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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2007 Decided May 11, 2007
No. 05-3133
UNITED STATES OF AMERICA,
APPELLEE
v.
LORENZO R. SANDERS,
APPELLANT
Consolidated with
No. 05-3155
Appeals from the United States District Court
for the District of Columbia
(No. 02cr00055-01)
(No. 02cr00055-02)
Howard B. Katzoff, appointed by the court, argued the cause
for appellant Lorenzo R. Sanders. Beverly G. Dyer, Assistant
Federal Public Defender, argued the cause for appellant John
Turner. With them on the briefs was A. J. Kramer, Federal
2
Public Defender. Shawn Moore, Assistant Federal Public
Defender, entered an appearance.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III and David B.
Goodhand, Assistant U.S. Attorneys.
Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In this appeal, the court must
decide whether the Speedy Trial Act of 1974, 18 U.S.C. § 3161
et seq., was violated in the prosecutions of Lorenzo R. Sanders1
and John Turner. The Act requires criminal trials to commence
within seventy days after a defendant is indicted or appears in
court, whichever is later, after certain periods prescribed by the
statute are excluded. Following appellants’ convictions by a
jury, the Supreme Court clarified the operation of the Act in
view of its twin goals of effectuating the interests of the public
and of the defendant in a speedy trial. See Zedner v. United
States, 126 S. Ct. 1976, 1984 (2006). Given the guidance of this
new decision, we hold that the district court did not make the
necessary findings to support its exclusion of certain periods of
delay. As a result, appellants’ rights under the Act were violated
and our only recourse is to vacate the convictions and remand to
the district court with instructions to dismiss the indictment. See
id. at 1989-90.
1
Sanders’ name was misspelled as “Saunders” in earlier
proceedings. See 8/25/05 Tr. at 13.
3
I.
Sanders and Turner were indicted on February 5, 2002, on
charges stemming from the execution of a search warrant the
month before, when they were found in an apartment containing
evidence of a drug trafficking operation and a loaded pistol that
was stowed between the headboard and a bedroom wall. A trial
commenced in December 2002 that resulted in a conviction of
both appellants of possession with intent to distribute a
detectable amount of heroin; the jury was unable to reach a
verdict on the remaining counts. The district court declared a
mistrial on the deadlocked counts and granted a motion for a
new trial on the heroin count because a poll of the jury revealed
that its verdict was not unanimous.
A second trial was held in September 2003 that resulted in
convictions of both appellants of possession with intent to
distribute cocaine base and heroin and possession of a firearm
by a felon; the jury acquitted on the charge of possession of a
firearm in furtherance of a drug trafficking offense. On appeal,
this court vacated the original sentences, imposed on March 12,
2004, in light of United States v. Booker, 543 U.S. 220 (2005).
United States v. Saunders, No. 04-3040 (D.C. Cir. Apr. 7, 2005);
United States v. Turner, No. 04-3024 (D.C. Cir. Apr. 7, 2005).
On remand, the district court sentenced Sanders to concurrent
terms of imprisonment of 168 months and Turner to concurrent
terms of imprisonment of 200 months. Sanders and Turner now
challenge their convictions, contending among other things that
they were denied their right to a speedy trial.
II.
The Speedy Trial Act provides that “the trial of a
defendant . . . shall commence within seventy days from the
filing date (and making public) of the information or indictment,
4
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.” 18 U.S.C. § 3161(c)(1). The Act lists periods
of delay that are excludable from the seventy-day maximum, see
id. § 3161(h). On appeal, Sanders and Turner contend that their
convictions must be reversed and the indictment dismissed
because more than seventy non-excludable days elapsed before
their trial began. The speedy trial challenge is reviewed de novo
on matters of law, United States v. Fonseca, 435 F.3d 369, 371
(D.C. Cir. 2006), and for clear error as to findings of fact, see
United States v. Badru, 97 F.3d 1471, 1476 (D.C. Cir. 1996).
We first address the government’s waiver arguments and then
turn to appellants’ contentions that not enough days were
properly excluded by the district court to satisfy the Act.
A.
The Speedy Trial Act provides that “[f]ailure of the
defendant to move for dismissal prior to trial . . . constitute[s]
waiver of the right to dismissal.” 18 U.S.C. § 3162(a)(2); see
also United States v. McNeil, 911 F.2d 768, 772 (D.C. Cir.
1990) (dictum). The government maintains that appellants
waived their rights because, first, they failed to file a formal
motion to dismiss the indictment for lack of a speedy trial, and
second, they failed to reassert their right at the second trial.
Neither argument has merit.
Prior to the first trial, the district court alerted the parties
that the Clerk’s Office had discovered a possible Speedy Trial
Act issue. After consulting the parties’ counsel as to which
periods of delay might be excludable, the district court stated:
“nobody has made a motion, but I’m going to deem defense
motions to dismiss to have been made for violations of the
Speedy Trial Act, and . . . I’m going to deny the motions.” The
government maintains that, notwithstanding the district court
having deemed the motion filed, because appellants themselves
5
never filed a formal motion, the speedy trial right has been
waived. However, it would be odd if a defendant relinquished
a right after the district court acknowledged the issue and
resolved it by ruling on the merits. By deeming a motion to
dismiss the indictment on speedy trial grounds to have been
filed, the district court obviated any need for appellants to raise
the issue themselves. The government points to no reason for
adding an unneeded layer of complexity to the statutory scheme.
See also United States v. Arnold, 113 F.3d 1146, 1148-49 (10th
Cir. 1997).
The government further maintains, albeit only in a footnote
to its brief, cf. Covad Commc’ns Co. v. FCC, 450 F.3d 528, 546
(D.C. Cir. 2006), that appellants waived their rights under the
Act by failing to renew their speedy trial objection at the second
trial. It relies on United States v. Akers, 702 F.2d 1145 (D.C.
Cir. 1983), where the court emphasized that a defendant cannot
justifiably rely on a judge making identical evidentiary rulings
at a retrial following a mistrial, see id. at 1147-48. Akers does
not support a requirement to relitigate all pretrial issues before
a second trial. Although the partial mistrial and partial grant of
a new trial nullified the original trial, those rulings did not
nullify all proceedings. For example, the indictment underlying
the speedy trial issue was not compromised by the first jury’s
failure to reach a unanimous verdict on all counts. Further, the
Act provides for a separate seventy-day clock to run upon a
mistrial or new trial, see 18 U.S.C. § 3161(e), and nowhere
provides that the original speedy trial right is affected when the
right is not reasserted upon retrial. In any event, the law-of-the-
case doctrine underlying Akers does not support the
government’s position. In Christianson v. Colt Industries
Operating Corp., 486 U.S. 800, 816 (1988), the Supreme Court
summarized the doctrine as providing that “when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages of the same case.” For mid-
6
trial evidentiary rulings, a new trial will result in different
factual and evidentiary circumstances occasioning a new
exercise of the district court’s discretion. However, an alleged
violation of the Speedy Trial Act will not change between trials
and is constrained by the principle that “the same issue
presented a second time in the same case in the same court
should lead to the same result.” LaShawn A. v. Barry, 87 F.3d
1389, 1393 (D.C. Cir. 1996) (en banc). Thus, requiring a
defendant to re-raise the issue upon a retrial would be an
exercise in wasteful formality.
B.
The speedy trial clock begins to run when a defendant is
indicted or first appears in court, whichever is later. 18 U.S.C.
§ 3161(c)(1). For a case involving multiple defendants, the Act
excludes “[a] reasonable period of delay when the defendant is
joined for trial with a codefendant as to whom the time for trial
has not run and no motion for severance has been granted.” Id.
§ 3161(h)(7). Consistent with the statute, the parties agree that
the clock began to run when Sanders first appeared in court on
March 4, 2002. They also agree that the clock was tolled (after
59 days had elapsed) from May 3, 2002, through July 2, 2002,
when the district court was considering appellants’ motion to
suppress evidence, see 18 U.S.C. § 3161(h)(1)(F), and stopped
again on July 25, 2002, when appellants filed another motion.
This adds up to 81 days, 11 in excess of maximum prescribed by
the Act.
When the district court addressed the speedy trial issue on
August 5, 2002, it acknowledged that “[t]he Speedy Trial
Act . . . confers real rights which in this case have been bruised
but . . . not broken.” In denying relief under the Act, the district
court relied principally on appellants’ prospective waiver of
their speedy trial rights when they agreed, before the speedy trial
clock had run, to a trial date of August 5, 2002. In Zedner,
7
however, the Supreme Court held that a district court may not
rely upon a defendant’s prospective waiver of speedy trial rights
because such an approach would bypass the Act’s
comprehensive scheme for granting ends-of-justice continuances
and would eliminate consideration of the public’s interest in a
speedy trial. 126 S. Ct. at 1985. The government agrees with
appellants that this aspect of the district court’s reasoning is
unsustainable after Zedner. However, the government maintains
that the district court properly excluded two periods of delay
from the speedy trial tally: fifteen days (April 18 through May
2, 2002) as either motions preparation time under 18 U.S.C. §
3161(h)(1) or an ends-of-justice continuance under
§ 3161(h)(8)(A), and twenty-seven additional days (March 22
until April 18, 2002) attributable to the unavailability of Sanders
under § 3161(h)(3).
1.
Section 3161(h)(1)(F) provides that “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,” may be excluded from the speedy trial
calculation. In United States v. Wilson, 835 F.2d 1440 (D.C.
Cir. 1987), relying on the non-exhaustive nature of
§ 3161(h)(1)(A)-(J), the court noted that “time allotted by the
trial judge for preparation of motions” may be excluded in the
“sound discretion” of the district court. In that case, the district
court “explicitly exercised” its discretion in granting the
government’s motion to exclude such time as was requested by
the defendants. Id. at 1444. This court limited this allowance to
instances “where the trial court has expressly granted time for
the purpose,” lest a party’s “continuous and leisurely preparation
of motions” be used for indefinite delay. Id.; see United States
v. Tibboel, 753 F.2d 608, 610 (7th Cir. 1985); see also United
States v. Jodoin, 672 F.2d 232, 238 (1st Cir. 1982).
8
Unlike Wilson, the government here never filed a motion to
exclude days under the general language of § 3161(h)(1).
However, the government maintains that the district court was
exercising its discretion to exclude days for motion-preparation
time in the following exchange with defense counsel:
MR. POE: . . . There’s a substantial amount, in my
view, of outstanding discovery. There may be
disputes. I don’t have any problem with if the Court
wants to set a date for filing motions doing that. I
would probably file -- in addition to whatever motions
I file -- a standard motion asking to -- to late file any
additional motions relating to discovery not yet
produced. That would -- if the Court has concerns
about the Speedy Trial Act, I think those motions
would toll it. . . .
THE COURT: If we were to set a motions date today
with appropriate reservation for incomplete discovery,
how much time do you need for that -- for those
motions? A couple of weeks?
MR. POE: A couple of weeks is fine, Your Honor.
Maybe the -- Friday the 3rd or Thursday the 2nd.
***
THE COURT: Defense motions are due May 3. The
defendants may take a save on discovery that’s not yet
complete. They don’t even need to file a motion to late
file. Some motions must be filed by May 3.
Nothing in this exchange suggests that the district court
contemplated reserving time under the Act, as distinct from
setting a routine deadline for motions to be filed. Therefore,
9
because the government made no request to exclude time from
the speedy trial calculation at the April 18 hearing and the
district court never acknowledged the possibility of excluding
days under § 3161(h)(1), this provision cannot serve as a basis
for discounting the fifteen-day period.
2.
Section 3161(h)(8)(A) authorizes the exclusion of “[a]ny
period of delay resulting from a continuance granted by any
judge . . . if the judge granted such continuance on the basis of
his findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a
speedy trial.” The district court’s reasoning must be set forth “in
the record of the case, either orally or in writing,” id., and
“without on-the-record findings, there can be no exclusion under
§ 3161(h)(8),” Zedner, 126 S. Ct. at 1989. The government
maintains that the district court engaged in the required on-the-
record balancing when it denied appellants’ motion to dismiss
on August 5, 2002, and, therefore, the fifteen days from April 18
through May 2 are excludable under the ends-of-justice
exception.
In Zedner, the Supreme Court acknowledged that “[t]he best
practice, of course, is for a district court to put its findings on the
record at or near the time when it grants the continuance.” Id. at
1989 n.7. The district court made no such findings when it set
the May 3 deadline on April 18. It was not until August 5 that
the district court made its only findings:
I note that on April 18th, at a time when there were still
I think 25 days left on the Speedy Trial clock, there
was some discussion of the Speedy Trial Act on the
record, and Mr. Poe noted that if I was concerned about
the Speedy Trial Act clock, he was going to file
motions to late-file his motions, and that would stop
10
the running of the Speedy Trial Act clock. I expected
those motions to late-file promptly, and I didn’t get
them until Mr. Poe filed his [other pretrial] motions.
So on some rough justice basis, it seems to me, it is in
the interest of justice to add those 15 days to the clock.
The district court clearly erred in characterizing the April 18
exchange. Far from expecting a prompt motion to late-file, the
district court had advised defense counsel that “[t]hey d[id]n’t
even need to file a motion to late file.” And neither defense
counsel nor the district court suggested that a motion to late-file
was desired or required to toll the speedy trial clock.
Additionally, insofar as the district court made no mention of the
countervailing interests, its August 5 statement fails to meet the
Act’s requirement of on-the-record findings that a continuance
“outweigh[ed] the best interest of the public and the defendant
in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). After Zedner, the
ends-of-justice exception cannot support exclusion of the fifteen
days from April 18 through May 2. Nor, as the government
acknowledges, can this court engage in harmless error analysis,
much less remand the case for the district court to engage in the
proper balancing now; the Act “does not permit those findings
to be made on remand.” Zedner, 126 S. Ct. at 1988.
3.
Section 3161(h)(3)(A) excludes “[a]ny period of delay
resulting from the absence or unavailability of the defendant or
an essential witness.” Sanders was not present at the March 22,
2002 status hearing because he was in custody in the State of
Maryland. A writ of habeas corpus ad testificandum was issued
on April 2, 2002, to return Sanders to the District of Columbia,
and he was present at the next status hearing on April 18, which
apparently was delayed by a week in order to ensure Sanders’
presence. The government therefore maintains that the twenty-
seven-day period from March 22 until April 18 is excludable.
11
However, § 3161(h)(3)(B) modifies this exclusion by
providing:
For purposes of [§ 3161(h)(3)(A)], a defendant or an
essential witness shall be considered absent when his
whereabouts are unknown and, in addition, he is
attempting to avoid apprehension or prosecution or his
whereabouts cannot be determined by due diligence.
For purposes of such subparagraph, a defendant or an
essential witness shall be considered unavailable
whenever his whereabouts are known but his presence
for trial cannot be obtained by due diligence or he
resists appearing at or being returned for trial.
18 U.S.C. § 3161(h)(3)(B) (emphasis added). Thus, whereas a
defendant whose whereabouts are unknown stops the clock for
as long as the government exercises due diligence to apprehend
him, where a defendant’s whereabouts are known only
unavailability “for trial” tolls the speedy trial clock. Setting
aside whether an exercise of due diligence could justify a
twenty-seven-day delay in transferring a prisoner from nearby
Charles County, Maryland to the District of Columbia, cf. 18
U.S.C. § 3161(h)(1)(H), Sanders’ whereabouts were known to
the government, but he was not unavailable “for trial.” The
government cites no authority to support its countertextual
reading. Because Sanders missed only a status hearing, and
because the district court made no findings that he was
unavailable “for trial,” the twenty-seven-day period is not
excludable from the seventy-day maximum.
Accordingly, in light of Zedner, we hold that appellants’
Speedy Trial Act rights were violated. Therefore, the court is
obliged to reverse the convictions and remand the cases to the
district court with instructions to dismiss the indictment. See
Zedner, 126 S. Ct. at 1989-90. The district court shall, in the
12
first instance, determine whether to dismiss the indictments with
or without prejudice. See 18 U.S.C. § 3162(a); see also id. §
3288.2
2
We do not reach either appellants’ challenges to the jury
instructions and the sufficiency of evidence as to the gun charges or
Turner’s challenges to the exclusion of testimony under FED. R. CRIM.
P. 403, the refusal to disclose the identity of a confidential informant,
the denial of the severance of appellants’ trials pursuant to FED. R.
CRIM. P. 14, and whether his sentencing comported with 18 U.S.C. §
3553(a) and Booker, 543 U.S. 220.