United States v. Toombs

574 F.3d 1262, 2009 U.S. App. LEXIS 17098, 2009 WL 2357228
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 3, 2009
Docket08-3278
StatusPublished
Cited by89 cases

This text of 574 F.3d 1262 (United States v. Toombs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Toombs, 574 F.3d 1262, 2009 U.S. App. LEXIS 17098, 2009 WL 2357228 (10th Cir. 2009).

Opinions

MURPHY, Circuit Judge.

I. INTRODUCTION

Following his arrest on and arraignment for various drug and firearm possession charges, defendant Mario Toombs remained incarcerated for approximately twenty-two months before his trial began. During this time period, the district court granted seven continuances under the ends-of-justice provision of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7) (“ends-of-justice continuances”). In a motion to dismiss, Toombs claimed the district court failed to make the requisite factual findings when it granted the ends-of-justice continuances, and therefore over seventy non-excludable days had passed between his arraignment and trial in violation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The district court denied the motion to dismiss, concluding it had made the factual findings required by the Speedy Trial Act for each of the continuances. The matter then proceeded to trial, and Toombs was convicted on all counts. On appeal, Toombs challenges, inter alia, the denial of his motion to dismiss. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

II. BACKGROUND

On April 26, 2006, Toombs and co-defendant Arlynda Osborn were indicted for various firearm and drug possession offenses. Toombs was arraigned on May 2, 2006, and remained incarcerated for approximately twenty-two months preceding his trial, which began on March 4, 2008. During the time period between Toombs’s arraignment and trial, the district court granted nine continuances, the latter seven of which were granted pursuant to the ends-of-justice provision of the Speedy Trial Act:

1. On May 22, 2006, defense counsel moved for additional time to file pretrial motions, contending he had not yet received discovery. The motion contained a limited waiver of Toombs’s Speedy Trial Act rights and stated the government had no objection to the continuance. In its order granting the motion, the district court excluded the time from May 22, 2006 to July 10, 2006, for purposes of the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(1)(D).
2. On June 19, 2006, defense counsel moved again for additional time to file pretrial motions, contending counsel had not yet received discovery. The motion contained a limited waiver of Toombs’s Speedy Trial Act rights and stated the government had no objection to the request. In its order granting the motion, the court excluded the time from June 19, 2006 to July 31, 2006, for purposes of the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(1)(D).1
3. On August 31, 2006, defense counsel filed a motion to continue on the grounds that new counsel needed additional time to review discovery and prepare for trial.2 On September 5, 2006, [1266]*1266the district court, for good cause, granted the motion to continue, stating that the ends of justice outweighed the best interest of the public and the defendant in a speedy trial under 18 U.S.C. § 3161(h)(7).3 The district court excluded the time from August 31, 2006 to November 6, 2006, the new trial date, for purposes of the Speedy Trial Act.
4. On October 23, 2006, the • government filed a motion to continue contending it was making a concerted effort to locate and arrest codefendant Osborn. The motion stated the evidence against Toombs would be largely the same as that against Osborn, who remained a fugitive. The motion further stated counsel for Toombs had no objection to the continuance. The district court granted the continuance on October 27, 2006, finding that the basis of the continuance was proper under the provisions of 18 U.S.C. § 3161(h)(6) and the ends of justice outweighed the best interest of the public and the defendant in a speedy trial under 18 U.S.C. § 3161(h)(7). The court excluded the time from October 23, 2006 to February 5, 2007, the new trial date, for purposes of the Speedy Trial Act.
5. On January 23, 2007, defense counsel filed a motion to continue stating he needed more time to prepare for trial due to three other eases for which he was scheduled to appear in the weeks before Toombs’s scheduled trial date. The motion stated the government did not object to the continuance. The district court granted the motion on February 5, 2007, stating the ends of justice served by granting the continuance outweighed the best interest of the public and the defendant in a .speedy trial under 18 U.S.C. § 3161(h)(7). The court excluded the time from January 23, 2007 to May 7, 2007, the new trial date, for purposes of the Speedy Trial Act.
6. On April 30, 2007, defense counsel filed a motion to continue stating additional discovery had recently been disclosed requiring additional investigation. The motion further stated the government had no objection to the continuance. On May 1, 2007, the district court issued an order granting the continuance “in order for the defense to adequately prepare and for the reasons stated in the motion.” The order further stated the ends of justice outweighed the best interest of the public and the defendant in a speedy trial pursuant to 18 U.S.C. § 3161(h)(7). The court excluded the time from April 30, 2007 to July 9, 2007, the new trial date, for purposes of the Speedy Trial Act.
[1267]*12677. On July 5, 2007, defense counsel filed another motion to continue based upon newly disclosed discovery. The motion was nearly identical to the April 30, 2007 motion. On July 10, 2007, in an order identical to the May 1, 2007 order with the exception of the dates provided, the district court granted the continuance “in order for the defense to adequately prepare and for the reasons stated in the motion.” The order further stated the ends of justice outweighed the best interest of the public and the defendant in a speedy trial pursuant to 18 U.S.C. § 3161(h)(7). The court excluded the time from July 5, 2007 to September 4, 2007, the new trial date, for purposes of the Speedy Trial Act.
8. On August 14, 2007, Toombs retained the services of Melanie Morgan, who entered her appearance as counsel of record. On August 24, 2007, defense counsel filed a motion to continue which detailed the current status of the case and indicated she needed additional time to review discovery and prepare for trial.

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Bluebook (online)
574 F.3d 1262, 2009 U.S. App. LEXIS 17098, 2009 WL 2357228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-toombs-ca10-2009.