United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1190
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Joseph Michael Rector, *
*
Appellant. *
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Submitted: November 16, 2009
Filed: March 16, 2010
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Joseph Michael Rector was charged in a six-count indictment with possessing,
distributing, and receiving child pornography, in violation of 18 U.S.C. § 2252. Prior
to trial, Rector filed a motion to dismiss the indictment, arguing that his right to a
speedy trial had been violated. The district court1 denied the motion. Thereafter,
Rector submitted a written waiver of his right to a jury trial. Following a bench trial,
the district court convicted Rector on all six counts of the indictment. Rector appeals,
arguing that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161, by
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
failing to bring him to trial within 70 days of his arraignment after counting the
properly excluded time. We affirm.
I. Background
On February 8, 2008, Rector was charged by criminal complaint with
possessing and distributing child pornography, in violation of 18 U.S.C. §§ 2252(a)(2)
and (a)(4)(B). He was arrested on February 9, 2008, and appeared with retained
counsel Jeff Watson before the magistrate judge on February 11, 2008. Rector waived
a probable cause hearing and requested a detention hearing, which the magistrate
judge conducted on February 15, 2008. The magistrate judge issued an order of
detention pending trial at the conclusion of the hearing.
On March 5, 2008, the grand jury charged Rector in a six-count indictment with
(1) one count of possessing an image of child pornography mailed, shipped or
transported in interstate and foreign commerce by computer, in violation of 18 U.S.C.
§§ 2252(a)(4) and (b)(2); (2) one count of distributing an image of child pornography
mailed, shipped, or transported in interstate and foreign commerce by computer, in
violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1); and (3) four counts of receiving an
image of child pornography mailed, shipped, or transported in interstate and foreign
commerce by computer, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Rector
appeared with Watson for arraignment on March 14, 2008, and Rector pleaded not
guilty. The case was scheduled for jury trial on April 21, 2008.
The Speedy Trial Act, 18 U.S.C. § 3161(c)(1), provides that a trial shall
"commence within seventy days from the filing date (and making public) of the
. . . indictment, or from the date the defendant has appeared before a judicial officer
of the court in which such charge is pending, whichever date last occurs." Rector's
arraignment on March 14, 2008, started the 70-day speedy trial clock.
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On April 10, 2008, Rector filed a motion to continue the jury trial scheduled for
April 21, 2008. Rector's motion sought additional time for a forensic expert to
examine the computer containing the contraband images charged in the indictment.
The government did not oppose the motion. The district court continued the jury trial
to May 27, 2008. The court excluded April 21 to May 27, 2008, from the speedy trial
calculation after finding that the ends of justice permitted exclusion pursuant to 18
U.S.C. §§ 3161(h)(8)(A) and (B)(iv).
Prior to the May 27, 2008 trial date, the government learned and disclosed to
Rector's counsel that the government had discovered evidence that Rector had
committed criminal conduct in the Western District of Oklahoma. Based on that
evidence, Rector potentially faced charges there similar to the ones in Arkansas. In
light of the enhanced penalty provision for those previously convicted of violating 18
U.S.C. §§ 2251 and 2252, Rector, through his counsel, informed the government that
he wished to resolve all potential criminal charges in one negotiated plea settlement.
Rector's counsel made an oral motion to the district court, unopposed by the
government, asking the district court to postpone the May 27 trial so that charges in
the Western District of Oklahoma could be transferred to the Western District of
Arkansas for consolidation in one prosecution, pursuant to Federal Rule of Criminal
Procedure 20. The district court granted Rector's motion and rescheduled the trial for
June 30, 2008. The district court's order, entered May 22, 2008, stated that the time
from May 27 to June 30, 2008, was excluded pursuant to 18 U.S.C. § 3161(h)(1)(G).
On May 23, 2008, an information and consent to transfer of case for plea and sentence
from the Western District of Oklahoma was entered as case number 5:08-CR-50056
in the Western District of Arkansas. The one-count indictment charged Rector with
producing child pornography, in violation of 18 U.S.C. § 2251.
On June 26, 2008, the district court was notified that the parties had reached a
negotiated plea and that the parties would submit a written plea agreement to the
district court. The district court cancelled the jury trial scheduled for June 30, 2008,
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and set a change-of-plea hearing for July 23, 2008. The district court received the
written plea agreement on July 3, 2008. The written plea agreement called for the
dismissal of the indictment in the Western District of Arkansas in exchange for Rector
pleading guilty to the transferred Western-District-of-Oklahoma information.
At the change of plea hearing on July 23, 2008, Rector informed the district
court that he wanted to terminate Watson as his counsel and hire Thomas Barton
Smith. Rector told the district court that, although he had signed the written plea
agreement, "I don't think I should have signed it, Your Honor." Rector did not enter
a guilty plea. The district court inquired as to whether Smith, who was present in the
courtroom on July 23, was admitted to practice in the Western District of Arkansas.
Smith informed the court that he had not yet applied for admission to practice in the
district but intended to do so. Smith told the district court that he had not talked to
Rector and appeared in court that day only because "I received a phone call last night
asking could I be here, and I am." Because Smith was not yet admitted to practice in
the Western District of Arkansas, the district court stated that it was "hesitant to show
[Smith] as attorney of record until [he] was so qualified, so I'll simply rule from the
bench that Mr. Watson may be relieved." The district court directed Smith to gain
admission within ten days. The district court asked the parties to be available for a
telephone conference "within the next few days so I can see what course this thing is
going to take." Additionally, the district court made a finding that the time lost in light
of Rector's termination of Watson and replacement with Smith—an attorney not yet
admitted to practice in the district—should be excluded for speedy trial purposes.
On August 4, 2008, the district court conducted a telephone conference and
learned that Smith was still not yet admitted to practice in the district. That same day,
the district court entered an order to continue the trial to August 25, 2008, and
excluded from speedy trial calculation the time from June 26 to August 25, 2008,
pursuant to 18 U.S.C. §§ 3161(h)(8)(A) and (B)(iv).
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On August 12, 2008, Smith entered his appearance as Rector's attorney of
record. Six days later, Rector filed a motion to dismiss the indictment, arguing that his
right to a speedy trial had been violated. The government opposed the motion. The
district court entered an order denying Rector's motion to dismiss. In the order, the
district court set forth the chronology of Rector's case and excludable time attributable
to each period of delay. Rector's actions caused delays through his (1) initial request
for additional time to prepare for trial; (2) request for delay to permit the transfer of
the Western-District-of-Oklahoma charge to the Western District of Arkansas; and (3)
termination of Watson as counsel and substitution of Smith as retained counsel.
Thereafter, Rector, through Smith, negotiated a written plea agreement. Smith
notified the district court that the parties had reached a plea agreement. At the change-
of-plea hearing held on August 25, 2008, Rector indicated to the district court that he
did not want to go forward with the plea agreement and asked the court's permission
to discharge Smith as his counsel. In response to Rector's request, the district court
permitted Rector to fire Smith but required Smith to remain as standby counsel. The
district court scheduled the jury trial for August 27, 2008.
On August 27, 2008—the day that trial was scheduled to commence—Rector
submitted a written waiver of his right to a jury trial. The government called seven
witnesses and introduced 72 exhibits. Rector offered no evidence. The district court
convicted Rector on all six counts of the indictment.
On January 9, 2009, a sentencing hearing was held at which the district court,
applying the advisory Guidelines, found Rector's total offense level to be 51. Pursuant
to the statutorily authorized maximum sentence, the Guidelines range was 1320
months' imprisonment—240 months on each of Counts 2 through 6 and 120 months
on Count 1. After considering the factors set forth in 18 U.S.C. § 3553(a), the district
court sentenced Rector to 1320 months' imprisonment.
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II. Discussion
On appeal, Rector argues that the district court violated the Speedy Trial Act,
18 U.S.C. § 3161, by failing to bring him to trial within 70 days of his arraignment
after counting the properly excluded time.
In response, the government argues that the district court properly calculated
the days between arraignment on March 14, 2008, and Rector's trial on August 27,
2008, and determined that Rector was tried within 70 days as required by the Speedy
Trial Act. The government notes that the district court made specific findings that
Rector caused delays occurring between the arraignment and trial. As a result, it
maintains that the district court properly excluded all of the delays in its speedy trial
calculation.
The Speedy Trial Act provides, in relevant part, that
[i]n any case in which a plea of not guilty is entered, the trial of a
defendant charged in an information or indictment with the commission
of an offense shall commence within seventy days from the filing date
(and making public) of the information or indictment, or from the date
the defendant has appeared before a judicial officer of the court in which
such charge is pending, whichever date last occurs.
18 U.S.C. § 3161(c)(1). If a defendant is not brought to trial within this time period,
upon the defendant's motion, the district court must dismiss the information or
indictment. Id. § 3162(a)(2).
But the Speedy Trial Act outlines "periods of delay" that "shall be excluded
. . . in computing the time within which the trial of any such offense must commence
. . . ." Id. § 3161(h). Thus, we must determine whether the time periods that the district
court excluded from Rector's speedy trial calculation qualify as "periods of delay."
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Rector first contests2 the exclusion of time between July 1 and July 23, 2008.
On July 3, 2008, the parties furnished the district court with the written plea
agreement, reflecting that Rector had waived the indictment and agreed to plead guilty
to the information. A change of plea hearing was scheduled for July 23, 2008.
The district court found such time excludable pursuant to § 3161(h)(1)(G). That
section provides that for the exclusion of a period of time attributable to "[a]ny period
of delay resulting from other proceedings concerning the defendant, including
. . . delay resulting from consideration by the court of a proposed plea agreement to
be entered into by the defendant and the attorney for the Government . . . ." 18 U.S.C.
§ 3161(h)(1)(G).
Rector does not dispute that from July 3 to July 23, the court was "considering"
the proposed plea agreement; instead, he argues that when the court was informed on
June 26, 2008, that the parties had reached a negotiated plea and that a written plea
agreement would be submitted to the district court, the court should have scheduled
the change of plea hearing for June 30, 2008 —the date the trial was scheduled to
begin—instead of scheduling it for July 23, 2008. Rector asserts that if the court had
set the plea date for the date previously set for the jury trial—June 30—the court
would have learned that he wanted to withdraw his consent to the proposed plea
2
As the government notes in its brief, Rector is not contesting the first period
of delay excludable for speedy trial purposes pursuant to 18 U.S.C. §§ 3161(h)(7)(A)
and (B)(iv)—the trial continuance from April 21, 2008 (the original trial date) to May
27, 2008 (the new trial date) based on Rector's request for additional time to prepare
for trial.
And, Rector is apparently not contesting the second period of delay for speedy
trial purposes pursuant to § 3161(h)(1)(E)—the continuance from May 27, 2008 (the
trial date) to June 30, 2008 (the new trial date) based on Rector's request to allow the
transfer of the case from the Western District of Oklahoma.
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agreement. This argument is nonsensical, considering that the district court did not
even receive the written plea agreement until July 3, 2008. There is no evidence that
the government and Rector had a signed, written plea agreement on June 26, 2008;
instead, they merely informed the court that they would be submitting such an
agreement in the future. Additionally, even if there had been a written plea agreement
on that date, there is no evidence that four days would have been a sufficient amount
of time for the court to review it. Therefore, we hold that the district court properly
excluded the time between July 1 and July 23, 2008, from the speedy trial calculation
pursuant to § 3161(h)(1)(G).
Rector also contests the exclusion of time between July 23 and August 25,
2008, because his new counsel—Smith—was present and ready to take over the case
and did not request any additional time to prepare. According to Rector, the fact that
Smith was not a member of the Western District of Arkansas's bar was an insufficient
ground to exclude the time. Rector maintains that the district court should have set a
trial date and only have excluded the time later if Smith failed to gain admittance to
the Western District of Arkansas by the trial date.
On July 23, 2008, Rector appeared before the district court for the change-of-
plea hearing, but he advised the court that he wished to terminate his retained
attorney—Watson—and retain different counsel—Smith. He also stated that he did
not think he should have signed the plea agreement. The district court permitted
Watson to withdraw but directed Smith—who was not then admitted to practice in the
Western District of Arkansas—to immediately petition for admission. The court noted
that the time lapse due to Rector's desire to change attorneys should be excluded under
the Speedy Trial Act. The court asked both Watson and Smith if they had any
objections. Both agreed that such time was excludable. On August 4, 2008, Smith
advised the court that he had received a certificate of good standing from the Arkansas
Supreme Court and planned to immediately petition for admission to the Western
District of Arkansas. Smith indicated that his client believed that the Speedy Trial Act
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had been violated, but Smith said that his research did not support his client's position.
The court then rescheduled the trial for August 25, 2008, finding that the time between
June 26 and August 25, 2008, was excludable under §§ 3161(h)(7)(A) and (B)(iv).3
The court specifically made an ends-of-justice finding, stating:
The Court finds that the ends of justice [are] served by rescheduling the
trial date due to the defendant's decision not to proceed with the plea
agreement, by allowing the defendant to retain new counsel, and by
allowing counsel to seek admission to this court and prepare for trial
outweigh the best interest of the public and the defendant in a speedy
trial. See 18 U.S.C. §§ 3161(h)([7])(A) & (B)(iv).
Section 3161(h)(7)(A) permits the district court to properly exclude a period of
delay resulting from a continuance granted by the district court on its own motion
where the court granted the continuance "on the basis of his findings that the ends of
justice served by taking such action outweigh the best interest of the public and the
defendant in a speedy trial" and set forth, orally or in writing, "its reasons for finding
that the ends of justice served by the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy trial." In determining whether to
grant a continuance under subsection (h)(7)(A), the court must consider
[w]hether the failure to grant such a continuance in a case which, taken
as a whole, is not so unusual or so complex as to fall within clause (ii),
would deny the defendant reasonable time to obtain counsel, would
unreasonably deny the defendant or the Government continuity of
counsel, or would deny counsel for the defendant or the attorney for the
Government the reasonable time necessary for effective preparation,
taking into account the exercise of due diligence.
18 U.S.C. § 3161(h)(7)(B)(iv).
3
The district court correctly cited the 2008 version of § 3161. Under the 2008
version, § 3161(h)(7)(A) was formerly § 3161(h)(8)(A).
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Here, the court stated in its order setting the trial date that the continuance
would serve the ends of justice by allowing (1) the defendant to retain new counsel
and (2) counsel to seek admission to the district and prepare for trial. See id.; United
States v. Stackhouse, 183 F.3d 900, 901 (8th Cir. 1999) (stating that district court must
set forth in the record its reasons for finding that the ends of justice would be served);
United States v. Yerkes, 345 F.3d 558, 562 (8th Cir. 2003) (holding that the time
period for the continuance of the trial was required to be excluded from the speedy
trial calculation where district court specifically determined that the continuance was
based upon the need to replace defense counsel due to a conflict of interest and to
allow reasonable time for new counsel to prepare). Thus, we find that the district court
properly excluded the time between July 23 and August 25, 2008, from the speedy
trial calculation pursuant to §§ 3161(h)(1)(7)(A) and (B)(iv).
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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