UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-5076
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs.
DAVID NORMAN BLACKWELL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
(January 6, 1994)
Before KING and JOLLY, Circuit Judges, PARKER,* District Judge.
Parker, District Judge:
Defendant-Appellant David Norman Blackwell (Blackwell) was
convicted of impersonating a federal officer, in violation of 18
U.S.C. § 913. He has presented us with four issues on appeal:
(1) whether the trial court erred in failing to grant
the defendant-appellant's motion to dismiss for violation
of the Speedy Trial Act (the Act);
(2) whether the defendant-appellant was denied effective
assistance of counsel;
(3) whether the evidence presented at trial was
insufficient on which to find the defendant-appellant
guilty beyond a reasonable doubt of the crime of
impersonating a federal officer;
and
*
Chief Judge of the Eastern District of Texas, sitting by
designation.
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(4) whether the trial court misapplied the United States
Sentencing Guidelines when it sentenced the defendant-
appellant.
Because we hold that the trial court erred in failing to grant
the defendant-appellant's motion to dismiss on Speedy Trial Act
violation grounds, and accordingly reverse and render a dismissal
of this case with prejudice, we have no occasion to address
Blackwell's other arguments on appeal.
I. The Facts and Circumstances of This Case and 18 U.S.C. § 3161
Defendant-Appellant Blackwell was indicted on March 20, 1991
for violating 18 U.S.C. § 913 (impersonating a federal officer),
arrested on this charge on September 20, 1991, and brought before
a United States Magistrate Judge for his initial appearance on the
charge on October 3, 1991. Blackwell was tried on June 29, 1992.
The Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires that
federal criminal defendants pleading not guilty be tried within
seventy days of their indictment or their first appearance before
a judicial officer, whichever occurs last. 18 U.S.C. § 3161
(c)(1); United States v. Kington, 875 F.2d 1091, 1107 (5th Cir.
1989).1 Accordingly, the Speedy Trial Act's "clock" in this case
started running October 3, 1991, as Blackwell entered a plea of not
1
Specifically, the Act provides that:
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) (emphasis added).
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guilty at his arraignment of October 17, 1991.
3
The district court initially set Blackwell's trial for
November 25, 1991.
From October 3, 1991, the Speedy Trial Act clock ran
uninterrupted for thirty-one days -- until it was first "stopped,"
or perhaps more accurately, "paused" in accordance with the Act's
excludable time provisions, on November 4, 1991.2
On November 4, 1991, Blackwell and his co-indictee and then-
co-defendant (later severed), Michael Kayne McDonald, filed a
motion for continuance for sixty days. Along with this motion for
continuance, the defendants filed a "waiver" of their personal
speedy trial rights under the Speedy Trial Clause of the Sixth
Amendment and under the Speedy Trial Act. This November 4, 1991
motion was quite "boilerplate" -- stating in conclusory fashion
only that: "Defendants are in need of additional time to
adequately prepare for their defense and the Assistant United
States Attorney does not Oppose this request" (motion paragraph
three); and "Defendants and Defendants [sic] counsel request a
sixty (60) day continuance[.] Defendants attach hereto a 'waiver
of rights' to a speedy trial" (motion paragraph four).
2
The Act provides that the accrual of the
70 days will be tolled under particular
circumstances, such as when motions are
pending before the district court or during a
continuance where the district court finds on
the record that the ends of justice outweigh
the interests of the public and the defendant
in a speedy trial.
United States v. Willis, 958 F.2d 60, 62 (5th Cir. 1992) (citing
18 U.S.C. § 3161 (h)(8)).
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This motion paused the Speedy Trial Act clock for three days
-- from and including November 4, 1991 (when the motion was filed),
through and including November 6, 1991 (when the trial court
entered an order granting the motion). See 18 U.S.C. § 3161
(h)(1)(F) (explaining that among the periods of delay to be
excluded in computing the time within which the trial of any
offense contained in an information or indictment must commence 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"). See also e.g., United States v.
Kington, 875 F.2d 1091 (5th Cir. 1989) (explaining that when the
time is paused on the Speedy Trial Act clock due to the pendency of
a motion, that means that all the days between and including the
day of commencement and the day of termination of the particular
motion proceedings are excluded from the computation of the time
limitations specified in § 3161). However, the government is wrong
in its contention that the days during the continuance countenanced
in this November 6, 1991 order are properly "excludable" from the
Speedy Trial Act's seventy day calculus. The government's argument
notwithstanding, we cannot regard the trial court's November 6,
1991 order as satisfying the Act's ends of justice requirement
imposed by the Act in order for the duration of such a continuance
itself to be deemed excludable.
The Speedy Trial Act is plain-speaking. The Act states that
among the periods of delay properly excluded from the trial court's
computation of the time within which the trial of an offense
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brought by way of an information or indictment must be commenced,
is:
(8)(A) Any period of delay resulting from a
continuance granted by any judge on his own motion or at
the request of the defendant or his counsel or at the
request of the attorney for the Government, if the judge
granted such 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. No such period of delay
resulting from a continuance granted by the court in
accordance with this paragraph shall be excludable under
this subsection unless the court sets forth, in the
record of the case, either 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.
18 U.S.C. § 3161 (h)(8)(A) (emphasis added). See also United
States v. Willis, 958 F.2d 60, 62 (5th Cir. 1992).
The November 6, 1991 order stated that the trial court
"considered" the defendants' November 4, 1991 motion for
continuance, and, having so considered it, the trial court
determined that the pre-trial conference and the trial date
previously scheduled for the case needed to be "upset and [will be]
reset in the ordinary course."3 The specific language in § 3161
(h)(8)(A) states periods of delay are not excludable unless the
court sets forth ends of justice findings either orally or in
writing. The record in this case does not reflect such findings.
See United States v. Saltzman, 984 F.2d 1087, 1090-1091 (10th Cir.)
(reaffirming "the importance of enunciating the 'ends of justice'
3
Presumably in its "ordinary course," the trial court reset
Blackwell's new trial date through a minute entry to the docket
of January 8, 1992. Through this minute entry, the trial court
on January 8, 1992 reset Blackwell's trial for May 26, 1992.
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findings;" and quoting United States v. Doran, 882 F.2d 1511, 1515
(10th Cir. 1989), to the effect that "[f]ailure to address these
issues on the record creates the unnecessary risk of granting
continuances for the wrong purposes, and encourages over-use of
this narrow exception."), cert. denied, -- U.S. --, 113 S.Ct. 2940
(1993). See also United States v. Rodriguez, 824 F. Supp. 657, 661
(W.D. Tex. 1993) ("Other courts have recognized that when a judge
gives no indication that a continuance was granted upon a balancing
of the factors specified by the Speedy Trial Act, the danger is
great that every continuance will be converted retroactively into
a continuance creating excludable time, which is clearly not the
intent of the Act.") (citing cases).
With regard to the defendants' "waiver" of their Speedy Trial
Clause and Speedy Trial Act rights, as this Court explained in
Willis:
In Kington, we joined all other circuits which have
addressed the question in recognizing that the provisions
of the Speedy Trial Act are not waivable by the
defendant.[ ] The Act is intended both to protect the
defendant from undue delay in his trial and to benefit
the public by ensuring that criminal trials are quickly
resolved. Allowing the defendant to waive the Act's
provisions would compromise the public interest in speedy
justice. In the vast majority of cases, the defendant
will be quite happy to delay the final determination of
his guilt or innocence. The Act's central intent to
protect society's interests requires that a defendant's
purported waiver of his rights under the Act be
ineffective to stop the speedy trial clock from running.
United States v. Willis, 958 F.2d 60, 62 (5th Cir. 1992) (citations
omitted; emphasis added). See also United States v. Saltzman, 984
F.2d 1087, 1091 (10th Cir.) ("The Government contends that Mr.
Saltzman knowingly waived his right to a speedy indictment. This
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contention fallaciously assumes a defendant has the authority to
waive the speedy indictment provision. The right to a speedy
indictment belongs to both the defendant and society.[ ]" * * *
An effective waiver occurs only if the judge considered the defined
factors and concluded the ends of justice are served by an
acceptance of the defendant's waiver.") (citation omitted), cert.
denied, -- U.S. --, 113 S.Ct. 2940 (1993). Compare Barker v.
Wingo, 407 U.S. 514 (1972) (holding that criminal defendants may
waive their fundamental Sixth Amendment right to a "speedy trial,"
despite the facts (inter alia) that: "[t]he inability of courts to
provide a prompt [criminal] trial has contributed to a large
backlog of cases in urban courts which, among other things, enables
defendants to negotiate more effectively for pleas of guilty to
lesser offenses and otherwise manipulate the system.[ ]") (citing
REPORT OF THE PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA
256 (1966)).
Also, with regard to Defense Counsel's purported "need" for
more time to prepare for trial, the Act is clear that the trial
court must consider -- as part of its ends of justice analysis in
a case such as this one, which is not so unusual or complex that it
is (facially) unreasonable to expect adequate preparation for
pretrial proceedings or for trial itself within the time limits
established by the Act's § 3161 (c)(1) -- whether the failure to
grant the continuance "would deny counsel for the defendant or for
the Government the reasonable time necessary for effective
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preparation, taking into account the exercise of due diligence."
18 U.S.C. § 3161 (h)(8)(B)(ii & iv) (emphasis added). The record
in this case does not reflect that Defense Counsel's exercise of
due diligence was considered by the trial court.
The Act calls upon the federal district courts to undertake
contemporaneous, on-the-record, "ends of justice" analyses before
they can count their continuances as excludable time under the
Speedy Trial Act. The Act unambiguously and unconditionally tells
the trial courts what they must consider in the course of such
analyses. In light of the lack of an "ends of justice" analysis by
the trial court in this case, the time during the continuance
granted by the trial court's order of November 6, 1991 was not
excludable from the seventy day time limitation imposed by the
Speedy Trial Act. Thus, the Act's clock kept running without
interruption for forty more days -- from November 7, 1991 until
(but not including) December 17, 1991, the day the government filed
a motion (to sever the defendants) pausing the clock.
The Speedy Trial Act's seventy day time limitation was passed
in Blackwell's case on Sunday, December 15, 1991; December 15, 1991
was the seventieth non-excludable day to pass from the day of
Blackwell's initial appearance (October 3, 1991). As of Monday,
December 16, 1991, Defendant-Appellant and the public were denied
their entitlement to Blackwell's speedy trial.
Today we reemphasize that Willis provides a bright line for
the district courts to follow. In the absence of contemporaneous,
articulated on-the-record findings for extending the time for trial
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past seventy days amounting to an acceptable ends of justice
analysis, Defendant-Appellant is entitled to have his case
dismissed. See 18 U.S.C. § 3162 (a)(2). This is not a case in
which the defendant has induced the district court to misapply the
Act and then attempted to rely upon that error in order to obtain
a dismissal of indictment. Compare Willis, supra at 63 (noting
that "[d]ismissal is a sharp remedy, and we have been reluctant to
impose it where the defendant has induced the district court to
misapply the Act and then relies upon that error to seek
dismissal") (citing United States v. Eakes, 783 F.2d 499, 503 (5th
Cir. 1986); emphasis added).
II. The Facts and Circumstances of This Case and the
Dismissal With Prejudice Sanction Under 18 U.S.C. § 3162
The dismissal of an indictment required by the Act may be
either with or without prejudice. 18 U.S.C. § 3162 (a)(2). While
it is generally true that the trial court is best situated to
decide whether to dismiss indictments with or without prejudice in
light of a Speedy Trial Act violation (compare e.g., Willis, supra
at 64), in this particular case we hold that the dismissal of the
indictment against Blackwell must be with prejudice. Under the
facts and circumstances of this case, it is obvious that there
simply is no acceptable alternative to granting Blackwell a
dismissal of his indictment with prejudice.
We are again well guided by the Act. In determining whether
to dismiss a case with or without prejudice, § 3162 (a)(2) mandates
that the courts shall consider (along with any other relevant
factors in the particular case not expressly identified by the
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statutory provision) each of the following factors:
1. the seriousness of the offense;
2. the facts and circumstances of the case which led to
the dismissal;
and
3. the impact of a reprosecution on the administration
of this chapter and on the administration of justice.
We have carefully considered all of the statutorily-specified
factors of consideration. Defendant-Appellant Blackwell has been
incarcerated on the charge of impersonating a federal officer since
his September 30, 1991 arrest on the charge. Thus, while the
maximum time of incarceration Blackwell could receive for
committing the offense of impersonating a federal officer is three
years (see 18 U.S.C. § 913), he has already been incarcerated for
over two years. If we remanded this case to the trial court for it
to determine whether to dismiss the indictment against Blackwell
with or without prejudice, and the trial court actually selected
the without prejudice "alternative," a reprosecution would work a
manifest injustice upon Blackwell -- given the time he has already
effectively "served" for this conviction which we reverse today due
to the Speedy Trial Act violation in this case.
III. Conclusion
For the foregoing reasons, we REVERSE the conviction and
sentence of Defendant-Appellant Blackwell and RENDER the one count
indictment against Blackwell at issue DISMISSED WITH PREJUDICE.
It Is So Ordered.
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