Petition for Writ of Certiorari — Tommie Doward Weathers, Jr., Petitioner v. United States

NO. _______

__________

In The

Supreme Court of the United States

__________

TOMMIE DOWARD WEATHERS, JR.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

________________________________________________

APPENDIX

________________________________________________

Louis H. Lang

CALLISON, TIGHE & ROBINSON, LLC

1812 Lincoln Street, Suite 200

P. O. Box 1390

Columbia, SC 29202

803-404-6900

louislang@callisontighe.com

Counsel of Record for Petitioner

TABLE OF CONTENTS

Page

Final Order of the United States Court of Appeals for the

Fourth Circuit, filed March 13, 2023 .......................................................................... A1

Judgment of the United States Court of Appeals for the

Fourth Circuit, filed March 13, 2023 .......................................................................... A2

Opinion of the United States District Court for the District

of South Carolina, Charleston Division, filed January 31, 2023 ............................... A3

Order on Rehearing of the United States Court of Appeals

for the Fourth Circuit, filed May 23, 2023 ................................................................ A14

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

UNITED STATES OF AMERICA,

)

)

vs.

)

)

TOMMIE DOWARD WEATHERS, JR.,

)

)

Defendant.

)

_______________________________________)

No. 2:22-cr-00192-DCN

ORDER

This matter is before the court on defendant Tommie Doward Weathers, Jr.

Weathers

for release from custody pursuant to the Speedy Trial Act, 18

U.S.C. § 3164 et seq. ECF Nos. 55, 63. For the reasons set forth below, the court denies

the motion.

I. BACKGROUND

On March 8, 2022, a federal grand jury charged Weathers in a three-count

indictment. Count One charged Weathers with knowingly possessing a firearm and

ammunition after a previous conviction for a crime punishably by imprisonment for more

than one year in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). Count Two

charged Weathers with possession with intent to distribute a quantity of fentanyl and

both Schedule II controlled

substances in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count Three charged

Weathers with knowingly using and carrying firearms during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Weathers made his initial

appearance before Magistrate Judge Molly H. Cherry on March 21, 2022, when he

entered a plea of not guilty. ECF No. 13. During the proceedings, the government

moved for detention, and Weathers waived his detention hearing without prejudice. Id.

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On October 24, 2022, Weathers filed a pro se motion for pretrial release pursuant

to 18 U.S.C. § 3164. ECF No. 55. On November 21, 2022, Weathers, through counsel,

supplemented his motion. ECF No. 63. The United States of America (the

on November 29, 2022, ECF No. 66, and

Weathers replied in support of his motion on December 5, 2022, ECF No. 68. The court

held a hearing on the motion on December 20, 2022. ECF No. 71. During the hearing,

the court requested supplemental briefing on the timeline of excludable and nonexcludable days, and on December 29, 2022, Weathers filed a supplement to his motion.

ECF No. 72. On January 29, 2023, Weathers filed a second supplemental brief. ECF No.

73. As such, the motion has been fully briefed and is now ripe for review.

II. DISCUSSION

Weathers argues that he is entitled to release from pretrial detention pursuant to

the Speedy Trial Act, 18 U.S.C. § 3164. Weathers argues that he is entitled to immediate

release and does not argue that the court should dismiss the indictment; therefore, § 3164

exclusively governs. See United States v. Adams, 2022 WL 6751435, at *2 n.1 (N.D.

Ohio Oct. 11, 2022) (determining that § 3164 applied where the defendant disclaimed an

intent to move for dismissal for a violation of the seventy-day speedy trial limit found in

§ 3161(c)(1)). The Speedy Trial Act provides, in relevant part, that the trial of a

. . . . shall

commence not later than ninety days following the beginning of such continuous

detenti

§ 3164(a)(1), (b).

section

e ninety-day period. 18 U.S.C. § 3164(b). Such

excludable periods in § 3164(h) include delay resulting from the grant of a continuance

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outweigh the best interest of the public and the defendant in a speedy trial, delay

resulting from the filing of any pretrial motion, and delay attributable to when such

. 18 U.S.C. §§ 3161(h)(1)(D), (H),

(7)(A). If the defendant is not brought to trial within ninety non-excludable days through

no fault of his own, a court sha

...

and release the detained defendant from custody until the time when his trial commences.

18 U.S.C. § 3164(c).

Weathers argues that he is entitled to release from custody because more than

ninety non-excludable days have passed since he made his initial appearance in this case.

To determine the number of non-excludable days that have elapsed, the court finds that

an accounting of the relevant dates in this case is instructive. The timeline, as agreed

upon by the parties, proceeds as follows:

Date

Event

March 21, 2022

Weathers makes his initial appearance before Magistrate

Judge Cherry. ECF No. 13.

57 non-excludable days elapse

May 17, 2022

Weathers files a motion to appoint new counsel, ECF

No. 28, and the clock stops, 18 U.S.C.

§ 3161(h)(1)(D).

three

excludable days. 18 U.S.C. § 3161(h)(1)(H).

May 20, 2022

motion to appoint counsel,

and the clock resumes

32 non-excludable days elapse (total: 89 days)

June 21, 2022

Weathers files a motion for an order permitting him to

use a laptop to review discovery at his detention

center, ECF No. 33, and the clock stops, 18 U.S.C.

§ 3161(h)(1)(D).

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one

excludable day. 18 U.S.C. § 3161(h)(1)(H).

June 22, 2022

and the clock resumes

6 non-excludable days elapse (total: 95 days)

June 28, 2022

Weathers files a second motion to appoint new

counsel, ECF No. 35, and the clock stops, 18 U.S.C.

§ 3161(h)(1)(D).

7

excludable days. 18 U.S.C. § 3161(h)(1)(H).

July 5, 2022

second motion to appoint

counsel, and the clock resumes

49 non-excludable days elapse (total: 144 days)

August 23, 2022

Weathers files a motion to suppress, ECF No. 43, and

the clock stops.

Additionally, the court grants an ends-of-justice

continuance, ECF No. 42, and the order remains in

effect, 18 U.S.C. § 3161(h)(7)(A).

According to Weathers, the timeline suggests that the deadline to commence trial

had elapsed even before Weathers filed his second motion to appoint new counsel, as

ninety-five non-excludable days had passed by June 28, 2022. Weathers further argues

that even if the court considers the time between when he filed his second motion to

appoint new counsel and when the court granted an ends-of-justice continuance, the

number of non-excludable days unquestionably exceeded the ninety-day limit, for a total

of 144 non-excludable days.

The government does not dispute this timeline of relevant events. Rather, the

government focuses on the provision in § 3164(c) which states that the failure to

§ 3164(c). Relying on that provision, the government argues that Weathers is at fault

because his

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case resolution. ECF No. 66 at 3. For example, the government argues that following

the appointment of new counsel,

new attorneys needed time to review

discovery and familiarize themselves with the case. The government also had to meet

Id. Accordingly, the government suggests that the

the ninety-day period was

attributable to the fault of Weathers. Id. at 3.

In reply, Weathers argues that § 3161(h) already provides a recognized list of

delays that may be excluded from the calculation of the ninety-day period; therefore,

recognizing additional exclusions to the period based on when the defendant is at fault

would essentially render the § 3161(h) exclusions meaningless. As a preliminary matter,

does not accord with the law. As the Tenth Circuit has explained, a

defendant seeking release under § 3164(c) must show both that the 90-day clock has run

and that the delay was through no fault of the accused or his counsel.

Derman

United States v.

(emphasis added). Thus, the

addition to showing that more than ninety non-excludable days have elapsed.

Having established that Weathers must independently satisfy §

in addition to reaching the ninety non-excludable days, the court turns to

and Weathers are partially at fault. Nevertheless, because at least a portion of the delay is

attributable to Weathers, the court finds that he cannot meet the requirement that the

.

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First, the court notes that the government shoulders some of the blame here. In

n that

Derman, the Tenth Circuit affirmed

ninety-day clock had not run. In calculating the number of non-excludable days that had

elapsed, the court recognized that among other delays, the district court had granted a

continuance to give counsel for two new codefendants adequate time to prepare for trial.

Id. at 505. The court noted that under §§ 3161(h)(7)(B)(ii) and (iv), courts may consider

considered in deciding whether to grant an ends-of-

Id. Such

allowances are sensible and reflect the very arguments that the government presents in

opposition to the instant motion: both the government and new defense counsel should be

given time to become familiar with a case before proceeding to trial. See also United

States v. Tomkins, 2011 WL 4840949, at *12 (N.D. Ill. Oct. 12, 2011) (explaining that a

o . . . get

up to speed[,] . . . is an appropriate basis for the [] judge to have excluded time under the

ends of justice exception (emphasis added)).

If, however, the government believed it would have encountered issues with its

ability to prepare for trial following the appointment of new counsel, it could have moved

for a continuance. The government did not do so.1 Thus, given that § 3161(h)(7)

provides methods to stay a case to allow for adequate preparation time, the government is

1

And the government may not now argue that the time following the appointment

of new counsel should warrant a continuance. The decision to grant an ends-of-justice

United States v. Hill, 197 F.3d 436, 441

(10

must occur contemporaneously with the granting of the continuance because Congress

intended that the decision to grant an ends-of-justice continuance be prospective, not

Id. (cleaned up).

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at least partially at fault for not requesting a continuance at the appropriate time. Had the

government timely moved for a continuance, that time would have been considered a

period of excusable days. See 18 U.S.C. § 3161(h)(1)(7)(A).

Of course, even if the government is partially liable, Weathers could still be

considered

for presenting the motion to relieve counsel in the first place.

Derman, for instance, does not answer the question of whether a defendant may be

faulted for a delay because in that case, the Tenth Circuit determined that the period for

the continuance was properly excluded and ultimately did not reach the issue of fault on

the part of the defendant. Derman,

06. At the hearing, the parties

mutually agreed that there is scant caselaw concerning when a failure to commence trial

is through the fault of the accused or his counsel.

The court has similarly found a dearth of recent cases that have defined the term

,

motion to appoint new counsel constitutes the same. But guidance on the matter is not

entirely lacking. Of note, one district court in this circuit has explained that the term

nexus between the delay in

commencing trial and the actions of the defendants and their counsel

Howard, 440 F. Supp. 1106, 1109 (D. Md. 1977),

United States v.

, 590 F.2d 564 (4th Cir. 1979); see

also United States v. Cafaro, 1988 WL 138180, at *14 (S.D.N.Y. Dec. 14, 1988) (citing

Howard with favor)

Howard, 440 F. Supp. at 1108 09 (citing United

States v. Martinez, 538 F.2d 921 (2d Cir. 1976)).

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Applying the definition established by the court in Howard, the court finds that

causing the delay by filing the motions to

relieve counsel. It is unreasonable for Weathers to claim that a new attorney assigned to

his case would have been ready to proceed to trial almost immediately. For example, if

Weathers filed a motion to appoint new counsel on the eighty-ninth day following his

initial appearance, it would bely reason to hold that his new attorney must be ready to

proceed with trial on the very next day after the court grants the motion. To find

otherwise would also mean that a defendant could simply file renewed motions to appoint

new counsel as a dilatory tactic until the ninety-day window for trial had elapsed.

Moreover, the court agrees that government needs additional time to work with new

counsel.

In his motion, Weathers contends that there is no rigid requirement that defense

counsel must confer with the government prior to trial, suggesting that he is not to blame

for the decision not to proceed to trial following the appointment of new counsel. But

-preparation process, and the

process was invariably delayed upon the filing of not one but two motions for new

counsel during the relevant period.2 Additionally, Weathers ar

caused by the filing of his

the enumerated delays found in § 3161(h). ECF No. 73 at 2. Not so. The

excluded days account for the time that the court spent reviewing his motions, not on the

2

This does not include a third motion to appoint counsel that Weathers filed on

October 11, 2022. ECF No. 51. Since that motion was filed after the court granted the

ends-of-justice continuation, it is not relevant to the issue presented in this order.

Weathers also filed a fourth motion on November 28, 2022, ECF No. 65, but he later

withdrew the motion at a status conference.

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delay caused by the motions themselves. And even if Weathers filed his motions with the

3164(c) because the

motions were the causal nexus for the delay in reaching trial. As the court in Howard

Howard

need not be

condemnable for the court to find that he caused the delay. The court concludes that the

delay was caused by Weathers s

of the statute.

Having determined that Weathers was at least partially at fault for the trial delay,

the court turns to deciding whether the Speedy Trial Act was implicated after more than

ninety days elapsed. Some courts choose to analyze whether delays caused by the

accused or his counsel are excludable from the calculation of time, much like they do for

the list of excludable periods found in § 3161(h). See Tomkins, 2011 WL 4840949, at *8

§ 3164 (1) period of delay excluded by § 3161(h) . . . , and (2) time attributed to the

fault

But other cases suggest that there is no requirement

that the court must carve out a defined period caused by the delay. In Howard, the court

did not define the precise amount of time that was attributable to the defendant; it simply

noted that the failure to commence trial within ninety days was not without the fault of

the accused and his counsel. Howard, 440 F. Supp. at 1109. Indeed, the language of the

statute broadly states that a failure to commence trial in a timely manner shall result in a

review of the conditions of release only

3164(c).

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Weathers appears to urge the court to adopt the Tomkins approach if it were to

find that Weathers contributed to the delay. See ECF No. 73 at 1

nor his counsel are at fault for any of those 144 days . . .

he court finds the

approach adopted in Howard to be more instructive, given that it is the ruling of a sister

court, and

Howard,

590 F.2d at 568 69. Under that approach, there is no need to calculate which days are

attributable to Weathers and which are not; it only matters that the court cannot say that

the delay in this case was through no fault of Weathers. Alternatively, even if the court

were to adopt the Tomkins approach and evaluate how much of the delay is attributable

to Weathers, the court would still find that he cannot show that ninety non-exc

days passed. Here, Weathers filed his first motion to appoint counsel prior to the

expiration of the ninety-day statutory period, and thirty-two non-excludable days passed

before the clock was stopped. The court finds that the delay caused by the appointment

of new counsel encompassed at least those thirty-two days, if not more. Similarly, for the

reasons discussed before, the forty-nine days that elapsed after Weathers filed his second

motion to appoint counsel are attributable to that motion. Accordingly, the court finds

that Weathers is not entitled to the relief he seeks.

III. CONCLUSION

For the reasons set forth above, the court DENIES the motion for release from

custody.

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AND IT IS SO ORDERED.

DAVID C. NORTON

UNITED STATES DISTRICT JUDGE

January 31, 2023

Charleston, South Carolina

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