UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDDIE LEE ANDREWS, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (5:06-cr-00064-BO-1)
Submitted: January 20, 2010 Decided: February 17, 2010
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas R. Wilson, GREENE & WILSON, P.A., New Bern, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie Lee Andrews appeals from his conviction of offenses
arising from a bank robbery. Andrews alleges violations of his
constitutional right to a speedy trial and the Speedy Trial Act.
For the reasons set forth below, we reject these contentions and
affirm.
I.
On March 16, 2006, a federal grand jury in the Eastern
District of North Carolina indicted Andrews on charges arising
from a bank robbery that occurred the previous March.
Authorities arrested him two months later on May 16, 2006.
Andrews first appeared before a magistrate judge on that date;
he did not have legal representation and did not request
appointment of counsel. At that time, he was imprisoned,
serving another federal sentence, in Bennettsville, South
Carolina.
On July 10, 2006, the district court appointed the Federal
Public Defender’s office to serve as Andrews’s stand-by counsel.
Two days later, Andrews requested a continuance to evaluate
whether he wished to retain private counsel. Ultimately, on
July 26, 2006, Andrews sought appointed counsel, and the
district court appointed Andrews’s stand-by counsel to represent
2
him. The district court set an arraignment and trial date for
August 21, 2006.
Two days after appointment of counsel, on July 28, 2006,
Andrews sought a continuance of his August 21 trial date to
allow his counsel adequate time to prepare a defense. The
district court granted the continuance and ordered the
arraignment and trial date be set for the October term of court.
In its order, the district court stated that the ends of justice
in granting the continuance outweighed the interests of the
public and defendant in a speedy trial and that the continuance
was excludable time under the Speedy Trial Act. On September
27, 2006, Andrews moved for another continuance, again
requesting additional time to prepare for trial. The district
court, again finding the ends of justice to be served by
granting the continuance, ordered the trial continued until the
January 2007 term of court.
On November 15, 2006, the Federal Public Defender’s office
sought to withdraw as Andrews’s counsel, citing a conflict of
interest. The district court granted the motion. One month
later, on December 14, 2006, Andrews sought a 90-day continuance
to allow newly-appointed counsel additional time to prepare for
trial. The motion detailed that Andrews’s new attorney had just
recently received discovery materials and had not yet been able
to visit Andrews in federal custody in South Carolina. While
3
this motion was pending, on December 20, 2006, the district
court set a trial date of January 3, 2007. Shortly thereafter,
on December 28, 2006, the Government moved for a continuance
asserting that the federal marshal would be unable to transport
Andrews from the correctional facility in Bennettsville, South
Carolina in time for the January 3 trial date in the Eastern
District of North Carolina. The district court granted the
Government’s motion and continued the trial until the April 2007
term of court. In its order, the district court noted that the
Government demonstrated good cause for the continuance and found
the ends of justice best served by granting the continuance.
On February 20, 2007, the Government notified the district
court that it was substituting its lead counsel. On March 15,
2007, the district court set a trial date for March 26, 2007;
the following day the Government requested a continuance because
its new lead counsel was scheduled to be on leave at that time
and Government co-counsel was scheduled to be in trial. In its
motion, the Government stated that Andrews did not oppose the
continuance and, in fact, would favor a continuance to allow for
additional discovery. The district court found the ends of
justice best served by granting the continuance and so continued
the arraignment and trial to the July 2007 term of court.
On June 1, 2007, Andrews and the Government filed a joint
motion to set a specific trial date in late July to accommodate
4
Government witnesses and defense counsel’s scheduled vacation.
The district court, finding the ends of justice served by a
continuance, scheduled the trial for August 13, 2007.
Approximately two weeks before the scheduled trial date, defense
counsel moved to withdraw as Andrews’s attorney citing medical
reasons that prevented him from adequately preparing for trial.
The district court granted the unopposed motion, set the
arraignment and trial for the October 2007 term of court, and
ordered that the intervening time be excluded from speedy trial
computation under the Speedy Trial Act.
On September 26, 2007, Andrews sought another continuance
jointly with the Government to continue the arraignment and
trial until January 7, 2008, to allow Andrews’s new defense
counsel adequate time to prepare for trial, to allow the
Government to make travel arrangements for witnesses in federal
custody, and to accommodate Government counsels’ trial schedules
in mid-November and early December. The district court granted
the motion finding the ends of justice served and set the new
trial date for January 21, 2008. Thereafter the Government
filed an unopposed motion to set the trial date in mid-February
2008 to accommodate the January trial schedules of Government
and defense counsel. The district court ordered that the trial
date be set for February 26, 2008, and ordered that the
intervening time be excluded from speedy trial computation.
5
On January 31, 2008, Andrews moved for a determination of
competency, which the Government opposed. After the district
court held a hearing on the motion on February 13, 2008, during
which Andrews addressed the court, the court denied the motion.
Andrews’s trial commenced on February 26, 2008. The jury
convicted Andrews on all three counts charged in the indictment:
conspiracy to commit armed bank robbery in violation of 18
U.S.C. § 371 (2006), bank robbery in violation of 18 U.S.C.
§ 2113(a) (2006), and possession of a firearm in relation to a
crime of violence in violation of 18 U.S.C. § 924(c)(1) (2006).
The district court sentenced Andrews to 180 months
incarceration.
II.
All told, Andrews did not stand trial until approximately
650 days after his first appearance before the magistrate judge.
Andrews’s sole arguments on appeal challenge this delay. He
argues that the delay violated his rights under the Speedy Trial
Act, 18 U.S.C. §§ 3161 et seq. (2006), and the Sixth Amendment.
A.
The Speedy Trial Act provides that the trial of a defendant
charged in an indictment “shall commence within seventy days
from the filing date . . . of the indictment, or from the date
the defendant has appeared before a judicial officer or the
6
court in which such charge is pending, whichever date last
occurs.” 18 U.S.C. § 3161(c)(1) (2006). If a defendant is not
brought to trial during this period, and the delays are not
excludable, the “indictment shall be dismissed on motion of the
defendant,” although the district court has the discretion to
dismiss with or without prejudice. § 3162(a)(2); United States
v. Henry, 538 F.3d 300, 304 (4th Cir. 2008).
“While a defendant may not prospectively waive the
application of the Act, his failure to make a timely motion to
dismiss constitutes a waiver of his rights under the Act.”
Henry, 538 F.3d at 304 (internal citation omitted); see
§ 3162(a)(2) (“Failure of the defendant to move for dismissal
prior to trial . . . shall constitute a waiver of the right to
dismissal under this section.”). Requiring a defendant to file
a pre-trial motion to dismiss “ensur[es] that an expensive and
time-consuming trial will not be mooted by a late-filed motion
under the Act.” Zedner v. United States, 547 U.S. 489, 502-03
(2006).
Here, Andrews failed to file a timely motion to dismiss the
indictment. Relying on an admittedly “thin basis,” Andrews
argues that he attempted to assert his Speedy Trial Act rights
before the district court. He points to his colloquy with the
district court at the February 13 hearing, in which he
complained about having three different attorneys during the
7
pre-trial period. Although this exchange suggests Andrews may
have considered the pre-trial delays to be excessive, it does
not indicate any intention on the part of Andrews to move for a
dismissal based on a violation of the Act, as required by 18
U.S.C. § 3162(a)(2). Nor is there any indication in the record
that the trial court, or defense counsel for that matter,
considered Andrews’s statement to constitute a motion to dismiss
or even a discussion of his rights under the Act. See United
States v. Register, 182 F.3d 820, 828 (11th Cir. 1999) (finding
defendant waived rights under the Act by failing to move the
court to dismiss the indictment, even though he demanded a jury
trial on more than one occasion and moved for release from
prison based on excessive pretrial detention); United States v.
Lugo, 170 F.3d 996, 1001 (10th Cir. 1999) (holding defendant
failed to move for dismissal under the Act because, although
defendant indicated that he might file such a motion, “the
district . . . judge [n]ever indicated that any discussion about
the Speedy Trial Act issue would be deemed a motion to dismiss
as required by 18 U.S.C. § 3162(a)(2)”).
8
Accordingly, by failing to file a pre-trial motion to
dismiss, Andrews waived his rights under the Act. See Henry, 538
F.3d at 304; see also Zedner, 547 U.S. at 502-03. *
B.
Andrews also asserts the delay violated his constitutional
right to a speedy trial. Because Andrews makes this claim for
the first time on appeal, we review for plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993); see also Barker v. Wingo, 407 U.S. 514, 528 (1972)
*
Andrews’s waiver notwithstanding, we doubt that any
violation of the Act occurred. Despite the general 70-day
deadline, the Act provides for a number of excludable delays; of
greatest relevance here is delay resulting from the granting of
a continuance based on a finding that “the ends of justice
served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.” § 3161(h)(7)(A).
Factors that a district court must consider in deciding whether
to grant an ends-of-justice continuance are a defendant’s need
for “reasonable time to obtain counsel,” and “continuity” and
“effective preparation” of counsel for the Government or
defendant. § 3161(h)(7)(B)(iv). Either solely or jointly with
the Government, Andrews sought the majority of the continuances
in this case to allow defense counsel adequate time to prepare
for trial and to enable continuity of counsel. See United
States v. Kellam, 568 F.3d 125, 137-38 & nn.17,19. (4th Cir.
2009) (holding no Speedy Trial Act violation occurred where pre-
trial delays were caused by defendant’s or co-defendant’s
motions, including various motions for continuances). Further,
on the two occasions when the Government did move for
continuances the district court found that the “ends of justice”
were served by granting those unopposed continuance motions --
one enabled continuity of counsel for the Government and was
expressly consented to by Andrews, and the other followed
Andrews’s own wishes because it was made within days of his own
motion for a 90-day continuance. Thus the record in its
entirety supports these findings. See United States v. Keith,
42 F.3d 234, 240 (4th Cir. 1994).
9
(holding that a defendant who fails to demand a speedy trial
does not forever waive that constitutional right). To assess
whether a pre-trial delay violates the Sixth Amendment’s speedy
trial guarantee, we balance four factors: (1) length of delay,
(2) the reason for the delay, (3) the defendant's assertion of
his right, and (4) prejudice to the defendant. See Barker, 407
U.S. at 530. Although the first factor -- the length of delay,
over 650 days -- weighs in favor of Andrews, the remaining
factors favor the Government.
As to the second factor, Andrews sought the majority of the
continuances to allow counsel adequate time to prepare for
trial. See Vermont v. Brillon, 129 S.Ct. 1283, 1291 (2009)
(holding that “assigned counsel’s failure to move the case
forward does not warrant attribution of delay to the state” for
purposes of speedy trial claim) (internal quotation marks
omitted). Moreover, Andrews did not oppose the two Government
continuances, of which he now primarily complains; in fact, the
record indicates he favored them. Furthermore, the record does
not support a finding that the Government’s continuances were
the result of prosecutorial misconduct or bad intent. See
United States v. Hall, 551 F.3d 257, 272 (4th Cir. 2009). The
first challenged Government continuance request, involving a
failure to timely writ Andrews from federal custody in South
Carolina, likely resulted from a reasonable expectation that the
10
district court would grant Andrews’s pending continuance motion,
which sought additional time for his newly-appointed counsel to
prepare for trial. The district court had previously granted
every such continuance requested by Andrews. The second
challenged Government continuance sought to accommodate its new
lead counsel’s scheduled leave. In light of the numerous
schedule changes sought by the defense, the Government’s effort
to ensure consistency of its counsel does not warrant a finding
of misconduct or bad intent. Because the bulk of the delays
were caused by Andrews and thus weigh against him, see Brillon,
129 S.Ct. at 1290, and nothing in the record suggests an
improper motive by the Government in requesting its
continuances, the second Barker factor favors the Government.
The third factor weighs heavily against Andrews because he
did not assert his right to a speedy trial in the district
court. See Barker, 407 U.S. at 532 (“We emphasize that failure
to assert the right will make it difficult for a defendant to
prove that he was denied a speedy trial.”); United States v.
Thomas, 55 F.3d 144, 150 (4th Cir. 1995).
Lastly, Andrews has made no showing of prejudice, thus the
final factor also weighs in favor of the Government. Although
Andrews claims he was prejudiced due to loss of witnesses and an
alibi defense, he has failed to identify any specific witnesses
who were unavailable to testify or could not accurately recall
11
the events in question, and he does not contend that exculpatory
evidence was lost or rendered unavailable by the delay. See
Hall, 551 F.3d at 273.
Having balanced the Barker factors, we believe it clear
that the delay did not contravene Andrews’s constitutional right
to a speedy trial.
III.
For the reasons set forth above, we affirm the judgment of
the district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
12