that a plea
of not guilty must be entered in the absence of any authority on point.
8 This Court, "like many other courts, will use the metaphor of a clock to keep track of the periods of delay
under the [Speedy Trial Act]." United States v. O’Dell,
154 F.3d 358, 360 n.2 (6th Cir. 1998) (citing United States
v. Rodriguez,
63 F.3d 1159, 1162 (1stCir. 1995)).
9 As will be addressed below, and as is the case in addressing the defendant’s motion here, a third question
will also often have to be answered: are any of the Act’s provisions for tolling the clock or excluding time
implicated by the facts or procedural history of the case?
10
1-2. While technically an accurate parsing of the Court’s April 4, 2012 Order, it is important to
note that the sole focus of the Order was ascertaining whether the Speedy Trial Act applied to
this case. § April 4, 2012 Order at 6 (noting that authority from other Circuit’s suggested that
the Speedy Trial Act "did not yet gpp_y") (emphasis added); i_d_. at 7 (directing the parties to
submit their positions on "whether the Speedy Trial Act appli@ in this case") (emphasis added).
Obviously, if the Speedy Trial Act does not apply to a particular case, the Act’s seventy-day
provision does not apply and there is no concern in regard to when the seventy-day clock was, or
was not, triggered. lt does not stand to reason, however, that the clock can only be triggered
once a plea of not guilty is entered and the Act is thus applicable. lndeed, as explained above,
the statutory text makes clear that the applicability of the Act is separate from when, if the Act
applies, its seventy-day provision commences. To borrow the Fifth Circuit’s clear explanation of
the difference between the applicability of the Act and the start of the running of the Speedy
Trial clock, "[s]ection 316l(c)(l )’s requirement that a defendant’s trial commence by a certain
date if the case is one ‘in which a plea of not guilty is entered’ determines only 1 the time
restrictions apply. lt does not determine yv_lle_n the clock starts." Lopez-Valenzuela, 511 F.3d at
490.
A number of courts have seemingly conflated the applicability of the Speedy Trial Act
with the commencement of the Speedy Trial clock, which this Court views as a derogation of the
statutory text. Sie,ig;, _Q’D:ell, 154 F.3d at 360 ("The plain meaning of the language of the
[Speedy Trial Act] requires a not guilty plea to begin the clock running."); United States v.
l, 779 F.2d 126, 130 (2d. Cir. 1985) ("[T]he statute expressly applies only to cases in which
pleas of`` not guilty have been entered. lt is evident, therefore, that the July 13 plea started the
11
Speedy Trial Act clock in this case.").lo Regardless of the positions taken by other Circuit
Courts of Appeals, this Court finds that the position taken by the Fifth Circuit in @p;te__z_;
Valenzuela best comports with the text of the Speedy Trial Act itself. S§al§o United States v.
Carrasguillo, 667 F.2d 382, 384 (3d Cir. 1981) (holding "that the district court erred by
calculating the statutory seventy-day period from the date of Carrasquillo’s postindictment
arraignment rather than from the date the indictment was filed"). And because the District of
Columbia Circuit has not addressed the issue, the Court may follow the path of those prior courts
whose logic and reasoning it finds most persuasive.
ln light of the foregoing, it is clear that had the Court accepted the defendant’s April 30,
2012 entry of his plea of not guilty, the Speedy Trial Act would have been applicable to this
case. lt is likewise apparent that, as the filing of the Indictment in Criminal Case No. 11-60
occurred after the defendant’s initial appearance, the Speedy Trial clock was triggered on March
4, 2011, the day following the filing of the Indictment in that case. _S_ge Def.’s Supp’l Brief at 2
n.2 ("l\/lr. Sparks acknowledges that the day of the event triggering the Speedy Trial Act clock
(here, March 3, 2011) is not included in the 70-day calculation.") (citing United States v.
Stoudemire, 74 F.3d 60, 63 (4th Cir. 1996) ("ln determining this 70-day period, the day of the
event that triggers the [Speedy Trial Act] clock, i.e., the filing or opening of the indictment or the
initial appearance, is not included in the calculation; the clock begins to mn the following
day.")).
m As the defendant points out in his supplemental brief, the Court’s April 4, 2012 Order cites some of these
cases with approval § April 4, 2012 Order at 6. That Order, as just noted however, dealt only with the
applicability of the Speedy Trial Act, and the cases were cited only for their recognition that, without a plea of not
guilty, the Speedy Trial Act-and its attendant provisions-is inapplicable. The Court did not mean to imply that it
approved of the determinations made in these cases concerning the entering of a plea of not guilty and the triggering
of the Speedy Trial clock. lf that implication was unintentionally conveyed, this Memorandum Opinion should
clarify the Court’s position: when a plea of not guilty is entered m the occurrence of one of the two bases for
commencing the running of the clock, as in this case, the running of the Speedy Trial clock must nonetheless be
calculated back to either the filing of the indictment or the defendant’s intial appearance, whichever occurred later.
12
Next, having concluded that the Speedy Trial Act would have been applicable to
Criminal Case No. 11-60 as of April 30, 2012, and that the running of the Speedy Trial clock
dates back to March 3, 201 1, the Court must now determine whether any of the Act’s various
exclusions would have impacted that case, thus tolling the Act’s seventy-day provision. Because
the paities’ arguments focus on the delay from August 19, 2011 to December 16, 2011, and
because this period of time is alone sufficient to find a violation of the Act if not excludable, the
Court’s analysis concerns only this period of time.
As noted above, the parties ask the Court to ascertain whether 18 U.S.C. § 3161(h)(1)(F)
or § 3161(h)(4) better encompasses to the delay occasioned in Criminal Case No. 11-60. Section
3161(h)(1)(li) provides for the exclusion of time caused by transporting a defendant, but contains
a significant limitation:
Delay resulting from transportation of any defendant from another district, or to
and from places of examination or hospitalization [shall be excludable], Q<_c_e_p_t
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
18 U.S.C. § 3161(h)(1)(F) (emphasis added). Section 3 1 6l(h)(4), on the other hand, 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." 18 U.S.C. § 3 161 (h)(4).
The government asserts "that after a determination of incompetence has been made,
section 3161(h)(4) trumps section [3161](h)(1)(F)." The Court disagrees. The two statutory
subsections both contain the clause "resulting from," and while the Supreme Court recently
clarified that this language does not require that the excludable event in question actually cause a
delay of the trial, ge Tinkleberg, __ U.S. _, 131 S. Ct. at 2012-13 (finding that the exclusions
are automatic, whether or not trial delay occurs), Tinkleberg does not diminish the clear import
13
of what must give rise to the applicability of the exclusion itself. 1n other words, while an
excludable event need not cause an actual delay to be applicable, a given exclusion must actually
be the cause of the excludable event to be applicable. To that end, the delays in this case were
caused by (i.e., resulted from) a failure to transport the defendant to FMC Butner for court-
ordered psychiatric treatment. § Def.’s Reply at 2 ("It is beyond dispute that the delay in this
case was not the result of the defendant’s incompetence; it was the result of a failure to deliver
the Court’s August 19, 2011 Order to the Marshals and the subsequent over four months of time
it took to transport Mr. Sparks to [FMC] Butner."). The fact of the defendant’s incompetency
had little to do with the delay, other than giving rise to the need to transport him for treatment.
The Court thus agrees with the defendant that "[o]nly once at [FMC] Butner could it be said that
the delay in this case ‘[resulted] from the fact that the defendant is mentally incompetent."’ §
Again, the language of the statute itself is instructive. Section 3 161 (h)(l)(F) pertains to
transportation delays occasioned by the transfer of a defendant to another location for either
examination or hospitalization. This latter component_hospitalization_seemingly
distinguishes the transportation exclusion from the more general "incompetency" exclusion
found in section 3161(h)(4). For exainple, the government urges that once a defendant is found
to be incompetent, any and all delay may be excluded under section 3161(h)(4). Gov’t’s 11-cr-
60 Opp’n at 8. Because, however, hospitalization for treatment often occurs ;a_ft_e_r a finding of
incompetence by a Court, it is apparent that the transportation exclusion of § 3161(h)(1)(F) is to
be read separately from the incompetency provision of § 3 1 6l(h)(4). Such a reading comports
with the doctrine of statutory interpretation that no part of a statute should be read to exist as
"mere surplusage." §§ United States v. Noone, 913 F.2d 20, 26 n.5 (1 st Cir. 1990) (observing
that "any other interpretation would render mere surplusage the specific reference . . . to
14
transportation ‘to and from places of hospitalization"’); see also United States v. Lewis, 484 F.
Supp. 2d 380, 386-3 87 (W.D. Pa. 2007) (opining that reading the transportation delay exclusion
out of the statute would mean that "defendants who are subjected to extraordinary transportation
delays at the hands of the [United States] Marshals Service would otherwise be without recourse,
contrary to the apparent purpose" of the transportation exclusion). Accordinlgy, "as the
government offer[ed] no explanation of the transporation delay, it . . . failed to rebut the
presumption of nonexcluability," L459 U.S. 56, 58 (1982). lt is equally
understood, however, that the "time limits set out in [Federal Rule of Appellate Procedure 4] are
‘mandatory andjurisdictional."’ United States v. Feuver,
236 F.3d 725, 727 (D.C. Cir. 2001)
(quoting Browder v. Dep’t of Corrections,
434 U.S. 257, 264 (1978)); _s_§_e_a_tl_s_o Moore v. South
Carolina Labor Bd.,
100 F.3d 162, 163 (D.C. Cir. 1978) (concluding that the time limits
established by Federal Rule of Appellate Procedure 4 are "mandatory and jurisdictional").
Accordingly, "[w]here the deficiency in a notice of appeal, by reason of untimeliness . . . , is
clear to the district court, it may disregard the purported notice of appeal and proceed with the
case, knowing that it has not been deprived of j urisdiction." Ruby v. Sec’y, United States Navv,
365 F.2d 385, 389 (9th Cir. 1966).
F ederal Rule of Appellate Procedure 4 provides that "[i]n a criminal case, a defendant’s
notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of
either the judgment or order being appealed; or (ii) the filing of the government’s notice of
appeal."lz Fed. R. App. P. 4(b)(l)(A). And Federal Rule of Appellate Procedure 26 explains
that for purposes of computing time under the Rules:
When the period is stated in days or a longer unit of time: (A) exclude the day of
the event that triggers the period; (B) count every day, including intermediate
Saturdays, Sundays, and legal holidays; and (C) include the last day of the period,
but if the last day is a Saturday, Sunday, or legal holiday, the period continues to
run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
Fed. R. App. P. 26(a)(1).
As noted above, the Order dismissing Criminal Case No. 11-60 without prejudice was
entered on May 1, 2012. lt was not until May 21, 2012, that defense counsel filed a notice of
12 Although the Rule makes provisions for inmates confined in an institution, §_e;e Fed. R. App. P. 4(c), those
provisions are not implicated here as notice was entered by defense counsel and not mailed by the defendant.
16
appeal dated with that same date. 11-cr-60 Notice of Appeal at l. Under the above appellate
rules, to be timely filed, a notice of appeal seeking review of the May 1, 2012 Order, had to be
filed by no later than May 15, 2012. Because the defendant’s notice of appeal is untimely on its
face, the Court has not been divested of jurisdiction over the question previously presented in
Criminal Case No. 11-60 and now before the Court in this case, Criminal Case No. 12-1 13.
Having concluded that the defendant’s Speedy Trial Act rights would have been violated
in Criminal Case No. 11-60 had the Speedy Trial Act applied in that case and that the
defendant’s appeal of this question was untimely, the Court must ascertain whether that violation
would have rendered the Indictment subject to dismissal with or without prejudice. §
Carrasguill , 667 F.2d at 384 ("Dismissal of an indictment is mandatory if the section 316l(c)
time limits, as extended by section 3161(h), are not met.") (citing 18 U.S.C. § 3162(a)(2)). "In
determining whether to dismiss [a] case with or without prejudice, [a] court shall consider each
of the following factors: the seriousness of the offense, the facts and circumstances of the case
which led to the dismissal; and the impact of a reprosecution on the administration of this chapter
and on the administration of justice." 18 U.S.C. § 3 l62(a)(2). "[T]he Supreme Court has
observed that Congress left the prejudice decision ‘to the guided discretion of the district court.’”
United States v. Wright, 6 F.3d 811, 813 (D.C. Cir. 1994) (quoting United States v. Taylor,
487
U.S. 326, 335 (1988)). And while "[t]he Speedy Trial Act requires the court to discuss each of
the statutory factors and to make a reasoned decision, . . . it does not mandate any particular
formula or order of decisionmaking." Wright, 6 F .3d at 816.
Based on an analysis of the above factors, the Court finds that, had the Speedy Trial Act
applied, the dismissal of Criminal Case No. 1 1-60 should have been without prejudice. First, the
defendant was indicted for the offense of Unlawful Possession with lntent to Distribute 28
17
Grams or More of Cocaine Base, also known as crack, which is undoubtedly a serious offense.
The government represents that the evidence supporting the charge was that "police recovered
the cocaine base, which had a gross weight of approximately 131 grams, [from Mr. Sparks’s
home]," and that "[a]t the time of the defendant’s arrest in this case, he was on release [in a case
pending before the Superior Court of the District of Columbia], in which he was charged with
Unlawful Possession with lntent to Distribute Cocaine in a Drug Free Zone." Gov’t’s 1 1-cr-60
Opp’n at 11. The quantity of cocaine base the defendant is accused of possessing for the purpose
of distribution and the fact that it was in the defendant’s possession while he was on release
pending the outcome of another serious drug-distribution-related offense, both further support
the seriousness of the defendant’s conduct. l\/loreover, the Court disagrees with the defendant’s
suggestion that "[t]his case . . . does not belong in federal court, but instead in Superior Court,
which is the court that should be handling all or nearly all cases of street-level drug distribution."
Def.’s 1 1-cr-60 Reply at 7. Where the government alleges that a crime has been committed, it is
the government’s prerogative to prosecute the alleged crime in the forum it deems appropriate.
Second, the facts and circumstances underlying the dismissal that would have been occasioned
by the Speedy Trial Act violations can best be characterized as administrative errors, and not the
result of gamesmanship or malice on the part of the government for the purpose of obtaining a
technical advantage. §_e_:e_ United States v. Bauer,
286 F. Supp. 2d 31, 34 (D.D.C. 2003)
(concluding that dismissal would be without prejudice because "the failure to comply with [the
transportation order] was not willful or malicious and the government ha[d] not sought and
certainly ha[d] not gained any tactical advantage by the delay"). Thus, while the Court agrees
with the defendant that the two failures to properly transmit the Court’s orders to the Marshals
Service were indeed "negligent," Def.’s 1 1-cr-60 Reply at 7, this negligence must be imputed to
18
the Clerk’s Office and not to the prosecution. Finally, whether reprosecution would have had an
adverse impact on the administration of justice "cannot be viewed in isolation from the other
[two factors]." W§rig§, 6 F.3d at 816. ln Criminal Case No. 11-60, then, in light of the
conclusion that the "defendant’s crime was serious and that the [Speedy Trial Act] violation was
unintentional," id., and not attributable to the prosecutor, reprosecution would not have had an
adverse impact on the administration of j ustice.
C. Was the Court Required to Accept the Defendant’s Rule 10 Plea of Not Guilty?
1n pertinent part, Federal Rule of Criminal Procedure 10 provides:
A defendant need not be present for the arraignment if: (1) the defendant has been
charged by indictment or misdemeanor inforrnation; (2) the defendant, in a
written waiver signed by both the defendant and defense counsel, has waived
appearance and has affirmed that the defendant received a copy of the indictment
or information and that the plea is not guilty; and (3) the court accepts the waiver.
Fed. R. Crim. P. 10(b). The Advisory Committee Notes explain that "[t]he question of when it
would be appropriate for a defendant to waive an appearance is not spelled out in the rule. That
is left to the defendant and the court in each case." Fed. R. Crim. P. 10, Advisory Committee
Notes to 2002 Amendments.
On the other hand, Federal Rule of Criminal Procedure 48 allows the government to
dismiss an indictment after obtaining "leave of court." Fed. R. Crim. P. 48(a). "Historically, the
prosecutor had unrestricted authority to enter a nolle prosequi at any time before the empaneling
of the jury, and such a dismissal was unencumbered by any restriction on a renewal of the
charges." United States v. Poindexter,
719 F. Supp. 6, 10 (D.D.C. 1989) (intemal citations
omitted). Rule 48(a) now, however, "requires leave of court for such a dismissal," and
[w]hile a court is still not free to substitute its judgment for that of the prosecutor,
whose decision is deemed valid, the Rule has the effect of granting authority to
19
the court in exceptional cases to reject a dismissal without prejudice-which
would allow reprosecution_if this would result in harassment of the defendant or
would otherwise be contrary to the manifest public interest.
§ (emphasis added). "Accordingly, although there remains a strong presumption in favor of a
no-prejudice disrnissal, the ultimate decision in that regard depends upon the purpose sought to
be achieved by the government and its effect on the accused." § "[T]he primary concern of
courts which have rejected dismissals without prejudice was that of protecting a defendant from
harassment, . . . and ‘commencing another prosecution at a different time or place deemed more
favorable to the prosecution."’ § at 11 (quoting United States v. Ammidown,
497 F.2d 615,
620 (D.C. Cir. l973)) (emphasis in original).
As noted above, the defendant argues that "[g]iven [his] full compliance with Rule 10(b)
and the lack of any factual findings to the contrary, the Court was without discretion to reject the
not guilty plea," Def.’s Mot. at 9, on April 30, 2012, and that "the Court erred in dismissing
[Criminal Case No. 11-60] without first scrutinizing the government’s motive in filing for
dismissal," Def.’s Reply at 2. The Court does not agree. As an initial matter, the defendant’s
arguments are premised on the assumption that he was entitled to a dismissal with prejudice due
to the underlying Speedy Trial Act violation, §e_e Def.’s Mot. at 7, which is not accurate. Next,
although there is no quibble from the Court that the defendant properly complied with the
requirements of Rule 10 (as evidenced by the Court’s ultimate acceptance of that waiver in
Criminal Case No. 12-113), the Rule plainly affords discretion to the Court whether to accept
such a waiver. And while the defendant is correct that the advisory committee notes speak to the
circumstances under which the Court should exercise its discretion, m_e § at 9, it bears emphasis
that the Court did not reject the defendant’s Rule 10 waiver, it simply took a different course of
action that in short order mooted the issue. § Gov’t’s Opp’n at 5 ("Ultimately, the action taken
20
by this Court at the hearing on April 30, 2012, was not to refuse to accept the defendant’s [R]ule
10(b) waiver, but rather, to grant the government’s motion to dismiss the indictment. T he action
taken by the Court merely mooted the necessity of ruling on the defendant’s rule 10(b) waiver
request."). Accordingly, the Court views the issue differently than the defendant: the waiver was
not rej ected, it was simply not considered in light of the posture of the case. 1n other words, the
Court could have accepted the waiver and assessed the Speedy Trial Act issues, or granted the
motion to dismiss the indictment-but there was no need to do both. Because, as demonstrated
above, the dismissal sanctioning the government for the Speedy Trial Act violation would have
been without prejudice, either course of action would have resulted in the same outcome. §§
Gov’t’s Opp’n at 5 (asserting that "the ultimate dismissal of the indictment without prejudice
afforded the defendant the remedy to which he otherwise would have been entitled").
The Court also finds the defendant’s related Rule 48 argument unpersuasive. The
defendant was immediately reindicted, in the same district, before the same judge, and his case is
being prosecuted by the same Assistant United States Attorney. lt is thus difficult to conceive
how the prosecution orchestrated a "more favorable prosecution" by dismissing Criminal Case
No. 1 1-60. And as this is the "primary concern," Poindexter, 719 F. Supp. at 10, of the Court’s
Rule 48 inquiry, the defendant’s argument is rejected.
III. CONCLUSION
For the above reasons, the defendant’s motion to dismiss the indictment in this case with
prejudice based on his claim that Criminal Case No. 11-60 should have been dismissed with
prejudice is denied.'z’
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
21
. 113/l
SO ORDERED this __ day of August, 2012.
LW'A rt%
REGG!E B. 'wALroN
United States District Judge
22