United States of America, Plaintiff-appellee, v. Eddie Stephens, Defendant-appellant, 489 F.3d 647 (5th Cir. 2007)

In these consolidated appeals, Eddie Stephens ("Stephens") challenges his convictions and sentence for various charges arising out of a string of armed bank robberies in the Baton Rouge, Louisiana area. The main issue on appeal is whether Stephens's rights under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, were violated by delays in bringing him to trial.

* As reflected by the trial evidence, Stephens is a disbarred Louisiana attorney who, after developing problems with drugs and alcohol, began spending time with William [489 F.3d 649] 649 Turner ("Turner"), a drug dealer whom Stephens had known since 1996. According to Turner, he and two of his cohorts, Cleveland Golden ("Golden") and Timothy Talbert ("Talbert"), had committed several armed bank robberies in the Baton Rouge area, and when, in June 1998, Stephens indicated that he knew how to clean money marred by exploding dye packs, the men allowed him to join in their next robbery. Thereafter, the group planned several additional robberies, which were carried out by various members of the group.¹  Law enforcement officers investigating the string of bank robberies eventually identified Turner as a potential suspect and began surveilling him. On December 21, 1998, after observing Turner and three other men engage in what appeared to be casing activities near a Bank One, officers secured the bank in anticipation of a robbery. Turner, Talbert, and Golden approached the bank in a stolen Oldsmobile but sped away when they spotted an unmarked surveillance vehicle. Officers then arrested Stephens, who was sitting in a Cadillac parked behind the bank. Stephens admitted that he was waiting for Turner but denied having any knowledge of a plan to rob the bank that day.

On October 16, 2000, the Government filed a criminal complaint against Stephens, charging him with participating in the July 1, 1998 robbery, the August 14, 1998 robbery, the October 16, 1998 robbery, and a November 13, 1998 robbery of a Deposit Guaranty Bank. The complaint also charged Stephens with conspiring to commit those robberies and the thwarted robbery of the Bank One on December 21, 1998. Stephens made his initial appearance before a magistrate judge ("MJ") on October 27, 2000. The MJ subsequently held a detention hearing, where, after hearing testimony from Stephens, the MJ found that Stephens presented a flight risk and a danger to the community and ordered him detained pending trial.

On November 15, 2000, a federal grand jury returned an indictment against Stephens and Turner, charging them with one count of conspiracy to commit bank robbery, one count of armed bank robbery in connection with the July 1, 1998 robbery, and one count of using a firearm during that robbery.²  Two weeks later, on November 29, 2000, Stephens filed pro se motions to obtain a private investigator and an expert witness. The MJ struck both motions the following day, stating that because Stephens had been provided with counsel, he "should not be filing anything in the record that is not signed by counsel of record." Nevertheless, on December 5, 2000, Stephens filed pro se motions for leave to act as co-counsel and to obtain copies of all pleadings filed in the case. Two days later, Stephens filed two more pro se motions, one for reconsideration of the detention order and another for a bill of particulars. The MJ denied Stephens's motion for reconsideration of his detention order but did not immediately rule on the remainder of Stephens's pro se motions. Instead, the MJ scheduled a motion hearing for January 16, 2001, where, after questioning by the MJ, Stephens [489 F.3d 650] 650 withdrew his motion to act as co-counsel and the MJ denied the remaining motions.

On January 25, 2001, Turner filed a motion to determine his mental competency to stand trial, and Stephens filed a motion to sever his case from that of Turner for trial purposes. The district court granted Turner's motion the following day but did not rule on Stephens's severance motion. Almost three months later, on May 18, 2001, the government filed a response in opposition to Stephens's motion. Again, however, the district court made no ruling on the motion.

After lengthy competency proceedings and an evidentiary hearing, the district court ruled on April 10, 2002 that Turner was competent to stand trial.³  The next day, Turner pleaded guilty to three counts in the indictment pursuant to a written plea agreement. The district court accepted Turner's guilty plea and referred his case to the probation department for preparation of a presentence investigation report; however, the court deferred acceptance of the plea agreement until Turner's sentencing, which was subsequently set for August 16, 2002.⁴  One week later, the district court set Stephens's case for a jury trial on July 22, 2002. On May 30, 2002, however, the government filed a superseding indictment against Stephens alone. The superseding indictment added several counts to the charges already pending against Stephens, including two counts of bank robbery and two counts of using a firearm during a crime of violence in connection with the August 14, 1998 and October 16, 1998 robberies.

Thereafter, Stephens filed several motions to continue his trial date, the first of which was filed and granted on June 7, 2002. The court continued the trial date until September 16, 2002. On August 27, 2002, Stephens again moved for an "ends of justice" continuance of the trial date, but the district court denied the motion the following day. Then, on September 10, 2002, Stephens gave notice that he intended to rely on an insanity defense and filed a motion for a competency hearing, along with his third motion for a continuance. The district court granted both motions the next day and ordered that Stephens be committed to the custody of the attorney general for psychiatric and psychological testing. According to Stephens, he did not arrive at the Federal Medical Center in Fort Worth, Texas until 29 days later, on October 10, 2002. Over the next six months, four extensions of time were granted to the Federal Medical Center, ultimately extending the deadline for the completion of Stephens's mental evaluation to April 25, 2003. Stephens's competency [489 F.3d 651] 651 hearing took place on July 31, 2003, and at the end of the hearing, the district court scheduled a jury trial for October 27, 2003. After receiving the parties' post-hearing briefs, the district court ruled on August 22, 2003 that Stephens was competent to stand trial. The government immediately filed a motion to transfer custody of Stephens, which was granted on August 27, 2003.

On October 8, 2003, Stephens filed two motions: one to dismiss the indictment due to a Speedy Trial Act violation and one to dismiss due to pre-indictment delays.⁵  The following week, Stephens moved to waive his right to a jury trial. With the government's consent, the district court granted Stephens's motion for a bench trial on October 17, 2003. Four days later, the district court denied Stephens's motion to dismiss due to pre-indictment delays, finding that there was no evidence of intentional pretrial delays on the part of the government and that Stephens had failed to show any prejudice. The bench trial commenced on October 27, 2003 and concluded on October 30, 2003, with the court finding Stephens guilty on all seven counts in the superseding indictment. One week later, the district court issued its written ruling denying Stephens's Speedy Trial Act motion. The district court concluded that, after factoring in all excludable delays, only sixty-nine days had elapsed on the Speedy trial clock.⁶  On February 19, 2004, the district court sentenced Stephens to fifty years and ten months imprisonment.⁷  Stephens timely appealed his convictions and sentence.

On November 5, 2004, Stephens filed in the district court a pro se motion for a new trial pursuant to Federal Rule of Criminal Procedure 33(b) (1), alleging that newly discovered evidence of prosecutorial misconduct entitled him to a new trial. Stephens claimed that the government had: concealed from him evidence that Turner had opened a savings account at the Bank One Stephens was convicted of robbing prior to that robbery; advised Turner to deny any knowledge of that account when testifying against Stephens; and threatened to forbid Turner from contact with his children and to prosecute his wife if he refused to testify against and implicate Stephens. After receiving the parties' briefs, the district court denied Stephens's motion without an evidentiary hearing, ruling that the "evidence" about which Stephens complained was not newly discovered. Stephens timely appealed the district court's ruling, and his two appeals were consolidated.

II

Stephens first challenges the district court's denial of his motion to dismiss the [489 F.3d 652] 652 indictment for an alleged Speedy Trial Act violation. We review the district court's factual findings supporting its Speedy Trial Act ruling for clear error and its legal conclusions de novo. United States v. Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002).

* The Speedy Trial Act, which is designed to protect a criminal defendant's constitutional right to a speedy trial and to serve the public interest in bringing prompt criminal proceedings, requires that a defendant's trial commence within seventy days from his indictment or initial appearance, whichever is later. See 18 U.S.C. § 3161(c) (1); United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994). Under § 3161(h), however, certain delays are excluded in calculating the seventy-day period. 18 U.S.C. § 3161(h) (1)-(9). Among the kinds of delay that are excludable are: delay resulting from mental competency proceedings; delay resulting from any pretrial motion; delay resulting from the court's consideration of a proposed plea agreement; delay resulting from the transportation of a defendant to and from a place of examination or hospitalization, up to a period of ten days; and delay resulting from an "ends of justice" continuance. Id. § 3161(h) (1), (8). Also excludable are any reasonable periods of delay attributable to a codefendant. Id. § 3161(h) (7). "If more than seventy non-excludable days pass between the indictment and the trial, the `indictment shall be dismissed on motion of the defendant.'" Johnson, 29 F.3d at 942 (quoting 18 U.S.C. § 3162(a) (2)).

In this case, three years passed between the filing of the original indictment against Stephens in November 2000 and the commencement of his trial in October 2003. Although Stephens concedes that this three-year period contains numerous periods of excludable delay, he contends that the district court erroneously concluded that three events stopped his speedy trial clock: (1) his December 7, 2000 pro se motion for a bill of particulars, which was held to toll the clock until the MJ's denial of the motion on January 16, 2001; (2) Turner's January 25, 2001 motion for a competency hearing, which was held to toll the clock until the conclusion of the competency proceedings on April 10, 2002; and (3) Turner's April 11, 2002 guilty plea, which was held to toll the clock until the superseding indictment was filed against Stephens on May 30, 2002.⁸ 

After carefully reviewing the record, we conclude that Stephens's first two objections are meritless. First, the district court correctly concluded that Stephens's "artfully drawn" pro se motion for a bill of particulars stopped the clock from the date it was filed (December 7, 2000) through the date the MJ held a hearing on and denied the motion (January 16, 2001).⁹  Second, the district court correctly concluded that Turner's motion for a competency evaluation stopped the clock from the date it was filed (January 25, 2001) through the date the court ruled that Turner was competent to stand trial (April 10, 2002).¹⁰  We therefore focus our attention on Stephens's third objection, which challenges the exclusion of the seven-week period between the court's acceptance of Turner's guilty plea on April 11, 2002 and the filing of the superseding indictment against Stephens on May 30, 2002. If, as Stephens contends, this period is not excludable from his speedy trial clock, then more than seventy days will have elapsed and a Speedy Trial Act violation will have occurred.

The district court determined that Stephens's speedy trial clock stopped when Turner pleaded guilty to the original indictment on April 11, 2002 because the court was considering the plea agreement that had been entered into by Turner and the government. See 18 U.S.C. § 3161(h) (1) (I) (excluding "delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government"). The district court found this period excludable as to Stephens because Turner was still his codefendant at the time. The court further determined that the speedy trial clock remained stopped until May 30, 2002, when the superseding indictment was filed against Stephens alone, because " [a]t that point, [Turner and Stephens] could no longer be [489 F.3d 654] 654 considered co-defendants." Stephens contends that this seven-week period was not a "reasonable period of delay" within the meaning of § 3161(h) (7) and, hence, should not have been excluded from his speedy trial clock.

Section 3161(h) (7) provides for the exclusion of a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." 18 U.S.C. § 3161(h) (7). This means that "the excludable delay of one codefendant may be attributable to all codefendants." Franklin, 148 F.3d at 455. Attribution of the excludable delay of one codefendant to another codefendant is not, however, automatic; rather, the period of delay must be reasonable. See Henderson v. United States, 476 U.S. 321, 326-27, 106 S. Ct. 1871, 90 L. Ed. 2d 299 (1986). The reasonableness of the delay can be measured in reference to either (1) "the totality of the circumstances prior to trial"; or (2) "the actual prejudice suffered by the appellant" as a result of the delay. See Franklin, 148 F.3d at 457. "In examining the totality of the circumstances of the case, our inquiry focuses on the necessity of the delay, giving proper consideration `to the purpose behind [§ 3161(h) (7)] — accommodating the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial.'" Bieganowski, 313 F.3d at 283 (quoting Franklin, 148 F.3d at 457). "With respect to the prejudice analysis, relevant considerations include whether the delay impaired the appellant's ability to defend himself or resulted in excessive pretrial incarceration." Franklin, 148 F.3d at 457. "Given the fact-intensive nature of the reasonableness inquiry, we review subsection (h) (7) exclusions on a case-by-case-basis." Bieganowski, 313 F.3d at 283.

Consideration of all of the relevant circumstances in this case warrants the conclusion that the seven-week period following Turner's guilty plea was not a "reasonable period of delay" excludable under § 3161(h) (7). Most importantly, the delay was not necessary to serve the purpose of § 3161(h) (7). "There is a preference in the federal system for joint trials of defendants who are indicted together," Zafiro v. United States, 506 U.S. 534, 537, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993), and prior to Turner's guilty plea, "the utility of a joint trial [wa]s particularly compelling" in this case because Turner and Stephens were charged with a single conspiracy, see Franklin, 148 F.3d at 457. When the district court accepted Turner's guilty plea, however, the possibility of a joint trial of Turner and Stephens was substantially reduced, if not eliminated.¹¹ 

To be sure, the mere fact that Turner entered a guilty plea did not completely eliminate the possibility of a joint trial with Stephens, as Turner could have withdrawn his guilty plea and proceeded to trial. However, the circumstances of this case, and the terms of Turner's plea agreement in particular, made it highly unlikely that Turner would be able to withdraw his guilty plea in time to proceed to trial with Stephens. Following the court's acceptance of his guilty plea, Turner did not have an absolute right to withdraw that plea. See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). Rather, Turner could have withdrawn his guilty plea only if the court rejected his plea agreement or if he could show "a fair and just reason for requesting the withdrawal" of [489 F.3d 655] 655 the plea. See Fed. R. Crim. P. 11(d) (2). One of the conditions of Turner's plea agreement was that he provide truthful testimony in any trial where such testimony was relevant. One such trial was that of Stephens, which was scheduled to occur before Turner's sentencing. Indeed, each time Stephens's trial date was postponed, the government moved to continue Turner's sentencing date until after Turner testified at Stephens's trial, so that the court would know whether Turner had complied with the terms of the plea agreement before deciding whether to accept or reject it. Although the district court was certainly entitled to delay the acceptance of Turner's plea agreement while waiting to see whether Turner fulfilled the conditions of the agreement, the delay did not serve to preserve the possibility of a joint trial of Turner and Stephens. To the contrary, the fact that the court did not intend to accept or reject the plea agreement until Turner's sentencing — which was not scheduled to occur until after Turner testified at Stephens's trial — made it extremely unlikely that a need for Turner to go to trial would arise before Stephens's trial took place and, hence, that a joint trial would ever occur. Tolling Stephens's speedy trial clock pending the court's acceptance or rejection of Turner's plea agreement was therefore wholly unnecessary to achieve the purpose behind § 3161(h) (7) — facilitating the efficient use of prosecutorial and judicial resources by enabling joint trials. See Franklin, 148 F.3d at 457.¹²  Although there may be cases where delay resulting from a court's post-guilty plea consideration of codefendant's plea agreement is necessary to preserve the possibility of a joint trial, this is not such a case.

Stephens's assertion of his speedy trial rights and the overall length of the delays attributable to Turner, during which time Stephens remained in prison without bond, are circumstances that further indicate that tolling Stephens's speedy trial clock while the court delayed its acceptance of Turner's plea agreement was unreasonable. Long before Turner's guilty plea, Stephens filed a motion to sever his case, upon which the district court never ruled. Thereafter, Stephens filed a pro se petition for a writ of habeas corpus, in which he expressly asserted that his rights under the Speedy Trial Act were being violated. Again, the district court did not rule upon Stephens's motion. When Turner subsequently pleaded guilty, Stephens's trial had already been delayed for fifteen months due to Turner's mental competency proceedings. Although Stephens filed several of his own motions that tolled the speedy trial clock for much of that period, at least four months of the fifteen-month delay were not attributable to Stephens's motion practice. Thus, the seven-week period when Turner's plea agreement was "under consideration," though not terribly lengthy when considered in isolation, followed on the heels of another long delay caused not by Stephens but by Turner. Thus, the overall length of the delay, along with Stephens's prior invocation of his right to a speedy trial, weigh in favor of finding the delay unreasonable.

After examining the totality of the circumstances of this case, focusing particularly on the necessity of the delay as it pertains to the purpose behind [489 F.3d 656] 656 § 3161(h) (7) — enabling joint trials — we hold that it was not reasonable for Stephens's speedy trial clock to be tolled while the district court delayed the acceptance of Turner's plea agreement.¹³  Consequently, the seven-week period from April 11, 2002 to May 30, 2002 is not excludable for reasons associated with Turner's guilty plea. Unless this period is excludable for some other reason, Stephens's speedy trial clock exceeds the seventy non-excludable days permitted under the Speedy Trial Act. We must therefore consider the government's argument that another event — Stephens's January 25, 2001 severance motion — tolled the speedy trial clock until the superseding indictment was filed against him on May 30, 2002.

Section § 3161(h) (1) (F) ("Subsection F") excludes delay resulting from the filing of a pretrial motion through the conclusion of the hearing on, or other prompt disposition of, the motion. 18 U.S.C. § 3161(h) (1) (F). Section 3161(h) (1) (J) ("Subsection J") provides for the exclusion of up to thirty days after the court takes a pretrial motion under advisement. Id. § 3161(h) (1) (J); see Johnson, 29 F.3d at 942. In Johnson, we clarified how Subsections F and J operate. See Johnson, 29 F.3d at 942-45 (applying Henderson, 476 U.S. at 328-31, 106 S. Ct. 1871). We explained that when a motion requires a hearing, Subsection F operates to toll the speedy trial clock from the date the motion is filed through the date that the court holds a hearing on the motion. Id. at 942-43. Subsection F also implicitly excludes "that time after a hearing needed to allow a trial court to assemble all papers reasonably necessary to dispose of the motion, e.g., the submission of post-hearing briefs." Id. at 943. At that point, the court is deemed to have taken the motion "under advisement" and has thirty excludable days under Subsection J in which to rule. Id. The clock begins to tick again at the end of that thirty-day period, regardless of whether the court has ruled on the motion. Id.

If the motion does not require a hearing, Subsection F excludes the time needed for a "prompt disposition" of the motion, which, under Subsection J, may be no more than thirty days from the date the motion is taken under advisement. Id. Absent evidence to the contrary, "a motion should be considered under advisement for Speedy Trial Act purposes on the day the last paper concerning the motion at issue was filed with the court." Id. at 944. "Thereafter, the fact that a motion is `pending,' or is otherwise unresolved, does not toll the Speedy Trial clock." Id. at 943 (footnote omitted). Applying these principles, we held in Johnson that several motions that were ruled on without hearings almost a year after their filing dates did not operate to toll the speedy trial clock beyond the thirty-day "under advisement" period established by Subsection J. Id. at 943-45.

Relying on Johnson, Stephens argues that his severance motion went "under advisement" no later than May 18, 2001, when the government filed its response in opposition to the motion. Thereafter, Stephens argues, the motion tolled the speedy trial clock for the next thirty days, or until June 17, 2001. We agree with Stephens's reasoning. Because the district court did not hold a hearing on the severance motion, and because the record [489 F.3d 657] 657 reflects that the last paper concerning the motion filed with the court was the government's May 18, 2001 response to the motion, the motion operated to toll the speedy trial clock only for another thirty days after May 18, 2001, or through June 17, 2001.¹⁴  Consequently, the period from April 11, 2002 to May 30, 2002 is not excludable by reason of Stephens's severance motion.

In sum, the record demonstrates that neither Turner's guilty plea (and the court's subsequent "consideration" of his plea agreement) nor Stephens's severance motion rendered excludable the period from April 11, 2002 to May 30, 2002. When that seven-week period of delay is added to the sixty-nine other non-excludable days found by the district court to have elapsed on the speedy trial clock, the delays in bringing Stephens to trial far exceeded the seventy-day period authorized by the Speedy Trial Act. Consequently, the Speedy Trial Act mandates that Stephens's [489 F.3d 658] 658 convictions be reversed, his sentence vacated, and the indictment against him dismissed.

B

In outlining the sanctions for a Speedy Trial Act violation, the statute leaves to the court's discretion whether to dismiss the indictment with or without prejudice. 18 U.S.C. § 3162(a) (2). "This discretion is channeled through three factors, consideration of which is mandatory: (1) the seriousness of the offense, (2) the facts and circumstances of the case which led to the dismissal, and (3) the impact of a reprosecution on the administration of the [Speedy Trial Act] and on the administration of justice." United States v. Martinez-Espinoza, 299 F.3d 414, 418 (5th Cir. 2002). Stephens notes that " [o]ur usual practice is to remand for the district court to consider the factors," id., and argues that this case fits into the usual pattern. We agree. Accordingly, we remand the case for the district court to determine whether dismissal should be with or without prejudice, giving proper consideration to the factors set forth in 18 U.S.C. § 3162(a) (2).

III

For the foregoing reasons, we reverse Stephens's convictions, vacate his sentence, and remand for the district court to determine whether the indictment should be dismissed with or without prejudice. Accordingly, we do not reach Stephens's other arguments on appeal.

REVERSED AND REMANDED.