Petition for Writ of Certiorari — Robert Andrew Wolter, Petitioner v. United States

No. ____________

IN THE

Supreme Court of the United States

_______________

ROBERT ANDREW WOLTER,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

JASON J. TUPMAN

Federal Public Defender

DAVID S. BARARI

Assistant Federal Public Defender,

Counsel of Record

Office of the Federal Public Defender

Districts of South Dakota and North Dakota

655 Omaha Street, Suite 100

Rapid City, SD 57701

David_Barari@fd.org

605-343-5110

Attorneys for Petitioner

QUESTION PRESENTED

The Speedy Trial Act provides that a criminal defendant’s

trial shall commence within 70 days from the filing of the

information or indictment or from the date the defendant

has appeared before a judicial officer of the court in which

the charge is pending. 18 U.S.C. § 3161(c)(1).

Certain periods of delay are excluded from the 70-day

clock. 18 U.S.C. § 3161(h). On the one hand, “delay

resulting from any proceeding, including any

examinations, to determine the mental competency or

physical capacity of the defendant” is excluded from the

70-day clock. 18 U.S.C. § 3161(h)(1)(A). On the other

hand, the lapse of more than 10 days of transportation

time between the date of an order for transportation to

and from a place of examination or hospitalization and

the defendant’s arrival at the destination are presumed to

be unreasonable. 18 U.S.C. § 3161(h)(1)(F).

The question presented is: when a criminal defendant is

transported to another facility to undergo a competency

evaluation, does the time between the date of the order

for transportation and the defendant’s arrival at the place

of examination (less 10 days) count toward the 70-day

speedy trial clock under 18 U.S.C. § 3161(h)(1)(F) or is

this time excluded from the running of the speedy trial

clock as “delay resulting from any proceeding, including

any examinations, to determine the mental competency”

of the defendant under § 3161(h)(1)(A)?

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED PROCEEDINGS

United States v. Robert Andrew Wolter, No. 1:19-cr-00048, United

States District Court for the District of North Dakota. Judgment

entered April 11, 2023.

United States v. Robert Andrew Wolter, No. 23-1848, United States

Court of Appeals for the Eighth Circuit. Judgment entered August 13,

2024.

ii

TABLE OF CONTENTS

Page(s)

Question Presented......................................................................................................... i

List of Parties ................................................................................................................. ii

Related Proceedings....................................................................................................... ii

Table of Authorities ....................................................................................................... v

Petition for a Writ of Certiorari .................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Statutory Provision Involved ........................................................................................ 2

Introduction ................................................................................................................... 3

Statement of the Case ................................................................................................... 5

Reasons for Granting the Petition .............................................................................. 7

I.

The courts of appeals are divided on the question presented ................ 9

A.

The Second Circuit excludes the entire time period for

competency evaluations, including travel, from the

running of the STA clock under 18 U.S.C.

§ 3161(h)(1)(A) ....................................................................................... 9

B.

The First, Third, Fifth, and Sixth Circuits calculate

excess travel periods for competency evaluations under

18 U.S.C. § 3161(h)(1)(F) .................................................................... 9

C.

The Eighth Circuit uses a hybrid approach, counting some

periods of excess travel under 18 U.S.C. § 3161(h)(1)(F),

and excluding some periods before arrival at the place of

examination as “proceedings” under 18 U.S.C.

§ 3161(h)(1)(A) ......................................................................................11

iii

II.

The decision below was wrongly decided ............................................ 13

III.

This case is an ideal vehicle for the question presented....................... 15

Conclusion .................................................................................................................... 16

Appendix

Appendix A - Court of appeals opinion (August 13, 2024) .............................. 1a

Appendix B - District court order denying motion to dismiss

(December 12, 2022) ........................................................................................ 12a

Appendix C - Court of appeals order denying petition for rehearing

(October 9, 2024) ............................................................................................. 19a

Appendix D - Court of appeals judgment (August 13, 2024) ......................... 20a

iv

TABLE OF AUTHORITIES

Page(s)

Cases

United States v. Castle, 906 F.2d 134 (5th Cir. 1990) ............................................ 4, 10

United States v. Noone, 913 F.2d 20 (1st Cir. 1990) ............................................... 4, 10

United States v. Rojas-Contreras, 474 U.S. 231 (1985) ................................................ 7

United States v. Tinklenberg, 563 U.S. 647 (2011) .................................................. 11

United States v. Tinklenberg, 579 F.3d 589 (6th Cir. 2009)................................... 4, 10

United States v. Vasquez, 918 F.2d 329 (2d Cir. 1990) ............................................ 4, 9

United States v. Williams, 917 F.3d 195 (3d Cir. 2019) ......................................... 4, 10

Statutes

18 U.S.C. § 2113(a) ........................................................................................................ 5

18 U.S.C. § 3161 .............................................................................................. 7, 8, 10-15

18 U.S.C. § 3161(c)(1) ............................................................................................. i, 3, 7

18 U.S.C. § 3161(h) ................................................................................................. i, 2, 3

18 U.S.C. § 3161(h)(1) .................................................................................................... 4

18 U.S.C. § 3161(h)(1)(A) ...................................................................... i, 3, 4, 6, 8-12 15

18 U.S.C. § 3161(h)(1)(F) ........................................................................... i, 3, 4, 6, 8-15

18 U.S.C. § 3172(2) ........................................................................................................ 7

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 1291 ............................................................................................................. 7

v

Other Materials

Judicial Administration and Technical Amendments Act of 2008, Pub. L. No.

110-406, Oct. 13, 2008, 122 Stat. 4294 (2008) .............................................................. 4

Sup. Ct. R. 13.3 .............................................................................................................. 1

vi

PETITION FOR A WRIT OF CERTIORARI

Robert Andrew Wolter respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-11a) is reported at 112 F.4th 567

(8th Cir. 2024). The district court’s relevant ruling is unpublished.

JURISDICTION

The court of appeals entered judgment on August 13, 2024. App. 20a. Wolter

received an extension of time to file a petition for rehearing. The court of appeals

denied Wolter’s timely petition for rehearing en banc on October 9, 2024. App. 19a.

On January 3, 2025, Justice Kavanaugh extended the time within which to file a

petition for a writ of certiorari to and including February 21, 2025. This petition is

timely filed under Rule 13.3. This Court has jurisdiction under 28 U.S.C. § 1254(1).

1

STATUTORY PROVISION INVOLVED

18 U.S.C. § 3161(h) provides:

(h) The following periods of delay shall be excluded in computing the time within

which an information or an indictment must be filed, or in computing the time

within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the

defendant, including but not limited to-(A) delay resulting from any proceeding, including any examinations,

to determine the mental competency or physical capacity of the

defendant;

...

(F) delay resulting from transportation of any defendant from another

district, or to and from places of examination or hospitalization,

except that any time consumed in excess of ten days from the date

an order of removal or an order directing such transportation, and

the defendant’s arrival at the destination shall be presumed to be

unreasonable;

...

2

INTRODUCTION

The Speedy Trial Act provides that a criminal defendant’s trial shall

commence within 70 days from the filing of the information or indictment or from

the date the defendant has appeared before a judicial officer of the court in which

the charge is pending. 18 U.S.C. § 3161(c)(1). Certain periods of delay are excluded

from the 70-day clock. 18 U.S.C. § 3161(h). On the one hand, “delay resulting from

any proceeding, including any examinations, to determine the mental competency

or physical capacity of the defendant” is excluded from the 70-day clock. 18 U.S.C.

§ 3161(h)(1)(A). On the other hand, the lapse of more than 10 days of transportation

time between the date of an order for transportation to and from a place of

examination or hospitalization and the defendant’s arrival at the destination are

presumed to be unreasonable. 18 U.S.C. § 3161(h)(1)(F). The interaction of these

two provisions has divided the courts of appeals.

This petition presents an important question of federal law that can only be

settled by this Court: does the time between the date of an order for transportation

for a competency evaluation and the defendant’s arrival at the place of examination

(less the 10 days allowed under the statute) count toward the 70-day speedy trial

clock under 18 U.S.C. § 3161(h)(1)(F) or is this time excluded from the running of

the speedy trial clock as “delay resulting from any proceeding, including any

examinations, to determine the mental competency” of the defendant under

§ 3161(h)(1)(A).

3

This Court has never addressed this question directly and there is a clear and

growing split of authority among the courts of appeals. The Second Circuit excludes

the entire competency evaluation period, including travel delays, from the running

of the 70-day limitation under 18 U.S.C. § 3161(h)(1)(A). See United States v.

Vasquez, 918 F.2d 329, 333 (2d Cir. 1990).1 In contrast, the majority of the courts of

appeals to consider this issue calculate the excess travel period from the date of the

order requiring travel until the defendant’s arrival at the evaluation facility, less

ten days allowed by 18 U.S.C. § 3161(h)(1)(F). See United States v. Noone, 913 F.2d

20, 25 n.5 (1st Cir. 1990); United States v. Williams, 917 F.3d 195, 202 (3d Cir.

2019); United States v. Castle, 906 F.2d 134, 137 (5th Cir. 1990); United States v.

Tinklenberg, 579 F.3d 589, 596-97 (6th Cir. 2009), aff'd on other grounds, 563 U.S.

647 (2011) (“Tinklenberg I”).

Here, the Eighth Circuit added a new fracture to this split. It held that some

periods of time after an order is entered count against the 70-day speedy trial clock

under the excess travel period of 18 U.S.C. § 3161(h)(1)(F). However, it also

determined that other periods of delay, after travel has started but before arrival at

the destination, might be excluded from the 70-day limitation as “proceedings” time

under 18 U.S.C. § 3161(h)(1)(A).

1 18 U.S.C. § 3161(h)(1)’s subsections were renumbered by removal of two provisions

in October 2008. Judicial Administration and Technical Amendments Act of 2008,

Pub. L. No. 110-406, § 13, Oct. 13, 2008, 122 Stat. 4294 (2008). As a result of that

revision, subsection “§ 3161(h)(1)(H),” referred to in Vasquez, became “§ 3161

(h)(1)(F).” Wolter will refer to this provision as “§ 3161(h)(1)(F)” throughout this

document, to maintain consistent identification of the law.

4

This Court should grant certiorari and resolve this important and recurring

issue to ensure uniformity in the application of the Speedy Trial Act.

STATEMENT OF THE CASE

This appeal arises out of Wolter’s conviction for bank robbery under 18 U.S.C.

§ 2113(a). Dist. Ct. Dkt. 2; Dist. Ct. Dkt. 170.2 In April 2019, Wolter was indicted on

a single count of bank robbery. Dist. Ct. Dkt. 2. Wolter sought a mental health

evaluation regarding his competency. Dist. Ct. Dkt. 50; Dist. Ct. Dkt. 51. After that

request was granted and an order entered, Dist. Ct. Dkt. 53, the government

requested amendments to the order to allow Wolter to be taken to a different type of

facility. Dist. Ct. Dkt. 56. The government’s request was granted in an Amended

Order, dated May 18, 2021. Dist. Ct. Dkt. 58. Wolter was transported from North

Dakota and held in Oklahoma, pursuant to this order. On June 17, 2021, he was

transported to a facility in San Bernardino, California and held there until

September 10, 2021. App. 6a. Wolter “arrived at MDC Los Angeles on September

10, 2021,” the place of his evaluation. Dist. Ct. Dkt. 66-1, at 4.

Upon his return to North Dakota, Wolter, then proceeding pro se, moved to

dismiss the case for violation of the Speedy Trial Act. Dist. Ct. Dkt. 110. He argued

that this travel period exceeded the time allowed by the act:

Wolter contends the five weeks in Oklahoma on two transport visits to

and from Los Angeles, California during this time should be nonexcludable. Wolter also contends the nearly four months in West Valley

Detention Center [in San Bernardino, California] just sitting and

2 All citations to “Dist. Ct. Dkt.” are to the docket in United States v. Wolter,

No. 1:19-cr-00048 (D.N.D.).

5

waiting for space to open up in M.D.C.L.A. only two hours away are also

non-excludable.

Dist. Ct. Dkt., at 13, ¶ 21 (emphasis added). In response, the government argued

the entire period of Wolter’s competency proceedings “tolled” the running of the 70day limitation. Dist. Ct. Dkt. 116, at 12-13 (citing United States v. McGhee, 532 F.3d

733, 737 (8th Cir. 2008)). The district court agreed with the government and did not

consider any of the transportation period against the Speedy Trial Act’s 70-day

limitation. Dist. Ct. Dkt. 138, at 3-4.

After his conviction and sentencing, Wolter appealed. The Eighth Circuit

agreed with Wolter, in part, but affirmed the result reached by the district court.

App. 5a-6a (majority opinion). The court concluded that the time Wolter spent in

Oklahoma should be counted toward the 70-day limit, however, the time in San

Bernardino should not. Id. The court reasoned that the San Bernardino period was

a “proceeding . . . to determine the mental competency [ ] of the defendant,” under

§ 3161(h)(1)(A) and its earlier decision in McGhee. Id. at 6a. The case turned on

whether the three-month period Wolter spent in the detention center in San

Bernadino, California was excludable under § 3161(h)(1)(A) and (F). Id. at 9a-10a

(Stras, J., concurring in part and dissenting in part).

Judge Stras, in dissent, explained that Wolter’s Speedy Trial Act argument

was correct; a violation had occurred. App. 9a-11a. In his view, the time Wolter had

spent in San Bernardino should be considered excess travel under § 3161(h)(1)(F),

because it was no different from the time Wolter had spent in Oklahoma. App. 10a11a. “The [Eighth Circuit’s majority] offers no real explanation for treating the two

6

stops differently. . . . [G]etting close is not good enough: the Speedy Trial Act

required [Wolter] to be ‘at the destination,’ not near it.” App. 10a. (quoting 18 U.S.C.

§ 3161(h)(1)(F)). Judge Stras recognized that Wolter’s case was highly unusual,

“[s]uccessful Speedy Trial Act claims are few and far between. Until today, I had

never seen one.” App. 9a (emphasis added). The court of appeals had jurisdiction

under 28 U.S.C. § 1291.

Wolter timely filed a petition for rehearing en banc. The court of appeals

denied his petition in a summary order. App. 19a. This petition for a writ of

certiorari follows.

REASONS FOR GRANTING THE PETITION

The Speedy Trial Act, 18 U.S.C. § 3161 et. seq., (“STA”) is an effort by

Congress to give “ ‘effect to a Federal defendant's right to speedy trial under the

Sixth Amendment and acknowledged the danger to society represented by accused

persons on bail for prolonged periods of time.’ ” United States v. Rojas-Contreras,

474 U.S. 231, 238 (1985) (Blackmun, J. concurring) (quoting H.R.Rep. No. 96-390, p.

3 (1979), U.S.Code Cong. & Admin.News 1979, pp. 805, 807). It provides a 70-day

period in which trial must commence or the case must be dismissed. 18 U.S.C.

§ 3161(c)(1). The STA applies to felony and many misdemeanor cases. See 18 U.S.C.

§ 3172(2). Therefore, the question raised here seeks to resolve an important matter

of federal law where the courts of appeals have reached conflicting decisions. The

Court should address and resolve the courts of appeals’ conflicting interpretations of

excess travel time for competency evaluations under the STA.

7

The STA provides several exclusions from the running of the 70-day

limitation. One of these exclusions is “delay resulting from any proceeding,

including any examinations, to determine the mental competency . . . of the

defendant.” 18 U.S.C. § 3161(h)(1)(A). Further, the STA provides that, “delay

resulting from transportation of and defendant . . . to and from places of

examination or hospitalization” are also excluded from the 70-day limitation. 18

U.S.C. § 3161(h)(1)(F). However, there is a condition of the travel exception: “any

time consumed in excess of ten days from the date an order of removal or an order

directing such transportation, and the defendant’s arrival at the destination shall

be presumed to be unreasonable.” Id. In the context of the statute, the term “arrival

at the destination” means arrival at the specific “place[ ] of examination or

hospitalization,” not a greater metropolitan area, vicinity, or other place of

detention. Id.

The interests protected by the STA echo those protected by the Sixth

Amendment right to a speedy trial. Application of the STA is a recurrent issue faced

by district courts across the country. Given the prevalence and importance of these

issues, and the rights they are designed to protect, this Court’s clear guidance is

needed. The Court should grant the petition for a writ of certiorari to resolve the

divide among the courts of appeals.

8

I.

The courts of appeals are divided on the question presented.

A.

The Second Circuit excludes the entire time

period for competency evaluations, including

travel, from the running of the STA clock under

18 U.S.C. § 3161(h)(1)(A).

On one side of the split, the Second Circuit stands alone in its conclusion that

all time from the date of a competency evaluation order until the completion of a

competency evaluation hearing is excludable under 18 U.S.C. § 3161(h)(1)(A). See

Vasquez, 918 F.2d at 333 (quoting Henderson v. United States, 476 U.S. 321, 330

(1986) (excluding “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’ ”)). The Second Circuit explained “[s]ince the delays here

complained of by Vasquez arose from proceedings to determine his competency and

were prior to the conclusion of the hearing thereon, they must be excluded from the

calculation of the speedy trial clock whether or not they are reasonable.” Id.

In other words, the Second Circuit has determined that excess travel time

under 18 U.S.C. § 3161(h)(1)(F) is not considered at all, because the entire

competency evaluation period is excluded from the running of the 70-day limitation,

as a proceeding under 18 U.S.C. § 3161(h)(1)(A), regardless of the unreasonableness

of any delay. Id.

B.

The First, Third, Fifth, and Sixth Circuits

calculate excess travel periods for competency

evaluations under 18 U.S.C. § 3161(h)(1)(F).

On the other side of the split, the First, Third, Fifth, and Sixth Circuits reject

Vasquez’s approach to 18 U.S.C. § 3161(h)(1)(A), finding that its rationale renders

9

the excess transportation exception of 18 U.S.C. § 3161(h)(1)(F) superfluous. See

Noone, 913 F.2d at 25, n.5 (finding that unlimited excluded time for transporting

defendants to competency evaluation “would render mere surplusage the specific

reference in [18 U.S.C. § 3161(h)(1)(F)] to transportation ‘to and from places of

examination or hospitalization’ ”) (cleaned up); Williams, 917 F.3d at 202 (“We . . .

hold that periods of unreasonable delay of more than ten days in the transport of a

defendant to the site of a psychological examination conducted in the course of a

proceeding to determine a defendant’s mental competency are non-excludable . . .

under the Speedy Trial Act.”(emphasis added)); Castle, 906 F.2d at 137 (“[T]he

entire time between the order for psychiatric examination and the date of the

competency hearing cannot be excluded, for under § 3161(h)(1)[(F)] any time over 10

days spent transporting the defendant to his psychiatric examination is considered

unreasonable and should not be excluded.”); Tinklenberg I, 579 F.3d at 596

“Reading § 3161(h)(1)(A) to allow unlimited time for transporting a defendant to a

place of examination, as the Second Circuit did in Vasquez, would create an internal

conflict in the statute, since § 3161(h)(1)(F) expressly limits the reasonableness of

the transportation period to ten days.” (emphasis added)). In other words, these

courts “count” the excess travel periods against the 70-day limitation, under 18

U.S.C. § 3161(h)(1)(F), as an “exception to the exception” of 18 U.S.C.

§ 3161(h)(1)(A)’s “proceedings” exclusion.

This Court considered and applied the excess travel provision of the STA,

when it considered the Sixth Circuit’s Tinklenberg I decision on appeal. See

10

United States v. Tinklenberg, 563 U.S. 647, 660-63 (2011) (“Tinklenberg II”).

There, this Court examined how the “excess travel” period was determined under

Federal Rule of Criminal Procedure 45(a), as it existed prior to its modification

in 2005. Id. Ultimately, the Court affirmed dismissal of the indictment for a

violation of the 70-day limitation, when the excess travel period was correctly

calculated and applied to that limitation. Id. at 651-52, 663. In other words, this

Court determined that “excess travel” periods do count against the STA’s 70-day

limit when it agreed with the petitioner that 10 days were “considered excessive,

during which the 70-day Speedy Trial Act clock continued to tick.” Id. at 661.

However, this Court did not address the conflict between the circuits regarding

18 U.S.C. § 3161(h)(1)(A) and that provision’s application to excess travel.

C.

The Eighth Circuit uses a hybrid approach,

counting some periods of excess travel under 18

U.S.C. § 3161(h)(1)(F), and excluding some periods

before arrival at the place of examination as

“proceedings” under 18 U.S.C. § 3161(h)(1)(A).

The Eighth Circuit, in its decision below, adopted neither the majority nor

minority approach to calculating excess travel periods for competency evaluations

under the STA. Instead, it created a third, hybrid, approach.

In Wolter’s case below, the Eighth Circuit aligned with the majority of other

circuits when it found that an expansive view of 18 U.S.C. § 3161(h)(1)(A) rendered

18 U.S.C. § 3161(h)(1)(F) superfluous, as it applied to Wolter’s time in Oklahoma.

App. 6a (citing Corley v. United States, 556 U.S. 303, 315 (2009)). In other words,

the time Wolter spent traveling from North Dakota to Oklahoma, and all of the time

11

spent in Oklahoma, less 10 days, counted toward the 70-day limitation under 18

U.S.C. § 3161(h)(1)(F). Id.; see also id. at 9a (Stras, J. concurring and dissenting in

part) (“The easy part was treating the time in Oklahoma as a ‘transportation delay’

. . . . On that point, the court and I agree.”).

However, the Eighth Circuit parted ways with the majority approach when it

determined that the excess transportation “count” ended when Wolter arrived in

San Bernardino, California. The court explained that the time in San Bernardino

was considered “proceedings” under § 3161(h)(1)(A), applying its precedent from

McGhee:

[T]he “nearly four months” (120 days) Wolter spent waiting for an

opening at the psychological evaluation facility do not count toward the

STA’s 70-day limit. Section 3161(h)(1)(A) excludes “delay[s] resulting

from any proceeding . . . to determine the mental competency or

physical capacity of the defendant.” And this court previously held

time spent waiting for transportation to an evaluation facility

“involved proceedings to determine [a defendant’s] competency.”

McGhee, 532 F.3d at 737.[ ] Here, like in McGhee, the period of delay

from June 17 to September 10, 2021, resulted from Wolter waiting in

San Bernardino for an examination. Thus, under our prior precedent,

this time is excluded as part of the “proceeding[s].” See id.

App. 6a.

Therefore, the Eighth Circuit’s application of the STA provisions did not align

with either side of the split. It neither applied 18 U.S.C. § 3161(h)(1)(A) to exclude

the entire competency evaluation period, like the Second Circuit does, nor applied

18 U.S.C. § 3161(h)(1)(F) to “count” travel delay until arrival at the place of

examination, like the majority of courts of appeals do. Instead, the Eighth Circuit

created further division in the analysis and application of those provisions of the

12

STA. The split of authority among the courts of appeals is expanding and should be

resolved by this Court.

II.

The decision below was wrongly decided.

The Eighth Circuit’s hybrid approach is inconsistent with the plain text of 18

U.S.C. § 3161(h)(1)(F). Moreover, the government provided no factual grounds to

distinguish the time spent in Oklahoma and in San Bernardino, or any argument

why these delays were reasonable. See App. 10a (Stras, J., concurring and

dissenting in part) (“The government also could have fixed the problem by making

these same points . . . to rebut the ‘presum[ption]’ that it was ‘unreasonable’ to

spend more than ten days transporting him.”). Thus, there was nothing in the

record to support the Eighth Circuit’s legal distinction between these locations. See

App. 10a (Stras, J., concurring and dissenting in part).

The dissenting opinion presented the better reading and application of the

STA to Wolter’s case. Judge Stras’s dissenting opinion argued that the majority’s

analysis was neither externally consistent with the language of the STA or McGhee,

as it related to the time Wolter spent in San Bernardino, nor internally consistent

with the analysis applied to the time Wolter spent in Oklahoma:

The court offers no real explanation for treating the two stops

differently. It cannot be that the whole trip “result[ed] from [a]

proceeding ... to determine [Wolter’s] mental competency,” [18 U.S.C.]

§ 3161(h)(1)(A), because the court rejects the government’s invitation

to read that exclusion so broadly that it swallows the transportationspecific one. See Corley v. United States, 556 U.S. 303, 314, 129 S.Ct.

1558, 173 L.Ed.2d 443 (2009) (explaining that courts should avoid

readings that would make part of a statute “inoperative or

superfluous” (citation omitted)). Nor can it just be that he was “waiting

for transportation to an evaluation facility” in San Bernardino, ante at

13

[App. 6a], because he spent weeks waiting in Oklahoma too. See [ ]

McGhee, 532 F.3d [at] 736–38 [ ] (holding that time spent waiting at

the defendant’s original facility before the clock-starting “order

directing transportation” was not transportation time, but a delay after

the order “did involve ... transportation”). Neither was his “place of

examination.” And getting close is not good enough: the Speedy Trial

Act required him to be “at the destination,” not near it. 18 U.S.C. §

3161(h)(1)(F) (emphasis added).

It is true that the statute refers to the “delay resulting from

transportation,” id. (emphasis added), and Wolter was not on the move

after he arrived in San Bernardino. Nor was he held up by something

related to the travel itself, like a flat tire or a grounded flight. Cf.

McGhee, 532 F.3d at 739. But the fact that a law enacted in 1975

expressly contemplates situations in which it takes longer than ten

days for a defendant to get where he is going is a clear sign that

extended layovers, not just detours and traffic jams, are what Congress

had in mind. See id. at 738 (counting days during a two-week stop on

the way back from a competency examination); see also id. (stating

that the “transportation clock starts ... on the date of an order directing

transportation” and stops on “the date [the defendant] arrive[s]”

(emphasis added)).

App. 10a-11a (Stras, J., concurring and dissenting in part).

The dissenting opinion below, and the First, Third, Fifth, and Sixth Circuits,

have it right. Their approach gives full effect to 18 U.S.C. § 3161(h)(1)(F) by

stopping the excess travel count at the time a defendant arrives at the place of the

competency examination. Congress, by enacting 18 U.S.C. § 3161(h)(1)(F), indicated

its desire to limit excess transportation delays between the order for transportation

and arrival at the final destination. These dates are easy to establish and identify,

leading to clear, fast, and routine application of the STA. Moreover, Congress

provided avenues for the government or the district courts to avoid the strict

requirements of these defined points by showing that the transportation delay was

14

reasonable. Those avenues were not pursued here. App. 11a (Stras, J., concurring

and dissenting in part).

Wolter asks this Court to grant certiorari and make clear that the STA is

applied faithfully to its design.

III.

This case is an ideal vehicle for the question presented.

This case squarely presents the legal issues driving the Circuit split

regarding excess travel to and from a competency evaluation under the STA. The

merits of Wolter’s Speedy Trial motion came down to whether the period of time he

was detained in San Bernardino, June 17 to September 10, 2021, counted toward

the speedy trial clock under 18 U.S.C. § 3161(h)(1)(F), or whether it was excluded as

“proceedings” under 18 U.S.C. § 3161(h)(1)(A). App. 6a, 10-11a. This case presents a

clean framing of the legal issue, uncluttered by collateral matters that were not

preserved by the government or articulated by the district court. App. 11a (Stras,

J., concurring in part and dissenting in part) (identifying other provisions of the

STA that could have resolved this matter, but were not pursued in the district

court).

This case is an ideal vehicle for resolution of the question presented.

15

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated this 20th day of February, 2025.

Respectfully submitted,

JASON J. TUPMAN

Federal Public Defender

By:

/s/ David S. Barari

David S. Barari, Assistant Federal Public Defender

Office of the Federal Public Defender

Districts of South Dakota and North Dakota

655 Omaha Street, Suite 100

Rapid City, SD 57701

David_Barari@fd.org

Phone: (605) 343-5110

Counsel of Record for Petitioner

16