United States v. Marshall
669 F.3d 288
D.C. Cir.2011Background
- Indicted July 22, 2008 for unlawful possession of a firearm under 18 U.S.C. § 922(g) after a weapon was seized during a search of Marshall's home.
- Speedy Trial Act clock began upon indictment; the district court repeatedly deferred trial dates and tolled the clock upon a government Rule 404(b) filing framed as a motion.
- Rule 404(b) filing occurred September 11, 2008; district court treated it as tolling the Speedy Trial Act clock despite contrary case law.
- Marshall's counsel did not challenge tolling of the clock despite warnings and Marshall's repeated speedy-trial pleas.
- Trial finally began October 1, 2009, 436 days after indictment; conviction followed, with an eight-year sentence.
- On appeal, the Circuit vacated the conviction for ineffective assistance of pretrial counsel for failing to challenge the Rule 404(b) tolling and remanded to decide whether dismissal should be with or without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 404(b) filing tolls Speedy Trial Act clock | Marshall | Marshall | Rule 404(b) filing tolling not a pretrial motion; clock not tolled |
| Whether pretrial counsel's failure to challenge tolling was ineffective assistance | Marshall | United States | Yes; performance below objective standard and prejudiced |
| Remedy for Sixth Amendment violation | Marshall | United States | Remand to decide whether dismissal should be with or without prejudice; tailored relief required |
| Impact of tolling on other speedy-trial claims | Marshall | United States | Other issues not decided pending remand; further findings required |
Key Cases Cited
- Harris v. United States, 491 F.3d 440 (D.C. Cir. 2007) (Rule 404(b) similar to Rule 609; not tolling, tolling depends on Rule 12(b)(3)(C))
- United States v. Van Smith, 530 F.3d 967 (D.C. Cir. 2008) (Rule 404(b) filing not a pretrial motion tolling Speedy Trial Act; supports no tolling)
- United States v. Crowder, 141 F.3d 1202 (D.C. Cir. 1998) (pretrial notice-and-objection for Rule 404(b) governed by Rule 12(b)(4)(A))
- Rush v. United States, 738 F.2d 497 (1st Cir. 1984) (similar concern re tolling and notice; early precedent summarized in Harris/Van Smith)
- United States v. Tinklenberg, 131 S. Ct. 2007 (2011) (Supreme Court holds pretrial motion tolls Speedy Trial Act irrespective of delay; context distinguished)