United States v. Turner ( 2010 )

                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 10a0078p.06
                                   FOR THE SIXTH CIRCUIT
                               Plaintiff-Appellee, -
                                                           No. 07-3481
                            Defendant-Appellant. -
                       Appeal from the United States District Court
                      for the Southern District of Ohio at Cincinnati.
                   No. 06-00009—Sandra S. Beckwith, District Judge.
                                   Argued: November 30, 2009
                              Decided and Filed: March 19, 2010
                     Before: GUY, SUTTON and GRIFFIN, Circuit Judges.
    ARGUED: Saber W. VanDetta, SQUIRE, SANDERS & DEMPSEY L.L.P., Cleveland,
    Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT UNITED STATES
    ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Saber W. VanDetta, J. Philip
    Calabrese, Bruce A. Khula, SQUIRE, SANDERS & DEMPSEY L.L.P., Cleveland, Ohio,
    for Appellant. Benjamin C. Glassman, ASSISTANT UNITED STATES ATTORNEY,
    Cincinnati, Ohio, for Appellee.
            SUTTON, Circuit Judge. Markeith Turner challenges his convictions for seven
    drug- and gun-related crimes and the sentence that followed. Because Turner’s indictment
    on two counts took longer than the Speedy Trial Act allows, we reverse these two
    convictions but otherwise affirm the remaining five convictions. We also vacate his sentence
    and remand to the district court for resentencing.
    No. 07-3481           United States v. Turner                                         Page 2
            After hearing gunshots on the evening of February 11, 2005, Officer Jason Rees of
    the Cincinnati Police Department rushed on foot toward the sound. Along the way, Rees
    noticed Markeith Turner, who had been walking toward him but changed directions and
    started walking in the opposite direction when he saw Rees. Rees followed Turner into a
    building, where Turner climbed the stairs, turned down a hallway and started banging on a
    door at the end of the hallway. “Let me see your hands,” Rees ordered, and Turner
    complied, after which Rees handcuffed him. Trial Tr. at 2-81.
            Meanwhile, Officer Kenneth Kilgore caught up with Rees and Turner, and found a
    handgun and what turned out to be crack cocaine and heroin lying on the floor where Turner
    had stood. Searching Turner, Kilgore found eight bullets wrapped in a handkerchief in his
    back pocket. At the station, Turner admitted that he had been holding the drugs—though
    for someone else, not for himself—and that he had fired the gun because “he had seen some
    drug dealers drive by and it made him paranoid” and he had hoped to “scare them out of the
    area.” Id. at 2-25.
            In April 2005, the United States charged Turner by complaint with being a felon in
    possession of a firearm and being a felon in possession of ammunition. See 18 U.S.C.
    § 922(g). After a lengthy examination to determine his competency, Turner was indicted for,
    then went to trial on, these two counts plus eight more: possession of a handgun in a school
    zone, see 18 U.S.C. § 922(q)(2)(A), possession with intent to distribute crack cocaine and
    heroin, see 21 U.S.C. § 841(a)(1), (b)(1)(C), being a fugitive in possession of a firearm and
    in possession of ammunition, see 18 U.S.C. § 922(g), being a person under indictment in
    possession of a firearm and in possession of ammunition, see id. § 922(n), and discharging
    a firearm during a drug-trafficking crime, see id. § 924(c)(1)(A)(i), (iii).
            The jury convicted Turner on all counts save for possession with intent to distribute
    crack cocaine, and the district court dismissed the two fugitive-in-possession counts for lack
    of admissible evidence on his fugitive status. The court sentenced him to 382 months on the
    remaining seven counts.
    No. 07-3481         United States v. Turner                                             Page 3
            Turner first argues that the government’s delay in indicting him requires us to
    dismiss two of the charges. The government allowed too much time to pass, he maintains,
    between his arrest on June 1, 2005, and his indictment on January 18, 2006, breaching its
    obligation under the indictment prong of the Speedy Trial Act. See 18 U.S.C. § 3161(b).
            Under the Act, the government has thirty days to indict an individual after arresting
    him, see id., though the Act contains many exclusions. Two matter here. One excludes
    “delay resulting from any proceeding, including any examinations, to determine the mental
    competency . . . of the defendant.” Id. § 3161(h)(1)(A). The other excludes
            delay resulting from transportation of any defendant . . . to and from places
            of examination or hospitalization, except that any time consumed in excess
            of ten days from the date [of] an order of removal or an order directing such
            transportation, and the defendant’s arrival at the destination shall be
            presumed to be unreasonable.
    Id. § 3161(h)(1)(F).
            In this case, the district court excluded “the entire delay” between the request for a
    competency evaluation and the competency hearing, reasoning that the competency-
    examination exclusion of § 3161(h)(1)(A) trumped the ten-day limit on transportation time
    of § 3161(h)(1)(F). R.31 at 7. The court reached this conclusion because it believed—quite
    reasonably—that United States v. Murphy, 
    241 F.3d 447
     (6th Cir. 2001), required as much.
            After the district court relied on Murphy for this point, this court determined that the
    relevant language in Murphy was dictum, holding instead that any “delay in transporting a
    defendant to a mental competency examination beyond the ten day limit imposed by
    § 3161(h)(1)(F) is presumptively unreasonable, and in the absence of rebutting evidence to
    explain the additional delay, this extra time is not excludable.” United States v. Tinklenberg,
    579 F.3d 589
    , 596 & n.2 (6th Cir. 2009). Tinklenberg reasoned that the alternative
    interpretation—one that would exclude transportation time under § 3161(h)(1)(A) but not
    limit it under § 3161(h)(1)(F)—would effectively read the latter provision out of the statute.
    Id. at 596; see Bloate v. United States, ___ U.S. ___, No. 08-728, slip op. at 8 n.9 (Mar. 10,
    2010) (rejecting an interpretation of the Speedy Trial Act that would “render[]” a provision
    No. 07-3481           United States v. Turner                                                Page 4
    of the Act “a nullity”). “The only way to avoid conflict” between those two provisions, we
    held, “is to read § 3161(h)(1)(F) as a specific exception to the general rule announced in
    § 3161(h)(1)(A),” imposing a presumptive limit of ten days for transportation on the
    otherwise unlimited time for competency hearings. 579 F.3d at 596; see Bloate, slip. op. at
    10 (“[a] specific provision . . . controls one[s] of more general application”) (quotation marks
    omitted). The government concedes that Tinklenberg defeats the primary arguments it made
    in its brief to this court.
             In view of Tinklenberg and in view of the language of § 3161(h)(1)(F), we must
    reverse this aspect of the district court’s decision. The relevant period under § 3161(h)(1)(F)
    began with the “order directing . . . transportation” and ended with the “defendant’s arrival
    at the destination.” The clock thus started on June 8, 2005, when the court ordered a
    competency examination for Turner and stated:
             Further, as part of this Order, the United States Marshal and the Bureau of
             Prisons are hereby directed to conduct the transportation and the evaluation
             of the defendant in an appropriate, expeditious manner.
    R.12 at 2. The clock stopped on August 12, 2005, when Turner arrived at the Metropolitan
    Detention Center for the evaluation. The government’s only explanation for the delay does
    not rebut the presumption of unreasonableness for delays that last more than ten days. See
    18 U.S.C. § 3161(h)(1)(F). In vaguely relying on the “difficulty suffered by the facility and
    by the United States Marshal Service in effectuating a timely evaluation and transportation
    to and from the facility,” R.30 at 3, the government offers no handhold for rebutting the
    presumption that it should not take the marshals more than ten days to transport an inmate
    from a prison to the site of a competency examination. Because the remaining period
    includes more than thirty days, the Act requires us to dismiss the charges in Turner’s original
             The government persists that Turner has forfeited his claim under the Speedy Trial
    Act. It points to a proposed order that Turner filed with his motion to determine mental
    competency, which said:
             Pursuant to the Speedy Trial Act provisions of 18 U.S.C. § 3161(h)(1)(A),
             the time required for trial of the defendant shall be tolled from the date of the
             instant order until the results of said psychiatric examination are received by
    No. 07-3481         United States v. Turner                                           Page 5
            the Court, such period being a delay contemplated by 18 U.S.C.
            § 3161(h)(1)(A).
    R.10-1 at 2. Because Turner’s proposed order purported to exclude all of the time from the
    issuance of the competency-examination order to the receipt of the examination results, the
    government says that he may not argue otherwise now.
            Yet the government has a forfeiture problem of its own, as it failed to raise this
    argument below. That is not its only problem: Even assuming that the proposed order could
    constitute a waiver, the Speedy Trial Act does not allow defendants to waive a deadline
    prospectively. See Zedner v. United States, 
    547 U.S. 489
    , 500 (2006). Unlike many rights,
    the rights protected by the Speedy Trial Act belong not just to the defendant, but also to the
    public at large, and “[a]llowing prospective waivers would seriously undermine the Act
    because there are many cases . . . in which the prosecution, the defense, and the court would
    all be happy to opt out of the Act, to the detriment of the public interest.” Id. at 502.
    Turner’s proposed order did not—it could not by itself—waive his right to object to the
    indictment delay.
            Judicial estoppel is no more helpful to the government. As an equitable doctrine
    developed to “protect the integrity of the judicial process,” New Hampshire v. Maine, 
    532 U.S. 742
    , 749 (2001) (quotation marks omitted), it “generally prevents a party from
    prevailing in one phase of a case on an argument and then relying on a contradictory
    argument to prevail in another phase.” Pegram v. Herdrich, 
    530 U.S. 211
    , 227 n.8 (2000);
    see also Reed Elsevier, Inc. v. Muchnick, ___ U.S. ___, No. 08-103, slip op. at 14–15 (Mar.
    2, 2010). But Turner did not make a Speedy Trial Act “argument” below. The merits of the
    motion he filed focused on the facts and law relating to Turner’s need for a competency
    hearing; it did not turn on the Act and needed little argument because the government did
    not oppose it. See Zedner, 547 U.S. at 505 (refusing to apply judicial estoppel and noting
    that “the Government itself accepted the . . . interpretation without objection”).
            The language of the proposed order upon which the government focuses also had no
    relevance to whether Turner was entitled to a competency hearing. Nor would anyone have
    mistaken the short paragraph for a fully considered legal position. In addition to its brevity
    and its lack of analysis, the passage purports to toll the “time required for trial of the
    No. 07-3481         United States v. Turner                                            Page 6
    defendant,” R.10-1 at 2 (emphasis added), not the time required for indictment, see 18 U.S.C.
    § 3161(b), and not for that matter the time required for transportation. And the passage
    correctly states the “general rule” of § 3161(h)(1)(A), even though it makes no mention of
    § 3161(h)(1)(F)’s “specific exception” to that rule. Tinklenberg, 579 F.3d at 596. No doubt
    Turner would have done well to give more consideration to the Speedy Trial Act issue before
    submitting the proposed order. But there was no reason at that point to anticipate the
    government’s conceded “difficulty . . . in effectuating a timely . . . transport to . . . the
    facility,” R.30 at 3, which of course was the ultimate problem and not the problem addressed
    in the motion.
            The government adds that Turner “failed to develop the record with respect to the
    date on which an institution was designated and the date he was actually transported.” U.S.
    Br. at 25. The government again invokes Murphy—this time, a portion reaffirmed by
    Tinklenberg, 579 F.3d at 596 n.2—in which the court held that the ten-day limit could not
    apply unless the defendant provides evidence of the actual transportation delay. 241 F.3d
    at 455. The government notes that the June 8 order does not designate any specific
    institution but commits Turner “to the Federal Medical Center designated by the Bureau of
    Prisons.” R.12 at 1. On this record, the government says, the ten-day clock never started
    (or at least no evidence shows when it started) and accordingly Turner necessarily cannot
    establish a violation.
            The government reads § 3161(h)(1)(F) too narrowly and Murphy too broadly. The
    statute says nothing about the designation of a specific institution; it refers only to the
    “transportation of any defendant . . . to and from places of examination or hospitalization,”
    and starts counting days on “the date . . . [of] an order directing such transportation.”
    18 U.S.C. § 3161(h)(1)(F). The June 8 order “direct[s]” the United States Marshal “to
    conduct the transportation . . . of the defendant . . . in an appropriate, expeditious manner,”
    R.12 at 2, which qualifies as an “order directing . . . transportation,” even if it speaks only
    of transportation to a Federal Medical Center, not a specific facility.
            The government’s reading would require either a second judicial order or a separate
    agency order to trigger § 3161(h)(1)(F). As to the concept of a second judicial order, a court
    might choose to issue one order directing an evaluation, then, once the government has
    No. 07-3481          United States v. Turner                                            Page 7
    picked a facility for the defendant’s evaluation, issue another order directing the government
    to transport the defendant there—an approach that might eliminate the countable-delay
    problems encountered here. Cf. United States v. McGhee, 
    532 F.3d 733
    , 736–37 (8th Cir.
    2008). But we do not read the statute to require a second order to begin the Speedy Trial
    clock. Here, the court’s first order covered evaluation and transportation, which satisfies the
    requirement of an “order directing . . . transportation.” And it would be strange to construe
    the statute to contain a start date that begins, if at all, only when courts do something—issue
    a second judicial order—that, the government tells us, they rarely do. 1/26/10 U.S. Letter
    Br. at 4.
            The government responds that the infrequency of second judicial orders would not
    “gut[] § 3161(h)(1)(F),” id. at 6, because, even without such an order, we still could start the
    clock at the start of the defendant’s trip or on the date of an agency’s internal order to
    transport Turner. The Seventh Circuit has followed this approach in the absence of a judicial
    order of transportation. See United States v. Garrett, 
    45 F.3d 1135
    , 1139–40 (7th Cir. 1995).
    But why consider solutions for a problem—the absence of an order of transportation—that
    does not exist? In this case, the district court’s June 8 order explicitly directed the Marshals
    Service to transport Turner.
            All of this makes Turner’s case readily distinguishable from Murphy’s. In that case,
    so far as the court’s opinion reveals, there was no order of transportation and no evidence
    about the date of arrival, nor any evidence of an agency order as in Garrett, meaning that the
    defendant could not prove the start date or the end date. Murphy, 241 F.3d at 449. Murphy’s
    conclusion—that the defendant could not succeed for failure of proof, id. at 455—thus has
    no bearing on this case, where Turner has shown both dates.
            The government notes that finding a placement for a defendant like Turner can take
    time and argues that the ten-day limit of § 3161(h)(1)(F) could cause practical difficulties.
    The first response is that Congress, not this court, set the limit. The second response is that,
    after a ten-day delay, § 3161(h)(1)(F) establishes a presumption of unreasonableness, not a
    conclusion of unreasonableness. If legitimate problems arise in transporting a defendant, the
    government legitimately may rebut the presumption. The third response is that the order
    directing examination need not direct transportation. If the government fears that a
    No. 07-3481          United States v. Turner                                                 Page 8
    defendant’s placement could take some time, it is free to suggest that the court not issue an
    order directing transportation at that point. Nothing in the statute forbids giving the
    government some time (though presumably not unlimited time) to find a placement before
    issuing an “order directing . . . transportation.” The fourth response is that our holding limits
    only automatic exclusion under § 3161(h)(1), not the ends-of-justice continuances that courts
    may grant under § 3161(h)(7). What the Court said in Bloate, in rejecting a similar argument
    by the government, applies with equal force here:
            This conclusion does not lay “a trap for trial judges” because it limits . . .
            only automatic exclusions. . . . [A] district court may [still] exclude . . . time
            under subsection (h)(7) if it grants a continuance for that purpose based on
            recorded findings “that the ends of justice served by taking such action
            outweigh the best interest of the public and the defendant in a speedy trial.”
            Subsection (h)(7) provides “[m]uch of the Act’s flexibility,” Zedner, 547
            U.S., at 498, and gives district courts “discretion—within limits and subject
            to specific procedures—to accommodate limited delays for case-specific
            needs,” id., at 499.
    Slip. op. at 17.
            The government also claims that Tinklenberg cannot be reconciled with Murphy and
    that Murphy, as the first of the two decisions, should control. See Darrah v. City of Oak
    255 F.3d 301
    , 310 (6th Cir. 2001). Murphy stated that § 3161(h)(1)(A)’s general
    exclusion for time of examination should control a situation like this regardless of the ten-
    day time limit, 241 F.3d at 455, but Tinklenberg reasoned that the statement was “not
    necessary to the outcome” of Murphy and thus did not bind later panels, 579 F.3d at 596 &
    n.2. We agree with the government that one could read Murphy’s statement as a holding,
    rather than as dicta, making Murphy, not Tinklenberg, the precedent that binds. But Murphy
    is not clear on the point. This is not a situation where the second opinion overlooked the
    first, see White v. Columbus Metro. Hous. Auth., 
    429 F.3d 232
    , 240–41 (6th Cir. 2005), or
    where the second opinion disregarded the first merely because it disagreed with it, see
    Darrah, 255 F.3d at 310. Here, the second opinion considered the first one, reasonably
    found the first opinion not binding and indeed was written by the author of the first opinion.
    While the en banc court remains free to consider the merits of the Murphy approach versus
    the Tinklenberg approach to this question, we think Tinklenberg reasonably distinguished
    No. 07-3481         United States v. Turner                                            Page 9
            Tinklenberg, it bears adding, is consistent with the majority of courts to consider the
    issue. Most courts generally agree that “the entire time between the order for psychiatric
    examination and the date of the competency hearing cannot be excluded, for under
    § 3161(h)(1)(F) any time over 10 days spent transporting the defendant to his psychiatric
    examination is considered unreasonable.” United States v. Castle, 
    906 F.2d 134
    , 137 (5th
    Cir. 1990); see United States v. Noone, 
    913 F.2d 20
    , 25–26 & n.5 (1st Cir. 1990); cf. United
    States v. Collins, 
    90 F.3d 1420
    , 1427 (9th Cir. 1996). Language in one case may suggest that
    courts should exclude all time from the order for a psychiatric examination to the final
    competency hearing, regardless of how much of that time the defendant spent waiting to be
    transported to the examination, though the point seems not to have been debated by the
    parties. See United States v. Vasquez, 
    918 F.2d 329
    , 333 (2d Cir. 1990).
            Turner thus has established that the government violated the Speedy Trial Act. But
    his success on this front gets him only so far on another front—his interest in being let out
    of prison. First, we can order the dismissal of just two of his seven convictions—for being
    a felon in possession of a firearm and being a felon in possession of ammunition, see
    18 U.S.C. § 922(g)—and the order thus affects just the components of his sentence, if any,
    based on these two convictions. Those were the only charges included in his original
    complaint, and a speedy indictment violation requires dismissal only of the offenses charged
    in the original complaint. See 18 U.S.C. § 3162(a)(1); United States v. Nabors, 
    901 F.2d 1351
    , 1355 (6th Cir. 1990). Second, the government may be able to try these charges again,
    because we remand to the district court to determine, based upon the factors in 18 U.S.C.
    § 3162(a)(1), whether to dismiss these charges with or without prejudice. See Zedner,
    547 U.S. at 509.
            Turner’s other claims fare worse. He argues that the police arrested him without
    probable cause in violation of the Fourth Amendment and asks us to suppress the drugs, gun
    and ammunition seized after the arrest. But Turner waived this argument by failing timely
    to raise it below. Under Rule 12(e) of the Federal Rules of Criminal Procedure, a party
    waives any motion to suppress that it fails to file by the deadline the district court sets.
    No. 07-3481          United States v. Turner                                           Page 10
    Turner never filed a motion to suppress, and the closest thing he did file—a pro se “Petition
    to Dismiss Complaint” that argued the police did not have probable cause to arrest him,
    R.36—came nine days after the relevant filing deadline.
            Turner responds that Rule 12(e) allows the district court to relieve a party from the
    waiver “[f]or good cause,” Fed. R. Crim. P. 12(e), which he met by trying to file a motion
    to suppress before the deadline but that his attorney prevented him from filing. See R.34
    (moving for a new lawyer because the current lawyer was “not willing to file motions
    [Turner] ask[ed] him [to]”). But we have rejected this same argument before. See, e.g.,
    United States v. Nance, 
    481 F.3d 882
    , 885 n.1 (6th Cir. 2007) (refusing to reach merits of
    suppression motion even where defendant unsuccessfully pressed his counsel to file it).
    Turner adds that the district court found not only that Turner’s pro se motion was “filed out
    of time” but also that it was “without merit on [its] face,” R.96 at 13, which amounts to a
    merits ruling that we may review. But we have rejected this argument before as well. See,
    e.g., United States v. Obiukwu, 
    17 F.3d 816
    , 819 (6th Cir. 1994) (“The fact that the district
    court saw fit to rule on the merits of [the] motion, despite its untimeliness, does not save the
    defendant from waiver of the grounds stated in the motion.”).
            Even to the extent that we may review Turner’s claim for plain error—and it is not
    clear that we may, see United States v. Caldwell, 
    518 F.3d 426
    , 430 (6th Cir. 2008); see also
    United States v. Collier, 246 F. App’x 321, 335–36 (6th Cir. 2007)—we decline to do so
    here, without the benefit of a suppression hearing below. Given the multiplicity of factors
    that may give rise to probable cause, see Maryland v. Pringle, 
    540 U.S. 366
    , 370–71 (2003),
    or turn an investigative stop into an arrest, see United States v. Lopez-Arias, 
    344 F.3d 623
    627 (6th Cir. 2003), we cannot meaningfully resolve these issues based on this trial
    testimony alone.
            Turner raises several new claims in his reply brief. These claims are forfeited, see
    Moulton v. U.S. Steel Corp., 
    581 F.3d 344
    , 354 (6th Cir. 2009), and meritless to boot.
            Turner argues that the jury delivered an inconsistent verdict by convicting him of
    possessing heroin, ammunition and a firearm but acquitting him of possessing crack cocaine.
    No. 07-3481          United States v. Turner                                           Page 11
    But there is nothing inconsistent about this verdict, since it is quite possible to possess one
    thing and not another, and, “[i]n any event, inconsistent verdicts are constitutionally
    tolerable.” Dowling v. United States, 
    493 U.S. 342
    , 353–54 (1990).
            Turner separately argues that his conviction was based on hearsay, because the
    government did not produce the ammunition he possessed but relied on witnesses testifying
    about it, and did not produce the gunshot residue evidence from his gun but also relied on
    testimony about it. Yet testimony about out-of-court events or objects is not hearsay unless
    it includes testimony about an out-of-court statement. See Fed. R. Evid. 801(c).
            Turner also argues that the government’s destruction of the ammunition and the
    gunshot residue evidence violated his due process rights. But one cannot state a due process
    claim simply by pointing to “the failure of the State to preserve evidentiary material of which
    no more can be said than that it could have been subjected to tests, the results of which might
    have exonerated the defendant.” Arizona v. Youngblood, 
    488 U.S. 51
    , 57 (1988). Turner
    offers no theory by which this evidence might have exonerated him—or, for that matter, any
    tests to which he would subject the evidence—and so this claim fails as well.
            In view of our disposition of Turner’s Speedy Trial Act claim, we need not consider
    his sentencing challenges.     The sentence on the two felon-in-possession counts, we
    recognize, run concurrently with the sentences on the unaltered convictions, making it quite
    possible that these dismissals will have little, if indeed any, affect on the length of Turner’s
    sentence. But given the complexity of the guidelines calculation underlying Turner’s
    sentence—which took nearly nine pages of transcript to explain—and given the district
    court’s plenary sentencing responsibilities, we will let the district court determine the effect
    of these dismissals on Turner’s sentence in the first instance.
            (One side note: We thank counsel for the two parties, who ably represented their
    competing sides and went above and beyond the call of duty in helping the court to try to
    sort out the complicated issues raised in this case.)
    No. 07-3481         United States v. Turner                                          Page 12
            For these reasons, (1) we reverse Turner’s convictions for being a felon in possession
    of a firearm and a felon in possession of ammunition; (2) we remand to the district court to
    determine whether to dismiss those charges with or without prejudice; (3) we affirm Turner’s
    five other convictions; and (4) we vacate Turner’s sentence and remand for resentencing.