              Case: 11-11498   Date Filed: 08/24/2012   Page: 1 of 7

                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 11-11498
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 1:10-cr-00224-LSC-TMP-2

UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,

                                     versus

TYCORY M. HILL,

                                                        Defendant - Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        ________________________

                                (August 24, 2012)

Before TJOFLAT, JORDAN and FAY, Circuit Judges.

PER CURIAM:

      The government charged Tycory Hill with conspiracy to commit armed bank

robbery, armed bank robbery, and brandishing a firearm during and in relation to a
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crime of violence. Days before his trial began, the government gave Mr. Hill a CD

with recordings of his conversations in jail. In order to review the CD, Mr. Hill asked

the district court to continue the trial. The district court, as allowed by the Speedy Trial

Act, granted Mr. Hill’s request for a continuance. A jury later convicted Mr. Hill, and

he now appeals his conviction. According to Mr. Hill, because the government waited

so long to deliver the CD, the government forced his trial’s postponement, and this

postponement violated his right to a speedy trial. After reviewing the record and the

parties’ briefs, we affirm.

                                             I

        Mr. Hill made an appearance before a magistrate judge and entered a plea of

not guilty on August 12, 2010. The district court scheduled Mr. Hill’s trial for October

4, 2010. The district court also issued a standing discovery order. The standing

discovery order, in essence, dictated when and how the parties were to exchange

evidence. Among other things, that order required the government to provide Mr. Hill

with any recorded statements within its “possession, custody, and/or control” and any

evidence that it knew (or should have known) existed by August 27, 2010. See R. 1:28

at 1.

        As Mr. Hill sat in jail, the government began to record his telephone conversa-

tions. The standing discovery order demanded that both sides disclose, “as soon as

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practicable,” any “newly discovered information or other material within the scope”

of the standing order, which included Mr. Hill’s recorded conversations. Id. at 4.

      On October 1, 2010—three days before trial was to begin—the government

delivered a CD with the recorded conversations to Mr. Hill. Two days later, Mr. Hill’s

counsel filed a motion in which he asked that the district court bar the government

from introducing any of Mr. Hill’s recorded conversations as evidence at trial or,

alternatively, to continue the trial. See R. 1:53 at 1. The standing discovery order

apparently contemplated such a motion, for it allowed the court, upon a “sufficient

showing,” to restrict discovery or “make such orders as are appropriate.” R. 1:28 at

4.

      On the day of trial, Mr. Hill’s counsel made a second motion, this time moving

to continue the trial until November 8, 2010, because he needed to review the “lengthy

tape recordings.” R. 1:55 at 1. The district court granted the motion because Mr. Hill

needed “additional time to review evidence consisting of lengthy tape recordings” and

denied Mr. Hill’s motion to exclude the CD evidence as moot. See R. 1:56. At no point

before trial did Mr. Hill again move to exclude the CD. Trial began on November 9,

2010, and the jury convicted Mr. Hill on all charges. The government did not introduce

any of the recorded conversations as evidence at trial. See R. 1:110.

                                          II

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      We review a district court’s interpretation and application of the Speedy Trial

Act de novo. See United States v. Brown, 183 F.3d 1306, 1309 (11th Cir. 1999). And

we review any “factual determinations as to what constitutes excludable time under

the Speedy Trial Act” for clear error. United States v. Schlei, 122 F.3d 944, 984 (11th

Cir. 1997).

                                           III

      The Speedy Trial Act, 18 U.S.C. §§ 3161–3174, sets deadlines that federal courts

must follow in criminal cases. If trial does not timely commence under the Act, the

results are severe “and [can] include dismissal with prejudice of the charges against

the defendant.” United States v. Young, 528 F.3d 1294, 1295 (11th Cir. 2008).

      Where, as here, a defendant pleads not guilty, the Speedy Trial Act requires that

his trial start within 70 days of two possible events. See 18 U.S.C. § 3161(c)(1). The

70-day clock begins to run on the day that the government files criminal charges through

an indictment or information. See id. On the other hand, if the defendant appears before

a judge “of the court in which” his charges are pending after the government files the

charges, then the 70-day clock begins from that event. See id.

      Certain “days” don’t count as days at all under the Speedy Trial Act, however.

When certain authorized delays occur, the days that constitute the delay in question

do not count for the 70-day calculation. One of these delays is significant here. A period

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of delay does not count among the 70 days if (1) Mr. Hill or his attorney asked for a

continuance, (2) the district court granted that continuance, and (3) the court granted

it because “the ends of justice served by taking such action outweigh the best interest

of the public and the defendant in a speedy trial.” See § 3161(h)(7)(A). “If the trial

court determines that the ‘ends of justice’ require the grant of a continuance, and makes

the required findings, any delay is excludable” under the Speedy Trial Act. United States

v. Twitty, 107 F.3d 1482, 1489 (11th Cir. 2011).

       Here, Mr. Hill appeared before a magistrate judge on August 12, 2010. His trial

began on November 9, 2010. That 89-day period would violate the Speedy Trial Act’s

70-day limit if there was no excludable time. But the district court granted a continuance

because it found that the continuance served the ends of justice (i.e., because Mr. Hill

and his counsel needed more time to review the CD and prepare for trial), and this delay

lasted 35 days. When these 35 excludable days are subtracted from the 89 total days,

Mr. Hill’s trial began 54 days after he first appeared before a judge. That is well within

the 70 days allowed by the Speedy Trial Act. Hence, the Speedy Trial Act’s time

restrictions were not violated.

       Mr. Hill contests this characterization of events. The district court, according

to Mr. Hill, did not grant a continuance to further the ends of justice. The court, rather,

granted a continuance because the government refused to obey the standing discovery

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order. Instead of obeying that order, Mr. Hill says, the government waited a month

past the deadline and days before trial to deliver evidence in its possession. This caused

a delay, which resulted from the government’s lack of preparation, and federal courts

cannot grant continuances because of “lack of diligent preparation” by the government.

See § 3161(h)(7)(C). Therefore, Mr. Hill insists, the court improperly postponed the

trial so as to give the government more time. Mr. Hill’s argument, however, is incorrect.

      Contrary to Mr. Hill’s protestations, the district court did not postpone the trial

because the government needed more time. As the court noted, it continued Mr. Hill’s

trial because Mr. Hill needed more “time to review evidence consisting of lengthy tape

recordings.” R. 1:56 at 2. It was Mr. Hill—and not the government—who asked for

a trial continuance. And the court granted the motion specifically because the

postponement served “the ends of justice.” Id. True, Mr. Hill requested this extra time

because the government furnished evidence days before trial, but he—and not the

government—nonetheless requested the postponement.

      If Mr. Hill felt that the government had ambushed him with this evidence, he

had avenues of relief. For instance, district courts have broad authority to regulate

discovery, and this authority includes the power to prevent the introduction at trial of

improperly withheld evidence. See FED. R. CRIM. P. 16(d); United States v. Campa,

529 F.3d 980, 995 (11th Cir. 2008); United States v. Turner, 871 F.2d 1574, 1580 (11th

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Cir. 1989). And, in fact, Mr. Hill initially sought this form of relief, asking that the

court bar the recorded conversations at trial. See R. 1:Doc. 53 at 1–2. But Mr. Hill then

abandoned this strategy and asked the court only for a continuance on the day the trial

was to begin. See R. 1:55 at 1. He cannot now complain because the court granted his

request.

                                           IV

      Mr. Hill’s conviction is affirmed.

      AFFIRMED.




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