United States v. Walker

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 3, 2008 Decided November 14, 2008

No. 06-3143

UNITED STATES OF AMERICA,
APPELLEE

v.

TIMOTHY MCCRAE WALKER,
ALSO KNOWN AS TIMOTHY SCORPIO WALKER,
ALSO KNOWN AS TIMOTHY MCCREE WALKER,
ALSO KNOWN AS TIMOTHY MCCREE JOHNSON,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 05cr00139-02)

Robert S. Becker, appointed by the court, argued the cause
for the appellant.
Stephanie Brooker, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney, and Roy W. McLeese, III and Thomas J.
Tourish, Jr., Assistant United States Attorneys, were on brief.
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: Timothy
McCrae Walker appeals his convictions on one count of
violating 26 U.S.C. § 5861(d) (possession of unregistered
firearm) and one count of violating 18 U.S.C. § 922(g)(1) (felon
in possession of firearm). Walker argues that (1) he was not
afforded a speedy trial under the Speedy Trial Act, 18 U.S.C.
§ 3161; (2) the jury was improperly instructed on the elements
of constructive possession; (3) both convictions were based on
insufficient evidence; and (4) his jury venire did not represent a
“fair cross section of the community.” Because our holding in
United States v. Bryant, 523 F.3d 349 (D.C. Cir. 2008), requires
the reversal of the section 5861(d) conviction, we remand the
section 5861(d) count for dismissal with or without prejudice at
the district court’s option. Id. at 361. We reject Walker’s
Speedy Trial Act challenge to the section 922(g)(1) conviction
and affirm that conviction as against the other challenges as
well.
I.
At about 3:00 a.m. on February 9, 2005, Officer Charles
Monk, an off-duty Metropolitan Police Department (MPD)
patrolman working as a part-time security guard, observed the
driver of a black Land Rover sport utility vehicle (SUV)
illegally park in a bus zone in the 800 block of 5th Street, N.W.
Bryant, 523 F.3d at 351. Monk saw two young black males exit
the vehicle. They were both wearing ski masks and, although
the weather was “unusually mild” that night, both wore “heavy
black winter coats.” Id. Monk watched as the driver (later
identified as Walker) reached into the SUV, retrieved a bulky
item and slid it into his coat. Id. The driver walked, “kind of
limping,” across the street and motioned to the passenger to join
him. Id. at 352; see also Transcript of Trial at 50, United States
v. Walker, Cr. No. 05-139 (D.D.C. Mar. 21, 2006) (Tr.). They
walked up to a charter bus parked in the 500 block of H Street,
N.W. but the bus driver would not let them on the bus. Bryant,
 3

523 F.3d at 352. The two then walked back towards the SUV,
passed it and continued into a nearby alley where they stopped
and looked around. Id.; Tr. at 53-54. They then returned to the
SUV and Walker took the item out of his coat, put it back into
the vehicle and the two drove away. Bryant, 523 F.3d at 352.
Not more than five minutes later, however, they returned and
this time Walker parked the SUV legally. Id. They exited the
vehicle, Walker again retrieved the item and put it inside his
coat, pulled a ski mask down over his face (as did his passenger,
later identified as William Bryant), and both he and Bryant
started walking across the street. Id.
Given this suspicious activity, Monk called for back-up to
investigate the two men. Id. Both men were “looking around
nervously.” Id. When a marked FBI vehicle drove by them, the
two men lifted their ski masks. Id. Then two marked MPD
vehicles arrived at the scene, one driven by Officer James
Burgess. Id. Burgess's partner, Officer Steven Greene, testified
that once the two men saw the MPD patrol car, they began to
walk away from it and, on turning the corner, began to walk at
a faster than normal pace. Id. Walker walked stiff legged, with
a limp, as if trying to conceal the item inside his coat. Id.
Burgess and Greene pulled their patrol car up behind the two
men and got out to approach them. Id. Walker began running
away and Greene followed him. Id. When Walker was finally
cornered, he was ordered to lie down and, as he was lowering
himself to the ground, Greene saw him drop what he was
carrying under his coat into an exterior window basin. Id.
Another MPD officer later retrieved a sawed-off Stevens .12-
gauge shotgun loaded with one .12-gauge shotgun shell from the
basin. Id. at 352-53. An MPD officer, examining the SUV,
looked in the passenger window and saw a sawed-off shotgun on
the passenger side floorboard partially covered by some objects.
Id.; Tr. at 210. The shotgun was later identified as a sawed-off
Harrington & Richardson .20-gauge shotgun. Bryant, 523 F.3d
at 352-53. The Harrington & Richardson shotgun had been
 4

modified such that it was required to be registered in the
National Firearms Registration and Transfer Record but was not
so registered. Id. at 353.
Both men were arrested at the scene and appeared before a
magistrate judge the next day, February 10, 2005. On that day,
the government filed a complaint against Walker and Bryant
charging each with a violation of 26 U.S.C. § 5861(d) for
possessing both sawed-off shotguns without having registered
the weapons. On March 16, 2005, pursuant to Federal Rule of
Criminal Procedure 48(a),1 the government moved to dismiss the
complaint without prejudice. The district court granted the
motion but the record does not reveal the reason therefor. On
April 21, 2005, the grand jury indicted Walker and Bryant on
one count of unlawful possession of two unregistered firearms
in violation of 26 U.S.C. § 5861(d).2 Walker was arraigned on
June 10, 2005. On September 1, 2005, Walker moved to sever
his case from Bryant’s, which motion was denied on October 7,
2005.
On February 16, 2006, the government filed a superseding
indictment charging both Walker and Bryant with one count of
possessing an unregistered firearm (the Harrington &
Richardson shotgun) in violation of section 5861(d) and one
count of felon in possession (of both shotguns) in violation of
section 922(g)(1). Arraignment on the superseding indictment
occurred on February 17, 2006, at which time Walker moved to

1
Fed. R. Crim. P. 48(a) provides in part: “The government may,
with leave of court, dismiss an indictment, information, or
complaint . . . .”
2
As we noted in Bryant, “[t]his indictment was defective, because
it specified that [Bryant] and Walker had possessed both shotguns
without properly registering them; however, only the Harrington and
Richardson shotgun had to be registered . . . .” 523 F.3d at 353.
 5

dismiss it, alleging the violation of his right to a speedy trial.
The district court denied the motion on March 14, 2006.
Following the trial, which commenced on March 20, 2006,
Walker was convicted on both counts and, on August 29, 2006,
was sentenced to 60 months’ imprisonment. Walker now
appeals.
II.
A. Speedy Trial Act
We first address Walker’s claim that both his
section 5861(d) and section 922(g)(1) convictions should be
reversed because over 70 non-excludable days elapsed between
the original indictment and his trial in violation of the Speedy
Trial Act, 18 U.S.C. § 3161 (STA).3 We review a STA
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) (citations omitted). The parties agree that our
decision in United States v. Bryant, 523 F.3d 349 (D.C. Cir.
2008), controls Walker’s section 5861(d) conviction. In that
case, we reversed Bryant’s section 5861(d) conviction because
“both parties agree that at least 32 days had accrued on the
speedy trial clock as of August 8, [2005] and it is clear that at
least 39 additional, non-excludable days accrued between
November 27, 2005 and February 16, 2006.” Id. at 361.

3
The Speedy Trial Act provides in part:
In 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).
 6

Because “[a]ll defendants who are joined for trial generally fall
within the speedy trial computation of the latest codefendant,”
Henderson v. United States, 476 U.S. 321, 323 n.2 (1986),
Walker’s section 5861(d) conviction must also be reversed.
Unlike Bryant, however, Walker challenges the section
922(g)(1) count on the ground that his conviction thereon
violates the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution.4 He argues that the section
922(g)(1) count in the superseding indictment is an “offense
required to be joined” with the section 5861(d) count charged in
the original indictment pursuant to 18 U.S.C. § 3161(h)(5),
which excludes from speedy trial calculation “any period of
delay from the date the [original] charge was dismissed to the
date the time limitation would commence to run as to the
subsequent charge had there been no previous charge” so long
as “the information or indictment is dismissed upon motion [by
the government] and thereafter a charge is filed against the
defendant for the same offense, or any offense required to be
joined with that offense.” Walker claims the section 922(g)(1)
count was required to be joined with the section 5861(d) count
because “the Double Jeopardy Clause . . . would have precluded
the government from trying him serially for violations of
[section] 5861(d) and [section] 922(g).” Brief of Appellant at
23 (Br. of Appellant).
The United States Supreme Court has held regarding the
Double Jeopardy Clause that if “the same act or transaction
constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact
which the other does not.” Blockburger v. United States, 284

4
The Double Jeopardy Clause bars any person from being
“subject for the same offence to be twice put in jeopardy of life or
limb.”
 7

U.S. 299, 304 (1932), cited in United States v. Weathers, 186
F.3d 948, 951 (D.C. Cir. 1999). A violation of section 922(g)(1)
requires the government to prove that a defendant was
“convicted in any court [of] a crime punishable by imprisonment
for a term exceeding one year” and that the defendant possessed
(or shipped or transported) “in or affecting commerce, any
firearm or ammunition.” 18 U.S.C. § 922(g)(1). To violate
section 5861(d) the defendant must “receive or possess a firearm
which is not registered to him in the National Firearms
Registration and Transfer Record.” 26 U.S.C. § 5861(d).
Plainly, the government must prove different facts to establish
each crime. Section 5861(d) requires that the firearm be
unregistered while section 922(g)(1) does not; section 922(g)(1)
requires that the defendant be a felon and section 5861(d) does
not. Accordingly, the section 922(g)(1) count was not an
“offense required to be joined” with the section 5861(d) count
under 18 U.S.C. § 3161(h)(5) and a new speedy trial clock
began for the section 922(g)(1) charge on February 16, 2006, the
date of the superseding indictment. See United States v. Alford,
142 F.3d 825, 829 (5th Cir. 1998) (new speedy-trial clock
“‘begins for new offenses charged in the superseding indictment
[that the double jeopardy clause would not require the
government to join with the original charges], when the
indictment retains some of the original charges’” (quoting
United States v. Gonzalez, 897 F.2d 1312, 1316 (5th Cir. 1990)))
(alteration in original); United States v. Lattany, 982 F.2d 866,
872 n.7 (3d Cir. 1992) (“If the subsequent [indictment] charges
a new offense that did not have to be joined with the original
charges, then the subsequent [indictment] commences a new,
independent speedy trial period.”).
Walker also argues that his section 922(g)(1) conviction
should be reversed because the STA barred the filing of the
charge via a superseding indictment on February 16, 2006.
Specifically, Walker argues that “if the 70-day speedy trial clock
expired as to the § 5861(d) count before [the government] filed
 8

the superseding indictment adding the § 922(g) count, the
§ 922(g) count was not saved from dismissal because it was
filed more than 30 days after [Walker’s] arrest.” Reply Br. of
Appellant at 7. Walker is correct that the speedy trial clock
expired as to the section 5861(d) count before the government
filed the superseding indictment. In Bryant, we held that even
if the speedy trial clock began as late as June 11, 2005–almost
six weeks later than Walker alleges it should have begun–over
70 days had elapsed by February 16, 2006. Bryant, 523 F.3d at
357-58, 361. But the expiration of the speedy trial clock before
February 16, 2006 does not mean that the section 922(g)(1)
count of the superseding indictment should have been dismissed.
18 U.S.C. § 3161(b) provides that “[a]ny information or
indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on which
such individual was arrested or served with a summons in
connection with such charges.” If no indictment is filed within
this time period, 18 U.S.C. § 3162(a)(1) provides that “such
charge against that individual . . . shall be dismissed or
otherwise dropped.” A superseding indictment filed more than
thirty days after arrest, however, does not violate section
3161(b) so long as the original indictment was filed within the
required thirty-day time frame. See United States v. Hemmings,
258 F.3d 587, 591-92 (7th Cir. 2001) (listing cases). In that
case, the Seventh Circuit held that a superseding indictment filed
after the thirty-day time period specified in section 3161(b)
elapsed did not violate the STA because a timely indictment had
originally been filed within the thirty-day period and thus the
case was not one “in which no indictment was filed within the
thirty-day period.” Id. at 592 (emphasis in original). Likewise,
in United States v. Mosquera, 95 F.3d 1012, 1013 (11th Cir.
1996), the Eleventh Circuit held that a superseding indictment
filed on March 23, 1995 did not violate section 3161(b) when
the original indictment was filed on November 3, 1994, the trial
on the original indictment (resulting in a hung jury) was held on
 9

March 16, 1995, and the superseding indictment alleged new
counts against the defendant. Id. at 1013-14. The court
reasoned that the STA is not a “statute of limitations” and does
not require that an individual under arrest be indicted within
thirty days on “every crime known to the government.” Id. at
1013.
Although here, unlike in Hemmings, no indictment was filed
within 30 days of Walker’s February 9, 2005 arrest, Walker did
not challenge the original indictment as untimely in the district
court and therefore “we review the district court’s decision not
to dismiss (sua sponte) on [this ground] for plain error only.”
United States v. Taylor, 497 F.3d 673, 676 (D.C. Cir. 2007).
Under that standard, “we will correct a district court’s error only
if (1) there is in fact an error to correct; (2) the error is ‘plain’;
(3) it ‘affects substantial rights’; and (4) it ‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’”
Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67
(1997)). Walker was arrested on February 9, 2005 and appeared
before the magistrate judge the next day at which time the
government filed the complaint against them both. See Fed. R.
Crim. P. 5(b). The government moved to dismiss the complaint
on March 17, 2005, which motion the district court granted
without prejudice. The original indictment, filed April 21, 2005,
was therefore untimely under 18 U.S.C. § 3161(b) because it
was filed over 30 days from the date of arrest.
In United States v. Bittle, 699 F.2d 1201, 1205 (D.C. Cir.
1983), we held that “after the dismissal of a complaint, the Act’s
time limits run anew from the date of the filing of the
subsequent complaint or indictment.” In that case, defendant
Bittle was arrested on December 10, 1981 and charged with
violating 18 U.S.C. § 495 (forging and uttering a check) by
complaint the following day. Id. at 1202. On January 22, 1982,
the complaint was dismissed but on January 28, 1982, an
“original indictment” was returned charging Bittle with two
 10

violations of section 495 and, additionally, one violation of 18
U.S.C. § 1708 (possession of stolen mail matter). Id. Bittle
moved to dismiss the indictment under the STA, which motion
the court denied. Id. Interpreting 18 U.S.C. § 3161(d)(1),5 we
upheld the conviction, concluding that even though the
indictment was filed more than thirty days after the arrest, it was
timely under section 3161(b) because the complaint should have
been dismissed without prejudice and, under section 3161(d)(1),
the thirty-day period described in section 3161(b) began to run
anew from the date of the indictment. Id. at 1204, 1208. The
chronology here is similar (the district court also dismissed the
complaint without prejudice) and, consequently, the district
court did not commit plain error in failing to dismiss Walker’s

5
18 U.S.C. § 3161(d)(1) provides:
If any indictment or information is dismissed upon motion
of the defendant, or any charge contained in a complaint
filed against an individual is dismissed or otherwise
dropped, and thereafter a complaint is filed against such
defendant or individual charging him with the same offense
or an offense based on the same conduct or arising from the
same criminal episode, or an information or indictment is
filed charging such defendant with the same offense or an
offense based on the same conduct or arising from the same
criminal episode, the provisions of subsections (b) and (c)
of this section shall be applicable with respect to such
subsequent complaint, indictment, or information, as the
case may be.
Subsection (b) requires “[a]ny information or indictment charging
an individual with the commission of an offense” to be filed within
thirty days of the date of arrest or the date the defendant was served
with a summons. Id. § 3161(b). Subsection (c) requires the trial to
commence within seventy days from either the date of filing and
making public the information or indictment or “from the date the
defendant has appeared before a judicial officer . . . , whichever date
last occurs.” Id. § 3161(c)(1).
 11

original indictment sua sponte on this ground. As in Bittle,
section 3161(b)’s thirty-day clock began anew as of the date of
the original indictment. The superseding indictment likewise
did not violate section 3161(b). Because the STA is not “a
statute of limitations,” the fact that the speedy trial clock had run
on the original indictment does not make the superseding
indictment charging a different offense untimely under the STA.
B. Sufficiency of Evidence
We next address Walker’s argument that there was
insufficient evidence for a reasonable jury to find that he
possessed the Harrington & Richardson shotgun located in the
SUV.6 In reviewing for sufficiency of the evidence, the court’s
“inquiry is limited to the question of whether ‘any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” United States v. Dingle, 114 F.3d
307, 310 (D.C. Cir. 1997) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). The court “views the evidence in the light
most favorable to the government, drawing all reasonable
inferences in its favor.” Id.
It is undisputed that both guns were transported in or
affected interstate commerce and that Walker had been
convicted of a felony. Thus, the government need only show
that Walker knowingly possessed the Harrington & Richardson

6
Although Walker argued that his section 5861(d) conviction
should also be reversed based on insufficient evidence, Br. of
Appellant at 23-32, that conviction, as already noted, is vacated per
our Bryant holding.
 12

shotgun to sustain his section 922(g)(1) conviction as to that
gun.7
“Criminal possession of a firearm may be either actual or
constructive.” United States v. Alexander, 331 F.3d 116, 127
(D.C. Cir. 2003). To prove constructive possession, the
government must show that Walker “knew of, and was in a
position to exercise dominion and control over, the contraband,
either personally or through others.” Bryant, 523 F.3d at 354-
55 (citations and internal quotation marks omitted) (emphasis in
original). Proximity to a weapon, coupled with some other
factor such as “connection with a gun, proof of motive, a gesture
implying control, evasive conduct, or a statement indicating
involvement in an enterprise” may suffice to show dominion and
control over a weapon. Alexander, 331 F.3d at 127 (quoting
United States v. Moore, 104 F.3d 377, 381 (D.C. Cir. 1997)).
We have already determined that Bryant possessed both the
Harrington & Richardson shotgun and the Stevens .12-gauge
shotgun. Bryant, 523 F.3d at 356. In reaching this conclusion,
we noted “[Bryant’s] proximity to both guns, coupled with his
suspicious attire, his initial evasive conduct towards the police
officers, and the evidence that [he] was acting in concert with

7
Although there was plainly sufficient evidence to support
Walker’s actual possession of the Stevens .12-gauge shotgun
recovered from the window basin, we review the sufficiency of the
evidence regarding the Harrington & Richardson shotgun because, at
sentencing, possession of the latter increased the base offense level
inasmuch as it had been modified to require registration. See U.S.
Sentencing Guidelines Manual § 2K2.1(a)(3), (4) (2007); Reply Br. of
Appellant at 9 (noting that district court applied base offense level of
22–subsequently reduced two levels for acceptance of
responsibility–but, if this Court determined there was insufficient
evidence to support Walker’s possession of Harrington & Richardson
shotgun, base offense level would be reduced to 20).
 13

[Walker,] who was actually carrying one of the weapons on his
person.” Id. at 356.
Likewise, there was sufficient evidence to show that Walker
too was in “close proximity” to, and exercised dominion and
control over, the Harrington & Richardson shotgun. Although
the weapon was located on the passenger’s side floorboard of
the SUV, Walker, the driver, was in close proximity to it.
Moreover, as the driver, Walker “is held to a higher level of
accountability for [the vehicle’s] contents.” United States v.
Gibbs, 904 F.2d 52, 57 (D.C. Cir. 1990). Indeed, Walker had
control over the SUV at all times during the incident (as shown
by his driving and parking the vehicle). When coupled with the
fact that there was ample evidence that Walker and Bryant were
working in concert, see Bryant, 523 F.3d at 356, a rational juror
could find that Walker constructively possessed the Harrington
& Richardson shotgun.
C. Walker’s Remaining Arguments
Bryant disposes of Walker’s remaining arguments that (1)
the district court erred in instructing the jury on the element of
“control” in the context of constructive possession, and (2) his
jury venire was not representative of the community in violation
of the Jury Selection and Service Act, 28 U.S.C. § 1861. In
Bryant, we held that the district court’s supplemental jury charge
in which it reread the original jury instruction and also recited
language from three of this Court’s opinions discussing
“control” did not confuse the jury. Id. at 357. Walker raises the
same argument and, similarly, it fails.
In Bryant, we held that Bryant failed to show a violation of
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” under the Jury Selection and
Service Act, 28 U.S.C. § 1861. Bryant, 523 F.3d at 361-62. We
reached this conclusion after finding that Bryant had failed to
 14

prove that the underrepresentation of blacks in the venire was
due to a “‘systematic exclusion of the group in the jury selection
process,’” id. at 362 (quoting Duren v. Missouri, 439 U.S. 357,
364 (1979)), because both of the cases Bryant relied on
“concerned an alleged underrepresentation of whites, whereas
this case involves an alleged underrepresentation of blacks,” and
Bryant relied on “two cases decided more than 10 years ago, in
combination with [his] own single venire.” Id. Walker argues
that “[viewing] this case with [the cases relied on in Bryant] it
is clear that the procedure for empaneling venires in the District
Court is seriously flawed [because the] failure to produce
venires representing a ‘fair cross section of the community’ is
not isolated to a few cases and is not the result of case-specific
factors.” Br. of Appellant at 37. We rejected this argument in
Bryant. 523 F.3d at 362.
For the foregoing reasons, we affirm Walker’s section
922(g)(1) conviction. We remand Walker’s section 5861(d)
conviction for the district court to “dismiss Count One of the
superseding indictment after determining whether the dismissal
should occur with or without prejudice.” Id.
So ordered.