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United States v. Washington

United States Court of Appeals, Eighth Circuit

June 27, 2018

United States of America Plaintiff- Appellee
Frank Dontrell Washington, Jr. Defendant-Appellant

          Submitted: January 12, 2018

          Appeal from United States District Court for the Northern District of Iowa - Dubuque

          Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.


         This appeal raises, primarily, two issues of interpretation. Frank Washington argues that the district court erred in its interpretation of the Speedy Trial Act and crafted an unconstitutionally vague condition of supervised release. We agree with the latter challenge, but disagree with the former assertion. We also disagree with Washington's only other claim on appeal-that his sentence was substantively unreasonable. Thus, we affirm in part and remand narrowly for the district court to reconsider the challenged special condition.


         The underlying facts are relatively straightforward. Washington was arrested at his residence on June 9, 2016 on the basis of a complaint that alleged possession with intent to distribute marijuana. See 21 U.S.C. § 841(a)(1). Just over a month later-33 days to be precise-a grand jury charged Washington with possession with intent to distribute within 1000 feet of a school. See id. §§ 841(b)(1)(D), 860(a). Washington made his initial appearance on the indictment on October 3, 2016. Shortly thereafter, he moved to dismiss the indictment because of Speedy Trial Act violations. See 18 U.S.C. §§ 3161-3174.[1] The district court denied that motion. Washington then went to trial. After three days of deliberation, the jury returned a guilty verdict. At sentencing, Washington's advisory Sentencing Guidelines range was set at 21 to 27 months imprisonment. The district court eventually sentenced him to 27 months imprisonment with four years of supervised release. The term of supervised release included a special condition with respect to gang association and activity (Special Condition #3).

         On appeal, Washington challenges the district court's ruling on his Speedy Trial Act claim, the substantive reasonableness of his sentence, and Special Condition #3. We address each in turn.


         The Speedy Trial Act was passed by Congress "to give effect to the [S]ixth [A]mendment right" to a speedy trial. Betterman v. Montana, 136 S.Ct. 1609, 1616 (2016) (internal quotation marks omitted). On appeal, Washington argues that the government violated the Act's direction that "no more than 30 days pass between arrest and indictment," id., given 33 days passed between his arrest and indictment. When the government runs afoul of this timeframe, the Act sanctions the government by stating: "such charge . . . contained in such complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1) (emphasis added). As noted above, the complaint and indictment in this case charged two different offenses. Sensing the textual barrier to his desired remedy, dismissal of the indictment, Washington urges adoption of the so-called "gilding exception." In theory, but not often in practice, this doctrine allows dismissal under the Act where "a [later] charge is one that merely annotates in more detail the same charge alleged in the [complaint]." See United States v. Bailey, 111 F.3d 1229, 1236 (5th Cir. 1997). The district court declined to apply the gilding exception, but noted that our circuit has yet to speak definitively on its validity. We review the district court's legal conclusion de novo. United States v. Herbst, 666 F.3d 504, 509 (8th Cir. 2012).

         We find that there is no gilding exception to the Speedy Trial Act. Our prior holdings-while not taking the gilding exception head on-seemingly foreclose its application to the Speedy Trial Act. See, e.g, United States v. Miller, 23 F.3d 194, 199 (8th Cir. 1994) ("A defendant's arrest on one charge does not necessarily trigger the right to a speedy trial on another charge filed after his arrest."). More importantly, those holdings are in line with the text of the statute. Again, the Act only permits dismissal of "such charge . . . contained in such [earlier] complaint." 18 U.S.C. § 3162(a)(1). Given the unambiguous wording of the statute, it should hardly come as a surprise that courts recently "have questioned [the gilding exception's] doctrinal validity" as applied to the Speedy Trial Act. United States v. Trudeau, 812 F.3d 578, 587 (7th Cir.), cert. denied, 137 S.Ct. 566 (2016). We decline to read a "gilding exception" into clear statutory language. Cf. Henson v. Santander Consumer USA Inc., 137 S.Ct. 1718, 1726 (2017) ("[T]he proper role of the judiciary . . . [is] to apply, not amend, the work of the People's representatives.").

         Washington believes this would provide a perverse incentive to the government. At oral argument, it was suggested that the government could wait "a day, a month, a year, two years and simply get around the Speedy Trial Act by adding a protected zone location." But, the solution to that hypothetical scenario is not to "do[] violence to the statutory language" in the Speedy Trial Act. Jennings v. Rodriguez, 138 S.Ct. 830, 848 (2018) (internal quotation marks omitted). Instead, protection may lie in the Sixth Amendment right to a speedy trial-a constitutional right distinct from the Act. United States v. Shepard, 462 F.3d 847, 863 (8th Cir. 2006) ("Sixth Amendment and Speedy Trial Act challenges for delay are reviewed independently of one another." (internal quotation marks omitted)). Given that it was not briefed before us, we do not examine whether the Sixth Amendment was violated here.

         Additionally, even if we were to recognize a gilding exception to the Speedy Trial Act, that would not lead to the dismissal of Washington's indictment. The majority of our sister circuits that have considered the question have agreed that a later-indicted charge which contains different elements than the charge in the initial complaint is not subject to dismissal under the gilding exception.[2] This is in line "with Supreme Court precedent analyzing multiple prosecutions." Bailey, 111 F.3d at 1236. Here, the indicted crime required an additional element-evidence that Washington was within 1000 feet of a school-beyond the original possession with intent to distribute charge in the complaint. The doctrine, as widely understood, does not offer support for Washington's claim.

         His argument fares no better under a minority view of the gilding exception. This view, most prominently adopted by the Tenth Circuit, places emphasis on the underlying factual allegations. See United States v. Andrews, 790 F.2d 803, 809 (10th Cir. 1986) (dismissing superseding indictment because it "allege[d] no facts different" than previous charging instrument); see also United States v. Peppin, 365 F.Supp.2d 261, 269 (N.D.N.Y. 2005) (finding that gilding exception may apply even when "new charges contain additional elements").[3] Even under this view, the ...

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