United States v. Bryant

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 7, 2008 Decided April 25, 2008

No. 06-3129

UNITED STATES OF AMERICA,
APPELLEE

v.

WILLIAM RAY BRYANT, A/K/A DERRICK TONGUE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 05cr00139-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Lara G. Quint, Assistant Federal
Public Defender, entered an appearance.
John P. Gidez, 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 Thomas J. Tourish, Jr.,
Assistant U.S. Attorneys.
Before: RANDOLPH and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Circuit Judge RANDOLPH.
EDWARDS, Senior Circuit Judge: Appellant William Bryant
and his co-defendant, Timothy Walker, were arrested on
February 9, 2005 and subsequently charged with possession of
an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and
possession of a firearm and ammunition by a felon, in violation
of 18 U.S.C. § 922(g)(1). Both men were convicted on March
27, 2006 on both counts. On August 29, 2006, appellant was
sentenced to concurrent prison terms of 46 months on each
count, followed by three years of supervised release.
On appeal, Bryant alleges that his convictions on both
counts should be overturned because the Government presented
insufficient evidence that he constructively possessed the two
weapons in question, and because the District Court gave an
erroneous and misleading supplemental jury instruction
regarding the definition of constructive possession. In the
alternative, he argues that the unregistered firearm count should
be dismissed, because his trial was commenced beyond the 70-
day limit required by the Speedy Trial Act (“STA”), 18 U.S.C.
§ 3161(c)(1). Finally, appellant seeks a remand of the case with
instructions to the District Court to review the preserved jury
records from his trial and to hold a hearing to determine whether
his jury venire violated the Jury Selection and Service Act
(“JSSA”), 28 U.S.C. § 1861 et seq.
We reject appellant’s sufficiency claim on the § 922(g)(1)
charge. After reviewing the trial record “in the light most
favorable to the government,” United States v. Booker, 436 F.3d
238, 241 (D.C. Cir. 2006) (internal quotation marks omitted), we
conclude that the jury reasonably “could have found the
essential elements of the crime beyond a reasonable doubt,”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because it
 3

appears that appellant failed to raise his jury instruction claim
with the District Court, we normally would be constrained to
review this claim pursuant to the narrow plain error standard.
See United States v. Olano, 507 U.S. 725, 731-32 (1993). This
is a moot question, however, because we find no error. We also
find no violation of the JSSA.
Finally, we reverse appellant’s conviction on the § 5861(d)
charge – possession of an unregistered firearm – because his
trial was commenced more than 70 non-excludable days after
the speedy trial clock began running, in violation of the STA.
We remand the case with instructions to the District Court to
dismiss Count One of the superseding indictment and determine
whether the dismissal should be with prejudice.
I. BACKGROUND
On February 9, 2005, Officer Charles Monk of the
Metropolitan Police Department (MPD) was working an off-
duty security job at the Red Roof Inn in the Chinatown area of
Washington, D.C. At about 3:00 a.m., Officer Monk observed
a black Land Rover sport utility vehicle (“SUV”) pull up and
park in the 800 block of 5th Street N.W. Two men exited the
SUV while it was parked illegally in a bus zone. The driver,
who was later identified as Timothy Walker, wore a ski mask
that partially obscured his face, and a black and red Chicago
Bulls hat. The passenger – later identified as the appellant –
also wore a ski mask. Although it was an unusually mild night,
both men wore heavy black winter coats; in contrast, other
people in the area were wearing light jackets and t-shirts without
jackets. After Walker stepped out of the SUV, he reached back
inside and, from the rear of the SUV, retrieved a bulky item
which he slid inside his coat. Appellant also leaned into the
SUV, but Officer Monk did not see him retrieve anything.
Walker and appellant crossed the street and headed toward
a charter bus that was parked in the 500 block of H Street and
 4

waiting for passengers. Walker was “kind of limping[,] favoring
his left side.” Trial Tr. (3/21/06) at 50 (Testimony of Officer
Monk). Appellant and Walker kept looking at each other and
then finally approached the front of the bus. Officer Monk
briefly lost sight of the two men, but saw the bus driver stand
and look towards the door of the bus while shaking his head.
Walker and appellant started walking away from the bus, “back
towards the corner of Fifth and H Street.” Id. at 52. Officer
Monk noted that the two men were communicating with each
other nonverbally. Walker and appellant stood in an alley for a
minute or two, then walked back to the SUV. Appellant got into
the vehicle, while Walker “walked to the driver’s side, and he
opened the door, retrieved the item out of his jacket, placed it in
back, [and] got inside the vehicle.” Id. at 55. Then Officer
Monk watched them drive northbound on Fifth Street.
One to two minutes later, Officer Monk saw the same
vehicle circling back to the area. They parked in a legal parking
space that was approximately 15 feet in front of their earlier
parking spot. Officer Monk observed that Walker “reached back
into the vehicle, retrieved an item,” and “stuck it back down
inside his jacket. This time he pulled his face mask back down
over his face.” Id. at 56. Appellant also pulled his face mask
down. Appellant “walked freely, as if nothing was wrong with
him,” but Walker was limping, “favoring his left side.” Id. at
57. They walked back towards the bus, and Officer Monk called
the police dispatcher to request assistance to stop “two
suspicious males.” Id. Officer Monk indicated that he “believed
that one of the individuals had a weapon.” Id. at 58.
Meanwhile, Walker and appellant stood on the corner of 6th
and H Streets. Both men were “looking around nervously”
when Officer Monk saw a marked FBI police car drive by. Id.
at 59. The men noticed the car as well, and both of them moved
their ski masks so that their whole faces were revealed. Two
MPD police cars then arrived on the scene. Officer Monk used
 5

his radio to speak with the officers in one of the police cars –
Officers James Burgess and Steven Greene – and gave them a
description of Walker and the appellant. Appellant and Walker
“began to walk away” from the area; after turning onto Sixth
Street, they “began walking at a faster than normal pace.” Id. at
134 (Testimony of Officer Greene). Walker was walking “with
a limp, stiff legged” as if he “were trying to conceal or carry a
large object in a portion of [his] body under [his] clothes.” Id.
at 135. Officers Burgess and Greene got out of their squad car
and approached Walker and appellant. They asked the two
gentlemen to stop. Appellant remained on the scene and was
detained by Officer Burgess. Walker, however, broke into a
“full sprint,” showing no sign of a limp. Id. at 144. Walker was
cornered a few blocks later by Officer Greene and another police
officer in a fenced-in area behind the MPD Traffic Division
building at 501 New York Avenue, N.W. Officer Greene
ordered Walker to get on the ground. “As he was getting on the
ground,” Walker “dropped a .12-gauge shotgun into” an
“exterior window basin.” Id. at 143. According to Officer
Greene, the shotgun appeared to have been concealed in
Walker’s sleeve. Id. at 144. After Walker was taken into
custody, Officer Greene, using a flashlight, looked through the
grate into the window well and saw the shotgun. Id. at 193.
Meanwhile, MPD Officer Steven Schwalm, who had also
responded to the call for assistance, found a sawed-off shotgun
on the passenger’s side floorboard of the SUV that Walker and
Bryant had been using.
Officer Burgess patted down appellant while detaining him,
but found no weapons of any kind. The shotgun recovered from
the window well was a sawed-off Stevens .12-gauge shotgun,
loaded with one .12-gauge shotgun shell. The firearm found in
the SUV was a sawed-off, Harrington and Richardson Bay State
Model 7 shotgun. The Harrington and Richardson gun was 18
inches long (with a 12-inch barrel). The weapon had been
modified in a way that required it to be registered in the National
 6

Firearms Registration and Transfer Record. It was not
registered, however. No fingerprints were recovered from either
gun. A partial print was recovered from the shotgun shell, but
it was of no value.
Appellant and Walker were each indicted on one count of
possessing an unregistered firearm in violation of 26 U.S.C.
§ 5861(d) on April 21, 2005. This indictment was defective,
because it specified that appellant and Walker had possessed
both shotguns without properly registering them; however, only
the Harrington and Richardson shotgun had to be registered
pursuant to 26 U.S.C. § 5845(a). On February 16, 2006 – a
week before trial was scheduled to begin – the Government filed
a superseding indictment, correcting the error in the unregistered
firearm counts by deleting the reference to the gun that had been
recovered from the window well and adding felon-in-possession
counts against both appellant and Walker, and charging them
with possession of the car gun, the window-well gun, and the
ammunition from the window-well gun. At a hearing on
February 17, 2006, counsel for defendant Walker made an oral
motion to dismiss on grounds that the STA had been violated,
Hearing Tr. (2/17/06) at 3-4, and subsequently submitted a
written motion to dismiss. Counsel for appellant joined the
motion to dismiss at a subsequent status conference on March
14, 2006, Hearing Tr. (3/14/06) at 16, but the trial judge denied
the motion, id. at 29-30. Appellant and his co-defendant stood
trial from March 21-23, 2006, and a jury convicted both men on
both counts on March 27, 2006.
II. ANALYSIS
A. Standard of Review
When faced with a defendant’s challenge to the sufficiency
of the evidence supporting his conviction, this court “review[s]
the evidence of record de novo, considering that evidence in the
light most favorable to the government, and [will] affirm a
 7

guilty verdict where ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’”
United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002)
(quoting Jackson, 443 U.S. at 319). Upon review, “we giv[e]
full play to the right of the jury to determine credibility, weigh
the evidence and draw justifiable inferences of fact.” United
States v. Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir. 2007)
(alteration in original) (internal quotation marks omitted).
If Bryant failed to raise and preserve his objection to the
trial court’s supplemental jury instruction, his challenge to the
instruction would entail only plain error review. FED. R. CRIM.
P. 52(b). The plain error standard requires Bryant to establish
that the supplemental jury instruction was “(1) a legal error that
was (2) ‘plain’ (a term that is synonymous with ‘clear’ or
‘obvious’), and that (3) affected [his] substantial rights.” United
States v. Brown, 508 F.3d 1066, 1071 (D.C. Cir. 2007)
(alteration in original) (internal citations omitted); see also
Olano, 507 U.S. at 732-34. Even if these three conditions are
met, we will correct a plain error as a matter of discretion only
“if the error ‘seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.’” Olano, 507 U.S. at 736
(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
We need not decide whether the plain error standard controls
here, because we find no “error.”
Appellant’s allegation that his trial violated the provisions
of the STA is “reviewed de novo on matters of law, and for clear
error as to findings of fact.” United States v. Sanders, 485 F.3d
654, 656 (D.C. Cir. 2007) (internal citations omitted).
Finally, on his JSSA claim, appellant seeks to have his case
remanded to the District Court for discovery and a hearing on
the adequacy of the jury venire, suspecting a possible violation
of the statute. We will review appellant’s JSSA claim de novo.
See United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir.
1995) (reviewing de novo “constitutional challenges to jury
 8

selection processes”). Defense counsel first raised the claim that
the jury venire was disproportionately white on March 21, 2006
– the day after voir dire was completed – when counsel for
Walker moved to disqualify the entire jury. The Government
argues that because appellant did not raise his concerns with the
jury venire “before the voir dire examination beg[an],” as 28
U.S.C. § 1867(a) requires, he is prohibited from raising the
claim now. In United States v. DeFries, 129 F.3d 1293 (D.C.
Cir. 1997), this court suggested that procedural noncompliance
might be overlooked if “the [JSSA] and the jury selection
procedures utilized by the district court effectively foreclosed
the filing of appellants’ motion at an earlier time.” 129 F.3d at
1300. However, as in DeFries, “we need not decide whether
appellant[] would be entitled to such an exception [to the JSSA’s
timeliness requirement], because appellant[’s JSSA] claim is
unsupported by the evidence necessary for the court to conclude
that there has been a ‘substantial’ violation of the [Act].” Id.
B. Sufficiency of the Evidence Regarding Constructive
Possession
To convict Bryant of unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), the Government was required
to prove beyond a reasonable doubt that (1) Bryant knowingly
possessed a firearm, (2) the firearm was transported in or
affected interstate commerce, and (3) at the time of his
possession, Bryant had been previously convicted of a felony.
See United States v. Alexander, 331 F.3d 116, 127 n.18 (D.C.
Cir. 2003). Conviction under 26 U.S.C. § 5861(d) obligated the
Government to prove that (1) Bryant knowingly possessed a
firearm (2) whose registry in the National Firearms Registration
and Transfer Record was required. The parties agreed that both
guns were firearms within the definitions of the relevant statutes,
that both guns were “possessed, shipped, and transported” in
interstate commerce, that the Harrington and Richardson
shotgun was not properly registered, and that both appellant and
 9

Walker previously had been convicted of a felony. Thus, all that
remained for the Government to prove was that appellant
possessed the guns.
“Criminal possession of a firearm may be either actual or
constructive.” Alexander, 331 F.3d at 127. Moreover,
“possession need not be exclusive in a single person; joint
possession is possible in the criminal law.” 1 WAYNE R.
LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.1(e) (2d ed.). In
order to prove that appellant constructively possessed the guns,
the Government was required to show that Bryant “knew of, and
was in a position to exercise dominion and control over, the
contraband, ‘either personally or through others.’” United
States v. Byfield, 928 F.2d 1163, 1166 (D.C. Cir. 1991) (quoting
United States v. Raper, 676 F.2d 841, 847 (D.C. Cir. 1982)).
When evaluating whether Bryant had “dominion and control”
over the firearms, “[t]he essential question is whether there is
‘some action, some word, or some conduct that links the
individual to the [contraband] and indicates that he had some
stake in them, some power over them.’” Byfield, 928 F.2d at
1166 (quoting United States v. Pardo, 636 F.2d 535, 549 (D.C.
Cir. 1980)). In other words, the Government’s case must rest on
“something more than [the defendant’s] mere presence at the
scene of a criminal transaction.” Pardo, 636 F.2d at 549; see
also Littlejohn, 489 F.3d at 1338-39; Alexander, 331 F.3d at
127; In re Sealed Case (Sentencing Guidelines’ “Safety Valve”),
105 F.3d 1460, 1463 (D.C. Cir. 1997). However, proximity plus
another factor may well be enough to prove that the defendant
exercised “dominion and control” over the contraband.
“[E]vidence of some other factor – including connection with a
gun, proof of motive, a gesture implying control, evasive
conduct, or a statement indicating involvement in an enterprise
– coupled with proximity may suffice [to prove constructive
possession].” Alexander, 331 F.3d at 127 (internal quotation
marks omitted); see also In re Sealed Case, 105 F.3d at 1463.
 10

On appeal, counsel for appellant concedes that “viewing the
evidence in the light most favorable to the government, there
was sufficient evidence that [Bryant] knew of the existence of
both guns, and sufficient evidence that he and Walker were
doing something in concert.” Br. for Appellant at 34. However,
counsel argues that “there was no evidence that [Bryant’s]
gestures implied control over the gun Walker was carrying or
that any of his evasive actions related to the gun.” Id. at 35.
Appellant also contends that “the prosecutor’s suggestion that
Bryant was covering or otherwise exerting control over the car
gun” is “purely speculative.” Id. at 37. We disagree.
First, the Government established that appellant had been
in close proximity to both guns during the events in question:
Appellant remained close to Walker (and therefore close to the
Stevens .12-gauge shotgun on Walker’s person) from the time
they exited the SUV until they were approached by police
officers and Walker ran away. In addition, the Harrington and
Richardson firearm was found on the passenger’s side
floorboard of the SUV – the same SUV in which appellant was
seen sitting in the passenger’s seat. However, the Government’s
case was not dependent on proximity alone. Both men were
walking in Chinatown at 3:00 a.m., wearing bulky winter jackets
and ski masks on a relatively mild evening. The jury heard
testimony that Walker had concealed the Stevens .12-gauge gun
in his oversized coat. Jurors reasonably might have assumed
that Bryant wore similar outerwear in case he decided to carry
one of the guns. Jurors also could have inferred from the
testimony about Bryant’s and Walker’s behavior that they were
preparing to rob the bus driver or passengers, supplying a
possible motive for their actions. Similarly, as counsel for
appellant conceded, the nonverbal communication signals
between Walker and appellant demonstrated that the two men
were acting in concert. Finally, appellant and Walker engaged
in evasive conduct. The jury heard testimony that when the two
men first observed the police car carrying Officers Burgess and
 11

Greene, they began walking in the opposite direction from the
police car and, after turning a street corner, they began walking
at a much faster than normal pace.
The Government’s constructive possession case against
Bryant certainly is not overwhelming. Nonetheless, we must
review the evidence “in the light most favorable to the
government” in determining whether “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt,” Wahl, 290 F.3d at 375 (quoting Jackson, 443
U.S. at 319). Given this deferential standard of review, we hold
that a reasonable jury could have concluded from the totality of
the circumstances that Bryant exercised “dominion and control”
over both firearms sufficient to support a conviction under both
18 U.S.C. § 922(g)(1) and 26 U.S.C. § 5861(d). Appellant’s
proximity to both guns, coupled with his suspicious attire, his
initial evasive conduct towards the police officers, and the
evidence that Bryant was acting in concert with an individual
who was actually carrying one of the weapons on his person,
provided adequate evidence for a juror to conclude that Bryant
constructively possessed both firearms.
C. The Supplemental Jury Instruction
At the end of the trial, the District Court initially gave the
standard “red book” jury instruction on constructive possession.
This instruction states in part that an individual “has
constructive possession of something when he does not have
direct physical control over it, but if he knowingly has both the
power and the intent at a given time to control it, either by
himself or through another person.” Trial Tr. (3/23/06) at 534-
35. During its deliberations, the jury sent a note to the District
Court, asking “[c]an we have the definition of ‘control’ w/regard
to intent in the definition we’ve received of constructive
possession?” The trial judge met with counsel on March 24,
2006, to discuss the possibility of a supplemental instruction.
Lawyers for appellant and Walker wanted the District Court to
 12

reread the original instruction or, in the alternative, to read the
definition of “control” from a District of Columbia Court of
Appeals case, Curry v. United States, 520 A.2d 255 (D.C. 1987).
The Curry definition states in part that “[d]ominion or control
over an object is shown when the accused has some appreciable
ability to guide its destiny.” Curry, 520 A.2d at 263. The
Government urged the District Court to read the language from
Alexander, noting the “plus factors,” because, according to the
prosecutor, it would provide more clarity for the jury than the
Curry language. Counsel for both defendants objected on the
grounds that the Alexander “plus factor” language would
confuse the jury. Trial Tr. (3/24/06) at 8-9. In the end, the
District Court reread the original instruction, then provided
language from the Curry, Pardo, and Alexander decisions. Id.
at 10-13.
On appeal, appellant objects to the District Court’s
supplemental instruction, because, in his view, the court’s
endorsement of “the [Alexander plus factor] examples” allowed
the jury to find possession without finding “control.” Br. for
Appellant at 45. Put another way, “[b]y reducing the difficult
control inquiry – with which the jury was struggling – to the
simpler question of whether there was ‘evidence of some other
factor’ in addition to proximity, the instruction reduced the
government’s burden of proof and greatly increased the
likelihood of conviction.” Id. This is not precisely the same
objection that appellant’s counsel raised at trial. Below,
appellant did not clearly allege that the Alexander instruction
reduced the Government’s burden of proof; appellant focused
more on a claim that the Alexander instruction would cause
more confusion than it would eliminate. Trial Tr. (3/24/06) at
8-9. If appellant did not properly preserve his supplemental jury
instruction argument, we would be obliged to review this claim
pursuant to the narrow plain error standard. This is a moot
question in this case, however, because we find that the trial
court did not err in giving the supplemental instruction.
 13

On this record, it is clear that the District Court did not err
at all – much less plainly err – when it provided the Alexander
language as part of its supplemental jury instruction. First,
Alexander remains controlling precedent in this circuit.
Therefore, we can hardly hold that a trial judge abuses his
discretion by citing a legal standard whose continued validity
has been recently confirmed by this court. See Booker, 436 F.3d
at 242. Second, the District Court’s supplemental instruction
clarified the proper role of the Alexander factors. In the course
of giving the instruction, the trial judge stated that “[o]n another
occasion the courts have said . . . evidence of some other factor
. . . coupled with proximity, may suffice. And I emphasize
‘may’ because every case is different. . . . And so you have to
keep in mind that [the other courts] were always talking about
a particular factual situation that they had, which is undoubtedly
not precisely the same factual situation that we have in this
case.” Trial Tr. (3/24/06) at 12-13. Thus, the trial judge
afforded the jury the benefit of the Curry, Pardo, and Alexander
explanations of constructive possession, and then emphasized
that, although the “plus factors” might help illuminate whether
either defendant exercised “dominion or control,” the plus
factors could not be substituted for the ultimate question. The
jury was not left confused. In sum, the trial court’s
supplemental instruction did not constitute error.
D. The Speedy Trial Act
“The [Speedy Trial] Act generally requires a federal
criminal trial to begin within 70 days after a defendant is
charged or makes an initial appearance, [18 U.S.C.]
§ 3161(c)(1), but the Act contains a detailed scheme under
which certain specified periods of delay are not counted
[towards the 70-day clock].” Zedner v. United States, 547 U.S.
489, 492 (2006). Appellant argues that his conviction under 26
U.S.C. § 5861(d) should be reversed because his trial on that
count began more than 70 non-excludable days after the speedy
 14

trial clock began running. The Government argues that certain
actions tolled the speedy trial clock such that fewer than 70 days
passed before appellant’s trial began. Appellant is correct: The
speedy trial clock could not be tolled for the lengths of time
sought by the Government, and as such we dismiss appellant’s
indictment on the § 5861(d) charge.
Both parties agree that although Bryant was arrested on
February 9, 2005, and arraigned on May 4, 2005, the speedy trial
clock only began ticking on June 11, 2005 – the day after his
co-defendant’s arraignment in the District of Columbia. 18
U.S.C. § 3161(h)(7); Henderson v. United States, 476 U.S. 321,
323 n.2 (1986) (“All defendants who are joined for trial
generally fall within the speedy trial computation of the latest
codefendant.”). As noted above, the initial indictment of both
appellant and Bryant was faulty. A superseding indictment was
not filed until February 16, 2006 – more than a full year after
their arrest. The new indictment charged Bryant with one count
of violating 26 U.S.C. § 5861(d), correctly noting that only the
Harrington and Richardson shotgun was carried in violation of
§ 5861(d), but added the felony possession charge pursuant to
18 U.S.C. § 922(g)(1). Defense counsel moved to dismiss the
superseding indictment based on the STA, but the trial judge
denied the motion. Trial finally began on March 20, 2006.
We note that “the filing of a superseding indictment does
not affect the speedy trial timetable for offenses either charged
in the original indictment or required under double jeopardy
principles to be joined with such charges.” United States v.
Marshall, 935 F.2d 1298, 1302 (D.C. Cir. 1991). Thus, the
critical time frame in this case remains the period between June
2005 and March 2006. The parties agree that as of August 8,
2005, at least 32 non-excludable days had been logged on the
speedy trial clock. Br. for Appellee at 23; Reply Br. for
Appellant at 3. We focus our attention on the Government’s two
arguments for tolling the speedy trial clock during the period
 15

between October 28, 2005 and February 16, 2006. Because we
find that more than 39 non-excludable days passed during that
time period, we agree with appellant that his speedy trial rights
were violated.
The Government first argues that the time period between
October 28, 2005 and February 16, 2006 is excluded because the
Government had an outstanding motion filed with the District
Court at that time. See 18 U.S.C. § 3161(h)(1)(F) (stating that
the speedy trial clock will be tolled for “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”). On August 8, 2005, the Government filed two
documents titled “Notice of Intention and Motion to Admit
Evidence of Defendant’s Prior Conviction Pursuant to Federal
Rule of Evidence 609” – one for each defendant. At a status
hearing on October 7, 2005, Walker’s counsel requested an
opportunity to respond to the Government’s Rule 609 filing.
Hearing Tr. (10/7/05) at 125. The District Court granted
permission for counsel to respond, but noted in his order after
the hearing that any response had to be filed prior to the status
conference scheduled for October 28, 2005. As of the October
28 status hearing, no response had been filed; in fact, neither
defense counsel filed a response to the Rule 609 submission
until March 16, 2006. The Government argues that the entire
time period after August 8 is excluded for STA purposes,
because the Rule 609 filing was pending per § 3161(h)(1)(F)
until trial began on March 20, 2006.
Appellant responds that the speedy trial clock was not tolled
after August 8 because the Rule 609 filing was not a motion and,
thus, it did not trigger § 3161(h)(1)(F)’s tolling provision. In
United States v. Harris, 491 F.3d 440 (D.C. Cir. 2007), we held
that a document titled “Government’s Notice of Intent To
Impeach Defendant [Harris] with His Prior Convictions
Pursuant to Federal Rule of Evidence 609” was “not a motion,”
 16

but that the defendant’s “response ‘request[ing] that the Court
preclude the admission of the above mentioned evidence at trial’
was one, and it tolled the clock . . . from the date of its filing.”
491 F.3d at 443-44 (alterations in original). Appellant argues
that, under Harris, the time prior to March 16, 2006 – when
appellant filed a response to the Rule 609 filing – cannot be
excluded from the speedy trial clock, because appellant’s answer
to the Rule 609 filing was not a response to a government
“motion.” The Government claims that Harris is
distinguishable because the document the Government filed in
that case was merely called a notice, whereas the submission in
this case was styled as a motion and repeatedly referred to as
such by both parties and the trial judge. Additionally, the
Government’s filing included an attached proposed order, “thus
seeking a ruling from the district court.” Br. for Appellee at 24.
We need not decide whether the Government’s Rule 609
filing was a “motion” for § 3161(h)(1)(F) purposes, however.
Even assuming arguendo that it was a motion, it would not have
tolled the STA for as long as the Government claims. In
Henderson, the Supreme Court held that “all time between the
filing of a motion and the conclusion of the hearing on that
motion” should be excluded from the speedy trial clock, whether
or not the delay was “reasonably necessary.” 476 U.S. at 330.
However, the Court differentiated between motions that require
a hearing – in which case, all time is excluded, whether
“reasonably necessary” or not – and motions that were decided
solely on the basis of paper submissions to the trial court. For
motions that do not require a hearing, § 3161(h)(1)(J) tolls the
speedy trial clock only for “delay reasonably attributable to any
period, not to exceed thirty days, during which any proceeding
concerning the defendant is actually under advisement by the
court.” 18 U.S.C. § 3161(h)(1)(J) (emphasis added). As the
Henderson Court explained:
 17

[18 U.S.C. § 3161(h)(1)(F)], written in the disjunctive,
excludes time in two situations. The first arises when a
pretrial motion requires a hearing: subsection (F) on its
face excludes the entire period between the filing of the
motion and the conclusion of the hearing. The second
situation concerns motions that require no hearing and that
result in a “prompt disposition.” There, the promptness
requirement was “intended to provide a point at which time
will cease to be excluded, where motions are decided on the
papers filed without hearing.” S. Rep. No. 96-212 [(1979)],
at 34. The “point at which time will cease to be excluded”
is identified by subsection (J), which permits an exclusion
of 30 days from the time a motion is actually “under
advisement” by the court. Without the promptness
requirement in subsection (F), a court could exclude time
beyond subsection (J)’s 30-day “under advisement”
provision simply by designating the additional period as
time “from the filing of the motion” through its
“disposition” under subsection (F). As the Senate
Committee on the Judiciary explained:
“In using the words ‘prompt disposition’, the
committee intends to make it clear that, in excluding
time between filing and disposition on the papers, the
Committee does not intend to permit circumvention of
the 30-days, ‘under advisement’ provision contained in
Subsection (h)(1)(J). Indeed, if motions are so simple
or routine that they do not require a hearing, necessary
advisement time should be considerably less than 30
days.” Ibid.
476 U.S. at 329 (emphasis added).
In the instant case, the District Court never held a hearing
on the Rule 609 question, nor did it ever indicate that such a
hearing might be required. Thus, once Walker’s counsel failed
to file a timely response on or before October 28, 2005, the Rule
 18

609 filing was “under advisement” by the District Court. This
meant that the trial judge could toll the speedy trial clock only
for an additional 30 days while deciding the motion. As of
November 27, 2005, however, time began accruing on the
speedy trial clock again.
Allowing the District Court to exclude the time from
November 27, 2005 until February 16, 2006 would defeat the
purpose of the STA. Defense counsel chose not to file a
response to the Rule 609 motion within the court’s prescribed
deadline, so the time began accruing again under the STA at the
end of November 2005. The statute “was designed not just to
benefit defendants but also to serve the public interest by,
among other things, reducing defendants’ opportunity to commit
crimes while on pretrial release and preventing extended pretrial
delay from impairing the deterrent effect of punishment.”
Zedner, 547 U.S. at 501. The time between November 27, 2005
and February 16, 2006 cannot be excluded pursuant to the 18
U.S.C. § 3161(h)(1)(F) exemption.
The Government also argues that the time period from
October 28, 2005 until February 16, 2006 is excluded because
the STA allows for the tolling of the speedy trial clock if a judge
grants a continuance “on the basis of [the judge’s] 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.”
18 U.S.C. § 3161(h)(8)(A). The STA specifies that the trial
judge must “set[] forth, in the record of the case, either orally or
in writing, its reasons for finding that the ends of justice” are
best served by the continuance. Id. Various factors are listed
for trial judges to take into account in making the “ends of
justice” determination. 18 U.S.C. § 3161(h)(8)(B)(i)-(iv).
At the October 28, 2005 status hearing, after a short
conversation where both parties and the District Court tried to
accommodate one another’s schedules, the trial judge set a
tentative trial date for late February 2006. Hearing Tr.
 19

(10/28/05) at 2-5. At the March 14, 2006 hearing on the motion
to dismiss on STA grounds, the trial court judge stated that,
although he “[did not] have a transcript of the October 28th
hearing,” he thought he had “probably made a finding that [the
time period until February 22, the original trial date, was]
waived in the interest of justice,” to “coordinate the schedules of
the prosecutor, the two defense lawyers, and the Court,” because
“otherwise we would force one or the other of the defendants to
go to trial with somebody who is not their lawyer, or a lawyer
who is just coming off another trial.” Hearing Tr. (3/14/06) at
10. The trial judge went on to say that he “[did not] know
whether the statute or the case law requires an explicit finding,”
but he thought “it would have been implicit if we were going to
postpone all the way to the end of February.” Id. at 17. The
judge subsequently denied the motion to dismiss. Id. at 26-30.
The Government claims that the speedy trial clock was thus
properly tolled from October 28, 2005 until the trial began under
the § 3161(h)(8)(A) exclusion.
The Supreme Court’s decision in Zedner – which was
handed down approximately two months after the trial court
denied the motion to dismiss – forecloses the argument that the
Government now makes on appeal. Zedner makes it plain that
“implicit” findings are insufficient to invoke the § 3161(h)(8)(A)
exclusion. The Zedner Court held that before a judge could toll
the speedy trial clock under § 3161(h)(8)(a), the judge had to
make “express findings” about why the ends of justice were
served by a continuance, 547 U.S. at 506, and those findings had
to be “put on the record by the time a district court rules on a
defendant’s motion to dismiss under [18 U.S.C.] § 3162(a)(2).”
Id. at 507. The Supreme Court placed special emphasis on what
it called the “procedural strictness” of the STA, id. at 509, and
in particular on the trial judge’s obligation to make findings that
give due consideration to the weighty interests in favor of a
speedy trial that the STA was meant to embody.
 20

The exclusion of delay resulting from an ends-of-justice
continuance is the most open-ended type of exclusion
recognized under the Act and, in allowing district courts to
grant such continuances, Congress clearly meant to give
district judges a measure of flexibility in accommodating
unusual, complex, and difficult cases. But it is equally clear
that Congress, knowing that the many sound grounds for
granting ends-of-justice continuances could not be rigidly
structured, saw a danger that such continuances could get
out of hand and subvert the Act’s detailed scheme. The
strategy of § 3161(h)(8), then, is to counteract substantive
open-endedness with procedural strictness. This provision
demands on-the-record findings and specifies in some detail
certain factors that a judge must consider in making those
findings.
Id. at 508-09.
In this case, the District Court made no express findings
supporting a § 3161(h)(8)(A) continuance at the October 28,
2005 status conference. Although Zedner permits trial judges to
put their findings on record at the time they rule on a STA
motion to dismiss, rather than at the time when they grant the
continuance, the passing reference to the “interest of justice”
made by the trial judge at the March 14, 2006 status hearing
does not indicate that the judge seriously considered the “certain
factors” that § 3161(h)(8)(A) specifies. See Zedner, 547 U.S. at
507 (“[T]he District Court set forth no such findings at the
January 31 status conference, and § 3161(h)(8)(A) is not
satisfied by the District Court’s passing reference to the case’s
complexity in its ruling on petitioner’s motion to dismiss.”).
Zedner makes clear that trial judges are obligated to seriously
weigh the benefits of granting the continuance against the strong
public and private interests served by speedy trials; there is
nothing in the record to indicate that the latter were given any
serious consideration by the trial judge when he denied the
 21

motion to dismiss. See Sanders, 485 F.3d at 659 (“[I]nsofar 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).” (second
alteration in original)). Thus, the speedy trial clock was not
tolled between October 28, 2005 and February 16, 2006
pursuant to the § 3161(h)(8)(A) “ends of justice” exclusion.
Given that both parties agree that at least 32 days had
accrued on the speedy trial clock as of August 8, and it is clear
that at least 39 additional, non-excludable days accrued between
November 27, 2005 and February 16, 2006, we find that the
STA’s 70-day maximum was exceeded. We are therefore
obligated to reverse appellant’s conviction for possession of an
unregistered firearm and remand the case to the District Court
with instructions to dismiss the indictment on that count.
However, it is for the District Court to determine whether the
indictment should be dismissed with or without prejudice. 18
U.S.C. § 3162(a)(2).
E. The Jury Selection and Service Act
In Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme
Court held that “the Sixth Amendment affords the defendant in
a criminal trial the opportunity to have the jury drawn from
venires representative of the community.” 419 U.S. at 537.
Although “[d]efendants are not entitled to a jury of any
particular composition . . . the jury wheels, pools of names,
panels, or venires from which juries are drawn must not
systematically exclude distinctive groups in the community and
thereby fail to be reasonably representative thereof.” Id. at 538.
The JSSA codifies this right, stating that federal litigants entitled
to a jury trial have “the right to grand and petit juries selected at
random from a fair cross section of the community in the district
or division wherein the court convenes.” 28 U.S.C. § 1861.
 22

Appellant contends that his venire was not comprised of “a fair
cross section” of Washington, D.C. due to the
underrepresentation of blacks, and thus his rights under the
JSSA were violated. The Supreme Court has established the
following test for determining violations of the “fair cross
section” requirement:
[T]he defendant must show (1) that the group alleged to be
excluded is a “distinctive” group in the community; (2) that
the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the
group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
The Government used a variety of statistical methods to
calculate the degree to which blacks were underrepresented in
appellant’s jury venire, and argues that the disproportionate
number of blacks did not rise to a legally cognizable level.
Appellant does not directly refute the Government’s argument;
rather, he argues that the calculations “raise a red flag as to this
jurisdiction’s jury selection system, particularly in light of the
racial skewing that was observed in United States v. Spriggs,
102 F.3d 1245 (D.C. Cir. 1996), and United States v. DeFries,
129 F.3d 1293 (D.C. Cir. 1997).” Reply Br. for Appellant at 18.
However, in neither Spriggs nor DeFries did the court find that
the JSSA had been violated. See DeFries, 129 F.3d at 1301;
Spriggs, 102 F.3d at 1253-54. More importantly, this court
noted in DeFries that “[u]nderrepresentation of a cognizable
group in a single venire, without evidence of a greater pattern,
is insufficient to establish the ‘systematic exclusion of the
group’ required by Duren.” 129 F.3d at 1301 (citing Duren, 439
U.S. at 364). In this case, appellant appears to suggest that
DeFries and Spriggs themselves supply evidence that there is
“systematic exclusion,” but this argument fails for two reasons:
 23

(1) both DeFries and Spriggs concerned an alleged
underrepresentation of whites, whereas this case involves an
alleged underrepresentation of blacks; and (2) two cases decided
more than 10 years ago, in combination with appellant’s own
single venire, are insufficient to establish “systemic exclusion”
as required by Duren. In short, appellant has not offered
sufficient reasons to remand this case for further investigation
of his venire.
III. CONCLUSION
For the reasons given above, the judgment of the District
Court is affirmed in part and reversed in part. The case is
hereby remanded for the District Court to dismiss Count One of
the superseding indictment after determining whether the
dismissal should occur with or without prejudice.
 Randolph, Circuit Judge, concurring: I agree with the court
that Bryant’s conviction for possessing an unregistered firearm
must be reversed. On remand the district court will have to
determine whether to dismiss that count with prejudice or
without prejudice. In making this determination I believe the
court should take into account Bryant’s failure to demand a
speedy trial before the statutory period ran.

As criminal defense attorneys know, delaying a trial often
works to the defendant’s advantage. On the other hand, there
are instances when a prompt trial may assist the defense. The
“demand rule,” as it came to be known, stated that a defendant
had “to demand a trial or resist postponement”; if he did neither,
he waived his Sixth Amendment right to a speedy trial. United
States v. Lustman, 258 F.2d 475, 478 (2d Cir. 1958); see also
Bruce v. United States, 351 F.2d 318, 320 (5th Cir. 1965);
United States v. Hill, 310 F.2d 601, 603 (4th Cir. 1962). The
underpinning of the rule was that the accused cannot have it
both ways: he cannot welcome delay and seek to gain an
advantage from it and then later avoid trial entirely by having
the indictment dismissed because of the delay.

Barker v. Wingo relaxed the rigidity of the demand rule.
407 U.S. 514 (1972). The Supreme Court held that a defendant
who fails to demand a speedy trial does not forever waive his
right to one, but that his failure to make a demand is one of the
factors bearing on whether his Sixth Amendment right was
violated. 407 U.S. at 528; see United States v. White, 443 F.3d
582, 589-91 (7th Cir. 2006).

The Speedy Trial Act provides that a defendant’s failure to
move for dismissal prior to trial constitutes a waiver of his rights
under the Act. 18 U.S.C. § 3162(a)(2). The Act does not
require a defendant to make the motion before the statutory time
limit has expired. If, as in Bryant’s case, the time has expired,
the district court must dismiss the indictment but the court has
discretion to determine whether to do so with or without
 2

prejudice. In making that determination, the court must
consider, among other things, “the seriousness of the offense;
the facts and circumstances of the case which lead to the
dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of
justice.” Id. § 3162(a)(2).

Just as a defendant’s failure to demand a speedy trial bears
on whether the delay violated the Sixth Amendment, a
defendant’s acquiescence in the delay bears on whether the court
should dismiss without prejudice and thus allow the defendant
to be reindicted. Defense counsel may have believed that as
time passed and memories dimmed the accused would benefit in
view of the government’s heavy burden of proof. See Bruce,
351 F.2d at 320. Or the defendant’s attorney may have thought
that the chances of a favorable plea bargain would increase as
the prosecutor’s office became occupied with more pressing
business. Or defense counsel may have believed that remaining
silent as the clock ticked away would increase the chances of an
inadvertent violation of the Act and, hence, dismissal of the
indictment. Or the defendant’s attorney may have been
indifferent to the delay, thinking that it would not hurt his
client’s case. These considerations and others go to the last two
of the factors identified in the Act and also to the question
whether the delay damaged the accused’s ability to mount a
defense.1 Barker v. Wingo, from which the Act’s factors appear

1
Here, for example, the decision to delay the trial until February
2006 was made in order to accommodate the schedules of the lawyers
for all parties. Hearing Tr. (10/28/05) at 4-5. At a hearing on October
28, 2005, the court discussed trial dates with the parties. Id. Bryant
opted for a February 2006 trial date over a November 2005 trial date
to prevent him from having to find replacement counsel. Bryant
affirmatively agreed to the delay because it assisted his ability to
mount a defense.
 3

to be derived, recognized as much and so, I believe, should
district courts in deciding on the form of relief for a violation of
the Act. 407 U.S. at 530-33.