United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2007 Decided July 1, 2008
No. 06-3099
UNITED STATES OF AMERICA,
APPELLEE
v.
READIE VAN SMITH,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00271-01)
Mary E. Davis, appointed by the court, argued the cause
and filed the briefs for appellant.
Sarah T. Chasson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III, Thomas J.
Tourish, Jr., and Jay I. Bratt, Assistant U.S. Attorneys.
Before: RANDOLPH, ROGERS, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
Dissenting opinion filed by Circuit Judge ROGERS.
GRIFFITH, Circuit Judge: “The Speedy Trial Act requires
that a criminal trial must commence within 70 days of the
latest of a defendant’s indictment, information, or appearance,
barring periods of excludable delay.” Henderson v. United
States, 476 U.S. 321, 326 (1986). More than twenty-one
months passed between Readie Van Smith’s indictment and
trial, and he seeks the dismissal of his indictment on that
ground. The government argues that two pretrial filings and a
superseding indictment trigger periods of excludable delay
that bring Smith’s trial within the required seventy days. For
the reasons set forth below, we conclude that Smith’s trial did
not violate the Speedy Trial Act and affirm the judgment of
the district court.
I.
On June 9, 2004, a federal grand jury returned a six-count
indictment against Readie Van Smith and co-defendant Paul
Rangolan charging them, inter alia, with unlawful possession
of cannabis with intent to distribute, and unlawful possession
of a firearm. Smith’s trial before the district court began
nearly two years later, on March 20, 2006. After three days of
trial, the jury convicted Smith of unlawful possession of a
firearm by a convicted felon and unlawful possession of
cannabis. 18 U.S.C. § 922(g)(1); 21 U.S.C. § 844(a). He was
sentenced to eighty-four months in prison.
Smith appeals the district court’s refusal to dismiss his
indictment on the ground that the delay of his trial violated
the Speedy Trial Act. He made a Speedy Trial Act challenge
before the district court, and filed a timely notice of appeal on
June 26, 2006. We have jurisdiction to hear the case under 28
3
U.S.C. § 1291. We review a Speedy Trial Act challenge “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).
II.
The Speedy Trial Act excludes from its seventy-day limit
certain periods of pretrial delay. See 18 U.S.C. § 3161(h).
Only a few of the Act’s exclusions are relevant to this case.
First, the time it takes the trial court to decide a pretrial
motion does not count toward the seventy-day limit. Id.
§ 3161(h)(1)(F) (excluding “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”). The amount of time properly excluded due to a
pretrial motion depends in part on whether the court holds a
hearing on the motion. If the court holds a hearing, the Act
excludes the period of time between the filing of the motion
and the conclusion of the hearing, whether or not
consideration of the motion caused “actual delay of the trial,”
United States v. Wilson, 835 F.2d 1440, 1443 (D.C. Cir.
1987), and whether or not the amount of delay that occurred
was “reasonable,” Henderson, 476 U.S. at 326–27. As the
Supreme Court has explained, “Congress intended subsection
(F) to exclude from the Speedy Trial Act’s 70-day limitation
all time between the filing of a motion and the conclusion of
the hearing on that motion, whether or not a delay in holding
that hearing is ‘reasonably necessary.’ ” Id. at 330. If, after
the hearing, the court takes the motion “under advisement,”
up to thirty days more may be excluded for delay occasioned
by the court’s consideration of the matter. 18 U.S.C.
§ 3161(h)(1)(J); United States v. Saro, 24 F.3d 283, 292 (D.C.
Cir. 1994).
4
If the court does not hold a hearing for the pretrial
motion, the Act excludes the period of time between the filing
of the motion and “ ‘the day the court receives all the papers it
reasonably expects’ to help it decide the motion.” Saro, 24
F.3d at 292 (quoting Henderson, 476 U.S. at 329). After the
court receives the necessary papers, the motion is considered
“under advisement by the court,” and up to thirty days more
may be excluded while the court considers the matter. 18
U.S.C. § 3161(h)(1)(J); Henderson, 476 U.S. at 328–29; see
also Wilson, 835 F.2d at 1442 (explaining that the Act
excludes “the time between the filing of a motion and the date
it is taken under advisement by the court, plus the time during
which the court holds the motion under advisement (up to 30
days)”).
The Act also excludes from the speedy trial calculation
delay associated with the addition of a co-defendant. 18
U.S.C. § 3161(h)(7) (excluding “[a] reasonable period of
delay when the defendant is joined for trial with a co-
defendant as to whom the time for trial has not run and no
motion for severance has been granted”). The Supreme Court
has stated: “All defendants who are joined for trial generally
fall within the speedy trial computation of the latest co-
defendant. . . . [T]heir 70-day period [is] measured with
respect to his.” Henderson, 476 U.S. at 323 n.2; see also
United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986)
(explaining that the exclusion of time for the addition of a co-
defendant ensures that the government is not forced to choose
between prosecuting defendants separately and violating the
Speedy Trial Act). Accordingly, upon the addition of a new
co-defendant, all defendants’ speedy trial clocks are reset to
day zero. See 5 WAYNE R. LAFAVE ET. AL., CRIMINAL
PROCEDURE § 18.3(b), at 144 n.36 (3d ed. 2007) (“Under [18
U.S.C. § 3161(h)(7)], the speedy trial clock does not begin to
run in a multi-defendant prosecution until the last codefendant
5
makes his initial appearance in court.”). The Act also
excludes delay caused by a co-defendant’s pretrial
proceedings, as “we have understood § 3161(h)(7) to mean
that ‘an exclusion applicable to one defendant applies to all
codefendants.’ ” Saro, 24 F.3d at 292 (quoting United States
v. Edwards, 627 F.2d 460, 461 (D.C. Cir. 1980)).
III.
This appeal turns on the effect of two pretrial filings and
a superseding indictment on the computation of the seventy-
day deadline called for by the Speedy Trial Act. The
government contends that each of these events results in an
exclusion of time from the computation. Smith argues they do
not.
Rule 609 Filing
On July 27, 2004, the government filed a notice of its
intent to use the defendants’ prior convictions to impeach
their testimony if offered at trial. The government styled its
filing a “Motion Regarding Rule 609 Evidence” and contends
that it tolled the speedy trial clock from its filing date through
the day it was heard by the court on the third day of trial.1
Smith argues that the Rule 609 filing is better viewed as an
evidentiary notice that does not qualify as a pretrial motion
under the Speedy Trial Act and has no effect on the speedy
trial clock.2 We agree with Smith and conclude that the Rule
609 filing did not toll the speedy trial clock.
1
Federal Rule of Evidence 609 sets forth the circumstances in
which evidence of past convictions may be used to attack the
character for truthfulness of a witness. See FED. R. EVID. 609.
2
Smith made this argument only in his reply brief, but it came in
response to the government’s brief and so is properly raised. See
Env’t Def. Fund v. EPA, 210 F.3d 396, 401 n.8 (D.C. Cir. 2000)
6
In United States v. Harris, we recently held that a filing
like the one made by the government in our case, a “Notice of
Intent To Impeach Defendant with His Prior Convictions
Pursuant to Fed.R.Evid. 609,” was not a pretrial motion for
purposes of the Speedy Trial Act, but was instead the type of
notice described in Federal Rule of Criminal Procedure
12(b)(4).3 491 F.3d 440, 443–44 (D.C. Cir. 2007); see also
United States v. Bryant, No. 06-3129, slip op. at 15 (D.C. Cir.
Apr. 25, 2008) (explaining that in Harris “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’ ”)
(alteration in original). In Harris, the defendant responded to
the notice by requesting the court bar the government’s use at
trial of his prior convictions. It was only then that the issue
was joined for the court’s consideration, and we held that the
defendant’s response was a motion that tolled the speedy trial
clock. 491 F.3d at 443–44. But in the present case, neither
Smith nor co-defendant Rangolan responded in any way to
the government’s Rule 609 filing. Furthermore, the district
court did not treat the filing as a motion. Rather, the court
ignored the filing for almost twenty months, addressing it
only at trial when it became relevant because of the
government’s planned cross-examination of Smith and after
(stating that petitioners’ argument “was properly raised in its reply
brief in response” to a statement made in the EPA’s brief); Bennett
v. Tucker, 827 F.2d 63, 70 n.2 (7th Cir. 1987) (“[W]here an
appellee raises a [sic] argument not addressed by the appellant in its
opening brief, the appellant may reply.”).
3
Federal Rule of Criminal Procedure 12(b)(4) states: “At the
arraignment or as soon afterward as practicable, the government
may notify the defendant of its intent to use specified evidence at
trial in order to afford the defendant an opportunity to object before
trial under Rule 12(b)(3)(C).”
7
asking to be reminded by the government as to whether there
were any Rule 609 issues pending. The Rule 609 filing thus
fits our description of notices in Harris, and therefore was not
a pretrial motion that tolled the speedy trial clock.
Our conclusion that the government’s evidentiary filing
was not a pretrial motion, in addition to being compelled by
Harris, is animated by our understanding of the purpose of
the Speedy Trial Act. The Act excludes time for the
consideration of “any pretrial motion,” see United States v.
Mentz, 840 F.2d 315, 327 n.25 (6th Cir. 1988), but does not
define the term “motion.” In determining whether a filing is a
motion, we are mindful of the Supreme Court’s statement in
Henderson that “[t]he provisions of the [Speedy Trial] Act are
designed to exclude all time that is consumed in placing the
trial court in a position to dispose of a motion.” 476 U.S. at
331. Where, as here, the government submits an evidentiary
notice that does not require the attention of the trial court
before trial, it serves no purpose of the Act for us to treat the
filing as a motion and toll the clock just because the
government styled its filing as a “motion.” In fact, allowing
the government to toll the speedy trial clock by styling an
evidentiary notice as a “motion” would compromise the
purpose of the Speedy Trial Act. As the First Circuit has
explained regarding pretrial submissions of evidence, to treat
such filings, which are “commonly carried over until trial,” as
pretrial motions that toll the speedy trial clock would allow
the government to circumvent the Speedy Trial Act by
submitting its filings “at an early stage and then failing to
press for prompt disposition.” United States v. Rush, 738 F.2d
497, 505–06 (1st Cir. 1984). Surely, “[t]his was not the intent
of Congress under [18 U.S.C. § 3161](h)(1)(F), or (h)(1)
generally.” Id. (citations omitted). Likewise we do not think it
consonant with the purpose of the Speedy Trial Act to toll the
clock for the filing of an unopposed evidentiary notice where
8
there is no evidence that the court was placed in a position to
dispose of the filing. See Henderson, 476 U.S. at 331.
Accordingly, we hold that the government’s Rule 609 filing
was not a pretrial motion and had no effect on the speedy trial
clock.
Effect of Adding Co-Defendant Cassandra Trent
On October 29, 2004, more than four months after Smith
was indicted, a superseding indictment added a new co-
defendant, Cassandra Trent, and charged her with removal of
property to prevent seizure. 18 U.S.C. § 2232(a). The
government argues that Smith’s speedy trial clock should be
“reset so that it reflects the speedy trial clock of the newly
added codefendant.” United States v. Lightfoot, 483 F.3d 876,
885–86 (8th Cir. 2007). Smith points to the text of the Speedy
Trial Act, which states only that a “reasonable period of
delay” shall be excluded, 18 U.S.C. § 3161(h)(7), and argues
that resetting Smith’s clock in this case would be
unreasonable.
The Supreme Court has stated that “[a]ll defendants who
are joined for trial generally fall within the speedy trial
computation of the latest codefendant,” Henderson, 476 U.S.
at 323 n.2, and we see no reason to depart from that practice
here, see also United States v. Casas, 425 F.3d 23, 31 (1st Cir.
2005) (“The Supreme Court has interpreted [18 U.S.C.
§ 3161(h)(7)] to mean that the clock does not, in effect, begin
to run until the date of the most recent defendant’s initial
appearance before the court.”). Smith tries to show that where
a superseding indictment does not change the charges against
the defendant it should have no effect on the speedy trial
clock, but the cases Smith cites either did not involve the
addition of a new co-defendant, United States v. Marshall,
935 F.2d 1298, 1302 (D.C. Cir. 1991), or have been expressly
9
disavowed, United States v. Santiago-Becerril, 130 F.3d 11,
19 (1st Cir. 1997) (cited by Smith for the proposition that the
addition of a new co-defendant does not reset the original
defendant’s speedy trial clock where the superseding
indictment “was based on the original charges”); abrogated
by United States v. Barnes, 251 F.3d 251, 258 (1st Cir. 2001)
(explaining that, “[r]ead literally,” the language from
Santiago-Becerril “would contradict the Supreme Court’s
decision in Henderson (and, thus, would not command our
allegiance)”). Smith also argues that we should apply criteria
that other circuits have used to determine whether the
excludable delay occasioned by the addition of a new co-
defendant is reasonable. But the cases he cites concerned
delay attendant to motions made by a co-defendant, not to the
delay excluded by resetting the speedy trial clock to reflect
the addition of a new defendant. See United States v.
Stephens, 489 F.3d 647, 653–55 (5th Cir. 2007); United States
v. Vogl, 374 F.3d 976, 983–84 (10th Cir. 2004).
The Speedy Trial Act excludes delay attributable to
resetting a defendant’s speedy trial clock upon the addition of
a co-defendant so that the government will not be forced to
choose between prosecuting defendants separately and
violating the Speedy Trial Act. See, e.g., United States v.
Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986). In view of this
important policy, and the Supreme Court’s straightforward
application of this provision in Henderson, 476 U.S. at 323
n.2, we hold that the addition of co-defendant Trent on
October 29, 2004 restarted Smith’s speedy trial clock.
Rule 404(b) Filing
On January 13, 2006, the government filed a “Motion In
Limine to Admit Certain Evidence Against Defendant Readie
10
Van Smith” under Federal Rule of Evidence 404(b).4 In his
opening brief, Smith calls the Rule 404(b) filing a motion,
which he acknowledges would toll the speedy trial clock, but,
seeking to limit the length of any tolling period, asserts that
the filing should “arguably” toll the clock for only thirty days
under 18 U.S.C. § 3161(h)(1)(J) “since it did not require a
hearing.” Smith Opening Br. at 7 n.13.5
The government responds by arguing to the contrary that
the district court in fact held a hearing on the Rule 404(b)
issue. Although no transcript or docket entry indicates that
there was such a hearing or even when the district court
agreed to allow use of the Rule 404(b) evidence at trial, the
government argues nevertheless that the “logical assumption,
in the absence of any other notation, is that the [Rule 404(b)]
motion was heard at the pre-trial conference that was held on
March 13, 2006.” Gov. Br. at 21. The Rule 404(b) filing, so
the argument goes, tolled the speedy trial clock until that date.
See 18 U.S.C. § 3161(h)(1)(F). In the alternative, the
4
Federal Rule of Evidence 404(b) allows for admission of
“[e]vidence of [a defendant’s] other crimes, wrongs, or acts . . . as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.”
5
The dissent seizes upon Smith’s use of the word “arguably” and
characterizes his argument as a “conditional statement,” suggesting
that Smith was acknowledging that it was an open question whether
the Rule 404(b) filing was a motion. See post at 1, 5, 6, 7. We
cannot see how Smith’s argument can reasonably be viewed this
way. Although Smith’s argument was conditional with regard to
whether the Rule 404(b) filing should toll the clock for thirty days
or longer, it was not conditional with regard to whether the filing
was a motion that tolled the clock for at least thirty days. We
understand Smith’s use of the word “arguably” as nothing more
than an acknowledgment that the record left room to debate the
length of the tolling, but not the need for at least some tolling.
11
government argues that “even if the Court accepts [Smith]’s
position that the Government’s Rule 404(b) motion tolled the
speedy-trial clock only [for thirty days] until February 12,
2006, [Smith] nonetheless was brought to trial within 70
days.” Gov. Br. at 22 (citation omitted).
In his reply brief, Smith takes a new tack and abandons
his argument that the Rule 404(b) filing was a motion that
tolled the speedy trial clock. He argues instead that the Rule
404(b) filing “should be treated no differently than the Rule
609 pleading and that no time should be excluded.” Smith
Reply Br. at 10. Our rules do not allow this use of a reply
brief. “We require petitioners and appellants to raise all of
their arguments in the opening brief,” Corson & Gruman Co.
v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990), and have
“repeatedly held that an argument first made in a reply brief
ordinarily comes too late for our consideration,”6 Students
6
The dissent argues that we should relax our rule in this instance
because we have “even addressed issues first presented by criminal
defendants during oral argument,” post at 3–4, but the dissent can
point to no cases in which we have addressed a late argument of the
type Smith made in this case. The three cases upon which the
dissent relies are each distinguishable in important ways. In United
States v. Godines, we had decided a significant case affecting the
parties’ arguments after briefs were submitted but before oral
argument. 433 F.3d 68, 70 (D.C. Cir. 2006). United States v. Barry
involved “only a different characterization of the evidence . . .
discussed in appellant’s briefs,” not an entirely new argument. 938
F.2d 1327, 1340 n.16 (D.C. Cir. 1991). And in United States v.
Eniola, we considered an argument first raised at oral argument
only because a co-appellant had already raised and briefed the
issue. 893 F.2d 383, 385 (D.C. Cir. 1990). Moreover, the dissent
points to United States v. Johnson despite the fact that in that case
we explicitly stated that the defendant’s late argument was waived
and considered its merits only insofar as to explain that “[e]ven if
12
Against Genocide v. Dep’t of State, 257 F.3d 828, 835 (D.C.
Cir. 2001); see also FED. R. APP. P. 28(c) (“The appellant may
file a brief in reply to the appellee’s brief.”); Hussein v.
Oshkosh Motor Truck Co., 816 F.2d 348, 360 (7th Cir. 1987)
(Posner, J., concurring) (“A reply brief is for replying, not for
raising a new ground . . . .”).
To be sure, an appellant may use his reply brief to
respond to a contention made by the appellee. See Envtl. Def.
Fund v. EPA, 210 F.3d 396, 401 n.8 (D.C. Cir. 2000). But that
is not what happened here. Smith did not respond to the
government’s argument that the court held a hearing on the
Rule 404(b) filing. Rather, he used his reply brief to change
course altogether and make a new and contradictory
argument. After using his opening brief to characterize the
Rule 404(b) filing as a motion that tolled the speedy trial
clock, thus framing the issue as a question of whether the
district court held a hearing to consider the merits of the
filing, Smith argued in his reply brief that the filing was not a
motion at all. Our rules do not allow such bait-and-switch
tactics. See Asociacion de Compositores v. Copyright Royalty
Tribunal, 809 F.2d 926, 928 (D.C. Cir. 1987) (“We will not
consider a novel contention first advanced in a reply brief.”);
Meredith v. Navistar Int’l Transp. Corp., 935 F.2d 124, 127–
28 (7th Cir. 1991) (“Of course, an appellant cannot wait until
the reply brief to present a new and different argument to this
court . . . .”); cf. Zedner v. United States, 547 U.S. 489,
504 (2006) (“[W]here a party assumes a certain position in a
legal proceeding, and succeeds in maintaining that position,
he may not thereafter, simply because his interests have
changed, assume a contrary position . . . .”) (internal quotation
marks omitted; alteration in original).
the point were not waived, it would not prevail.” 519 F.3d 478, 486
(D.C. Cir. 2008).
13
It may well be, as the dissent asserts, that what we said
about the Rule 609 filing applies to the Rule 404(b) filing, so
that “the Rule 404(b) filing is properly understood as a notice
and not a motion that tolls the speedy trial clock.” Post at 8.
But this court has not yet decided whether a Rule 404(b)
filing is a motion that tolls the speedy trial clock or a notice
that does not, and Smith’s argument that the filing is only a
notice, in addition to being late, was wholly conclusory. See
Smith Reply Br. at 10 (asserting, without explanation, that the
Rule 404(b) filing “should be treated no differently than the
Rule 609 pleading and that no time should be excluded”). To
make new law in these circumstances strikes us as “entail[ing]
the risk of an improvident or ill-advised opinion.” McBride v.
Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1211 (D.C. Cir.
1986). We may, of course, through our own research remedy
the deficiency in the parties’ briefing and come to a reasoned
conclusion regarding whether Rule 404(b) and Rule 609
filings are sufficiently similar such that Rule 404(b) filings
should be treated as notices that do not toll the speedy trial
clock, “but not without altering the character of our
institution.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983) (Scalia, J.). After all, “appellate courts do not sit as
self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued
by the parties before them.” Id.
We therefore do not consider Smith’s late and new
contention that the Rule 404(b) filing was, after all, not a
motion. Furthermore, we need not consider the merits of
Smith’s initial argument that the Rule 404(b) filing tolled the
clock for only thirty days. As we explain in Part IV, tolling
the clock for thirty days after the date of the Rule 404(b)
filing still brings Smith’s trial within seventy days of his
indictment, resulting in no violation of the Speedy Trial Act.
14
IV.
Having determined that the Rule 609 filing had no effect
on the speedy trial clock, that the superseding indictment
adding co-defendant Trent restarted the clock, and that the
Rule 404(b) filing stopped the clock for at least thirty days,
we now calculate the total number of non-excludable days
that passed between Smith’s indictment and trial. Smith was
indicted on June 9, 2004. The parties agree that, due in part to
a motion to set bond filed by Smith on August 10, 2004, less
than seventy non-excludable days had passed when co-
defendant Rangolan filed motions to suppress evidence on
October 6, 2004. Smith Opening Br. at 7; Gov. Br. 18–19.
Rangolan’s motions were taken under advisement by the trial
court on November 8, 2005 and tolled Smith’s clock through
December 8, 2005. See United States v. Edwards, 627 F.2d
460, 461 (D.C. Cir. 1980) (“[A]n exclusion applicable to one
defendant applies to all codefendants.”); Saro, 24 F.3d at 292
(“Once the hearing has been held . . . the statute also calls for
the exclusion of a period ‘not to exceed thirty days’ during
which the court actually holds the motion under advisement.”)
(citing 18 U.S.C. § 3161(h)(1)(J)). We note that Smith
includes in his brief an assertion that the delay associated with
his co-defendant’s motions to suppress violated the district
court’s local rules, and for that reason “the entire seven month
delay in hearing the motions to suppress should not be
counted as excludable time pursuant to Subsection F.” Smith
Opening Br. at 13 (referring to 18 U.S.C. § 3161(h)(1)(F)).
The Supreme Court made clear in Henderson, however, that
as far as the Speedy Trial Act is concerned, all time between
the filing of and the hearing on a motion is excluded,
“whether that hearing was prompt or not.” 476 U.S. at 326.
Accordingly, Smith’s claim with regard to the district court’s
rules has no effect on the speedy trial calculation.
15
At this point, on December 8, 2005, Smith’s speedy trial
clock is at day zero; it has been reset by the superseding
indictment adding co-defendant Trent on October 29, 2004,
and it has yet to begin running because co-defendant
Rangolan’s October 6, 2004 motions, which tolled the clock
until December 8, 2005, were pending at the time Smith’s
clock was restarted. From December 9, 2005 until January 13,
2006, thirty-five days passed. As argued by Smith, the
government’s Rule 404(b) filing then tolled the clock from
January 13, 2006 through February 12, 2006. See Smith
Opening Br. at 7 n.13. Finally, excluding March 13, 2006, the
day on which the district court held a pretrial conference, see
18 U.S.C. § 3161(h)(1) (excluding “[a]ny period of delay
resulting from other proceedings concerning the defendant”);
United States v. Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983)
(explaining that “Congress articulated its intent that the ‘other
proceedings’ language be read broadly”), only thirty-five days
passed between February 13, 2006 and March 20, 2006 — the
first day of trial. This calculation includes the first day of trial.
In Harris, we explained that “a logical consequence of not
counting the date of indictment toward the seventy-day total
is that we must count the date of trial.” 491 F.3d at 443 n.1.
Here, we do not count the date of indictment because Smith’s
speedy trial clock was reset upon the addition of co-defendant
Trent, and we do not count the date Trent was added because
co-defendant Rangolan’s suppression motions were pending
at that time. Our inquiry is whether Smith’s trial began
“within seventy days” of his indictment. 18 U.S.C.
§ 3161(c)(1) (emphasis added). The first non-excludable day,
December 9, 2006, was a full day — unlike the day of
indictment that was not counted in Harris — so we count
both it and the first day of trial.
16
Adding together the thirty-five days that passed before
the Rule 404(b) filing and the thirty-five non-excludable days
that passed between February 13, 2006 and March 20, 2006,
Smith’s clock reached only day seventy, an amount consistent
with the Speedy Trial Act’s requirement. 18 U.S.C.
§ 3161(c)(1) (“[T]he trial of a defendant . . . shall commence
within seventy days [of] the . . . indictment.”) (emphasis
added).
***
For the foregoing reasons, Smith’s trial did not violate
the Speedy Trial Act. The judgment of the district court is
therefore
Affirmed.
ROGERS, Circuit Judge, dissenting: The outcome of this
appeal turns on whether a “Motion in Limine to Admit Certain
Evidence” pursuant to FED. R. EVID. 404(b) filed by the
government extends the period of time within which the Speedy
Trial Act, 18 U.S.C. §§ 3161 et seq., requires a criminal
defendant’s trial to begin. The district court denied Smith’s
speedy trial motions without explanation, leaving him to guess
about what arguments the government would make on appeal to
support the conclusion that the trial timely commenced. The
government first presented its argument that its Rule 404(b)
filing is a tolling motion in its appellate brief. Smith addressed
this new argument in his reply brief, and the court today adopts
his reasoning in holding that the government’s notice of its
intent to offer evidence under FED. R. EVID. 609, also styled as
a motion, did not toll the speedy trial clock. Nonetheless, the
court holds that Smith has forfeited the Rule 404(b) issue
because his argument was first raised in his reply brief and is
inconsistent with a conditional, conclusory footnote in his initial
brief. Op. at 11. This court has the discretion, however, to
notice forfeited issues, and the purposes for applying forfeiture
are absent here: there would be no prejudice to the government,
which briefed the Rule 404(b) issue and presented its views
during oral argument (and claims no prejudice), and the court is
not at particular risk of rendering an ill-informed decision as it
has heard from each party. In these circumstances, and because
this is a criminal case where the error is controlled by the court’s
analysis of the Rule 609 filing and outcome determinative, the
court should exercise its discretion to address Smith’s argument.
Therefore, I respectfully dissent.
Smith filed a motion to dismiss the indictment pursuant to
the Speedy Trial Act on July 31, 2005, and orally renewed his
motion on February 17, 2006. The government did not file a
written opposition to Smith’s motion, and its opposition of June
6, 2005 to a co-defendant’s speedy trial motion necessarily did
not address its January 13, 2006 Rule 404(b) filing. Neither did
2
the government respond to Smith’s oral motion. While Smith
cannot be deemed to have abandoned the Rule 404(b) filing
issue in the district court, the court invokes the forfeiture
doctrine whereby, pursuant to FED. R. APP. P. 28(a)(4), the court
may decline to consider an argument first raised in a reply brief,
Op. at 11 (citing Students Against Genocide v. Dep’t of State,
257 F.3d 828, 835 (D.C. Cir. 2001); Corson & Gruman Co. v.
NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990)), and posits that
Smith’s footnote in his initial brief constituted an impermissible
“bait and switch,” Op. at 11.
The forfeiture doctrine has a long and honorable history.
See United States v. Olano, 507 U.S. 725, 731-32 (1993) (citing
Yakus v. United States, 321 U.S. 414, 444 (1944)). As explained
by this court, it “ordinarily,” see Students Against Genocide,
257 F.3d at 835, applies to avoid unfair prejudice to the other
side and the risk that the court might offer an “improvident or
ill-advised opinion on the legal issues tendered,” McBride v.
Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1211 (D.C. Cir.
1986); see also United States v. Eniola, 893 F.2d 383, 385 (D.C.
Cir. 1990). But the forfeiture doctrine is neither rigid nor
unyielding. The Supreme Court has stated in the related context
of forfeiture pursuant to FED. R. CRIM. P. 52(b) that “where the
life, or . . . liberty, of the defendant is at stake, the courts of the
United States, in the exercise of a sound discretion, may notice
[forfeited error].” Olano, 507 U.S. at 735-36 (internal quotation
marks omitted and alteration in original). Where a criminal
defendant fails altogether to raise an issue in the district court,
the federal rules “leave[] the decision to correct the forfeited
error within the sound discretion of the court of appeals,” id. at
732; cf. Hormel v. Helvering, 312 U.S. 552, 557 (1941), which
may even consider the issue where the defendant has
additionally failed to identify it on appeal, see Silber v. United
States, 370 U.S. 717, 718 (1962) (per curiam); see also United
States v. Baugham, 449 F.3d 167, 170 (D.C. Cir. 2006) (citing
3
Silber, 370 U.S. at 718). The Supreme Court has instructed that
such discretion “should be employed ‘‘in those circumstances in
which a miscarriage of justice would otherwise result,’’” Olano,
507 U.S. at 736 (quoting United States v. Young, 470 U.S. 1, 15
(1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14
(1982))), or where the “fairness, integrity or public reputation of
judicial proceedings” is substantially affected, id. (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)). In
accordance with this principle, Congress, in establishing the
court’s appellate authority, has provided for further proceedings
“as may be just under the circumstances.” 28 U.S.C. § 2106; see
Olano. 507 U.S. at 735.
The court’s reliance on civil cases, Op. at 11, ignores the
fact that the court has very rarely applied forfeiture to avoid a
meritorious argument raised by a criminal defendant in a reply
brief. Usually, where the court has concluded that a criminal
defendant raised an argument too late, it has noted that the
argument also lacks merit.1 Indeed, the court has even
addressed issues first presented by criminal defendants during
oral argument. See United States v. Godines, 433 F.3d 68, 70
(D.C. Cir. 2006); United States v. Barry, 938 F.2d 1327, 1340
n.16 (D.C. Cir. 1991); Eniola, 893 F.2d at 385. For instance, in
Johnson, while the court stated that the defendant had waived a
challenge to the adequacy of the jury verdict form by failing to
raise it until oral argument, the court nonetheless analyzed the
1
See United States v. Johnson, 519 F.3d 478, 486 (D.C. Cir.
2008); United States v. Adefehinti, 510 F.3d 319, 326-27 (D.C. Cir.
2007); United States v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir.
2007); United States v. Gurr, 417 F.3d 144, 152 n.3 (D.C. Cir. 2006);
United States v. Johnson, 216 F.3d 1162, 1167-68 (D.C. Cir. 2000);
United States v. Caicedo-Llano, 960 F.2d 158, 164 n.4 (D.C. Cir.
1992); United States v. Halderman, 559 F.2d 31, 78 n. 113 (D.C. Cir.
1976).
4
issue on its merits, concluding that “it would not prevail”
because the indictment and jury instructions properly explained
the charged offense. 519 F.3d at 486-87. In the rare instance
where the court has declined to consider the merits of an
argument altogether, the criminal defendant has failed both to
raise an issue in the district court and to meet his burden to show
plain-error prejudice in his initial brief, as in United States v.
Wilson, 240 F.3d 39, 44 (D.C. Cir. 2001), where the late claim
of error also involved jury instructions.2 Nonetheless, even in
such a situation the court retains authority to notice sua sponte
issues altogether ignored by the parties. See Baugham, 449 F.3d
at 170 (citing Silber, 370 U.S. at 718). Although this discretion
is exercised with restraint because of the particular risk for
judicial decisionmaking where neither party has presented its
analysis,3 the court has rejected an approach that error “not
raised or briefed” is necessarily beyond the court’s consideration
where substantial rights are involved, United States v. Rhodes,
886 F.2d 375, 379 (D.C. Cir. 1989).
The Rule 404(b) issue warrants this court’s consideration
for three reasons:
First, the briefs of both sides demonstrate that a rigid and
formalistic application of forfeiture makes no sense in a speedy
trial appeal where the district court record is barren. Because all
2
In Wilson, the court remanded the ineffective assistance of
counsel claim to the district court and vacated the sentence in light of
an erroneous enhancement. 240 F.3d at 51.
3
See United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir.
2008); United States v. West, 392 F.3d 450, 459 (D.C. Cir. 2004);
United States v. Taylor, 339 F.3d 973, 977 (D.C. Cir. 2003); United
States v. Mathis, 216 F.3d 18, 28 n.14 (D.C. Cir. 2000); United States
v. Watson, 171 F.3d 695, 699 n.2 (D.C. Cir. 1999); United States v.
Clarke, 24 F.3d 257, 262 (D.C. Cir. 1994).
5
manner of motions, continuances, hearings, or other events may
toll the mandatory period for bringing a defendant to trial, some
give and take between the defendant and the government is
inevitable. This is what happened here. In preparing his initial
brief, Smith was confronted with two options: Either he could
argue generally that too much time had passed and risk running
afoul of the requirement that parties set forth their arguments in
their initial briefs, see Carducci, 14 F.2d at 177; see also FED. R.
CIV. P. 28(a)(9), or he could attempt preemptively to negate
arguments that the government might present for the first time
on brief. Smith chose the latter course and, in explaining the
history of the case in his initial brief, referred to the
government’s Rule 404(b) “Motion in Limine” and included a
conditional, conclusory footnote intimating, prior to the
government ever arguing that its motion tolled the speedy trial
clock, that it might be a motion that tolled the clock for no more
than thirty days.4 The government’s brief, in turn, asks the court
to agree with a key assumption underlying its argument that the
Rule 404(b) filing was a motion that “clearly required a
hearing.” Appellee’s Br. at 21. Conceding that no transcript or
docket entry indicates when the district court considered the
Rule 404(b) filing, the government maintains that “[t]he logical
assumption, in the absence of any other notation, is that the
motion was heard at the pre-trial conference that was held on
March 13, 2006.” Id.5 Particularly because the court often
4
The footnote stated: “Appellant asserts that arguably the
motion in limine [to admit Rule 404(b) evidence] should also be
subject to the 30 day restriction under Subsection J [18 U.S.C.
§ 3161(h)(1)(J)] since it did not require a hearing.” Appellant’s Br. 7
n.13; see; Op. at 10.
5
The government’s conjecture appears to be the basis for the
court’s statement that the district court treated the Rule 404(b) and
Rule 609 filings differently. Op. at 14. However, nothing other than
the Government’s exercise in logic supports the position that the
6
disregards arguments presented only in footnotes, see, e.g.,
Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C.
Cir. 1999) (en banc), transforming a defendant’s preemptive
conditional statement based on the government’s own styling of
its filing as a “motion” into a concrete position on an argument
that the government has yet to present is far fetched; the absence
of any claim of prejudice by the government evidences the
meaninglessness of applying a bait-and-switch rationale in these
circumstances.
Second, the concerns underlying the forfeiture doctrine
about inadequately argued issues are nonexistent. Both parties
briefed whether an evidentiary notice, styled by the government
as a “motion,” see Op. at 5, tolled the speedy trial clock.
Specifically, each party’s brief addressed the effect of the
government’s Rule 609 “motion” on the speedy trial clock. See
Appellee’s Br. at 12-17, Reply Br. at 2-5. In its brief the
government also maintained that the Rule 404(b) filing tolled
the speedy trial clock until the pre-trial conference on March 13,
2006. Appellee’s Br. at 21. In his reply brief, Smith responded
that the Rule 404(b) “‘offer of proof’ should be treated no
differently than the Rule 609 pleading and that no time should
be excluded.” Reply Br. at 10.6 Additionally, the effect of the
district court addressed the Rule 404(b) motion at the off-the-record
pretrial conference.
6
The court in part bases its decision to ignore the merits of
the Rule 404(b) issue on Smith’s “conclusory” discussion of it. Op.
at 13. However, given the functional similarity of the Rule 404(b) and
Rule 609 filings, each of which identified evidence that the
government wanted to introduce at trial, Smith’s express incorporation
by reference is sufficient. To the extent the court also expresses
concern about making new law, citing McBride v. Merrell Dow &
Pharmaceuticals, Inc., 800 F.2d 1208 (D.C. Cir. 1983), a civil case,
Op. at 13, it ignores both its analysis of the Rule 609 filing and the
7
Rule 404(b) filing on the speedy trial clock was discussed
extensively with the court during oral argument. See Oral Arg.
Tape at 1:00-1:11; 3:00-3:50, 13:24-14:25; 16:40-17:20 (Nov.
19, 2007). These circumstances allay any concern that passing
judgment on the Rule 404(b) issue risks an “improvident or ill-
advised opinion,” McBride, 800 F.2d at 1211, for lack of
argument by one side.
Third, the government, despite the substantial discussion of
the Rule 404(b) issue during oral argument, never claimed that
it was prejudiced by the “new tack” in Smith’s reply brief, Op.
at 11. To the contrary, the government argued that its Rule 609
and 404(b) filings presented similar issues, see Oral Arg. Tape
at 17:10, and it recognized the significance of the Rule 404(b)
tolling issue in stating that “the 404(b) issue would have to be
resolved [by the court],” id. at 16:47-16:53. Having argued the
merits of Smith’s “new tack” and identified no prejudice
resulting from Smith’s conditional footnote, the government has
minimized any concern that it would be unfair to it for the court
to address the merits of the Rule 404(b) filing.
The Supreme Court’s admonition to courts of appeals to
exercise their discretion where a defendant’s liberty is
implicated and in order to avoid serious unfairness, Olano, 507
U.S. at 736, applies to these circumstances. The concerns
animating the forfeiture doctrine are nonexistent because both
parties have been heard and there is no claim of prejudice. The
error in treating the Rule 404(b) filing as a motion tolling the
speedy trial clock is controlled by the court’s analysis of the
Rule 609 filing, Op. at 5-8, and is dispositive of Smith’s
statutory claim in this criminal appeal. Therefore, binding
Smith to his footnote that adopted the government’s styling of
court’s en banc decision in United States v. Crowder, 141 F.3d 1202
(D.C. Cir. 1989), discussed infra.
8
its Rule 404(b) filing as a “motion” and declining under a “bait
and switch” rationale, Op. at 11, to consider his reply to the
government’s new and expansive argument on brief that its Rule
404(b) “motion” tolled the speedy trial clock gives insufficient
weight to the important questions of liberty and the fairness of
judicial proceedings involved in this case.
Because it behooves the court to exercise its discretion to
consider the merits of Smith’s argument about the government’s
Rule 404(b) filing, I would hold, based on the court’s analysis
of the Rule 609 filing in view of our precedent and the purpose
of the Speedy Trial Act, Op. at 5-8, that the Rule 404(b) filing
is properly understood as a notice and not a motion that tolls the
speedy trial clock. The procedural question is long settled in
this circuit. In United States v. Crowder, 141 F.3d 1202 (D.C.
Cir. 1998), the en banc court explained the procedure of
admitting evidence pursuant to Rule 404(b), stating that “[t]he
government must identify which of the matters listed . . . it is
intending to prove . . . [and] [i]f the defense objects, the court
must then satisfy itself that the evidence is relevant to that
matter,” id. at 1209 (emphasis added). Neither Smith nor his co-
defendants raised a pretrial objection to the Rule 404(b) filing
and no hearing was required on the government’s notice of its
intent to offer evidence at trial; hence, its “Motion in Limine”
did not toll the speedy trial clock. Because the rights that
Congress secured in the Speedy Trial Act do not hinge on labels
applied by the parties to their filings, see Op. at 7-8; Santoyo,
890 F.2d 726, 727 (5th Cir. 1989); cf. United States v. Noah, 130
F.3d 490, 495 (1st Cir. 1997), Smith’s trial, which did not
commence until the hundredth day, was unlawfully delayed.
Accordingly, I would remand the case to the district court to
decide whether dismissal of the indictment should be with or
without prejudice, United States v. Sanders, 485 F.3d 654, 660
(D.C. Cir. 2007).