USA v. Mario Young

Filing

Opinion issued by court as to Appellant Mario Tavarous Young. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 12/22/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12389
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20129-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO TAVAROUS YOUNG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 22, 2016)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
The key issue in this appeal is whether a district court can deem waived an
accused’s right to a speedy trial unless he objects promptly and makes a written

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demand for a trial within the 70-day period mandated by the Speedy Trial Act of
1974, 18 U.S.C. § 3161(c)(1). A pretrial order that scheduled Mario Tavarous
Young’s criminal trial after the statutory period warned that the district court
would “deem [Young’s right to a] speedy trial to be waived unless . . . [he]
otherwise notif[ed] the [district] court within ten (10) days . . . that [he] object[ed]
to []his trial date and insist[ed], in writing, on a trial date within the Speedy Trial
Act deadlines.” Young did not object, but before trial, he moved to dismiss his
indictment for failure to comply with the Act. See id. § 3162(a)(2). The district
court denied Young’s motion based on the waiver provision in its pretrial order,
and a jury convicted Young of possessing with intent to distribute cocaine base, 21
U.S.C. § 841(a)(1), and possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1),
924(e)(1). Because an accused “may not prospectively waive the application of the
Act,” Zedner v. United States, 547 U.S. 489, 500 (2006), the district court erred by
denying Young’s motion to dismiss his indictment. We vacate Young’s
convictions and remand for the district court to determine whether to dismiss
Young’s indictment with or without prejudice.
I. BACKGROUND
On March 4, 2014, a grand jury indicted Young for three offenses related to
his possession of drugs and a firearm. See 21 U.S.C. § 841(a)(1); 18 U.S.C.
§§ 922(g), 924(e)(1), 924(c)(1)(A)(i). On March 7, 2014, the district court issued a
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scheduling order that set Young’s trial for June 23, 2014. The order also stated
that, if “the scheduled trial date . . . [was] set beyond the time limits of the Speedy
Trial Act,” the district court would “deem speedy trial to be waived unless the
parties” gave notice “within ten (10) days . . . that they object[ed] to this trial date
and insist[ed], in writing, on a trial date within the Speedy Trial Act deadlines.” On
March 14, 2014, the district court arraigned Young and appointed him counsel.
On June 11, 2014, defense counsel filed an unopposed motion to continue
the trial. The district court granted the motion and issued an order that rescheduled
Young’s trial for September 8, 2014. That order included another warning about
the waiver of rights under the Speedy Trial Act.
On August 20, 2014, Young filed pro se a motion to dismiss his indictment.
Young argued that the scheduling of his trial on June 23, 2014, which was 101
days after his arraignment, violated the Act under Zedner, 547 U.S. 489. The
government responded that Young was not entitled to dismissal because he failed
to object and demand an earlier trial date, as required in the pretrial order.
A magistrate judge held an evidentiary hearing and recommended that the
district court deny Young’s motion to dismiss. The magistrate judge determined
that “[a]sking for a continuance because the defense would not have been prepared
for trial was in effect a waiver of the right to require the government to bring

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[Young] to trial within 70 days of his first appearance.” The magistrate judge ruled
that Young’s request for a continuance rendered moot his motion to dismiss.
Defense counsel objected to the recommendation. Counsel argued there was
no waiver because Young had demanded his full panopoly of rights during
arraignment and because the 70-day deadline in the Act expired before he moved
for a continuance. The government replied that the defense could not request
dismissal of the indictment based on a violation of the Act after having represented
that it was unprepared for trial.
The district court denied Young’s motion to dismiss. The district court stated
that it tried “to comply in spirit with the Speedy Trial Act” and that counsel was
obligated to “pay attention” to the notice in the scheduling order and make “an
objection to the fact that [trial] may be” after the speedy trial deadline. The district
court also stated that “it was self-evident” that it had granted a continuance “in the
interest of justice” and that “no defense counsel could object to the granting of [its]
motion even [if the trial had been] set . . . beyond the 70 days [when] it was done
for the purpose of giving the defendant time . . . to conduct the investigation[] and
to complete preparations” for trial.
A jury convicted Young of possessing with intent to distribute cocaine base,
21 U.S.C. § 841(a)(1), and possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1),

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924(e)(1). The district court sentenced Young to 180 months of imprisonment.
This appeal followed.

II. STANDARD OF REVIEW
We review de novo the denial of a motion to dismiss based on a violation of
the Speedy Trial Act. United States v. Mathurin, 690 F.3d 1236, 1239 (11th Cir.
2012).
III. DISCUSSION
Zedner controls this appeal. In that decision, the Supreme Court held that the
trial deadline in the Speedy Trial Act cannot be enlarged by “mere consent or
waiver” of a defendant. 547 U.S. at 500. The Act mandates that, after a defendant
enters a plea of not guilty, his trial “shall commence within seventy days” of the
filing of his indictment or his appearance before a judge, whichever is later. 18
U.S.C. § 3161(c)(1). Although there are “numerous categories of delay that are not
counted in applying the . . . deadline[],” the Act “specifies [those exclusions] in
detail.” Zedner, 547 U.S. at 500.
The district court violated the Act by scheduling Young’s trial past the
speedy trial deadline. The 70-day period commenced running after Young’s
appearance hearing on March 14, 2014, and expired on May 23, 2014, which was a
month before Young’s trial date. Although Young filed a motion for an extension
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on June 11, 2014, that motion could not have tolled the speedy trial deadline
because it had already expired. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th
Cir. 2001) (holding, in habeas corpus context, that an otherwise properly-filed
application cannot toll the federal limitations period “when there is no period
remaining to be tolled”).
In Zedner, the Supreme Court ruled that “a defendant may not prospectively
waive the application of the Act” and that a delay attributable to a continuance
cannot be excluded from the speedy trial deadline by “mere consent or waiver.”
547 U.S. at 500. The Act “comprehensively regulates the time within which a trial
must begin” and “[c]onspicuously . . . has no provision excluding periods of delay
during which a defendant waives [its] application.” Id. That statutory “omission
was a considered one.” Id. Congress withheld defendants’ ability to make
prospective waivers to fulfil the dual purposes of the Act: to safeguard defendants
against undue delays in their trials and to protect society by ensuring that criminal
cases are resolved quickly. Id. at 500–51; see Barker v. Wingo, 407 U.S. 514, 519–
22 (1972) (describing the dual interests of the Speedy Trial Clause of the Sixth
Amendment). If a defendant were empowered to waive the trial deadline, the Court
reasoned, it would vitiate the protections afforded society by speedy justice, which
includes lessening the opportunity for recidivism during pretrial release and
preserving “the deterrent effect of punishment.” Zedner, 547 U.S. at 501, 502.
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The district court “deem[ed] speedy trial to be waived unless the parties . . .
object[ed] . . . and insist[ed] . . . on a trial date within the Speedy Trial Act
deadlines,” but whether a district court presumes waiver or exacts a waiver from
the defendant is a distinction without difference. Both practices circumvent the
strict procedural requirements to be undertaken under the Act. See 18 U.S.C.
§ 3161(h). And, in so doing, both practices disserve the interest of the public in
efficient justice. See also Barker, 407 U.S. at 526–28 (“reject[ing] . . . the rule that
a defendant who fails to demand a speedy trial forever waives his right” because it,
in part, disserves “society[’s] . . . particular interest in bringing swift
prosecutions”).
Courts are obligated to comply with the language of the Act when setting
trial dates, not simply, as the district court professed, to “comply in spirit with the
Act.” The district court, which admittedly scheduled trials “90 days instead of 70
days, or 71 days instead of 70,” failed to comply with the dictates of the Act.
Young could have waived his right to the dismissal of his indictment for a
violation of the Act, 18 U.S.C. § 3162(a)(2), but he did not do so. Young timely
moved for dismissal of his indictment before his trial commenced. See id.
The government argues that Young is estopped from obtaining a dismissal of
his indictment, but we disagree. The doctrine of estoppel bars a party from
assuming inconsistent positions during an action to benefit his cause. Zedner, 547
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U.S. at 504. Like the defendant in Zedner, Young did not “succeed in persuading
the District Court to accept the proposition that prospective waivers of Speedy
Trial Act rights are valid.” Id. at 505 (internal quotation marks and brackets
omitted). The district court affected a waiver of Young’s right to a speedy trial.
And Young’s motion for a continuance, made after the speedy trial deadline had
expired, was not “clearly inconsistent with the position that he now takes in
seeking dismissal of the indictment.” See id.(internal quotation marks omitted).
Young did not move to exceed the speedy trial deadline and did not make a request
that was contrary to his later position that the district court violated the Act by
scheduling his trial after the speedy trial deadline. Young is not estopped from
moving to dismiss his indictment.
The district court erred by denying Young’s motion to dismiss his
indictment. The Act mandates that, when a trial does not begin within the speedy
trial deadline, the information or indictment must be dismissed on the defendant’s
motion. 18 U.S.C. § 3162(a)(2). Although the district court enjoys “great discretion
to make decisions concerning trial schedules and to respond to abuse and delay
where appropriate,” the Act “confines the exercise of that discretion . . . [and]
mandat[es] dismissal of the indictment upon violation of [its] precise time limits.”
United States v. Taylor, 487 U.S. 326, 343–44 (1988).

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Young’s right to a speedy trial was violated, which requires us to vacate his
convictions and remand for the district court to dismiss the indictment, but that
dismissal may be with or without prejudice. See 18 U.S.C. § 3162(a)(2). The Act
provides criteria to guide the district court in determining whether to permit or bar
reprosecution. The district court “shall consider, among others, each of the
following factors: the seriousness of the offense; the facts and circumstances of the
case which led to the dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of justice.” Id. Because we
vacate Young’s convictions, we need not address his arguments about the
enhancement of his sentence under the Armed Career Criminal Act.
IV. CONCLUSION
We VACATE Young’s convictions and REMAND for the district court to
dismiss Young’s indictment.

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