Tuesday, September 08, 2009

Speedy Trial Win

United States v. Tinklenberg, Nos. 06–2646 and 08–1765 (6th Cir. 2009). Panel of Judges Keith, Clay, and Gibbons. In an opinion that addresses issues of first impression for the court, the panel dismissed the defendant’s case with prejudice.


* It is the date the defendant appears and not the date of the defendant’s not-guilty plea that starts the speedy-trial clock.

* The plain language of the Speedy Trial Act mandates excluding from the speedy-trial calculation the days on which motions are filed and resolved. This decision is in keeping with the conclusions of other courts of appeals.

* The duration of competency evaluations are not limited under the Speedy Trial Act, but delay in transporting a defendant to such an evaluation beyond ten days is presumptively unreasonable, and if no evidence in rebuttal is presented to explain the delay, the extra time is not excluded.

* Pre-trial motions are not excluded unless they cause an actual delay (or the expectation of delay) of trial. This holding breaks with the conclusions of other courts of appeals. The court concluded that "[e]xcluding time for mundane pretrial motions to allow a gun into the courtroom as evidence and depose a witness by video would frustrate the purpose of the Speedy Trial Act.


* 73 non-excludable days elapsed prior to the defendant’s trial.

* The Speedy Trial Act was violated.

* Dismissal with prejudice was warranted. The defendant’s offense was serious and there was no evidence that the delay was in bad faith and only three days had elapsed to exceed the limit. But re-prosecution would not serve justice because the defendant had already served his sentence and a sentence for violating supervised release.

Judge Gibbons's Concurrence:

* She does not agree that delays in transporting a defendant for a competency evaluation should be counted in the speedy-trial calculus. She believes that 18 U.S.C. § 3161(h)(1)(A) (relating to competency evaluations) is specific and should not be qualified by what she feels are the more general dictates of § 3161(h)(1)(F) (relating to transportation to examinations).

* She still calculates the passage of 71 non-excludable days and would dismiss with prejudice.

Wednesday, September 02, 2009

More Is Brewing on the Crime-of-Violence Front

Very interesting opinion just released—United States v. Wynn, No. 07–4307 (6th Cir. Sept. 2, 2009). Panel of Judges Moore, Gibbons, and Friedman (of the Federal Circuit).

Issue: Is a conviction under Ohio’s Section 2907.03 for "sexual battery" a crime of violence?


* Court could not tell which subsection of the statute was the subsection under which the defendant had been previously convicted. So the Court had to look at the statute broadly.

* Offense does not have force as an element. Coercion is enough. And it is not an enumerated offense, so the analysis had to proceed under the "otherwise clause" of Section 4B1.2(a)(2).

* Based on Begay, this Court overruled its prior decision in United States v. Mack, 53 F.3d 126 (6th Cir. 1995), which had found the offense to be a violent felony for ACCA purposes. One can commit the offense of Ohio sexual battery without aggression or violence. The offense is not categorically a crime of violence.

* The commentary to Section 2L1.2, contributing to the definition of crime of violence as it regards sex offenses for purposes of that guideline section, does not broaden the definition for Section 4B1.2.

* Courts may not use the factual recitations in the PSIR to determine whether a prior offense was a crime of violence. PSIRs are not documents available for review under Shepard.

* United States v. Bartee, 529 F.3d 357 (6th Cir. 2008), foreclosed the use of the PSIR for such a purpose.

* On remand, the district court can consider Shepard documents to determine whether the prior offense qualifies as a crime of violence.

Dissent by Judge Friedman:

* Very interesting.

* Judge Friedman feels that courts should be able to consider the facts in the PSIR if the defendant does not object to them. He does not read Bartee as barring the PSIR’s recitation of facts from consideration. This approach is problematic though because it puts the defendant in the position of having to choose between fighting a crime-of-violence determination and not jeopardizing their acceptance-of-responsibility points (at least in some districts with some POs).

* Judge Friedman also believes there are resources available to use to determine the subsection under which the defendant was previously convicted of sexual battery. Judge Friedman determined the subsection using the state court’s on-line resources. The judge feels this approach to fact determination is appropriate under United States v. Alexander, 543 F.3d 819 (6th Cir. 2008), in which the Court looked to Michigan Department of Corrections on-line records to make a similar determination. Such judicial fact-finding is problematic. A colleague who reads this blog pointed out the dangers of such fact-finding when Alexander first came out. Now, his predictions are being fulfilled. . . . Judge Friedman feels that such judicial fact-finding is more reliable because there is no danger of the government giving inaccurate information. (The majority had to point out the government’s misquote of Taylor—the government quoted Taylor as requiring "that a court look to the ‘facts of conviction’" during the crime-of-violence determination.)

This case is worth a read to keep tabs on the crime-of-violence evolution.