                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0550n.06

                                            No. 09-3453                                    FILED
                                                                                       Aug 26, 2010
                             UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE SOUTHERN
v.                                                         )        DISTRICT OF OHIO
                                                           )
THOMAS BALLATO,                                            )                           OPINION
                                                           )
       Defendant-Appellant.                                )




BEFORE:        KEITH, COLE, and GIBBONS, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Thomas Ballato pleaded guilty to one count

of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(4)(B) and (b)(2). He now

appeals the district court’s decision denying his motion to dismiss the indictment for violation of the

Speedy Trial Act, 18 U.S.C. § 3161 et seq. We VACATE the district court’s denial of Ballato’s

motion to dismiss and REMAND to the district court for proceedings consistent with this opinion.

                                        I. BACKGROUND

       On September 26, 2006, a criminal complaint was filed in the United States District Court

for the Southern District of Ohio, charging Ballato with receipt of child pornography, in violation

of 18 U.S.C. § 2252A(a)(2) and (b)(1). After his arrest, Ballato obtained bond and waived his

preliminary hearing, resulting in the bind-over of his case to the grand jury. Ballato then waived the

time in which a timely indictment had to be filed up and until November 27, 2006. The Government
No. 09-3453
United States of America v. Thomas Ballato

and Ballato next filed a successful joint motion to extend the time to indict until December 27, 2006.

On November 28, 2006, at the request of pretrial services, the magistrate judge issued orders to

show cause as to why the court should not revoke Ballato’s bond for purported violations of his

terms of release. In particular, pretrial services alleged that Ballato had violated the terms of his

electronic monitoring—a condition of release mandated by the Adam Walsh Act (“AWA”). See 18

U.S.C. § 3142(c)(1)(B). After conducting an initial hearing on the matter, the magistrate judge

continued the proceedings on the orders to show cause until December 14, 2006. However,

unbeknownst to the magistrate judge, on December 13, 2006, the grand jury indicted Ballato on one

count of receipt of child pornography. The magistrate judge recommenced the show-cause hearing

on December 14, 2006. At the close of the hearing, the magistrate judge instructed the parties to

brief the constitutionality of the AWA and its mandatory electronic-monitoring provisions. But upon

learning that the grand jury had indicted Ballato, the magistrate judge concluded that jurisdiction in

the case had passed to the district court and therefore dissolved the orders to show cause. The

magistrate judge noted, however, that the district court had discretion to refer the matter back to him

for a decision.

       In an apparent response to this order, the district court referred the bond matter back to the

magistrate judge. The magistrate judge initially interpreted the referral as a mandate to reinstate and

resolve the previously issued show-cause order concerning Ballato’s alleged bond violations and

instructed the parties to brief the issue. The Government filed its brief on January 5, 2007; Ballato

filed his on January 22, 2007. On the same day, Ballato also filed a motion to strike certain

conditions of his bond, including the terms that prohibited his contact with minors. On February 7,

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2007, the magistrate judge issued a report to the district court concluding that he had nothing to

resolve because the referral order had referenced a non-existent motion to revoke bond. In addition,

the referral order did not authorize the magistrate judge to resolve Ballato’s new motion to strike

bond conditions.

        In the meantime, on January 29, 2007, Ballato filed a motion to suppress evidence. On

March 2, 2007, the district court conducted a suppression hearing and established a briefing schedule

on the matter. Consistent with the district court’s order, Ballato filed his final brief on this issue on

May 3, 2007.

        While awaiting a ruling on the suppression motion, the parties filed various pleadings. On

June 6, 2007, for instance, the Government filed a motion for a status conference. The court granted

the motion and initially set the matter for hearing on July 5, 2007. For his part, Ballato filed a

motion for supervised visitation with his son or modification of his bond on June 25, 2007. A week

later, on July 3, 2007, the minor’s mother filed a motion to intervene and oppose Ballato’s request

for visitation. When the district court granted the mother leave to file her opposition, Ballato

responded on July 9, 2007, in support of his original brief.

        While these motions were pending, Ballato appeared before the district court on July 27,

2007, and waived time under the Speedy Trial Act (“the Act”) through September 25, 2007. In

continuing the trial date, the district court made a factual finding that the ends of justice outweighed

the interests of the defendant and the public in holding a speedy trial.

        Then, on September 19, 2007, the grand jury returned a superseding indictment against

Ballato, adding a second count—possession of child pornography in violation of 18 U.S.C. §

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2252A(a)(4)(b) and (b)(2). The following week, on September 24, 2007, Ballato filed a motion to

work and seek employment; the district court did not rule on the motion until November 6, 2007.

Next, on September 24, 2007, the district court arraigned Ballato on the superseding indictment and

made another ends-of-justice finding, continuing the trial date an additional thirty days.

       Before the thirty days expired, on October 12, 2007, Ballato filed a motion to dismiss the

superseding indictment for alleged violations of the Speedy Trial Act. While briefing on this motion

was in process, Ballato hired new counsel and, on January 7, 2008, again asked the district court to

waive time under the Act until April 14, 2008. The district court once more found that the ends of

justice outweighed the interests of the defendant and the public in speedy trial, thereby tolling the

speedy-trial clock until April 14, 2008. Then, on February 5, 2008, Ballato filed his final brief in

support of his motion to dismiss for Speedy Trial Act violations. On April 8, 2008, the district court

concluded that only thirteen days had expired from the date of the original indictment for purposes

of the speedy-trial clock and denied the motion.

       Pursuant to a plea agreement, Ballato pleaded guilty on December 5, 2008. The parties also

agreed, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, that Ballato reserved

the right to appeal the issue of the adverse determination on his motion to dismiss for Speedy Trial

Act violations. On April 15, 2009, the district court sentenced Ballato to forty-eight months’

imprisonment, supervised release for life, one hundred hours of community service, and a $100

assessment.

       Ballato timely appealed.



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                                          II. ANALYSIS

       The Speedy Trial Act requires that a defendant’s trial begin within seventy days of the filing

of the indictment or arraignment, whichever is later. 18 U.S.C. § 3161(c)(1). However, the seventy-

day rule is subject to excludable periods of delay for consideration of motions, pretrial proceedings,

competency examinations, and other procedural matters. 18 U.S.C. §3161(h). Both the Government

and Ballato agree that the Speedy Trial clock ran from June 4, 2007, until June 6, 2007, and from

June 14, 2007, until June 25, 2007, for a total of thirteen days. They also agree that the clock was

stopped at different points, including: January 22, 2007 to June 3, 2007 (Ballato’s motion to strike

bond conditions and motion to suppress); June 6, 2007 to June 14, 2007 (Government’s motion for

status conference); and July 27, 2007 to October 12, 2007 (ends-of-justice continuance). At issue

here is whether two periods of delay—December 14, 2006, through January 22, 2007 (thirty-nine

days), and June 25, 2007, through July 25, 2007 (thirty days)—are excludable from the seventy-day

time limit.

       In reviewing the disputed periods, the district court relied, in part, on 18 U.S.C. §

3161(h)(1)(D) (formerly 18 U.S.C. § 3161(h)(1)(F)) to toll the speedy-trial clock.             Section

3161(h)(1)(D) provides that “delay resulting from any pretrial motion” is “excluded in computing

the time within which . . . the trial of any such offense must commence.” We recently analyzed this

portion of the statute in United States v. Tinklenberg, 579 F.3d 589 (6th Cir. 2009). In that case, the

Government relied on the pretrial-motion exception to argue that its motion to take a video

deposition of a witness and its motion to bring two guns into the courtroom as evidence tolled the

speedy-trial clock. In considering the argument, we first looked to the language of the Act. Id. at

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United States of America v. Thomas Ballato
597. We noted that the word “delay” appears in § 3161(h)(1)(D) and its two prefatory clauses three

different times, and the statute twice states that the delay must “result from” the pretrial motion. Id.

at 598. Because of this language, we concluded that “[t]here is no conceivable way to read [the

statute] other than to require a delay to result from any pretrial motion before excludable time

occurs.” Id. We consequently found that “[e]xcluding time for mundane pretrial motions,” such as

the Government’s motions to depose a witness by video and to allow guns into the courtroom,

“would frustrate the purpose of the Speedy Trial Act.” Id. at 599.

       Since our decision, district courts computing time under the Speedy Trial Act have applied

Tinklenberg and inquired as to whether a motion actually causes delay before excluding time. See,

e.g., United States v. Siler, No. 3:10-CR-71, 2010 U.S. Dist. LEXIS 76333, at *2 (E.D. Tenn. July

28, 2010) (“The Court finds that the Defendant’s suppression motion is of such a nature that the time

required to determine the issue creates excludable time.”); United States v. Johnson, No. 09-20264,

2010 U.S. Dist. LEXIS 20473, at *17 (E.D. Mich. March 8, 2010) (“[Counsel’s] motion to withdraw,

therefore, constituted a motion that delayed trial or had the potential to delay trial under United

States v. Tinklenberg.” (citation omitted)); United States v. Sutton, No. 3:09-CR-139, 2009 U.S. Dist.

LEXIS 119436, at *2 (E.D. Tenn. Dec. 22, 2009) (finding that defendant’s pretrial motions “[were]

of such a nature that the time required to determine the issues creates excludable time”); United

States v. Jerdine, No. 1:08 CR 00481, 2009 U.S. Dist. LEXIS 117919, at *13 (N.D. Ohio Dec. 18,

2009) (finding that defendant’s motions were “complex in nature and that the time required to rule

upon these motions causes a delay of the trial and, thus, create[d] excludable time”).



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       Here, however, because the district court issued its opinion before we decided Tinklenberg,

the court did not consider whether the various motions would delay trial. Because the district court

is in the best position to make this determination, we remand to the district court with instructions

to apply Tinklenberg and determine whether the motions at issue actually caused delay or the

expectation of a delay. Cf. Coviello v. United States, 287 F. App’x 503, 505 (6th Cir. 2008)

(vacating and remanding to the district court for factual findings regarding speedy-trial clock

calculations).

                                       III. CONCLUSION

       For the reasons expressed above, we VACATE and REMAND to the district court.




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