United States v. Van Smith

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2007 Decided July 1, 2008

No. 06-3099

UNITED STATES OF AMERICA,

APPELLEE

v.

READIE VAN SMITH,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00271-01)

Mary E. Davis, appointed by the court, argued the cause

and filed the briefs for appellant.

Sarah T. Chasson, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese, III, Thomas J.

Tourish, Jr., and Jay I. Bratt, Assistant U.S. Attorneys.

Before: RANDOLPH, ROGERS, and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

2

Dissenting opinion filed by Circuit Judge ROGERS.

GRIFFITH, Circuit Judge: “The Speedy Trial Act requires

that a criminal trial must commence within 70 days of the

latest of a defendant’s indictment, information, or appearance,

barring periods of excludable delay.” Henderson v. United

States, 476 U.S. 321, 326 (1986). More than twenty-one

months passed between Readie Van Smith’s indictment and

trial, and he seeks the dismissal of his indictment on that

ground. The government argues that two pretrial filings and a

superseding indictment trigger periods of excludable delay

that bring Smith’s trial within the required seventy days. For

the reasons set forth below, we conclude that Smith’s trial did

not violate the Speedy Trial Act and affirm the judgment of

the district court.

I.

On June 9, 2004, a federal grand jury returned a six-count

indictment against Readie Van Smith and co-defendant Paul

Rangolan charging them, inter alia, with unlawful possession

of cannabis with intent to distribute, and unlawful possession

of a firearm. Smith’s trial before the district court began

nearly two years later, on March 20, 2006. After three days of

trial, the jury convicted Smith of unlawful possession of a

firearm by a convicted felon and unlawful possession of

cannabis. 18 U.S.C. § 922(g)(1); 21 U.S.C. § 844(a). He was

sentenced to eighty-four months in prison.

Smith appeals the district court’s refusal to dismiss his

indictment on the ground that the delay of his trial violated

the Speedy Trial Act. He made a Speedy Trial Act challenge

before the district court, and filed a timely notice of appeal on

June 26, 2006. We have jurisdiction to hear the case under 28

3

U.S.C. § 1291. We review a Speedy Trial Act challenge “de

novo on matters of law, and for clear error as to findings of

fact.” United States v. Sanders, 485 F.3d 654, 656 (D.C. Cir.

2007) (internal citations omitted).

II.

The Speedy Trial Act excludes from its seventy-day limit

certain periods of pretrial delay. See 18 U.S.C. § 3161(h).

Only a few of the Act’s exclusions are relevant to this case.

First, the time it takes the trial court to decide a pretrial

motion does not count toward the seventy-day limit. Id.

§ 3161(h)(1)(F) (excluding “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”). The amount of time properly excluded due to a

pretrial motion depends in part on whether the court holds a

hearing on the motion. If the court holds a hearing, the Act

excludes the period of time between the filing of the motion

and the conclusion of the hearing, whether or not

consideration of the motion caused “actual delay of the trial,”

United States v. Wilson, 835 F.2d 1440, 1443 (D.C. Cir.

1987), and whether or not the amount of delay that occurred

was “reasonable,” Henderson, 476 U.S. at 326–27. As the

Supreme Court has explained, “Congress intended subsection

(F) to exclude from the Speedy Trial Act’s 70-day limitation

all time between the filing of a motion and the conclusion of

the hearing on that motion, whether or not a delay in holding

that hearing is ‘reasonably necessary.’ ” Id. at 330. If, after

the hearing, the court takes the motion “under advisement,”

up to thirty days more may be excluded for delay occasioned

by the court’s consideration of the matter. 18 U.S.C.

§ 3161(h)(1)(J); United States v. Saro, 24 F.3d 283, 292 (D.C.

Cir. 1994).

4

If the court does not hold a hearing for the pretrial

motion, the Act excludes the period of time between the filing

of the motion and “ ‘the day the court receives all the papers it

reasonably expects’ to help it decide the motion.” Saro, 24

F.3d at 292 (quoting Henderson, 476 U.S. at 329). After the

court receives the necessary papers, the motion is considered

“under advisement by the court,” and up to thirty days more

may be excluded while the court considers the matter. 18

U.S.C. § 3161(h)(1)(J); Henderson, 476 U.S. at 328–29; see

also Wilson, 835 F.2d at 1442 (explaining that the Act

excludes “the time between the filing of a motion and the date

it is taken under advisement by the court, plus the time during

which the court holds the motion under advisement (up to 30

days)”).

The Act also excludes from the speedy trial calculation

delay associated with the addition of a co-defendant. 18

U.S.C. § 3161(h)(7) (excluding “[a] reasonable period of

delay when the defendant is joined for trial with a co-

defendant as to whom the time for trial has not run and no

motion for severance has been granted”). The Supreme Court

has stated: “All defendants who are joined for trial generally

fall within the speedy trial computation of the latest co-

defendant. . . . [T]heir 70-day period [is] measured with

respect to his.” Henderson, 476 U.S. at 323 n.2; see also

United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986)

(explaining that the exclusion of time for the addition of a co-

defendant ensures that the government is not forced to choose

between prosecuting defendants separately and violating the

Speedy Trial Act). Accordingly, upon the addition of a new

co-defendant, all defendants’ speedy trial clocks are reset to

day zero. See 5 WAYNE R. LAFAVE ET. AL., CRIMINAL

PROCEDURE § 18.3(b), at 144 n.36 (3d ed. 2007) (“Under [18

U.S.C. § 3161(h)(7)], the speedy trial clock does not begin to

run in a multi-defendant prosecution until the last codefendant

5

makes his initial appearance in court.”). The Act also

excludes delay caused by a co-defendant’s pretrial

proceedings, as “we have understood § 3161(h)(7) to mean

that ‘an exclusion applicable to one defendant applies to all

codefendants.’ ” Saro, 24 F.3d at 292 (quoting United States

v. Edwards, 627 F.2d 460, 461 (D.C. Cir. 1980)).

III.

This appeal turns on the effect of two pretrial filings and

a superseding indictment on the computation of the seventy-

day deadline called for by the Speedy Trial Act. The

government contends that each of these events results in an

exclusion of time from the computation. Smith argues they do

not.

Rule 609 Filing

On July 27, 2004, the government filed a notice of its

intent to use the defendants’ prior convictions to impeach

their testimony if offered at trial. The government styled its

filing a “Motion Regarding Rule 609 Evidence” and contends

that it tolled the speedy trial clock from its filing date through

the day it was heard by the court on the third day of trial.1

Smith argues that the Rule 609 filing is better viewed as an

evidentiary notice that does not qualify as a pretrial motion

under the Speedy Trial Act and has no effect on the speedy

trial clock.2 We agree with Smith and conclude that the Rule

609 filing did not toll the speedy trial clock.

1

Federal Rule of Evidence 609 sets forth the circumstances in

which evidence of past convictions may be used to attack the

character for truthfulness of a witness. See FED. R. EVID. 609.

2

Smith made this argument only in his reply brief, but it came in

response to the government’s brief and so is properly raised. See

Env’t Def. Fund v. EPA, 210 F.3d 396, 401 n.8 (D.C. Cir. 2000)

6

In United States v. Harris, we recently held that a filing

like the one made by the government in our case, a “Notice of

Intent To Impeach Defendant with His Prior Convictions

Pursuant to Fed.R.Evid. 609,” was not a pretrial motion for

purposes of the Speedy Trial Act, but was instead the type of

notice described in Federal Rule of Criminal Procedure

12(b)(4).3 491 F.3d 440, 443–44 (D.C. Cir. 2007); see also

United States v. Bryant, No. 06-3129, slip op. at 15 (D.C. Cir.

Apr. 25, 2008) (explaining that in Harris “we held that a

document titled ‘Government’s Notice of Intent to Impeach

Defendant [Harris] with His Prior Convictions Pursuant to

Federal Rule of Evidence 609’ was ‘not a motion’ ”)

(alteration in original). In Harris, the defendant responded to

the notice by requesting the court bar the government’s use at

trial of his prior convictions. It was only then that the issue

was joined for the court’s consideration, and we held that the

defendant’s response was a motion that tolled the speedy trial

clock. 491 F.3d at 443–44. But in the present case, neither

Smith nor co-defendant Rangolan responded in any way to

the government’s Rule 609 filing. Furthermore, the district

court did not treat the filing as a motion. Rather, the court

ignored the filing for almost twenty months, addressing it

only at trial when it became relevant because of the

government’s planned cross-examination of Smith and after

(stating that petitioners’ argument “was properly raised in its reply

brief in response” to a statement made in the EPA’s brief); Bennett

v. Tucker, 827 F.2d 63, 70 n.2 (7th Cir. 1987) (“[W]here an

appellee raises a [sic] argument not addressed by the appellant in its

opening brief, the appellant may reply.”).

3

Federal Rule of Criminal Procedure 12(b)(4) states: “At the

arraignment or as soon afterward as practicable, the government

may notify the defendant of its intent to use specified evidence at

trial in order to afford the defendant an opportunity to object before

trial under Rule 12(b)(3)(C).”

7

asking to be reminded by the government as to whether there

were any Rule 609 issues pending. The Rule 609 filing thus

fits our description of notices in Harris, and therefore was not

a pretrial motion that tolled the speedy trial clock.

Our conclusion that the government’s evidentiary filing

was not a pretrial motion, in addition to being compelled by

Harris, is animated by our understanding of the purpose of

the Speedy Trial Act. The Act excludes time for the

consideration of “any pretrial motion,” see United States v.

Mentz, 840 F.2d 315, 327 n.25 (6th Cir. 1988), but does not

define the term “motion.” In determining whether a filing is a

motion, we are mindful of the Supreme Court’s statement in

Henderson that “[t]he provisions of the [Speedy Trial] Act are

designed to exclude all time that is consumed in placing the

trial court in a position to dispose of a motion.” 476 U.S. at

331. Where, as here, the government submits an evidentiary

notice that does not require the attention of the trial court

before trial, it serves no purpose of the Act for us to treat the

filing as a motion and toll the clock just because the

government styled its filing as a “motion.” In fact, allowing

the government to toll the speedy trial clock by styling an

evidentiary notice as a “motion” would compromise the

purpose of the Speedy Trial Act. As the First Circuit has

explained regarding pretrial submissions of evidence, to treat

such filings, which are “commonly carried over until trial,” as

pretrial motions that toll the speedy trial clock would allow

the government to circumvent the Speedy Trial Act by

submitting its filings “at an early stage and then failing to

press for prompt disposition.” United States v. Rush, 738 F.2d

497, 505–06 (1st Cir. 1984). Surely, “[t]his was not the intent

of Congress under [18 U.S.C. § 3161](h)(1)(F), or (h)(1)

generally.” Id. (citations omitted). Likewise we do not think it

consonant with the purpose of the Speedy Trial Act to toll the

clock for the filing of an unopposed evidentiary notice where

8

there is no evidence that the court was placed in a position to

dispose of the filing. See Henderson, 476 U.S. at 331.

Accordingly, we hold that the government’s Rule 609 filing

was not a pretrial motion and had no effect on the speedy trial

clock.

Effect of Adding Co-Defendant Cassandra Trent

On October 29, 2004, more than four months after Smith

was indicted, a superseding indictment added a new co-

defendant, Cassandra Trent, and charged her with removal of

property to prevent seizure. 18 U.S.C. § 2232(a). The

government argues that Smith’s speedy trial clock should be

“reset so that it reflects the speedy trial clock of the newly

added codefendant.” United States v. Lightfoot, 483 F.3d 876,

885–86 (8th Cir. 2007). Smith points to the text of the Speedy

Trial Act, which states only that a “reasonable period of

delay” shall be excluded, 18 U.S.C. § 3161(h)(7), and argues

that resetting Smith’s clock in this case would be

unreasonable.

The Supreme Court has stated that “[a]ll defendants who

are joined for trial generally fall within the speedy trial

computation of the latest codefendant,” Henderson, 476 U.S.

at 323 n.2, and we see no reason to depart from that practice

here, see also United States v. Casas, 425 F.3d 23, 31 (1st Cir.

2005) (“The Supreme Court has interpreted [18 U.S.C.

§ 3161(h)(7)] to mean that the clock does not, in effect, begin

to run until the date of the most recent defendant’s initial

appearance before the court.”). Smith tries to show that where

a superseding indictment does not change the charges against

the defendant it should have no effect on the speedy trial

clock, but the cases Smith cites either did not involve the

addition of a new co-defendant, United States v. Marshall,

935 F.2d 1298, 1302 (D.C. Cir. 1991), or have been expressly

9

disavowed, United States v. Santiago-Becerril, 130 F.3d 11,

19 (1st Cir. 1997) (cited by Smith for the proposition that the

addition of a new co-defendant does not reset the original

defendant’s speedy trial clock where the superseding

indictment “was based on the original charges”); abrogated

by United States v. Barnes, 251 F.3d 251, 258 (1st Cir. 2001)

(explaining that, “[r]ead literally,” the language from

Santiago-Becerril “would contradict the Supreme Court’s

decision in Henderson (and, thus, would not command our

allegiance)”). Smith also argues that we should apply criteria

that other circuits have used to determine whether the

excludable delay occasioned by the addition of a new co-

defendant is reasonable. But the cases he cites concerned

delay attendant to motions made by a co-defendant, not to the

delay excluded by resetting the speedy trial clock to reflect

the addition of a new defendant. See United States v.

Stephens, 489 F.3d 647, 653–55 (5th Cir. 2007); United States

v. Vogl, 374 F.3d 976, 983–84 (10th Cir. 2004).

The Speedy Trial Act excludes delay attributable to

resetting a defendant’s speedy trial clock upon the addition of

a co-defendant so that the government will not be forced to

choose between prosecuting defendants separately and

violating the Speedy Trial Act. See, e.g., United States v.

Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986). In view of this

important policy, and the Supreme Court’s straightforward

application of this provision in Henderson, 476 U.S. at 323

n.2, we hold that the addition of co-defendant Trent on

October 29, 2004 restarted Smith’s speedy trial clock.

Rule 404(b) Filing

On January 13, 2006, the government filed a “Motion In

Limine to Admit Certain Evidence Against Defendant Readie

10

Van Smith” under Federal Rule of Evidence 404(b).4 In his

opening brief, Smith calls the Rule 404(b) filing a motion,

which he acknowledges would toll the speedy trial clock, but,

seeking to limit the length of any tolling period, asserts that

the filing should “arguably” toll the clock for only thirty days

under 18 U.S.C. § 3161(h)(1)(J) “since it did not require a

hearing.” Smith Opening Br. at 7 n.13.5

The government responds by arguing to the contrary that

the district court in fact held a hearing on the Rule 404(b)

issue. Although no transcript or docket entry indicates that

there was such a hearing or even when the district court

agreed to allow use of the Rule 404(b) evidence at trial, the

government argues nevertheless that the “logical assumption,

in the absence of any other notation, is that the [Rule 404(b)]

motion was heard at the pre-trial conference that was held on

March 13, 2006.” Gov. Br. at 21. The Rule 404(b) filing, so

the argument goes, tolled the speedy trial clock until that date.

See 18 U.S.C. § 3161(h)(1)(F). In the alternative, the

4

Federal Rule of Evidence 404(b) allows for admission of

“[e]vidence of [a defendant’s] other crimes, wrongs, or acts . . . as

proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.”

5

The dissent seizes upon Smith’s use of the word “arguably” and

characterizes his argument as a “conditional statement,” suggesting

that Smith was acknowledging that it was an open question whether

the Rule 404(b) filing was a motion. See post at 1, 5, 6, 7. We

cannot see how Smith’s argument can reasonably be viewed this

way. Although Smith’s argument was conditional with regard to

whether the Rule 404(b) filing should toll the clock for thirty days

or longer, it was not conditional with regard to whether the filing

was a motion that tolled the clock for at least thirty days. We

understand Smith’s use of the word “arguably” as nothing more

than an acknowledgment that the record left room to debate the

length of the tolling, but not the need for at least some tolling.

11

government argues that “even if the Court accepts [Smith]’s

position that the Government’s Rule 404(b) motion tolled the

speedy-trial clock only [for thirty days] until February 12,

2006, [Smith] nonetheless was brought to trial within 70

days.” Gov. Br. at 22 (citation omitted).

In his reply brief, Smith takes a new tack and abandons

his argument that the Rule 404(b) filing was a motion that

tolled the speedy trial clock. He argues instead that the Rule

404(b) filing “should be treated no differently than the Rule

609 pleading and that no time should be excluded.” Smith

Reply Br. at 10. Our rules do not allow this use of a reply

brief. “We require petitioners and appellants to raise all of

their arguments in the opening brief,” Corson & Gruman Co.

v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990), and have

“repeatedly held that an argument first made in a reply brief

ordinarily comes too late for our consideration,”6 Students

6

The dissent argues that we should relax our rule in this instance

because we have “even addressed issues first presented by criminal

defendants during oral argument,” post at 3–4, but the dissent can

point to no cases in which we have addressed a late argument of the

type Smith made in this case. The three cases upon which the

dissent relies are each distinguishable in important ways. In United

States v. Godines, we had decided a significant case affecting the

parties’ arguments after briefs were submitted but before oral

argument. 433 F.3d 68, 70 (D.C. Cir. 2006). United States v. Barry

involved “only a different characterization of the evidence . . .

discussed in appellant’s briefs,” not an entirely new argument. 938

F.2d 1327, 1340 n.16 (D.C. Cir. 1991). And in United States v.

Eniola, we considered an argument first raised at oral argument

only because a co-appellant had already raised and briefed the

issue. 893 F.2d 383, 385 (D.C. Cir. 1990). Moreover, the dissent

points to United States v. Johnson despite the fact that in that case

we explicitly stated that the defendant’s late argument was waived

and considered its merits only insofar as to explain that “[e]ven if

12

Against Genocide v. Dep’t of State, 257 F.3d 828, 835 (D.C.

Cir. 2001); see also FED. R. APP. P. 28(c) (“The appellant may

file a brief in reply to the appellee’s brief.”); Hussein v.

Oshkosh Motor Truck Co., 816 F.2d 348, 360 (7th Cir. 1987)

(Posner, J., concurring) (“A reply brief is for replying, not for

raising a new ground . . . .”).

To be sure, an appellant may use his reply brief to

respond to a contention made by the appellee. See Envtl. Def.

Fund v. EPA, 210 F.3d 396, 401 n.8 (D.C. Cir. 2000). But that

is not what happened here. Smith did not respond to the

government’s argument that the court held a hearing on the

Rule 404(b) filing. Rather, he used his reply brief to change

course altogether and make a new and contradictory

argument. After using his opening brief to characterize the

Rule 404(b) filing as a motion that tolled the speedy trial

clock, thus framing the issue as a question of whether the

district court held a hearing to consider the merits of the

filing, Smith argued in his reply brief that the filing was not a

motion at all. Our rules do not allow such bait-and-switch

tactics. See Asociacion de Compositores v. Copyright Royalty

Tribunal, 809 F.2d 926, 928 (D.C. Cir. 1987) (“We will not

consider a novel contention first advanced in a reply brief.”);

Meredith v. Navistar Int’l Transp. Corp., 935 F.2d 124, 127–

28 (7th Cir. 1991) (“Of course, an appellant cannot wait until

the reply brief to present a new and different argument to this

court . . . .”); cf. Zedner v. United States, 547 U.S. 489,

504 (2006) (“[W]here a party assumes a certain position in a

legal proceeding, and succeeds in maintaining that position,

he may not thereafter, simply because his interests have

changed, assume a contrary position . . . .”) (internal quotation

marks omitted; alteration in original).

the point were not waived, it would not prevail.” 519 F.3d 478, 486

(D.C. Cir. 2008).

13

It may well be, as the dissent asserts, that what we said

about the Rule 609 filing applies to the Rule 404(b) filing, so

that “the Rule 404(b) filing is properly understood as a notice

and not a motion that tolls the speedy trial clock.” Post at 8.

But this court has not yet decided whether a Rule 404(b)

filing is a motion that tolls the speedy trial clock or a notice

that does not, and Smith’s argument that the filing is only a

notice, in addition to being late, was wholly conclusory. See

Smith Reply Br. at 10 (asserting, without explanation, that the

Rule 404(b) filing “should be treated no differently than the

Rule 609 pleading and that no time should be excluded”). To

make new law in these circumstances strikes us as “entail[ing]

the risk of an improvident or ill-advised opinion.” McBride v.

Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1211 (D.C. Cir.

1986). We may, of course, through our own research remedy

the deficiency in the parties’ briefing and come to a reasoned

conclusion regarding whether Rule 404(b) and Rule 609

filings are sufficiently similar such that Rule 404(b) filings

should be treated as notices that do not toll the speedy trial

clock, “but not without altering the character of our

institution.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.

1983) (Scalia, J.). After all, “appellate courts do not sit as

self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued

by the parties before them.” Id.

We therefore do not consider Smith’s late and new

contention that the Rule 404(b) filing was, after all, not a

motion. Furthermore, we need not consider the merits of

Smith’s initial argument that the Rule 404(b) filing tolled the

clock for only thirty days. As we explain in Part IV, tolling

the clock for thirty days after the date of the Rule 404(b)

filing still brings Smith’s trial within seventy days of his

indictment, resulting in no violation of the Speedy Trial Act.

14

IV.

Having determined that the Rule 609 filing had no effect

on the speedy trial clock, that the superseding indictment

adding co-defendant Trent restarted the clock, and that the

Rule 404(b) filing stopped the clock for at least thirty days,

we now calculate the total number of non-excludable days

that passed between Smith’s indictment and trial. Smith was

indicted on June 9, 2004. The parties agree that, due in part to

a motion to set bond filed by Smith on August 10, 2004, less

than seventy non-excludable days had passed when co-

defendant Rangolan filed motions to suppress evidence on

October 6, 2004. Smith Opening Br. at 7; Gov. Br. 18–19.

Rangolan’s motions were taken under advisement by the trial

court on November 8, 2005 and tolled Smith’s clock through

December 8, 2005. See United States v. Edwards, 627 F.2d

460, 461 (D.C. Cir. 1980) (“[A]n exclusion applicable to one

defendant applies to all codefendants.”); Saro, 24 F.3d at 292

(“Once the hearing has been held . . . the statute also calls for

the exclusion of a period ‘not to exceed thirty days’ during

which the court actually holds the motion under advisement.”)

(citing 18 U.S.C. § 3161(h)(1)(J)). We note that Smith

includes in his brief an assertion that the delay associated with

his co-defendant’s motions to suppress violated the district

court’s local rules, and for that reason “the entire seven month

delay in hearing the motions to suppress should not be

counted as excludable time pursuant to Subsection F.” Smith

Opening Br. at 13 (referring to 18 U.S.C. § 3161(h)(1)(F)).

The Supreme Court made clear in Henderson, however, that

as far as the Speedy Trial Act is concerned, all time between

the filing of and the hearing on a motion is excluded,

“whether that hearing was prompt or not.” 476 U.S. at 326.

Accordingly, Smith’s claim with regard to the district court’s

rules has no effect on the speedy trial calculation.

15

At this point, on December 8, 2005, Smith’s speedy trial

clock is at day zero; it has been reset by the superseding

indictment adding co-defendant Trent on October 29, 2004,

and it has yet to begin running because co-defendant

Rangolan’s October 6, 2004 motions, which tolled the clock

until December 8, 2005, were pending at the time Smith’s

clock was restarted. From December 9, 2005 until January 13,

2006, thirty-five days passed. As argued by Smith, the

government’s Rule 404(b) filing then tolled the clock from

January 13, 2006 through February 12, 2006. See Smith

Opening Br. at 7 n.13. Finally, excluding March 13, 2006, the

day on which the district court held a pretrial conference, see

18 U.S.C. § 3161(h)(1) (excluding “[a]ny period of delay

resulting from other proceedings concerning the defendant”);

United States v. Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983)

(explaining that “Congress articulated its intent that the ‘other

proceedings’ language be read broadly”), only thirty-five days

passed between February 13, 2006 and March 20, 2006 — the

first day of trial. This calculation includes the first day of trial.

In Harris, we explained that “a logical consequence of not

counting the date of indictment toward the seventy-day total

is that we must count the date of trial.” 491 F.3d at 443 n.1.

Here, we do not count the date of indictment because Smith’s

speedy trial clock was reset upon the addition of co-defendant

Trent, and we do not count the date Trent was added because

co-defendant Rangolan’s suppression motions were pending

at that time. Our inquiry is whether Smith’s trial began

“within seventy days” of his indictment. 18 U.S.C.

§ 3161(c)(1) (emphasis added). The first non-excludable day,

December 9, 2006, was a full day — unlike the day of

indictment that was not counted in Harris — so we count

both it and the first day of trial.

16

Adding together the thirty-five days that passed before

the Rule 404(b) filing and the thirty-five non-excludable days

that passed between February 13, 2006 and March 20, 2006,

Smith’s clock reached only day seventy, an amount consistent

with the Speedy Trial Act’s requirement. 18 U.S.C.

§ 3161(c)(1) (“[T]he trial of a defendant . . . shall commence

within seventy days [of] the . . . indictment.”) (emphasis

added).

***

For the foregoing reasons, Smith’s trial did not violate

the Speedy Trial Act. The judgment of the district court is

therefore

Affirmed.

ROGERS, Circuit Judge, dissenting: The outcome of this

appeal turns on whether a “Motion in Limine to Admit Certain

Evidence” pursuant to FED. R. EVID. 404(b) filed by the

government extends the period of time within which the Speedy

Trial Act, 18 U.S.C. §§ 3161 et seq., requires a criminal

defendant’s trial to begin. The district court denied Smith’s

speedy trial motions without explanation, leaving him to guess

about what arguments the government would make on appeal to

support the conclusion that the trial timely commenced. The

government first presented its argument that its Rule 404(b)

filing is a tolling motion in its appellate brief. Smith addressed

this new argument in his reply brief, and the court today adopts

his reasoning in holding that the government’s notice of its

intent to offer evidence under FED. R. EVID. 609, also styled as

a motion, did not toll the speedy trial clock. Nonetheless, the

court holds that Smith has forfeited the Rule 404(b) issue

because his argument was first raised in his reply brief and is

inconsistent with a conditional, conclusory footnote in his initial

brief. Op. at 11. This court has the discretion, however, to

notice forfeited issues, and the purposes for applying forfeiture

are absent here: there would be no prejudice to the government,

which briefed the Rule 404(b) issue and presented its views

during oral argument (and claims no prejudice), and the court is

not at particular risk of rendering an ill-informed decision as it

has heard from each party. In these circumstances, and because

this is a criminal case where the error is controlled by the court’s

analysis of the Rule 609 filing and outcome determinative, the

court should exercise its discretion to address Smith’s argument.

Therefore, I respectfully dissent.

Smith filed a motion to dismiss the indictment pursuant to

the Speedy Trial Act on July 31, 2005, and orally renewed his

motion on February 17, 2006. The government did not file a

written opposition to Smith’s motion, and its opposition of June

6, 2005 to a co-defendant’s speedy trial motion necessarily did

not address its January 13, 2006 Rule 404(b) filing. Neither did

2

the government respond to Smith’s oral motion. While Smith

cannot be deemed to have abandoned the Rule 404(b) filing

issue in the district court, the court invokes the forfeiture

doctrine whereby, pursuant to FED. R. APP. P. 28(a)(4), the court

may decline to consider an argument first raised in a reply brief,

Op. at 11 (citing Students Against Genocide v. Dep’t of State,

257 F.3d 828, 835 (D.C. Cir. 2001); Corson & Gruman Co. v.

NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990)), and posits that

Smith’s footnote in his initial brief constituted an impermissible

“bait and switch,” Op. at 11.

The forfeiture doctrine has a long and honorable history.

See United States v. Olano, 507 U.S. 725, 731-32 (1993) (citing

Yakus v. United States, 321 U.S. 414, 444 (1944)). As explained

by this court, it “ordinarily,” see Students Against Genocide,

257 F.3d at 835, applies to avoid unfair prejudice to the other

side and the risk that the court might offer an “improvident or

ill-advised opinion on the legal issues tendered,” McBride v.

Merrell Dow & Pharm., Inc., 800 F.2d 1208, 1211 (D.C. Cir.

1986); see also United States v. Eniola, 893 F.2d 383, 385 (D.C.

Cir. 1990). But the forfeiture doctrine is neither rigid nor

unyielding. The Supreme Court has stated in the related context

of forfeiture pursuant to FED. R. CRIM. P. 52(b) that “where the

life, or . . . liberty, of the defendant is at stake, the courts of the

United States, in the exercise of a sound discretion, may notice

[forfeited error].” Olano, 507 U.S. at 735-36 (internal quotation

marks omitted and alteration in original). Where a criminal

defendant fails altogether to raise an issue in the district court,

the federal rules “leave[] the decision to correct the forfeited

error within the sound discretion of the court of appeals,” id. at

732; cf. Hormel v. Helvering, 312 U.S. 552, 557 (1941), which

may even consider the issue where the defendant has

additionally failed to identify it on appeal, see Silber v. United

States, 370 U.S. 717, 718 (1962) (per curiam); see also United

States v. Baugham, 449 F.3d 167, 170 (D.C. Cir. 2006) (citing

3

Silber, 370 U.S. at 718). The Supreme Court has instructed that

such discretion “should be employed ‘‘in those circumstances in

which a miscarriage of justice would otherwise result,’’” Olano,

507 U.S. at 736 (quoting United States v. Young, 470 U.S. 1, 15

(1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14

(1982))), or where the “fairness, integrity or public reputation of

judicial proceedings” is substantially affected, id. (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)). In

accordance with this principle, Congress, in establishing the

court’s appellate authority, has provided for further proceedings

“as may be just under the circumstances.” 28 U.S.C. § 2106; see

Olano. 507 U.S. at 735.

The court’s reliance on civil cases, Op. at 11, ignores the

fact that the court has very rarely applied forfeiture to avoid a

meritorious argument raised by a criminal defendant in a reply

brief. Usually, where the court has concluded that a criminal

defendant raised an argument too late, it has noted that the

argument also lacks merit.1 Indeed, the court has even

addressed issues first presented by criminal defendants during

oral argument. See United States v. Godines, 433 F.3d 68, 70

(D.C. Cir. 2006); United States v. Barry, 938 F.2d 1327, 1340

n.16 (D.C. Cir. 1991); Eniola, 893 F.2d at 385. For instance, in

Johnson, while the court stated that the defendant had waived a

challenge to the adequacy of the jury verdict form by failing to

raise it until oral argument, the court nonetheless analyzed the

1

See United States v. Johnson, 519 F.3d 478, 486 (D.C. Cir.

2008); United States v. Adefehinti, 510 F.3d 319, 326-27 (D.C. Cir.

2007); United States v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir.

2007); United States v. Gurr, 417 F.3d 144, 152 n.3 (D.C. Cir. 2006);

United States v. Johnson, 216 F.3d 1162, 1167-68 (D.C. Cir. 2000);

United States v. Caicedo-Llano, 960 F.2d 158, 164 n.4 (D.C. Cir.

1992); United States v. Halderman, 559 F.2d 31, 78 n. 113 (D.C. Cir.

1976).

4

issue on its merits, concluding that “it would not prevail”

because the indictment and jury instructions properly explained

the charged offense. 519 F.3d at 486-87. In the rare instance

where the court has declined to consider the merits of an

argument altogether, the criminal defendant has failed both to

raise an issue in the district court and to meet his burden to show

plain-error prejudice in his initial brief, as in United States v.

Wilson, 240 F.3d 39, 44 (D.C. Cir. 2001), where the late claim

of error also involved jury instructions.2 Nonetheless, even in

such a situation the court retains authority to notice sua sponte

issues altogether ignored by the parties. See Baugham, 449 F.3d

at 170 (citing Silber, 370 U.S. at 718). Although this discretion

is exercised with restraint because of the particular risk for

judicial decisionmaking where neither party has presented its

analysis,3 the court has rejected an approach that error “not

raised or briefed” is necessarily beyond the court’s consideration

where substantial rights are involved, United States v. Rhodes,

886 F.2d 375, 379 (D.C. Cir. 1989).

The Rule 404(b) issue warrants this court’s consideration

for three reasons:

First, the briefs of both sides demonstrate that a rigid and

formalistic application of forfeiture makes no sense in a speedy

trial appeal where the district court record is barren. Because all

2

In Wilson, the court remanded the ineffective assistance of

counsel claim to the district court and vacated the sentence in light of

an erroneous enhancement. 240 F.3d at 51.

3

See United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir.

2008); United States v. West, 392 F.3d 450, 459 (D.C. Cir. 2004);

United States v. Taylor, 339 F.3d 973, 977 (D.C. Cir. 2003); United

States v. Mathis, 216 F.3d 18, 28 n.14 (D.C. Cir. 2000); United States

v. Watson, 171 F.3d 695, 699 n.2 (D.C. Cir. 1999); United States v.

Clarke, 24 F.3d 257, 262 (D.C. Cir. 1994).

5

manner of motions, continuances, hearings, or other events may

toll the mandatory period for bringing a defendant to trial, some

give and take between the defendant and the government is

inevitable. This is what happened here. In preparing his initial

brief, Smith was confronted with two options: Either he could

argue generally that too much time had passed and risk running

afoul of the requirement that parties set forth their arguments in

their initial briefs, see Carducci, 14 F.2d at 177; see also FED. R.

CIV. P. 28(a)(9), or he could attempt preemptively to negate

arguments that the government might present for the first time

on brief. Smith chose the latter course and, in explaining the

history of the case in his initial brief, referred to the

government’s Rule 404(b) “Motion in Limine” and included a

conditional, conclusory footnote intimating, prior to the

government ever arguing that its motion tolled the speedy trial

clock, that it might be a motion that tolled the clock for no more

than thirty days.4 The government’s brief, in turn, asks the court

to agree with a key assumption underlying its argument that the

Rule 404(b) filing was a motion that “clearly required a

hearing.” Appellee’s Br. at 21. Conceding that no transcript or

docket entry indicates when the district court considered the

Rule 404(b) filing, the government maintains that “[t]he logical

assumption, in the absence of any other notation, is that the

motion was heard at the pre-trial conference that was held on

March 13, 2006.” Id.5 Particularly because the court often

4

The footnote stated: “Appellant asserts that arguably the

motion in limine [to admit Rule 404(b) evidence] should also be

subject to the 30 day restriction under Subsection J [18 U.S.C.

§ 3161(h)(1)(J)] since it did not require a hearing.” Appellant’s Br. 7

n.13; see; Op. at 10.

5

The government’s conjecture appears to be the basis for the

court’s statement that the district court treated the Rule 404(b) and

Rule 609 filings differently. Op. at 14. However, nothing other than

the Government’s exercise in logic supports the position that the

6

disregards arguments presented only in footnotes, see, e.g.,

Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C.

Cir. 1999) (en banc), transforming a defendant’s preemptive

conditional statement based on the government’s own styling of

its filing as a “motion” into a concrete position on an argument

that the government has yet to present is far fetched; the absence

of any claim of prejudice by the government evidences the

meaninglessness of applying a bait-and-switch rationale in these

circumstances.

Second, the concerns underlying the forfeiture doctrine

about inadequately argued issues are nonexistent. Both parties

briefed whether an evidentiary notice, styled by the government

as a “motion,” see Op. at 5, tolled the speedy trial clock.

Specifically, each party’s brief addressed the effect of the

government’s Rule 609 “motion” on the speedy trial clock. See

Appellee’s Br. at 12-17, Reply Br. at 2-5. In its brief the

government also maintained that the Rule 404(b) filing tolled

the speedy trial clock until the pre-trial conference on March 13,

2006. Appellee’s Br. at 21. In his reply brief, Smith responded

that the Rule 404(b) “‘offer of proof’ should be treated no

differently than the Rule 609 pleading and that no time should

be excluded.” Reply Br. at 10.6 Additionally, the effect of the

district court addressed the Rule 404(b) motion at the off-the-record

pretrial conference.

6

The court in part bases its decision to ignore the merits of

the Rule 404(b) issue on Smith’s “conclusory” discussion of it. Op.

at 13. However, given the functional similarity of the Rule 404(b) and

Rule 609 filings, each of which identified evidence that the

government wanted to introduce at trial, Smith’s express incorporation

by reference is sufficient. To the extent the court also expresses

concern about making new law, citing McBride v. Merrell Dow &

Pharmaceuticals, Inc., 800 F.2d 1208 (D.C. Cir. 1983), a civil case,

Op. at 13, it ignores both its analysis of the Rule 609 filing and the

7

Rule 404(b) filing on the speedy trial clock was discussed

extensively with the court during oral argument. See Oral Arg.

Tape at 1:00-1:11; 3:00-3:50, 13:24-14:25; 16:40-17:20 (Nov.

19, 2007). These circumstances allay any concern that passing

judgment on the Rule 404(b) issue risks an “improvident or ill-

advised opinion,” McBride, 800 F.2d at 1211, for lack of

argument by one side.

Third, the government, despite the substantial discussion of

the Rule 404(b) issue during oral argument, never claimed that

it was prejudiced by the “new tack” in Smith’s reply brief, Op.

at 11. To the contrary, the government argued that its Rule 609

and 404(b) filings presented similar issues, see Oral Arg. Tape

at 17:10, and it recognized the significance of the Rule 404(b)

tolling issue in stating that “the 404(b) issue would have to be

resolved [by the court],” id. at 16:47-16:53. Having argued the

merits of Smith’s “new tack” and identified no prejudice

resulting from Smith’s conditional footnote, the government has

minimized any concern that it would be unfair to it for the court

to address the merits of the Rule 404(b) filing.

The Supreme Court’s admonition to courts of appeals to

exercise their discretion where a defendant’s liberty is

implicated and in order to avoid serious unfairness, Olano, 507

U.S. at 736, applies to these circumstances. The concerns

animating the forfeiture doctrine are nonexistent because both

parties have been heard and there is no claim of prejudice. The

error in treating the Rule 404(b) filing as a motion tolling the

speedy trial clock is controlled by the court’s analysis of the

Rule 609 filing, Op. at 5-8, and is dispositive of Smith’s

statutory claim in this criminal appeal. Therefore, binding

Smith to his footnote that adopted the government’s styling of

court’s en banc decision in United States v. Crowder, 141 F.3d 1202

(D.C. Cir. 1989), discussed infra.

8

its Rule 404(b) filing as a “motion” and declining under a “bait

and switch” rationale, Op. at 11, to consider his reply to the

government’s new and expansive argument on brief that its Rule

404(b) “motion” tolled the speedy trial clock gives insufficient

weight to the important questions of liberty and the fairness of

judicial proceedings involved in this case.

Because it behooves the court to exercise its discretion to

consider the merits of Smith’s argument about the government’s

Rule 404(b) filing, I would hold, based on the court’s analysis

of the Rule 609 filing in view of our precedent and the purpose

of the Speedy Trial Act, Op. at 5-8, that the Rule 404(b) filing

is properly understood as a notice and not a motion that tolls the

speedy trial clock. The procedural question is long settled in

this circuit. In United States v. Crowder, 141 F.3d 1202 (D.C.

Cir. 1998), the en banc court explained the procedure of

admitting evidence pursuant to Rule 404(b), stating that “[t]he

government must identify which of the matters listed . . . it is

intending to prove . . . [and] [i]f the defense objects, the court

must then satisfy itself that the evidence is relevant to that

matter,” id. at 1209 (emphasis added). Neither Smith nor his co-

defendants raised a pretrial objection to the Rule 404(b) filing

and no hearing was required on the government’s notice of its

intent to offer evidence at trial; hence, its “Motion in Limine”

did not toll the speedy trial clock. Because the rights that

Congress secured in the Speedy Trial Act do not hinge on labels

applied by the parties to their filings, see Op. at 7-8; Santoyo,

890 F.2d 726, 727 (5th Cir. 1989); cf. United States v. Noah, 130

F.3d 490, 495 (1st Cir. 1997), Smith’s trial, which did not

commence until the hundredth day, was unlawfully delayed.

Accordingly, I would remand the case to the district court to

decide whether dismissal of the indictment should be with or

without prejudice, United States v. Sanders, 485 F.3d 654, 660

(D.C. Cir. 2007).