United States v. Megan Mosteller , 741 F.3d 503 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4434
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MEGAN NICHOLE HANSON MOSTELLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:11-cr-00270-TLW-1)
Argued: December 12, 2013 Decided: February 4, 2014
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Motz and Judge Thacker joined.
ARGUED: Bradley M. Kirkland, BRADLEY M. KIRKLAND, LLC, Columbia,
South Carolina, for Appellant. William E. Day, II, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
Megan Hanson Mosteller was charged with theft of government
funds, in violation of 18 U.S.C. § 641. As a result of
evidentiary problems occurring during her trial, Mosteller moved
for a mistrial, which the district court granted on the
condition that she waive her rights under the Speedy Trial Act,
18 U.S.C. §§ 3161 through 3174 (the Speedy Trial Act, or the
Act). More than 70 days after the mistrial was declared, the
court conducted a second trial, in which the jury found
Mosteller guilty of violating 18 U.S.C. § 641. Mosteller did
not assert a violation of the Speedy Trial Act in the district
court, but alleges on appeal that her rights under the Act were
violated.
We hold that although Mosteller’s attempt to waive her
rights under the Speedy Trial Act was null and void, she is not
entitled to assert for the first time on appeal that a violation
of the Act occurred. The plain language of the Act requires
that a defendant asserting a violation of the Act move for
dismissal of an indictment before a new trial begins, or be
precluded from seeking such a dismissal. In view of this waiver
imposed by statute, we are not permitted to consider Mosteller’s
argument that her rights under the Act were violated, even under
the plain error standard of review. Accordingly, we affirm the
district court’s judgment.
2
I.
In September 2007, Megan and Jeremy Lewis Mosteller, Jr.
(Jeremy), a lance corporal in the United States Marine Corps,
were married. The couple separated about three months later,
and Jeremy committed suicide in March 2008.
After Jeremy’s death, Mosteller applied for and began
receiving “dependency and indemnity compensation” as Jeremy’s
surviving spouse from the Department of Veteran Affairs (VA), in
the amount of about $1,100 per month (the surviving spouse
benefits). As a condition of receiving this compensation, she
was required to inform the VA of any change in her marital
status before the age of 57, which event would terminate her
entitlement to the surviving spouse benefits. Mosteller also
applied for and received about $3,000 in education benefits
reserved for surviving dependents of veterans (the education
benefits). Her continued receipt of the education benefits was
subject to requirements that she remain unmarried and attend
classes. Mosteller was obligated to notify the VA if she ceased
attending classes or remarried.
In August 2008, Mosteller married David Robert Redding, Jr.
Mosteller did not inform the VA of her change in marital status
and continued to receive surviving spouse benefits until October
2010. Additionally, Mosteller did not inform the VA that after
3
receiving the education benefits, she had not attended any
classes.
The VA’s Office of Inspector General instituted an
investigation of Mosteller’s receipt of VA benefits. 1 This
investigation led to a grand jury indictment charging Mosteller
with one count of theft of government funds. Notably, the
indictment charged her with theft of surviving spouse benefits
but did not include any reference to the education benefits.
Mosteller’s first trial began on November 1, 2011. After a
witness testifying on behalf of the government made statements
regarding Mosteller’s receipt of the education benefits,
Mosteller moved for a mistrial on the basis that her receipt of
those benefits was not part of the charged conduct. The
government opposed Mosteller’s motion. Although the district
court observed that Mosteller’s receipt of the education
benefits was outside the scope of the indictment, the court
denied the motion for a mistrial and instead struck the
testimony concerning the education benefits and offered to
provide a curative instruction to the jury. Additionally, the
1
Mosteller admitted during an interview with a VA
investigator at her residence that she had remarried but
continued to receive VA benefits, and that she “underst[ood]
that it was wrong to continue to collect” the benefits after
remarrying.
4
government agreed that it would not introduce further evidence
relating to the education benefits.
After a recess, however, the government informed the
district court that it would be difficult to redact certain
exhibits containing information relating to both the surviving
spouse benefits and the education benefits. The government
withdrew its opposition to Mosteller’s motion for a mistrial,
and stated that a superseding indictment would be filed if a
mistrial was granted. The court stated that it was inclined to
grant a mistrial if Mosteller agreed to waive her rights under
the Speedy Trial Act until the court’s January 2012 term. After
the court addressed Mosteller individually, informing her of her
rights under the Speedy Trial Act, Mosteller stated that she
would waive her rights under the Act as a condition of the
court’s decision to grant a mistrial. Accordingly, on November
1, 2011, the district court declared a mistrial.
Two weeks later, the grand jury issued a superseding
indictment, charging Mosteller with theft of government funds in
violation of 18 U.S.C. § 641, based on her receipt of both the
education benefits and the surviving spouse benefits. Although
Mosteller’s second trial began on February 21, 2012, well more
than 70 days after the mistrial, Mosteller did not move to
dismiss the superseding indictment based on a violation of the
Act. The jury convicted Mosteller of the theft charge as
5
alleged in the indictment. The district court sentenced
Mosteller to serve a term of 15 months’ imprisonment and three
years of supervised release, and ordered that Mosteller pay
restitution to the government in the amount of $32,718.62.
Mosteller timely filed a notice of appeal.
On appeal, Mosteller’s counsel initially filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there were no meritorious issues for appeal but questioning
whether Mosteller’s rights under the Fifth Amendment’s Double
Jeopardy Clause were violated. Mosteller filed a pro se
supplemental brief contending, among other things, that her
rights under the Speedy Trial Act were violated. This Court
directed that counsel for the government and Mosteller file
supplemental briefs addressing the statutory speedy trial issue.
II.
Mosteller contends that the district court erred in
requiring that she waive her rights under the Speedy Trial Act
as a condition of granting a mistrial. 2 She further asserts that
because her second trial began more than 70 days after the
mistrial was declared, her rights under the Act were violated
2
Mosteller did not allege at trial, and does not assert on
appeal, a constitutional violation of her speedy trial rights
under the Sixth Amendment.
6
and she is entitled to dismissal of the charge against her.
Although Mosteller acknowledges that she did not file a motion
to dismiss the indictment in the district court, she maintains
that this Court should conduct plain error review of her claim
on appeal. We disagree with Mosteller’s arguments.
The Speedy Trial Act generally requires that a trial begin
“within 70 days of the filing of an information or indictment or
the defendant’s initial appearance.” Zedner v. United States,
547 U.S. 489, 497 (2006) (citing 18 U.S.C. § 3161(c)(1)). In
the event of a mistrial, the Act provides that a new trial must
begin within 70 days “from the date the action occasioning the
retrial becomes final.” 3 See 18 U.S.C. § 3161(e).
Under the Act, if a defendant makes a timely motion to
dismiss, the remedy for a violation of the Act is dismissal of
the information or indictment. See 18 U.S.C. § 3162(a)(2) (“If
a defendant is not brought to trial within the time limit
required by section 3161(c) as extended by section 3161(h), the
information or indictment shall be dismissed on motion of the
defendant.”). The district court retains discretion to
3
Certain periods of delay are excluded from the computation
of the 70-day period. See 18 U.S.C. § 3161(h). However,
because we conclude that Mosteller’s Speedy Trial Act claim is
not subject to any appellate review, as discussed below, we do
not reach the merits of her argument that notwithstanding the
exclusion of certain periods of delay referenced in 18 U.S.C. §
3161(h), the 70-day limitation imposed by the Act was violated.
7
determine under the factors set forth in Section 3162(a)(2)
whether the dismissal should be entered with or without
prejudice. Id. Significantly, the Act contains a provision
(the waiver provision) stating that the “[f]ailure of the
defendant to move for dismissal prior to trial or entry of a
plea of guilty or nolo contendere shall constitute a waiver of
the right to dismissal under this section.” Id. (emphasis
added).
As an initial matter, we agree with Mosteller’s argument
that the district court erred in requiring that she agree to
waive her rights under the Act as a condition of granting the
mistrial. Under the holding in Zedner, a defendant may not
waive application of the Act for a violation that has not yet
occurred. 547 U.S. at 503. The Supreme Court explained that
the Act was designed in part to protect a defendant’s right to a
speedy trial, but also was intended to protect the public’s
interest in ensuring a speedy trial. Id. at 500-01 (stating
that “the Act was designed with the public interest firmly in
mind”). As an example, the Court noted that the granting of a
continuance under Section 3161(h)(8)(A) 4 must be accompanied by
the district court’s finding that such resulting delay outweighs
4
This provision is codified as 18 U.S.C. § 3161(h)(7)(A) in
the current version of the Act.
8
both “the best interest of the public” and of the defendant in
obtaining a speedy trial. Id. at 501 (quoting 18 U.S.C. §
3161(h)(8)(A)) (emphasis omitted). The Court therefore observed
that the public’s interest underlying the Speedy Trial Act
cannot be served if defendants are permitted to waive their
right to assert a future violation of the Act. Id. Based on
this reasoning, the Court held that a defendant may not waive
future application of the Act. Id. at 503. In view of this
holding, we conclude that Mosteller’s agreement purporting to
waive future rights under the Act was null and void.
In Zedner, the Supreme Court further explained that
although a defendant may not waive future application of the
Act, a waiver nevertheless will result by operation of the
statutory waiver provision if the defendant fails to move to
dismiss the indictment before the new trial begins. See id. at
502 (citing 18 U.S.C. § 3162(a)(2)). The Court observed that
this statutory waiver provision serves several purposes,
including preserving judicial resources by “ensuring that an
expensive and time-consuming trial will not be mooted by a late-
filed motion under the Act,” preventing “undue defense
gamesmanship,” and assigning to defendants the responsibility of
identifying violations of the Act. Id. at 502-03.
We have applied this principle from Zedner and the plain
language of Section 3162(a)(2), observing that a defendant’s
9
failure to make a timely motion to dismiss an indictment before
the start of a new trial constitutes a waiver of the defendant’s
right to assert a violation of the Speedy Trial Act. United
States v. Henry, 538 F.3d 300, 304 (4th Cir. 2008); cf. United
States v. Cherry, 720 F.3d 161, 165-66 (4th Cir. 2013) (holding
that a failure to file a motion to dismiss for a violation of
the speedy indictment provision of the Act results in the same
outcome, waiver, as a failure to timely raise a violation of the
Act’s speedy trial provision). To date, however, we have not
addressed the question in a published decision whether plain
error review is available to consider asserted violations of the
Act not timely raised in the district court.
Answering that question here, we hold that plain error
review is not available for consideration of Speedy Trial Act
claims that were not timely asserted in the district court.
This conclusion is required by the express language of the
waiver provision, which states that the failure to file a motion
to dismiss before trial “shall” constitute a “waiver of the
right to dismissal” under the Act. 18 U.S.C. § 3162(a)(2).
Under the unambiguous terms of the statute, “waiver of the right
to dismissal” is the only possible outcome of a defendant’s
failure to file a timely motion to dismiss under the Act.
Therefore, because Section 3162(a)(2) specifies that such a
“waiver” occurs when a defendant fails to timely assert a Speedy
10
Trial Act violation in the district court, we are not permitted
to conduct any appellate review, for plain error or otherwise,
of Mosteller’s claim.
Our holding is in accord with the nearly unanimous views of
our sister circuits that have considered this issue. In
reaching their respective holdings, our sister circuits also
have relied on the express language of Section 3162(a)(2). See
United States v. Littrice, 666 F.3d 1053, 1059 (7th Cir. 2012)
(rejecting defendant’s argument that the court should review for
plain error an assertion that the Act was violated, despite
defendant’s failure to move to dismiss in the district court);
United States v. Abad, 514 F.3d 271, 274 (2d Cir. 2008) (per
curiam) (same); United States v. Spagnuolo, 469 F.3d 39, 46 (1st
Cir. 2006) (same); United States v. Gamboa, 439 F.3d 796, 804
(8th Cir. 2006) (same); United States v. Gomez, 67 F.3d 1515,
1519-20 (10th Cir. 1995) (same); see also United States v.
Reagan, 725 F.3d 471, 486-87 (5th Cir. 2013) (declining to
consider defendant’s argument that the Act was violated in the
absence of a motion to dismiss in the district court, but
considering under the plain error standard of review defendant’s
argument asserting a violation of the Sixth Amendment’s speedy
trial provision that was not raised at trial); United States v.
11
McDaniel, 631 F.3d 1204, 1209 n.2 (11th Cir. 2011) (same). 5 But
see United States v. Carrasco, 257 F.3d 1045, 1050-53 (9th Cir.
2001) (applying plain error review to Speedy Trial Act claim
that was not raised in a motion to dismiss in the district
court) (discussed below).
As the Seventh Circuit observed in Littrice, plain error
review is unavailable because the express language of Section
3162(a)(2) specifies that a violation not timely asserted before
a new trial begins is waived, rather than merely forfeited. 666
F.3d at 1059; see also United States v. Hassebrock, 663 F.3d
906, 912 (7th Cir. 2011) (observing that “the Act sets forth
waiver as the sole consequence for failing to assert the claim
below”); United States v. Morgan, 384 F.3d 439, 443 (7th Cir.
2004) (the Act is clear that “a defendant’s failure to move to
dismiss the indictment constitutes a waiver—not a forfeiture—of
his rights under the Act”). Similarly, the Tenth Circuit in
5
In addition to the above cases, three other circuits have
concluded that a defendant’s failure to move for dismissal under
the Speedy Trial Act prior to trial results in a waiver of the
right to dismissal under the Act. See United States v. Hines,
694 F.3d 112, 117-20 (D.C. Cir. 2012); United States v. Palma-
Ruedas, 121 F.3d 841, 855 (3d Cir. 1997), rev’d on other grounds
sub nom. United States v. Rodriguez-Moreno, 526 U.S. 275 (1999);
United States v. White, 985 F.2d 271, 274-75 (6th Cir. 1993).
However, these circuits do not appear to have addressed the
issue whether plain error review is available for asserted
violations of the Act that were not timely raised in the
district court.
12
Gomez noted that the Act “unequivocally provides” that waiver
results from a defendant’s failure to move for dismissal prior
to trial. 6 67 F.3d at 1520.
We are not persuaded by Mosteller’s reliance on the Ninth
Circuit’s decision in Carrasco, which appears to be the only
published federal appellate decision currently permitting plain
error review of a claim under the Act that was not timely raised
in the district court. 7 In Carrasco, the Ninth Circuit engaged
in plain error review of the defendant’s argument, but the court
did not mention the waiver provision contained in Section
3162(a)(2), nor did the court engage in any analysis explaining
why plain error review was available. See 257 F.3d at 1050-53.
Thus, it appears that the issue whether the waiver provision
6
We note that although plain error review is unavailable
for speedy trial claims under the Act, a claim under the speedy
trial clause of the Sixth Amendment may be reviewed for plain
error even if that constitutional claim was not raised below.
See United States v. Gearhart, 576 F.3d 459, 462-63 (7th Cir.
2009) (discussing the differences between a Sixth Amendment
speedy trial claim and a claim under the Act); see generally
United States v. Burgess, 684 F.3d 445, 451-52 (4th Cir. 2012)
(discussing four-factor balancing test employed in resolving
claims under the Sixth Amendment’s speedy trial clause).
However, as we already have observed, Mosteller has not asserted
a speedy trial claim under the Sixth Amendment.
7
Two circuits have criticized their own previous decisions
that engaged in plain error review of asserted violations of the
Act that were not timely raised in the district court,
explaining that such review should not have been conducted. See
Abad, 514 F.3d at 274; Morgan, 384 F.3d at 442-43; see also
Hassebrock, 663 F.3d at 912.
13
precludes plain error review was not presented as an issue by
the parties in Carrasco. Accordingly, the Carrasco decision
does not persuade us to reach a conclusion different from those
of our other sister circuits. 8
We reiterate that the plain language of Section 3162(a)(2)
is unequivocal in requiring that a defendant move for dismissal
of an indictment before the beginning of a new trial or suffer a
statutorily imposed waiver of rights under the Act.
Accordingly, we conclude that we may not review for plain error
Mosteller’s argument asserting a violation of the Act. 9
8
We further observe that Mosteller does not argue on brief
that the district court’s grant of a mistrial on the condition
that Mosteller waive her rights under the Act caused her trial
counsel’s failure to preserve her statutory speedy trial rights
before the start of the second trial. Accordingly, we need not
consider this issue. See United States v. Al-Hamdi, 356 F.3d
564, 571 n.8 (4th Cir. 2004) (contentions not raised in argument
section of the opening brief are abandoned).
9
We have reviewed the issues raised in Mosteller’s
counsel’s Anders brief, and we conclude that the retrial did not
result in a violation of the Double Jeopardy Clause, which
provides that no person shall “be subject for the same offence
to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. When a defendant moves for a mistrial, the government
may retry the defendant without violating the Double Jeopardy
Clause unless the government’s conduct was “intended to goad”
the defendant into seeking the mistrial. Oregon v. Kennedy, 456
U.S. 667, 676 (1982) (citation and internal quotation marks
omitted); see also United States v. Smith, 441 F.3d 254, 265
(4th Cir. 2006) (same). Upon our review of the record, we
conclude that the government did not intentionally induce
Mosteller into moving for a mistrial. Additionally, we have
reviewed the other issues contained in Mosteller’s pro se
(Continued)
14
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
supplemental brief, and we conclude that those issues are
without merit.
15