IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2007
No. 07-60184 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HORRIS BERNARD GREEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before REAVLEY, SMITH, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Horris Bernard Green appeals his convictions and sentence for charges
arising from his fraudulent procurement of American Red Cross disaster relief,
which he obtained in the wake of Hurricane Katrina. This appeal primarily
raises speedy trial issues, both under the Speedy Trial Act, 18 U.S.C.
§§ 3161–3174, and the speedy trial clause of the Sixth Amendment to the United
States Constitution. For the following reasons, we AFFIRM the judgment of the
district court.
No. 07-60184
I
Not long after Hurricane Katrina, on September 9, 2005, Green applied to
the American Red Cross in Mississippi for disaster assistance, claiming that his
name was John Gross and that he and his family—a wife and three children—
resided in New Orleans at the time of Hurricane Katrina and were rendered
homeless as a result of the storm. In fact, Green was not John Gross, was not
accompanied by any wife or children, and was not residing in New Orleans when
Hurricane Katrina made landfall. As a result of these misrepresentations,
Green received a Red Cross debit card valued at $1,565, with which he later
withdrew $500 from an automated teller machine in Jackson, Mississippi on
September 10, 2005. Later that evening, after obtaining the $500, Green falsely
identified himself as John Gross to a state law enforcement officer while
attempting to reenter the Red Cross hurricane shelter. In doing so, Green
presented the state officer with his Red Cross debit card and a counterfeit Social
Security card in the name of John Gross.
Based on these events, Green was eventually indicted for and pleaded
guilty to two counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count
for the misuse of a Social Security number, in violation of 42 U.S.C.
§ 408(a)(7)(B). Green’s appeal, however, focuses not on these underlying
offenses, but rather on the alleged periods of delay that preceded his federal
indictment on June 21, 2006, and later his guilty plea on December 5, 2006.
After falsely identifying himself to the state officer, Green—reportedly
intoxicated—was arrested when he refused to leave the shelter. Green was
arrested on September 10 or 11, 2005 for state charges of public intoxication,
false pretenses, and violation of probation. After booking, he was placed in the
custody of the Hinds County Detention Center.
After that, the Hinds County Sheriff’s Office contacted the United States
Attorney’s Office for the Southern District of Mississippi regarding Green’s case.
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The Assistant United States Attorney (“AUSA”) who fielded the call requested
that the state authorities “hold off interviewing the suspect until he reviews the
case.” On October 3, 2005, the Social Security Administration opened an
investigation into Green’s case. Several weeks later, on either October 17 or 28,
2005, a Special Agent from the Social Security Administration attempted to
interview Green. Green, however, declined to waive his right to counsel or speak
with the agent. No further attempt was made to contact Green.
On June 21, 2006 Green was indicted on federal charges, and an arrest
warrant was issued. On July 28, 2006, Green was arrested and made his initial
appearance before the magistrate judge. July 28 marked Green’s first time in
federal custody for these offenses. Prior to that date, he had remained
continuously in state custody.
At a detention hearing on August 1, 2006, the United States learned for
the first time that the State of Mississippi had not yet resolved any pending
charges against Green.1 Green confessed detention and waived the hearing.
Trial was set for September 5, 2006. On August 4, 2006, Green filed a motion
to dismiss his indictment for pre-indictment delay. The district court denied
Green’s motion, but the trial was not calendared for September 5, 2006, and no
new trial date was set. On October 30, 2006, the United States filed a Motion
for a Special Trial Setting due to the impending expiration of the speedy trial
clock.
On November 8, 2006, Green filed another motion to dismiss the
indictment under the Speedy Trial Act. On November 27, 2006, the district
court denied Green’s motion to dismiss and set a trial date of December 5, 2006.
The day before trial, Green notified the Court that he intended to plead guilty
1
According to an exhibit introduced at Green’s plea hearing, the State of Mississippi
revoked Green’s parole on September 14, 2006, retroactive to August 2, 2006.
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No. 07-60184
to the indictment. On December 5, 2006, Green pleaded guilty, and on February
23, 2007, he was sentenced.
II
Green contends that his indictment should be dismissed under the Speedy
Trial Act for two reasons. First, Green argues that the Government’s Motion for
a Special Trial Setting did not “result” in any pretrial delay and thus did not toll
the speedy trial clock under 18 U.S.C. § 3161(h)(1)(F), which stops the speedy
trial clock for “delay resulting from any pretrial motion” (emphasis added).
Second, Green argues that his speedy trial rights were violated under 18 U.S.C.
§ 3161(b) because he was not indicted within thirty days from the date of his
arrest by Mississippi State authorities, a date which Green seeks to attribute to
the United States (or “the Government”).
“We review the district court’s factual findings supporting its Speedy Trial
Act ruling for clear error and its legal conclusions de novo.” United States v.
Stephens, 489 F.3d 647, 652 (5th Cir. 2007).
A
The Speedy Trial Act requires that a defendant’s trial begin within seventy
days from the filing of the information or indictment against the defendant, or
from the date of the defendant’s initial appearance. 18 U.S.C. § 3161(c)(1);
Stephens, 489 F.3d at 652; United States v. Johnson, 29 F.3d 940, 942 (5th Cir.
1994). Certain types of delay, however, are excluded from the calculation of this
seventy day period. See 18 U.S.C. § 3161(h). Pursuant to § 3161(h)(1)(F), one
such period of excludable delay is “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. . . .”
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No. 07-60184
Here, the parties agree on the following: If the Government’s Motion for
a Special Trial Setting stopped the speedy trial clock, then Green’s guilty plea
timely occurred within the seventy day period prescribed by the Speedy Trial
Act. However, if that motion did not toll the speedy trial clock, then the speedy
trial clock expired prior to Green’s guilty plea, and the Act was violated.
Naturally, the issue on which the parties disagree is whether the Government’s
Motion for a Special Trial Setting actually tolled the speedy trial clock pursuant
to § 3161(h)(1)(F). Relying on the language of § 3161(h)(1)(F), Green argues that
the motion did not toll the clock because the Government failed to demonstrate
that its motion “result[ed]” in any pretrial delay. We reject this argument.
In Henderson v. United States, the Supreme Court described the tolling of
the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(F) as “automatic.” 476
U.S. 321, 331 (1986). In interpreting and applying Henderson, our sister circuits
that have confronted the issue have determined that the tolling of the speedy
trial clock under § 3161(h)(1)(F) occurs—as Henderson said—automatically and
have not required the Government to prove actual delay. See, e.g., United States
v. Vogl, 374 F.3d 976, 985 (10th Cir. 2004); United States v. Titlbach, 339 F.3d
692, 698 (8th Cir. 2003); United States v. Miles, 290 F.3d 1341, 1350 (11th Cir.
2002); United States v. Salimonu, 182 F.3d 63, 68 (1st Cir. 1999); United States
v. Springer, 51 F.3d 861, 865 (9th Cir. 1995); United States v. Parker, 30 F.3d
542, 548–49 (4th Cir. 1994); United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir.
1993); United States v. Robinson, 887 F.2d 651, 657 (6th Cir. 1989); United
States v. Montoya, 827 F.2d 143, 150–51 (7th Cir. 1987); United States v. Wilson,
835 F.2d 1440, 1443 (D.C. Cir. 1987); United States v. Matsushita, 794 F.2d 46,
50–51 (2d Cir. 1986).2
2
Consistent with these cases, we recently emphasized parenthetically that
§ 3161(h)(1)(F) excludes “delay resulting from any pretrial motion. . . .” Stephens, 489 F.3d at
653 n.9. We also cited parenthetically to a decision of the Ninth Circuit for the proposition that
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No. 07-60184
The Seventh Circuit, after reviewing the legislative history of the Speedy
Trial Act, explained:
From the legislative history two things are clear. One is that
Congress did intend the various classifications of excludable delay
in §§ 3161(h)(1–7) to be invoked automatically upon proof that the
proceedings were pending. The other is that the “delay” referred to
is not of the trial itself, but instead of the final date on which the
trial must commence. In other words, Congress did not seek to
determine the reality of whether or not a particular proceeding
interfered with the commencement of trial; it used the word “delay”
to denote a period of time during which the speedy trial clock would
be stopped and the expiration of the 70-day period thereby
postponed. By this means, Congress sought to structure a method
of calculating time which would be reasonably and practically,
although not necessarily directly, related to the just needs for
pretrial preparation in a particular case. . . .
Congress did not intend to saddle the government with
proving a causal relationship between another proceeding and its
delay in indicting or bringing a defendant to trial each time it seeks
an exclusion under section 3161(h)(1). To hold otherwise would
create an unnecessary burden of proof on the government. The
government need only show the existence of other proceedings
under section 3161(h)(1) for the exclusions automatically to become
effective.
Montoya, 827 F.2d at 151.
Against this weight of authority, Green relies on dicta from this court’s
decision in United States v. Bigler, 810 F.2d 1317 (5th Cir. 1987), to support his
position that the Government must demonstrate that a motion actually caused
pretrial delay before time can be excluded pursuant to § 3161(h)(1)(F). There,
the court opined that “[t]he government offers no reason why Bigler’s Speedy-
Trial-Act motion caused any delay in trial, or, in the language of the statute,
why there was any delay ‘resulting from’ the motion.” Bigler, 810 F.2d at 1321.
“even frivolous motions stop the clock because the Speedy Trial Act ‘does not contain a
requirement that the merits of a motion be assessed before a delay is permitted.’” Id. (quoting
Springer, 51 F.3d at 865).
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However, because the issue was unnecessary to resolve the appeal, the court
expressly “pretermit[ed] deciding that question.” Id. In denying the
Government’s subsequent petition for rehearing, the court again expressly
reserved judgment on the issue of whether the Government was required to
demonstrate that a motion in fact caused any pretrial delay. United States v.
Bigler, 817 F.2d 1139, 1141 (5th Cir. 1987). We now decide that issue.
Consistent with the weight and reasoning of the persuasive authority from
our sister circuits, and the Supreme Court’s decision in Henderson, we hold that
under 18 U.S.C. § 3161(h)(1)(F), any pretrial motion, including a motion to set
a trial date, tolls the speedy trial clock automatically, and the Government is not
required to prove that the motion actually delayed trial.
Applying this rule, we conclude that the Government’s October 30, 2006
Motion for a Special Trial Setting automatically tolled the seventy-day speedy
trial clock during the pendency of the motion.3 As Green concedes, because the
Government’s motion tolled the clock, no speedy trial violation occurred, and we
therefore affirm the district court’s denial of the defendant’s motion to dismiss
the indictment on this basis.
B
Green next argues that the district court erred in denying his motion to
dismiss the indictment for pre-indictment delay under 18 U.S.C. § 3161(b).
3
There is no dispute that if the Government’s motion tolled the speedy trial clock, which
the Court concludes that it did, then the speedy trial clock was tolled for the entire period in
which the motion was pending. In a case such as this, where there was no hearing on the
motion, “[§ 3161(h)(1)(F)] excludes the time needed for a ‘prompt disposition’ of the motion,
which, under [§ 3161(h)(1)(J)], may be no more than thirty days from the date the motion is
taken under advisement.” Stephens, 489 F.3d at 656 (citing Johnson, 29 F.3d at 943). The
district court resolved the Government’s motion on November 27, 2006, well within the thirty-
day window of excludable time from the time the motion was taken under advisement, which
was—at the earliest—November 14, 2006.
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No. 07-60184
Section 3161(b) provides, in relevant part, 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.”
This court has explained that
[t]he Speedy Trial Act does not begin to run when the defendant is
arrested by state authorities on state charges, nor does it begin
when a federal detainer is lodged with state authorities. Instead,
only a federal arrest triggers the start of the time limits set in the
Act. Filing a complaint and detainer are not equivalent to a federal
arrest. Thus, for the time limit of the Act to commence a person
must be held for the purpose of answering to a federal charge.
United States v. Taylor, 814 F.2d 172, 174–75 (5th Cir. 1987) (internal quotation
marks, citations, and alterations omitted); see also United States v. Gomez, 776
F.2d 542, 550 (5th Cir. 1985) (explaining that a prior state arrest, “even if based
on the same operative facts as a subsequent federal accusation,” does not trigger
the provisions of the Speedy Trial Act). “This rule is an outgrowth of the
doctrine of dual sovereignty, which recognizes that ‘the federal government is
not bound by the actions of state authorities and that successive state and
federal prosecutions are constitutionally permissible.’” United States v. Wilson,
657 F.2d 755, 767 (5th Cir. 1981) (quoting United States v. Phillips, 569 F.2d
1315, 1316–17 (5th Cir. 1978)).
Here, relying on a decision from the Fourth Circuit, United States v.
Woolfolk, 399 F.3d 590, 596 (4th Cir. 2005), Green argues that the thirty-day
clock prescribed by § 3161(b) began ticking on the date when the federal
Government either knew or should have known that Green was being held by
state authorities for the purpose of answering federal charges, which Green
argues is any of three specific dates in September or October 2005, around the
time he first arrived in state custody. Using any of Green’s proposed triggering
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No. 07-60184
dates, the thirty-day clock described in § 3161(b) expired well prior to Green’s
June 21, 2006 indictment.
In Woolfolk, the Fourth Circuit addressed the question of whether an
individual being held by state authorities can ever be under “federal arrest” or
in “federal custody” and stated that, “in limited circumstances,” one can be. 399
F.3d at 595–96. The court reasoned that “something other than actual federal
custody and federal arrest” can trigger the Speedy Trial Act, namely, “any
restraint resulting from federal action.” Id. at 596. Therefore, the court stated:
“[W]e believe that a ‘restraint resulting from federal action,’ sufficient to trigger
the time limits of the Speedy Trial Act, occurs when the Government [knew or
should have known] that an individual is held by state authorities solely to
answer federal charges.” Id.
We do not decide whether Woolfolk is correct that there are “limited
circumstances” in which an individual held by state authorities may be deemed
to be in federal custody. On this record, even assuming for the sake of argument
that the standard in Woolfolk applies, the district court correctly concluded that
Green failed to satisfy it. Green relies primarily on two facts in support of his
argument that the Government knew or should have known that he was being
held solely to answer federal charges: The AUSA’s request to state authorities
to defer interviewing Green until the AUSA had reviewed the case and the
initiation of the Social Security Administration investigation into Green’s case.
As the district court found, neither these nor the other facts alleged by Green are
sufficient to bring this case within the parameters of the standard which Green
himself proposes; these facts fail to establish either that (a) Green was being
held solely to answer federal charges or that (b) even if he was, the Government
knew or should have known about it.
Green’s arrest by state authorities on state charges did not trigger the
Speedy Trial Act, or specifically, the thirty-day clock prescribed by § 3161(b).
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Green was indicted by the United States on June 21, 2006 and arrested on July
28, 2006. Because the indictment in this case was filed within thirty days from
the date of the defendant’s arrest—indeed, it was filed prior to the defendant’s
arrest—§ 3161(b) was not violated. The district court therefore properly denied
Green’s motion to dismiss for pre-indictment delay.
III
Green next argues that the pretrial delay in this case violated his rights
under the speedy trial clause of the Sixth Amendment to the United States
Constitution. “When an appellant claims that the district court incorrectly
applied constitutional standards, we review the claim de novo.” United States
v. Shaw, 920 F.2d 1225, 1228 (5th Cir. 1991).
The speedy trial clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy . . . trial.” U.S. CONST. amend. XI. We
have stated that “[i]t will be the unusual case . . . where the time limits under
the Speedy Trial Act have been satisfied but the right to a speedy trial under the
Sixth Amendment has been violated.” United States v. Bieganowski, 313 F.3d
264, 284 (5th Cir. 2002). This case is no exception.
Under the Supreme Court’s decision in Barker v. Wingo, 407 U.S. 514
(1972), we must balance four factors in determining whether the defendant
received a speedy trial within the meaning of the Sixth Amendment. See Knox
v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000). These factors include: (1) the
length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of
his right to a speedy trial; and (4) the prejudice to the defendant. Barker, 407
U.S. at 530. However, as a threshold matter, the defendant must show that the
length of the delay is presumptively prejudicial. Id.; Knox, 224 F.3d at 477.
“Until there is some delay which is presumptively prejudicial, there is no
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No. 07-60184
necessity for inquiry into the other factors that go into the balance.” Barker, 407
U.S. at 530.
This Court has previously held that a delay of ten and one-half
months is not presumptively prejudicial. See United States v.
Maizumi, 526 F.2d 848, 851 (5th Cir. 1976). And while neither
Barker nor the Constitution itself defines when a delay becomes
presumptively unreasonable, we have held that “[a] delay of less
than one year will rarely qualify as ‘presumptively prejudicial’ for
purposes of triggering the Barker inquiry.” Cowart v. Hargett, 16
F.3d 642, 646 (5th Cir. 1994). As we explained, “[a]bsent extreme
prejudice or a showing of willfulness by the prosecution to delay the
trial in order to hamper the defense, a delay of less than one year is
not sufficient to trigger an examination of the Barker factors.” Id.
at 647 (internal citations omitted).
Knox, 224 F.3d at 477.
In this case, Green attempts to establish a presumptively prejudicial delay
based on the period defined from the date of his arrest by the state authorities
on September 11, 2005 to the date of his guilty plea on December 5, 2006, a
period of about one year and three months. However, as with the Speedy Trial
Act, “[a] prior state arrest . . ., even if based upon the same operative facts as a
subsequent federal accusation, does not trigger the sixth amendment right to a
speedy trial.” Gomez, 776 F.2d at 549. With respect to the United States,
Green’s arrest on state charges did not trigger the relevant period of delay for
Sixth Amendment speedy trial purposes.
Rather, the relevant period for the Sixth Amendment analysis begins on
June 21, 2006, the date that Green was indicted by the United States and thus
the date he was “officially accused.” See United States v. MacDonald, 456 U.S.
1, 6 (1982) (noting that “the Speedy Trial Clause of the Sixth Amendment does
not apply to the period before a defendant is indicted, arrested, or otherwise
officially accused” (quoting United States v. Marion, 404 U.S. 307, 313 (1971))).
The delay from Green’s indictment in June 2006 to his guilty plea in December
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2006 was only about six months. Green has not shown extreme prejudice based
on this delay or any willful delay by the Government. Under these
circumstances, Green has failed to show that the six-month delay between his
indictment and guilty plea was presumptively prejudicial. Having failed to
satisfy this threshold requirement for stating a violation of his Sixth
Amendment right to a speedy trial, Green’s claim fails.
IV
Finally, Green asserts generally that he was denied his “Fifth Amendment
right to counsel,” citing Miranda v. Arizona, 384 U.S. 436 (1966). In this
context, “when an accused expresses his desire to speak to police only through
counsel, he is not subject to further interrogation until counsel is made available
to him, unless the accused initiates further communications with the police.”
Guidry v. Dretke, 397 F.3d 306, 328 (5th Cir. 2005) (citing Edwards v. Arizona,
451 U.S. 477 (1981)). Here, the record does not reveal that, after invoking his
right to counsel, Green was subjected to any further federal interrogation. For
this and other reasons, Green’s right to counsel claim fails. Green also asserts
in a single sentence at the end of his opening brief that he was “never afforded
other basic due process rights such as a right to reasonable bail.” He elaborates
no further on this claim, and as such, we deem this claim waived for inadequate
briefing. See, e.g., United States v. Tomblin, 46 F.3d 1369, 1376 n.13 (5th Cir.
1995) (finding waiver where the defendant “makes [an] assertion, but provides
no legal argument in his brief that indicates the basis for his contention.”).
V
For the foregoing reasons, WE AFFIRM the judgment of the district court.
AFFIRMED
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