United States Court of Appeals, District of Columbia Circuit
September 5, 2019
from the United States District Court for the District of
Columbia (No. 1:99-cr-00011-1)
B. Katzoff, appointed by the court, argued the cause and
filed the briefs for appellant.
Honold, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and
James Sweeney, Assistant U.S. Attorneys.
Before: Henderson and Katsas, Circuit Judges, and Sentelle,
Senior Circuit Judge.
Sentelle Senior Circuit Judge.
Juan McLendon, moved the district court to vacate his
conviction, alleging violations of his Sixth Amendment right
to effective assistance of counsel. He argued that his trial
and appellate counsel failed to properly argue or advance a
claim that his Speedy Trial Act ("STA") rights were
violated. The district court denied McLendon's motion. It
held that he could not show Strickland prejudice
resulting from counsels' alleged failures because, even
if there was a violation of the STA, the trial court would
have dismissed the case without prejudice, allowing the
government to reindict and reprosecute McLendon on the same
reasons stated below, we affirm the district court's
denial of the motion.
Speedy Trial Act
was designed to give effect to a criminal defendant's
right to a speedy trial under the Sixth Amendment. United
States v. Rojas-Contreras, 474 U.S. 231, 238 (1985)
(Blackmun, J., concurring) (citing H.R. Rep. No. 96-390, at 3
(1979)). Under the Act, "if a defendant is not brought
to trial within seventy days of indictment, the court
'shall' dismiss the indictment 'on motion of the
defendant.'" United States v. Miller, 799
F.3d 1097, 1104 (D.C. Cir. 2015) (quoting 18 U.S.C. §
3162(a)(2)). The Act specifies certain periods of pretrial
delay that are excluded from computation of the seventy days.
18 U.S.C. § 3161(h). If the Act is violated, the court
must dismiss the case but has discretion to dismiss with or
without prejudice. Id. § 3162(a)(2). The
statute lists three nonexclusive factors to guide the
court's exercise of that discretion: (1) the seriousness
of the crime, (2) the facts and circumstances leading to the
dismissal, and (3) the impact of reprosecution on the
administration of the Act and on the administration of
justice. Id. If the court dismisses without
prejudice, the government is free to seek a new indictment
against the defendant on the same or related charges. See
Miller, 799 F.3d at 1104.
prosecution in the instant case began over twenty years ago.
On September 15, 1998, the federal government filed an
indictment against McLendon in Case No. 98-320. The
indictment charged McLendon with two counts of unlawful use
of a communication facility in violation of 21 U.S.C. §
843(b), two counts of unlawful distribution of fifty grams or
more of cocaine base in violation of 21 U.S.C. §
841(a)(1), (b)(1)(A)(iii), and two counts of unlawful
distribution of cocaine base within 1, 000 feet of a school
in violation of 21 U.S.C. § 860(a).
was arrested on September 17, 1998, when he sold
approximately sixty-two grams of cocaine base to an
undercover police officer. One week after the arrest, the
government filed a superseding indictment in the same case,
which included an additional count for each of the charges in
the original indictment, as well as charges for carrying a
firearm during a drug-trafficking offense in violation of 18
U.S.C. § 924(c)(1); carrying a pistol without a license
in violation of 22 U.S.C. § 3204(a); and assaulting,
resisting, or interfering with a police officer in violation
of 22 U.S.C. § 505(a). On October 2, 1998, McLendon was
arraigned on the superseding indictment, and the trial court
set a trial date for January 6, 1999, but it rescheduled the
trial for January 13, 1999. In early January 1999, however,
the trial court raised concerns that the STA was violated and
scheduled a status hearing.
review of the record reveals that the parties, and the court,
experienced scheduling difficulties throughout the pendency
of the trial. Between his arrest in late September 1998 and
November 23, 1998, McLendon changed attorneys three times.
One of McLendon's earlier attorneys requested an
extension to file pretrial motions, which was granted.
Defense counsel, however, never filed any pretrial motions,
never informed the court or the government that he did not
intend to do so, and never attempted to cancel the motions
hearing. In fact, it was this scheduled, but unnecessary,
motions hearing that sparked the trial court's concerns
about the STA.
STA status hearing on January 8, 1999, the trial court noted
that, in part because McLendon had changed attorneys on three
separate occasions, it would have been impossible to try the
case within the STA period. Defense counsel himself
repeatedly reinforced this conclusion by accepting much of
the blame for the delay due to his busy court schedule and
stating that he was not prepared to go to trial on the
scheduled date. The court also accepted some blame for the
delay and noted that "the case [had] slipped through the
cracks." Appendix 77.
January 7, 1999, one day before the status hearing, the
government filed a new indictment in Case No. 99-11, which
was identical to the indictment in Case No. 98-320. The
government explained that it procured the indictment in Case
No. 99-11 because it did not want the defendant released from
custody if the court found an STA violation. The government
maintained that it had "detrimentally relied on the fact
that the defense was going to file motions" and
repeatedly noted that it was and had been prepared to proceed
to trial on the scheduled date. Appendix 68.
trial court estimated that the speedy trial clock had run
several weeks earlier, around December 14, 1998. Accordingly,
the trial court concluded that the Act had been violated and
the indictment in Case No. 98-320 should be dismissed, noting
that it was inclined to dismiss the case without prejudice.
Additionally, the trial court stated that it intended to
proceed to trial on the identical indictment in Case No.
99-11, but the court did not address whether the speedy trial
clock in Case No. 98-320 also applied to Case No. 99-11. The
court allowed both parties time to research and file written
motions on the issues, including whether to dismiss the
indictment in Case No. 98-320 with or without prejudice.
the court's conclusions on the STA violations, defense
counsel filed a motion to dismiss that allegedly
miscalculated the excludable delay and ultimately conceded
that the Act had not been violated. Counsel instead moved to
dismiss either of the pending indictments with prejudice on
double jeopardy grounds. The defense motion did not reference
the § 3162(a)(2) factors and cited no other authority to
support a dismissal with ...