Case Information
*1 Before LUCERO , ANDERSON , and GORSUCH , Circuit Judges.
Autumn Seals seeks reversal of his conviction because, he says, the
proceedings against him ran afoul the Speedy Trial Act. The difficulty is that
Mr. Seаls failed to preserve the particular argument he seeks to raise on appeal.
Under these circumstances, the Act and our precedent require us to affirm.
*2
The Speedy Trial Act requires a criminal trial to commence within seventy
days of (the later of) indictment or arrаignment. 18 U.S.C. § 3161(c)(1). But the
Act also contains “a long and detailed list of periods of delay that are excluded in
computing the time within which the trial must start.”
Zedner v. United States
,
The trouble began on February 9, nine days before the scheduled trial, when Mr. Seals filed a notice of intent to present an alibi witness. Then, the next day a grand jury returned a superseding indictment against Mr. Seals, adding a new count against him (of being a felon in possession of a destructive device, on top of the original charge of possession of an unregistered destructive device). These two events persuaded the district court to continue the trial until June 14, 2010. The court excluded the interim time from the speedy trial clоck on the grounds that the exclusion was necessary to serve the “ends of justice.” 18 U.S.C. § 3161(h)(7)(A). In support of its decision, the court explained that the government would need more time to prepare a response to the alibi defense, and that the new charge in the superseding indictment wоuld necessitate the provision of additional discovery materials to Mr. Seals.
In this appeal, Mr. Seals argues that the district court abused its discretion
in granting the continuance without counting the elapsed time against the Speedy
Trial Act clock. He argues that the new charge against him and the introduction
of an alibi witness didn’t materially change the complexion of the case and didn’t
justify so long a delay. The district court’s findings othеrwise were, he says,
inadequate under
United States v. Toombs
,
The problem for Mr. Seals is that he never adequately presented this argument to the district сourt. True, Mr. Seals did file a pre-trial motion to dismiss the indictment for non-compliance with the Speedy Trial Act. But this motion raised only a separate and discrete issue: he argued that his arraignment on February 23 under the superseding indictment started a new speedy trial clock running, and for this reasоn the February 10 continuance did not exclude the time after that date. Mr. Seals’s counsel made clear that his motion was limited to this “quite narrow” issue, and at a hearing he even conceded to the district court that the district court’s ends-of-justice factual findings “according to the Tooms [sic] case would be sufficient.” Although Mr. Seals later filed a memorandum that arguably sought to raise a Toombs argument as a second and separate question for *4 the court to resolve, by then it was too little, toо late. The entirety of his Toombs argument was this:
Second, is the 111 day continuance justified when the new charge requires very minimal addition [sic] proof. The only difference between the second charge is the felony conviction. Even the Alibi witness information does not require a lot of investigation by the government. Thе 111 days seems to be a long time when a defendant has been in custody since.
An argument so fleeting, made so late in the proceedings, and so bereft of legal citation or factual development is insufficient to present it for a court’s decision, especially when counsel has already expressly disclaimed the very same point in prior communications with the court. See, e.g., United States v. Banks , 451 F.3d 721, 727-28 (10th Cir. 2006). Unsurprisingly, when the court issued its order denying Mr. Seals’s motion it аddressed and rejected only his “new speedy trial clock” argument and didn’t perceive any other issue before the court. And, notably, Mr. Seals did nothing at this stage to indicate to the court that it wished a ruling on the Toombs question.
The upshot is that Mr. Seals waived in the district court the argument he
now seeks to pursue оn appeal. The Speedy Trial Act states that “[f]ailure of the
defendant to move for dismissal prior to trial or entry of a plea of guilty оr nolo
contendere shall constitute a waiver of the right to dismissal under this section.”
18 U.S.C. § 3162(a)(2). We have interpreted this language to mean that we mаy
*5
not conduct any review of Speedy Trial Act arguments unraised below, not even
for plain error.
United States v. Gomez
,
A possible wrinkle (though not one raised by Mr. Seals) is that the statute
requires only that the defendant “move for dismissal prior to trial” to preserve
review and says nothing about preserving
particular
objections. But we have no
difficulty concluding that not only must the defendant seek dismissal prior to
trial, but he must do so
for the reasons
he seeks to press on appeal.
See United
States v. O’Connor
,
Entered for the Court Neil M. Gorsuch Circuit Judge
Notes
[*] After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
[1] Another possible basis for affirming here, though one on which we need not
rely givеn our discussion above, concerns the record on appeal. The record
Mr. Seals initially presented to us, through his counsel, was inadequate under
10th Cir. R. P. 10.3. It failed to include the transcript of the pre-trial hearing
where the issue was addressed, the government’s brief on the issue below, and
еven the very order he now challenges in which the district court excluded time
from the Speedy Trial Act clock. Mr. Seals sought to supplement the record only
after the government’s brief pointed out the deficiencies. We have previously
warned that “[a]n appellant who prоvides an inadequate record does so at his
peril,”
Dikeman v. Nat’l Educators, Inc.
,