USA v. Randall Sutton

Filing

OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Richard F. Suhrheinrich (AUTHORING), Alice M. Batchelder, and Jane Branstetter Stranch, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0141p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

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v.
RANDALL SUTTON,
Defendant-Appellant.

No. 16-5587

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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:05-cr-00090-1—David L. Bunning, District Judge.
Argued: April 26, 2017
Decided and Filed: July 10, 2017
Before:

SUHRHEINRICH, BATCHELDER, and STRANCH.
_________________
COUNSEL

ARGUED: Steven R. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant.
Nicholas Maynard Parker, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Steven R. Jaeger, THE JAEGER FIRM PLLC, Erlanger,
Kentucky, for Appellant. Charles P. Wisdom, Jr., Callie R. Owen, UNITED STATES
ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

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_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge.
I. INTRODUCTION
In 2005, Defendant Randall Sutton committed four armed bank robberies in quick
succession in Kentucky and in Ohio. Defendant agreed to plead guilty to the Kentucky charges
in the Southern District of Ohio and the case was properly transferred from the Eastern District
of Kentucky to the Southern District of Ohio pursuant to Rule 20 of the Federal Rules of
Criminal Procedure. Although Defendant pleaded guilty to the Ohio charges in the Southern
District of Ohio, he never formally entered a guilty plea to the Kentucky charges, but was
nevertheless sentenced in the Southern District of Ohio as if he had. No one seemed to notice,
however—not the defendant, not the government, not the district court—until five years later,
when Defendant filed a motion in the Southern District of Ohio to vacate under 28 U.S.C.
§ 2255, challenging his conviction and sentence on the Kentucky charges on the ground that he
never pleaded guilty to those charges. The Southern District of Ohio vacated Defendant’s
conviction and sentence on the Kentucky charges and transferred the case back to the Eastern
District of Kentucky, where he was arraigned and then entered a not guilty plea, nearly eleven
years after he had been indicted. He then filed a motion to dismiss, alleging that his speedy trial
rights had been violated under both the Speedy Trial Act (STA), 18 U.S.C. § 3161 et seq., and
the Sixth Amendment, which the Eastern District of Kentucky court denied.1 The question is
whether this oversight violated Defendant’s rights under either the STA or the Sixth
Amendment.

1

The case on appeal is from this decision of the district court of the Eastern District of Kentucky. Where
not otherwise specified, references to “district court” refer to this district court.

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II. BACKGROUND
On July 27, 2005, Defendant robbed a bank in Fort Wright, Kentucky, while brandishing
a firearm, in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c)(1).2 In September
and October 2005, he robbed three banks in Ohio, while brandishing a firearm, all in violation of
18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c)(1). On December 14, 2005, Defendant was
indicted by a federal grand jury in the Eastern District of Kentucky for the Kentucky armed bank
robbery (the Kentucky case). He was in custody in Ohio at that time. A week later, on
December 21, 2005, a federal grand jury in the Southern District of Ohio indicted him for the
Ohio robberies and related firearms offenses (the Ohio case).
On November 1, 2006, Defendant agreed to plead guilty to two Ohio charges, one count
of armed robbery in violation of § 2113(a) and (d), and one count of brandishing firearms in
violation of § 924(c)(1). In that plea agreement Defendant also agreed to waive jurisdiction
pursuant to Rule 20 of the Federal Rules of Criminal Procedure3 and enter a guilty plea to one
additional count of armed bank robbery and one additional count of brandishing a firearm
charged in the Kentucky case. He signed a statement of facts that included facts for both crimes.
ID# 883.
On February 15, 2007, Defendant entered a guilty plea to two bank robbery counts in the
Ohio case. At that time Defendant agreed to the factual statement as read before the court, which
included the Kentucky offense. ID# 871. Defendant was willing to also plead guilty to the
Kentucky charges, but the district court decided to wait until the Rule 20 paperwork was
completed before accepting Defendant’s guilty plea to the Kentucky charges. On May 4, 2007,
Defendant signed the requisite Rule 20 consent form to transfer the Kentucky charges to the
Ohio court. Accordingly, the Kentucky case was transferred to the Southern District of Ohio and
consolidated. That form reflected Defendant’s desire to “plead guilty to the offense charged, to
2

He was also charged with violating 18 U.S.C. § 922(g)(1), felon in possession of a firearm during a bank
robbery, and forfeiture.
3

Federal Rule of Criminal Procedure 20 allows a prosecution to be transferred from the district where the
indictment is pending to the district where the defendant is arrested, held, or present if the defendant states in writing
that he wishes to plead guilty in the district where the indictment is pending and consents to disposition by the
transferee court, and files the statement in the transferee district, and the United States attorneys in both districts
approve the transfer in writing. Fed. R. Crim. P. 20(a).

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consent to the disposition of the case in the Southern District of Ohio . . . and to waive trial in the
above captioned District,” i.e. the Eastern District of Kentucky. ID# 10.
But Defendant never actually pleaded guilty to the Kentucky charges after the case was
transferred. Nonetheless, he was sentenced on both the Ohio and Kentucky charges on August
29, 2007, in the Southern District of Ohio. He received concurrent terms of eleven years on both
the bank robbery charges (one in the Ohio case and one in the Kentucky case), and consecutive
terms of seven years for the Ohio § 924(c) charge and twenty-five years for the Kentucky
§ 924(c) charge, for a total of forty-three years. Despite never actually entering a guilty plea to
the Kentucky charges, Defendant did not object at the time of sentencing or during his direct
appeal. The court and the government did not catch the error either. On April 19, 2012, after his
discretionary appeal to the United States Supreme Court was denied, Defendant collaterally
attacked his conviction and sentence pursuant to 28 U.S.C. § 2255 in the Southern District of
Ohio.

On October 6, 2013, while the motion to vacate was pending, Defendant filed a

“Supplemental Memorandum,” asserting for the first time his right to a speedy trial. See United
States v. Sutton, No. 05-cr-183, Doc. No. 206, at 7-10 (S.D. Ohio Oct. 6, 2013).
On September 30, 2015, the Southern District of Ohio court vacated his conviction and
sentence on the Kentucky charges. The district court did not address Defendant’s speedy-trial
argument, because it could not under Federal Rule of Criminal Procedure 20. See United States
v. Sutton, No. 05-cr-183, Doc. 211 (S.D. Ohio Sept. 30, 2015). In that same order the Southern
District of Ohio court gave Defendant “the opportunity to enter a valid plea to the Kentucky
charges, consistently with his plea agreement.” Id. at ID# 1667. After status conferences on
October 9, 2015, December 11, 2015, and December 16, 2015,4 during which time Defendant
apparently mulled over the offer, the Ohio court transferred the case back to the Eastern District
of Kentucky on December 23, 2015.

This transfer order stated that the case was being

transferred back to the Eastern District of Kentucky for disposition because Defendant did not
enter a guilty plea. ID# 806. On January 20, 2016, the Eastern District of Kentucky court
(“district court”) held a status conference and appointed counsel for Defendant. On February 18,
4

Both defense counsel and the government stated at oral argument that it was their belief that Defendant
rejected the plea on December 16, 2015.

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2016, Defendant entered a not guilty plea to the Kentucky charges and trial was scheduled for
April 18, 2016.
On February 26, 2016, Defendant filed a motion to dismiss the indictment, arguing that
the STA clock began ticking on February 15, 2007, the date he pleaded guilty to the Ohio
charges, or August 29, 2007, the date he was sentenced on both the Ohio and Kentucky charges.
Under either of these start dates, the seventy-day limitation of the STA was easily exceeded. The
United States countered that the proper start date for STA purposes was January 20, 2016, the
date Defendant first appeared before the Eastern District of Kentucky.
On April 27, 2016, the district court denied Defendant’s motion, rejecting both sets of
dates for calculating compliance with the STA.

R. 129.

First, the district court rejected

Defendant’s suggestion that the STA clock began running during one of his appearances in the
Ohio court because (1) the Sixth Circuit held in United States v. O’Dell, 154 F.3d 358, 360, 362
(6th Cir. 1998), that the plain language of 18 U.S.C. § 3161(c)(1) requires a not guilty plea, and
Defendant never entered a plea of not guilty to the Kentucky charges during any Ohio
appearance; and (2) the Ohio court would not have had jurisdiction to try him had he pleaded not
guilty, because Rule 20(c) requires the transferee court to return the case to the court “where the
prosecution began” if the defendant pleads not guilty after the transfer. See Fed. R. Crim. P.
20(c).
The district court also rejected the United States’ argument that the STA clock started
running on January 20, 2016, when Defendant first appeared for a status conference in the
Eastern District of Kentucky (by that time he had entered a not guilty plea on January 18, 2016).
Although the government’s argument appeared to fit within the language of § 3161(c)(1), the
district court noted that the Sixth Circuit applies a different rule when a defendant enters a guilty
plea that is later vacated on a collateral attack. United States v. Bond, 956 F.2d 628, 631 (6th
Cir. 1992), holds that § 3161(e), which provides that the seventy-day period shall begin running
from “the date the action occasioning retrial becomes final,” applies in cases where the district
court has vacated the conviction and sentence it previously imposed. Thus, § 3161(e) requires
the STA clock to begin running on the “date that the district court vacated the . . . guilty plea.”
Id. at 632.

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Nonetheless, the district court found the rule difficult to apply in the present case,
because the court vacating Defendant’s conviction and sentence—the Ohio court—only had
jurisdiction pursuant to Rule 20. Thus, “the date the action occasioning retrial becomes final”
would be September 30, 2015, when the Ohio court granted Defendant’s § 2255 motion. But,
the district court determined that this could not be the start date for the STA because Rule 20
required the Ohio court to return the paperwork to the Kentucky court, and the Kentucky court
did not regain jurisdiction over Defendant’s case until December 23, 2015, the date on which the
Rule 20 paperwork was returned. The district court analogized to situations where an appeals
court vacates a guilty plea, and held that the STA clock starts the day the district court receives
and files the mandate. Under either interpretation, the STA clock does not begin to run until
jurisdiction is restored to the district court. Thus, the court reasoned that the STA clock in this
case began ticking on December 23, 2015.
With December 23, 2015 as the starting point for computational purposes, the May 2,
2016 trial date was outside of the seventy-day limitations period. However, Defendant had filed
a motion to dismiss on February 26, 2016, which was heard on April 12, 2016, and taken under
advisement thereafter, until the court issued its order on April 27, 2016.

Thus, under

§ 3161(h)(1)(D) (delay resulting from pretrial motion through the conclusion of the hearing is
excludable) and § 3161(h)(1)(H) (delay of up to thirty days while any proceeding is under
advisement is excludable), the time period from February 26, 2016 through the date of the order,
April 27, 2016, was excluded from the calculation. Thus, the STA clock paused on February 26,
2016, or at sixty-five days, leaving five days of the seventy-day limitation remaining. The May
2, 2016, trial date fell within the seventy-day limitation.
Following the denial, Defendant decided to be re-arraigned so that he could change his
plea to guilty. R. 130. On April 28, 2016, he pleaded guilty to count two of the Kentucky
indictment, charging him with brandishing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1). ID# 949. Defendant preserved his right to appeal the denial
of his motion to dismiss. At sentencing, the district court sentenced Defendant to twenty-five
years to run consecutive to the Ohio case, the same sentence he was given originally. This
appeal follows.

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III. ANALYSIS
On appeal Defendant claims that his rights to a speedy trial were violated under both the
STA and the Sixth Amendment. We review questions of law related to speedy-trial violations de
novo and questions of fact for clear error. United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.
1994). The remedy for a STA violation is dismissal with or without prejudice. 18 U.S.C.
§ 3162. We use the same standards when reviewing a speedy trial right challenge under the
Sixth Amendment. See United States v. Jackson, 473 F.3d 660, 664 (6th Cir. 2007). The
remedy for a Sixth Amendment speedy-trial violation is dismissal with prejudice. Id. (citation
omitted).
A.

Speedy Trial Act Claim

Several sections of the STA are relevant, although, as the district court observed, the
unique facts of this case do not precisely align with any one section. First, the STA requires a
district court to dismiss charges unless the defendant’s trial begins within seventy days of the
filing of the indictment or the defendant’s arraignment, whichever occurs later. 18 U.S.C.
§ 3161(c)(1). However, the seventy-day limitation is subject to excludable periods for matters
such as pretrial motions. Id. § 3161(h). Additionally, § 3161(c)(1) applies only if a not guilty
plea has been entered. O’Dell, 154 F.3d at 360-62; see also United States v. Lopez-Valenzuela,
511 F.3d 487, 490 (5th Cir. 2007).
The STA also provides that “[i]f the defendant is to be tried again following an appeal or
a collateral attack, the trial shall commence within seventy days from the date the action
occasioning the retrial becomes final.” 18 U.S.C. § 3161(e). This court has held that “section
3161(e) properly applies in cases where a trial court vacates a guilty plea.” Bond, 956 F.2d at
631.
On the other hand, if the defendant initially enters a guilty plea or nolo contendere and
subsequently withdraws it, “the defendant shall be deemed indicted . . . on the day the order
permitting withdrawal of the plea becomes final.” § 3161(i). Thus, for STA purposes, the day a
defendant withdraws his guilty plea becomes the day of his indictment. Id.; United States v.

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Robertson, 260 F.3d 500, 503 (6th Cir. 2001); United States v. Marks, 209 F.3d 577, 586 (6th
Cir. 2000); Bond, 956 F.2d at 630.
This case falls somewhere between these provisions. As the court noted in Bond, a
“literal reading” of the STA makes it “clear that Congress did not specifically contemplate cases
where a defendant’s guilty plea was later vacated by the trial court,” Bond, 956 F.3d at 630, let
alone a case where he thereafter enters a not guilty plea.
The district court determined that § 3161(c)(1) did not apply based on O’Dell. In O’Dell,
the defendant entered a guilty plea that the district court subsequently found unenforceable. The
court then allowed the defendant to withdraw his guilty plea and set the case for trial (the 1993
case). O’Dell, 154 F.3d at 359. The United States later dismissed the information and indicted
the defendant two months later on same charges (the 1994 case). This time the defendant
pleaded not guilty to the indictment at his arraignment. Id. at 359-60. He then filed a motion to
dismiss based on the STA. The district court held that ninety-three days of nonexcludable delay
had passed. Sixty-three of those days included delays in the 1993 case. Id. at 360. This court
reversed, holding that “[t]he plain meaning of the language of the STA require[d] a not guilty
plea to begin the clock running,” and because the defendant “did not enter one nor was one
entered for him during the 1993 case . . . the STA clock was not triggered during the 1993 case.”
Id. at 360, 362 (citing 18 U.S.C § 3161(c)(1)). Absent the sixty-three days, there was no STA
violation. Id.
As the district court noted, Defendant did not enter the not guilty plea to the Kentucky
charges during any of his appearances in the Southern District of Ohio and the Southern District
of Ohio never had jurisdiction to try Defendant. Thus, the district court correctly looked to
O’Dell in concluding that § 3161(c)(1) does not apply here. In O’Dell, the nonexcludable delay
in the 1993 case could not be counted in the 1994 case because the 1993 indictment had been
dismissed and the case was no longer before the court (until re-indictment in 1994). In this case,
the Kentucky charges were effectively dismissed when the Southern District of Ohio vacated
Defendant’s guilty plea, which simultaneously deprived that court of jurisdiction over the
Kentucky charges by virtue of Rule 20.

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As this court observed in O’Dell, the not guilty plea requirement of § 3161(c)(1) is
designed “to conserve judicial resources by avoiding unnecessary trial scheduling in cases where
it is more likely that the defendant will plead guilty or nolo contendere,” O’Dell, 154 F.3d at
360, and also “to conserve prosecutorial resources” by obviating the need to prepare for a
potential trial until the defendant has entered a not guilty plea, id. at 361. These purposes would
be subverted if we applied § 3161(c)(1) in the manner suggested by Defendant.
Defendant argues that because he “ultimately” entered a not guilty plea in the Eastern
District of Kentucky on February 18, 2016, the district court erred in ruling that § 3161(e) and
not § 3161(c)(1) applies. In other words, because he eventually pleaded not guilty, the STA
applied, and under § 3161(c)(1), the STA clock was triggered on either June 27, 2007 (the date
on which the Kentucky charge became effective and therefore the de facto indictment date) or
August 27, 2007, when he made his first appearance in the Ohio court. In support he relies on
United States v. Lopez-Valenzuela, 511 F.3d 487, 490 (5th Cir. 2007). There the Fifth Circuit
found “no basis . . . from the text of § 3161(c)(1) for utilizing the date of a not guilty plea as the
commencement date of the seventy-day period. The statute provides only two dates that can start
the clock: the date of the indictment or the date the defendant has appeared.” Id. at 490. That
court concluded that the not guilty plea “determines only whether the time restrictions apply. It
does not determine when the clock starts.” Id. at 490.
But that rule must be read in the context of its facts. In Lopez-Valenzuela, the defendant
had signed a form entry of his not guilty plea on the same day that he was indicted. The
government knew of the form, but the defendant did not actually file it until months later. Id. at
488.

The Fifth Circuit concluded that the STA clock began running on the date of his

indictment, which was later than his initial appearance, under § 3161(c)(1), and that the STA was
violated because he was not tried within seventy days.

Id. at 491-92.

The Fifth Circuit

determined that because the defendant had first appeared pre-indictment, the speedy-trial clock
began to run on the date of the indictment, “regardless of the date he ultimately pleaded not
guilty.” Id. at 491. The Fifth Circuit affirmed the view that the STA applies “in any case in
which a not-guilty plea is entered,” explaining that “prosecutors should expeditiously schedule
an arraignment or otherwise obtain a plea early in the proceedings in order to determine whether

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the case will be subject to the time limitations in the Speedy Trial Act.” Id. Critically, the
Lopez-Valenzuela defendant entered his not guilty plea at the very outset when he signed the
form entry, and not after he had pleaded guilty, was sentenced, and served time in prison.
Defendant also claims that his case is analogous to United States v. Jackson, 22 F. App’x
396 (6th Cir. 2001) (per curiam). In Jackson, the defendant had appeared before a magistrate
judge, but was arraigned and entered a not guilty plea one week later. This court held that,
pursuant to § 3161(c)(1), the STA clock began to run when he made his first appearance, not
when he entered his not guilty plea. Jackson, 22 F. App’x at 397-98.
Defendant’s reading of both Lopez-Valenzuela and Jackson glosses over a critical factual
difference between those cases and this one. In both of those cases, the defendants never
attempted to reverse course late in the game. See Lopez- Valenzuela, 511 F.3d at 488 (defendant
signed a “Waiver of Appearance and Entry of Not Guilty Plea” form on the date of his
indictment); Jackson, 22 F. App’x at 398 n.3 (defendant’s guilty plea was entered approximately
one week after his first appearance). By contrast, shortly after indictment, Defendant evinced an
intent to plead guilty and waive trial, signing a form to that effect in May 2007. R. 4. He did not
change his mind until nearly five years later. And it is precisely this change of heart—in a
collateral attack long after he had pleaded guilty and been sentenced on the Kentucky charges—
that distinguishes this case from Lopez-Valenzuela and Jackson and makes § 3161(c)(1)
inapplicable. Cf. United States v. Robertson, 260 F.3d 500, 503 (6th Cir. 2000) (holding that the
STA began running on the date the defendant expressed his desire to withdraw his guilty plea
and proceed to trial; applying § 3161(i) and not § 3161(c)(1)).
Despite some confusing language conflating the applicability of the STA with the
commencement of the running of the STA clock, see O’Dell 154 F.3d at 360 (“The plain
meaning of the language of the STA requires a not guilty plea to begin the clock running.”), as
the Fifth Circuit noted, O’Dell’s “actual holding was that the clock never began to run because
the defendant at no time entered a not guilty plea,” Lopez-Valenzuela, 511 F.3d at 490. Jackson
also supports the district court’s holding. The Jackson court rejected the government’s reliance
on O’Dell in arguing that the date of the entry of the not guilty plea was the trigger for the STA
clock, noting that in O’Dell the defendant had never entered a not guilty plea, whereas the

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Jackson defendant had, “eventually.” Jackson, 22 F. App’x at 398. n.3; see also United States v.
Tinklenberg, 579 F.3d 589, 594 (6th Cir. 2009), aff’d on other grounds, 563 U.S. 647 (2011)
(“Thus, O’Dell stands only for the proposition that the Speedy Trial Act does not apply to a case
in which the defendant never pleads not guilty. Although this Court opined that the Speedy Trial
Act ‘requires a not guilty pleas to begin the clock running,’ that statement was irrelevant to the
outcome of the case and was therefore dicta.”).
The right to be protected is the right to a speedy trial. That right is not implicated until
the defendant pleads not guilty, or at least clearly indicates the desire to plead not guilty.
The statutory scheme, §§ 3161(c)(1), (e), and (i), reflect this understanding.
As the district court recognized, Bond is much like this case. In Bond, the defendant was
indicted on two counts of armed robbery and properly pleaded guilty to one count after the other
was dismissed. He later successfully withdrew the guilty plea. Then, in order to avoid related
state charges, he entered a guilty plea to original federal charges. Later, he moved successfully
pursuant to § 2255 to vacate his sentence because the district court had failed to re-establish the
factual bases for the guilty pleas. Bond, 956 F.2d at 629. The defendant then entered pleas of
not guilty to both counts of the indictment. Id. The defendant filed a motion to dismiss,
claiming that the trial date was outside the seventy-day limitation of the STA. Id. This required
the Bond court to choose an appropriate trigger date under the STA. As Bond observed,
[i]n such cases, a defendant has never gone through trial, hence section 3161(e)’s
protection of a defendant’s rights on retrial do not apply because a defendant who
has never been tried cannot later be retried. Likewise, read strictly, section
3161(i) applies only to situations where the defendant withdraws a guilty plea,
and not where, as here, the trial court vacates his prior plea agreement.
Id. at 630-31.
Bond concluded that § 3161(e), not (i), applies to cases in which a guilty plea is
collaterally attacked and vacated, even though the defendant was never “tried” a first time.
Bond, 956 F.3d at 631. Bond adopted the reasoning of the First Circuit in United States v. Mack,
669 F.2d 28 (1st Cir. 1982):
In Mack, the court relied on the legislative history in concluding that section
3161(e) and not 3161(i) applies to cases where a defendant’s guilty plea

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agreement is vacated. The court noted that Congress intended for section 3161(i)
to prevent a defendant from entering a “plea of guilty on the 59th day to one of
several charges and wait several weeks, and then withdraw his plea before
sentencing, thereby frustrating any prosecution on the other counts which might
not yet have been dismissed.”
Mack, 669 F.2d at 31-32 (quoting
120 CONG.REC. 41623 (1974)). Since this problem is not presented in cases
where the court vacates a guilty plea, the Mack court concluded that section
3161(i) did not apply to cases of this type. Instead, the court reasoned that section
3161(e) is more appropriately applied to situations where a defendant’s guilty
plea is later vacated by a district court on habeas review. The court did “not think
that the words ‘tried again’ in § 3161(e) was intended to exclude from its
coverage cases involving a successful collateral attack upon a guilty plea
conviction rather than after trial.” Mack, 669 F.2d at 32. The reasoning of Mack
appears to be in accord with the policy behind the Speedy Trial Act and therefore
we believe it should be followed by this circuit.
Bond, 956 F.2d at 631. Under Defendant’s reading, namely that § 3161(c) applies any time a
guilty plea is successfully vacated on a collateral attack and the defendant subsequently enters a
not guilty plea, there will be a speedy trial act violation, which would be at odds with the
purposes of the STA. Bond and Mack realized this and interpreted § 3161(e) accordingly.
This case is Bond with a twist: on “the date the action occasioning retrial bec[ame]
final”—the date the trial court vacated Defendant’s guilty plea (September 30, 2015)—the Ohio
court lost jurisdiction pursuant to Rule 20. Thus, as the district court decided, this is not unlike
the situation after a court of appeals vacates a guilty plea and the matter is returned to the district
court for further proceedings. The circuits are split as to when to begin counting the limitations
period under § 3161(e). Three circuits have held that the clock restarts on the day the mandate
issues, see United States v. Crooks, 826 F.2d 4, 5 (9th Cir. 1987); United States v. Felton,
811 F.2d 190, 198 (3d Cir. 1987); United States v. Robertson, 810 F.2d 254, 259 (D.C. Cir.
1987). Two other circuits have held that the STA clock starts on the day the mandate is received
and filed by the district court. United States v. Long, 900 F.2d 1270, 1276 (8th Cir. 1990);
United States v. Lasteed, 832 F.2d 1240, 1243 (11th Cir. 1987). In an unpublished per curiam,
this court adopted the latter view. See United States v. Alexander, 983 F.2d 1068, 1992 WL
361371 (6th Cir. 1992) (per curiam); see generally Bond, 956 F.2d at 631-32 (discussing split;
using analogy to determine when STA clock begins running following the district court’s

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vacation of a guilty plea). That is, the STA clock begins running when the district court regains
jurisdiction.
We agree with the district court that a similar rule should apply where, by operation of
Fed. R. Crim. P. 20(c), the Ohio court lost jurisdiction once Defendant’s plea was vacated and
the case was restored to the Eastern District Court of Kentucky docket. Thus, jurisdiction was
restored to the Eastern District of Kentucky on December 23, 2015, when the Rule 20 paperwork
was returned.5 And as the district court observed, although the scheduled trial date was outside
the seventy-day limitations period, Defendant does not claim on appeal that STA was not
violated due to excludable delays.
B.

Sixth Amendment Claim

Defendant also argues that the district court misapplied the Barker v. Wingo6 factors in
determining that his Sixth Amendment right to a speedy trial was not violated and therefore
erroneously refused to dismiss the Kentucky indictment.7 The Sixth Amendment guarantees in
relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial.” U.S. Const. amend. VI. In Barker, the Supreme Court established a four-factor test
for determining whether a defendant has been denied the constitutionally guaranteed right to a
speedy trial. Barker held that a court must consider (1) the length of the delay, (2) the reason for
the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker,
407 U.S. at 530-32. No one factor is dispositive. Rather, they are related factors that must be
considered together with any other relevant circumstances. Id. at 533; see also id. at 522 (stating
5

Even if § 3161(c) applied, Defendant would still not prevail. Section § 3161(c) specifies that the speedy
trial clock is triggered by the latter of the indictment or the defendant’s appearance “before a judicial officer of the
court in which such a charge is pending.” 18 U.S.C. § 3161(c). Although this court has not decided what “court”
means in that section, three other circuits have held that it refers to the specific charging district. See United States
v. Montoya, 827 F.2d 143, 152 (7th Cir. 1987); United States v. Wilson, 720 F.2d 608, 609 & n.4 (9th Cir. 1983);
United States v. Atkins, 698 F.2d 711, 714 (5th Cir. 1983). Defendant was indicted in the Eastern District of
Kentucky in 2005 but did not appear in that court until January 20, 2016. This would be the trigger date under
§ 3161(c).
6
7

407 U.S. 514 (1972).

The STA protects against delay from the time of indictment or appearance. The Sixth Amendment
protects against delay from the time of arrest when it occurs before indictment or appearance. United States v.
Brown, 498 F.3d 523, 530 (6th Cir. 2007).

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that the speedy-trial right is “amorphous,” “slippery,” and “necessarily relative”); Cain v. Smith,
686 F.2d 374, 381 (6th Cir. 1982) (“The speedy trial right has an amorphous quality which
requires courts to ‘approach speedy trial cases on an ad hoc basis.’”) (quoting Barker, 407 U.S.
530).
1.

Length of Delay

“The first factor, length of the delay, is a triggering mechanism.” United States v. Brown,
498 F.3d 523, 530 (6th Cir. 2007). A one-year delay is presumptively prejudicial and triggers
analysis of the remaining Barker factors. Doggett v. United States, 505 U.S. 647, 652 n.1
(1992). Noting that as of April 27, 2016, ten years, four months, and fourteen days had passed
since Defendant was indicted, the district court found the length of the delay, “far exceeded the
ordinary threshold” and was presumptively prejudicial. ID# 940. This factor is not in dispute.
2.

Reason for Delay

“In assessing the second factor, the reason for the delay, the court considers who is most
at fault—the government or the defendant.” Brown v. Romanowski, 845 F.3d 703, 714 (6th Cir.
2017) (citing United States v. Schreane, 331 F.3d 548, 554 (6th Cir. 2003)), petition for cert.
filed, May 16, 2017 (No. 16-1373). “Governmental delays motivated by bad faith, harassment or
attempts to seek a tactical advantage weigh heavily against the government.” Id. (quoting
Schreane, 331 F.3d at 553). Negligence and unexplained delays weigh less heavily against the
government, but remain relevant, “since the ultimate responsibility for such circumstances
belongs to the government rather than with the defendant.” Id. (quoting Schreane, 331 F.3d at
554 (quoting Barker, 407 U.S. at 531)). The government bears the burden of explaining the
cause of the delay. Id. (citations omitted).
The district court held that the second Barker factor, the reason for the delay, was
“neutral.” The court observed that the delay was attributable to the defective plea and sentencing
process in the Ohio case. ID# 941. Notwithstanding, the court did not find this breakdown to
merit relief because it “likely constitute[d] negligence” and “none of the parties complained or
even mentioned the lack of a guilty plea to the sentencing court.” ID# 941. Moreover, “the
primary reason” Defendant did not receive a speedy trial was because he had opted to plead

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guilty and to enter into a unified plea agreement covering both the Ohio and Kentucky charges.
ID# 941-42. On top of that, Defendant failed to raise the issue on direct appeal, and waited
almost five-years to bring the § 2255 motion. ID# 942. Thus, although “disconcerted by the
lapse of over ten years and the breakdown of the plea and sentencing process in Defendant’s
case,” the district court refused to hold that the government and the district court were “more to
blame for the delay” than Defendant. Id.
Defendant argues that negligence is an unacceptable reason “for delaying a criminal
prosecution once it has begun,” Appellant’s Br. at 28 (quoting Doggett, 505 U.S. 647, 657
(1992)), and that “delay resulting from a systemic breakdown” must be attributed to the
government and the trial court, id. at 27 (quoting Vermont v. Brillon, 556 U.S. 81, 94 (2009)).
Defendant claims that the district court found that the Ohio court was mostly to blame, citing the
court’s comment at oral argument in a pretrial conference held on April 12, 2016, after the
motion to dismiss was filed but before it was decided:
I can say without hesitation that I don’t think this would have happened here
because our probation officers sit in the courtroom during the rearraignments. I
understand from the probation officers that that’s not the case in the Southern
District.
ID# 1104-05; but see ID# 1106 (“I started out my discussion here this morning with there’s
negligence to go around on every level. The Court, Probation, defense counsel, prosecutor, all
court entities because no one caught it.”) Thus, according to Defendant, because the government
and the court were negligent, this factor should have weighed against the government.
Defendant seems to be arguing that if there is any negligence on the government’s part,
then the government is entirely to blame for the delay. But the second Barker factor directs the
court to ask “whether the government or the criminal defendant is more to blame for [the]
delay,” Doggett, 505 U.S. at 651 (emphasis added). In other words, the second Barker factor
asks the court to weigh the equities in each case. Here, the district court found that there was
“negligence . . . to go around for everybody.” ID# 1104. This included Defendant, who decided
to plead guilty and not go to trial, and behaved accordingly until he filed his § 2255 motion five
years later. ID# 941-42. Contrary to Defendant’s assertion, the district court did not suggest that
the government was more culpable. Indeed, in its written opinion, the court clearly stated that it

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“[could] not say that the Government and the district court are more to blame for the delay than
the Defendant.” ID# 942. Nothing in the record undermines that conclusion. Defendant’s
intention to plead guilty may explain why he did not object at sentencing to the Kentucky
charges, but it does not excuse his negligence in failing to point out the missing factual basis for
the plea. In short, the court did not err in holding that this factor could not be counted against the
government or in Defendant’s favor.
The cases Defendant cites do not bolster his assertion. In Cain v. Smith, 686 F.2d 374
(6th Cir. 1982), the state obtained five continuances over the defendant’s speedy trial objections,
but the record did not contain the district court’s rationale for granting the continuances. This
Court therefore remanded for fact finding because it was unable to engage in the delicate
balancing required to assess whether the lengthy delay constitutes a constitutional violation. Id.
at 376, 385. In Brillon, the Supreme Court held that the Vermont Supreme Court made a
“fundamental error” in attributing to the State all delays, without adequately taking into account
the role of defendants and their counsel. Brillon, 556 U.S. at 91-92 (holding that delay caused by
defense counsel was attributable to the defendant). See also United States v. Williams, 753 F.3d
626, 632-33 (6th Cir. 2014) (stating “a court should consider whether some of the delay is
attributable to the defendant”); United States v. Brown, 498 F.3d 523, 531 (6th Cir. 2007)
(defendant offered “nothing to suggest that the government was more to blame for the initial
delay in apprehending him than he himself, or that it acted in bad faith or was negligent in failing
to locate him”); Wilson v. Mitchell, 250 F.3d 388, 395 (6th Cir. 2001) (although blame for 22–
year delay could have been placed on both defendant and state, defendant “was more to blame
for that delay” because he actively evaded arrest whereas state was passively negligent in
pursuing him).
That is precisely what the court did in this case: it weighed the relative faults of all parties
involved and concluded that everyone had a hand in this mess. Under these circumstances, this
factor was properly deemed neutral.

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Timely Assertion

“The defendant’s assertion of his speedy trial right . . . is entitled to strong evidentiary
weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at
531-32. “The more serious the deprivation, the more likely a defendant is to complain.” Id. at
531. The district court found that the third Barker factor was neutral, noting that Defendant did
not assert his speedy trial right until after his conviction and sentence were vacated on collateral
attack. In the district court’s view, “[t]he fact that Defendant would have pled guilty, but for the
defect in the plea and sentencing on the Kentucky charges, coupled with the lengthy amount of
time that lapsed before Defendant asserted his right to a speedy trial,” cast sufficient doubt on the
sincerity of his demand. ID# 942-43.
Defendant argues that this factor favored him because he asserted the right within two
months after the case was returned to the Eastern District of Kentucky and only eight days after
his arraignment.8 But as the United States points out, case law supports the district court’s
determination. In United States v. Flowers, 476 F. App’x 55 (6th Cir. 2012), this Court held that
the defendant’s belated assertion of speedy trial rights “cast[s] doubt on the sincerity of the
demand” and weighed in favor of the government. Id. at 63 (defendant did not vigorously assert
his speedy trial rights since his request was made at least twelve months and arguably seventeen
months after he was indicted) (citation omitted). In United States v. Brown, 498 F.3d 523 (6th
Cir. 2007), this Court held that the defendant’s failure to assert his speedy trial right until his
appeal “weigh[ed] heavily toward a conclusion that no Sixth Amendment violation occurred.”
Id. at 532. And in Barker, the landmark case concerning the constitutional right to a speedy trial,
the Supreme Court held that the five-year delay between arrest and trial did not create a
constitutional violation in large part because the defendant “did not want a speedy trial,” as
reflected by the fact that he did not file a motion to dismiss for almost four years after his
8

Commendably, the government pointed out in a Rule 28(j) letter that Defendant first asserted his right to a
speedy trial on October 6, 2013, in a supplemental memorandum in support of his § 2255 motion to vacate in the
United States District Court for the Southern District of Ohio. The Southern District of Ohio court did not address it
because it did not have jurisdiction under Fed. R. Crim. P. 20. Although Defendant actually asserted his speedy trial
right two and a half years earlier than both parties and the district court believed, the analysis remains the same.
First, the Southern District of Ohio lacked jurisdiction to address the claim. Second, the speedy trial assertion was
still years after he was arrested, and more than six years after his attempt to plead guilty, which supports the
conclusion that the Defendant did not really want a speedy trial.

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indictment. Baker, 407 U.S. at 534. The same is true here. The court correctly counted this
factor a neutral.
4.

Prejudice

The last factor, prejudice, should be assessed “in the light of” three interests: (1) to
prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern due to unresolved
criminal charges, and (3) to minimize damage to the defense. Barker, 407 U.S. at 532. After
analyzing these interests, the district court correctly concluded that Defendant was not prejudiced
despite the delay. First, Defendant would have been in federal custody on the Ohio charges in
any event. Cf. Brown, 498 F.3d at 532 (no prejudice occurred because defendant was in state
custody on other charges). Second, because Defendant had intended to plead guilty to the
Kentucky charges in 2007 and would have successfully pled but for the slip-up, any anxiety on
his part was minimal. Cf. Barker, 407 U.S. at 533-34 (defendant waited more than five years
from arrest to trial evading prosecution during that time). Third, Defendant failed to show that
his defense was impaired by the delay. At oral argument, the government pointed out that
Defendant’s codefendant proceeded to trial in 2007 on the exact same charges in this matter, and
that Defendant was provided with the testimony of all of those witnesses.
Defendant basically contends that he is entitled to a presumption of prejudice because of
the long delay between his indictment in December 2005 and his § 2255 motion. See Doggett,
505 U. S. at 657 (lengthy delay due to government’s negligence can give rise to a presumption of
prejudice). This Court has rejected any such “bright-line rule.” United States v. Watford,
468 F.3d 891, 908 (6th Cir. 2006) (citing United States v. Howard, 218 F.3d 556, 564 (6th Cir.
2000)). Even if the five-year delay here was presumptively prejudicial, the Supreme Court has
stated that ‘“presumptive prejudice cannot alone carry a Sixth Amendment claim,’ but rather
must be considered in the context of the other factors, particularly the reason for the delay.”
United States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006) (quoting Doggett, 505 U.S. at 656).
As discussed above, everyone was responsible for the lengthy delay, such that no one party
should shoulder the blame. Equally important, Defendant did not want a trial in this case. In
fact, after the motion at issue was denied by the district court, Defendant entered a conditional

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guilty plea. In short, the district court did not err in holding that the fourth factor did not help
Defendant.
The Supreme Court has clearly indicated that the speedy trial analysis is “necessarily
relative. It is consistent with delays and depends upon circumstances.” Barker, 407 U.S. at 522.
Even if all four Barker factors are satisfied, a court is not required to conclude that a defendant’s
speedy trial right has been violated. See id. at 533. The unique facts of this case demonstrate
why such flexibility is necessary. Although the Ohio court and the government were also at
fault, their collective behavior was at least consistent with Defendant’s original intention to plead
guilty. On balance, it cannot be said that Defendant’s Sixth Amendment right to a speedy trial
was violated.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.