UNITED STATES of America, Plaintiff-Appellee, v. Randall SUTTON, Defendant-Appellant.
No. 16-5587
United States Court of Appeals, Sixth Circuit.
July 10, 2017
862 F.3d 547
Argued: April 26, 2017
Thus, as Guertin conceded on cross-examination, the “physical examination in this case doesn‘t tell [us] ... anything.” A rational jury could therefore choose to believe KV‘s testimony notwithstanding the results of the examination.
The district court‘s judgment is affirmed.
Before: SUHRHEINRICH, BATCHELDER, and STRANCH.
OPINION
SUHRHEINRICH, Circuit Judge.
I. INTRODUCTION
In 2005, Defendant Randall Sutton committed four armed bank robberies in quick succession in Kentucky and in Ohio. Defendant agreed to plead guilty to the Kentucky charges in the Southern District of Ohio and the case was properly transferred from the Eastern District of Kentucky to the Southern District of Ohio pursuant to
II. BACKGROUND
On July 27, 2005, Defendant robbed a bank in Fort Wright, Kentucky, while brandishing a firearm, in violation of
On November 1, 2006, Defendant agreed to plead guilty to two Ohio charges, one count of armed robbery in violation of
On February 15, 2007, Defendant entered a guilty plea to two bank robbery counts in the Ohio case. At that time Defendant agreed to the factual statement as read before the court, which included the Kentucky offense. ID# 871. Defendant was willing to also plead guilty to the Kentucky charges, but the district court decided to wait until the Rule 20 paper-
But Defendant never actually pleaded guilty to the Kentucky charges after the case was transferred. Nonetheless, he was sentenced on both the Ohio and Kentucky charges on August 29, 2007, in the Southern District of Ohio. He received concurrent terms of eleven years on both the bank robbery charges (one in the Ohio case and one in the Kentucky case), and consecutive terms of seven years for the Ohio
On September 30, 2015, the Southern District of Ohio court vacated his conviction and sentence on the Kentucky charges. The district court did not address Defendant‘s speedy-trial argument, because it could not under
On February 26, 2016, Defendant filed a motion to dismiss the indictment, arguing that the STA clock began ticking on February 15, 2007, the date he pleaded guilty to the Ohio charges, or August 29, 2007, the date he was sentenced on both the Ohio and Kentucky charges. Under either of these start dates, the seventy-day limitation of the STA was easily exceeded. The United States countered that the proper start date for STA purposes was January 20, 2016, the date Defendant first appeared before the Eastern District of Kentucky.
The district court also rejected the United States’ argument that the STA clock started running on January 20, 2016, when Defendant first appeared for a status conference in the Eastern District of Kentucky (by that time he had entered a not guilty plea on January 18, 2016). Although the government‘s argument appeared to fit within the language of
Nonetheless, the district court found the rule difficult to apply in the present case, because the court vacating Defendant‘s conviction and sentence—the Ohio court—only had jurisdiction pursuant to Rule 20. Thus, “the date the action oсcasioning retrial becomes final” would be September 30, 2015, when the Ohio court granted Defendant‘s § 2255 motion. But, the district court determined that this could not be the start date for the STA because Rule 20 required the Ohio court to return the paperwork to the Kentucky court, and the Kentucky court did not regain jurisdiction over Defendant‘s case until December 23, 2015, the date on which the Rule 20 paperwork was returned. The district court analogized to situations where an appeals court vacates a guilty plea, and held that the STA clock starts the day the district court receives and files the mandate. Under either interpretation, the STA clock does not begin to run until jurisdiction is restored to the district court. Thus, the court reasoned that the STA clоck in this case began ticking on December 23, 2015.
With December 23, 2015 as the starting point for computational purposes, the May 2, 2016 trial date was outside of the seventy-day limitations period. However, Defendant had filed a motion to dismiss on February 26, 2016, which was heard on April 12, 2016, and taken under advisement thereafter, until the court issued its order on April 27, 2016. Thus, under
Following the denial, Defendant decided to be re-arraigned so that he could change his plea to guilty. R. 130. On April 28, 2016, he pleaded guilty to count two of the Kentucky indictment, charging him with brandishing a firearm in furtherance of a crime of violence, in violation of
III. ANALYSIS
On appeal Defendant claims that his rights to a speedy trial were violated under both the STA and the Sixth Amendment. We review questions of law related to speedy-trial violations de novo and questions of fact for clеar error. United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994). The remedy for a STA violation is dismissal with or without prejudice.
A. Speedy Trial Act Claim
Several sections of the STA are relevant, although, as the district court observed, the unique facts of this case do not precisely align with any one section. First, the STA requires a district court to dismiss charges unless the defendant‘s trial begins within seventy days of the filing of the indictment or the defendant‘s arraignment, whichever occurs later.
The STA also provides that “[i]f the defendant is to be tried again following an apрeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final.”
On the other hand, if the defendant initially enters a guilty plea or nolo contendere and subsequently withdraws it, “the defendant shall be deemed indicted ... on the day the order permitting withdrawal of the plea becomes final.”
This case falls somewhere between these provisions. As the court noted in Bond, a “literal reading” of the STA makes it “clear that Congress did not specifically contemplate cases where a defendant‘s guilty plea was later vacated by the trial court,” Bond, 956 F.2d at 630, let alone a case where he thereafter enters a not guilty plea.
The district court determined that
As the district court noted, Defendant did not enter the not guilty plea to the Kentucky charges during any of his appearances in the Southern District of Ohio and the Southern District of Ohio never had jurisdiction to try Defendant. Thus, the district court correctly looked to O‘Dell in concluding that
As this court observed in O‘Dell, the not guilty plea requirement of
Defendant argues that because he “ultimately” entered a not guilty plea in the Eastern District of Kentucky on February 18, 2016, the district court erred in ruling that
But that rule must be read in the context of its facts. In Lopez-Valenzuela, the defendant had signеd a form entry of his not guilty plea on the same day that he was indicted. The government knew of the form, but the defendant did not actually file it until months later. Id. at 488. The Fifth Circuit concluded that the STA clock
Defendant also claims that his case is analogous to United States v. Jackson, 22 Fed.Appx. 396 (6th Cir. 2001) (per curiam). In Jackson, the defendant had appeared before a magistrate judge, but was arraigned and entered a not guilty plea one week later. This court held that, pursuant to
Defendant‘s reading of both Lopez-Valenzuela and Jackson glosses over a critical factual difference between those cases and this one. In both of those cases, the defendants never attempted to reverse course late in the game. See Lopez-Valenzuela, 511 F.3d at 488 (defendant signed a “Waiver of Appearance and Entry of Not Guilty Plea” form on the date of his indictment); Jackson, 22 Fed.Appx. at 398 n.3 (defendant‘s guilty plea was entered approximately one week after his first appearance). By contrast, shortly after indictment, Defendant evinced an intent to plead guilty and waive trial, signing a form to that effect in May 2007. R. 4. He did not change his mind until nearly five years later. And it is precisely this change of heart—in a collateral attack long after he had pleaded guilty and been sentenced on the Kentucky charges—that distinguishes this case from Lopez-Valenzuela and Jackson and makes
Despite some confusing language conflаting the applicability of the STA with the commencement of the running of the STA clock, see O‘Dell 154 F.3d at 360 (“The plain meaning of the language of the STA requires a not guilty plea to begin the clock running.“), as the Fifth Circuit noted, O‘Dell‘s “actual holding was that the clock never began to run because the defendant at no time entered a not guilty plea,” Lopez-Valenzuela, 511 F.3d at 490. Jackson also supports the district court‘s holding. The Jackson court rejected the government‘s reliance on O‘Dell in arguing that the date of the entry of the not guilty plea was the trigger for the STA clock, noting that in O‘Dell the defendant had never entered a not guilty plea, whereas the Jackson defendant had, “eventually.” Jackson, 22 Fed.Appx. at 398 n.3; see also United States v. Tinklenberg, 579 F.3d 589, 594 (6th Cir. 2009), aff‘d on other grounds, 563 U.S. 647 (2011) (“Thus, O‘Dell stands only for the proposition that the Speedy Trial Act does not apply to a case in which the defendant never pleads not guilty. Although this Court opined that the Speedy Trial Act ‘requires a not guilty plea to
The right to be protected is the right to a speedy trial. That right is not implicated until the defendant pleads not guilty, or at least clearly indicates the desire to plead not guilty. The statutory scheme,
As the district court recognized, Bond is much like this case. In Bond, the defendant was indicted on two counts of armed robbery and properly pleaded guilty to one count after the other was dismissed. He later successfully withdrew the guilty plea. Then, in order to avoid related state charges, he entered a guilty plea to original federal charges. Later, he moved successfully pursuant to
[i]n such cases, a defendant has never gone through trial, hence section 3161(e)‘s protection of a defendant‘s rights on retrial do not apply because a defendant who has never been tried cannot later be retried. Likewise, read strictly, section 3161(i) applies only to situations where the defendant withdraws a guilty plea, and not where, as here, the trial court vacates his prior plea agreement.
Bond concluded that
In Mack, the court relied on the legislative history in concluding that section 3161(e) and not 3161(i) applies to cases where a defendant‘s guilty plea agreement is vacated. The court noted that Congress intended for section 3161(i) to prevent a defendant from entering a “plea of guilty on the 59th day to one of several charges and wait several weeks, and then withdraw his plea before sentencing, thereby frustrating any prosecution on the other counts which might not yet have been dismissed.” Mack, 669 F.2d at 31-32 (quoting 120 CONG.REC. 41623 (1974)). Since this problem is not presented in cases where the court vacates a guilty plea, the Mack court concluded that section 3161(i) did not apply to cases of this type. Instеad, the court reasoned that section 3161(e) is more appropriately applied to situations where a defendant‘s guilty plea is later vacated by a district court on habeas review. The court did “not think that the words ‘tried again’ in § 3161(e) was intended to exclude from its coverage cases involving a successful collateral attack upon a guilty plea conviction rather than after trial.” Mack, 669 F.2d at 32. The reasoning of Mack appears to be in accord with the policy behind the Speedy Trial Act and therefore we believe it should be followed by this circuit.
Bond, 956 F.2d at 631. Under Defendant‘s reading, namely that
This case is Bond with a twist: on “the date the action occasioning retrial bec[ame] final“—the date the trial court vacated Defendant‘s guilty plea (September 30, 2015)—the Ohio court lost jurisdiction pursuant to Rule 20. Thus, as the district court decided, this is not unlike the situation after a court of appeals vacates a guilty plea and the matter is returned to the district court for further proceedings. The circuits are split as to when to begin counting the limitations period under
We agree with the district court that a similar rule should apply where, by operation of
B. Sixth Amendment Claim
Defendant also argues that the district court misapplied the Barker v. Wingo6 factors in determining that his Sixth Amendment right to a speedy trial was not violated and therefore erroneously refused to dismiss the Kentucky indictment.7 The Sixth Amendment guarantees in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
1. Length of Delay
“The first factor, length of the delay, is a triggering mechanism.” United States v. Brown, 498 F.3d 523, 530 (6th Cir. 2007). A one-year delay is presumptively prejudicial and triggers analysis of the remaining Barker factors. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). Noting that as of April 27, 2016, ten years, four months, and fourteen days had passed since Defendant was indicted, the district court found the length of the delay, “far exceeded the ordinary threshold” and was presumptively prejudicial. ID# 940. This factor is not in dispute.
2. Reason for Delay
“In assessing the second factor, the reason for the delay, the court cоnsiders who is most at fault—the government or the defendant.” Brown v. Romanowski, 845 F.3d 703, 714 (6th Cir. 2017) (citing United States v. Schreane, 331 F.3d 548, 554 (6th Cir. 2003)), petition for cert. filed, May 16, 2017 (No. 16-1373). “Governmental delays motivated by bad faith, harassment or attempts to seek a tactical advantage weigh heavily against the government.” Id. (quoting Schreane, 331 F.3d at 553). Negligence and unexplained delays weigh less heavily against the government, but remain relevant, “since the ultimate responsibility for such circumstances belongs to the government rather than with the defendant.” Id. (quoting Schreane, 331 F.3d at 554 (quoting Barker, 407 U.S. at 531)). The government bears the burden of explaining the cause of the delay. Id. (citations omitted).
The district court held that the second Barker factor, the reason for the delay, was “neutral.” The court observed that the delay was attributable to the defective plea and sentencing process in the Ohio case. ID# 941. Notwithstanding, the court did not find this breakdown to merit relief because it “likely constitute[d] negligence” and “none of the parties complained or even mentioned the lack of a guilty plea to the sentencing court.” ID# 941. Moreover, “the primary reason” Defendant did not receive a speedy trial was because he had opted to plead guilty and to enter into a unified plea agreement covering both the Ohio and Kentucky charges. ID# 941-42. On top of that, Defendant failed to raise the issue on direct appeal, and waited almost five-years to bring the § 2255 motion. ID# 942. Thus, although “disconcerted by the lapse of over ten years and the breakdown of the plea and sentencing process in Defendant‘s case,” the district court refused to hold that the government and the district court were “more to blame for the delay” than Defendant. Id.
Defendant argues that negligence is an unacceptable reason “for delaying a criminal prosecution once it has begun,” Appellant‘s Br. at 28 (quoting Doggett, 505 U.S. at 657), and that “delay resulting from a
I can say without hesitation that I don‘t think this would have happened here because our probation officers sit in the courtroom during the rearraignments. I understand from the probation officers that that‘s not the case in the Southern District.
ID# 1104-05; but see ID# 1106 (“I started out my discussion here this morning with there‘s negligence to go around on every level. The Court, Probation, defense counsel, prosecutor, all court entities because no one caught it.“) Thus, according to Defendant, because the government and the court were negligent, this factor should have weighed against the government.
Defendant seems to be arguing that if there is any negligence on the government‘s part, then the government is entirely to blame for the delay. But the second Barker factor directs the court to ask “whether the government or the criminal defendant is more to blame for [the] delay,” Doggett, 505 U.S. at 651 (emphasis added). In other words, the second Barker factor asks the court to weigh the equities in each case. Here, the district court found that there was “negligence ... to go around for everybody.” ID# 1104. This included Defendant, who decided to plead guilty and not go to trial, and behaved accordingly until he filed his § 2255 motion five years later. ID# 941-42. Contrary to Defendant‘s assertion, the district court did not suggest that the government was more culpable. Indeed, in its written opinion, the court clearly stated that it “[could] not say that the Government and the district court are more to blame for the delay than the Defendant.” ID# 942. Nothing in the record undermines that conclusion. Defendant‘s intention to plead guilty may explain why he did not object at sentencing to the Kentucky charges, but it does not excuse his negligence in failing to point out the missing factual basis for the plea. In short, the court did not err in holding that this factor could not be counted against the government or in Defendant‘s favor.
The cases Defendant cites do not bolster his assertion. In Cain v. Smith, 686 F.2d 374 (6th Cir. 1982), the state obtained five continuаnces over the defendant‘s speedy trial objections, but the record did not contain the district court‘s rationale for granting the continuances. This Court therefore remanded for fact finding because it was unable to engage in the delicate balancing required to assess whether the lengthy delay constitutes a constitutional violation. Id. at 376, 385. In Brillon, the Supreme Court held that the Vermont Supreme Court made a “fundamental error” in attributing to the State all delays, without adequately taking into account the role of defendants and their counsel. Brillon, 556 U.S. at 91-92 (holding that delay caused by defense counsel was attributable to the defendant). See also United States v. Williams, 753 F.3d 626, 632-33 (6th Cir. 2014) (stating “a court should consider whether some of the delay is attributable to the defendant“); United States v. Brown, 498 F.3d 523, 531 (6th Cir. 2007) (defendant offered “nothing to suggest that the government was more to blame for the initial delay in apprehending him than he himself, or that it acted in bad faith or was negligent in failing to locate him“); Wilson v. Mitchell, 250 F.3d 388, 395 (6th Cir. 2001) (although blame for 22-year delay could have been placed on both
That is precisely what the court did in this case: it weighed the relative faults of all parties involved and concluded that everyone had a hand in this mess. Under these circumstances, this factor was properly deemed neutral.
3. Timely Assertion
“The defendant‘s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-32. “The more serious the deprivation, the more likely a defendant is to complain.” Id. at 531. The district court found that the third Barker factor was neutral, noting that Defendant did not assert his speedy trial right until after his conviction and sentence were vacated on collateral attack. In the district court‘s view, “[t]he fact that Defendant would have pled guilty, but for the defect in the plea and sentencing on the Kentucky charges, coupled with the lengthy amount of time that lapsed before Defendant asserted his right to a speedy trial,” cast sufficient doubt on the sincerity of his demand. ID# 942-43.
Defendant argues that this factor favored him because he asserted the right within two months after the case was returned to the Eastern District of Kentucky and only eight days after his arraignment.8 But as the United States points out, case law supports the district court‘s determination. In United States v. Flowers, 476 Fed.Appx. 55 (6th Cir. 2012), this Court held that the defendant‘s belated assertion of speedy trial rights “cast[s] doubt on the sincerity of the demand” and weighed in favor of the government. Id. at 63 (defendant did not vigorously assert his speedy trial rights since his request was made at least twelve months and arguably seventeen months after he was indicted) (citation omitted). In United States v. Brown, 498 F.3d 523 (6th Cir. 2007), this Court held that the defendant‘s failure to assert his speedy trial right until his appeal “weigh[ed] heavily toward a conclusion that no Sixth Amendment violation occurred.” Id. at 532. And in Barker, the landmark case concerning the constitutional right to a speedy trial, the Supreme Court held that the five-year delay between arrest and trial did not create a constitutional violation in large part because the defendant “did not want a speedy trial,” as reflected by the fact that he did not file a motion to dismiss for almost four years after his indictment. Barker, 407 U.S. at 534. The same is true here. The court correctly counted this factor a neutral.
4. Prejudice
The last factor, prejudice, should be assessed “in the light of” three interests: (1) to prevent oppressive pretrial
Defendant basically contends that he is entitled to a presumption of prejudice because of the long delay between his indictment in December 2005 and his § 2255 motion. See Doggett, 505 U.S. at 657 (lengthy delay due to government‘s negligence can give rise to a presumption of prejudice). This Court has rejected any such “bright-line rule.” United States v. Watford, 468 F.3d 891, 908 (6th Cir. 2006) (citing United States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000)). Even if the five-year delay here was presumptively prejudicial, the Supreme Court has stated that ” ‘presumptive prejudice cannot alone carry a Sixth Amendment claim,’ but rather must be considered in the context of the other factors, particularly the reason for the delay.” United States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006) (quoting Doggett, 505 U.S. at 656). As discussed above, everyone was responsible for the lengthy delay, such that no one party should shoulder the blame. Equally important, Defendant did not want a trial in this case. In fact, after the motion at issue was denied by the district court, Defendant entered а conditional guilty plea. In short, the district court did not err in holding that the fourth factor did not help Defendant.
The Supreme Court has clearly indicated that the speedy trial analysis is “necessarily relative. It is consistent with delays and depends upon circumstances.” Barker, 407 U.S. at 522. Even if all four Barker factors are satisfied, a court is not required to conclude that a defendant‘s speedy trial right has been violated. See id. at 533. The unique facts of this case demonstrate why such flexibility is necessary. Although the Ohio court and the government were also at fault, their collective behavior was at least consistent with Defendant‘s original intention to plead guilty. On balance, it cannot be said that Defendant‘s Sixth Amendment right to a speedy trial was violated.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.