United States v. Rashad Wearing

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, Jane Kelly and Joan N. Ericksen (PUBLISHED), CONCUR BY: Jane Kelly [4448492] [15-2730]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2730
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rashad A. Wearing
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: April 11, 2016
Filed: September 15, 2016
[Published]
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Before GRUENDER and KELLY, Circuit Judges, and ERICKSEN,1 District
Judge.
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PER CURIAM.

1

The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.

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Rashad Wearing, a federal prisoner at the Federal Correctional Institution in
Forrest City, Arkansas (FCI-Forrest City), was indicted on one charge of being an
inmate in possession of a prohibited object, in violation of 18 U.S.C. §§ 1791(a)(2)
and (d)(1)(B). After his motions to dismiss were denied, Wearing conditionally
pleaded guilty, reserving his right to appeal the denials. The district court2 sentenced
him to six months’ imprisonment to run consecutively to the term of imprisonment he
was already serving. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
On April 24, 2013, while incarcerated at FCI-Forrest City, Wearing was found
in possession of a five-inch plastic object with a handle wrapped in tape and a
sharpened, pointed tip (shank). Wearing told prison officials he obtained the shank
to protect himself against other inmates. He was placed in administrative segregation
that same day. Wearing was indicted on a charge of possession of a prohibited object
while an inmate of a prison on April 2, 2014. He filed two motions to dismiss the
indictment: one based on an alleged violation of his speedy trial rights and one based
on alleged deficiencies in the indictment.
The district court held a pretrial evidentiary hearing on the two motions on
March 15, 2015. At the hearing, Special Investigative Services Agent Sutton and
Investigative Specialist Flint testified. Both testified that an inmate is placed in
administrative segregation at FCI-Forrest City if the inmate does something that
jeopardizes the security of the institution in order to protect the safety of prison
employees and other inmates. Agent Sutton testified that any time an inmate is found
with contraband, he is placed in administrative segregation.

2

The Honorable D. P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas.
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Agent Flint testified that after an inmate is placed in administrative segregation,
the inmate has a unit disciplinary committee hearing, usually within five days of the
incident. Another hearing is held before a disciplinary hearing officer (DHO) to
determine what sanctions to impose. Agent Flint further testified that he also refers
cases involving contraband to the United States Attorney’s Office for the Eastern
District of Arkansas for a determination of whether the inmate should be criminally
prosecuted. He referred Wearing’s case on May 8, 2013, and the United States
Attorney’s Office accepted the referral that same day.
On March 20, 2015, the court issued an order denying the motion to dismiss the
indictment based on the sufficiency of the indictment, concluding the indictment was
sufficient to provide notice to the grand jury of what charge it was considering and to
Wearing of what charge he faced. On April 21, 2015, the court denied the motion to
dismiss based on speedy trial grounds. The district court ruled that placement in
administrative segregation was not an arrest for purposes of the Speedy Trial Act and,
utilizing the four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530
(1972), that any delay had not violated Wearing’s constitutional right to a speedy trial.
II.
On appeal, Wearing renews his speedy trial arguments. Wearing first alleges
the government violated his right to a speedy trial under the Speedy Trial Act, 18
U.S.C. §§ 3161-3174. Wearing contends the district court erred by not dismissing the
indictment because the government failed to indict him within thirty days of his
“arrest”—that is, when he was placed in administrative segregation on April 24, 2013
for possessing a shank. See 18 U.S.C. § 3161(b) (“[A]ny information or indictment
charging an individual with the commission of an offense shall be filed within thirty
days from the date on which such individual was arrested or served with a summons
in connection with such charges.”). Section 3162(a) of the Speedy Trial Act provides
that “[i]f, in the case of any individual against whom a complaint is filed charging
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such individual with an offense, no indictment or information is filed within the time
limit required by section 3161(b) . . . such charge against that individual contained in
such complaint shall be dismissed or otherwise dropped.”
In reviewing a district court’s denial of a motion to dismiss an indictment based
on the Speedy Trial Act, we review the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Herbst, 666 F.3d 504, 509 (8th Cir.
2012). “The [Speedy Trial Act] does not define ‘arrest’ . . . .” United States v. Piggie,
316 F.3d 789, 795 (8th Cir. 2003). However, we have previously construed the term
“arrest” in § 3161(b) “as an arrest where the person is charged with an offense.”
United States v. Jones, 676 F.2d 327, 331 (8th Cir. 1982); see also United States v.
Peterson, 698 F.2d 921, 923 (8th Cir. 1982) (concluding “that the thirty-day
arrest-to-indictment time limit does not commence until there is a pending criminal
charge”). This is because § 3162(a)(1) does not provide a sanction “for delay in
indictment unless a complaint has been filed.” Jones, 676 F.2d at 329; see also United
States v. Abernathy, 688 F.2d 576, 578 n.2 (8th Cir. 1982) (noting that post-Jones,
Abernathy’s detention would not be considered an “arrest” for purposes of triggering
the thirty-day limitation of § 3161(b) because, although he was given his Miranda
warnings and was not free to leave, no complaint was issued). Because Wearing was
not charged by complaint or otherwise, his placement in administrative segregation
on April 24, 2013 was not an arrest for purposes of § 3161(b).3
Wearing next asserts that the thirteen-month gap between when he was placed
in administrative segregation on April 24, 2013 and his first trial setting date, May 27,
2014, violated his right to a speedy trial under the Sixth Amendment, and the
3

We note that other circuits that have addressed the issue of whether being
placed in administrative segregation constitutes an arrest for purposes of § 3161(b)
have concluded that it is not. See, e.g., United States v. Harris, 12 F.3d 735, 736 (7th
Cir. 1994); United States v. Jackson, 781 F.2d 1114, 1115 (5th Cir. 1986) (per
curiam).
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indictment should therefore have been dismissed under Federal Rule of Criminal
Procedure 48(b). The Sixth Amendment provides, “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial . . . .” Relatedly, Rule
48(b)(3) provides that “[t]he court may dismiss an indictment, information, or
complaint if unnecessary delay occurs in . . . bringing a defendant to trial.” Like our
review under the Speedy Trial Act, “[w]e review the district court’s findings of fact
on whether a defendant’s [Sixth Amendment] right to a speedy trial was violated for
clear error but review its legal conclusions de novo.” United States v. Aldaco, 477
F.3d 1008, 1016 (8th Cir. 2007). Furthermore, we may affirm on any basis supported
by the record. See United States v. Abadia, 949 F.2d 956, 958 n.12 (8th Cir. 1991)
(“[W]e may affirm a judgment on any ground supported by the record even if not
relied upon by the district court . . . .”) (quotations omitted), cert. denied, 503 U.S. 949
(1992). We review a district court’s denial of a motion to dismiss the indictment
under Rule 48(b) for an abuse of discretion. United States v. Kitzman, 520 F.2d 1400,
1402 (8th Cir. 1975).
“[T]he Sixth Amendment right to a speedy trial attaches at the time of arrest or
indictment, whichever comes first, and continues until the trial commences.” United
States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). Wearing asserts his Sixth
Amendment speedy trial rights attached when he was placed in administrative
segregation. We disagree.
While we have not previously addressed this issue, we conclude that
administrative segregation—which prisons use for a variety of safety and disciplinary
purposes—is not an arrest under the Sixth Amendment. The two are different, as
administrative segregation is “in no way related to or dependent on prosecution by the
federal government” and is instead “a method of disciplining or investigating inmates
who break prison regulations, of protecting certain inmates from members of the
general population, and of providing a general cooling-down period for inmates
involved in events that could disrupt the general population.” United States v. Duke,
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527 F.2d 386, 390 (5th Cir. 1976). Here, Wearing was placed in administrative
segregation on April 24, 2013—the same day he was found in possession of a fiveinch shank—for safety and disciplinary purposes. Prison officials referred Wearing’s
case to the U.S. Attorney’s Office fourteen days later, on May 8, 2013.
Furthermore, other circuits have uniformly concluded that being held in
administrative segregation pending criminal charges is not an arrest for purposes of
the Sixth Amendment. See United States v. Mills, 641 F.2d 785, 787 (9th Cir. 1981)
(quoting United States v. Clardy, 540 F.2d 439, 441 (9th Cir. 1976)); accord United
States v. Daniels, 698 F.2d 221, 223 n.1 (4th Cir. 1983); United States v. Blevins, 593
F.2d 646, 647 (5th Cir. 1979) (per curiam); United States v. Bambulas, 571 F.2d 525,
527 (10th Cir. 1978). These opinions are persuasive, and we follow their reasoning.
Because we conclude that Wearing was not arrested when placed into
administrative segregation, his Sixth Amendment speedy trial rights had not yet
attached and were therefore not violated.4 As a result, we likewise conclude the
district court did not abuse its discretion in refusing to dismiss Wearing’s indictment
under Rule 48(b)(3). See United States v. Carlson, 697 F.2d 231, 235-36 (8th Cir.
1983) (holding that Sixth Amendment protection is activated only when a criminal
prosecution has begun and, absent a Sixth Amendment violation, the court’s refusal
to dismiss indictment under Rule 48(b) not an abuse of discretion).
Wearing also contends the district court erred in denying his motion to dismiss
based on the insufficiency of the indictment. Specifically, Wearing contends the
indictment was fatally deficient because it failed to allege an essential element of 18
U.S.C. § 1791(d)(4)—that the offense occurred in a federal prison—as required under

4

Wearing’s speedy trial rights did not attach until he was indicted, and Wearing
does not assert the time between when he was indicted, April 2, 2014, and the date his
trial first was set, May 27, 2014, violated the Sixth Amendment or Rule 48(b)(3).
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Federal Rule of Criminal Procedure 7(c).5 The indictment in this case charged: “On
or about April 24, 2013, in the Eastern District of Arkansas, . . . [Wearing], being an
inmate of a prison, did possess a prohibited object . . . to wit: a five-inch plastic object
with a handle wrapped with tape and a sharpened, pointed tip, in violation of Title 18,
U.S.C. § 1791(a)(2) and (d)(1)(B).”
We review the sufficiency of an indictment de novo. United States v. Hance,
501 F.3d 900, 906 (8th Cir. 2007). The test for determining the sufficiency of an
indictment is “whether it contains the elements of the offense intended to be charged,”
lets the defendant know “what he must be prepared to meet,” and if “any other
proceedings are taken against him for a similar offense . . . the record shows with
accuracy to what extent he may plead a former acquittal or conviction.” United States
v. Debrow, 346 U.S. 374, 376 (1953). An indictment is ordinarily sufficient if it
“tracks the statutory language.” United States v. Tebeau, 713 F.3d 955, 962 (8th Cir.
2013) (quoting United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008)).
Section 1791(d)(4) defines “prison” as a “[f]ederal correctional, detention, or
penal facility or any prison, institution, or facility in which persons are held in custody
by direction of or pursuant to a contract or agreement with the Attorney General.”
The district court denied the motion to dismiss the indictment for insufficiency
because it found that the indictment was adequate to inform Wearing of the charge
against him. As the district court noted, “The premise of the whole thing is that Mr.
Wearing is in the Federal Bureau of Prisons facility at Forrest City. I just don’t see
any defect there, and to the extent there is any defect, it’s at the margin and not
dispositive.” We agree. The indictment provides notice of the date the offense
occurred, notifies Wearing that the offense occurred in a prison, and specified the
prohibited object Wearing was accused of possessing. “[I]n view of these limitations

5

Rule 7(c) requires an indictment to “be a plain, concise, and definite written
statement of the essential facts constituting the offense charged.”
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we cannot say that [Wearing] could have failed to realize exactly what conduct the
trial concerned.” United States v. Huggans, 650 F.3d 1210, 1218 (8th Cir. 2011).6

For the reasons set forth above, we affirm the district court’s denial of
Wearing’s motions to dismiss.

KELLY, Circuit Judge, concurring.
I concur in the court’s opinion with one exception: As to the Sixth Amendment
claim, I concur in the result only. The district court did not reach the issue of whether,
for purposes of the Sixth Amendment right to a speedy trial, Wearing was arrested
when he was placed in administrative segregation, and the parties did not fully brief
this issue on appeal. Instead, the district court assumed an arrest, weighed the
appropriate factors under Barker v. Wingo, 407 U.S. 514, 530 (1972), and concluded
Wearing’s right to a speedy trial was not violated. On this issue, I would affirm on
the grounds relied on by the district court. I would leave for another day, in a case in
which the issue is fully presented for our review, the question of whether being placed
in administrative segregation may under any circumstances qualify for an arrest for
purposes of an accused’s right to a speedy trial pursuant to the Sixth Amendment.
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6

Wearing also seems to argue the district court abused its discretion in not
dismissing the indictment because the government did not present the fact that the
offense occurred in a federal prison to the grand jury. To the extent Wearing is raising
this issue, it is not sufficiently developed in his opening brief, so we deem it waived.
See Meyers v. Starke, 420 F.3d 738, 742-43 (8th Cir. 2005) (“To be reviewable, an
issue must be presented in the brief with some specificity. Failure to do so can result
in waiver.”).
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