ERIC F. MELGREN, District Judge.
This matter comes before the Court on three motions filed by Defendant Darrell Black: Defendant's Motion to Dismiss Indictment (Doc. 14) for violation of the Speedy Trial Act, Defendant's Motion to Dismiss Counts 3 and 6 (Doc. 15) for failure to state an offense, and Defendant's Supplemental Motion to Dismiss Indictment (Doc. 30). On September 13, 2019, the Court heard oral argument on these matters. For the following reasons, the Court denies each of Defendant's motions.
On September 12, 2017, the Grand Jury returned an indictment, charging Black in Counts 1 and 4 with Interfering with Interstate Commerce by Robbery (in violation of 18 U.S.C. § 1951), in Counts 2 and 5 with Brandishing a Firearm in Furtherance of a Crime of Violence (in violation of 18 U.S.C. § 924(c)), and in Counts 3 and 6 with being a Felon in Possession of a Firearm (in violation of 18 U.S.C. §922(g)(1)).
The indictment resulted from two armed robberies in May 2017. The Government alleges that on May 27, 2017, at around 3:20 a.m., Black entered the Extended Stay America hotel located at 9450 E. Corporate Hills and, while brandishing a gun, demanded money from the clerk. The clerk gave Black approximately $185 and Black fled the hotel.
The Government alleges that on May 29, 2017, Black committed another armed robbery at the Days Inn and Suites located at 7321 E. Kellogg. At approximately 9:00 a.m., Black approached the clerk and produced a gun while demanding the money from the cash drawer. Before the clerk was able to retrieve the money, Black jumped over the counter and stole the money from the cash register and then fled.
After committing the alleged robberies in Kansas, Black drove to Missouri and robbed the Staybridge Inn and Suites located at 805 Keene Street in Columbia. He robbed the clerk at gunpoint and was given money belonging to the hotel before departing. Black was arrested later that day in Jefferson City, Missouri, after attempting to flee. The arresting officer recovered a bag belonging to Black which contained ammunition. A handgun was also recovered nearby, which Black later admitted belonged to him and had been used to rob the motel in Columbia.
On June 6, 2017, Black was initially charged by Complaint in the Western District of Missouri which was followed by an Indictment on July 18, 2017. In the Indictment, Black was charged with Interfering with Commerce by Robbery, in violation of 18 U.S.C. § 1951; Brandishing a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c); Being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1); and Possession of a Stolen Firearm, in violation of 18 U.S.C. § 922(j).
After Black was indicted in Kansas in this case, his counsel in the Western District of Missouri contacted the U.S. Attorney's Office in Kansas to convey Black's desire to have the Kansas case resolved in Missouri pursuant to Federal Rule of Criminal Procedure 20. The federal prosecutors in Kansas and the Western District of Missouri agreed to the transfer after Black agreed to enter a plea of guilty to the Kansas charges. Black's case was assigned to Judge Brian Wimes. However, on the date set for his plea in Missouri, Black pled guilty to the Missouri charges only, and Judge Wimes ordered the clerk of the court to return Black's Kansas case to the District of Kansas. On March 6, 2019, Black was sentenced in the Missouri matter to 318 months in prison, followed by three years of supervised release.
Following his sentencing in Missouri, Black was returned to Kansas to make a first appearance in this case. On March 22, Black appeared before Magistrate Judge Kenneth Gale for a pretrial hearing. On July 2, Black filed the two motions now before the Court. Black moved the Court to dismiss the indictment, arguing that the Government failed to bring him to trial within 70 days of his first appearance before Judge Wimes as required by the Speedy Trial Act. While Black acknowledges that some of the time he spent in the custody of Missouri was excluded under the Speedy Trial Act, he argues that 171 days passed that are not excludable. The vast majority of this time occurred after Black pleaded guilty to the Missouri crimes but while he was awaiting sentencing on the Missouri crimes.
Black also moved the Court to dismiss Counts 3 and 6 (felon in possession of a firearm) based on the Supreme Court's recent opinion in Rehaif v. United States. The Government's Response acknowledged that the Indictment was flawed under Rehaif, but the Government asked the Court to delay ruling on Black's motion to allow the Government the opportunity to obtain a Superseding Indictment that complied with the Supreme Court's ruling. On August 14, 2019, the Government filed a Superseding Indictment against Black.
On September 13, 2019, the Court conducted a hearing on Black's two motions. At the hearing, the Court ordered (upon request of the parties) supplemental briefing to be filed by September 27. Both parties filed their supplemental arguments, although Black filed his as a Supplemental Motion to Dismiss the Indictment (Doc. 30). The Court has fully reviewed and considered the pleadings and statements at oral argument, and the Court now rules as follows.
Congress passed the Speedy Trial Act to protect a defendant's Sixth Amendment right to a speedy trial. "In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs."
When the Speedy Trial Act is violated, dismissal is mandatory, but the Court retains discretion to dismiss with or without prejudice.
Black argues that the Government violated the Speedy Trial Act by failing to bring him to trial within 70 (non-excludable) days of his initial appearance before Judge Wimes in the Western District of Missouri. Under 18 U.S.C. § 3161:
Although the Government has 70 days to bring a defendant to trial, the Court excludes from that calculation any time that falls within one of the scenarios outlined in § 3161(h)(1). Black argues that even after applying the appropriate exclusions, the Government exceeded its 70-day window.
Before addressing whether any exclusion applies, the Court must first determine when the speedy trial clock began to run. The Government takes the position—appealing to § 3161(c)'s plain language—that the speedy trial clock did not begin until Black made his first appearance in front of a District of Kansas Judge on March 22, 2019. In contrast, Black argues that the speedy trial clock on his Kansas case was initiated by the Western District of Missouri proceedings when Black made his first appearance before Judge Wimes. Black emphasizes that the Western District of Missouri filed Black's consent to transfer under Rule 20 and assigned the case to Judge Wimes "for all further proceedings."
The Court is ultimately persuaded that the Government's plain language argument is correct. Section 3161(c) specifies that the speedy trial clock is triggered by the latter of the indictment or the defendant's appearance "before a judicial officer of the court in which such a charge is pending."
The limited authority the Court is aware of, however, supports the Government's contention that the Missouri proceeding did not trigger § 3161(c)'s speedy trial countdown. For example, in Wickham the defendant was charged in the Central District of California with escaping federal custody; the defendant was eventually arrested in Dallas, Texas. Pursuant to Rule 20, the defendant agreed to plead guilty to his California charge in a Texas federal court. After initially pleading guilty in Texas, the defendant filed a motion to withdraw his guilty plea. The Texas district court granted the motion and ordered the defendant transferred to California for prosecution. The defendant eventually filed a motion with the California district court to dismiss the indictment for violation of the Speedy Trial Act. The district court denied the motion, and the Ninth Circuit affirmed. In doing so, the Ninth Circuit held that § 3161(c)'s speedy trial clock started when the defendant first appeared in California. The Ninth Circuit relied on the Seventh Circuit's Young opinion in concluding that when a case has been transferred pursuant to Rule 20, an appearance before a judge in the transferee court does not initiate the speedy trial clock under § 3161(c) because the transferee court is not the "the court in which such charge is pending."
Similarly, in Young the defendant's Indiana crimes were transferred under Rule 20 to a Michigan federal court. The defendant agreed to plead guilty in Michigan based on plea negotiations with the government, but those plea negotiations eventually broke down and the defendant ultimately decided to take his case to trial. The Michigan district court then returned the case to Indiana. Before the Indiana trial began, however, the defendant filed a motion to dismiss the indictment, arguing (among other things) that the Government violated his speedy trial rights. The defendant asserted that when the case was still in Michigan, the Michigan district court erroneously set the case for trial on its docket. The defendant argued that the Michigan court's act of setting the case for trial "made [the Michigan court] the `court in which such charge is pending' for purposes of 18 U.S.C. § 3161(c)(1)."
Here, the Court agrees with the rationale of the Ninth Circuit and the Seventh Circuit. Based on § 3161(c)'s plain language, the speedy trial clock on Black's Kansas charges was not triggered until Black made his first appearance in the District of Kansas before Magistrate Judge Gale on March 22, 2019.
Black also moves the Court to dismiss Counts 3 and 6 for failure to state an offense.
On August 14, 2019, the grand jury returned the Superseding Indictment, which states in relevant part:
On September 13, 2019, the Court conducted a hearing on Black's two motions, during which the Court ordered the parties to provide further briefing on the adequacy of the Superseding Indictment. Specifically, the Court wanted further discussion on whether Rehaif required the Government to prove that Black knew that it was unlawful for a felon to possess a firearm. After reviewing the parties' supplemental pleadings and the authority cited therein, the Court concludes that Courts 3 and 6 of the Superseding Indictment adequately state an offense consistent with the Rehaif decision, and the Court therefore denies Black's Motion to Dismiss Counts 3 and 6.
In Rehaif, the defendant came to the United States to attend college, but he was dismissed from school for poor academic performance. The defendant was informed that he would lose the right to remain in the United States unless he transferred to a different university, which he failed to do. Later, the defendant visited a firing range where he shot two firearms. As a result, the United States prosecuted the defendant for possessing firearms as an alien unlawfully in the country in violation of § 922(g)(5). The defendant was found guilty by the jury, but on appeal the defendant argued that the district judge erred in instructing the jury that to return a guilty verdict it did not need to make a finding that the defendant knew he was in the United States unlawfully. The Eleventh Circuit found no error in the district judge's instruction and affirmed the defendant's conviction. The Supreme Court, however, reversed and remanded.
The Supreme Court framed the issue in the following way: to convict a defendant of "knowingly" violating § 922(g), must the government "prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?"
Here, the Superseding Indictment states that Black knew that he possessed a firearm and knew that he was previously convicted of a felony. When considered in light of the Supreme Court's Rehiaf opinion, these allegations are sufficient to state a claim under § 922(g). It is not necessary for the Government to allege that Black knew convicted felons are prohibited from possessing a gun.
