                                                                                [PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                         FILED
                               ________________________          U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                      No. 98-2426                       03/23/99
                               ________________________             THOMAS K. KAHN
                                                                         CLERK
                            D. C. Docket No. 97-21-Cr-Orl-22

UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellant,

                                           versus

JEROME WILKERSON,

                                                                       Defendant-Appellee.

                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                            _________________________
                                   (March 23, 1999)

Before ANDERSON and HULL, Circuit Judges, and HANCOCK*, Senior District Judge.

PER CURIAM:




________________________________________
*Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
        The district court dismissed the indictment on the ground that the government had

violated the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), by failing to bring him to trial within

the requisite 70-day period after his initial appearance before a judicial officer. We reverse

the district court because its interpretation of § 3161(c)(1) does not square with the plain

language of the statute.

        Wilkerson was indicted in the Middle District of Florida on February 6, 1997, on

charges of possessing a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). At the time of the indictment, Wilkerson was in state custody on unrelated state

charges in the Northern District of Florida. When he was released from state custody on

October 10, 1997, Wilkerson was brought before a federal magistrate judge in the Northern

District pursuant to Fed. R. Crim. P. 40. At that hearing, the magistrate ordered that

Wilkerson be detained pending trial and appointed counsel; Wilkerson waived his right to

a removal hearing. On October 20, 1997, Wilkerson was transported to prison in the Middle

District. Through admitted inadvertence on the government’s part, Wilkerson was not

brought before a magistrate judge in the Middle District until December 23, 1997, on which

date he was arraigned. Wilkerson moved to dismiss the indictment on January 27, 1998,

arguing that the government had failed to bring him to trial within 70 days of his initial

appearance on October 10, 1997, before a magistrate judge in the Northern District. The

district court granted the motion and dismissed the indictment with prejudice on February 2,

1998.




                                              2
         We review the district court’s interpretation of the Speedy Trial Act de novo. United

States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997), cert. denied, 118 S. Ct. 1523 (1998).

18 U.S.C. § 3161(c)(1) provides in pertinent part:

         In any case in which a plea of not guilty is entered, the trial of a defendant
         charged in an information or indictment with the commission of an offense
         shall commence within seventy days from . . . the date the defendant has
         appeared before a judicial officer of the court in which such charge is pending
         . . . .1


Further, as a sanction the Speedy Trial Act provides that “[i]f a defendant is not brought to

trial within the time limit required by section 3161(c) . . ., the information or indictment shall

be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2).

         The outcome in this case depends on when the 70-day period commenced. If the 70-

day period commenced on October 10, 1997, when Wilkerson appeared before Northern

District magistrate judge, it had run completely at the time Wilkerson filed his motion to

dismiss. However, if the 70-day period commenced on December 23, 1997, the date of

Wilkerson’s initial appearance in the Middle District, it had not so run. The district court

noted two possible triggering dates: (i) October 10, 1997, when Wilkerson first appeared in

the Northern District; or (ii) the date Wilkerson should have first appeared before a judicial

officer in the Middle District, which the district court said was October 24, 1997, i.e.,

immediately after arriving in the Middle District. Under either of these theories, the 70-day

period had expired without Wilkerson having been brought to trial.


         1
            Section 3161(c)(1) also provides that the 70-day period may begin to run on the date the indictment or
information is filed, if that date occurs after the defendant first appeared before a judicial officer of the court. This
alternative starting date is not relevant to this appeal because Wilkerson’s February 6, 1997, indictment predated his
appearance before a judicial officer.

                                                            3
       The district court’s interpretation of the statute was erroneous. First, the statute does

not say anything about the date a defendant “should have been” brought before a judicial

officer, and such an indefinite time would not function well as a triggering date for the 70-

day period. Second, the plain language of the statute establishes the triggering date as “the

date the defendant has appeared before a judicial officer of the court in which such charge

is pending.” 18 U.S.C. § 3161(c)(1) (emphasis added). Under this language, the period

could not have commenced on the date of Wilkerson’s appearance before the magistrate

judge in the Northern District, because the charge of possession of firearms by a convicted

felon was pending in the Middle District. Rather, the period commenced on December 23,

1997, when Wilkerson first appeared before a judicial officer in the Middle District. The

government had 70 days following December 23 in which to bring Wilkerson to trial, so the

February 2, 1998, dismissal was premature.

       Indeed, we so held in United States v. O’Bryant, 775 F.2d 1528 (11th Cir. 1985).

There, the defendant was indicted in the Middle District of Florida but arrested in Maryland.

The defendant (I) appeared before a federal magistrate in Maryland on May 13, 1983, and

(ii) appeared before a federal magistrate in the Middle District of Florida on March 15, 1984,

and (iii) the trial commenced on July 2, 1984. If the appearance in Florida was the triggering

date, the trial fell within the 70-day period after various adjustments were made to the period

pursuant to § 3161(h)’s tolling provisions. However, if the appearance in Maryland was the

triggering date, the trial occurred too late. We held that § 3161(c)(1) mandates that the

“seventy day clock does not begin running until a defendant has appeared in the court where

the charges are pending.” Id. at 1531. Accord United States v. Young, 814 F.2d 392, 395

                                               4
(7th Cir.), cert. denied, 484 U.S. 838 (1987); United States v. Wilson, 720 F.2d 608, 609 (9th

Cir. 1983), cert. denied, 465 U.S. 1034 (1984).

         In conclusion, we find that the district court erred in its application of the Speedy Trial

Act.2 Without condoning the regrettable delay that occurred between Wilkerson’s arrival

in the Middle District and his initial appearance before a magistrate judge there, we do not

have license to disregard the plain language of § 3161(c)(1).3 Because there was no violation

of the Speedy Trial Act, we need not consider the parties’ arguments about what would be

an appropriate remedy. The judgment of the district court is REVERSED and REMANDED,

with instructions to reinstate the indictment.

         REVERSED AND REMANDED.




         2
           We have considered the other arguments made by Wilkerson in support of dismissal and find
them to be without merit.
         3
           We will not speculate here as to other statutes that may be applicable or other arguments that
defendants could make if aggrieved by undue pre-initial appearance delay.

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