Submitted: April 11, 2016
from United States District Court for the Eastern District of
Arkansas - Little Rock
GRUENDER and KELLY, Circuit Judges, and ERICKSEN,  District
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 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.
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.
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
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.
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.
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."
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 §
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
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 ...