United States of America v. Arthur Duane Payton

The Honorable Gregory L. Frost, United States District Judge for the Southern District of*
Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
ARTHUR DUANE PAYTON,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
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

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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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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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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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The Government disagrees with the district court’s inclusion of days incurred in finding1
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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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

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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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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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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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