           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           April 28, 2008

                                       No. 07-60100                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

WILBERT CONCHO

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:06-CR-17-3


Before REAVLEY, JOLLY, and GARZA, Circuit Judges.
PER CURIAM:*
       Wilbert Concho appeals his conviction for charges arising from a burglary.
Concho asks us to reverse his conviction and remand to the district court with
instructions to dismiss the subject charge because of alleged violations of the
Speedy Trial Act. We affirm.
       Concho, along with Alan Bell and David Bell, allegedly broke into the
home of an elderly member of the Mississippi Band of Choctow Indians
(“MBCI”), within the boundaries of the MBCI reservation, on December 28, 2005.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 07-60100

The three were arrested soon thereafter. The Choctow police department
arrested Concho and took him into custody of the MBCI on January 4, 2006. The
Bells, both Choctow Indians, were provided with free legal counsel and the tribal
charges against them were disposed of quickly.
      The charges against Concho, a Zuni Indian, were handled differently.
Tribal charges were filed against him on January 11, 2006, but after a number
of court appearances spanning several months, his case was not resolved because
he could not secure counsel. Concho alleges that this is because he could not
afford an attorney and to be eligible for free representation from the Tribal
Public Defender, the defendant must be a member of the MBCI. Eventually,
Concho was appointed counsel, and on November 21, 2006 Concho entered a no
contest plea to some of the tribal charges and was sentenced accordingly.
      Soon after Concho’s arrest, Choctow law enforcement telephoned Assistant
United States Attorney Jack Lacy to see if he might be interested in pursuing
federal charges because the burglary occurred on an Indian Reservation and
involved an assault on an elderly woman. Lacy expressed an interest in the case
and received a report concerning the offenses the week after January 16, 2006.
The federal case was submitted to the federal grand jury and an indictment
against Concho was returned on May 11, 2006. The Choctow Police Department,
which had custody of the defendant up to that point, transported him to federal
court where on May 22, 2006 he was arraigned on the federal indictment. On
August 1, 2006, Concho filed his initial motion to dismiss the indictment on
speedy trial grounds and asked for a writ of habeas corpus. Hearings on the
motion were conducted on August 14, August 18, August 24, and September 8,
2006, with the district court eventually denying the motion. The case proceeded
to a bench trial on October 12, 2006, where the defendant was convicted of
charges stemming from the burglary.



                                       2
                                  No. 07-60100

      Concho appeals his conviction exclusively on Speedy Trial Act grounds.
“We review the district court’s factual findings supporting its Speedy Trial Act
rulings for clear error and its legal conclusions de novo.” United States v. Green,
508 F.3d 195, 199 (5th Cir. 2007), petition for cert. filed (U.S. Feb. 4, 2008) (07-
9219) (internal quotation marks omitted).
      Concho’s first argument is that the Speedy Trial Act was violated because
he was not indicted within thirty days of his arrest by the Choctow police
department on January 4, 2006. The Act states in relevant part that “[a]ny
information or indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on which such individual
was arrested or served with a summons in connection with such charges.” 18
U.S.C. § 3161(b). Concho concedes that normally an arrest by another sovereign,
such as a state or a recognized Indian tribe, does not trigger the running of the
thirty day limit for the return of an indictment. See United States v. Taylor, 814
F.2d 172, 174–75 (5th Cir. 1987).
      Concho says that his Choctow arrest triggered the clock because he was
arrested solely to answer to a federal charge, and the government knew or
should have known this. He relies on United States v. Woolfolk, where the court
held that in some circumstances an individual held by state authorities can be
considered under “federal arrest” or in “federal custody.” 399 F.3d 590, 595–96
(4th Cir. 2005). The court reasoned that “something other than actual federal
custody and federal arrest” can trigger the Speedy Trial Act; namely, “any
restraint resulting from federal action.” Id. at 596 (internal quotation marks
omitted). The court concluded that a “‘restraint resulting from federal action,’
sufficient to trigger the time limits of the Speedy Trial Act, occurs when the
Government [knew or should have known] that an individual is held by state
authorities solely to answer to federal charges.” Id. Concho says that the
evidence that the Woolfolk test is met includes the following: (1) Choctow law

                                         3
                                  No. 07-60100

enforcement contacted AUSA Lacy about possible federal charges soon after he
was arrested; (2) Concho could not be tried in tribal court because he could not
afford private counsel and under MBCI policy he was ineligible for free
representation from the Tribal Public Defender; and (3) Concho’s case was
constantly continued because he could not procure legal counsel. Therefore,
according to Concho, together this shows that the MBCI held him solely to
answer to the federal charges.
      Even assuming the Woolfolk rule governs, Concho’s arrest by the Choctow
authorities did not trigger the speedy trial clock. The evidence does not bear out
Concho’s theory. Multiple Choctow law enforcement officers testified at the
motion to dismiss hearings that they contacted AUSA Lacy about bringing
federal charges in addition to tribal charges. Each said that as far as they knew
the tribal charges remained and would be prosecuted. AUSA Lacy said that he
did not direct the tribe to hold Concho for the federal charges. Concho did not
present any relevant evidence, other than the circumstantial evidence cited
above, to controvert this testimony. In part based on this evidence, the district
court denied Concho’s motion to dismiss, and the factual findings underpinning
its legal conclusion are not clearly erroneous. Concho’s evidence indicates that
the tribal authorities were having trouble finding counsel for him, but it does not
show that they were not pursuing tribal charges. Because Concho’s January 4,
2006 arrest did not start the speedy trial clock, his argument under Section
3161(b) is rejected.
      Concho’s second argument is that he was not brought to trial within the
time limit mandated by the Speedy Trial Act’s Section 3161(c)(1). The section
states in relevant 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 filing date (and making public) of the information or indictment,

                                        4
                                  No. 07-60100

     or from the date the defendant has appeared before a judicial officer
     of the court in which such charge is pending, whichever date last
     occurs.
18 U.S.C. § 3161(c)(1). Concho says that because his trial did not occur with
seventy days of his federal arraignment, the statute was violated.
      His argument fails because his initial pretrial motion tolled the speedy
trial clock. He acknowledges that pretrial motions generally toll the clock under
the Act’s Section 3161(h)(1)(F), which excludes “delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of the hearing on,
or other prompt disposition of, such motion . . . .” But he says that his pretrial
motions did not toll the clock because they were Speedy Trial Act motions, which
the court in United States v. New Buffalo Amusement Corporation held are not
chargeable against a defendant because “to do so would improperly penalize
defendants for their invocation of speedy trial rules and run counter to those
rules.” 600 F.2d 368, 375 (2d Cir. 1979) (internal quotation marks omitted).
      We need not decide whether to adopt the rule from New Buffalo because
Concho’s August 1, 2006 motion also sought a habeas corpus order directing the
MBCI to release him. This issue resulted in numerous pleadings and hearings,
including discussion at pretrial hearings on August 24 and September 8, 2006,
and a post-trial hearing on October 19, 2006. Although there may be scenarios
where a particular pretrial motion does not toll the speedy trial clock, we see no
reason why his combined pretrial speedy trial and habeas motion and the
subsequent hearings did not toll the Section 3161(c)(1) clock. Therefore, under
the tolling provisions of 18 U.S.C. § 3161(h) and the interpretation given these
provisions in United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994), Section
3161(c)(1) was not violated. Concho’s argument under this section is rejected.
AFFIRMED.




                                        5
