United States v. Jenerette Dixon

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5043

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JENERETTE CHARLES DIXON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Senior District
Judge. (1:10-cr-00552-BEL-1)

Argued: September 20, 2013 Decided: October 18, 2013

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Gerald Chester Ruter, THE LAW OFFICES OF GERALD C.
RUTER, Baltimore, Maryland, for Appellant. James G. Warwick,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Benjamin Walter, Legal Assistant, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jenerette Charles Dixon was convicted by a jury of

conspiracy to commit bank robbery, 18 U.S.C. §§ 371 and 2113;

bank robbery, id. § 2113; and brandishing a firearm during and

in relation to a crime of violence, and aiding and abetting the

same, id. §§ 2 and 924(c). He was sentenced to a total of 240

months’ imprisonment for these offenses. On appeal, Dixon

claims that his speedy trial rights under the Speedy Trial Act

(STA), id. § 3161 et seq., and the Sixth Amendment were

violated. We affirm.

I

On March 11, 2010, Dixon, with the help of two accomplices,

Kelly Woods and Nebuzarada Nisseau-Bey, robbed the Harbor Bank

at 1000 Lancaster Street in Baltimore, Maryland at gunpoint. On

July 16, 2010, United States Magistrate Judge Grimm issued a

warrant for Dixon’s arrest. Five days later, on July 21, 2010,

Dixon was arrested on the warrant and made his initial

appearance before United States Magistrate Judge Bredar. 1 That

1
Both Magistrate Judge Grimm and Magistrate Judge Bredar
resolved certain pretrial matters in this case. At present,
both serve as a United States District Judge for the District of
Maryland.

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same day, counsel was appointed to Dixon, and the government

moved for an order of detention pursuant to 18 U.S.C. § 3142.

On July 23, 2010, a detention hearing was held, and Dixon

was ordered detained. On July 28, 2010, Dixon’s counsel sent a

letter to Magistrate Judge Grimm requesting that the preliminary

hearing set for August 4, 2010 be continued for sixty days,

through September 22, 2010, in order to allow the parties to

discuss a resolution of the case pre-indictment. This letter

was filed on August 2, 2010, and the motion was granted by

Magistrate Judge Bredar the same day.

On August 23, 2010, Dixon sent a letter, properly construed

as a motion to substitute counsel, to Magistrate Judge Grimm

asking that his current counsel be removed and new counsel be

appointed. On September 9, 2010, Magistrate Judge Grimm held a

hearing on Dixon’s motion to substitute counsel. At the

conclusion of the hearing, Magistrate Judge Grimm granted

Dixon’s motion and appointed new counsel. On the same day, the

grand jury returned an indictment charging Dixon with bank

robbery, id. § 2113, and brandishing a firearm during and in

relation to a crime of violence, and aiding and abetting the

same, id. §§ 2 and 924(c).

On September 22, 2010, the grand jury returned a

superseding indictment charging Dixon, Woods, and Nisseau-Bey

with conspiracy to commit bank robbery, id. §§ 371 and 2113

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(Count One); bank robbery, id. § 2113 (Count Two); and

brandishing a firearm during and in relation to a crime of

violence, and aiding and abetting the same, id. §§ 2 and 924(c)

(Count Three). On November 5, 2010, Woods and Nisseau-Bey were

arrested and brought before United States Magistrate Judge

Gauvey for their initial appearances.

On November 24, 2010, Nisseau-Bey filed a motion to

suppress. While this motion was pending, Dixon filed a variety

of motions, including several motions to suppress. On February

7, 2011, Dixon sent a letter to the district court complaining

that his new counsel had not filed a motion to dismiss based on

STA violations. The government was ordered to respond to

Dixon’s STA assertions, which it did on March 1, 2011.

With regard to the STA’s requirement that an indictment be

returned within thirty days of arrest, the government contended

that, because Dixon’s counsel sought a continuance to resolve

the case pre-indictment, the STA’s indictment clock was tolled

from August 2, 2010 to September 9, 2010, the date the

indictment was returned. With regard to the STA’s requirement

that the defendant’s trial take place seventy days from the

later of the filing of the information or indictment or the

defendant’s initial appearance before a judicial officer, the

government argued that there were excludable periods of delay

under 18 U.S.C. § 3161 that rendered Dixon’s trial timely.

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After reviewing the government’s response, the district court,

without setting forth any reasoning, concluded that “[n]o

violation of the Speedy Trial Act [had] occurred.” (S.J.A. 23).

On April 21, 2011, the district court held a hearing on

Dixon’s pretrial motions, including an April 19, 2011 pro se

motion to dismiss based on STA violations and Dixon’s Sixth

Amendment right to a speedy trial. These motions were denied

the following day. With regard to Dixon’s speedy trial claims,

the district court concluded, again without expressing any

reasoning, that “there [was] no speedy trial violation in this

case.” (S.S.J.A. 36).

On April 28, 2011, Dixon filed a motion to have DNA tested.

This motion was denied on April 29, 2011. On May 2, 2011,

Dixon’s jury trial commenced. Dixon was convicted of all three

counts and sentenced to a total of 240 months’ imprisonment.

After filing a timely notice of appeal, Dixon’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), finding no meritorious grounds for appeal but raising

five challenges to Dixon’s convictions. In response, we

directed the parties to submit supplemental briefing on the

issue of whether Dixon’s speedy trial rights were violated and

set the case down for oral argument. Having heard oral argument

on September 20, 2013, the case is now ready for decision.

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 II

Dixon argues that his speedy trial rights, both under the

STA and the Sixth Amendment, were violated below. We turn first

to Dixon’s two STA arguments and then to his Sixth Amendment

argument.

We review the district court’s interpretation of the STA de

novo and any related factual findings for clear error. United

States v. Rodriguez–Amaya, 521 F.3d 437, 440 (4th Cir. 2008).

The STA requires that a defendant be indicted within thirty days

of his arrest and tried within seventy days from the later of

the filing of the information or indictment or the defendant’s

initial appearance before a judicial officer. 18 U.S.C.

§ 3161(b), (c)(1); United States v. Leftenant, 341 F.3d 338, 343

(4th Cir. 2003). An indictment in violation of the thirty-day

time limit must be dismissed. 18 U.S.C. § 3162(a)(1). Failure

to begin the trial within the seventy-day time limit shall, upon

motion of the defendant, result in dismissal of the charging

instrument either with or without prejudice. Id. § 3162(a)(2).

The requirement of dismissal, however, is not absolute.

Section 3161(h) provides for certain periods of excludable delay

that extend the thirty-day time limit of § 3161(b) and the

seventy-day time limit of § 3161(c)(1). Several periods of

excludable delay are relevant here.

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 The first is set forth in 18 U.S.C. § 3161(h)(1). That

section requires the exclusion of “[a]ny period of delay

resulting from other proceedings concerning the defendant,

including but not limited to” eight enumerated subcategories of

proceedings. Id. § 3161(h)(1). “Although § 3161(h)(1)

exclusions often fall within the eight specifically listed

subcategories, various non-enumerated delays have also been held

to be automatically excluded by virtue of the non-limiting

‘other proceedings’ clause.” United States v. Valdivia, 680

F.3d 33, 38 (1st Cir. 2012). In our circuit, delays related to

plea negotiations constitute non-enumerated “other proceedings”

under § 3161(h)(1). Leftenant, 341 F.3d at 344–45 (holding that

plea negotiations trigger automatic exclusion under 18 U.S.C.

§ 3161(h)(1)). 2

2
Some courts have held that the delay resulting from plea
negotiations is not automatically excludable under the STA. See
United States v. Mathurin, 690 F.3d 1236, 1240-41 (11th Cir.
2012) (holding that the time devoted to plea negotiations is not
automatically excludable under the STA); United States v.
Alvarez–Perez, 629 F.3d 1053, 1058 (9th Cir. 2010) (noting that,
“in general, time devoted to plea negotiations is not
automatically excluded”); and United States v. Lucky, 569 F.3d
101, 107 (2d Cir. 2009) (noting that “plea negotiations do not
fit comfortably into the ‘other proceedings’ language of section
3161(h)(1)”). These courts do recognize that the delay
resulting from plea negotiations can toll the STA indictment
clock where an appropriate ends-of-justice finding is made.
See, e.g., Mathurin, 690 F.3d at 1241.

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 The second period of excludable delay relevant here is set

forth in 18 U.S.C. § 3161(h)(7)(A). That section excludes the

delay resulting from a continuance granted by a court sua sponte

or at the request of a party, but only upon findings “that the

ends of justice served by the granting of such continuance

outweigh the best interests of the public and the defendant in a

speedy trial.” 18 U.S.C. § 3161(h)(7)(A). The court is not

required to make the ends-of-justice finding contemporaneous

with the granting of the continuance; rather, the findings must

be made no later than the time the district court rules on the

defendant’s motion to dismiss under the STA. Zedner v. United

States, 547 U.S. 489, 507 (2006). 3

The third period of excludable delay relevant here is set

forth in 18 U.S.C. § 3161(h)(1)(D). That section excludes the

“delay resulting from any pretrial motion, from the filing of

the motion through the conclusion of the hearing on, or other

prompt disposition of, such motion.” Id. § 3161(h)(1)(D). Such

time is excluded even if a delay in holding a hearing is not

“reasonably necessary.” Henderson v. United States, 476 U.S.

321, 330 (1986).

3
As noted by the Supreme Court in Zedner, “[t]he best
practice, of course, is for a district court to put its [ends-
of-justice] findings on the record at or near the time when it
grants the continuance.” 547 U.S. at 507 n.7.

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 Dixon’s first STA argument concerns the timeliness of his

indictment, which was returned on September 9, 2010. He posits

that his indictment was untimely under the STA’s thirty-day time

limit.

Dixon was arrested on July 21, 2010. Thus, in the absence

of excludable periods, the government had to return an

indictment by August 20, 2010, thirty days from July 21, 2010.

The period between July 21, 2010, when the government moved for

pretrial detention, and July 23, 2010, when the motion was

granted, is excludable. United States v. Wright, 990 F.2d 147,

149 (4th Cir. 1993). Thus, the STA indictment clock did not

start running until July 24, 2010. The STA indictment clock ran

nine days and then stopped on August 2, 2010, when Dixon’s

motion for continuance was filed. 18 U.S.C. § 3161(h)(7)(A).

The parties disagree on whether the STA indictment clock

restarted on August 3, 2010. Dixon asserts that the STA

indictment clock restarted because there was nothing akin to an

ends-of-justice finding made, either before or after the

granting of the continuance. See Zedner, 547 U.S. at 506-07

(noting that “without on-the-record findings” concerning the

ends-of-justice, time period covering continuance cannot be

excluded under the STA); see also United States v. Kellam, 568

F.3d 125, 137 (4th Cir. 2009) (noting that, “[i]n order for a

delay resulting from a continuance to be excludable, the court

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is to explain, ‘either orally or in writing, its reasons for

finding’ that the ends of justice served by granting the

continuance outweigh the interests of the public and the

defendant”) (quoting 18 U.S.C. § 3161(h)(7)(A)).

In response, the government first argues that the STA

indictment clock did not restart on August 3, 2010 because the

parties were actively involved in plea negotiations at that

time. The government posits that any delay attributable to plea

negotiations is excludable as “other proceedings” under 18

U.S.C. § 3161(h)(1). In pressing this argument, the government

neither points to any record evidence of actual plea

negotiations (e.g., when they began or when the finished), nor

points to any findings by Magistrate Judge Bredar or the

district court concerning such negotiations.

Perhaps sensing the dearth of evidence on the plea

negotiations question, the government presses a second argument.

The government argues that Dixon should not be entitled to

benefit from Magistrate Judge Bredar’s or the district court’s

failure to make appropriate findings. Cf. United States v.

Hopkins, 310 F.3d 145, 150 (4th Cir. 2002) (rejecting the

defendant’s STA claim because “none of the delay in getting to

trial was attributable to the government”); United States v.

Keith, 42 F.3d 234, 240 (4th Cir. 1994) (holding that, if a

defendant affirmatively consents to a motion for a continuance

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and the reasons for the granting of that motion as garnered from

the record are sufficient to support a finding that the ends-of-

justice would be met by granting the motion, the defendant

cannot take advantage of that discrete period of time covered by

the continuance in asserting a violation of the STA).

We need not decide if the STA indictment clock restarted on

August 3, 2010. This is so because, even assuming, without

deciding, the STA indictment clock restarted on August 3, 2010,

it stopped twenty days later on August 23, 2010, the date on

which Dixon sent his motion to substitute counsel. Cf. Houston

v. Lack, 487 U.S. 266, 276 (1988) (holding that a prisoner’s

notice of appeal is deemed filed on the date he delivers it to

prison authorities for mailing to the court). Thus, the time

period between August 23, 2010 and September 9, 2010 (the date

the motion to substitute was granted) is excludable. At most,

then, only twenty-nine non-excludable days elapsed between

Dixon’s arrest and indictment, because Dixon’s motion to

substitute counsel was resolved the same day as the day the

indictment was returned, September 9, 2010. Of particular note,

candidly, at oral argument, counsel for Dixon essentially

conceded that the STA indictment clock stopped running on August

23, 2010, and, therefore, the return of the indictment was

timely. Accordingly, there was no STA violation based on pre-

indictment delay.

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 Dixon’s second STA argument concerns the timeliness of his

trial. He posits that his trial was untimely under the STA’s

seventy-day time limit.

Although the original indictment was returned on September

9, 2010, the grand jury returned a superseding indictment

against Dixon and his co-defendants on September 22, 2010. The

filing of the superseding indictment in this case restarted the

STA trial clock. See United States v. King, 483 F.3d 969, 973

(9th Cir. 2007) (holding that the filing of a superseding

indictment adding a new defendant restarts the STA clock for all

defendants); United States v. Barnes, 251 F.3d 251, 257 (1st

Cir. 2001) (holding that a superseding indictment returned the

day before the speedy trial deadline, containing the same

charges and adding only one new, albeit previously known,

defendant served to restart the STA clock); United States v.

Gambino, 59 F.3d 353 (2d Cir. 1995) (holding that the STA clock

in cases involving multiple defendants begins with the running

of the clock for the most recently added defendant). Such

restarting was further delayed because Dixon’s co-defendants

were not arrested until November 5, 2010. See United States v.

Shealey, 641 F.3d 627, 632 (4th Cir. 2011) (“‘All defendants who

are joined for trial generally fall within the speedy trial

computation of the latest codefendant.’”) (quoting Henderson,

476 U.S. at 323 n.2); see also United States v. Jarrell, 147

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F.3d 315, 316 (4th Cir. 1998) (“[T]ime excludable for one

defendant is excludable for all defendants.”); United States v.

Sarno, 24 F.3d 618, 622 (4th Cir. 1994) (noting that, if one co-

defendant files a motion to continue and the district court

grants it, then that time is excluded as to all co-defendants

regardless of whether a motion to sever has been filed). Thus,

the STA trial clock began to run on November 6, 2010.

The STA trial clock ran for seventeen days. The STA trial

clock stopped on November 24, 2010, when Nisseau-Bey filed a

motion to suppress. Jarrell, 147 F.3d at 316; 18 U.S.C.

§ 3161(h)(1)(D). While the STA trial clock was stopped, Dixon

filed several motions. The STA trial clock began to run on

April 23, 2011, because the district court ruled on Dixon’s

pretrial motions on April 22, 2011. 18 U.S.C. § 3161(h)(1)(D).

The STA trial clock ran for another five days, but then stopped

because, on April 28, 2011, Dixon filed a motion to have DNA

evidence tested. Id. The STA trial clock recommenced the day

after the motion was denied on April 29, 2011. Four days later,

on May 2, 2011, Dixon’s trial began.

Given all these exclusions, less than thirty days counted

toward the seventy-day time limit. Thus, there was no post-

indictment STA violation because Dixon’s trial was timely.

Dixon also presses a speedy trial claim under the Sixth

Amendment. We review the district court’s legal conclusions on

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this issue de novo and its factual findings for clear error.

United States v. Woolfolk, 399 F.3d 590, 597-98 (4th Cir. 2005).

The Sixth Amendment provides, in relevant part, that, “[i]n

all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial.” U.S. Const. amend. VI. To

establish a violation of this constitutional guarantee, a

defendant first must show that the Sixth Amendment’s protections

have been activated by an “arrest, indictment, or other official

accusation.” Id. at 597 (citation and internal quotation marks

omitted).

When the Sixth Amendment’s protections have been activated

by a qualifying event, we engage in the four-factor balancing

test set forth in Barker v. Wingo, 407 U.S. 514 (1972), and

consider whether: (1) the delay before trial was uncommonly

long; (2) the government or the defendant is more to blame for

that delay; (3) in due course, the defendant asserted his right

to a speedy trial; and (4) the defendant suffered prejudice from

the delay. Shealey, 641 F.3d at 634. The duration of the

delay, in addition to being a factor in this test, also is a

threshold requirement because the defendant must establish that

the length of the delay is at least presumptively prejudicial.

Doggett v. United States, 505 U.S. 647, 651–52 (1992).

In this case, Dixon clearly asserted his speedy trial

rights. However, the total time that elapsed from the initial

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appearance to the trial was a little over nine months, an amount

of time in which Dixon concedes is not excessively long. Cf.

id. at 652 n.1 (noting that “postaccusation delay [is]

‘presumptively prejudicial’ at least as it approaches one

year”). Moreover, most of the delay in bringing Dixon to trial

was not attributable to the government. Dixon sought to explore

a pre-indictment resolution of the case through a successful

motion for continuance, successfully filed a motion to

substitute counsel, and filed a variety of pre-trial motions.

These actions substantially delayed the start of the trial.

More importantly, Dixon has not specified how his case was in

any way prejudiced by the delay. As in Hopkins, he “has not

shown, or even argued, that any evidence was damaged or lost,

that any witnesses could not be found, or that his case was

harmed in any manner by the delay.” 310 F.3d at 150. After

weighing the Barker factors, we conclude there was no Sixth

Amendment violation.

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 III

For the reasons stated herein, the judgment of the district

court is affirmed. 4

AFFIRMED

4
We have considered the other issues raised by Dixon’s
counsel pursuant to Anders and find them to be without merit.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal other
than the speedy trial issues addressed herein.

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