U.S. v. Burrell

634 F.3d 284

UNITED STATES of America, Plaintiff–Appellee,

v.Valerick BURRELL, Defendant–Appellant.

No. 09–30765.

United States Court of Appeals, Fifth Circuit.

Feb. 15, 2011.

Catherine M. Maraist, Asst. U.S. Atty. (argued), Michael J. Jefferson, Baton Rouge, LA, for U.S.Gwendolyn Kay Brown (argued), (Court–Appointed), Baton Rouge, LA, for Burrell.

Appeal from the United States District Court for the Middle District of Louisiana.Before JOLLY, DeMOSS and DENNIS, Circuit Judges.PER CURIAM:

The defendant, Valerick Burrell (“Burrell”), appeals his conviction for possession of a firearm by a convicted felon pursuant to 18 U.S.C. § 922(g)(1). He raises a series of challenges to the district court's rulings during his trial and in response to his motion to suppress. We do not reach these claims, however, as we agree with the defendant that he was brought to trial beyond the date allowed by the Speedy Trial Act, which requires that a defendant's trial commence within 70 days of his indictment or first appearance before a judge. 18 U.S.C. § 3161(c)(1). While 18 U.S.C. § 3161(h) provides that certain periods of time are excluded from the 70–day clock, we conclude that the district court erroneously held that, pursuant to 18 U.S.C. § 3161(h)(3) and (7), the period of time it took for the Government to secure the presence of one of its witnesses was excluded from the 70–day period; thus, Burrell was brought to trial beyond the date allowed by the Act. Therefore we must REVERSE the defendant's conviction, VACATE his sentence and REMAND the case so that the district court can determine whether to dismiss the indictment with or without prejudice.

I.

The Speedy Trial Act requires that, “[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1).

If a trial does not commence by the date required by the Speedy Trial Act, the Act demands that “the information or indictment ... be dismissed on motion of the defendant.” Id. § 3162(a)(2); see also Bloate v. United States, –––U.S. ––––, 130 S.Ct. 1345, 1349, 176 L.Ed.2d 54 (2010) (stating that the Act “entitles [the defendant] to dismissal of the charges if [its] deadline is not met, § 3162(a)(2)”); Zedner v. United States, 547 U.S. 489, 507–08, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (“The relevant provisions of the Act are unequivocal .... When a trial is not commenced within the prescribed period of time, ‘the information or indictment shall be dismissed on motion of the defendant.’ § 3162(a)(2).”). “The Act, however, excludes from the 70–day period delays due to certain enumerated events. § 3161(h).” Bloate, 130 S.Ct. at 1349.

In the instant case, Burrell's trial commenced 165 days after the date he first appeared before a judicial officer, which was the later of that date and the filing of the indictment against him. The Government contends that three exclusions to the 70–day speedy trial clock apply, making Burrell's trial timely. The first is the exclusion under 18 U.S.C. § 3161(h)(1)(D) for a “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.” As the Supreme Court recently explained, “[r]ead, as it must be, in the context of subsection (h), this text governs the automatic excludability of delays ... from the time a motion is filed through the hearing or disposition point specified in the subparagraph.” Bloate, 130 S.Ct. at 1352–53. Burrell does not challenge the applicability of this exclusion.

The second and third exclusions that the government claims apply are the exclusions under § 3161(h)(3) and § 3161(h)(7). Burrell challenges the applicability of both.

Subsection 3161(h)(3)(A) excludes “[a]ny period of delay resulting from the absence or unavailability of a defendant or an essential witness.” The statute continues that “a defendant or an essential witness shall be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence” and “a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.” 18 U.S.C. § 3161(h)(3)(B). In the instant case, the Government only claims that § 3161(h)(3)(A) is applicable because its essential witness, one of the arresting officers, was “unavailable” because his presence could not obtained by “due diligence.” The Government acknowledges that the witness was not resisting appearing or avoiding apprehension, nor were his whereabouts unknown. (Hereinafter, we refer to this exclusion as the “unavailable essential witness exclusion.”) The statute states that “the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3).” Id. § 3162(a)(2).

Subsection § 3161(h)(7) excludes “[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his 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.” (Hereinafter, we refer to this exclusion as the “ends of justice exclusion.”). The ends of justice exclusion contains an exception, § 3161(h)(7)(C), which states: “No continuance under [this exclusion] shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.” Here too, the Government bears the burden of establishing the applicability of this exclusion as “the trial court [did not] independently recognize[ ] the need for such a delay” and the Government is “the party seeking to benefit from the delay.” United States v. Bigler, 810 F.2d 1317, 1323 (5th Cir.1987); see also United States v. Gonzales, 137 F.3d 1431, 1435 (10th Cir.1998) (stating that when the Government seeks the exclusion, it must “support[ ] by the information and evidence presented to the district court” that there is a “permissible” basis for the exclusion); United States v. Kelley, 36 F.3d 1118, 1126 n. 5 (D.C.Cir.1994) (“The burden is on the movant to show that the ‘ends of justice’ require a continuance of the trial.”); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir.1979) (“[I]t seems to us that the burden is on the government or the court to set forth in the record what are excludable periods or at least what are the operable facts leading to the exclusion.”).

II.

Burrell first appeared before a judicial officer on July 3, 2008, starting the speedy trial clock.¹ See 18 U.S.C. § 3161(c)(1). Therefore, absent an applicable exclusion, the Speedy Trial Act required that Burrell be brought to trial by September 11, 2008. However, both parties agree that Burrell filed a motion to suppress on August 4, 2008, which was ruled upon on October 14, 2008. This period, the parties agree, falls within the exclusion under 18 U.S.C. § 3161(h)(1)(D) for a “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,” thereby excluding 72 days from the speedy trial clock. Accordingly, taking account of this period, the Speedy Trial Act required that Burrell be brought to trial by November 22, 2008. Consistent with this requirement, the trial was originally scheduled for November 5, 2008.

However, prior to the trial's scheduled November 5 commencement, the Government moved for a continuance because one of the arresting officers, Nathan Crawford—who allegedly overheard the defendant's confession of his possession of a firearm—would be unavailable to testify because of a prior commitment. The Government argued that this circumstance justified the unavailable essential witness and ends of justice exclusions to the speedy trial clock. The substance of the Government's motion read in full:

Deputy Nathan Crawford, [sic] is unavailable to testify at the trial of this matter scheduled for November 5, 2008, due to previously scheduled official commitments, described in more detail below.

The United States has subpoenaed East Baton Rouge Parish Sheriff Deputy Nathan Crawford as a witness. Deputy Crawford was present for the arrest of the defendant, was first to approach and confront him, and ultimately heard the his [sic] confessions of the defendant. Deputy Crawford is an essential witness regarding the approaching trial.

Deputy Crawford currently serves as a member of the East Baton Rouge Parish Sheriff's Office's SWAT Team. Due to man power staffing shortages and recent personnel losses, Deputy Crawford is the only “Less-lethal” instructor remaining among Sheriff's Department's [sic] staff. Routine certifications are required and Deputy Crawford's current certification will expire before another class is offered. The Sheriff's Department has already paid, on behalf of Deputy Crawford, the approximate $4,000 cost for tuition and hotel accommodations. Should Deputy Crawford not re-certify at this opportunity, his current certification will expire and the Sheriff's Department will be without properly credentialed persons thereby placing its rating in jeopardy.

In light of the above, the United States submits that [Deputy] Crawford is an...