                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-17-2006

USA v. Willaman
Precedential or Non-Precedential: Precedential

Docket No. 05-1336




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                                                  PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 05-1336


                 UNITED STATES OF AMERICA

                                   v.

                 TERRANCE ROSS WILLAMAN,

                                                   Appellant


          On Appeal from the United States District Court
             for the Western District of Pennsylvania
                  (D.C. Crim. No. 04-00028-1E)
          Honorable Maurice B. Cohill, Jr., District Judge


             Submitted under Third Circuit LAR 34.1(a)
                        December 9, 2005

BEFORE: RENDELL, FISHER, and GREENBERG, Circuit Judges

                     (Filed: February 17, 2006)



Mary Beth Buchanan
United States Attorney
Laura Schleich Irwin
Assistant United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219

   Attorneys for Appellee

Terrance Ross Willaman #20193-068
Federal Correctional Institution
Box 1000
Morgantown, WV 26507

   Appellant Pro se



                      OPINION OF THE COURT


GREENBERG, Circuit Judge.

                         I. INTRODUCTION

        This matter comes on before this court on defendant Terrance
Ross Willaman’s appeal from a judgment of conviction and sentence
entered on January 27, 2005, in the district court.1 The case originated
on March 26, 2004, when Maurice Ferentino, an ATF agent, and two
other federal agents approached Willaman at a hotel in Erie,
Pennsylvania, where he was staying with his wife. Ferentino, who
had obtained information that Willaman possessed a machine gun, at
that time intended to serve a grand jury subpoena on him, apparently
related to an ongoing investigation regarding weapons matters.2
Willaman admitted to Ferentino at the hotel that he possessed a
machine gun but told Ferentino that he would turn it over to the
agents. Willaman and the agents subsequently left the hotel in
separate cars to retrieve the weapon at Willaman’s residence. Once
they arrived at the residence, he dug up the machine gun from the
place where he had buried it, and the agents took possession of it.
Nevertheless, notwithstanding Willaman’s apparent criminal conduct,
Ferentino twice informed him that he was free to go at any time.
Moreover, Willaman has acknowledged that he was not coerced or
treated badly in any way by the agents at his residence.

       On May 11, 2004, a grand jury indicted Willaman for
knowingly and unlawfully possessing a firearm in violation of 26
U.S.C. § 5861(d), and, on September 15, 2004, a grand jury returned a


       1
       The district court had jurisdiction under 18 U.S.C. § 3231, and
we have jurisdiction under 28 U.S.C. § 1291.
       2
        Ferentino recently had arrested Darrell Sivik who informed
Ferentino that he had transferred a machine gun to Willaman.

                                   2
superseding indictment charging Willaman with knowingly and
unlawfully possessing a machine gun in violation of 18 U.S.C. §
922(o)(1). Following the original indictment, Willaman appeared
before a magistrate-judge on May 12, 2004, at which time she set bail.
Nevertheless, Willaman was not arraigned until May 17, 2004, at
which time he pleaded not guilty. On May 25, 2004, eight days after
his arraignment, Willaman filed several pre-trial motions: (1) a
motion to dismiss the indictment under Federal Criminal Rule
12(b)(2); (2) a motion to dismiss and a motion to suppress statements
and evidence based on alleged violations of the First, Second, Fourth,
and Fifth Amendments; (3) a motion to dismiss based on double
jeopardy; and (4) a motion seeking to have the court instruct the jury
that it could nullify the effect of the law in this case. The district
court denied these four motions on August 18, 2004.

        The trial in this case commenced on October 19, 2004.
Immediately prior to the trial, Willaman unsuccessfully moved to
dismiss the indictment based on asserted Speedy Trial Act, 18 U.S.C.
§ 3161 et seq., violations. At the trial’s conclusion the jury found
Willaman guilty on the superseding indictment. The court
subsequently sentenced Willaman to a custodial term of 27 months to
be followed by a three-year period of supervised release. Willaman
timely appealed.



                          II. DISCUSSION

A. Second Amendment

        Willaman first argues that 18 U.S.C. § 922 (“section 922”)
violates the Second Amendment, and that “Congress had no right to
amend the Second Amendment merely by legislation,” Reply Br. at 7.
Thus, in his view, the district court should have dismissed the
indictment and allowed him to make a jury nullification argument.
We review the district court’s order upholding the constitutionality of
section 922 and refusing to dismiss the indictment or allow a jury
nullification argument on a plenary basis. See United States v. Rybar,
103 F.3d 273, 275 (3d Cir. 1996). We will not linger on this point
inasmuch as a number of our cases, including Rybar in which we held
that “this court has on several occasions emphasized that the Second
Amendment furnishes no absolute right to firearms,” 103 F.3d at 286,
foreclose Willaman’s Second Amendment arguments. Though


                                   3
Willaman argues that Rybar “is simply bad law,” Reply Br. at 8,
plainly it is binding on this panel. See Third Circuit I.O.P. 9.1.

B. Speedy Trial Act

        Next, Willaman argues that he was denied the right to a speedy
trial under 18 U.S.C. § 3161(c)(1) (“section 3161(c)(1)”), a section of
the Speedy Trial Act. Willaman asserts that “[e]ven excluding the
time of filing and ruling on pretrial motions,” more than 100 days
passed between his arraignment and the commencement of his trial,
which exceeded the 70 days allowed under section 3161(c)(1). App.
at 22. We exercise plenary review over the district court’s application
of the Speedy Trial Act. See United States v. Hamilton, 46 F.3d 271,
273 (3d Cir. 1995).

        The Speedy Trial Act provides that if a plea of not guilty is
entered, the trial of a defendant charged in an information or
indictment “shall commence within seventy days from the filing date
(and making public) of the information or indictment or from the date
the defendant has appeared before a judicial officer of the court in
which the charge is pending, whichever date last occurs.” Section
3161(c)(1); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317, 320 (3d
Cir. 1991). However, delay during the time between the filing of a
pretrial motion “through the conclusion of the hearing on, or other
prompt disposition of, such motion” is excluded from the computation
of Speedy Trial Act time. Section 3161(h)(1)(F); see United States v.
Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993).

        Inasmuch as Willaman did not appear before a judicial officer
prior to his original indictment, his arraignment on May 17, 2004, at
which time he pleaded not guilty, constituted his initial appearance for
Speedy Trial Act purposes, and thus that appearance triggered the
running of the Speedy Trial Act 70-day time period. Our conclusion
on this point is in harmony with our opinion in United States v.
Carrasquillo, 667 F.2d 382, 384 (3d Cir. 1981), in which we said that
“[w]hen there is no [pre-indictment] appearance because an
information or indictment is the first step in a criminal case, then
postindictment arraignment will be the relevant ‘last occurring’ date.”
(emphasis added).3 We recognize that Willaman physically appeared


       3
        We realize that the statement in Carrasquillo that we quote is
dictum as in that case there was a pre-indictment appearance so the
indictment started the 70-day clock.

                                   4
before a magistrate judge on May 12, 2004, at which time she set bail,
and we further recognize that section 3161(c)(1) indicates that the 70-
day clock runs from the time the defendant “has appeared” before a
judicial officer. Nevertheless, inasmuch as Willaman did not plead on
May 12, 2004, the Speedy Trial clock did not begin to run until May
17, 2004, when he was arraigned and pleaded not guilty as
Carrasquillo indicated that an arraignment triggers the running of the
70-day period. See also United States v. Zandi, 769 F.2d 229, 233
(4th Cir. 1985) (“Since the appellants, in the instant case, appeared
before a judicial officer after the date of the indictment, the dates of
arraignment, and not the date of indictment, are relevant to our
Speedy Trial inquiry.”) (emphasis partially added); United States v.
Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982) (“When a defendant is
indicted prior to his arrest, the seventy-day pretrial period runs from
the date of his arraignment.”) (emphasis added). In this regard we
point out that under Federal Rule of Criminal Procedure 10(a) an
arraignment requires the court to ask “the defendant to plead to the
indictment or information,” an event that occurred here on May 17,
2004.

         We have not overlooked the arguable anomaly in the
distinction between the effect of a defendant’s pre-indictment and
post-indictment appearance under section 3161(c)(1). After all, under
Carrasquillo a defendant’s pre-indictment physical appearance before
a magistrate-judge will constitute a defendant’s “appearance before a
judicial officer,” 667 F.2d at 384, so that his subsequent indictment
will trigger the running of the 70-day period even though he could not
have pleaded before his indictment and thus could not have been
arraigned at his appearance before his indictment.4 Yet under our
result a post-indictment physical appearance will not trigger the
running of the 70-day clock until the defendant pleads, or at least is
asked to do so, because in the absence of that request he will not have
been arraigned.

       Nevertheless we are satisfied that the distinction is justified.


       4
        Federal Rule of Criminal Procedure 5(d)(4), dealing with initial
appearances, provides that in a felony case “[a] defendant may be asked
to plead only under Rule 10,” which, in turn, sets forth that at an
arraignment the court asks “the defendant to plead to the indictment or
information.” Fed. R. Crim. P. 10(a)(3). Thus, in this felony case in
which the prosecution was by an indictment, Willaman could not have
been arraigned before his indictment.

                                   5
As we indicated in Carrasquillo, the courts are required to treat an
indictment of a defendant as the triggering event for running the clock
under section 3161(c)(1) when a defendant has appeared before a
judicial officer prior to indictment because otherwise “the date of an
indictment could never be the date that ‘last occurs’ under section
3161(c)(1),” 667 F.2d at 384, so that the choice of triggering events
between when the defendant “has appeared” or is indicted would be
superfluous. On the other hand, if the defendant has not physically
appeared before a judicial officer prior to indictment, as is the case
here, then the indictment never can be the triggering event under
section 3161(c)(1). Consequently, a court has flexibility in
determining what Congress meant when it used the words “has
appeared” in a case in which a defendant’s first appearance is after his
indictment that a court could not have when the defendant physically
has appeared before a judicial officer prior to his indictment.

        We think that it is logical to hold that Congress intended when
a defendant’s first appearance before a judicial officer is after an
indictment for purposes of section 3161(c)(1), the appearance must be
an arraignment to trigger the 70-day period. That result is consistent
with section 3161(c)(1) as the section, by its terms, is applicable only
in a “case in which a plea of not guilty is entered” and until the
arraignment there could not have been a plea. Moreover, until the
plea is entered the parties cannot know whether section 3161(c)(1) can
become implicated in the case as in the absence of a not guilty plea
there will not be a trial.5 Finally, we point out that the time interval
between a defendant’s post-indictment appearance that is something
less than an arraignment and an actual arraignment is not likely to be
great. Indeed, in this case the period was only five days. Thus, we are
comfortable with our result which is compatible with section
3161(c)(1).6


       5
         We understand that this reasoning cannot apply when the
defendant’s first appearance is before the indictment but this
consequence of section 3161(c)(1) is unavoidable in view of the meaning
of section 3161(c)(1) as explained in Carrasquillo.
       6
         The government has not contended that the return of the
superseding indictment started the running of the Speedy Trial Act 70-
day period anew and does not contend that by waiting until immediately
prior to the trial to move to dismiss Willaman waived his Speedy Trial
Act dismissal argument. Accordingly, we have not considered these
possible arguments.

                                   6
        Of course, in this case the period between Willaman’s
arraignment on May 17, 2004, and the commencement of his trial on
October 19, 2004, far exceeded 70 days. But as we have indicated, on
May 25, 2004, eight days after his arraignment, Willaman filed
several pretrial motions. As we also have indicated the filing of a
pretrial motion tolls the running of the 70-day period. Consequently,
the running of the 70-day clock was tolled from May 25, 2004, until
August 18, 2004, when the court denied the motions. Willaman’s trial
then commenced on October 19, 2004, 61 days after August 18, 2004.
Those 61 days coupled with the seven days that elapsed between
Willaman’s arraignment on May 17, 2004, and his filing pretrial
motions on May 25, 2004, do not exceed the 70-day time limit under
the Act as only 68 non-excludable days passed before the trial started.
See United States v. Yunis, 723 F.2d 795, 797 (11th Cir. 1984) (“In
calculating includable time [for Speedy Trial Act purposes] both the
date on which an event occurs or a motion is filed and the date on
which the court disposes of a motion are excluded.”). Accordingly,
Willaman’s trial commenced within the 70-day period the Speedy
Trial Act allows, and we reject his contentions under that statute.

C. Motion to Suppress

        Next, Willaman argues that the district court erred in denying
his motion to suppress statements and evidence on the grounds that
they were obtained in violation of the Fourth and Fifth Amendments.
In reviewing the district court’s denial of Willaman’s motion to
suppress, “we exercise plenary review with respect to the district
court’s determination as to whether the police conduct found to have
occurred constitutes custodial interrogation under all the
circumstances of the case.” United States v. Leese, 176 F.3d 740, 741
(3d Cir. 1999).

        A person is in custody when he either is arrested formally or
his freedom of movement is restricted to “the degree associated with a
formal arrest.” Id. at 743 (citation and internal quotation marks
omitted). For a person to be in custody when he has not been arrested,
“something must be said or done by the authorities, either in their
manner of approach or in the tone or extent of their questioning,
which indicates that they would not have heeded a request to depart or
to allow the suspect to do so.” Steigler v. Anderson, 496 F.2d 793,
799 (3d Cir. 1974) (quoting United States v. Hall, 421 F.2d 540, 545
(2d Cir. 1969)). Thus, “police officers are not required to administer
Miranda warnings to everyone whom they question.” Oregon v.


                                  7
Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714 (1977). Miranda, of
course, requires warnings only when the person the police are
questioning is in custody. Miranda v. Arizona, 384 U.S. 436, 468, 86
S.Ct. 1602, 1624 (1966).

        Courts consider a variety of factors when determining if a
person was in custody, including: (1) whether the officers told the
suspect he was under arrest or free to leave; (2) the location or
physical surroundings of the interrogation; (3) the length of the
interrogation; (4) whether the officers used coercive tactics such as
hostile tones of voice, the display of weapons, or physical restraint of
the suspect’s movement; and (5) whether the suspect voluntarily
submitted to questioning. See United States v. Czichray, 378 F.3d
822, 827 (8th Cir. 2004); United States v. Hayden, 260 F.3d 1062,
1066 (9th Cir. 2001); United States v. Crossley, 224 F.3d 847, 861
(6th Cir. 2000).

        Here, Ferentino twice told Willaman that he was free to leave.
Furthermore, Willaman turned the machine gun over to authorities
while at his own residence, after leading the federal agents to his
premises in his own vehicle. See United States v. Czichray, 378 F.3d
at 826 (“When a person is questioned on his own turf, . . . the
surroundings are not indicative of the type of inherently coercive
setting that normally accompanies a custodial interrogation.”)
(emphasis added) (citations and internal quotation marks omitted).
While we recognize that Willaman contends that Ferentino said that
they “could do it the hard way or the easy way,” at the hotel with
respect to recovering the machine gun, and showed Willaman a
newspaper photo of a raid taking place, these circumstances do not
render the circumstances surrounding his interrogation “custodial.”
Moreover, the record does not show that the agents used physical
force or restrain or verbally intimidate Willaman nor did they display
weapons or interrogate him at length.

        Finally, we see no basis from the record to conclude that there
were other circumstances indicating that Willaman was the subject of
a custodial interrogation. Therefore, it would be unreasonable to
conclude that Willaman’s incriminating statements to the federal
agents were not freely and voluntarily made at a time that he was not
in custody or that he did not freely and voluntarily turn the machine
gun over to the agents. Of course, in these circumstances Miranda is
not implicated. Accordingly, his statements and the physical evidence
were not obtained in violation of his Fourth or Fifth Amendment


                                    8
rights.

D. Grand Jury Indictment

        Finally, Willaman argues that the grand jury did not make a
“preliminary investigation” and that by reason of this failure the
indictment against him must be dismissed. He seems to predicate this
argument on the point that the foreperson of the grand jury did not
sign the indictment.7 We are exercising plenary review on this issue.
See United States v. Irorere, 228 F.3d 816, 830 (7th Cir. 2000).

        It is true that the Federal Rules of Criminal Procedure state
that indictments are to be signed by both the foreperson of the grand
jury and by an attorney for the government. See Fed. R. Crim. P. 6(c)
(“The foreperson . . . will sign all indictments.”); Fed. R. Crim. P.
7(c)(1) (“The indictment . . . must be signed by the attorney for the
government.”). Nonetheless, the Supreme Court has indicated that the
“foreman’s duty to sign the indictment is a formality, for the absence
of the foreman’s signature is a mere technical irregularity that is not
necessarily fatal to the indictment.” Hobby v. United States, 468 U.S.
339, 345, 104 S.Ct. 3093, 3096 (1984); see also Frisbie v. United
States, 157 U.S. 160, 163-65, 15 S.Ct. 586, 587-88 (1895) (failure of
grand jury foreman to sign indictment is nonfatal irregularity).

        In this case we see no reason to believe that the indictment on
which Willaman was tried was not bona fide or that the absence of the
foreperson’s signature prejudiced Willaman. Consequently, we regard
the failure of the grand jury foreperson to sign the indictment as a
mere technical deficiency, and thus conclude that Willaman’s
challenge to the sufficiency of the indictment does not raise an issue
entitling him to relief.8 See Irorere, 228 F.3d at 831.


          7
        The foreperson did not sign either the original or superseding
indictment.
          8
         Willaman has filed a motion asking us to take judicial notice of
an advertisement in a publication entitled Shotgun News. We deny this
motion as it is without merit inasmuch as the advertisement merely
reflects the views of its author and the allegations in it do not set forth
facts of which we may take judicial notice. See Buczek v. Cont’l Cas.
Ins. Co., 378 F.3d 284, 291 (3d Cir. 2004) (testimony that 90-mile-per-
hour winds sometimes hit the New Jersey shore is a “disputed fact is not
one that is appropriate for judicial notice”).

                                    9
                          III. CONCLUSION

       For the foregoing reasons the judgment of conviction and
sentence entered January 27, 2005, will be affirmed.




        In our disposition of this case we have recognized that
Willaman’s arguments are somewhat broader than the way we restate
them. Nevertheless, we have considered all his points and find that they
either are subsumed in the points as we have restated them or are without
merit.


                                   10
