*1 timing directed, or the looks were
objectionable behavior. reasons, foregoing
For the sentence Range is vacated this
of defendant proceedings for further is remanded
cause opinion. this with
consistent America, STATES
UNITED
Plaintiff-Appellee, CRAWFORD,
Jerry A. Defendant-
Appellant.
No. 91-6198. Appeals, Court of States
United
Sixth Circuit. 8, 1992.
Argued Oct.
Decided Jan. *2 MERRITT, Judge;
Before: Chief BOGGS, Judges. MARTIN and Circuit BOGGS, Judge. Circuit Jerry appeals A. his conviction Crawford being possession a felon in of a firearm for commerce, in interstate that had travelled 922(g). The of 18 U.S.C. violation § fifteen district court sentenced Crawford to by years imprisonment, to be followed years supervised release. Craw three 1) appeal: wheth ford raises two issues on failing by erred er the district court the indictment because Crawford dismiss brought to trial within the was Act; by limits mandated and whether the district court erred failing charge proposed recognized by this justification defense Singleton, court in United States (6th Cir.), denied, cert. 196, 112 U.S. 111 S.Ct. L.Ed.2d 158 I 6, 1989, Crawford, felon, May a had a On wife, Spencer. dispute with his Sandra Jean argument, Spencer During the crossed her house and called the street to mother’s Oeding police. police officer William When three minutes arrived on the scene about later, members, Spencer, family neigh- and yard; bors were outside Crawford Shortly was inside the house. after Officer arrived, Oeding Crawford came out of the immediately argu- house and resumed his Spencer. Oeding sepa- ment with Officer Spencer and Crawford. Officer Oed- rated then observed that Crawford had hand inside his overalls and also observed appeared pistol a inside the what Oeding asked Crawford overalls. Officer his hand. When did remove Crawford instructed, dropped pistol as a to the time, ground. Oeding put At this Officer Crawford, pistol, his foot on the seized Collins, Atty., Cynthia Bryant, Ed U.S. J. against police him car. He then held briefed), Atty. (argued U.S. Mem- Asst. doing he asked Crawford what was with TN, phis, plaintiff-appellee. for explained pistol. Crawford that he Ferguson, protecting himself from his wife and her April R. Asst. Federal Public sisters, briefed), nearby. lived (argued Memphis, brothers and who Defender thereafter, ar- TN, Shortly back-up officers defendant-appellant. arraigned and October he was rived, arrested dangerous weap- carrying a October with charged
on. report date The district court set *3 1990, 26, conflicting and a trial date for Spencer gave November and
Crawford 17, date, report At the came into December testimony as to how Crawford trial, requested defense counsel an additional pistol. At Crawford possession of the pretrial two file De- are as follows. weeks to motions. that the facts testified pointed possible fense counsel also out a began arguing Spencer with over Crawford 17, on 1990. The him her car to conflict December court she would loan whether granted request the Spencer for additional and home. adamant- drive his brother 10, report the date to the car. Craw- reset December with ly to loan Crawford refused the parties agreeing intervening told that he the that and her ford frustrated became pick days under his to come and would excluded the going to call uncle going he not Spencer told him was Trial Act. The court did make an ex- up. him ruling out of the house. of a anywhere press and stormed on the issue continuance. pistol. Spencer’s Soon, with a she returned 1990, Crawford, 28, On November she the before did mother entered house attorney, sup- his a to through filed motion go not to outside. begged Crawford 29, press On statements. November the inside, Spencer remained Crawford hearing set motion for a on De- court the to the mother’s house her mother returned 14, government 1990. The moved cember Crawford, thinking that the street. across suppression hearing to reset De- key, locked the Spencer did not have a 17,1990, and court cember deferred the doors. hearing hearing The until that time. returned, Soon, Spencer unlocked the December and the court took the held door, with a the house back and entered suppress motion to under advisement. On met her at the back door pistol. Crawford court December Spenc- away from her. pistol took suppress. to motion testified out the door. Crawford er ran further action was taken on Craw- No protect pistol in order to that he took the 7, 1991, ford’s case until March when Spenc- He he feared claimed that himself. for March court set trial date him in the she had threatened er because moved to On March Crawford a past pistol. with the indictment for violation dismiss began Spencer's family Members Act, seq. 3161 et Speedy Trial U.S.C. § yard, and Crawford congregate in responded with government The the follow- him. He they try to hurt would feared government calculat- calculations. until Officer inside house remained days thirty-three non-excludable ed leave When he did Oeding arrived. 25, 1990, the date October period between house, Oeding. directly he went to Officer appearance, and November of the initial explain to Offi- he had a chance Before motion to filed the the date Crawford Spencer start- Oeding pistol, cer about government argued that suppress. again. him It was then arguing ed with between Act was tolled time under the Oeding pistol noticed Officer 20, when the and December November 28 Spencer him. denied and disarmed overalls Fi- suppress. granted the motion court pistol a into the house. brought that she “[djefen- argued that government nally the pistol later found denied that the She also request for a continuance dant’s belonged her. on tolled the 1990 trial date December running of time December grand jury federal April On setting on 1991.” March being count of a until the new on one indicted Crawford days none argued firearm that had Crawford possession felon in 20, 1990, excludable were commerce, in after December in interstate viola- travelled expressly granted never because 922(g). Crawford made tion of 18 U.S.C. § a continuance. the court on appearance his initial before have no alternative —either before or dur- the court entered a On March violating order, ing the event—to avoid the law.” stated: which brief Id. at 473. of Defendant’s Mo- Upon consideration in this the Indictment tion to Dismiss district court refused to instruct the Speedy Trial violation of the case for jury justification defense it because Act, government’s response had no well- determined that Crawford thereto, the motion concludes Court bodily grounded apprehension of death reasons stated denied for the should be deliberation, injury. During asked government response, in its which by the if it needed instruction on “the March, *4 day this 21 of is so ordered an- defense of self-defense.” The court simple jury “no.” The later swered with March The trial commenced on note, sent another which stated: “Would trial, that he During the Crawford testified ‘spe- personal safety override the fear Spencer kept it for pistol from took possess cific intent’ to the firearm?” The period of time because he was a short question. court declined to answer the Spencer family and her mem- afraid that him. He testified that would hurt also bers Thereafter, jury found Crawford Oeding why he had a he tried to tell Officer guilty being possession of a felon in of a commotion, but, pistol not amidst in interstate firearm that had travelled Oeding to tell before Officer able Officer commerce, in violation of 18 U.S.C. Oeding pistol. noticed the 922(g). fif- Crawford was sentenced to § by years imprisonment in- teen followed requested that the court Crawford justifica- years supervised defense of three release. For the jury struct the on the follow, 922(g)provides Although tion. 18 U.S.C. reasons that we dismiss the indict- § only that “it shall unlawful” for a felon di- be ment and remand to district with firearm, recog- possess to this court has rections to determine whether the dismissal defense, may justification nized a which be of indictment should be with or without asserted a defendant if the defendant prejudice. Because we dismiss Crawford’s prove following four factors: indictment, can decide we need not whether charge required district court was 1) under an unlawful the defendant was imminent, proposed justification “present, impending defense. of such a nature as to induce a [threat] II
well-grounded apprehension of death or
...;
bodily injury”
serious
Act,
18 U.S.C.
2)
“recklessly
or
that defendant had
(1982),requires that the trial of
3161-74
§§
placed
in a
negligently
himself
situation
a criminal defendant commence within sev
probable
in which it was
that he would
arrest,
enty
days from the date of the
conduct],”
choose criminal
be
[forced
information,
filing
or
of the indictment
court,
appearance
before the
first
3) that defendant had no “reasonable le- whichever date last occurs. 18 U.S.C.
law,” ...;
gal
violating
alternative to
3161(c)(1);
v.
see also Henderson United
§
321, 323,
States, 476 U.S.
106 S.Ct.
relationship may
“that a direct causal
(1986).
govern
If the
203
probably
denied,
monses. And
two weeks would
Cir.),
493 U.S.
(6th
cert.
it,
I
do
think.
107 L.Ed.2d
110 S.Ct.
Any objection,
Mr.
Court:
Arvin?
6,May
arrested on
[government
Mr. Arvin
None
counsel]:
first
April
indicted on
Honor,
long
as
as the time
ex-
Your
is
the court on October
appeared before
cluded.
therefore,
clock be
1990;
speedy
trial
satisfactory,
The Court: Is that
Ms.
latest
1990—the
gan to run on October
Ferguson?
dates. 18 U.S.C.
the three relevant
Yes,
Ferguson:
your
In
Ms.
honor.
appear
3162(a)(2).
day of the first
§
Honor,
addition, Your
I do have another
arraignment on
day of the
ance and the
set on the 17th which I think
trial
is
as
are
excluded
both
October
going
go.
multiple
It has
co-defen-
resulting
other
period
delay
“[a]ny
dants, I haven’t heard otherwise and the
defendant____”
concerning proceedings
up
individual has been locked
since—
3161(h)(1); see also United
18 U.S.C. §
well, quite
longer
sometime
than Mr.
(6th
Mentz,
States
Crawford, so there would have been a
*5
days ex-
Cir.1988). Three non-excludable
anyway.
conflict there
At the ar-
arraignment.
the
pired before
You
The Court:
want to continue the
Crawford, through
attorney,
his
raignment,
report
trial and then set another
date?
granted fifteen
and the court
requested
sir,
Ferguson:
possible.
if
Ms.
Yes
motions. These fifteen
days
pretrial
to file
The Court: You said two weeks from
delay
as
from other
days are excludable
[sic],
today report date
that would be the
3161(h)(1).
under 18 U.S.C.
proceedings
§
10th.
Barnes,
909
See United States
10th,
Ferguson:
Ms.
December
that’s
Cir.1990). Therefore,
1059,
(7th
1064-65
my
fine.
I should have all
motions filed
restarted
speedy trial clock was not
the
then,
Honor.
by
Your
14, 1990,
the fifteen-
after
until November
26,
November
1990 and
The time between
period expired.
day
10,
excluded with the
December
1990 was
to run for
clock continued
provide
in
parties
of the
order to
consent
1990,
26,
when
days until November
twelve
pretrial
time to file
defense counsel with
held, bringing the total
report
date was
Although
speci-
did not
motions.
report
days. The
to fifteen non-excludable
exclusion,
authority for the
that
fy the
under
18 U.S.C.
is
excluded
date
in
challenged
not
this court.
exclusion is
Mentz,
3161(h)(1).
F.2d at 326. At
840
§
Henderson,
under U.S.C. § Thus, day period exclude the entire from the court to F.2d at 326. including to March up filed to and December 1990 the motion granted, November day the motion Act, a Speedy Trial court Under 20, 1991, is excluded. December grant justice” may an “ends of continuance grant if “the failure to such a continuance Therefore, of December as unreasonably deny the defen ... would had days fifteen nonexcludable only counsel____” continuity of dant ... The critical issue is whether passed. 3161(h)(8)(B)(iv);see also United U.S.C. § Decem restarted on speedy trial clock was Cianciola, 920 F.2d States v. argues that 1990. Crawford ber — Cir.1990), denied, U.S. —, (6th cert. speedy trial clock restarted December S.Ct. 115 L.Ed.2d March 1990 and ran until required More is the mere existence of than indict moved to dismiss his when Crawford continuance, a basis for the however. Sec Act. of the ment violation 3161(h)(8)(A) provides tion of the Act that correct, If this would amount Crawford is during justice” an “ends of the time contin which, period, when added eighty-day to an uance is not excludable “unless earlier, days fifteen discussed would case, forth, in the record of the either sets days ninety-five total countable make a orally writing, finding its reasons appearance first between Crawford’s justice the ends of served argues government trial. outweigh granting of such continuance eighty-day period was excluded because the public and the defen best interests court, exchange of November *6 speedy in dant a trial.” above, 1990, granted quoted the defense request a the for continuance of counsel’s The Sixth Circuit has stressed trial, grant of a and that this continuance granted a that continuance should not be proper justice” under the “ends of was Nance, lightly. v. 666 F.2d United States 3161(h)(8). exclusion 18 U.S.C. § 353, (9th Cir.), sub 356 cert. denied nom. States, 3161(h)(8)(A)provides v. 456 Title 18 Lee United U.S. 102 U.S.C. § 72 L.Ed.2d for exclusion of: S.Ct. 179 reasoning forth district court must set the a [a]ny period delay resulting of supporting the determination that the inter any judge at granted by continuance ... grant of ests served the the continuance if the request the defendant the of ... outweigh public’s the the defendant’s and the judge such continuance on Cianciola, speedy interest in a trial. 920 findings of that the ends of basis grant F.2d at The reasons for the of by taking out- justice served such action the continuance must be set forth in the public weigh the best interest of the record, orally writing. or in Al either Id. speedy in a the defendant trial. though to required the court is not state district court Crawford concedes that the findings is at the continuance grant justice” had an “ends of a basis to actually granted, findings “must have re- continuance because defense counsel motivating been the factors decision [its] quested pretrial two to file motions weeks grant the continuance.” v. United States possible con- and informed the court of a Crane, (6th Cir.1985). 606 776 would have on December flict that counsel Therefore, the court is allowed to state the But, light fact that denying reasoning later in an order a mo disposed only pretrial motion court charges, but the reasons tion dismiss argues on December stated must be the actual reasons that mo 1) Act violated because court the time the continu tivated the at inquire failed to into the reason- court granted. ance was 2) delay, failed to ableness court denying explain properly reasoning its the de- In its of March order dismiss, length motion to the district lay, specify the court failed to Crawford’s nothing adopt ar- delay more than of the when the continuance was court did
205 allegedly granted, that the continuance was government. by the presented guments argument explicitly grant did not even Yet, entire government’s conclusory sen- following continuance. consisted a continu- request for “Defendant’s tence: Ill trial date December
ance of the
from December
running of time
tolled the
explic-
Because the district court neither
setting on March
until the new
itly granted
explained
a continuance nor
Richmond, 735
In
1991.”
United States
reasoning that would have motivated a
(6th Cir.1984),this court stressed
F.2d 208
conclusion that a continuance would serve
findings that
court must make
that a trial
justice,
the ends of
we dismiss the indict-
justice
ends of
serves the
the continuance
ment. We REMAND the case to
dis-
findings must made be-
that those
be
to determine
trict court with directions
In
granted.
is
Rich-
the continuance
fore
indictment should be dismissed
whether the
justifi-
mond,
listed three
the district court
prejudice.
or
In the event the
with without
dismiss
of a motion to
cations for the denial
court dismisses Crawford’s indict-
district
support
those
charges, but failed to
if
prejudice,
ment without
the facts as de-
re-
This court
with facts.
justifications
any
arguably support
trial
veloped at
new
court and dismissed
the district
versed
justification defense as outlined in
Unit-
indictment, stating:
Singleton, 902 F.2d
ed States v.
8, 1982
in either the December
Nowhere
(6th Cir.1990),
requests
and if Crawford
order,
entry
the contin-
directed
which
charged
justification
jury
that the
be
order,
uance,
January
defense,
charged.
should be so
to dis-
denied Richmond’s motion
which
indictment, does the district
MERRITT,
concurring.
miss
Judge,
Chief
req-
made the
represent that it had
I concur in the result
the case
prior
granting the con-
findings
uisite
it
should
dismissed because
Indeed,
the December
tinuance.
brought
days required by
the 70
within
states that the basis
order nowhere
separately
I
Speedy Trial Act.
write
*7
was that
granting the continuance
concerning
criminal case
point out facts
justice.
of
served the ends
continuance
contributing
Memphis
in
that are a
load
216;
Crane,
Attorneys billion in just 6 fold to under $1
creased in which During period, this
last decade. displaced law enforcement has been
local eases, problem crime
many of street greatly
has increased. At same at the federal
the costs enforcement skyrocketed.
level have only a process
The federal courts can of criminal cases.
finite number that ov- expressly Trial Act states *8 justify do not criminal dockets
ercrowded only reme-
delaying trial of cases. may Act
dy therefore under the When of some criminal cases.
dismissal necessary, district
that course becomes give should serious consideration
courts in which federal of those cases
dismissal jurisdiction courts. with state
courts share require dismissing those routine
This will the state courts cases which
street crime with the feder- jurisdiction
have concurrent for- go those cases can
al courts so that court, past. state as in the
ward in