USA v. Reginald Myer
OPINION and JUDGMENT filed: REVERSED and REMANDED, decision for publication pursuant to local rule 206. Danny J. Boggs, R. Guy Cole, Jr., Jeffrey S. Sutton (AUTHORING), Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0010p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 10-4314
REGINALD S. MYERS,
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 10-00069-001—Michael R. Barrett, District Judge.
Argued: December 6, 2011
Decided and Filed: January 11, 2012
Before: BOGGS, COLE and SUTTON, Circuit Judges.
ARGUED: Benjamin C. Glassman, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellant. Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S
OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Benjamin C. Glassman,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellant. Kevin
M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellee.
SUTTON, Circuit Judge. The government did not prosecute Reginald Myers’
first indictment for joining a heroin-distribution ring as quickly as the Speedy Trial Act
requires. On Myers’ motion, the district court dismissed the charges without prejudice.
When the government filed the same charges in a new indictment, the district court
United States v. Myers
dismissed them too, reasoning that the speedy-trial clocks for the new charges ran from
the dates of Myers’ original arrest and indictment. We reverse.
The police arrested Myers on February 4, 2009, after filing a sealed complaint
that charged him with peddling heroin. Myers appeared before a federal magistrate
judge the same day and was released on bond to give him a chance to cooperate with
investigators. A federal grand jury returned a sealed indictment on June 17, 2009,
charging Myers and several others with drug-trafficking offenses. Authorities took
Myers back into custody, and an arraignment on the indictment took place on
September 22, 2009. The government tarried in bringing the case to trial, prompting the
district court to grant Myers’ motion to dismiss the charges against him under the
Speedy Trial Act. The court held that the government violated two provisions of the
Act: (1) more than 30 non-excludable days elapsed between Myers’ initial arrest and
indictment; and (2) more than 70 non-excludable days elapsed between his arraignment
and the start of trial. See 18 U.S.C. §§ 3161(b), (c)(1). The court dismissed the charges
Three months later, a federal grand jury returned a new indictment charging
Myers with the same crimes. He again moved to dismiss the charges under the Speedy
Trial Act. The district court granted the motion, reasoning that because the charges in
the new indictment were based on the same conduct as the charges in the original
indictment, the same (already expired) speedy-trial deadlines applied.
For our purposes, the Speedy Trial Act imposes two limits on the prosecution of
a criminal defendant: (1) the government must file an indictment within 30 days of the
defendant’s arrest, 18 U.S.C. § 3161(b); and (2) the defendant’s trial must commence
within 70 days of his initial appearance or the filing of the indictment, whichever occurs
last, id. § 3161(c)(1). If the government exceeds these limits and the Act does not
exclude the delays, id. § 3161(h), the Act requires the district court to dismiss the case
United States v. Myers
on the defendant’s motion, id. §§ 3162(a)(1)–(2). The Act gives the district court
discretion over whether to dismiss the case with prejudice or without it. Id.
If, as happened here, the district court dismisses an initial indictment without
prejudice, what happens when the government files a second indictment based on the
same conduct? Do the 30-day and 70-day limitations start anew or do they run from the
initial arrest and indictment? In our view, the text of the relevant provisions together
with common sense establish that the clocks start anew.
Consider what the relevant text says. Section 3161(d)(1) provides:
If any indictment or information is dismissed upon motion of the
defendant, or any charge contained in a complaint filed against an
individual is dismissed or otherwise dropped, and thereafter a complaint
is filed against such defendant or individual charging him with the same
offense or an offense based on the same conduct or arising from the same
criminal episode, or an information or indictment is filed charging such
defendant with the same offense or an offense based on the same conduct
or arising from the same criminal episode, the provisions of subsections
(b) and (c) of this section shall be applicable with respect to such
subsequent complaint, indictment, or information, as the case may be.
When the court dismisses a charge and the government subsequently brings a new
charge based on the same conduct, the 30-day speedy-indictment clock and the 70-day
speedy-trial clock—“the provisions of subsections (b) and (c)”—thus apply to the new
charge. By saying that the 30-day and 70-day clocks “shall be applicable” to the new
“indictment,” § 3161(d)(1) goes a long way to answering the question at hand. Read
naturally, subsections (b) and (c) apply to the new arrest and the new indictment, not the
prior or (for that matter) future arrests or indictments. With respect to the 70-day clock,
that is not just the most natural reading of the provision but the only plausible reading
of it. At that point, given the dismissal of the first indictment, there is no other
indictment against which the clock could run.
Common sense, backed up by the canon against rendering statutory language
ineffective, Corley v. United States, 556 U.S. ___, 129 S. Ct. 1558, 1566 (2009),
supports this interpretation. When the government violates the Speedy Trial Act,
United States v. Myers
subsections 3162(a)(1) and (2) of the Act permit district courts to dismiss the charges
with prejudice or without prejudice. Yet Myers’ interpretation would collapse the two
options into one, converting a district court’s choice into a district court’s mandate to
dismiss all charges with prejudice. A court after all may dismiss charges under the Act
if and only if one of the clocks has expired. And if the clocks on the new charges run
from the dates of the original arrest and indictment, those charges would be untimely
from day one under at least one of the speedy-trial deadlines, making all dismissals
under the Act with prejudice, even those designated otherwise. Reading § 3161(d)(1)
the other way—to provide for fresh speedy-trial and speedy-indictment time lines upon
a defendant’s subsequent arrest or indictment on charges previously dismissed without
prejudice—not only respects the language of the relevant provisions, but it also gives
effect to §§ 3162(a)(1) and (2).
One other textual clue favors this reading. Elsewhere in the Act, Congress drew
a distinction between re-indictments that start the clock anew and those that toll it. See
18 U.S.C. § 3161(h)(5); United States v. Perez, 845 F.2d 100, 103–04 (5th Cir. 1988)
(noting that when an indictment is dismissed under the Speedy Trial Act on the
government’s motion the statutory time limit is suspended, not reset, as it is when the
indictment is dismissed without prejudice on the defendant’s motion). As this provision
shows, Congress well understood how to alter the normal presumption—that the speedytrial time lines start anew—when it wished to do so.
Precedent from our court also supports this reading. The basic idea behind
§ 3161(d)(1) is to make the 30-day and 70-day “time periods . . . run anew upon the
issuance of a subsequent indictment; the prior filing of a complaint and arrest pursuant
thereto is simply irrelevant for Speedy Trial Act purposes if the complaint is dismissed
without prejudice.” United States v. May, 771 F.2d 980, 982 (6th Cir. 1985). May, it
is true, differs from Myers’ case in one respect. While the May district court dismissed
the charges without prejudice on the government’s motion before the 30-day speedyindictment clock expired, id. at 981, the district court dismissed the charges on Myers’
motion after the clocks had expired. But that distinction makes no difference to the
United States v. Myers
meaning of § 3161(d)(1), which applies when an “indictment or information is dismissed
upon motion of the defendant” or when a “charge contained in a complaint . . . is
dismissed or otherwise dropped.”
This approach lines up with the other courts of appeals. So far as we can tell, so
far indeed as the parties have told us, every court of appeals to address this question has
held that the statute provides a fresh 30-day or 70-day clock after a new arrest or a new
indictment. See United States v. Krynicki, 689 F.2d 289, 292–93 (1st Cir. 1982); United
States v. Giambrone, 920 F.2d 176, 179–80 (2d Cir. 1990); United States v. Rabb, 680
F.2d 294, 297 (3d Cir. 1982); United States v. Thomas, 705 F.2d 709, 710–11 (4th Cir.
1983); United States v. Perez, 845 F.2d 100, 103–04 (5th Cir. 1988); United States v.
Samples, 713 F.2d 298, 302–03 (7th Cir. 1983); United States v. Abernathy, 688 F.2d
576, 578–80 (8th Cir. 1982); United States v. Barraza-Lopez, 659 F.3d 1216, 1218–21
(9th Cir. 2011); United States v. Abdush-Shakur, 465 F.3d 458, 462 n.4 (10th Cir. 2006);
United States v. Brown, 183 F.3d 1306, 1310–11 (11th Cir. 1999); United States v.
Walker, 545 F.3d 1081, 1087 (D.C. Cir. 2008). At least two justices of the United States
Supreme Court have considered the point, and they agree with this view. See United
States v. Rojas-Contreras, 474 U.S. 231, 239 (1985) (Blackmun, J., joined by Brennan,
J., concurring in the judgment) (“When an indictment is dismissed on motion of the
defendant, and the defendant is thereafter reindicted, both the 30-day and 70-day periods
Myers persists that his reading of § 3161(d)(1) is the better one, as the alternative
would permit a new clock to start every time the government re-arrests or re-indicts the
defendant. But the premise of his argument is inaccurate. The Act empowers a district
court to dismiss charges with prejudice if the government acts in bad faith or exhibits a
pattern of negligence, a provision that prevents the government from playing any such
games. 18 U.S.C. §§ 3162(a)(1) & (2); see United States v. Howard, 218 F.3d 556, 561
(6th Cir. 2000). More, the Act permits a district court to dismiss a charge in an
indictment without prejudice and to start the clock anew only when the defendant files
the motion to dismiss. When the government asks the court to dismiss an indictment,
United States v. Myers
the 70-day clock is tolled, not reset, if the government files the same charges again. 18
U.S.C. § 3161(h)(5); see Perez, 845 F.2d at 103–04.
Myers offers an alternative ground for affirming the judgment: When the district
court dismissed the charges against him the first time, it should have done so with
prejudice. That, we are afraid, may be his better argument, an observation that goes to
show just how difficult his first argument is. A trial court’s with-prejudice or withoutprejudice determination receives deference. See United States v. Taylor, 487 U.S. 326,
The question is whether the district court abused its discretion in
considering three factors: (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.” 18 U.S.C. §§ 3162(a)(1) & (2). No one disputes that these offenses are
serious, and Myers concedes as much. Myers Br. at 15. The district court found “no
evidence of bad faith on the part of the Government” in the delays. R. 46 at 5. And
there is nothing about the length or nature of the delays that itself suggests that allowing
a new prosecution will interfere with the just administration of the relevant criminal laws
or the Speedy Trial Act. As it turns out, the government delayed indicting Myers for the
legitimate purpose of giving him the chance to cooperate with authorities, and the
government exceeded the 70-day speedy-trial clock by just nine days. Nor has Myers
explained how this modest delay will prejudice him at trial. The district court did not
abuse its discretion by dismissing the charges against Myers without prejudice when it
resolved Myers’ first motion to dismiss on speedy-trial grounds.
(In case the reader is wondering, we have jurisdiction to review Myers’
alternative argument. “[B]ecause the dismissal of an indictment without prejudice is an
unappealable interlocutory order, United States v. Bratcher, 833 F.2d 69, 73 (6th Cir.
1987), appeal of the ultimate [disposition of] a subsequent indictment is the only method
by which a defendant may seek this Court’s review of such an order.” United States v.
Gross, 432 F. App’x 490, 493 (6th Cir. 2011).)
United States v. Myers
For these reasons, we reverse the judgment of the district court and remand the
case for further proceedings.
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