CLAY, Circuit Judge.
Following a jury trial, Defendant Jason Brown was convicted of four counts of distributing heroin and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and sentenced to 288 months' imprisonment. On appeal, Brown argues that: (1) the district court violated the Speedy Trial Act (the "STA" or "Act"), 18 U.S.C. § 3161 et seq.,
On December 12, 2013, Brown was indicted on four counts of distributing heroin and crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Brown was arraigned, entered his initial appearance, and pleaded not guilty before a magistrate judge on February 25, 2014. A jury trial was set for April 28, 2014.
On April 10, 2014, Brown's court-appointed counsel moved to withdraw at Brown's request. Four days later, the district court granted the motion to withdraw and vacated the April trial date, scheduling a new trial date for June 9, 2014.
Trial was delayed a second time by virtue of Brown's May 8, 2014 motion for a psychiatric examination, wherein Brown asserted that he may have been insane at the time of the alleged drug offenses.
On September 3, 2014, five days before the scheduled trial date, the government filed a motion to continue the trial. In its motion, the government indicated that it intended to call United States Probation Officer Steven Phillips as a witness for the purposes of testifying as to two important issues: identifying Brown and discussing Brown's flight after he learned of the warrants against him based on the counts in the indictment. According to the government, Phillips was planning to participate in two separate training events during the week of the trial, and these trainings had been scheduled long before the court reset the trial date for September 8. On this basis, the government requested a brief continuance to the next available trial date and requested that the court discuss possible dates with counsel over the telephone.
Brown, who was in custody, did not attend the same-day teleconference between defense counsel, government counsel, and the court. At this initial teleconference, government counsel informed the court that Officer Phillips would be instructing two out-of-state trainings scheduled during the week of trial. Although government counsel was not certain about the exact dates of Phillips' trainings, he believed that they would take place on the Monday (September 8) and Wednesday (September 10) of that week.
At the outset, the court noted that it had trials scheduled for September 15, September 22, and September 29, 2014, and opined that it might be able to accommodate Phillips' trainings by permitting the government to call its witnesses out of order. Government counsel said that he had discussed this option with Phillips, but expressed doubt that such an arrangement would be workable, indicating that Phillips' training schedule took priority with his supervisors and that Phillips was therefore unsure whether he would be "allowed to attend" the trial. Government counsel also admitted, "Some of this is my fault, Judge. I missed a week of prep. I was out for a week after [the trial was rescheduled] with a son in the hospital, and that kind of put me late getting a hold of Mr. Phillips," an "important" government witness. (R. 87, Tr. of Sept. 3 Teleconf., PageID# 328).
When prompted by the court, defense counsel conceded that he had not spoken with Brown about the government's motion for a continuance, but stated that "we're still within the speedy trial limit," "things happen," and "sometimes we don't have any control over [witnesses]." (Id. at 329). Defense counsel also agreed to make himself available for trial the following week, September 15, indicating that his state-court matter scheduled for September 16 could probably be continued because his client was not in custody. However, government counsel stated that his recently-hospitalized son was having surgery on September 15 and that he was "hoping to attend." (Id. at 330).
Without a discernable pause, at least on review of the cold record, the court then opined that a possible solution would be selecting a jury on September 8, and then taking a recess before reconvening for a two-day trial on September 17. The court reasoned that although such a plan was "not the most advantageous thing to do," it had several benefits, including (1) avoiding a situation wherein defense counsel made concessions on behalf of Brown without consulting him due to his absence from the teleconference, (2) permitting Officer Phillips to appear as a witness at trial, and (3) accommodating the government's other witnesses who would have otherwise flown in early for trial. (Id. at 331). However, upon learning that government counsel did not know how long his son's surgery would take, the court opined, "Frankly, the easiest thing to do here would be to deny the motion, keep the case set, and just tell Mr. Phillips [he's] going to have to miss one of those trainings, not two." (Id. at 331-32). The court also stated, "I'm just trying to be fair to everyone here." (Id. at 332). When the court asked whether the government would be prepared to try the case on September 8 if the motion for a continuance was denied, government counsel replied, "We'll try the case the day the case is called for trial, whether we have witnesses, whether we don't have witnesses.... But that's the point of the matter... we'll be there to try the case when the case has to be tried. I was attempting to assist [Officer Phillips]." (Id. at 332-33).
Shortly thereafter, the court went off the record. After going back on the record, the court asked both government and defense counsel whether they could begin trial on September 22. They answered in the affirmative. Accordingly, the court orally granted the government's motion and continued the trial date by 14 days, from September 8 to September 22.
At the time the court granted the motion for a continuance, defense counsel indicated that he did not think that Brown would object to the continuance, but asserted that he would need to talk to Brown to be certain. In response, the court instructed defense counsel to "file something of record" the following day once he had spoken with his client.
The next day, Brown filed a written response opposing the government's motion for a continuance. In his opposition, Brown argued that the government had known of Phillips since February 2013 and therefore had "plenty of time to investigate" and determine the "necessity and materiality" of this witness and his testimony. (R. 46, Notice of Filing, PageID# 94; see also R. 86, Tr. of Sept. 4 Teleconf., PageID# 319). Brown also asserted that a continuance would deny him his speedy trial rights and effectively ratify the government's lack of due diligence. At the September 4, 2014 teleconference between defense counsel, government counsel, and the court, from which Brown was also absent, defense counsel informed the court that Brown objected to "any continuance" of the trial. (R. 86, Tr. of Sept. 4 Teleconf., PageID# 319).
The court observed that Brown's objection to the continuance left it in a "quandary" because it had granted the government's motion the previous day. (Id. at 320). The court also noted that the 70-day
(Id. at 320). When prompted, government counsel responded to the court's proposed plan of action by stating, "[W]e would be willing to pick the jury on Monday[, September 8], and we'd like to return on [September 22] for presentation of proof. That takes care of that problem, and voir dire I was ready for two weeks ago." (Id. at 321). The court then asked defense counsel if he objected to such a procedure, to which defense counsel responded, "No, I can't object to that." (Id.). During this conversation, and in response to the court's prompting, defense counsel indicated that he had a scheduling conflict on September 15.
After both government and defense counsel agreed to this arrangement, the district court asserted:
(Id. at 321). The court also stated, "What we'll do on Monday[, September 8], we'll start at 2:00, we'll pick a jury, we'll have voir dire, select 14 [jurors], and then have them come back on the 22nd [for preliminary instructions and opening statements]." (Id. at 322). When the court asked defense counsel, "Just to make sure, your client does not object to that?", counsel responded, "There's no way he could object," adding, "I mean, that's within the 70 days, and there's no way." (Id.).
Accordingly, the district court denied the government's motion for a continuance, and proceeded with the alternative plan: conducting voir dire and empaneling a jury on September 8, taking a two-week recess, and then reconvening for trial on September 22. For the remainder of this opinion, we shall refer to this course of action as the "start-and-stop plan."
During the September 8 final pretrial conference, which was held immediately before voir dire and attended by Brown and counsel for both sides, the court stated:
(R. 88, Tr. of Final Pretrial Conf., PageID# 337). The court added, "I was going to set this trial for next week. I think the 70th day runs [September] 14th, as I recall, after taking the excludable time, but I understand both counsel will be unavailable next week." (Id.) When the court asked government and defense counsel, "You had a conflict, and you had a conflict as well?", both attorneys answered in the affirmative. (Id. at 337-38). The court opined, "So that time [between September 15 and September 22] would be otherwise excludable because of the unavailability of the attorneys. I wanted to put that on the record." (Id. at 338).
Brown, however, objected to "starting and recessing" the trial. (Id. at 339). More specifically, when the court asked if there was anything further defense counsel needed to discuss, counsel replied, "Judge, he wants to bring up, he does object to starting and recessing. [Brown] does." (Id.). The conversation between the court and Brown proceeded as follows:
(Id. at 339-40). After conferring with Brown, defense counsel stated, "Judge, there's no way we can be prejudiced. [Brown's] whole issue has always been
Ultimately, the court concluded:
(Id. at 342-43). When asked whether he had anything else to "bring up" before the prospective jurors were brought into the courtroom, defense counsel replied, "No, Your Honor." (Id. at 343).
The parties then proceeded with voir dire. Once fourteen jurors were selected, the jury panel was sworn and instructed to return two weeks later for trial.
In the criminal minutes for that day, the district court noted that "Brown's oral objection to the recess of the trial until September 22, 2014[wa]s [o]verruled." (R. 48, Crim.Mins., PageID# 102). In an order issued September 10, 2014, the court amended the criminal minutes from September 8 "to reflect that the time period between September 15, 2014[,] and September 22, 2014, totaling seven (7) days, shall be excluded from the provisions of the Speedy Trial Act as both counsel are unavailable that week." (R. 49, Order, PageID# 103).
Opening statements for Brown's two-day trial commenced on September 22. On the second day of trial, the jury found Brown guilty on each of the four drug distribution counts charged in the indictment. Thereafter, the court set a sentencing hearing for December 2014.
On December 1, following trial but prior to sentencing, Brown's supervised release matter, which was originally filed in the Southern District of West Virginia, was transferred to the district court. In an order issued December 2, the court set Brown's supervised release hearing for the same day as his sentencing hearing: December 9. At the sentencing hearing, the court imposed a 24-month sentence based on Brown's violation of the terms of his supervised release, to run consecutively with the 288-month sentence imposed for his convictions at trial.
On December 10, the district court issued judgments as to each of Brown's sentences. Brown timely appealed both judgments.
We review a district court's legal conclusions regarding an alleged STA violation
The Speedy Trial Act requires that in any case in which the defendant has not entered a guilty plea, trial must commence within 70 days of the filing of the indictment or the date of defendant's arraignment, whichever occurs later. 18 U.S.C. § 3161(c)(1); United States v. Tinklenberg, 563 U.S. 647, 131 S.Ct. 2007, 2010, 179 L.Ed.2d 1080 (2011). The Act also includes a list of delays that must be excluded from the 70-day period. 18 U.S.C. § 3161(h); United States v. Sobh, 571 F.3d 600, 602 (6th Cir.2009). If the defendant is not brought to trial within the 70-day limit, and the Act does not exclude the delays, the district court must dismiss the case, with or without prejudice, on the defendant's motion. 18 U.S.C. § 3162(a)(2); United States v. Myers, 666 F.3d 402, 404 (6th Cir.2012). A defendant's failure to move for dismissal prior to trial, however, constitutes a waiver of the right to dismissal. 18 U.S.C. § 3162(a)(2).
In this case, the record clearly demonstrates that Brown objected to "any continuance" of trial, including the district court's start-and-stop plan, as violations of his rights under the Speedy Trial Act. Brown articulated these objections on two occasions. First, he opposed the government's motion for a continuance in his written opposition filed September 4, 2014. Second, Brown orally objected to the start-and-stop plan — and the district court defended the plan as non-violative of the STA — at the final pretrial hearing held on September 8, 2014.
Notably, the circumstances surrounding Brown's objections to the alleged STA violation present two unique issues related to the form and timing of a motion filed pursuant to § 3162(a)(2). With regard to form, despite his objections, Brown never filed a formal, written motion to dismiss the four-count indictment against him. Although other circuits have addressed the question of whether a defendant's oral objection may act as a motion to dismiss under § 3162(a)(2), this Circuit has no binding authority on the matter. In terms of timing, both of Brown's objections were raised before the 70-day deadline, which was September 15, 2014. In United States v. Sherer, 770 F.3d 407, 410-11 (6th Cir. 2014), however, this Court held that a § 3161(a)(2) motion cannot properly allege a violation of the Act unless it is filed after the expiration of the 70-day deadline because the STA violation has not yet occurred. Thus, in resolving Brown's STA claim, we must analyze three distinct but related issues: (1) whether the district court's start-and-stop plan violated the Speedy Trial Act; (2) whether Brown's oral (rather than written) objections to the start-and-stop plan, made at the final pretrial conference, satisfied 18 U.S.C. § 3162(a)(2)'s motion requirement; and (3) whether this Court's decision in Sherer precluded Brown from effectively moving to dismiss the indictment at the pretrial conference, which was held seven days before the 70-day deadline.
As indicated, the Speedy Trial Act "requires dismissal of a criminal case, with or without prejudice, if the defendant is not tried [70] days after ... the date he first appears in court," United States v. Jenkins, 92 F.3d 430, 438 (6th Cir.1996), and the time exceeding 70 days is not
For the purposes of the Speedy Trial Act, trial generally commences when voir dire begins. United States v. Young, 657 F.3d 408, 416 (6th Cir.2011) (citing United States v. Crane, 776 F.2d 600, 603 (6th Cir.1985)). Several of our sister circuits follow the same approach. See, e.g., United States v. Arnold, 113 F.3d 1146, 1149 (10th Cir.1997), overruled on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Gov't of Virgin Islands v. Duberry, 923 F.2d 317, 320 (3d Cir.1991); United States v. Fox, 788 F.2d 905, 908 (2d Cir. 1986); United States v. Howell, 719 F.2d 1258, 1262 (5th Cir.1983); United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir. 1982). However, although trial generally commences when voir dire begins, appellate courts have consistently condemned attempts by the district courts to "evade the spirit of the Act by conducting voir dire within the statutory time limits and then ordering a prolonged recess with [the] intent to pay mere `lip service' to the Act's requirements." United States v. Scaife, 749 F.2d 338, 343 (6th Cir.1984) (citing United States v. Richmond, 735 F.2d 208, 211 (6th Cir.1984)); see, e.g., United States v. Isaacson, 752 F.3d 1291, 1302 (11th Cir.2014) (warning district courts not to interpret the court's holding "as a license to evade the Act's spirit" or "merely pay the Act lip service" (quoting Gonzalez, 671 F.2d at 444) (quotation marks omitted)); Duberry, 923 F.2d at 320 (stating that "if a district court attempts to evade the spirit of the Act by conducting
The parties' briefs cite two seminal STA cases from this Circuit: United States v. Crane, 776 F.2d 600 (6th Cir.1985) and United States v. Richmond, 735 F.2d 208 (6th Cir.1984). Both cases, like this matter, involved circumstances in which the district court commenced voir dire, took a recess of approximately two weeks, and then resumed trial thereafter. See Crane, 776 F.2d at 602; Richmond, 735 F.2d at 210-11. Due to the parallels between Crane, Richmond, and the case at bar, and the parties' reliance on these precedents, a thorough analysis of Crane and Richmond is warranted.
Stuart R. Crane was indicted on four counts of tax evasion, one count of obstructing justice, and one count of making false declarations before a grand jury. Crane, 776 F.2d at 602. On April 13, 1984, Crane was arrested and arraigned, and pleaded not guilty to all six counts in the indictment. Id. At the June 20, 1984 pretrial conference, defense counsel raised the issue that the Speedy Trial Act's 70-day limit was close to expiring. Id.
When the court asked defense counsel whether he was prepared for trial, he stated that he was ready to try the case but would need some time to find Crane, who was not present at the pretrial conference. Id. Nonetheless, a host of other timing issues were raised. Government counsel said that he could not be ready by June 20 because pretrial discovery and final preparation of the exhibit and witness lists had not yet been completed. Id. Additionally, government counsel claimed that Crane would not be ready for trial until after July 5 and would likely seek a continuance. Id. The judge presiding over the case indicated that he would be leaving the country on June 21 and, upon his return, would be presiding over the trial for another matter until July 3. Id. Thus, before the end of the pretrial conference, the court set Crane's trial date for July 5, 1984 — thirteen days after the 70-day deadline — and directed the attorneys to complete any remaining pretrial matters before that date. Id.
Later that day, the district court learned that the 70-day deadline would not expire until June 22. Id. Accordingly, the court instructed a magistrate judge to begin voir dire on June 21, "but not to swear in the jury or proceed further with the trial." Id. Over Crane's objection that "this procedure was a `false start' and an attempt to circumvent the Speedy Trial Act," voir dire was conducted before the magistrate judge on June 22. Id. "After voir dire the jury was not sworn in, and the trial was recessed until July 5." Id.
On July 5, Crane moved to dismiss the indictment on the grounds that the 70-day limit had expired before the trial commenced. Id. Although the district court "stated that the arrangement with the magistrate to have the jury impaneled on June 22 had been `an inappropriate effort to begin the trial within the 70 days,'" it ruled that "the delay from June 20 to July 5 had been a continuance granted in accordance
Following a "relatively lengthy" trial, Crane was found guilty and sentenced on two of the six counts for which he was indicted. Id. On appeal, Crane argued that the district court's procedure violated the Speedy Trial Act because his trial did not commence within the 70-day limit. Id. at 602-03.
As an initial matter, this Court agreed with Crane's assertion that the district court's "last-minute arrangement to have the Magistrate begin voir dire on June 22 was an attempt to evade the spirit of the Speedy Trial Act." Id. at 603. However, because the district court denied Crane's motion to dismiss the indictment based on its decision to continue the trial from June 20 to July 5, id., we also examined whether this delay was excludable from the 70-day time limit under the Act's "ends of justice" exclusion. Id. at 603-05. See 18 U.S.C. § 3161(h)(7).
Below, the district court found that the ends of justice served by granting the continuance outweighed the interests of the public and Crane in a speedy trial because (1) neither of the attorneys were prepared for trial on June 20, (2) the judge was unavailable, (3) the case was sufficiently complex to necessitate additional time before trial, and (4) dismissal of Crane's case would have been judicially inefficient because any dismissal would have been without prejudice and Crane, at least according to the government's representations, would have been re-indicted. Id. at 604. Crane challenged the sufficiency of these findings, and we considered each of them in turn. Id. at 604-06.
First, we noted that the district judge's unavailability, to the extent that it was caused "by his presiding over another case," was attributable to the "general congestion of the court's calendar" and therefore could not serve as a proper justification for an ends of justice continuance under the Act. Id. at 605; see 18 U.S.C. § 3161(h)(7)(C). Second, we observed that the district court's finding that "neither party had made any attempt to comply with the court's standing orders concerning certain matters of pretrial preparation... [,] would seem to indicate a lack of diligent preparation on the part of the government," and thereby preclude an ends of justice continuance based on the government's lack of preparation for trial. Crane, 776 F.2d at 605; see 18 U.S.C. § 3161(h)(7)(C). Third, we found that (1) the record contained evidence that conflicted with the district court's finding that defense counsel was not prepared for trial on June 20, (2) there was no evidence that defense counsel attempted to "sandbag" the district court,
Crane also argued that the district court's findings entered into the record on July 5 "were not the [court's] basis for continuing the trial." Id. at 606. In this vein, he asserted that "the reason that the trial was continued was that the judge was going to be out of the country and tied up with another case until July 5 and that the prosecution was unprepared to begin earlier." Id. "As support for [t]his argument, Crane point[ed] out that if the judge had granted a continuance on June 20 based on his later findings that the ends of justice served by the continuance outweighed other interests, the judge would not have arranged later that same day to have the Magistrate perform an admittedly inappropriate `commencement' of the trial." Id. We agreed, finding that "a fair reading of the record support[ed] Crane's construction of the facts." Id. In our view, the district court did not commence trial before the 70-day deadline because "he was [apparently] caught unaware and was going to be out of the country and occupied with another case until after the period expired." Id. Thus, it appeared that only after Crane moved to dismiss the indictment did the district court "devise[ ] new reasons that he stated for the record in excluding the delay from the seventy-day period." Id. Because the court's reasons for continuing trial initially were not the same as the ones it gave when denying Crane's motion to dismiss, we held that "Crane's conviction should be vacated because the period of delay in question was not a continuance granted on the basis of the District Court's findings as required by [the Act]." Id. at 606-07.
Eddie Ray Richmond was indicted on four counts of making false statements to the United States Postal Service on September 14, 1982, and arraigned on September 17, 1982. Richmond, 735 F.2d at 210. At the arraignment, Richmond pleaded not guilty. Id.
The district court scheduled voir dire for January 17, 1983, and then took a recess until January 31, 1983. Id. at 210-11. Richmond argued that this procedure "was tantamount to an attempt to circumvent, if not the letter, at least the spirit of the Speedy Trial Act." Id. at 211. We disagreed, noting that in the hearing transcript for January 14, 1983 — the date the district court scheduled voir dire for January 17, 1983 — "Richmond's counsel informed the court that he could not be ready to try the case on [January 17]." Id. We also observed that it was only in response to this representation by defense counsel that "the district court informed Richmond's counsel that once the jury was picked, the trial would be adjourned until counsel was ready." Id. at 212. On this basis, we concluded that:
Accordingly, we held that "for purposes of the Act, Richmond's trial commenced on January 17, 1983." Id.
Having found that the district court's decision to recess the trial after commencing
The Speedy Trial Act allows for the exclusion of any delay based on the district court's finding that "the ends of justice served by [granting the continuance] out-weigh the best interests of the public and the defendant in a speedy trial." Id. at 214; see 18 U.S.C. § 3161(h)(7)(A). However, a district court may grant an ends of justice continuance only where it makes findings in the record, orally or in writing, which set out the reasons the continuance serves the ends of justice. Richmond, 735 F.2d at 214-15. Thus, although "the findings upon which an `ends of justice' continuance is granted need not be included in the record at the time of the granting of the continuance," id. at 215 (collecting cases), the district court must base its continuance on "permissible factors" under the Act and may not invent after-the-fact findings to justify an ends of justice continuance that "cannot fairly be said," upon review of the record, to have served as its basis for granting the continuance. Id. at 215-16; see also United States v. Moss, 217 F.3d 426, 433 (6th Cir.2000) ("What a district court may not do, however, is allow the deadline to expire and then later attempt to rationalize the delay as having been required by the interests of justice.").
In its January 19, 1983 order, the district court listed three justifications for its findings that the ends of justice were served by the continuance from mid-December to January 17, 1983. Id. at 215. First, Richmond's substitute counsel needed this time to prepare his client's case. Id. Second, the judge presiding over Richmond's case would not be available between December 20, 1982, and January 5, 1983, due to surgery. Id. Third, the district in which the court was located had a relatively small number of trial judges and the court itself had a heavy criminal docket. Id. Under the Act's provisions, however, only the first and second reasons — affording defense counsel reasonable time for effective preparation
After reviewing the record, the Richmond Court concluded that "the district [could] not fairly be said to have granted the continuance of the trial date from December 13, 1982[,] based on the findings
There are two significant lessons, relevant to this case, to be gleaned from Crane and Richmond. First, this Court will not countenance maneuvers aimed at merely paying lip service to the Speedy Trial Act's requirements and may find that trial did not "commence" before the Act's 70-day deadline, even where voir dire occurred within 70 days, where such machinations are apparent. See Crane, 776 F.2d at 603 (citing Gonzalez, 671 F.2d at 444). That being said, a district court does not inherently "pay lip service" to the STA when it relies on a procedure that achieves the same outcome as the start-and-stop plan in this case, i.e., the commencement of voir dire, followed by a two-week recess, followed by trial. See Richmond, 735 F.2d at 210-12. Instead, we must examine whether such a procedure was warranted under the Act. Id. at 211-12; see 18 U.S.C. § 3161(h).
In examining whether the start-and-stop plan violated the STA, we address two important issues. First, we must determine whether the record supports a finding that the district court's start-and-stop plan constituted an improper attempt to evade the spirit of the Speedy Trial Act. See Crane, 776 F.2d at 603. Even if we answer this first question in the affirmative, because the district court ultimately tied the delay in this case to § 3161(h)'s ends of justice provision, we must also consider whether the district court's findings were sufficient to justify an ends of justice continuance under the Act, Crane, 776 F.2d at 603-07, and whether the findings underlying the court's ends of justice continuance were the true basis for its decision to continue the trial, Richmond, 735 F.2d at 214-16.
Brown argues that the district court's start-and-stop plan was intended to merely pay lip service to the requirements of the Speedy Trial Act. Based on our review of the record, we find that the district court's start-and-stop plan violated the spirit of the Act.
On September 4, after Brown filed his opposition to the continuance of trial, the district court seemingly changed course and stated that it would deny the government's motion for a continuance despite orally granting it the day before. Instead of continuing trial, the court's new procedure called for conducting voir dire on September 8, taking a two-week recess, and resuming trial with preliminary instructions and opening statements on September 22. The court opined that this start-and-stop plan would address the "quandary" created when it granted the government's motion for a continuance, accommodate the attorneys' purported conflicts on September 15 and 16, and accommodate Officer Phillips' training schedule.
Brown orally objected to this plan right before the parties commenced voir dire on September 8. As noted in Brown's opening brief before this Court, the district court's immediate response to this objection was to ask Brown, "Do you want to proceed pro se, without your lawyer?" (R. 88, Tr. of Final Pretrial Conf., PageID# 339). Brown responded, "No, sir," and the court went on to assert that the start-and-stop plan was necessary due to both attorneys' unavailability during the week of September 15. (Id. at 340). After explaining its belief that commencing voir dire before the 70-day limit would cause the STA clock to stop "as a matter of law," the
Brown argues that in this case, as in Crane, the district court's procedure violated the spirit of the STA because "the trial court did not intend to proceed with trial at a normal pace until after the STA deadline had passed." We agree. As in Crane, the record indicates that the district court sought to continue trial to a date beyond the 70-day limit from the outset (by orally granting the government's motion and continuing the trial to September 22), and only subsequently determined that it would commence trial prior to the expiration of the 70-day deadline (by conducting voir dire on September 8 and then taking a two-week recess until September 22) after calculating the 70-day deadline. Such maneuvers only paid lip service to the Act. See Crane, 776 F.2d at 602 (noting that before discovering that the 70-day limit would not expire until June 22, 1984, the district court set trial for July 5, 1984; after the court learned of the June 22 deadline, the court ordered a magistrate judge to commence voir dire on June 21, and then take a recess until July 5). Although the instant case does not involve a damning admission by the district court that commencing voir dire on the date in question was "an inappropriate effort to begin the trial within the 70 days," id. at 603, the district court in this matter admitted on the record that it did not calculate the 70-day deadline before granting the government's motion and continuing trial to September 22 — seven days after the deadline.
Another fact suggesting that the court devised the start-and-stop plan in order to pay lip service to the Act is that the court's decision to conduct voir dire on September 8 before taking a recess until September 22 accomplished the same purpose as the original continuance to September 22: permitting Officer Phillips to appear at trial without interfering with his training schedule. In response to Brown's criticism that Officer Phillips' training schedule conflict was not a sufficient justification for continuing trial, the court began relying more and more on the attorneys' alleged unavailability as its reason for taking the two-week recess. However, the Act does not countenance district courts inventing new, after-the-fact reasons for continuing trial. See Crane, 776 F.2d at 606.
Finally, unlike in Richmond, there is no indication, despite counsels' purported "conflicts" during the week of September 15, that either defense or government counsel would not have had reasonable time to effectively prepare for trial if trial had commenced on either September 8 or September 15. Cf. Richmond, 735 F.2d at 211. To the contrary, both attorneys indicated at the September 3 teleconference — despite the court's then-tentative proposal to select a jury, recess, and then resume trial at a later date — that they would be prepared to try the case on the day it was called by the court, including on September 15.
Originally, the district court granted the government's motion to continue trial on the grounds that Officer Phillips was a crucial witness and unavailable for trial on September 8. However, after Brown filed his opposition, the district court denied the government's motion and elected to proceed with the start-and-stop plan instead.
At the final pretrial conference, the district court opined that commencing voir dire on September 8, a week prior to the 70-day limit, stopped the STA clock "as a matter of law." (R. 88, Tr. of Final Pretrial Conf., PageID# 340). As explained above, we reject this assertion and conclude that trial did not commence on September 8, despite the commencement of voir dire, because the court employed the start-and-stop plan with the intent to pay lip service to the Act. Nonetheless, like the lower court in Crane, the district court in this case sought to exclude time after the deadline from the STA clock in order to avoid an STA violation. Crane, 776 F.2d at 603-04. Thus, because the court's September 10 order purported to exclude the week between the September 15 deadline and the September 22 trial date from the STA clock, we must determine whether this period of delay was excludable under the Act. See id. at 604-06.
In this case, the district court gave two reasons for utilizing the start-and-stop plan: Officer Phillips' training conflict and the trial attorneys' unavailability. Specifically, during the September 4 teleconference and September 8 pretrial conference, the court indicated that both Officer Phillips' training conflict and the attorneys' unavailability warranted employing the start-and-stop plan. In the September 10 order, the court stated that the week between September 15 and September 22 was excludable under the provisions of the STA due to counsels' unavailability during the week of September 15.
The government argues that a period of delay resulting from either (a) the absence or unavailability of an essential witness, or (b) an attorney's unavailability because of a conflicting trial commitment, is excludable the Act. However, for the reasons set forth below, we find that neither Officer Phillips' scheduling conflict due to his trainings, nor the attorneys' unavailability due to personal and professional "conflicts," warranted excluding the delay between September 15 and September 22 from the STA clock.
The Act permits the exclusion of "[a]ny period of delay resulting from the absence or unavailability of the defendant or an
As indicated above, we review the district court's factual findings for clear error. Carroll, 26 F.3d at 1390. "A factual finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made." United States v. Byrd, 689 F.3d 636, 639-40 (6th Cir.2012) (citation omitted).
In this case, assuming Officer Phillips was an essential witness, he could not have been considered absent because there was no indication that his whereabouts were unknown. Instead, government counsel had been communicating with Phillips in the days leading up to trial and learned that Phillips' training sessions made it difficult, if not impossible, for him to attend trial during the week of September 8. With regard to unavailability, although the district court found that the requested continuance was not the "result of any lack of diligence on the government's part," (R. 47, Order, PageID# 100), the record belies such a finding. Government counsel stated that "some of" the difficulties with calling Officer Phillips as a witness for a trial during the week of September 8 were "[his] fault" because he "missed a week of prep" while his son was in the hospital and was "late getting ahold of Mr. Phillips." (R. 87, Tr. of Sept. 3 Teleconf., PageID# 328). This statement suggests that government counsel did not exercise due diligence in attempting to procure Officer Phillips' presence for the September 8 trial date, and the Act explicitly prohibits district courts from granting continuances based on the government attorney's "failure to obtain available witnesses." 18 U.S.C. § 3161(h)(7)(C). Alternatively, even if we were to conclude that the district court's factual finding was not clearly erroneous, there is no indication that Officer Phillips could not have been subpoenaed to appear on September 8. More troublingly, there is also no indication that Officer Phillips was not available to testify on September 15. Instead, the district court ruled out the possibility of commencing trial on September 15, the last day within the 70-day limit, on the grounds that government and defense counsel were "unavailable" that day. As explained below, however, the Act does not provide for continuances based on counsel's "unavailability," standing alone, and the district court failed to make on-the-record findings that any reason for delay under § 3161(h)(7)(B)(iv) outweighed the best interests of Brown and the public in a speedy trial. Accordingly, we agree with Brown's assertion that any conflict that prevented the district court from trying this case on either September 8 or September 15 was "self-created."
As in Crane, subsequent to its initial decision to delay the trial date, the district court issued an order stating that the recess between voir dire and opening statements was excludable from the Act's 70-day limit.
The Act does not provide for the exclusion of delay based on a generalized finding that government counsel or defense counsel is "unavailable" for a particular trial date. Instead, the provision governing ends of justice continuances states that one factor the courts shall consider in determining whether to grant such a continuance is "[w]hether the failure to grant... a continuance ... would unreasonably deny the defendant or the Government continuity of counsel" or "deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. § 3161(h)(7)(B)(iv). On the facts in the record, it was clear error for the district court to grant an ends of justice continuance under this provision because, in response to the court's inquiry, both government and defense counsel stated that they could try the case on September 15 if the court scheduled trial for that date. Defense counsel stated that he "would do everything within [his] power" to try the case on September 15 and "could probably get [his state-court trial set for September 16] continued." (R. 87, Tr. of Sept. 3 Teleconf., PageID# 329). Government counsel stated that although he was "hoping to attend" his son's surgery, the government would "try the case the day [it was] called for trial," whether or not all of its witnesses could appear for trial. (Id. at 330, 332). Government counsel also told the court, "[T]he point of the matter is ... we'll be there to try the case when the case has to be tried." (Id. at 333). It was only after counsel made these explicit representations regarding their willingness to try the case on the date of the court's choosing that the court began relying on the attorneys' supposed unavailability as a justification for continuing the trial. However, even if the court's findings about the attorneys' unavailability were not clearly erroneous, which they are, such findings would not justify an ends of justice continuance under § 3161(h)(7)(B)(iv) because the court never found (orally or in writing) — and the record does not support a finding — that either attorney (a) could not be present to provide continuity of counsel or (b) needed more time to effectively prepare for trial. See 18 U.S.C. § 3161(h)(7)(B)(iv). Thus, a continuance was not warranted based on trial counsels' so-called "unavailability."
The government cites United States v. Sobh, 571 F.3d 600, 604 (6th Cir.2009), for the proposition that an "attorney's unavailability because of a conflicting trial commitment" may be used to justify an ends of justice continuance. Appellee's Br. at 18. But Sobh does not so hold and, in any event, is readily distinguishable on the facts. In Sobh, each of the defense attorneys in a multiple-defendant case requested additional time to prepare for trial and some defense attorneys sought additional time to continue pursuing "fruitful plea negotiations." 571 F.3d at 603. Only after the defense attorneys sought this continuance did government counsel join their request, "citing conflicting trial and professional commitments, as well as the unavailability of the primary case agent to participate in trial preparation." Id. at 603-04. More importantly, the district court granted an ends of justice continuance only after setting forth reasons that "reflect[ed] consideration" of the relevant factors and making "an express finding that the ends of justice served by the continuance out-weighed the best interest of the public and the defendant in a speedy trial." Id. at 604.
As noted in Richmond, 735 F.2d at 214, Congress drafted the STA to explicitly require that a district court granting an ends of justice continuance set forth, orally or in writing, "its reasons for finding 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." See 18 U.S.C. § 3161(h)(7)(A). In Richmond, we held that this requirement serves two purposes:
Richmond, 735 F.2d at 215 (quoting United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982)) (internal citations omitted).
In the instant case, the district court's statement that the time between September 15 and September 22, 2014, was excludable because government and defense counsel were "unavailable" during that week cannot fairly be said to have been its true reason for adopting the start-and-stop plan. See Richmond, 735 F.2d at 216 ("Based on our review of the record, we believe that the district court cannot fairly be said to have granted the continuance of the trial date from December 13, 1982 based on the findings that it set forth in the January 19, 1983 order" because (1) the court's pre-recess order directing entry of the continuance did not state that the continuance was intended to serve the ends of justice, (2) the court empowered the clerk of the court to re-set trial for the next available trial date, indicating that the court failed to balance the ends of justice and the public and defendant's interest in a speedy trial in choosing the new trial date, and (3) the court acknowledged that it only became aware of the "Speedy Trial
As in Crane and Richmond, when the district court first re-scheduled the trial date to a date beyond the STA deadline, it did so without calculating the 70-day limit under the Act because it was apparently "caught unaware" by the impending deadline. See Crane, 776 F.2d at 602, 606; Richmond, 735 F.2d at 216. Likewise, the district court issued its order excluding a week from the STA calculations based on an apparent ends of justice continuance only after it had already decided to delay the trial date, see Crane, 776 F.2d at 603-04; Richmond, 735 F.2d at 215-16, and proceed with the start-and-stop plan. Thus, a fair reading of the record indicates that the reasons stated in the district court's September 10 order, which would not have supported an ends of justice continuance under § 3161(h)(7)(B)(iv) in any event, were not the district court's true reasons for continuing all parts of the trial except voir dire from September 8 to September 22. See Crane, 776 F.2d at 607; Richmond, 735 F.2d at 216.
Finally, in order to grant an ends of justice continuance based on any of the considerations articulated under the Act, the district court was required to set forth on-the-record findings, orally or in writing, that the ends of justice served by the continuance outweighed the interests of Brown and society in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). In this case, however, the district court failed to weigh these interests on the record at any time during the proceedings below. This omission precluded the court from excluding the seven days between September 15 and September 22 from the STA clock. See Richmond, 735 F.2d at 215 ("Without properly explained reasons, the delay caused by a continuance is not an excludable item.").
For the aforementioned reasons, we find that the district court's start-and-stop plan violated the STA.
Under § 3162(a)(2), if an STA violation occurs, "the information or indictment shall be dismissed on motion of the defendant." The Act does not specify whether the defendant's motion must be in writing.
In this case, it is clear from the record that Brown orally objected to the STA violation arising from the district court's start-and-stop plan at the September 8 pretrial conference. However, it is equally clear that Brown never filed a formal, written motion to dismiss the indictment based on this violation. Although other circuits have found that a defendant's oral objection to an alleged STA violation satisfies § 3162(a)(2)'s motion requirement, we have never addressed this issue in a binding opinion.
In Alvarez-Perez, the Ninth Circuit correctly noted that § 3162(a)(2) "does not specify whether [a] motion [to dismiss the indictment] must be in writing." 629 F.3d at 1060; see 18 U.S.C. § 3162(a)(2). Thus, in considering whether an oral motion to dismiss may satisfy the Act's motion requirement as a matter of first impression, the Alvarez-Perez court cited the Tenth Circuit's decision in Arnold with approval, and ultimately held that "a court should entertain a motion to dismiss under the STA so long as the defendant `br[ings] to the trial court's attention his belief that the STA ha[s] been violated.'" Id. at 1060-61 (quoting Arnold, 113 F.3d at 1149). Although it noted that "defense counsel should ordinarily make such motions in writing ... when possible," the court held that permitting defendants to bring oral motions to dismiss based on STA violations was aligned with "Congress's clear intent to place a fair share of responsibility for ensuring that cases are tried in a timely fashion on the district court and government counsel," and was reasonable in light of the fact that "counsel's failure to make a meritorious STA motion may constitute ineffective assistance." Id. at 1061 (citations omitted).
With regard to the first rationale, like the Ninth Circuit, we have previously recognized the Act's requirement that both the government and the district court take responsibility for bringing criminal matters to trial in a timely matter. In United States v. Moss, 217 F.3d 426 (6th Cir.2000), a case wherein the district court took nearly a year to rule on the defendant's pre-trial motion, see id. at 431, this Court explained:
Id. at 433 (Gilman, J., concurring); see also Zedner v. United States, 547 U.S. 489, 502, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (stating that under the STA, "the prosecution and the court retain a strong incentive to make sure that the trial begins on time" because they "cannot know until the trial actually starts or the guilty plea is actually entered whether the defendant will forgo moving to dismiss"). Thus, although the Act clearly assigns the responsibility of moving for dismissal to the defendant, 18 U.S.C. § 3162(a)(2), since both the government and the district court share responsibility for bringing cases to trial in a timely
Second, the Alvarez-Perez court reasoned that allowing a defendant's oral objection to satisfy the Act's motion requirement is reasonable because an attorney's failure to file a § 3162 motion may give rise to a claim for ineffective assistance of counsel. 629 F.3d at 1061. Specifically, the court noted that under its earlier case, United States v. Palomba, 31 F.3d 1456 (9th Cir.1994), a defense attorney's "failure to make a meritorious STA motion may constitute ineffective assistance" under the framework set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Alvarez-Perez, 629 F.3d at 1061. Applying Strickland's "deficient performance prong," the Palomba court reasoned that defense counsel's performance was deficient because (1) "no apparent or plausible tactical decision could explain counsel's failure to move for dismissal, potentially with prejudice," based on a violation of the Act, and (2) there was an "apparent absence from the record of indicia of tactical reflection by counsel on this issue." 31 F.3d at 1466. In at least two unpublished decisions, this Court has employed similar analyses. See United States v. Jackson, 22 Fed.Appx. 396, 397-98 (6th Cir.2001) (stating that in circumstances where "the number of non-excluded days before trial exceed[ed]" the 70-day limit, "counsel would be expected to raise a speedy trial violation" and counsel's "failure to raise this issue [would] arguably f[a]ll outside the range of acceptable representation"); Smith v. United States, No. 88-2130, 1989 WL 88455, at *1-2 (6th Cir. Aug. 8, 1989) (asserting that the defendant "stated a facially valid claim of ineffective assistance of counsel based upon his counsel's failure to move for dismissal of the charges against him" where 41 days elapsed between the time of the defendant's arrest and the time of his indictment despite 18 U.S.C. § 3162(a)(1)'s "require[ment] that the charges against a defendant be dismissed where more than 30 days elapse[d] following his arrest without an indictment being filed against him").
Like the Ninth Circuit in Alvarez-Perez, the Tenth Circuit in Arnold held that a defendant's "statements to the district court prior to trial, in which he claimed a violation of the STA, satisf[ied] the motion requirements of 18 U.S.C. § 3162(a)(2)." Arnold, 113 F.3d at 1149. In that case, as in the case at bar, the defendant "present[ed] the STA issue to the district court, albeit not in the form of a formal, written motion," prior to the commencement of voir dire. Id.
By contrast with the Ninth and Tenth Circuits' holdings in Alvarez-Perez and Arnold, in Spagnuolo, the First Circuit held that the defendant's oral motion to dismiss did not satisfy the Act's motion requirement. Spagnuolo, 469 F.3d at 42. However, as previously stated, § 3162(a)(2) "does not specify whether th[e] [defendant's] motion must be in writing," Alvarez-Perez, 629 F.3d at 1060, and the Spagnuolo court cited no binding authority for the proposition that an oral motion can never satisfy § 3162(a)(2).
Having carefully reviewed the aforementioned authorities, we find the Ninth and Tenth Circuits' interpretation of § 3162(a)(2), which recognizes written as well as oral motions, to be more persuasive. Accordingly, we hold that although defendants should normally make their § 3162(a)(2) motions in writing, "a court should entertain a motion to dismiss under the STA so long as the defendant `br[ings] to the trial court's attention his belief that the STA ha[s] been violated.'" Alvarez-Perez, 629 F.3d at 1060-61 (quoting Arnold, 113 F.3d at 1149).
Like the lower court in Arnold, the district court in this case acknowledged that Brown raised the STA issue. See Arnold, 113 F.3d at 1149 (observing that "[t]he district court itself acknowledged the adequacy of appellant's presentation"). The court responded to Brown's claim that his STA rights were being violated by devising the start-and-stop plan, overruling Brown's oral objections
For the aforementioned reasons, we find that Brown's oral objections at the final pretrial conference satisfied § 3162(a)(2).
The STA "requires that the defendant bring a motion for dismissal ... prior to trial," United States v. White, 985 F.2d 271, 274 (6th Cir.1993), and a defendant's failure to move to dismiss before trial begins constitutes a waiver of the right to dismissal. 18 U.S.C. § 3162(a)(2). The government argues that Brown waived his right to move to dismiss the indictment under United States v. Sherer, 770 F.3d 407 (6th Cir.2014), because his September 8 objections to the start-and-stop plan, which we have held satisfied § 3162(a)(2)'s motion requirement, were made prior to the expiration of the 70-day deadline on September 15. Appellee's Br. at 8-9.
In Sherer, this Court found that defendant Quentin Sherer's § 3162(a)(2) motion was premature and therefore ineffective because he filed it 57 days after his indictment came down, i.e., "thirteen days before the Government's time r[an] out" under the 70-day deadline. 770 F.3d at 411. Relying on the First Circuit's holding in United States v. Connor, 926 F.2d 81, 84 (1st Cir.1991), and the Ninth Circuit's holding in United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir.1989), we held that "[t]he proper course was to challenge the continuance on day seventy-one (or later)" and, as a result, Sherer's failure to take this course of action "waive[d] his rights under the [STA]." Sherer, 770 F.3d at 411. The government argues that Brown waived his STA rights for the same reason. We disagree.
Neither Sherer nor the cases on which it relies involved a court purportedly commencing trial with voir dire and then immediately halting trial for two weeks. None of those cases involved issues pertaining to voir dire at all. In Connor, the First Circuit quoted the Ninth Circuit's holding in Wirsing for the proposition that:
926 F.2d at 84 (quoting Wirsing, 867 F.2d at 1230) (emphasis omitted). Thus, the Connor court concluded that the defendant's motion to dismiss, which was filed two weeks prior to the commencement of the challenged continuance and was not renewed thereafter, was not a proper vehicle for objecting to the continuance, and, as a result, the defendant had waived any challenge to the continuance by failing to renew the motion to dismiss. Id. Similarly, in Wirsing, the Ninth Circuit concluded that it would consider only the period prior to the defendants' filing of their motions to dismiss in determining whether any delay in ruling on pretrial motions violated the Act because the defendants did not bring any later-filed motions and had therefore waived the right to "challenge any subsequent delay." 867 F.2d at 1230.
Like Sherer, neither Connor nor Wirsing involved a procedure similar to the one undertaken by the district court in this case: a procedure that caused trial to begin, at least in the district court's estimate, before the expiration of the 70-day limit. In other words, unlike Crane and the case at bar, neither Sherer, nor the cases on which it relied, involved a court-created
The dissent would have us ignore the facts of this case in order to apply Sherer regardless of its appropriateness. However, each of our decisions "must necessarily be based upon application of relevant law to the unique facts before the [C]ourt." Local 120, Int'l Molders & Allied Workers Union, AFL-CIO v. Brooks Foundry, Inc., 892 F.2d 1283, 1289 (6th Cir.1990); see also United States v. Cunningham, 679 F.3d 355, 375 (6th Cir.2012) ("[I]n every case[,] application of a legal principle turns on the presence of particular facts.") (citation and quotation marks omitted). In other words, we are charged with "considering not only how well-established is the general legal principle involved but also how precisely the facts coincide with the cases applying that principle." United States v. Savoca, 761 F.2d 292, 298 n. 10 (6th Cir.1985). In the instant appeal, the only cases propounding the principle enunciated in Sherer, including Sherer itself, are distinguishable on the facts. Thus, Sherer's holding carries little force to the extent that it fails to account for the unique facts before us.
Further, the dissent's assertion that "the start-and-stop plan did not prevent Brown from moving to dismiss after the 70th day of his STA clock," (Dis. 831), ignores the record before us. Based on the district court's adamant and consistent (and erroneous) rejection of Brown's STA objections prior to the 70-day deadline, Brown had no reason to believe that the district court would entertain, let alone grant, a motion to dismiss the indictment filed on or after September 16, 2014. See Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) ("No legitimate state interest would have been served by requiring repetition of a patently futile objection, already thrice rejected, in a situation in which repeated objection might well affront the court"); see also Asbill v. Hous. Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1502 n. 3 (10th Cir. 1984) (excusing the appellant's technical non-compliance with Federal Rule of Civil Procedure 51 on the grounds that the district court had rejected the appellant's arguments "at least four times" previously, the appellant's "position had been previously made clear to the court[,] and it was plain that further objection would have been unavailing"); Rummel v. Estelle, 587 F.2d 651, 653-54 (5th Cir.1978) (finding that the petitioner's argument was not barred by the contemporaneous objection rule because the state court had "repeatedly rejected" the argument and it was unclear "how any state interest would be served by demanding that [the petitioner] make a futile gesture at his trial"). In light of the district court's repeated and explicit rejection of his arguments, and absent the impending edict from Sherer, we see no reason to demand that Brown make such a fruitless gesture in order to preserve his STA claim.
The district court claimed that trial had begun on September 8, 2014. It made this representation despite taking a recess that delayed preliminary instructions and opening statements until September 22. Although it was clear to Brown that the district court was creating unwarranted delay through its use of the start-and-stop plan, we do not think it was clear, on the
Another consideration favoring relief is the time at which Sherer was decided — October 22, 2014 — a month after Brown was tried and convicted of four counts of drug distribution.
Because we find that the district court's start-and-stop plan violated the STA, Brown's oral objections at the September 8 pretrial conference satisfied § 3162(a)(2)'s motion requirement, and Sherer does not control on the narrow facts of this case, we hereby
Brown asserts that if we vacate his trial convictions based on the STA
Notably, Brown fails to cite, and we have not found, case law from any circuit supporting Brown's apparent position that vacating a defendant's sentence automatically requires vacating any additional sentence arising from the revocation of the defendant's supervised release. Brown also fails to provide a substantive argument as to why we should vacate his supervised release sentence merely because we find reason to vacate his separate, drug-conviction sentence on STA grounds. "`[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived,'" and "`it is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to put flesh on its bones.'" United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997); United States v. Reed, 167 F.3d 984, 993 (6th Cir.1999)) (alterations omitted); see also White Oak Prop. Dev., LLC v. Washington Twp., Ohio, 606 F.3d 842, 850 (6th Cir. 2010) ("[The appellant's] discussion is perfunctory, and we hold that the issue is forfeited." (citation omitted)). Because Brown's supervised release argument is perfunctory and unaccompanied by any legal support or developed argumentation from Brown, we deem this argument waived and
We are granting Brown relief on his STA claim; thus, his ineffective assistance of counsel claim, which is predicated on the STA issue, is moot. See, e.g., United States v. Jones, 489 F.3d 243, 255 (6th Cir.2007) ("Because we are granting Jones relief on his supervised-release and double-jeopardy claims, his ineffective assistance of counsel claims predicated on these two claims are moot.") (citing United States v. Milledge, 109 F.3d 312, 316 n. 2 (6th Cir.1997); see also United States v. Jackson, 244 Fed.Appx. 727, 729 (6th Cir. 2007) ("Because the district court's error in treating the policy statements as mandatory requires remand for the imposition of a new sentence, we need not reach Jackson's argument that the district court erred in its application of the § 3553(a) factors in imposing this sentence. Similarly, inasmuch as Jackson's ineffective assistance of counsel argument relies only on his counsel's performance in relation to the sentencing process, that issue is moot.")). Accordingly, we do not reach the merits of Brown's ineffective assistance claim.
Lastly, Brown argues that his "exclusion" from the September 3 and 4, 2014 teleconferences, wherein defense counsel, government counsel, and the court agreed to delay trial through a continuance and then through the start-and-stop plan, violated his constitutional "right to be present" at all critical stages of the proceedings against him under the Fifth Amendment's Due Process Clause and the Sixth Amendment's Confrontation Clause. Appellant's Br. at 42-43. Based on these alleged constitutional violations, Brown requests that we "reverse [his] conviction[s] and order a new trial." Id. at 42. Because this constitutional claim essentially seeks the same relief as we
For the aforementioned reasons, we
RONALD LEE GILMAN, Circuit Judge, concurring in part and dissenting in part.
My disagreement with the generally well-reasoned majority opinion is narrow but consequential. I agree that Brown's Speedy Trial Act (STA) rights were violated (Maj. Op. at 809-22), and that the district court did not err in concluding that Brown violated his supervised release (Maj. Op. at 828-29). Accordingly, I concur in Parts II.A. and II.D. of the majority opinion. I also agree with the general principle that an oral motion to dismiss comports with the requirements of 18 U.S.C. § 3162(a)(2). But because Brown's objection to the continuance of his trial failed to comply with binding circuit precedent, I am of the opinion that Brown's STA claim fails.
For the reasons set forth in the majority opinion, I believe that an oral motion to dismiss the indictment is sufficient to comply with the STA's provision requiring that the dismissal of the indictment be based "on motion of the defendant." 18 U.S.C. § 3162(a)(2). The problem here is that Brown never in fact made any such motion. He simply objected to the court's start-and-stop solution to the STA's 70-day deadline, but without ever moving to dismiss for that reason.
Based on the skeletal reasoning in United States v. Arnold, 113 F.3d 1146, 1149 (10th Cir.1997), the majority concludes that Brown's oral objection to continuing the trial was equivalent to an oral motion to dismiss under § 3162(a)(2). (Maj. Op. at 822-26) I have doubts as to the soundness of that decision, but I see no reason to pursue the issue because, in my opinion, there is a more clear-cut basis on which to resolve this case. Accordingly, I will assume without deciding that Brown's oral objection to the district court's start-and-stop plan constituted an oral motion to dismiss the indictment.
The clear-cut basis for resolving this case, in my opinion, is premised on this court's decision in United States v. Sherer, 770 F.3d 407 (6th Cir.2014). In Sherer, the defendant moved to dismiss his indictment on the 57th day of his STA clock on the ground that his trial, which was scheduled to begin approximately two months later, would commence after the 70th day. Id. at 411. Heeding the wisdom of other courts, Sherer held that "a motion for dismissal under the Speedy Trial Act is effective only for periods of time which antedate its filing." Id. (brackets omitted) (quoting United States v. Connor, 926 F.2d 81, 84 (1st Cir.1991)). Sherer went on to conclude that the "proper course" when challenging a trial scheduled on a date that would violate the STA is to file a motion to dismiss "on day seventy-one (or later)." Id. By failing to move to dismiss after the 70th day, a defendant "waives his rights"
Beyond being binding precedent, Sherer's approach makes sense. A defendant's STA rights have not been violated until after the 70th day has passed because the STA allows for trial to begin as late as the 70th day. See 18 U.S.C. § 3161(c)(1). This means that there is no injury for a court to redress until the 70th day has passed without the defendant's trial commencing. The rule in Sherer also protects against certain legal oddities. For instance, Sherer noted that the Supreme Court has held "that any pretrial motion — even the defendant's motion to dismiss under the Speedy Trial Act — stops the statutory clock." 770 F.3d at 411 (emphasis in original) (citing United States v. Tinklenberg, 563 U.S. 647, 131 S.Ct. 2007, 2016, 179 L.Ed.2d 1080 (2011)). Without the rule in Sherer, a court could be confronted with the anomaly of a trial date that would have otherwise violated the STA except for the defendant filing a motion to dismiss before the 71st day, thereby tolling the STA clock. The waiver rule that Sherer lays down is therefore rational, in addition to being binding precedent.
But the majority attempts to distinguish Sherer from the present case on two grounds. First, the majority notes that Sherer and the cases it cited for support did not involve start-and-stop plans. (Maj. Op. at 826-27) This indubitable fact, however, is a distinction without a difference. Nothing in Sherer indicates that its conclusion would have been different had it confronted a start-and-stop plan. Moreover, Sherer's binding effect is independent of the facts underlying the cases that it cited for support.
The majority clarifies its quibble with the factual differences between Sherer and the present case by contending that here, unlike in Sherer, the district court's start-and-stop plan imposed "a court-created obstacle to moving to dismiss the indictment after the 70 days." (Maj. Op. at 826-27) Contrary to the majority's assertion, however, the start-and-stop plan did not prevent Brown from moving to dismiss after the 70th day of his STA clock.
A defendant waives a violation of his STA rights unless he "move[s] for dismissal prior to trial." 18 U.S.C. § 3162(a)(2). Although voir dire is generally considered the start of trial for purposes of the STA, see United States v. Scaife, 749 F.2d 338, 343 (6th Cir.1984) ("Under normal circumstances, a trial begins for purposes of the [STA] when the voir dire process begins."), this generality — like most generalities — has exceptions. One such exception must be for situations, like the present case, where a start-and-stop plan violates the STA.
When a defendant alleges that a start-and-stop plan violates the spirit of the STA, he is essentially arguing that voir dire should not be deemed the start of his trial for STA purposes. Success on such a challenge necessarily means that, for STA purposes, the defendant's trial did not begin with voir dire. Brown seeks to have it both ways by simultaneously contending that (1) voir dire did not commence his trial for the purpose of evaluating the merits of his STA claim, and (2) voir dire did commence his trial for the purpose of the STA's waiver provision, which purportedly prevented him from seeking dismissal after the 70th day. He should not be allowed to prevail based on the simultaneous assertion of these two inconsistent positions. I would therefore hold that, when a
The majority's second attempt to distinguish Sherer is based on the fact that Sherer was decided after the jury found Brown guilty. (Maj. Op. at 827-28) Although factually correct, the majority offers no explanation for why this leads to the inapplicability of Sherer's holding to the present case, especially considering that the district court had not yet issued judgment when Sherer was decided. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) ("When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule."); Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final...."). And even if Sherer's holding were somehow not binding in the present case because Sherer was decided after the jury found Brown guilty, I would still apply the waiver rule to this case because, as explained above, the rationale underlying it is sound and persuasive.
The majority musters a sole dissenting opinion from an unrelated case for the proposition that applying Sherer to the present case would be unfair. (Maj. Op. at 828) Applying Sherer's waiver rule to the present case is no more unfair, however, than its application to Sherer himself. And surely the majority would not dispute that Sherer was subject to the rule announced in his case. See Harper, 509 U.S. at 97-98, 113 S.Ct. 2510 (holding that, unless the Supreme Court reserves the question of whether its holding should be applied to the parties before it, the presumption is that the holding applies to them).
To summarize, I am unpersuaded by the majority's attempts to distinguish Sherer from the present case. I would instead apply Sherer and hold that, when a start-and-stop plan violates the STA, a defendant waives his STA rights unless his motion to dismiss the indictment occurs both (1) after the 70th day of the STA clock, and (2) prior to the resumption of trial following the recess that violates the STA.
Turning to the application of Sherer in the present case, the parties do not dispute that the 70th day of the STA clock occurred on September 15, 2014. (Maj. Op. at 810 n. 5) Accordingly, per Sherer, any motion to dismiss under the STA made prior to September 16, 2014 was ineffective. See 770 F.3d at 411. Brown made his oral objections on September 8, 2014. (Maj. Op. at 806-08) Even assuming without deciding that these objections constituted an oral motion to dismiss, the record is devoid of any evidence that either Brown or his defense counsel moved for dismissal under the STA between September 16, 2014 and the resumption of trial on September 22, 2014. Indeed, there is no evidence that a motion to dismiss under the STA was filed at any time after September 15, 2014. Brown has therefore
Because I conclude that Brown's STA claim fails on procedural grounds, I will now turn to his two alternative arguments for relief that are not addressed by the majority opinion. The first such alternative argument is an ineffective-assistance-of-counsel claim based on the failure of Brown's counsel to seek dismissal because of the alleged STA violation. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that a defendant is denied his Sixth Amendment right to the effective assistance of counsel when (1) his "counsel's performance was deficient," and (2) the "deficient performance prejudiced the defense").
There is a strong preference in favor of not addressing ineffective-assistance-of-counsel claims on direct appeal. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) ("[I]n most cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective assistance."); United States v. Jones, 489 F.3d 243, 255 (6th Cir.2007) (noting that this circuit "ordinarily will not rule on ineffective assistance of counsel claims raised on direct appeal because the record has not been sufficiently developed to review such claims").
Because a district court has the option to dismiss an indictment without prejudice to remedy an STA violation, see 18 U.S.C. § 3162(a)(2), the record is not adequately developed to address whether Brown's ineffective-assistance-of-counsel claim satisfies the prejudice prong of Strickland. See United States v. Jackson, 22 Fed. Appx. 396, 398 (6th Cir.2001) (denying a defendant's ineffective-assistance-of-counsel claim based on his counsel's failure to raise an STA violation because the defendant had "not demonstrated a reasonable probability that the district court would have dismissed the indictment with prejudice"). I would therefore deny Brown's ineffective-assistance-of-counsel claim without prejudice and allow him to bring it in a petition under 28 U.S.C. § 2255.
Brown's second alternative argument is that his exclusion from the teleconference on September 3 and 4, 2014 violated his rights under the Due Process Clause of the Fifth Amendment and the Confrontation Clause of the Sixth Amendment. He concedes, however, that this claim is subject to review under the plain-error standard because defense counsel did not object to Brown's absence. See Fed. R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."); United States v. Cromer, 389 F.3d 662, 672 (6th Cir.2004) ("Plain error review applies even if the forfeited assignment of error is a constitutional error.").
"To establish plain error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant's substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings." United States v. Blackwell, 459 F.3d 739, 771 (6th Cir.2006) (quoting United States v. Abboud, 438 F.3d 554, 583 (6th Cir.2006)). A defendant must satisfy each of the four distinct analyses of the plain-error inquiry in order to prevail on a forfeited
"[A] defendant has a due process right to be present at a proceeding whenever his presence has a relation, reasonably substantial, to the fulness [sic] of his opportunity to defend against the charge." United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam) (citation and internal quotation marks omitted). This right, however, is not absolute. United States v. Henderson, 626 F.3d 326, 343 (6th Cir.2010) (noting that "a defendant's right to be present at every stage of trial is not absolute"). "The presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Gagnon, 470 U.S. at 526, 105 S.Ct. 1482 (brackets and citation omitted).
Even if the district court did err in conducting the teleconferences in Brown's absence, any alleged error was not obvious or clear. "An error is `plain' when, at a minimum, it is `clear under current law.'" United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir.2015) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). "A lack of binding case law that answers the question presented" precludes a "finding of plain error." Id. Brown has cited no cases, nor am I aware of any, holding that a defendant has a constitutional right to be present at a pretrial conference discussing (1) the trial schedule, (2) a possible continuance, or (3) a potential STA violation. Accordingly, even assuming without deciding that the district court erred, the error was not plain. Brown's claim regarding his exclusion from the teleconferences therefore fails.
In conclusion, I can understand why the majority might think that the application of Sherer is unfair to Brown. (Maj. Op. at 827-28) In our constitutional system, however, judges are not charged with simply dispensing justice in some abstract, unanchored sense. We are permitted to administer our own conception of justice only if it comports with the law. See United States v. Mize, Nos. 13-6558, 13-6559, 13-6560, 814 F.3d 401, 416, 2016 WL 640636, at *12 (6th Cir. Feb. 18, 2016) (Keith, J., dissenting) ("At first blush, it may appear that the majority reaches a `noble' outcome because the convictions of three defendants are reversed. However, courts should be ever mindful that true justice requires consistent application of the law for everyone."). Because Sherer controls the outcome of this case, I cannot join the majority in full. I would therefore affirm the judgment of the district court.
