United States v. Brandon Rashad Dowdell ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11822
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON RASHAD DOWDELL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:21-cr-00017-WLS-TQL-1
____________________
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2 Opinion of the Court 22-11822
Before JORDAN, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
Defendant Brandon Dowdell appeals his conviction for
being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). On appeal, Dowdell argues that the district court erred
(1) in dismissing his original November 13, 2018, indictment
without prejudice, rather than with prejudice; and (2) in denying
his motion to dismiss his subsequent May 12, 2021, indictment for
the same offense. After careful review of the record and the parties’
briefs, we affirm.
I. FACTUAL BACKGROUND
Because this appeal involves both statutory and
constitutional speedy trial claims, we recount the procedural
history in detail.
A. 2018 Indictment and Initial Appearance
On November 13, 2018, a federal grand jury indicted
Dowdell with one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). Dowdell was appointed
counsel on November 27, 2018, but he was not arrested on this
§ 922(g) indictment until August 12, 2019.
Then on August 13, 2019, pursuant to a writ of ad
prosequendum, Dowdell was brought before the federal district
court for his initial appearance. At this time, Dowdell was
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incarcerated on state charges in the Lowndes County Jail in
Valdosta, Georgia.
At Dowdell’s initial appearance, a magistrate judge ordered
that Dowdell be detained pending trial. That same day, the
magistrate judge issued a pretrial order directing the parties to turn
over discovery by September 12, 2019.
B. Government’s Motion to Continue
On October 21, 2019, the government moved under the
Speedy Trial Act, 18 U.S.C. § 3161, to continue Dowdell’s trial in
furtherance of the ends of justice. It asserted that a “continuance
would best serve the interests of justice and would not unduly
prejudice either party.” It also requested that the period of delay
be excluded from the speedy trial clock.
Dowdell opposed this motion, arguing that a continuance
was not warranted because the speedy trial clock already had
expired.
C. Dowdell’s Motion to Dismiss Indictment with Prejudice
One week later, on October 28, 2019, Dowdell, through
counsel, moved to dismiss his indictment with prejudice under the
Speedy Trial Act, asserting that more than 70 days had elapsed
since his November 13, 2018, indictment and his August 13, 2019,
initial appearance. Dowdell observed that, once the speedy trial
clock expires, a district court has discretion to dismiss the
indictment with or without prejudice after considering the 18
U.S.C. § 3162(a) factors. Dowdell also contended that (1) the
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pretrial delay violated his Sixth Amendment right to a speedy trial,
and (2) the government failed to comply with its discovery
obligations, in violation of his Fifth Amendment due process rights
and the magistrate judge’s pretrial order.
On January 9, 2020, the district court held a hearing on
Dowdell’s October 28 motion to dismiss. During this hearing,
Dowdell argued that he was in the Lowndes County Jail for
approximately 270 days because there was a “federal hold” on his
case. He also contended that the 2018 indictment should be
dismissed with prejudice because (1) he had been unable to
investigate his case or prepare a defense, (2) he did not receive
discovery from the government for over a year, and (3) he could
have difficulty tracking down witnesses for his trial.
As to the November 2018 indictment, the government
responded that (1) the speedy trial period did not begin to run until
August 13, 2019, when Dowdell made his initial appearance;
(2) under § 3161, the government’s October 21 motion tolled the
speedy trial clock; and (3) the 70-day deadline had not expired.
Instead, the government pointed out that only 68 days had expired.
Alternatively, the government requested that, if the district
court determined that there was a speedy trial violation, the
indictment be dismissed without prejudice.
Regarding the discovery delays, the government stated that
(1) it had issues uploading the discovery materials to its server, and
(2) it sent the discovery to Dowdell by FedEx on October 30, 2019,
only about a month after the September 12 discovery deadline.
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At the conclusion of the January 2020 hearing, the district
court dismissed Dowdell’s indictment without prejudice. The
court observed that (1) Dowdell’s counsel “sat on [his] hands for
the better part of a year” and did not bring the speedy trial matter
to the court’s attention; and (2) if the court had known about the
issue, it “would have taken steps to correct it.”
D. 2021 Indictment and Initial Appearance
On May 12, 2021, a federal grand jury indicted Dowdell with
one count of being a felon in possession of a firearm, in violation
of § 922(g)(1), based on the same conduct underlying the
November 2018 indictment.
On May 17, 2021, the government secured another writ of
ad prosequendum so that Dowdell, who was still incarcerated in the
Lowndes County Jail, could be brought before the district court for
his initial appearance.
On June 22, 2021, Dowdell’s initial appearance was held
before a magistrate judge. Dowdell consented to pretrial detention
“in light of [his] pending state charges.”
E. Denial of Dowdell’s July 16, 2021, Motion to Dismiss the
2021 Indictment
On July 16, 2021, Dowdell moved to dismiss his 2021
indictment with prejudice, arguing that (1) the speedy trial clock
had expired, (2) the 974-day pretrial delay between his November
2018 indictment and his July 2021 motion to dismiss violated his
constitutional speedy trial rights, (3) the district court back in
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January 2020 should have dismissed his 2018 indictment with
prejudice, and (4) he was prejudiced by the government’s failure to
try him within the deadlines established by the Speedy Trial Act
and the Sixth Amendment.
On November 16, 2021, the district court denied Dowdell’s
motion to dismiss. The district court found that (1) the speedy trial
clock had not expired on the 2021 indictment, and (2) the district
court lacked jurisdiction to review whether the 2018 indictment
should have been dismissed with prejudice, relying on United States
v. Kelley, 849 F.2d 1395, 1397 (11th Cir. 1988), which concluded that
“any challenge to the dismissal of the indictment without prejudice
must await the defendant’s subsequent conviction.”
F. Dowdell’s Second Motion to Dismiss, Guilty Plea, and
Sentence
On January 3, 2022, Dowdell filed a second motion to
dismiss his 2021 indictment under the Speedy Trial Act and the
Sixth Amendment.
During a January 25, 2022, pretrial conference, the parties
informed the district court that (1) Dowdell intended to enter a
conditional guilty plea to the § 922(g)(1) offense and (2) he would
reserve the right to appeal the denial of his July 16, 2021, motion to
dismiss the 2021 indictment.
On January 31, 2022, the district court denied Dowdell’s
second motion to dismiss as moot because he was pleading guilty
to the charged offense.
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On February 3, 2022, Dowdell entered a conditional guilty
plea to the § 922(g)(1) offense. Dowdell’s plea agreement states:
“[T]he defendant and the Government agree that this plea
agreement is conditioned on the defendant’s right to have an
appellate court review the district court’s order denying his motion
to dismiss (Doc. 29).”
Further, Dowdell’s attorney and the prosecutor signed a
“Conditional Guilty Plea” document pursuant to Federal Rule of
Criminal Procedure 11(a)(2). That document states that Dowdell
“reserves the right to have an appellate court review the Order
Denying his Motion to Dismiss the Indictment issued by this Court
on November 16, 2021.”
The factual proffer contained in Dowdell’s plea agreement
stated that: (1) Dowdell’s ex-girlfriend called the authorities after
Dowdell became irate during a FaceTime conversation, pointed a
gun at her, and threatened her grandmother; (2) Dowdell, who was
the subject of a warrant for a state probation violation, fled on foot
after two Valdosta Police Department officers approached his
residence; and (3) Dowdell was later apprehended, and the officers
found a pistol in the sleeve of a sweatshirt that he discarded after
he fled from the house.
At the change-of-plea hearing, the government informed the
district court that (1) Dowdell was entering a conditional plea, and
(2) he was reserving the right to appeal Document 29, which is the
order denying the motion to dismiss the 2021 indictment. The
district court observed that (1) “part of” Dowdell’s position in that
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8 Opinion of the Court 22-11822
motion to dismiss the 2021 indictment was that “the first
indictment that was dismissed under [the] Speedy Trial [Act]
should have been with prejudice,” and (2) the district court
determined that in the 2021 case it could not review its previous
order dismissing the 2018 indictment without prejudice. Both
parties agreed that the district court was accurately characterizing
Dowdell’s position and the district court’s order. At the conclusion
of the hearing, the district court accepted Dowdell’s guilty plea.
The presentence investigation report calculated an advisory
guidelines range of 70 to 87 months based on a total offense level
of 21 and a criminal history category of V. At the sentencing
hearing, the district court calculated an advisory guidelines range
of 70 to 78 months1 and sentenced Dowdell to 78 months’
imprisonment, followed by 3 years’ supervised release.
II. DOWDELL’S APPEAL
On appeal, Dowdell argues the district court erred (1) in
dismissing his 2018 indictment without prejudice, rather than with
prejudice; and (2) in denying his motion to dismiss his 2021
indictment for the same offense.
As a threshold matter, there is an issue as to whether
Dowdell’s guilty plea preserves challenges only to the denial of the
1 We recognize that the district court (1) calculated the advisory guidelines
range as 70 to 78 months at Dowdell’s sentencing hearing, but (2) indicated in
its Statement of Reasons that that range was 70 to 87 months. We do not
address this contradiction because Dowdell does not raise this issue.
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motion to dismiss his 2021 indictment, and not to the dismissal of
his 2018 indictment without prejudice.
As noted earlier, Dowdell’s plea agreement and the
conditional plea document were both, on their face, conditioned
on his “right to have an appellate court review” the district court’s
order denying his motion to dismiss the 2021 indictment. Further,
Dowdell’s speedy trial challenge to his 2018 indictment is
non-jurisdictional, and a guilty plea generally results in waiver of
all non-jurisdictional defects that are not preserved in the
defendant’s conditional guilty plea. United States v. Pierre, 120 F.3d
1153, 1155 (11th Cir. 1997).
On the other hand, during the plea colloquy, the district
court recognized that part of the motion to dismiss the 2021
indictment was based on the court’s failure to dismiss the 2018
indictment with prejudice. Moreover, the government on appeal
does not raise the issue of waiver as to Dowdell’s 2018 indictment
challenge but instead briefs the merits of the dismissal of the 2018
indictment being without prejudice, rather than with prejudice.
Accordingly, we do not address waiver and proceed to
consider Dowdell’s claims that his 2018 indictment should have
been dismissed with prejudice. Cf. United States v. Lall, 607 F.3d
1277, 1290 (11th Cir. 2010) (declining to apply on appeal a waiver
or procedural forfeiture rule to a defendant’s challenge of the
admissibility of a confession because the government did not argue
the issue was waived or forfeited).
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III. SPEEDY TRIAL ACT
A. General Principles
The Speedy Trial Act requires that a federal criminal
defendant be tried within 70 days of the filing of an indictment
against him or his arraignment, whichever is later. 18 U.S.C.
§ 3161(c)(1). The Act excludes from the 70-day calculation certain
periods of delay, including the “delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of
the hearing on, or other prompt disposition of, such motion.”
Id. § 3161(h)(1)(D).
The date on which an event occurs, including the date of
arraignment, the date a pretrial motion is filed, and the date a
pretrial motion is resolved, is not counted in calculating the
statutory period. United States v. Jones, 601 F.3d 1247, 1255 (11th
Cir. 2010); United States v. Yunis, 723 F.2d 795, 797 (11th Cir. 1984).
If a defendant is not brought to trial within the 70-day period, the
defendant may move to dismiss the indictment, and the district
court must grant that motion and dismiss the indictment. 18
U.S.C. § 3162(a)(2).
In granting a Speedy Trial Act dismissal, “[a] district court
has the discretion to dismiss an indictment with or without
prejudice.” United States v. Ochoa, 941 F.3d 1074, 1100 (11th Cir.
2019). The district court “must consider three factors when
determining the method of relief: (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
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administration of this chapter and on the administration of
justice.’” Id. (quoting 18 U.S.C. § 3162(a)(2)). “Where the
defendant is charged with a serious crime, the delay was minor, the
defendant suffered no prejudice from the delay, and the
government did not actively seek delay, dismissal should be
without prejudice.” Jones, 601 F.3d at 1257 (considering whether
the defendant’s indictment should have been dismissed without
prejudice where the Speedy Trial Act was violated).
B. No Speedy Trial Act Violation as to 2018 Indictment
As to the 2018 indictment, Dowdell’s speedy trial clock
began to run on August 14, 2019, the day after his arraignment on
the November 2018 indictment. See 18 U.S.C. § 3161(c)(1);
Yunis, 723 F.2d at 797 (observing that the arraignment date is
excluded). 2 The clock ran until October 20, 2019, the day before
the government filed its motion to continue, for a total of 68
days. See Jones, 601 F.3d at 1255 (stating the date on which a
pretrial motion is filed is excluded). One week later, on October
28, 2019, Dowdell filed a motion to dismiss his indictment, which
also tolled the speedy trial clock. See 18 U.S.C. § 3161(h)(1)(D).
The clock was tolled until January 9, 2020, the date of the
hearing on, and the disposition of, Dowdell’s motion to dismiss the
indictment and the government’s motion to continue, which the
district court denied by implication. See id.; Jones, 601 F.3d at 1255.
2 “We review for an abuse of discretion whether a district court should dismiss
an indictment with or without prejudice for a violation of the Speedy Trial
Act.” Ochoa, 941 F.3d at 1100 n.17 (quotation marks omitted).
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Therefore, when the district court dismissed the 2018 indictment
on January 9, 2020, the 70-day speedy trial clock had not lapsed.
C. Dismissal of the 2018 Indictment Without Prejudice
Because no Speedy Trial Act violation occurred, we cannot
conclude that the district court abused its “broad discretion” when
it dismissed the November 13, 2018, indictment without prejudice.
United States v. Larson, 627 F.3d 1198, 1211 (10th Cir. 2010)
(quotation marks omitted). In fact, the district court was not
required to grant Dowdell’s motion to dismiss the 2018 indictment
at all—much less with prejudice—given the Speedy Trial Act was
not violated as to his 2018 indictment.
And, as the government points out, even when the Speedy
Trial Act is violated, the district court still has the discretion to
dismiss an indictment without prejudice, and Dowdell has not
shown the district court abused its discretion in dismissing the
indictment without prejudice.
In sum, given the seriousness of Dowdell’s charge and the
absence of any speedy trial delay, the district court did not abuse its
discretion in dismissing the November 13, 2018, indictment
without prejudice. See Jones, 601 F.3d at 1257; United States v. Russo,
741 F.2d 1264, 1267 (11th Cir. 1984) (“Where the crime charged is
serious, the [district] court should dismiss [with prejudice] only for
a correspondingly severe delay.”).
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D. Denial of Dowdell’s Motion to Dismiss the 2021
Indictment
Next, Dowdell argues that the district court erred in denying
his motion to dismiss the May 12, 2021, indictment because it failed
to consider the nearly 17-month preindictment delay between the
January 9, 2020, dismissal of his 2018 indictment and his May 12,
2021, reindictment. This argument also lacks merit.
This Court has long held that, when an indictment is
dismissed on the motion of the defendant, and the defendant is
later indicted for the same offense, the speedy trial clock “begin[s]
to run anew from a subsequent arrest or indictment rather than
from the date of the original arrest or indictment.” United States v.
Brown, 183 F.3d 1306, 1310–11 (11th Cir. 1999); see also United States
v. Rubin, 733 F.2d 837, 840 (11th Cir. 1984) (“Where an indictment
is dismissed on the motion of the defendant, or for reasons other
than the motion or request of the government, the 70-day time
period begins to run anew with the return of a superseding
indictment.”).
Because the November 13, 2018, indictment was dismissed
on Dowdell’s October 28, 2019, motion, the speedy trial clock reset
when Dowdell was indicted for the same offense on May 12, 2021.
See Brown, 183 F.3d at 1310–11; Rubin, 733 F.2d at 840. Thus, the
district court did not err when it failed to consider the
preindictment delay between the 2018 indictment and the 2021
indictment.
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Dowdell does not otherwise challenge the denial of his
motion to dismiss his May 12, 2021, indictment on Speedy Trial Act
grounds. We thus conclude that the district court did not abuse its
discretion in finding that the speedy trial clock had not expired.
IV. SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL
The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy . . . trial.” U.S. Const., amend. VI. The
Supreme Court has established a four-factor test to determine
whether a defendant has been deprived of the constitutional right
to a speedy trial: (1) the length of the delay; (2) the reason for the
delay; (3) the defendant’s assertion of the right; and (4) the
prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530–33,
92 S. Ct. 2182, 2191–93 (1972).
“The first factor, length of the delay, serves a triggering
function.” United States v. Oliva, 909 F.3d 1292, 1298 (11th Cir.
2018). Unless some “presumptively prejudicial” period of delay
occurred, we need not examine the other three factors. United
States v. Register, 182 F.3d 820, 827 (11th Cir. 1999). “Delays
exceeding one year are generally found to be presumptively
prejudicial.” United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir.
2006) (quotation marks omitted).
In Ingram, our Court did not consider the defendant’s
preindictment delay when deciding whether his Sixth Amendment
speedy trial delay was presumptively prejudicial for purposes of the
first Barker factor. Id. at 1339. Our Court explained that “[o]nly
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pretrial delay following a person’s arrest, charge, or indictment is
relevant to whether the Speedy Trial Clause of the Sixth
Amendment is triggered.” Id.When an indictment is dismissed, and the defendant is later
charged with the same offense, “[a]ny undue delay after charges
are dismissed, like any delay before charges are filed, must be
scrutinized under the Due Process Clause, not the Speedy Trial
Clause.” United States v. MacDonald, 456 U.S. 1, 7, 102 S. Ct. 1497,
1501 (1982); see also United States v. McDaniel, 631 F.3d 1204, 1209
n.2 (11th Cir. 2011) (“The Sixth Amendment speedy trial guarantee
was no longer effective for McDaniel’s original indictment once the
district court dismissed it . . . .”); United States v. Hernandez, 724 F.2d
904, 906–07 (11th Cir. 1984) (concluding that, where the original
indictment was dismissed on the defendant’s motion, and the
defendant was reindicted for the same crimes one month later, the
Sixth Amendment speedy trial delay began to run on the date of his
arraignment after his second indictment).
Dowdell argues that the nearly 23-month delay between his
initial August 12, 2019, arrest and his June 22, 2021, initial
appearance on the second indictment deprived him of his Sixth
Amendment right to a speedy trial. 3 However, Dowdell’s
argument ignores that the November 13, 2018, indictment was
3 Whether the government violated a defendant’s constitutional right to a
speedy trial is a mixed question of fact and law. United States v. Machado, 886
F.3d 1070, 1079 n.7 (11th Cir. 2018). We review a district court’s legal
conclusions de novo and its factual findings for clear error. Id.USCA11 Case: 22-11822 Document: 21-1 Date Filed: 06/02/2023 Page: 16 of 17
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dismissed on Dowdell’s motion, and Dowdell was reindicted on
May 12, 2021, for the same offense. For purposes of the Sixth
Amendment speedy trial analysis, we consider only the
nine-month delay between the May 12, 2021, indictment and
Dowdell’s February 3, 2022, guilty plea. See MacDonald, 456 U.S. at
7, 102 S. Ct. at 1501; McDaniel, 631 F.3d at 1209 n.2; Hernandez, 724
F.2d at 906–07.
This nine-month delay was not presumptively prejudicial.
See Ingram, 446 F.3d at 1336. We therefore conclude that Dowdell’s
right to a speedy trial was not violated without reaching the other
Barker factors. See Register, 182 F.3d at 827; see also United States v.
Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (concluding that an
eight-month delay between the defendants’ indictment and their
trial was “insufficient to merit a Sixth Amendment speedy trial
violation inquiry”).
We also reject Dowdell’s argument about how he was
placed on a “federal hold” while he was in state custody. The
record shows that, before Dowdell’s reindictment on May 12, 2021,
he was in state custody on pending state charges. In any event, as
the Supreme Court has recognized, “an arrest or indictment
by one sovereign would not cause the speedy trial guarantees to
become engaged as to possible subsequent indictments by another
sovereign.” MacDonald, 456 U.S. at 10 n.11, 102 S. Ct. at 1503 n.11.
Because Dowdell had only state charges between the January 9,
2020, dismissal of Dowdell’s 2018 indictment and his May 12, 2021,
indictment, no constitutional speedy trial delay occurred.
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Accordingly, the district court did not abuse its discretion in
denying Dowdell’s motion to dismiss his 2021 indictment on Sixth
Amendment grounds. 4
V. CONCLUSION
For these reasons, we affirm the district court’s (1) dismissal
of the 2018 indictment without prejudice, and (2) denial of
Dowdell’s motion to dismiss the 2021 indictment.
AFFIRMED.
4 To the extent that Dowdell contends that the 17-month preindictment delay
between the January 9, 2020, dismissal of his 2018 indictment and his May 12,
2021, reindictment violated his Fifth Amendment due process rights, this
argument is also without merit. “To prove a due process violation resulting
from a pre-indictment delay, [a defendant] must show: (1) actual prejudice to
[his] defense from the delay; and (2) that the delay resulted from a deliberate
design by the government to gain a tactical advantage.” United States v.
Thomas, 62 F.3d 1332, 1339 (11th Cir.1995). Even if Dowdell could
demonstrate actual prejudice to his defense, he does not argue, and the record
does not show, that the government delayed in indicting Dowdell to gain a
tactical advantage. See id.