                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0838n.06
                           Filed: December 12, 2007

                                           No. 05-1402

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
ARTHUR DUANE PAYTON,                             )    EASTERN DISTRICT OF MICHIGAN
                                                 )
       Defendant-Appellant.                      )



       Before: COLE and COOK, Circuit Judges; and FROST, District Judge*


       COOK, Circuit Judge. Arthur Duane Payton appeals the denial of his Motion to Dismiss

premised on violations of the Speedy Trial Act. 18 U.S.C. § 3161 et seq. Because the record of

proceedings supports the district court’s reasons for denying Payton’s Motion to Dismiss, we affirm.


                                                 I


       Payton robbed several banks in Michigan between July and November of 2002. Following

four months of unsuccessful plea negotiations, the Government sought an indictment. After

precipitating the withdrawals of first one appointed counsel and then another and filing a motion to

proceed pro se, multiple motions to dismiss the indictment, three motions to adjourn the trial, a

       *
        The Honorable Gregory L. Frost, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 05-1402
USA v. Payton


motion to argue pretrial motions, and a motion to correct the court’s delay in ruling, Payton entered

a conditional guilty plea preserving for appeal all arguments raised in the district court regarding

Speedy Trial Act violations. He now challenges the district court’s refusal to dismiss the charges

under the Act.


                                              II


       Federal Rule of Criminal Procedure 11(a)(2) permits conditional pleas accompanied by a

writing “reserving . . . the right to have an appellate court review an adverse determination of a

specified pretrial motion,” but such agreements generally bar any other non-jurisdictional attack on

the conviction, including unreserved Speedy Trial Act claims.          See, e.g., United States v.

Gonzalez-Arimont, 268 F.3d 8, 11–12 (1st Cir. 2001) (collecting cases supporting waiver of Speedy

Trial Act challenges by plea); United States v. Pickett, 941 F.2d 411, 416–17 (6th Cir. 1991). The

writing that accompanied Payton’s signed conditional plea agreement specifies just one adverse

pretrial ruling concerning Payton’s speedy trial rights—the denial of Payton’s June 2003

Letter/Motion to Dismiss. JA 59. As the Government concedes, the plea agreement reserved for

appeal any issues either argued in the motion to dismiss or argued orally at the November hearing

held to consider that motion.


                                                   III


       We review de novo the district court’s application of the Speedy Trial Act, United States v.


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USA v. Payton


Gardner, 488 F.3d 700, 717 (6th Cir. 2007); we review “the factual findings supporting its ruling

for clear error,” United States v. DeJohn, 368 F.3d 533, 538 (6th Cir. 2004).


       The Speedy Trial Act imposes two time constraints: “the [thirty-day] limit in § 3161(b)

running from arrest or summons to indictment, and the seventy-day limit in § 3161(c) running from

indictment to trial.” DeJohn, 368 F.3d at 538. Payton contends that the district court proceedings

ran afoul of both provisions, entitling him under the Act to dismissal of all charges against him.

Gardner, 488 F.3d at 717; DeJohn, 368 F.3d at 539.


                                                  A


       Pre-indictment delay. Payton first claims that a violation occurred when the district court

granted three jointly stipulated continuances that prolonged the pre-indictment phase beyond thirty

days. See 18 U.S.C. § 3161(b). Police arrested Payton on November 12, 2002, and the Government

did not return the indictment until March 12, 2003—119 days later. The court entered the first

continuance on December 9, 2002, twenty-seven days after the arrest, and the parties, continuing plea

negotiations, twice jointly renewed that continuance before the prior continuance expired.


       The Government and the district court account for the extended pre-indictment detention by

excluding time periods to which the parties jointly stipulated assent. Payton resists having the joint

stipulations absolve the delay, claiming not only that his attorney lacked his consent to any of the


stipulations but also that he was completely unaware of such proceedings. The district court

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USA v. Payton


considered and rejected this argument, concluding that Payton not only acquiesced in the stipulations

but actually promoted further continuances in pursuit of more favorable plea treatment. The court

credited the hearing testimony of Payton’s former attorney rather than Payton’s version of the facts.

Responding to Payton’s questions, the attorney explained: “You wanted that last stipulation. You

wanted me to go back to [the prosecutor], yet again, and ask about a polygraph, yet again. And ask

about a meeting, yet again, which is what led to the March 3 letter. That was your decision.” JA

387. In light of this and similar statements, we cannot say the district court clearly erred in

concluding that Payton authorized the delays attendant to extended plea negotiations, and that his

authorization defeats his stance against excluding days attributable to those continuances. See

United States v. Carnes, 309 F.3d 950, 958 (6th Cir. 2002) (upholding stipulation to delay over the

defendant’s claim that he had not approved it where the defendant did not present “evidence to

contradict the factual finding that [the defendant] consented to the delay”). Finding no violation

because the continuance periods are excluded from the speedy trial count, we turn to Payton’s claims

of unlawful post-indictment delay.


                                                 B


       Post-indictment delay. Payton also claims a right to Speedy Trial Act dismissal saying the

Government failed to bring him to trial within seventy days of his indictment. 18 U.S.C. §

3161(c)(1); see also United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996).


       We explain first why we find no merit in Payton’s Letter/Motion filed June 6, 2003. The

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USA v. Payton


district court denied the Letter/Motion orally on November 18, 2003, and in writing on December

10, 2003. When Payton filed this motion approximately ninety actual days had elapsed since the day

after his indictment but only thirty-four countable days. Payton’s unwillingness to count many of

his days of post-indictment detention as excludable leads him to assert a violation.


       The date of a defendant’s motion for dismissal establishes the endpoint for Speedy Trial Act

calculations, as “a motion for dismissal is effective only for periods of time which antedate the filing

of the motion. Subsequent periods of delay, whether includable or excludable, are inconsequential.”

United States v. Connor, 926 F.2d 81, 84 (1st Cir. 1991) (emphasis added). Under this standard, the

district court needed only to decide whether seventy countable days elapsed between March 13,

2003, the day of Payton’s indictment, and June 6, 2003, the Letter/Motion’s filing date. The district

court did not so limit its review, however. Rather, it generously reviewed the countable days to the

planned trial date, December 9, and still found no violation. Discerning no reversible error in the


district court’s calculations supporting denial, as set forth in its December 10 written ruling

memorializing the results of the November 18 hearing, we determine no grounds for dismissal exist.1


       Payton argues pro se that the court wrongly calculated the days elapsed in his post-indictment



        1
         The Government disagrees with the district court’s inclusion of days incurred in finding
Payton a new attorney, see United States v. Namer, 149 F. App’x 385, 396–97 (6th Cir. 2005)
(treating a ten-day delay during which the court found new counsel after granting the first attorney’s
motion to withdraw as time during which a motion is “under advisement”), but no violation results
even under the district court’s more liberal count.

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USA v. Payton


period using his arraignment date—November 14, 2002—rather than his indictment date, March 13,

2003. The district court construed this argument as a motion to dismiss and denied it, referring

Payton to the reasons set forth in the court’s December 10 order. Payton’s argument fares no better

on appeal because the relevant Speedy Trial Act provision computes time after indictment, not after

arraignment. See 18 U.S.C. § 3161(c)(1) (“[T]he trial of a defendant charged . . . 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 . . . whichever date last

occurs.” (emphasis added)).


        Pursuing a second, parallel path to reversal, Payton also argued below that the court

improperly excluded five months’ delay that occurred between the hearing on Payton’s Motion to

Suppress and the district court’s decision on that motion, as well as Payton’s Motion to Dismiss and

the Government’s corollary Motion to Strike. That is, Payton argues that the lengthy 126-day span

between the last filing related to the three pending motions and the November 18 hearing held to

consider those was “unreasonable and unjustifiable and was a simple matter of neglect by the court.”

In Henderson v. United States, the Supreme Court rejected any requirement that delays between

filing of a motion and its hearing be “reasonably necessary.” 476 U.S. 321, 329–30 (1986). Given

that the court’s December 10 order accounts for the delay by explaining its decision to consolidate

and review all three motions at the same hearing, we cannot say that the provision was misused.

After filing motions that necessitate holding a hearing, Payton may not object to the resulting delay.



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USA v. Payton


See 18 U.S.C. § 3161(h)(1)(F) (excluding delays “through the conclusion of the hearing” on a

motion).


        Only a sham hearing will lose the benefit of the § 3161(h)(1)(F) excludable delay provision,

and Payton urges us to consider the court’s November 18 hearing as just that. This line of argument

fails too. First, Payton’s insistence on December 5, 2003, that he had “been asking for [an

evidentiary hearing on his motion] for six months” belies his contention that the hearing was

unnecessary. JA 349. Second, the record shows that a legitimate hearing took place. United States

v. Staula, 80 F.3d 596, 602 (1st Cir. 1996), defines a hearing as “any on-the-record colloquy in which

the district court hears the arguments of counsel and considers those arguments prior to deciding a

pending motion.” Judge Denise Hood read a tentative ruling into the record and then allowed

Payton’s attorney, in consultation with Payton, to address the subject of whether her oral ruling

addressed all the pending claims, an invitation that they evidently declined, offering no argument.

The hearing concluded with Judge Hood scheduling a trial date. Thus, we find no abuse of

discretion in the tolling of the speedy-trial clock during consideration of the three motions as allowed

by the hearing provision of the Act. See United States v. Grosz, 76 F.3d 1318, 1325 (5th Cir. 1996)

(“[A] relatively broad definition of ‘hearing’ is appropriate.”). And absent an abuse of discretion,

the tolled days separating the motions and their dispositive hearing prevents our finding a violation

of the Act’s requirement that the defendant be brought to trial within seventy days of indictment.




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USA v. Payton


       Payton’s third filing, on February 10, 2003, claimed speedy trial violations flowing from his

former appointed counsel’s ineffectiveness in entering into the stipulated continuances. The

arguments posed in this filing essentially repeat the claims the district court resolved against Payton

in its credibility determination in favor of Payton’s counsel as discussed above regarding pre-

indictment claims.


                                                  IV


       Having considered each of the arguments Payton reserved for appellate review and finding

none to present reversible error, we affirm the judgment of the district court.




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