In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3835

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RODNEY E. HEMMINGS,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. EV 99-39-CR--Richard L. Young, Judge.

ARGUED May 17, 2001--DECIDED July 12, 2001


  Before HARLINGTON WOOD, JR., KANNE, and
ROVNER, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. On
May 2, 2000, defendant-appellant Rodney
E. Hemmings was charged in a five-count
superseding indictment in the United
States District Court for the Southern
District of Indiana. On July 6, 2000, a
jury convicted Hemmings on all five
counts. Counts 1, 2, and 3 alleged
violations of 18 U.S.C. sec. 922(a)(6)
(making false statements in connection
with the acquisition of firearms), Count
4 alleged a violation of 18 U.S.C. sec.
922(g)(1) (felon in possession of
firearms), and Count 5 alleged a
violation of 18 U.S.C. sec. 922(g)(9)
(possession of firearms by person
convicted of a domestic violence crime).
Hemmings appeals his conviction on all
five counts. His appeal is in large part
based on alleged violations of the Speedy
Trial Act, 18 U.S.C. sec. 3161. For the
reasons set forth in the following
opinion, we affirm the conviction.

I.   Background

  On December 19, 1998, Hemmings entered
Goldman’s Pawn Shop in Evansville,
Indiana, and attempted to retrieve a
shotgun he had previously pawned. This
act required the completion of the Bureau
of Alcohol, Tobacco, and Firearms ("ATF")
Firearms Transaction Record, referred to
as Federal Form 4473. On this form
Hemmings denied that he had been
convicted of a crime punishable by
imprisonment for a term exceeding one
year, denied that he had been convicted
of misdemeanor crimes of domestic
violence, and denied that he was under
indictment for a crime punishable by a
year in jail. In actuality, Hemmings had
several prior convictions, including a
1992 felony conviction for attempted
voluntary manslaughter and a 1990
misdemeanor conviction for battery of a
person under thirteen years of age. Also,
Hemmings had been arrested on December 3,
1998 on felony battery charges. These
charges, which were later dismissed, were
pending on December 19, 1998. In spite of
Hemmings’ misrepresentations, Goldman’s
Pawn refused to return the gun to
Hemmings. Hemmings did regain possession
of the shotgun along with a second
shotgun he had pawned by giving his
friend Frederick Draper the pawn tickets
and the money to pick up the guns at the
pawn shop for him.

  On July 28, 1999, a Warrick County
Sheriff’s deputy interviewed Hemmings
about the ATF form he had filled out at
the pawn shop. Hemmings denied possessing
any firearms at that time. After the
interview, Hemmings, fearing a search
warrant for guns would be issued, gave
the various guns in his possession,
including the two named in the
indictment, to his ex-wife, Deneisa
Hemmings. On August 6, 1999, Deneisa
Hemmings, because of her fear of
Hemmings, met with members of the Warrick
County Sheriff’s Department to turn over
the guns Hemmings had given to her.
Deneisa Hemmings then signed a written
statement explaining how she came to
possess the guns. Hemmings and Deneisa
Hemmings remarried in December 1999.

  Because the main issue of this appeal is
the Speedy Trial Act, a close review of
the procedural history is necessary.
Hemmings was first indicted by a federal
grand jury on December 21, 1999 on three
counts alleging violations of 18 U.S.C.
sec. 922(a)(6). Hemmings was arrested,
and he made his initial court appearance
on December 23, 1999. A detention hearing
occurred on December 27, 1999, resulting
in Hemmings’ release on his own
recognizance.
  The court set the trial date for
February 22, 2000, but the defense filed
a motion for continuance, which the court
granted on February 17, 2000. The
district judge then set a new trial date
of April 24, 2000. On April 17, 2000, the
government filed a motion in limine
asking the court to determine whether the
statement made by Deneisa Hemmings on
August 6, 1999 was precluded by spousal
privilege because of her subsequent
remarriage to Hemmings. The government
then made a motion to compel Hemmings to
produce a fingerprint exemplar on April
19, 2000.

  A pre-trial conference was held on April
21, 2000, at which time the court stated
that it would not be able to conduct the
trial on April 24, 2000, and rescheduled
the trial for July 10, 2000. The judge
individually asked defense counsel,
Hemmings, and the prosecutor whether they
had any objection to rescheduling the
trial. Each person indicated that they
did not. The judge also inquired as to
the government’s motion in limine. The
judge stated that he was sure defense
counsel wanted to have some time to
respond to the government’s motion, to
which defense counsel responded, "Yes, I
do." The judge then replied, "I’m
inclined to grant their motion and allow
the statement in, but certainly I’ll
allow you an opportunity to respond to
the motion, and we’ll rule on it at that
time." Defense counsel never filed a
response to the motion in limine, and the
district court never ruled on the motion.

  On May 2, 2000, the government filed a
superseding indictment, adding Counts 4
and 5. The superseding indictment also
added the word "knowingly" to the first
three counts. Hemmings made his initial
appearance on the superseding indictment
on May 25, 2000, at which time his trial
date was moved to July 5, 2000.

  On June 15, 2000, the district court
granted the government’s motion to compel
production of a fingerprint exemplar, and
on June 19, 2000, Hemmings filed a motion
to dismiss for alleged violations of the
Speedy Trial Act. In his motion, Hemmings
asserted first that the superseding
indictment should be dismissed as
untimely and secondly, that the allotted
time to bring the initial three charges
to trial had elapsed. The government
filed its opposition to Hemmings’ Speedy
Trial motion on June 27, 2000, and the
court denied the motion on June 30, 2000.
In making that decision, the district
court found that the Speedy Trial Act did
not require the superseding indictment to
be filed within thirty days of Hemmings’
arrest, even though the government did
possess the information necessary for the
superseding indictment at the time of
Hemmings’ first indictment./1 The
district judge further found that the
case was well within the seventy days
allotted to bring a case to trial under
18 U.S.C. sec. 3161(c)(1). In calculating
the amount of time before the trial
began, the district court excluded the
period from December 23, 1999 to December
27, 1999, because of the government’s
motion for pre-trial detention. The time
from February 7, 2000 until April 24,
2000 was excluded because of Hemmings’
motion for a continuance. The district
court also excluded the time from April
21, 2000 (the date of the court’s sua
sponte continuance) until June 19, 2000
(the date Hemmings filed the motion to
dismiss) "pursuant to the Court’s
continuance at the pretrial conference."
Finally, the court determined that the
period from April 17, 2000 (the date of
the government’s motion in limine) to
June 19, 2000 was also excludable based
on Hemmings’ failure to respond to the
government’s motion.

  The trial began on July 5, 2000, and a
jury convicted Hemmings of all counts on
July 6, 2000. Hemmings was sentenced to
seventy months imprisonment. He filed
this timely appeal, challenging the
district court’s denial of his Speedy
Trial Act motion and raising
constitutional issues.

II.    Analysis

A.    The Speedy Trial Act

  "We review a district court’s
interpretation of the Speedy Trial Act de
novo." United States v. Salerno, 108 F.3d
730, 734 (7th Cir. 1997). We turn first
to Hemmings’ contention that the Speedy
Trial Act prohibited the government from
bringing a superseding indictment more
than thirty days after his arrest.
Hemmings contends that Counts 4 and 5
should be dismissed as untimely under 18
U.S.C. sec. 3161(b). The Speedy Trial Act
does not expressly address cases in which
the government files a superseding
indictment with additional charges more
than thirty days after arrest, and the
matter is one of first impression in this
circuit.

  Under 18 U.S.C. sec. 3161(b), "[a]ny .
. . 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." Other circuits have
uniformly held that sec. 3161(b)’s
thirty-day rule is not violated "[w]hen a
defendant is indicted within the thirty-
day period and then re-indicted on
identical charges based on identical
facts after the expiration of the thirty-
day period." United States v. Berry, 90
F.3d 148, 151 (6th Cir. 1996); see also
United States v. Perez, 845 F.2d 100, 103
(5th Cir. 1988) (finding that initial
indictment returned by a grand jury whose
term had expired tolled the thirty-day
period such that a subsequent valid
indictment which was "identical in all
material respects to the void indictment"
was timely); United States v. Mitchell,
723 F.2d 1040, 1044-45 (1st Cir. 1983)
(holding that, when initial indictment
was filed within the thirty-day period, a
superseding indictment filed outside the
thirty-day window which did not change
the original charges did not violate the
Speedy Trial Act); United States v. Rabb,
680 F.2d 294, 297 (3d Cir. 1982) ("in the
absence of bad faith on the part of the
government or prejudice to the defendant,
an indictment returned by a grand jury
whose term has expired is sufficient to
toll Speedy Trial Act sec. 3161(b), if it
is followed by a valid indictment,
identical in all material respects").
Several circuits have also held that
superseding indictments filed longer than
thirty days after an arrest which add
charges to those contained in the
original indictment do not violate the
Speedy Trial Act. See, e.g., United
States v. Mosquera, 95 F.3d 1012, 1013
(11th Cir. 1996) (finding no Speedy Trial
Act violation when superseding indictment
adding new charges was filed following a
mistrial based on the fact that the
initial indictment was filed within the
thirty-day period); United States v.
Orbino, 981 F.2d 1035, 1037 (9th Cir.
1992) ("A superseding indictment [adding
charges] issued before the original
indictment is dismissed may issue more
than thirty days after the arrest. Not
all charges must be filed within the
first thirty day period." (citations
omitted)); United States v. Castellano,
848 F.2d 63, 65 (5th Cir. 1988) (holding
initial indictment, which was
subsequently found to be invalid, tolled
the thirty-day period and superseding
indictment alleging different charges
based on same fraudulent acts as earlier
indictment was therefore timely); United
States v. McCown, 711 F.2d 1441, 1446-48
(9th Cir. 1983) (holding that, when first
indictment was filed within the thirty-
day period, there is no Speedy Trial Act
violation when a subsequent indictment,
repeating one charge from the initial
indictment and adding other counts, is
filed outside the thirty-day window).

  While Hemmings seeks relief under 18
U.S.C. sec. 3162(a) (1), it is clear from
the plain language of the statute that
his claim must fail. Section 3162(a)(1)
provides:

If, 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) as
extended by section 3161(h) of this
chapter, such charge against that
individual contained in such complaint
shall be dismissed or otherwise dropped.

Hemmings was arrested on an indictment,
not on a complaint. This is not a case in
which no indictment was filed within the
thirty-day period. As the Eleventh
Circuit recognized in Mosquera, "’[t]he
Speedy Trial Act does not guarantee that
an arrested individual indicted within
thirty days of his arrest must, in that
thirty-day period, be indicted for every
crime known to the government, failing
which he may never be charged. In short,
the Speedy Trial Act is not a statute of
limitations.’" Mosquera, 95 F.3d at 1013
(quoting United States v. Wilson, 762 F.
Supp. 1501, 1502 (M.D. Ga. 1991)).

  The defense relies on United States v.
Van Brandy, 563 F. Supp. 438 (S.D. Cal.
1983), as support for its contention that
the superseding indictment is untimely.
This reliance is misplaced. In Van
Brandy, the government brought a
superseding indictment on the eve of
trial, despite having possessed the
ability to bring the charges at the time
of the original indictment. Id. at 439.
The district court severed the new
charges and later dismissed them for
violation of the Speedy Trial Act because
of the government’s failure to explain
the reasons for its delay in bringing the
charges. Id. at 441. In the present case,
the superseding indictment did not issue
on the eve of trial. The Speedy Trial Act
requires that a trial may not commence
within thirty days of the defendant’s
initial appearance on an indictment
before a judge. 18 U.S.C. sec.
3161(c)(2). While a superseding
indictment does not give the defendant a
per se right to an additional thirty days
of trial preparation, United States v.
Rojas-Contreras, 474 U.S. 231, 234-35
(1985), in the present case, Hemmings had
over forty days from the time he made his
initial appearance on the superseding
indictment on May 25 to the beginning of
trial on July 5. The district court was
correct in refusing to dismiss Counts 4
and 5 as untimely.

   We next address Hemmings’ assertion
that the district court erroneously
refused to dismiss Counts 1, 2, and 3
under 18 U.S.C. sec. 3162(a)(2) based on
the government’s failure to bring
Hemmings to trial within seventy days
after his initial appearance on those
charges as required by 18 U.S.C. sec.
3161(c)(1). Hemmings contends that the
district court erred in ruling that the
periods from April 21, 2000 to June 19,
2000 and from April 17, 2000 to June 19,
2000 were excludable under 18 U.S.C. sec.
3161(h)./2 "’Absent legal error,
exclusions of time cannot be reversed
except when there is an abuse of
discretion by the court and a showing of
actual prejudice.’" United States v.
Marin, 7 F.3d 679, 683 (7th Cir. 1993)
(internal quotations and citations
omitted).

  At the outset, we note that a
superseding indictment restating or
correcting original charges does not
restart the seventy-day clock. See United
States v. Baker, 40 F.3d 154, 159 (7th
Cir. 1994). Therefore, as the district
court correctly noted, in the present
case, the seventy-day period started
running on December 23, 1999. The
district court excluded the period
beginning April 21 "pursuant to the
Court’s continuance at the pretrial
conference." The court, however, failed
to make the requisite findings under 18
U.S.C. sec. 3161(h)(8) "that the ends of
justice served by [the continuance]
outweigh the best interest of the public
and the defendant in a speedy trial." The
government contends that Hemmings waived
any challenge to the sua sponte
continuance by failing to object when
questioned by the district court at the
conference. We need not address the
issue, however, because, as our analysis
will show, the court properly excluded
the period from April 17, 2000 to June
19, 2000 under 18 U.S.C. sec.
3161(h)(1)(F) based on the pending motion
in limine.

  Hemmings asserts that the district court
erroneously excluded the time from April
17, 2000 until June 19, 2000, arguing
that the motion in limine "was taken
under advisement from the date of its
filing" or at the latest following the
April 21, 2000 conference. As Hemmings
points out, 18 U.S.C. sec. 3161(h)(1)(J)
limits to thirty days any exclusion for
periods during which a matter is under
advisement by the court. Alternatively,
Hemmings contends that the matter was "in
limbo" for at least fifty-nine days, and
therefore, the "prompt disposition"
clause of 18 U.S.C. sec. 3161(h)(1)(F)
was not satisfied.

  At the April 21 conference, defense
counsel indicated that he wanted "some
time" to respond to the government’s
motion. At that time, counsel was
informed that the court would wait to
rule on the motion until the defense had
an opportunity to respond. However,
defense counsel never filed a response or
informed the court that he had decided
not to respond. Hemmings relies heavily
on United States v. Janik, 723 F.2d 537
(7th Cir. 1983); however, the court in
Janik expressly noted that Janik’s motion
was "under advisement after the filing of
the last post-hearing briefs." Id. at
544. In the present case, the matter was
not "actually under advisement by the
court" as required by 18 U.S.C. sec.
3161(h)(1)(J). See Henderson v. United
States, 476 U.S. 321, 328-29 (1986)
(stating that sec. 3161(h)(1)(J) "allows
exclusion of up to 30 days while the
district court has a motion ’under
advisement,’ i.e., 30 days from the time
the court receives all the papers it
reasonably expects"); Salerno, 108 F.3d
at 737 ("[S]ubsection (J) automatically
provides a 30-day exclusion for periods
covering any proceedings once they are
actually taken under advisement by the
district court, i.e., after the court has
all of the necessary materials and has
conducted the appropriate hearings to
decide the issue." (emphasis in
original)). Therefore, the thirty-day
time limit does not apply. Additionally,
the Supreme Court has recognized that the
Speedy Trial Act is "designed to exclude
all time that is consumed in placing the
trial court in a position to dispose of a
motion," Henderson, 476 U.S. at 331,
noting that "[t]he phrase ’prompt
disposition’ was intended to prevent a
district court from using subsection (F)
to exclude time after a motion is taken
under advisement when that time fails to
qualify for exclusion under subsection
(J)." Id. at 329. The district court did
not abuse its discretion in excluding the
time from April 17, 2000 until June 19,
2000 under 18 U.S.C. sec. 3161(h) (1)(F),
therefore we need not address the
prejudice prong. Given this exclusion,
Hemmings was brought to trial well within
the seventy-day limit, and his Speedy
Trial Act claims fail.

B.   Constitutional Challenges

  Hemmings’ various Constitutional
challenges to subsections (1) and (9) of
18 U.S.C. sec. 922 (g) also fail. The
majority of his Constitutional claims are
foreclosed by prior rulings in this
circuit, and we address them only
briefly. This circuit has rejected claims
that sec. 922(g)(1) and sec. 922(g)(9)
violate the Commerce Clause, noting that
the jurisdictional element of sec. 922(g)
provides the required nexus with
interstate commerce. See Gillespie v.
City of Indianapolis, 185 F.3d 693 (7th
Cir. 1999) (addressing sec. 922(g)(9)),
cert. denied, 528 U.S. 1116 (2000);
United States v. Williams, 128 F.3d 1128,
1134-35 (7th Cir. 1997) (addressing sec.
922(g)(1)). Furthermore, as we noted in
United States v. Jester, 139 F.3d 1168,
1170 (7th Cir. 1998), sec. 922(g) "does
not punish a person solely for his or her
status as a convicted felon." Hemmings
has failed to make any showing that the
statute in this case violates the Second
Amendment, see Gillespie, 185 F.3d at
710-11, or the Tenth Amendment. Id. at
707-08.

  Sections 922(g)(1) and 922(g)(9) are not
ex post facto laws. Other circuits have
reached this same conclusion. See, e.g.,
United States v. Mitchell, 209 F.3d 319,
322 (4th Cir.), cert. denied, 121 S. Ct.
123 (2000); United States v. Brady, 26
F.3d 282, 291 (2d Cir. 1994). A law is
not retroactive simply because it "draws
upon antecedent facts for its operation."
Cox v. Hart, 260 U.S. 427, 435 (1922).
Instead, an ex post facto law
retroactively defines criminal conduct or
changes the punishment for a crime to the
detriment of the defendant. See United
States v. Jordan, 870 F.2d 1310, 1314
(7th Cir. 1989).

  Nor is sec. 922(g) a bill of attainder,
which would be "a law that legislatively
determines guilt and inflicts punishment
upon an individual without provision of
the protections of a judicial trial."
Nixon v. Adm’r of General Services, 433
U.S. 425, 468 (1977). The statute does
not determine guilt based on a previous
felony conviction, nor does it remove the
protections of a trial.

III.   Conclusion

  Hemmings’ conviction is AFFIRMED on all
counts.

FOOTNOTES

/1 In response to questioning at oral argument in
this court, the government explained that addi-
tional counts were not added to the indictment
sooner because of doubts that existed regarding
the admissibility of Deneisa Hemmings’ testimony
and/or written statement.

/2 Hemmings also asserts that the district court
erred in excluding the period from December 23,
1999 to December 27, 1999. Hemmings, however,
does not develop this argument in his briefs, and
because the four-day continuance would not alter
the outcome in the present case, we do not
address it on appeal.
