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United States v. Wearing

United States Court of Appeals, Eighth Circuit

September 15, 2016

United States of America Plaintiff- Appellee
v.
Rashad A. Wearing Defendant-Appellant

          Submitted: April 11, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before GRUENDER and KELLY, Circuit Judges, and ERICKSEN, [1] District Judge.

          PER CURIAM.

          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 court[2] 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.

          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 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 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 ...


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