Lead Opinion
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
Concurring opinion filed by Circuit Judge RANDOLPH.
Appellant William Bryant and his co-defendant, Timothy Walker, were arrested
On appeal, Bryant alleges that his convictions on both counts should be overturned because the Government presented insufficient evidence that he constructively possessed the two weapons in question, and because the District Court gave an erroneous and misleading supplemental jury instruction regarding the definition of constructive possession. In the alternative, he argues that the unregistered firearm count should be dismissed, because his trial was commenced beyond the 70-day limit required by the Speedy Trial Act (“STA”), 18 U.S.C. § 3161(c)(1). Finally, appellant seeks a remand of the case with instructions to the District Court to review the preserved jury records from his trial and to hold a hearing to determine whether his jury venire violated the Jury Selection and Service Act (“JSSA”), 28 U.S.C. § 1861 et seq.
We reject appellant’s sufficiency claim on the § 922(g)(1) charge. After reviewing the trial record “in the light most favorable to the government,” United States v. Booker,
Finally, we reverse appellant’s conviction on the § 5861(d) charge — possession of an unregistered firearm — because his trial was commenced more than 70 non-excludable days after the speedy trial clock began running, in violation of the STA. We remand the case with instructions to the District Court to dismiss Count One of the superseding indictment and determine whether the dismissal should be with prejudice.
I. Background
On February 9, 2005, Officer Charles Monk of the Metropolitan Police Department (MPD) was working an off-duty security job at the Red Roof Inn in the Chinatown area of Washington, D.C. At about 3:00 a.m., Officer Monk observed a black Land Rover sport utility vehicle (“SUV”) pull up and park in the 800 block of 5th Street N.W. Two men exited the SUV while it was parked illegally in a bus zone. The driver, who was later identified as Timothy Walker, wore a ski mask that partially obscured his face, and a black and red Chicago Bulls hat. The passenger— later identified as the appellant — also wore a ski mask. Although it was an unusually mild night, both men wore heavy black winter coats; in contrast, other people in the area were wearing light jackets and t-shirts without jackets. After Walker stepped out of the SUV, he reached back inside and, from the rear of the SUV, retrieved a bulky item which he slid inside his coat. Appellant also leaned into the SUV, but Officer Monk did not see him retrieve anything.
One to two minutes later, Officer Monk saw the same vehicle circling back to the area. They parked in a legal parking space that was approximately 15 feet in front of their earlier parking spot. Officer Monk observed that Walker “reached back into the vehicle, retrieved an item,” and “stuck it back down inside his jacket. This time he pulled his face mask back down over his face.” Id. at 56. Appellant also pulled his face mask down. Appellant “walked freely, as if nothing was wrong with him,” but Walker was limping, “favoring his left side.” Id. at 57. They walked back towards the bus, and Officer Monk called the police dispatcher to request assistance to stop “two suspicious males.” Id. Officer Monk indicated that he “believed that one of the individuals had a weapon.” Id. at 58.
Meanwhile, Walker and appellant stood on the corner of 6th and H Streets. Both men were “looking around nervously” when Officer Monk saw a marked FBI police car drive by. Id. at 59. The men noticed the car as well, and both of them moved their ski masks so that then- whole faces were revealed. Two MPD police cars then arrived on the scene. Officer Monk used his radio to speak with the officers in one of the police cars — Officers James Burgess and Steven Greene — and gave them a description of Walker and the appellant. Appellant and Walker “began to walk away” from the area; after turning onto Sixth Street, they “began walking at a faster than normal pace.” Id. at 134 (Testimony of Officer Greene). Walker was walking “with a limp, stiff legged” as if he “were trying to conceal or carry a large object in a portion of [his] body under [his] clothes.” Id. at 135. Officers Burgess and Greene got out of their squad car and approached Walker and appellant. They asked the two gentlemen to stop. Appellant remained on the scene and was detained by Officer Burgess. Walker, however, broke into a “full sprint,” showing no sign of a limp. Id. at 144. Walker was cornered a few blocks later by Officer Greene and another police officer in a fenced-in area behind the MPD Traffic Division building at 501 New York Avenue, N.W. Officer Greene ordered Walker to get on the ground. “As he was getting on the ground,” Walker “dropped a .12-gauge shotgun into” an “exterior window basin.” Id. at 143. According to Officer Greene, the shotgun appeared to have been concealed in Walker’s sleeve. Id. at 144. After Walker was taken into custody, Officer Greene, using a flashlight, looked through the grate into the window well and saw the shotgun. Id. at 193. Meanwhile, MPD Officer Steven Schwalm, who had also responded to the call for assistance, found a sawed-off shotgun on the passenger’s side
Officer Burgess patted down appellant while detaining him, but found no weapons of any kind. The shotgun recovered from the window well was a sawed-off Stevens .12-gauge shotgun, loaded with one .12-gauge shotgun shell. The firearm found in the SUV was a sawed-off, Harrington and Richardson Bay State Model 7 shotgun. The Harrington and Richardson gun was 18 inches long (with a 12-inch barrel). The weapon had been modified in a way that required it to be registered in the National Firearms Registration and Transfer Record. It was not registered, however. No fingerprints were recovered from either gun. A partial print was recovered from the shotgun shell, but it was of no value.
Appellant and Walker were each indicted on one count of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d) on April 21, 2005. This indictment was defective, because it specified that appellant and Walker had possessed both shotguns without properly registering them; however, only the Harrington and Richardson shotgun had to be registered pursuant to 26 U.S.C. § 5845(a). On February 16, 2006 — a week before trial was scheduled to begin — the Government filed a superseding indictment, correcting the error in the unregistered firearm counts by deleting the reference to the gun that had been recovered from the window well and adding felon-in-possession counts against both appellant and Walker, and charging them with possession of the car gun, the window-well gun, and the ammunition from the window-well gun. At a hearing on February 17, 2006, counsel for defendant Walker made an oral motion to dismiss on grounds that the STA had been violated, Hearing Tr. (2/17/06) at 3-4, and subsequently submitted a written motion to dismiss. Counsel for appellant joined the motion to dismiss at a subsequent status conference on March 14, 2006, Hearing Tr. (3/14/06) at 16, but the trial judge denied the motion, id. at 29-30. Appellant and his co-defendant stood trial from March 21-23, 2006, and a jury convicted both men on both counts on March 27, 2006.
II. Analysis
A. Standard of Review
When faced with a defendant’s challenge to the sufficiency of the evidence supporting his conviction, this court “review[s] the evidence of record de novo, considering that evidence in the light most favorable to the government, and [will] affirm a guilty verdict where ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Wahl,
If Bryant failed to raise and preserve his objection to the trial court’s supplemental jury instruction, his challenge to the instruction would entail only plain error review. Fed. R. CRiM. P. 52(b). The plain error standard requires Bryant to establish that the supplemental jury instruction was “(1) a legal error that was (2) ‘plain’ (a term that is synonymous with ‘clear’ or ‘obvious’), and that (3) affected [his] substantial rights.” United States v. Brown,
Appellant’s allegation that his trial violated the provisions of the STA is “reviewed de novo on matters of law, and for clear error as to findings of fact.” United States v. Sanders,
Finally, on his JSSA claim, appellant seeks to have his case remanded to the District Court for discovery and a hearing on the adequacy of the jury venire, suspecting a possible violation of the statute. We will review appellant’s JSSA claim de novo. See United States v. Grisham,
B. Sufficiency of the Evidence Regarding Constructive Possession
To convict Bryant of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1), the Government was required to prove beyond a reasonable doubt that (1) Bryant knowingly possessed a firearm, (2) the firearm was transported in or affected interstate commerce, and (3) at the time of his possession, Bryant had been previously convicted of a felony. See United States v. Alexander,
“Criminal possession of a firearm may be either actual or constructive.” Alexander,
On appeal, counsel for appellant concedes that “viewing the evidence in the light most favorable to the government, there was sufficient evidence that [Bryant] knew of the existence of both guns, and sufficient evidence that he and Walker were doing something in concert.” Br. for Appellant at 34. However, counsel argues that “there was no evidence that [Bryant’s] gestures implied control over the gun Walker was carrying or that any of his evasive actions related to the gun.” Id. at 35. Appellant also contends that “the prosecutor’s suggestion that Bryant was covering or otherwise exerting control over the car gun” is “purely speculative.” Id. at 37. We disagree.
First, the Government established that appellant had been in close proximity to both guns during the events in question: Appellant remained close to Walker (and therefore close to the Stevens .12-gauge shotgun on Walker’s person) from the time they exited the SUV until they were approached by police officers and Walker ran away. In addition, the Harrington and Richardson firearm was found on the passenger’s side floorboard of the SUV — the same SUV in which appellant was seen sitting in the passenger’s seat. However, the Government’s case was not dependent on proximity alone. Both men were walking in Chinatown at 3:00 a.m., wearing bulky winter jackets and ski masks on a relatively mild evening. The jury heard testimony that Walker had concealed the Stevens .12-gauge gun in his oversized coat. Jurors reasonably might have assumed that Bryant wore similar outerwear in case he decided to carry one of the guns. Jurors also could have inferred from the testimony about Bryant’s and Walker’s behavior that they were preparing to rob the bus driver or passengers, supplying a possible motive for their actions. Similarly, as counsel for appellant conceded, the nonverbal communication signals between Walker and appellant demonstrated that the two men were acting in concert. Finally, appellant and Walker engaged in evasive conduct. The jury heard testimony that when the two men first observed the police car carrying Officers Burgess and Greene, they began walking in the opposite direction from the police car and, after turning a street cor
The Government’s constructive possession case against Bryant certainly is not overwhelming. Nonetheless, we must review the evidence “in the light most favorable to the government” in determining whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Wahl,
C. The Supplemental Jury Instruction
At the end of the trial, the District Court initially gave the standard “red book” jury instruction on constructive possession. This instruction states in part that an individual “has constructive possession of something when he does not have direct physical control over it, but if he knowingly has both the power and the intent at a given time to control it, either by himself or through another person.” Trial Tr. (3/23/06) at 534-35. During its deliberations, the jury sent a note to the District Court, asking “[c]an we have the definition of ‘control’ w/regard to intent in the definition we’ve received of constructive possession?” The trial judge met with counsel on March 24, 2006, to discuss the possibility of a supplemental instruction. Lawyers for appellant and Walker wanted the District Court to reread the original instruction or, in the alternative, to read the definition of “control” from a District of Columbia Court of Appeals case, Curry v. United States,
On appeal, appellant objects to the District Court’s supplemental instruction, because, in his view, the court’s endorsement of “the [Alexander plus factor] examples” allowed the jury to find possession without finding “control.” Br. for Appellant at 45. Put another way, “[b]y reducing the difficult control inquiry — with which the jury was struggling — to the simpler question of whether there was ‘evidence of some other factor’ in addition to proximity, the instruction reduced the government’s burden of proof and greatly increased the likelihood of conviction.” Id. This is not precisely the same objection that appellant’s counsel raised at trial. Below, appellant did not clearly allege that the Alexander instruction reduced the Government’s burden of proof; appellant focused more on a claim that the Alexander instruction would cause more confusion than it would eliminate. Trial Tr. (3/24/06) at 8-9. If appel
On this record, it is clear that the District Court did not err at all — much less plainly err — when it provided the Alexander language as part of its supplemental jury instruction. First, Alexander remains controlling precedent in this circuit. Therefore, we can hardly hold that a trial judge abuses his discretion by citing a legal standard whose continued validity has been recently confirmed by this court. See Booker,
D. The Speedy Trial Act
“The [Speedy Trial] Act generally requires a federal criminal trial to begin within 70 days after a defendant is charged or makes an initial appearance, [18 U.S.C.] § 3161(c)(1), but the Act contains a detailed scheme under which certain specified periods of. delay are not counted [towards the 70-day clock].” Zedner v. United States,
Both parties agree that although Bryant was arrested on February 9, 2005, and arraigned on May 4, 2005, the speedy trial clock only began ticking on June 11, 2005 — the day after his co-defendant’s arraignment in the District of Columbia. 18 U.S.C. § 3161(h)(7); Henderson v. United States,
We note that “the filing of a superseding indictment does not affect the speedy trial timetable for offenses either charged in the original indictment or required under double jeopardy principles to be joined with such charges.” United States v. Marshall,
The Government first argues that the time period between October 28, 2005 and February 16, 2006 is excluded because the Government had an outstanding motion filed with the District Court at that time. See 18 U.S.C. § 3161(h)(1)(F) (stating that the speedy trial clock will be tolled for “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”). On August 8, 2005, the Government filed two documents titled “Notice of Intention and Motion to Admit Evidence of Defendant’s Prior Conviction Pursuant to Federal Rule of Evidence 609” — one for each defendant. At a status hearing on October 7, 2005, Walker’s counsel requested an opportunity to respond to the Government’s Rule 609 filing. Hearing Tr. (10/7/05) at 125. The District Court granted permission for counsel to respond, but noted in his order after the hearing that any response had to be filed prior to the status conference scheduled for October 28, 2005. As of the October 28 status hearing, no response had been filed; in fact, neither defense counsel filed a response to the Rule 609 submission until March 16, 2006. The Government argues that the entire time period after August 8 is excluded for STA purposes, because the Rule 609 filing was pending per § 3161(h)(1)(F) until trial began on March 20, 2006.
Appellant responds that the speedy trial clock was not tolled after August 8 because the Rule 609 filing was not a motion and, thus, it did not trigger § 3161(h)(1)(F)’s tolling provision. In United States v. Harris,
We need not decide whether the Government’s Rule 609 filing was a “motion” for § 3161(h)(1)(F) purposes, however. Even assuming arguendo that it was a motion, it would not have tolled the STA for as long as the Government claims. In Henderson, the Supreme Court held that “all time between the filing of a motion and the conclusion of the hearing on that motion” should be excluded from the speedy trial clock, whether or not the delay was “reasonably necessary.”
[18 U.S.C. § 3161(h)(1)(F) ], written in the disjunctive, excludes time in two situations. The first arises when a pretrial motion requires a hearing: subsection (F) on its face excludes the entire period between the filing of the motion and the conclusion of the hearing. The second situation concerns motions that require no hearing and that result in a “prompt disposition.” There, the promptness requirement was “intended to provide a point at which time will cease to be excluded, where motions are decided on the papers filed without hearing.” S.Rep. No. 96-212 [(1979) ], at 34. The “point at which time will cease to be excluded” is identified by subsection (J), which permits an exclusion of 30 days from the time a motion is actually “under advisement” by the court. Without the promptness requirement in subsection (F), a court could exclude time beyond subsection (J)’s S0-day “under advisement” provision simply by designating the additional period as time “from the filing of the motion” through its “disposition” under subsection (F). As the Senate Committee on the Judiciary explained:
“In using the words ‘prompt disposition’, the committee intends to make it clear that, in excluding time between filing and disposition on the papers, the Committee does not intend to permit circumvention of the 30-days, ‘under advisement’ provision contained in Subsection (h)(l)(J). Indeed, if motions are so simple or routine that they do not require a hearing, necessary advisement time should be considerably less than 30 days.” Ibid.
In the instant case, the District Court never held a hearing on the Rule 609 question, nor did it ever indicate that such a hearing might be required. Thus, once Walker’s counsel failed to file a timely response on or before October 28, 2005, the Rule 609 filing was “under advisement” by the District Court. This meant that the trial judge could toll the speedy trial clock only for an additional 30 days while deciding the motion. As of November 27, 2005, however, time began accruing on the speedy trial clock again.
Allowing the District Court to exclude the time from November 27, 2005 until February 16, 2006 would defeat the purpose of the STA. Defense counsel chose not to file a response to the Rule 609 motion within the court’s prescribed deadline, so the time began accruing again
The Government also argues that the time period from October 28, 2005 until February 16, 2006 is excluded because the STA allows for the tolling of the speedy trial clock if a judge grants a continuance “on the basis of [the judge’s] 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.” 18 U.S.C. § 3161(h)(8)(A). The STA specifies that the trial judge must “set[ ] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice” are best served by the continuance. Id. Various factors are listed for trial judges to take into account in making the “ends of justice” determination. 18 U.S.C. § 3161(h)(8)(B)(i)-(iv).
At the October 28, 2005 status hearing, after a short conversation where both parties and the District Court tried to accommodate one another’s schedules, the trial judge set a tentative trial date for late February 2006. Hearing Tr. (10/28/05) at 2-5. At the March 14, 2006 hearing on the motion to dismiss on STA grounds, the trial court judge stated that, although he “[did not] have a transcript of the October 28th hearing,” he thought he had “probably made a finding that [the time period until February 22, the original trial date, was] waived in the interest of justice,” to “coordinate the schedules of the prosecutor, the two defense lawyers, and the Court,” because “otherwise we would force one or the other of the defendants to go to trial with somebody who is not their lawyer, or a lawyer who is just coming off another trial.” Hearing Tr. (3/14/06) at 10. The trial judge went on to say that he “[did not] know whether the statute or the case law requires an explicit finding,” but he thought “it would have been implicit if we were going to postpone all the way to the end of February.” Id. at 17. The judge subsequently denied the motion to dismiss. Id. at 26-30. The Government claims that the speedy trial clock was thus properly tolled from October 28, 2005 until the trial began under the § 3161(h)(8)(A) exclusion.
The Supreme Court’s decision in Zed-ner — which was handed down approximately two months after the trial court denied the motion to dismiss — forecloses the argument that the Government now makes on appeal. Zedner makes it plain that “implicit” findings are insufficient to invoke the § 3161(h)(8)(A) exclusion. The Zedner Court held that before a judge could toll the speedy trial clock under § 3161(h)(8)(a), the judge had to make “express findings” about why the ends of justice were served by a continuance,
The exclusion of delay resulting from an ends-of-justice continuance is the most*361 open-ended type of exclusion recognized under the Act and, in allowing district courts to grant such continuances, Congress clearly meant to give district judges a measure of flexibility in accommodating unusual, complex, and difficult cases. But it is equally clear that Congress, knowing that the many sound grounds for granting ends-of-justice continuances could not be rigidly structured, saw a danger that such continuances could get out of hand and subvert the Act’s detailed scheme. The strategy of § 3161(h)(8), then, is to counteract substantive open-endedness with procedural strictness. This provision demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making those findings.
Id. at 508-09,
In this case, the District Court made no express findings supporting a § 3161(h)(8)(A) continuance at the October 28, 2005 status conference. Although Zedner permits trial judges to put their findings on record at the time they rule on a STA motion to dismiss, rather than at the time when they grant the continuance, the passing reference to the “interest of justice” made by the trial judge at the March 14, 2006 status hearing does not indicate that the judge seriously considered the “certain factors” that § 3161(h)(8)(A) specifies. See Zedner,
Given that both parties agree that at least 32 days had accrued on the speedy trial clock as of August 8, and it is clear that at least 39 additional, non-excludable days accrued between November 27, 2005 and February 16, 2006, we find that the STA’s 70-day maximum was exceeded. We are therefore obligated to reverse appellant’s conviction for possession of an unregistered firearm and remand the case to the District Court with instructions to dismiss the indictment on that count. However, it is for the District Court to determine whether the indictment should be dismissed with or without prejudice. 18 U.S.C. § 3162(a)(2).
E. The Jury Selection and Service Act
In Taylor v. Louisiana,
[T]he defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren v. Missouri,
The Government used a variety of statistical methods to calculate the degree to which blacks were underrepresented in appellant’s jury venire, and argues that the disproportionate number of blacks did not rise to a legally cognizable level. Appellant does not directly refute the Government’s argument; rather, he argues that the calculations “raise a red flag as to this jurisdiction’s jury selection system, particularly in light of the racial skewing that was observed in United States v. Spriggs,
III. Conclusion
For the reasons given above, the judgment of the District Court is affirmed in part and reversed in part. The case is hereby remanded for the District Court to dismiss Count One of the superseding indictment after determining whether the dismissal should occur with or without prejudice.
Concurrence Opinion
concurring:
I agree with the court that Bryant’s conviction for possessing an unregistered firearm must be reversed. On remand the district court will have to determine whether to dismiss that count with prejudice or without prejudice. In making this determination I believe the court should take into account Bryant’s failure to de
As criminal defense attorneys know, delaying a trial often works to the defendant’s advantage. On the other hand, there are instances when a prompt trial may assist the defense. The “demand rule,” as it came to be known, stated that a defendant had “to demand a trial or resist postponement”; if he did neither, he waived his Sixth Amendment right to a speedy trial. United States v. Lustman,
Barker v. Wingo relaxed the rigidity of the demand rule.
The Speedy Trial Act provides that a defendant’s failure to move for dismissal prior to trial constitutes a waiver of his rights under the Act. 18 U.S.C. § 3162(a)(2). The Act does not require a defendant to make the motion before the statutory time limit has expired. If, as in Bryant’s case, the time has expired, the district court must dismiss the indictment but the court has discretion to determine whether to do so with or without prejudice. In making that determination, the court must consider, among other things, “the seriousness of the offense; the facts and circumstances of the case which lead to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” Id. § 3162(a)(2).
Just as a defendant’s failure to demand a speedy trial bears on whether the delay violated the Sixth Amendment, a defendant’s acquiescence in the delay bears on whether the court should dismiss without prejudice and thus allow the defendant to be reindicted. Defense counsel may have believed that as time passed and memories dimmed the accused would benefit in view of the government’s heavy burden of proof. See Bruce,
Notes
. Here, for example, the decision to delay the trial until February 2006 was made in order to accommodate the schedules of the lawyers for all parties. Hearing Tr. (10/28/05) at 4-5. At a hearing on October 28, 2005, the court discussed trial dates with the parties. Id. Bryant opted for a February 2006 trial date over a November 2005 trial date to prevent him from having to find replacement counsel. Bryant affirmatively agreed to the delay because it assisted his ability to mount a defense.