United States v. Martin, 10th Cir. (2001)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
AUG 13 2001
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
Nos. 00-2138 & 00-2251
(D.C. No. CR-00-94-BB)
(D. N.M.)
v.
JOSEPH R. MARTIN,
Defendant-Appellant.
No. 00-2139
(D.C. No. CR-96-255-BB)
(D. N.M.)
ORDER AND JUDGMENT

Before SEYMOUR and McKAY , Circuit Judges, and
Judge.
BRORBY , Senior Circuit
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Joseph R. Martin was convicted of threatening to assault and

murder a federal official. Defendant seeks to have his conviction vacated on the
grounds that the district court violated his statutory and constitutional right to a
speedy trial. We affirm.
I. Background
In district court case No. CR-96-255, defendant was indicted for

threatening to assault and murder a federal official in violation of 18 U.S.C.
115. Defendant was taken into federal custody and arraigned on June 13, 1996.
On July 19, 1996, defendants counsel filed a motion requesting that the district
court order a competency examination of defendant. The district court granted
the motion, and defendant underwent a competency examination. On
September 27, 1996, the district court held a competency hearing, and the court
determined that defendant was incompetent to stand trial. Pursuant to 18 U.S.C.
4241(d), the district court therefore ordered defendant committed to the custody
of the Attorney General for competency treatment for a reasonable period of time
not to exceed four months. The district court subsequently extended defendants
commitment for an additional four months.
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On June 11, 1997, the district court held a second competency hearing, and
the court determined that defendant was competent to stand trial. However,
defendants counsel subsequently filed an unopposed motion requesting that
defendant be recommitted for further evaluation. The district court granted the
motion and ordered defendant recommitted for a reasonable period of time not to
exceed four months. The court subsequently extended defendants commitment
for an additional four months.
On July 2, 1998, the district court held a third competency hearing, and the
court determined that defendant was incompetent to stand trial. The court
therefore ordered defendant committed for further evaluation, and he remained in
the custody of the Attorney General for the next year. A fourth competency
hearing was subsequently scheduled for August 16, 1999. At the hearing,
defendant requested that the court appoint new counsel to represent him, and the
court granted defendants request. Defendants new counsel then filed an
unopposed motion requesting another competency examination. The district court
granted the motion, and defendant underwent another competency examination.
After holding a fourth competency hearing, the court entered on order on
January 11, 2000, finding defendant competent to stand trial.
On January 24, 2000, the government filed a motion to dismiss the
indictment in case No. CR-96-255 without prejudice. The basis of the motion was
-3-
that the seventy-day statutory time limit under the Speedy Trial Act, 18 U.S.C.
3161(c)(1), had expired in July of 1997. The government claimed that, through
inadvertence, it did not discover the violation of the Speedy Trial Act until
January 21, 2000. On February 2, 2000, the district court granted the
governments motion and dismissed the indictment without prejudice.
On January 28, 2000, in district court case No. CR-00-94, the government
filed a new criminal complaint against defendant. On February 7, 2000, a bench
trial was held, and the district court found defendant guilty of violating 18 U.S.C.
115. The district court then sentenced defendant to forty-six months in prison.
Because defendant had already been in custody for fifty-five months,
he was
given credit for time served and was released to serve a three-year term of
supervised release. However, on June 14, 2000, the district court determined that
defendant had violated the terms of his supervised release, and it was revoked.
The district court then sentenced defendant to fourteen months in prison, which
was reduced to five months due to his previous good time credits, and a thirtymonth term of supervised release.
This includes defendants incarceration on state charges prior to his transfer

to federal custody.
-4-
II. Defendants Appeals

Defendant has filed three separate appeals. First, in appeal No. 00-2139,
defendant is appealing the district courts dismissal of the original indictment
without prejudice in case No. CR-96-255. Second, in appeal No. 00-2138,
defendant is appealing his conviction in case No. CR-00-94. Third, in appeal No.
00-2251, defendant is appealing the revocation of his supervised release in case
No. CR-00-94. It is important to note, however, that defendant is not challenging
the merits of his conviction or the revocation of his supervised release. Instead,
based on the alleged violations of his statutory and constitutional right to a speedy
trial, defendants only claim on appeal is that the district court should have
dismissed the original indictment with prejudice and thereby prohibited the
government from reprosecuting him on the same charges.
This court does not have jurisdiction over appeal No. 00-2139 because the
district courts dismissal of the original indictment without prejudice was not an
appealable final judgment.
See United States v. Tsosie , 966 F.2d 1357, 1361
(10th Cir. 1992). Nonetheless, in appeal No. 00-2138, defendant has properly
appealed his conviction in case No. CR-00-94, and we have jurisdiction in appeal
No. 00-2138 to consider defendants claim that the district court erred by failing
to dismiss the original indictment with prejudice.
See United States v. Kelley , 849
F.2d 1395, 1397 (11th Cir. 1988) (holding that a defendant may appeal order
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dismissing indictment without prejudice for violation of Speedy Trial Act after
conviction is obtained in subsequent prosecution).
III. Speedy Trial Act
The Speedy Trial Act . . . requires that a criminal defendants trial
commence within 70 days after his indictment or initial appearance, whichever is
later. United States v. Hill , 197 F.3d 436, 440 (10th Cir. 1999) (citing 18 U.S.C.
3161(c)(1)). However, certain periods of delay are excluded [under the Act]
and do not count toward the 70-day limit.
Id. In particular, any period of delay
resulting from the fact that the defendant is mentally incompetent . . . to stand
trial is excluded, see 3161(h)(4), as is any delay resulting from any
proceeding, including any examinations, to determine the mental competency . . .
of the defendant, see 3161(h)(1)(A).
Under 3162(a)(2), once the district court determines that seventy nonexcludable days have passed, the sanction is mandatory dismissal of the
indictment, and the only issue is whether the dismissal is with or without
prejudice. See Tsosie, 966 F.2d at 1358. To make this determination, the district
court must consider the seriousness of the offense; the facts and circumstances
of the case which led to the dismissal; and the impact of a reprosecution on the
administration of [the Act] and on the administration of justice.
-6-
United States
v. Jones , 213 F.3d 1253, 1256 (10th Cir. 2000) (quoting 3162(a)(2)). The
district court must also consider any prejudice to the defendant.
Id. at 1256-57.
The district court found, and the government does not dispute, that the
government violated the Speedy Trial Act in case No. CR-96-255 because
seventy-five non-excludable days passed between: (1) the day of defendants
arraignment and the date defendants counsel first moved for a competency
examination; and (2) the date the district court initially determined that defendant
was competent to stand trial and the date defendants counsel filed his unopposed
motion to have defendant recommitted. Applying the relevant factors, the district
court then determined that the indictment should be dismissed without prejudice
because: (1) the offense of threatening to assault and murder a federal official is
obviously serious; (2) the delay in bringing defendant to trial was not the result
of prosecutorial bad faith, but was instead the result of defendants wavering
between competency and incompetency, by a thin margin on either side;
(3) defendant suffered little, if any, prejudice as a result of the delay; and (4) a
dismissal with prejudice was not necessary to ensure future compliance with the
Speedy Trial Act.
See R., No. 00-2139, Vol. 1, Tab 71, at 4-5. We review the
district courts decision to dismiss the indictment without prejudice for an abuse
of discretion. See Jones , 213 F.3d at 1256.
-7-
We agree with the district courts analysis. As the district court found,
threatening to assault and kill a federal official is clearly a serious offense, and
the seriousness of the offense was compounded by the fact that two firearms were
found in defendants motor home at the time of his arrest. This case is also
unique in that defendant was repeatedly found to be incompetent to stand trial,
and he is not challenging the propriety of any of the actions taken by the district
court or his own counsel in having him committed for competency examinations
and extensive treatment. We hold, therefore, that the district court did not abuse
its discretion in refusing to dismiss the original indictment with prejudice.
IV. Sixth Amendment
Defendant also alleges that he was denied his Sixth Amendment right to a
speedy trial. In determining whether a defendant has been deprived of his
constitutional right to a speedy trial under the Sixth Amendment, a court should
consider and balance the following factors: (1) the length of the delay; (2) the
reason for the delay; (3) the defendants assertion of his right to a speedy trial;
and (4) prejudice to the defendant.
Hill , 197 F.3d at 443 (quotation omitted).
Here, the lengthy delay in bringing defendant to trial was necessitated by

his incompetency; defendants defense in case No. CR-00-94 was not prejudiced
by the delay; and defendant did not assert his right to a speedy trial until
December 8, 1999--almost three-and-a-half years after he was taken into federal
-8-
custody, see R., No. 00-2139, Vol. I, Tab 57, at 1. Accordingly, we hold that
defendant was not deprived of his Sixth Amendment right to a speedy trial.
V. Conclusion
The district courts order of dismissal without prejudice in case No.
CR-96-255 and defendants conviction in case No. CR-00-94 are AFFIRMED.
Because defendant has not challenged the merits of the revocation of his
supervised release, the district courts revocation of defendants supervised
release in case No. CR-00-94 is also AFFIRMED. We DISMISS appeal No.
00-2139 for lack of jurisdiction.
Entered for the Court
Monroe G. McKay
Circuit Judge
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United States v. Martin, 10th Cir. (2001)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT

BRORBY , Senior Circuit

Defendant Joseph R. Martin was convicted of threatening to assault and

In district court case No. CR-96-255, defendant was indicted for

This includes defendants incarceration on state charges prior to his transfer

II. Defendants Appeals

See United States v. Tsosie , 966 F.2d 1357, 1361

See United States v. Kelley , 849

Id. In particular, any period of delay

Hill , 197 F.3d at 443 (quotation omitted).

Here, the lengthy delay in bringing defendant to trial was necessitated by

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