United States v. Nakia Adams

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 19-1811 & 19-2574

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UNITED STATES OF AMERICA

v.

NAKIA ADAMS, a/k/a S, a/k/a Shawn

Appellant

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On Appeal from the District Court for the

Eastern District of Pennsylvania

(D.C. No. 5:15-cr-00580-001)

District Judge: Hon. Jeffrey L. Schmehl

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Argued September 8, 2021

Before: KRAUSE, RESTREPO and BIBAS, Circuit Judges

(Opinion Filed: May 26, 2022)

Salvatore C. Adamo [ARGUED]

1866 Leithsville Road – No. 306

Hellertown, PA 18055

Counsel for Appellant

Robert A. Zauzmer

Eric A. Boden [ARGUED]

Eric B. Henson

Office of United States Attorney

615 Chestnut Street – Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION OF THE COURT

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KRAUSE, Circuit Judge.

With the passage of the Speedy Trial Act, 18 U.S.C.

§§ 3161–3174, Congress codified a defendant’s right either to

be tried within seventy days of arraignment or indictment or to

have all charges dismissed. But it also sought to ensure that

the speedy trial was a fair one, so it excluded from the running

of the so-called “speedy trial clock” certain periods of delay.

Three are at issue in this appeal where Nakia Adams was not

tried until nearly two years after his arraignment and now

contends that his conviction must be vacated on Speedy Trial

Act grounds.

Adams argues that an open-ended continuance granted

by the District Court did not meet the Act’s criteria for tolling

under § 3161(h)(7)(A), that the motions in limine filed by the

Government did not qualify for the Act’s exclusion of “delay

resulting from any pretrial motion” under § 3161(h)(1)(D), and

2

that his motion for discovery did not toll the clock under

§ 3161(h)(1)(D) from its filing through its official disposition.

Because we conclude those periods of delay were excluded, we

reject Adams’s claim that he was tried in violation of the

Speedy Trial Act. And because we also reject Adams’s second

claim—that the District Court plainly erred in failing to instruct

the jury on the “knowledge-of-status” element under Rehaif v.

United States, 139 S. Ct. 2191 (2021)—we will affirm the

District Court as to all counts of conviction.

I. Background

Following a jury trial in October 2017, Nakia Adams

was convicted on twenty counts of a superseding indictment,

including eight for felon-in-possession of a firearm under 18

U.S.C. § 922(g)(1) and twelve for making false statements to

federally licensed firearms dealers under 18 U.S.C.

§ 924(a)(1)(A). These charges arose out of a straw-purchaser

scheme, which Adams devised to illegally acquire firearms that

he then sold or traded for drugs in Newark, New Jersey. Being

himself a convicted felon, Adams was prohibited from legally

possessing firearms; instead, he recruited individuals with

clean criminal records to serve as his straw purchasers.

The scheme ground to a halt after Adams was arraigned

on his original indictment on December 16, 2015.1 Trial was

1

The original indictment included twelve counts: one

for conspiracy under 18 U.S.C. § 371, seven for making false

statements to federal firearms licensees under 18 U.S.C.

§ 924(a)(1)(A), and four for felon in possession of a firearm

3

initially scheduled for February 16, 2016, but it was

rescheduled for May 16 after Adams moved for a continuance

on February 4. The record from that point on is fraught with

what the District Court later characterized as “numerous

continuances [and] unnecessary motions,” caused by Adams’s

“obstreperous behavior.” J.A. 29. The District Court judge

handled these continuances and motions with commendable

professionalism, but they nonetheless resulted in more than a

year of delay. We focus on three sources of that delay central

to this appeal.

First is a continuance that the District Court sought to

enter on May 25. Adams filed two pro se motions on April 4

and April 25, respectively. One was to replace his defense

counsel, and the other was for unspecified discovery materials.

Those motions prompted the District Court to strike the May

16, trial date and to schedule a hearing on them for May 25. At

the hearing, however, it became apparent that the motions’

resolution would not be straightforward. Adams explained that

his discovery motion was motivated, in part, by his desire to

personally review discovery materials, so the Court directed

the parties to negotiate a stipulated protective order to

accommodate Adams’s request without compromising

sensitive cooperator information.

The Court also addressed Adams’s motion for new

counsel, explaining to him that changing attorneys several

months into the case would “delay [his] trial” because the

Court would need to find and appoint a “new attorney” and

under 18 U.S.C. § 922(g)(1). The grand jury returned a

superseding indictment on February 2, 2016.

4

give Adams time to “meet with that . . . attorney.” J.A. 133.

On more than one occasion, Adams acknowledged he

“underst[ood]” that a new appointment would “delay [] trial,”

but he made clear he wished nonetheless to substitute counsel.

Id. The hearing concluded with the Court’s statement that it

would “appoint counsel, and then schedule a future status

hearing . . . and possibly pick a trial date at that point in time.”

J.A. 146. Notably, the judge did not set a particular date for

that future hearing or for trial. He also did not cite 18 U.S.C.

§ 3161(h)(7)(A), which allows district courts to pause the

speedy trial clock by entering a continuance, or state that this

continuance would serve the “ends of justice.”

The May 25 hearing was not the last word on Adams’s

discovery motion, which is the next source of delay that

concerns us. Following the hearing, the Government and

Adams’s new counsel, who entered the case on June 1,

negotiated a stipulated protective order that outlined the

materials Adams was entitled to review personally. That order

was entered on June 21,2 but over the next few weeks, Adams’s

counsel became concerned it was potentially ambiguous.

Thus, at a subsequent hearing on July 11, he suggested that the

parties “present another order for the Court, just so it’s clear to

everyone which documents [counsel was] permitted to give

[Adams].” J.A. 152. The Court agreed and entered a clarifying

order on July 20. On August 18, the Court denied Adams’s

discovery motion on the ground that “he was (and still is)

2

The record is ambiguous on whether this protective

order was entered on June 20 or June 21. The parties agree

that the order was entered on June 21, and we have

accordingly settled on that date.

5

represented by counsel, and therefore, not entitled to file

motions pro se.” Supp. App. 3.

The final delay that looms large here resulted from two

motions in limine filed by the Government on August 17, 2016:

a Rule 404(b) motion to introduce evidence at trial concerning

Adams’s straw purchases and heroin trafficking; and a Rule

609(a) motion to introduce one of his prior felony convictions,

should Adams choose to testify. The District Court issued an

order directing Adams to respond to those motions no later

than September 28 and held argument on November 7. At the

end of argument, however, the Court opted against “making a

ruling” at that time, stating that “motions in limine[] are issues

that continue almost up until the point of trial.” J.A. 189.

At this point, trial was scheduled for November 30.

Before trial could commence, however, Adams requested to

proceed pro se, prompting the District Court to reschedule trial

for June 12, 2017, to allow Adams to move forward without

counsel. And trial did begin on that date. But again, it did not

go smoothly and was cut short due to Adams’s conflict with

his attorney. A new trial commenced several months later.

The jury returned a guilty verdict on all twenty counts

of the superseding indictment on October 17, 2017. And the

evidence supporting those convictions was substantial.

Evidence of the scheme included testimony from five straw

purchasers, who described how Adams inquired into their

criminal records, only recruited buyers without prior

convictions, and typically compensated them with drugs. They

explained how, once recruited, they bought guns at Adams’s

direction at various federally licensed firearm dealers, and

before each transaction, were required to fill out forms issued

6

by the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”). According to these witnesses, Adams directed them

to lie on the forms by attesting that they were the guns’ true

purchasers and coached them on how to respond to each

question, including one confirming that they had no prior

felony convictions. He also advised them that they would be

subject to criminal background checks for the purchases made

in Pennsylvania, which comprised the majority.

Regarding proof of the § 922(g) felon-in-possession

charges, Adams entered a so-called Old Chief stipulation,

confirming the existence of his prior felony conviction, see Old

Chief v. United States, 519 U.S. 172 (1997), and the judge

ultimately instructed the jurors on the elements of a § 922(g)

offense as they were understood at the time, including (1) “that

the defendant has been convicted of a felony,” (2) “that after

this conviction the defendant knowingly possessed a firearm,”

which merely required “the government [to] prove that the

defendant possessed the firearm in question,” and (3) that the

firearm was “in or affected interstate or foreign commerce.”

J.A. 1217–20.

On two occasions in the lead up to his conviction,

Adams argued that he had not been brought to trial within the

time required by the Speedy Trial Act. On November 16, 2016,

he moved to dismiss the superseding indictment, claiming that

his rights under the Act had been violated because his former

counsel had moved for the February 4, 2016, continuance

without his knowledge. The District Court denied that motion

because the continuance was valid, regardless of whether

Adams knew that his attorney had asked for it. In his second

motion to dismiss, Adams again alleged a Speedy Trial Act

7

violation but did not offer specific arguments in support of his

claim. That motion was likewise denied on October 17, 2017.

Upon conviction, Adams again raised this argument in

his motion for acquittal or alternatively for a new trial. The

District Court denied this motion on January 16, 2019, and said

it would not “allow Mr. Adams to use the Speedy Trial Act as

a shield for his obstreperous behavior,” citing his “numerous

continuances, unnecessary motions, and representation by

three different attorneys,” as well as the “numerous delays”

resulting from Adams “attempt[ing] to proceed pro se” after

repeatedly firing his appointed counsel. J.A. 29–30. Because

it viewed “all delays [as] directly attributable to Mr. Adams,”

the District Court concluded there had been no violation of his

right to a speedy trial, and the case proceeded to sentencing.3

Id. at 29.

At his sentencing hearing, Adams raised a different

argument: that he was entitled to a new trial on the felon-in-

possession counts in light of Rehaif v. United States, 139 S.

3

The District Court seems to have improperly

analyzed Adams’s motion as an alleged violation of his

constitutional speedy trial rights, rather than his rights under

the Speedy Trial Act. J.A. 29. As a result, the Court did not

count the days that had elapsed between Adams’s

arraignment and his second trial and did not consider how

much of that time could be excluded under the Act’s

enumerated exceptions. Instead, it applied the four-part

balancing framework outlined in Barker v. Wingo, 407 U.S.

514 (1972), which considers (1) the length of delay, (2) the

reason for the delay, (3) the defendant’s assertion of his right,

and (4) the prejudice to the defendant. J.A. 29–31.

8

Ct. 2191 (2019). The Supreme Court had held in that case

that 18 U.S.C. § 924(a)(2)’s requirement that a defendant

“knowingly violate” § 922(g)(1) demanded proof that the

felon had knowledge of the possession of a firearm, but also

of his status as a felon. Id. at 2194, 2200. It clarified, in

other words, that the mens rea for the offense requires “both

that the defendant knew he possessed a firearm and that he

knew he belonged to the relevant category of persons barred

from possessing a firearm.” Id. at 2200.

Before Rehaif, we and other Courts of Appeals had

believed this knowledge element was limited to the knowing

possession of a firearm, see United States v. Higdon, 638 F.3d

233, 239–40 (3d Cir. 2011), and the District Court’s jury

instructions reflected as much.4 Adams did not object to

those instructions at trial, but, at sentencing, he argued that

the District Court’s failure to instruct the jury on the

“knowledge-of-status” element required that his § 922(g)(1)

convictions be vacated. The District Court disagreed, entered

final judgment of conviction, and sentenced Adams to 235

months’ imprisonment, followed by three years of supervised

release. This appeal followed.

II. Jurisdiction & Standard of Review

The District Court had jurisdiction under 18 U.S.C.

§ 3231 because Adams was charged in an indictment alleging

4

The eight felon-in-possession counts in the

superseding indictment likewise alleged only that Adams

“knowingly possessed” firearms.

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violations of federal criminal law. We have appellate

jurisdiction under 28 U.S.C. § 1291.

As a general matter, we review a district court’s legal

determinations de novo, its factual findings for clear error, and

its decisions to grant continuances for abuse of discretion.

United States v. Shulick, 18 F.4th 91, 100 (3d Cir. 2021). When

a legal question was not preserved at trial, however, we review

the district court’s ruling for plain error. Greer v. United

States, 141 S. Ct. 2090, 2096 (2021).

III. Discussion

Adams raises two claims on appeal. He first asks that

we vacate his conviction in its entirety on the ground that he

was not brought to trial within the time required under the

Speedy Trial Act. In the alternative, he argues that, because

the District Court’s failure to instruct the jury on the

“knowledge-of-status” element constituted plain error under

Rehaif, he is entitled to a new trial at least on the § 922(g)(1)

counts. For the reasons set forth below, neither argument is

persuasive.

A. The Speedy Trial Act Claim

Under the Speedy Trial Act, a defendant must be

brought to trial within seventy days of the date of the

indictment or the date on which the defendant first appeared in

the court where the charges are pending, whichever is later. 18

U.S.C. § 3161(c)(1). The indictment “shall be dismissed,” if

the defendant is not tried within that time frame. 18 U.S.C.

§ 3162(a)(2). Strict as that rule is, it is tempered by enumerated

exceptions, including two that are relevant here. First, a district

10

court may grant a continuance and toll the speedy trial clock

by making a finding, on the record, that the “ends of justice”

served by granting a continuance “outweigh the best interest of

the public and the defendant in a speedy trial.” 18 U.S.C.

§ 3161(h)(7). Second, if a party files a “pretrial motion,” the

speedy trial clock is tolled for the “delay resulting from” that

motion from the time of its filing until “the conclusion of the

hearing on, or other prompt disposition of, such motion.” 18

U.S.C. § 3161(h)(1)(D).

In this case, the speedy trial clock commenced with

Adams’s arraignment on December 16, 2015 because he did

“not appear before a judicial officer prior to his original

indictment, [so] his arraignment . . . constituted his initial

appearance for Speedy Trial Act purposes.” United States v.

Willaman, 437 F.3d 354, 357 (3d Cir. 2006); see also United

States v. Reese, 917 F.3d 177, 181 (3d Cir. 2019). The parties

agree that forty-five days had elapsed on the clock as of

February 4, 2016, and Adams does not dispute the exclusion of

all days after September 28, 2016, once he filed responses to

the Government’s motions in limine. This appeal therefore

centers on the 236-day period between February 4 and

September 28.

Certain days during that period were indisputably

excluded, but if twenty-five days ran between those dates, then

those days, combined with the prior forty-five, would exceed

the seventy-day statutory cap. On the other hand, if sufficient

days were excluded by one or more of the motions filed and

continuances granted during that period, Adams’s Speedy Trial

11

Act claim must fail.5 Only three need concern us today, as the

speedy trial clock could not have expired if the District Court

properly entered an ends-of-justice continuance on May 25,

2016 or if the clock was tolled by a combination of Adams’s

April 25, 2016, discovery motion and the Government’s

August 17, 2016, motions in limine. We address each below.

1. Ends-of-Justice Continuance

The Speedy Trial Act permits a district court to pause

the speedy trial clock during “[a]ny period of delay resulting

from [the granting of] a continuance,” but only if the court “sets

forth, in the record of the case, either orally or in writing, its

reasons for finding that the ends of justice served by the

granting of [a] continuance outweigh the best interests of the

public and the defendant in a speedy trial.” 18 U.S.C.

5

There is no dispute that one day elapsed on

December 17, 2015, when no pretrial motions or

continuances were outstanding, as did another forty-four

between December 22, 2015 and February 4, 2016. In

addition to the motions and continuances that we address in

detail, the clock was tolled from December 18 through

December 21 by Adams’s pending motion to extend time to

file pretrial motions, by an open-ended continuance entered

by the District Court on February 8, 2016, and by Adams’s

motion to remove his defense counsel on April 4, 2016. The

parties dispute when the February 8 continuance expired, but

we need not resolve that question, as the number of days at

issue is immaterial. They agree that the April 4 motion to

remove his counsel tolled the clock until June 1, when the

Court resolved the issue by appointing replacement counsel.

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§ 3161(h)(7)(A) (emphasis added). The District Court sought

to enter an open-ended continuance during a hearing on May

25, 2016, in which it considered Adams’s April 4 motion for

new counsel and his April 25 discovery motion.

Adams argues that the Court could not have entered a

valid continuance without either citing the relevant statutory

provision or invoking the words “ends of justice.” This

argument fails because our precedent affords district courts

significant leeway in complying with § 3161(h)(7)(A)’s

procedural requirements.6 It is true that, if a District Court

enters a “continuance order [that] cites the relevant provision

of the [Speedy Trial] Act” or “states that it is for the ‘ends of

justice,’” it streamlines our analysis: in that circumstance, the

court need not provide factual justifications for the continuance

at the time it is entered but can instead “supplement[] the

record with further details” on why a continuance serves the

“ends of justice” at a later date. Reese, 917 F.3d at 182 (citing

United States v. Brooks, 697 F.2d 517, 521–22 (3d Cir. 1982)).

But it is also true that a district court may enter a continuance

without citing the Act or referencing the ends of justice “so

long as the court explains a valid factual basis for the

continuance on the record” and in a manner that shows the

6

The Supreme Court “has not elaborated on the

timing, procedures, or substantive standards that must be

satisfied for a district court” to enter a continuance, Reese,

917 F.3d at 182, apart from requiring factual findings to be

entered “by the time [the court] rules on the defendant’s

motion to dismiss,” Zedner v. United States, 547 U.S. 489,

507 (2006). We have therefore found it necessary to fill in

the gaps through our case law. See Reese, 917 F.3d at 182.

13

court “balanced the interests of the public and of all of the

defendants.” Id. (citing and quoting United States v. Rivera

Constr. Co., 863 F.2d 293, 297 (3d. Cir. 1988)). What a district

court cannot do is exclude time through a continuance “without

either stating the factual basis” for doing so or “using language

that invokes” the statute. Id. (citing United States v. Brenna,

878 F.2d 117, 122 (3d Cir. 1989)) (emphasis added).

During the May 25 hearing, the District Court resolved

to appoint Adams a new attorney and asked the parties to enter

a stipulated protective order, outlining which discovery

materials Adams was entitled to review. Having struck the

outstanding trial date, the Court then explained that:

I’m going to appoint counsel, and then schedule a future

status hearing, so that we can all get together and [] Mr.

Adams [] and his counsel can tell us what they’ve done

so far, what they need to do, what they want to schedule

in the future, and possibly pick a trial date at that point

in time . . . . Because there still are, as I see it, some

outstanding discovery issues.

J.A. 146.

While the District Court did not cite the statute or use

the “magic words,” statements on the record make clear that it

had a “valid factual basis for the continuance” and that it

balanced the relevant interests.7 Reese, 917 F.3d at 182. In

7

To ensure compliance and avoid putting convictions

in jeopardy, some judges in the Eastern District of

Pennsylvania have employed a form of order that excludes

14

considering Adams’s pro se motion for new counsel, the Court

found that there had been an “attorney[-]client breakdown,”

J.A. 132, and that Adams could not mount a proper defense

without new representation. It recognized that new counsel

would be involved in resolving outstanding discovery issues

and explicitly warned Adams that, if he moved forward with

his request to change attorneys, “delay[ing] [his] trial” would

be unavoidable because the Court would need to find and

appoint a “new attorney” and give Adams time to “meet with

that [] attorney.” J.A. 133. In response, Adams repeatedly

acknowledged that changing his representation would cause a

delay and that he nonetheless was requesting new counsel.

That colloquy reflects that the District Court delayed trial to

protect Adams’s Sixth Amendment right to counsel, which is a

time on the basis of ends-of-justice continuances. See, e.g.,

Order, United States v. Myers, No. 20-cr-210, ECF 85 (E.D.

Pa. Jan. 31, 2022); Order, United States v. Brown, No. 20-cr-

013, ECF 45 (E.D. Pa. Oct. 19, 2021); Order, United States v.

Salerno, No. 20-cr-320, ECF 28 (E.D. Pa. July 21, 2021);

Order, United States v. Woodley, No. 15-cr-340, ECF 12

(E.D. Pa. Oct. 7, 2015); Order, United States v. Vargas, No.

14-cr-652, ECF 71 (E.D. Pa. May 11, 2015); United States v.

O’Brien, No. 15-cr-021, ECF 42 (E.D. Pa. Mar. 25, 2015);

United States v. Broaster, No. 12-cr-533, ECF 95 (E.D. Pa.

Jan. 29, 2013); Order, United States v. Sampson, No. 09-cr-

250, ECF 15 (E.D. Pa. July 6, 2009); see also Sample Order

Granting Motion for Continuance, Federal Judicial Center

(July 27, 2021), available at

https://fjc.dcn/sites/default/files/session/2019/Order%20Grant

ing%20Motion%20for%20Continuance_0.pdf. Doing so

avoids unnecessary ambiguity and needless litigation.

15

particularly weighty justification for a continuance,8 see

Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (“the

assistance of counsel” in criminal trials has long been

recognized as “one of the safeguards . . . necessary to insure

[sic] fundamental human rights of life and liberty” (quoting

Johnson v. Zerbst, 304 U.S. 458, 462 (1938))), and that, after

balancing that right against Adams’s (and the public’s) interest

in a speedy trial, the Court concluded that delaying trial was

warranted under those circumstances.

This record is sufficient to meet the requirements of 18

U.S.C. § 3161(h)(7)(A) and therefore to toll the speedy trial

clock from May 25 to November 30, i.e., the new date that the

District Court set for trial. See Reese, 917 F.3d at 182; Rivera

Constr. Co., 863 F.2d at 297.9 And, with this continuance in

8

Protecting defendants’ Sixth Amendment right to

counsel is an especially compelling reason to delay trial, but

similarly weighty interests may justify lengthy continuances

in future cases.

9

Though not disputed by the parties, we note that the

District Court’s decision not to specify an end date for this

continuance poses no issue under our precedents. Open-ended

continuances that otherwise comply with § 3161(h)(7)(A) are

valid if they are not “unreasonably long” in light of the

“particular circumstances of th[e] case,” including which party

bears primary responsibility for delaying trial. United States v.

Lattany, 982 F.2d 866, 881–82 (3d Cir. 1992). Here, the

continuance expired on November 30, 2016, that is, the new

trial date set by the Court. This roughly six-month delay was

not “unreasonably long,” given the nature of the pro se motions

16

effect, twenty-five non-excludable days could not have elapsed

between February 4, 2016 and September 28, 2016. This

provides one basis to deny Adams’s Speedy Trial Act claim,

but there is another, equally valid ground on which to do so.

We therefore turn to our alternative holding.

2. Pretrial Motions

Adams’s Speedy Trial Act claim must be denied for a

second, independent reason: the days excluded as a result of

his April 25, 2016, pro se discovery motion in combination

with the Government’s August 17, 2016, motions in limine.

See United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 440

(3d Cir. 1982) (explaining that “an alternate holding has the

same force as a single holding; it is binding precedent”).

Section 3161(h)(1)(D) of the Speedy Trial Act provides

that the clock is tolled from the filing of “any pretrial motion”

until the “conclusion of the hearing on, or other prompt

disposition of, [that] motion.” This subsection excludes time

in two circumstances: (1) “when a pretrial motion requires a

hearing” and (2) when the motion “result[s] in a ‘prompt

disposition.’” Henderson v. United States, 476 U.S. 321, 329

(1986). The concept of “prompt disposition” in turn is

for discovery and new counsel and the fact that Adams, in

filing the motions, was largely responsible for postponing trial.

Id. at 882 (holding that an open-ended continuance of over a

year was not unreasonable because it was made necessary by

considerable turnover in the defendant’s legal team, for which

the defendant bore significant responsibility).

17

bounded by § 3161(h)(1)(H),10 “which permits an exclusion of

[no more than] 30 days from the time a motion is actually

‘under advisement’ by the court.” Id.

What this means in practice is that, if the district court

chooses to resolve the motion without holding a hearing, the

clock starts ticking a maximum of thirty days after it has

“receive[d] all the papers it reasonably expects” from the

parties. Id. Alternatively, if the court determines a hearing is

warranted to allow for additional evidence or argument before

taking a motion under advisement, the Speedy Trial Act

“exclude[s] all time between the filing of and the hearing on a

motion whether that hearing was prompt or not.” Id. at 326;

see also Lattany, 982 F.2d at 874 (“Subsection (h)(1)[(D)] does

not impose a reasonableness limitation on delay due to pretrial

motions.”). In addition, because it would be illogical “to

exclude . . . all the time prior to the hearing . . . but not the time

during which the court remains unable to rule because it is

awaiting the submission by counsel of additional materials,”

the clock remains tolled up to thirty days beyond the court’s

receipt of any post-hearing submissions that are needed to

“proper[ly] dispos[e] of the motion.” Henderson, 476 U.S. at

331–32 (allowing for the exclusion of thirty days “for the

District Court to take [a motion] under advisement” once the

10

Henderson preceded amendments to the Speedy

Trial Act in 2008, so its statutory references correspond to an

earlier version of the Act. The provision excluding time for

the “delay resulting from any pretrial motion” was previously

codified at § 3161(h)(1)(F), while the subsection that

excludes up to thirty days while a motion is “under

advisement” was previously codified at § 3161(h)(1)(J).

18

Court received post-hearing supplementary filings); accord

United States v. Graves, 722 F.3d 544, 548 n.6 (3d. Cir. 2013).

Here, Adams claims that the District Court resolved his

discovery motion on June 21, when it entered a protective order

to facilitate his personal review of discovery materials, rather

than on August 18, when it entered an order denying the

motion. According to Adams, that protective order fully

satisfied his request to review discovery materials himself and

left nothing for the District Court to resolve.

The record shows otherwise. Adams’s pro se discovery

motion related not only to his desire for personal access to

discovery, but also to his dissatisfaction with counsel and his

request for “evidence not otherwise known to him” that could

“disprov[e] his guilt, reduc[e] his punishment, or [be used to]

impeach[] witnesses,” i.e., Brady material. Pro Se Motion for

Discovery, United States v. Adams, No. 15-cr-580, ECF 26

(E.D. Pa. Apr. 25, 2016). True, by June 21, the District Court

had entered a stipulated protective order concerning the

discovery materials. But that did not resolve the personal

access issue, let alone Adams’s request for Brady material.

Instead, due to new counsel’s concerns about ambiguities in

the protective order, the District Court was required to provide

further clarification in a second order entered on July 20.

It was only at that point, with Adams’s demonstrated

willingness to proceed with newly appointed counsel and to

forego pro se status, and with the terms of his personal access

to discovery resolved to all parties’ satisfaction, that the

District Court had the information it needed to take the rest of

the motion “under advisement.” And it did so promptly, ruling

on August 18 that “[Adams] was (and still is) represented by

19

counsel, and therefore, not entitled to file motions pro se.”

Supp. App. 3. As such, all time between the motion’s filing

date and the August 18 ruling was excluded from the speedy

trial clock. See Henderson, 476 U.S. at 331.

The other motions with which Adams takes issue are the

Government’s August 17, 2016, motions in limine, which he

contends do not qualify as true “pretrial motions” within the

meaning of § 3161(h)(1)(D). Our sister circuits are split

concerning the speedy trial implications of motions in limine.

The D.C. Circuit in United States v. Van Smith observed that

motions in limine typically pertain to the admissibility of

evidence at trial, so treating them as “pretrial motions,” i.e.,

excluding time from whenever the motion in limine is filed

through its resolution, could “circumvent the [] Act” altogether

because the Government could theoretically file such motions

“at an early stage” simply to stop the clock indefinitely. 530

F.3d 967, 971 (D.C. Cir. 2008). To avoid that risk and because

motions in limine often do not “require the attention of the []

court” until at or immediately before trial, the court concluded

they were better construed as notices of the Government’s

intent to submit evidence to the jury that do not toll the clock

at all. Id.11

11

See also United States v. Taplet, 776 F.3d 875, 878

(D.C. Cir. 2015) (“Not all motions filed pretrial count as a

‘pretrial motion’ under the [Speedy Trial Act],” including

“government evidentiary filings that invoke Federal Rules of

Evidence 404(b) and 609[.]”); United States v. Harris, 491

F.3d 440, 444 (D.C. Cir. 2007) (holding that the

government’s evidentiary notice “was not a motion” within

the meaning of § 3161(h)(1)(D), but the defendant’s response

20

By contrast, several circuits have held that, because this

tolling provision applies to “any pretrial motion,”

§ 3161(h)(1)(D) (emphasis added), it necessarily covers

evidentiary motions, regardless of whether they are held in

abeyance until trial. See, e.g., United States v. Franklin, 148

F.3d 451, 456 (5th Cir. 1998) (holding that the “government’s

motions seeking evidentiary rulings” tolled the speedy trial

clock, even though their resolution was “deferred by the court

until trial” and they did not “consume the court’s attention” in

the intervening time); United States v. Bloate, 655 F.3d 750,

753 (8th Cir. 2011) (holding that the speedy trial clock was

tolled by the government’s motions in limine even though the

district court disposed of both motions on the first day of

trial).12

The First Circuit has taken a more nuanced approach,

holding that whether motions in limine toll the clock depends

on how the district court approaches them in a given case. In

that circuit, a district court cannot “put off consideration of a[n]

[evidentiary] motion and exclude the time during which the

motion lies dormant,” but it “is entitled to exclude at least the

to that motion tolled the clock because it required the trial

court’s attention).

12

See also United States v. Johnson, 32 F.3d 304, 306

(7th Cir. 1994) (holding that “the seventeen days the court

expended in deciding the government’s motion in limine []

were excludable”); United States v. Riley, 991 F.2d 120, 123

(4th Cir.1993) (excluding all time from the filing of a pretrial

evidentiary motion until its disposition, even though the

hearing on that motion was deferred until after trial).

21

period of time during which it considers [whether] to treat the

filing” as either a pretrial motion, which would fall under

§ 3161(h)(1)(D), or an evidentiary notice, which would not.

United States v. Rojo-Alvarez, 944 F.2d 959, 966 (1st Cir.

1991); see also United States v. Sposito, 106 F.3d 1042, 1045

(1st Cir. 1997) (holding that the Government’s motion in

limine tolled the speedy trial clock from its filing through its

official disposition at trial because “there was no suggestion

that the motion [] had been reserved until trial” or that it had

been “relegated to dormant status for [Speedy Trial Act]

purposes”). But importantly, absent a clear indication that the

motion has been “reserved until trial,” the motion will be

treated as a “pretrial motion” under the Act, excluding time

consistent with § 3161(h)(1)(D). Sposito, 106 F.3d at 1045.

Similarly, the Second and Ninth Circuits, respectively,

have declined to exclude time where “a trial judge postpon[es]

an evidentiary hearing” on the defendant’s motion “until the

conclusion of the case in chief,” United States v. Gambino, 59

F.3d 353, 359 (2d Cir. 1995), or “put[s] off [a motion in

limine’s] hearing . . . until after trial,” United States v.

Springer, 51 F.3d 861, 865 (9th Cir. 1995).13 Under this

13

While the Ninth Circuit has limited this tolling

exception to cases in which a “motion [in limine] is decided

after trial” and not when it is decided “after the jury ha[s]

been impaneled but before the presentation of evidence,” see

United States v. George, 85 F.3d 1433, 1436 (9th Cir. 1996),

we do not agree with that distinction. The Speedy Trial Act

requires trial to “commence within seventy days” of the filing

of an indictment or the defendant’s first appearance in court.

18 U.S.C. § 3161(c)(1). Thus, the speedy trial clock stops

22

approach, if the trial judge simply “table[s]” an evidentiary

motion for resolution at or after trial, time is not automatically

excluded from the speedy trial clock, which should only “be

tolled when the expenditure of judicial resources to decide the

motion would interfere with the case expeditiously proceeding

to trial.” Gambino, 59 F.3d at 359.

In our circuit, the treatment of motions in limine has

remained an open question until today.14 See United States v.

Williams, 917 F.3d 195, 200 n.3 (3d Cir. 2019) (declining to

reach the disputed issue of “whether the Motion In Limine

[was] a ‘pretrial motion’ that stop[ped] the seventy-day clock

pursuant to 18 U.S.C. § 3161(h)(1)(D)”).

running when the defendant’s trial begins, and a district

court’s decision to table a motion in limine for resolution after

trial has the same speedy trial implications as reserving

judgment until the start of trial.

14

In Lattany, we held that “[t]he district court properly

excluded [] time” under the Speedy Trial Act for a variety of

pretrial motions, including the Government’s motion in

limine, 982 F.2d at 872–74, but the specific question of if and

when motions in limine should be construed as evidentiary

notices versus “pretrial motions” under § 3161(h)(1)(D) was

not squarely presented. See Abdelfattah v. U.S. Dep’t of

Homeland Sec., 488 F.3d 178, 185 (3d Cir. 2007) (explaining

that a statement of law in a prior case was “dicta” because the

earlier court had “not [been] presented with the [relevant]

question,” such that the statement “could have been deleted

without seriously impairing the analytical foundations of the

holding” (internal quotation marks omitted)).

23

We now conclude, drawing on the approaches taken in

the First, Second, and Ninth Circuits, that it is necessary to

distinguish between motions in limine that the district court

actively seeks to resolve pretrial and those it decides expressly,

or by routine practice, to hold until trial. We do so primarily

because this distinction comports with the plain language of

the Act, which excludes time only for the “delay resulting from

any pretrial motion.” 18 U.S.C. § 3161(h)(1)(D). As that

phrasing indicates, the purpose of this subsection is “to exclude

all time that is consumed in placing the trial court in a position

to dispose of a motion.” Henderson, 476 U.S. at 331. Many

motions in limine do require the court’s disposition pretrial,

e.g., to confirm the admissibility or inadmissibility of evidence

bearing on witness preparation or trial strategy. But where a

court has no intention of resolving a motion in limine before

trial, that motion cannot be said to “consum[e]” the court’s

time pretrial, id., or to “result[]” in any pretrial delay,

§ 3161(h)(1)(D). Put differently, although § 3161(h)(1)(D)

indeed covers “any” pretrial motion, its text and context make

clear that a “pretrial motion” for these purposes is not simply a

motion that is filed chronologically before trial; it is a motion

that requires the court’s time to resolve pretrial and thereby

delays the commencement of trial by a commensurate number

of excludable days. See § 3161(h)(1)(D); see also Henderson,

476 U.S. at 330–32.

At the same time, we share our sister circuits’ concern

that “[t]here is no reliable way . . . to divine the intent of the

district court with respect to a particular motion or its docket

in general,” and we will not rely on mere speculation to

“determine when a district court’s decision to put off

consideration of a motion” means the motion has been tabled

until trial. Sposito, 106 F.3d at 1045. We therefore hold that a

24

motion in limine is treated as would be any “pretrial motion”

under § 3161(h)(1)(D) except when a district court clearly

indicates that it is reserving judgment until trial, whether by

stating as much or by following a regular practice of

postponing decisions on motions in limine for trial. In sum, as

a general matter, “motions in limine are ‘pretrial motions’ for

the purpose of [§] 3161(h)(1)[(D)],” Sposito, 106 F.3d at 1044,

and, unless the district court tables their resolution until trial,

they toll the speedy trial clock accordingly. See Gambino, 59

F.3d at 359; Rojo-Alvarez, 944 F.2d at 966.

Here, the Government filed two motions in limine: its

Rule 404(b) motion to admit evidence concerning Adams’s

distribution of heroin, his straw purchases, and his prior

conviction for drug trafficking; and its Rule 609(a) motion for

permission to impeach Adams with his prior convictions

should he testify at trial. Initially, the District Court actively

considered those motions, ordering Adams to respond to the

Government’s “outstanding motions in limine no later than

September 28, 2016,” and scheduling a hearing for November

7, 2016. So, up to that point, no days ran on the speedy trial

clock. But at the November 7 hearing, the Court announced it

was reserving judgment because “motions in limine are issues

that continue almost up until the point of trial.” J.A. 189. Thus,

any pretrial delay after November 7 was not “resulting from”

those motions, § 3161(h)(1)(D), and could not be excluded

from the speedy trial clock on that basis.

At issue on appeal, however, are only the days between

February 4 and September 28, and for the reasons we have

explained, the combination of Adams’s motion for discovery

and the Government’s motions in limine prevents Adams from

accumulating twenty-five non-excludable days during that

25

period. Accordingly, Adams cannot establish a violation of his

rights under the Speedy Trial Act, and on this independent and

alternate basis, we will affirm the District Court’s denial of that

claim. See Zelinsky, 689 F.2d at 440.

B. The Rehaif Claim

In the event all counts are not dismissed on Speedy Trial

Act grounds, Adams urges us to vacate at least his felon-in-

possession convictions based on the Court’s failure to instruct

the jury consistent with Rehaif, 139 S. Ct. 2191 (2019).

Because he did not object to the omission of “knowledge of

status” as an element at trial, we review for plain error.15

Adams must meet “three threshold requirements”: (1) there

was an error; (2) that error was plain; and (3) it affected his

“substantial rights.” Greer, 141 S. Ct. at 2096 (quoting

15

Adams’s related argument that the omission of the

“knowledge-of-status” element from the indictment and jury

instructions was structural error, requiring automatic reversal,

is foreclosed by our precedent and that of the Supreme Court,

which do not count Rehaif errors among the “highly

exceptional” constitutional errors considered structural.

Greer v. United States, 141 S. Ct. 2090, 2099–100 (2021)

(failure to charge “knowledge of one’s felon status” or to

instruct the jury on that element does not require automatic

vacatur of a conviction because those errors do not “affect the

entire framework within which the proceeding occurs.”);

United States v. Boyd, 999 F.3d 171, 178–79 (3d Cir. 2021)

(“[F]ailing to include [the knowledge-of-status] element in

the jury instruction was not a structural error that requires

automatic reversal.”).

26

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05

(2018)). And even then, we may exercise our discretion to

grant relief only if “the error had a serious effect on the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 2096–97 (internal quotation marks omitted); see also

United States v. Olano, 507 U.S. 725, 734–36 (1993).

The parties have appropriately focused their arguments

on the third prong: whether the Rehaif error in the District

Court’s jury instructions affected Adams’s “substantial

rights.”16 As the Supreme Court explained in Greer, the

relevant question is whether “there is a ‘reasonable probability’

that [Adams] would have been acquitted” had “the District

Court . . . correctly instructed the jury on the mens rea element

of [his] felon-in-possession offense[s].” Greer, 141 S. Ct. at

2097 (quoting United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004)). As to that question, the Court cautioned that

defendants face “an uphill climb” because “[i]f a person is a

felon, he ordinarily knows he is a felon.” Id. at 2097.

Greer, in effect, created a presumption that the

“knowledge-of-status” element is satisfied whenever a

§ 922(g)(1) defendant is, in fact, a felon. To overcome that

presumption, the defendant must make a “sufficient argument

. . . on appeal that he would have presented evidence at trial

that he did not in fact know he was a felon,” and the appellate

16

In this case, the first two prongs are easily satisfied.

The District Court’s failure to instruct the jury on § 922(g)’s

“knowledge-of-status” element was erroneous, and that error

was plain after Rehaif. See Johnson v. United States, 520

U.S. 461, 468 (1997) (“[I]t is enough that an error be ‘plain’

at the time of appellate consideration.”).

27

court “must [then] determine whether the defendant has carried

the burden of showing a ‘reasonable probability’ that the

outcome of the district court proceeding would have been

different” if the jury had been properly instructed after hearing

that evidence. Id. at 2100. In making that determination, the

appellate court is not bound to consider only what the

government offered in evidence at the trial but can examine

“the entire record,” including the defendant’s pre-sentence

report. Id. at 2097–99.

In light of Greer, Adams cannot establish plain error.

The presumption of knowledge applies to Adams because, at

the time he organized his straw-purchaser scheme, he had been

convicted of four felonies in three separate prosecutions, and,

at trial, he entered an Old Chief stipulation, acknowledging

those prior convictions. See id. at 2098. On the trial record

before us, he cannot overcome that presumption.

Adams’s primary argument is that he is akin to the

hypothetical defendant in Rehaif who might not know he is a

felon because he was convicted of an offense “punishable by

imprisonment for a term exceeding one year” but “sentenced

only to probation.” 139 S. Ct. at 2198 (internal quotation

marks and alterations omitted). Because he never served more

than 364 days in custody for any of his prior convictions, he

contends that he similarly lacked “knowledge of status.”

Adams, however, was not sentenced to probation; rather, he

was charged and convicted on, not one, but four felonies and

was sentenced to nearly a year in prison for one of them. With

that history, it strains credulity that Adams did not know he

was a felon. In any event, the Supreme Court’s far-flung

hypothetical in Rehaif is not enough, without more, to

28

surmount the “uphill climb” necessary to overturn his felon-in-

possession convictions. Greer, 141 S. Ct. at 2097.

Unfortunately for Adams, what “more” there is only

cuts the other way. The trial record makes clear that Adams

devised his straw-purchaser scheme precisely because he knew

he was a felon who could not lawfully possess firearms. And

straw purchasers described how he vetted them for their clean

criminal records, coached them on how to answer each

question on the ATF forms (including one regarding prior

felony convictions), and explained that they would be subject

to criminal background checks. See, e.g., J.A. 418, 517, 613,

653–54, 725, 876. In short, while the Supreme Court

acknowledged that “there may be cases in which a defendant

who is a felon can make an adequate showing on appeal . . .

that he did not in fact know he was a felon when he possessed

firearms,” Greer, 141 S. Ct. at 2097, this is not such a case.

Because Adams has failed to show there is a

“‘reasonable probability’ that he would have been acquitted” if

the jury had been properly instructed, id, his Rehaif claim fails

on plain error review.

IV. Conclusion

For the foregoing reasons, we will affirm the District

Court’s judgment entering conviction on all twenty counts of

the superseding indictment.

29