                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 July 8, 2014
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 13-2130
 v.                                             (D.C. No. 1:13-CR-01502-JB-1)
                                                           (D.N.M.)
 JOHN DOE, (A Juvenile),

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.



      Defendant-Appellant, a juvenile, appeals from the district court’s finding of

delinquency and sentence of 67 days or time served followed by three years’

supervised release. The underlying conduct involved possession with intent to

distribute one kilogram or more of heroin. 21 U.S.C. §§ 841(a)(1), (b)(1)(A).

Defendant argues that the district court should have granted his motion to dismiss

because he was not tried within thirty days of his initial detention. 18 U.S.C. §

5036. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                   Background

      On May 5, 2013, Defendant (age 17) was a passenger on Amtrak Train 4

traveling from Los Angeles. When the train arrived in Albuquerque, federal Drug

Enforcement Agents (“DEA”) boarded the train and began interacting with

passengers. Defendant consented to a search of his bag, and one of the agents

discovered a package wrapped in black electrical tape underneath a liner.

Defendant was arrested and taken to the DEA office in Albuquerque. The

package contained 2,987 grams of heroin. 1 R. 2, 87.

      On May 15, 2013, the district court scheduled a bench trial for May 28,

2013. Pursuant to 18 U.S.C. § 5036, 1 the thirty-day period within which

Defendant had to be tried would expire on June 4. 1 R. 102. On May 16,

Defendant’s counsel contacted the court. He spoke with the judge’s courtroom

deputy and informed her that he would be requesting an unopposed motion to

      1
          18 U.S.C. § 5036 provides:

      If an alleged delinquent who is in detention pending trial is not
      brought to trial within thirty days from the date upon which such
      detention was begun, the information shall be dismissed on motion of
      the alleged delinquent or at the direction of the court, unless the
      Attorney General shows that additional delay was caused by the
      juvenile or his counsel, or consented to by the juvenile and his
      counsel, or would be in the interest of justice in the particular case.
      Delays attributable solely to court calendar congestion may not be
      considered in the interest of justice. Except in extraordinary
      circumstances, an information dismissed under this section may not
      be reinstituted.

18 U.S.C. § 5036.

                                       -2-
continue the trial because he would be out of town from May 24–29. 1 R. 96.

The courtroom deputy informed counsel that the judge would be away from May

24–June 12. 1 R. 96-97.

        On May 17, counsel filed a motion to continue, which stated in pertinent

part:

        COMES NOW the above named Defendant, by and through counsel
        of record James C. Loonam, Assistant Federal Public Defender, and
        with the agreement of the Government, moves the Court for an order
        continuing the trial setting of May 28, 2013, and as grounds states:
        1. On [May] 5, 2013, [Defendant] was taken into custody on the
        charges in the complaint in this case. The sealed complaint was filed
        in this matter on May 7, 2013.
        2. Trial is currently set for May 28, 2013.
        3. Defense Counsel will be out of town on family travel on May 28,
        2013.
        4. A brief continuance of 48 hours is requested at this time due to
        Defense Counsel’s unavailability on the current trial date. Such a
        continuance does not infringe upon the rights afforded [Defendant]
        pursuant to 18 U.S.C. §5036.
        5. Attorney for the Government . . . does not oppose the relief
        requested by this Motion.
        WHEREFORE, Defendant respectfully requests that the Court grant
        a continuance of the trial setting of May 28, 2013, for a period of at
        least two days or to the Court’s convenience.

1 R. 12-13 (emphasis added).

        Counsel also included a form order for the court, which the court completed

as follows:

        1. The trial of May 28, 2013, is vacated.
        2. The trial is rescheduled for June 13, 2013, at 9:00 a.m. (trailing docket).

        3. The time from May 28, 2013, until ____________, 2013, shall be
        excluded for purposes of the speedy trial act pursuant to 18 U.S.C.

                                          -3-
      § 3161(h)(7)(A).

1. R. 14-15, 98. The district court added a handwritten justification for the

continuance, explaining in part that “[t]his continuance is sufficient without being

greater than necessary for the Defendant to complete the tasks set forth in the

motion and the Court to return from its Committee meeting on the Administration

of the Bankruptcy System.” 1 R. 15. The order was filed on May 20, 2013. 1 R.

14.

      Ten days later, on May 30, 2013, counsel reminded the courtroom deputy

that he had requested only a two-day continuance. 1 R. 101. She informed

counsel that the judge was out of the district until June 13. 1 R. 101. On June 4,

2013, a day after Defendant’s thirtieth day in custody, Defendant filed a motion to

dismiss the criminal information based on a violation of his speedy trial right.

1 R. 16-20, 103. He maintained that his motion to continue permitted only a two-

day continuance and that the court’s extending the date to June 13 failed to meet

any of the statutory exceptions for delay. 1 R. 17-19.

      On June 10, the district court contacted the government to see if it was

prepared for trial that day; it was not, as it had scheduled witnesses for June 13.

1 R. 106. Accordingly, the district court held a hearing on the motion to dismiss

before trial. It denied the motion, finding that Defendant caused the delay,

Defendant consented to the delay, and the delay was in the interest of justice.

1 R. 99-100.

                                         -4-
                                     Discussion

      Section 5036 requires a juvenile in detention to be brought to trial within

thirty days “unless the Attorney General shows that additional delay was caused

by the juvenile or his counsel, or consented to by the juvenile and his counsel, or

would be in the interest of justice in the particular case.” 18 U.S.C. § 5036. The

remedy for failing to comply with the thirty-day limit is dismissal of the

information with prejudice. Id.

      We review de novo the legal question of whether a juvenile’s detention

exceeds the thirty-day limit set forth in 18 U.S.C. § 5036. United States v. David

A., 436 F.3d 1201, 1206 (10th Cir. 2006). We review any underlying factual

findings for clear error. Id. at 1206-07. We review the court’s determination that

the delay was in the interest of justice for abuse of discretion. United States v.

Doe, 49 F.3d 859, 865-66 (2d Cir. 1995).

      Defendant argues that the district court erred in denying his motion to

dismiss because he neither caused nor consented to the delay and it was not in the

interest of justice. Aplt. Br. 23-33. For the following reasons, we disagree.

A.    Cause of the Delay

      The district court found that Defendant caused his trial’s untimeliness

because he requested a continuance for two days or “to the Court’s convenience.”

1 R. 130, 132. The district court noted that Defendant’s counsel knew the judge

was unavailable from May 24 to June 12 at the time he requested the continuance.

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1 R. 132. Thus, the district court determined that it reasonably interpreted

Defendant’s motion as permitting trial beyond the thirty-day limit. 1 R. 132.

      Defendant offers seven arguments as to why the district court erred: (1) “to

the Court’s convenience” did not mean that the judge could take an out-of-town

trip; (2) Defendant’s motion only necessitated delaying the trial on May 28 or 29;

(3) the motion requested only a “brief continuance of 48 hours;” (4) Defendant

filed other motions using similar language “without meaning to refer to any

unmentioned knowledge of the judge’s schedule;” (5) the motion noted that only a

48-hour delay would not impinge upon Defendant’s speedy trial right; (6) “to the

Court’s convenience” should have been read as permitting only those remaining

days within the thirty-day period, such as May 31 or June 3; and (7) court

congestion is an insufficient justification for delay, as recognized by United

States v. Johnson, 120 F.3d 1107, 1111 (10th Cir. 1997), and United States v.

Andrews, 790 F.2d 803, 808 (10th Cir. 1986). Aplt. Br. 23-26.

      Despite Defendant’s arguments, the district court did not commit clear error

in finding that Defendant caused the delay. Defendant requested a continuance

and included language permitting the district court to reschedule trial at its

convenience, knowing that the earliest available date would be after June 12—a

date outside of the thirty-day period. See United States v. Baker, 10 F.3d 1374,

1397 (9th Cir. 1993) (attributing delay to a defendant who moved for an extension

of time to file pre-trial motions) overruled on other grounds by United States v.

                                         -6-
Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000); United States v. Dazen, 607 F.2d

816, 817 (9th Cir. 1979) (per curiam) (upholding the district court’s interpretation

of a confusing colloquy with defendant as a request for a continuance, thus

making the delay attributable to the defendant).

      Nothing in the motion or its accompanying form order limited Defendant’s

request to a specific time frame. The order was filed on May 20, well in advance

of the rescheduled June 13 trial date. Not until May 30 (after the judge had

departed) did Defendant notify the court that he had requested only a two-day

continuance. The district court viewed this as a trap for the unwary. 1 R. 113.

      Defendant relies heavily on United States v. Gonzalez-Gonzalez, 522 F.2d

1040, 1042 (9th Cir. 1975), to support his arguments, Aplt. Br. 27; however,

Defendant’s reliance on Gonzalez-Gonzalez is misplaced. In that case, the

district court rescheduled the trial (at the government’s request) beyond the thirty-

day period in order to facilitate a joint prosecution of several other arrestees.

Gonzalez-Gonzalez, 522 F.2d at 1041-42. Congestion in the court’s calendar

caused further delay. Id. at 1043-44. During the rescheduling process, the

defendant clearly asserted that he was not waiving his right to a speedy trial. Id.

at 1043. When the court asked if its next available date would be “convenient,”

the defendant affirmed that it would be, “rais[ing] a serious question as to

whether or not it was the duty of appellant’s counsel to be candid with the court.”

Id. at 1042-43. Nonetheless, the Gonzalez-Gonzalez court ultimately concluded

                                         -7-
that the defendant had not consented to the delay. Id. at 1044.

      The circumstances are different here. Defendant both requested the

continuance and failed to assert his right to a timely trial when the trial was

rescheduled. 2 He can hardly complain that his request for a continuance was

granted.

B.    Consent

      Relying on United States v. Doe, 49 F.3d 859 (2d Cir. 1995), the district

court determined that Defendant consented to the delay because he never alerted

the court that the June 13 trial date violated his speedy trial rights. 1 R. 133-135.

The district court rejected Defendant’s contention that his reference to § 5036 in

the motion to continue—“Such a continuance does not infringe upon the rights

afforded [Defendant] pursuant to 18 U.S.C. § 5036”—sufficiently alerted the

court that only a 48-hour continuance was acceptable. 1 R. 135.

      Defendant argues that the district court erred because (1) nothing in the

record establishes that both he and counsel consented to the motion to continue,

contrary to the plain language of § 5036 (which requires consent both “by the

juvenile and his counsel”) (emphasis added); (2) the district court misread his

motion; (3) the form order does not provide consent; and (4) failing to object does


      2
         The government also argues that the filing of any pretrial motions tolled
the thirty-day speedy trial period. Aplee. Br. 19 (citing 18 U.S.C. §
3161(h)(1)(D)). Because the exceptions to § 5036 apply, we need not reach the
issue of tolling.

                                         -8-
not constitute consent because it was the government’s burden to bring him to

trial in timely manner. Aplt. Br. 29-33. In support, Defendant relies primarily on

Gonzalez-Gonzalez, 522 F. 2d at 1042-43, noting that the defendant in that case

did not consent to the delay merely by agreeing with the court that a date was

“convenient.” Aplt. Br. 33.

       We have already distinguished Gonzalez-Gonzalez. We see no error in the

district court’s finding that under the circumstances, Defendant’s silence equated

to consent. See Doe, 49 F.3d at 864, 865-66. Nothing in the record supports

Defendant’s assertion that he did not consent to counsel’s filing a motion to

continue. See id. (affirming the district court’s finding of consent based on the

failure to alert the court to pertinent facts).

C.     Interest of Justice

       The district court determined that the totality of the circumstances justified

a delay in the interest of justice, given that (1) Defendant did not object to the

rescheduling; (2) Defendant’s counsel in effect conceded that the delay was

tactical; (3) Defendant requested the continuance “at the Court’s convenience”

knowing that the court’s schedule limited rescheduling until after the thirty-day

deadline; (4) the court would have returned earlier had Defendant articulated that

he did not consent; and (5) even if the miscommunication was in good faith, the

interest of justice should allow the case to proceed. 1 R. 140-143.

       Defendant argues that the district court erred by (1) unreasonably

                                           -9-
interpreting its motion for continuance as permitting the delay, (2) failing to

recognize that it was the government’s burden to timely bring him to trial

regardless if silence was a tactical delay, (3) concluding that Defendant concealed

information from the court when Defendant asserted his speedy trial rights in the

motion, (4) applying a post-hoc justification for the delay, and (5) rescheduling

due to the judge’s out-of-town trips in violation of the prohibition of delay due to

court congestion. Aplt. Br. 33-36.

      The district court did not abuse its discretion in making its interest-of-

justice determination. Interest-of-justice exceptions are granted liberally. David

A., 436 F.3d at 1207. Here, the district court provided numerous reasons why

justice was served by briefly delaying trial beyond the thirty-day limit in order to

accommodate Defendant’s schedule, regardless of whether Defendant sought a

tactical delay or simply failed to communicate clearly. See Dazen, 607 F.2d at

817 (justice was served by allowing a two-day delay based on the district court’s

interpretation that defendant had requested the continuance).

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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