UNITED STATES COURT OF APPEALS
Filed 8/16/96 TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-8074
) (D.C. No. 94-CR-133)
JAMES EDWARD ROGERS, ) (D. Wyo.)
)
Defendant-Appellant. )
ORDER AND JUDGMENT *
Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.
A jury convicted Defendant James Edward Rogers of felon in possession of a
firearm and ammunition, 18 U.S.C. § 922(g), and unlawfully possessing an unregistered
sawed-off shotgun, 26 U.S.C. § 5841, 5845, 5861(d), and 5871. On appeal from his
conviction, Defendant claims he was denied his statutory and constitutional right to a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
speedy trial, in violation of the Speedy Trial Act, 18 U.S.C. § 3162, and the Sixth
Amendment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
Defendant, a convicted felon, was stopped in Casper, Wyoming in late November
1994 for a suspected traffic violation. During the stop, state police officers found a
sawed-off shotgun in the car, and shotgun shells in Defendant’s clothing. A grand jury
returned an indictment on November 28, 1994, and a superseding indictment on January
26, 1995, charging Defendant with the three counts listed above. Defendant was arrested
and incarcerated on December 6, 1994.
Defendant filed numerous motions at the district court including a motion for
discovery, motion for a competency exam, motion for continuance, two motions to
suppress, motion for a new judge, and a motion in limine. On January 25, 1995, the
district court granted Defendant’s motion for a competency exam. On May 19, 1995,
Defendant filed a “Motion for a Speedy Trial” wherein Defendant requested a jury trial
“at the earliest possible time.” The district court did not receive Defendant’s competency
evaluation from the Federal Medical Center until May 30, 1995. On June 1, 1995, the
district court ruled that due to the competency examination and other pending motions,
“140 days of excludable delay will be factored into the computation of the speedy trial
deadline for this Defendant which results in a deadline of July 24, 1995.” Trial
commenced on July 5, 1995, 211 days after Defendant was incarcerated without bond on
-2-
December 6, 1994. The jury convicted Defendant of all three counts on July 7, 1995.
II.
A.
Defendant first asserts that he was denied his statutory right to a speedy trial under
the Speedy Trial Act, 18 U.S.C. § 3162. Defendant contends that he raised his rights
under the Act by demanding a speedy trial, and that the 211-day delay between his initial
appearance and trial violates the requirements of the Act. Consequently, Defendant asks
us to remand with instructions to dismiss the indictment.
The government responds that Defendant waived his argument under the Speedy
Trial Act because he failed to properly raise it before the district court. Although
Defendant demanded a speedy trial by motion on May 19, 1995, the government argues
that a speedy trial demand is insufficient to reverse a conviction on that ground alone.
Instead, the government maintains that Defendant should have moved to dismiss the
indictment to preserve his right to dismissal under the plain language of the Act.
The Speedy Trial Act requires that the trial of a criminal defendant commence
within seventy days of the filing of the indictment, or from the date that the defendant
first appears before a judicial officer, whichever is later. 18 U.S.C. § 3161(c)(1). The
remedy for a violation of the Act is dismissal of the indictment. Id. § 3162(a)(2).
“However, the statute is not self-executing.” United States v. Gomez, 67 F.3d 1515, 1519
(10th Cir. 1995), cert. denied,116 S. Ct. 737 (1996). The Act places on the defendant the
-3-
burden of asserting a violation of the statute, explicitly providing that the “[f]ailure of the
defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to dismissal under this section.” 18
U.S.C. § 3162(a)(2) (emphasis added).
“Courts have applied strictly this waiver language where a defendant has failed to
move for dismissal prior to the commencement of trial.” United States v. Alvarez, 860
F.2d 801, 821 (7th Cir. 1988) (citing cases), cert. denied, 493 U.S. 829 (1989). In our
circuit, we have held that a defendant who might have been entitled to relief under the
Act waived his right to relief by failing to move for dismissal prior to trial. United States
v. McKinnell, 888 F.2d 669, 676 (10th Cir. 1989). Further, a mere demand for a speedy
trial--as opposed to a motion to dismiss the indictment--does not preserve the statutory
right to a speedy trial. United States v. Stitzer, 785 F.2d 1506, 1520 (11th Cir.), cert.
denied, 479 U.S. 823 (1986); Alvarez, 860 F.2d at 822. We review compliance with the
Speedy Trial Act de novo. United States v. Pasquale, 25 F.3d 948, 950 (10th Cir. 1994).
Stitzer is directly on point. Like Defendant Rogers in this case, the defendant in
Stitzer did not file a motion for dismissal of the indictment, but filed a demand for a
speedy trial. Stitzer, 785 F.2d at 1520 (emphasis added). The Eleventh Circuit quoted the
language of § 3162(a)(2) which requires a defendant to move for dismissal and
concluded:
We do not believe that appellant’s demand for a speedy trial
constitutes a motion to dismiss the indictment, for it did not bring to the
-4-
trial court’s attention the fact that appellant believed the Act had been
violated. In effect, appellant sat on his hands below, allowed this lengthy
case to be tried fully, and raises now for the first time the claim that the
indictment should have been dismissed. Rather than allow appellant’s
“wait and see” tactic to prevail, we find that he has waived this objection.
Stitzer, 785 F.2d at 1520; accord Alvarez, 860 F.2d at 822.
In the case at bar, Defendant filed a “Motion for a Speedy Trial” and demanded a
jury trial “at the earliest possible time.” Defendant, however, did not “move for
dismissal” as required by the plain language of § 3162(a)(2). Section 3162(a)(2)
mandates that Defendant’s failure to move for dismissal “shall constitute a waiver of the
right to dismissal under this section.” Accordingly, we hold that Defendant has waived
any right to relief he may have under the Speedy Trial Act.1
B.
Defendant next argues that he has been denied the right to a speedy trial
guaranteed him by the Sixth Amendment. We disagree.
We balance four factors to determine whether a defendant’s Sixth Amendment
right to a speedy trial has been violated: “(1) the length of the delay; (2) the reason for the
delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the
1
Defendant also asserts that notwithstanding his failure to move for
dismissal under the Speedy Trial Act, we must reverse his conviction for plain error.
Defendant’s invitation to review his conviction for plain error under the Speedy Trial Act
is foreclosed by circuit precedent. See Gomez, 67 F.3d at 1519-20 (holding that “there
was no error committed, and therefore nothing for us to review under [Fed. R. App. P.]
52(b)” where defendant failed to move for dismissal prior to trial as required by
§ 3162(a)(2)).
-5-
delay prejudiced the defendant.” Gomez, 67 F.3d at 1521 (citing Barker v. Wingo, 407
U.S. 514, 530 (1972). “The length of the delay is a threshold factor. Only if the delay is
presumptively prejudicial need we inquire into the remaining Barker factors.” Id. For
purposes of the Sixth Amendment, the speedy trial time period begins when the defendant
is first arrested or charged with committing a federal offense and ends when his jury trial
begins. Id.
In the instant case, Defendant was arrested and detained without bond on
December 6, 1994, 211 days before commencement of trial on July 5, 1995. Although
our precedent recognizes that “there is no bright line beyond which pretrial delay will
trigger a Barker analysis,” Gomez, 67 F.3d at 1521, the Supreme Court has observed that
“[d]epending on the nature of the charges, the lower courts have generally found
postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”
United States v. Doggett, 505 U.S. 647, 652 n.1 (1992). The Court further explained that
“‘presumptive prejudice’ does not necessarily indicate a statistical probability of
prejudice; it simply marks the point at which courts deem the delay unreasonable enough
to trigger the Barker enquiry.” Id.
In view of this principle, we conclude the 211-day delay in this case was not
presumptively prejudicial. See, e.g., United States v. Dirden, 38 F.3d 1131, 1137-38
(10th Cir. 1994) (delay of 228 days insufficient to trigger the Barker analysis); United
States v. Occhipinti, 998 F.2d 791, 798 (10th Cir. 1993) (delay of 172 days insufficient to
-6-
trigger the Barker analysis). Thus, we need not consider the remaining Barker factors,
and reject Defendant’s argument that he was denied his right to a speedy trial under the
Sixth Amendment.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
-7-