Appeal from the United States District Court for the District of Columbia (No. 1:10-cr-00150-1)
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:
Argued September 11, 2012
Before: HENDERSON and BROWN, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Appellant Tyrone Hines was convicted of one count of bank robbery and two counts of attempted bank robbery and was sentenced to concurrent terms of 132 months on each count. He challenges his conviction on the grounds that the district court erred in failing to hold a competency hearing and in extending the thirty-day deadline for indicting a defendant following arrest under the Speedy Trial Act (STA, Act), 18 U.S.C. §§ 3161 et seq. He also challenges his sentence, asserting the district court erroneously increased his offense level for obstruction of justice pursuant to section 3C1.1 of the United States
Sentencing Guidelines (Guidelines) based on a statement he made at a pre-trial suppression hearing, which the court found to be deliberately false. Notwithstanding the able and vigorous advocacy of Hines's appellate counsel, we affirm Hines's conviction and his sentence.
Hines was arrested on March 9, 2010 and charged in a criminal complaint with the March 4, 2010 attempted robbery of a BB&T Bank branch in Washington, D.C.*fn1 A magistrate judge denied Hines's motion for release from custody and committed him to government custody, concluding there were "no conditions that [he] could set that would reasonably assure [Hines's] appearance or that he would not commit new crimes if released, and he should be detained pending trial." Detention Mem. at 4, United States v. Hines, Cr. No. 10-150 (D.D.C. Mar. 24, 2010).
Under the STA, the government must indict a defendant within thirty days after his arrest, 18 U.S.C. § 3161(b), and try him within seventy days after the indictment, id. § 3161(c)--except that a pre-trial detainee, such as Hines, must be tried within ninety days after he is first detained, id. § 3164(b)*fn2 --all subject to the exclusion of "periods of delay" as authorized under 18 U.S.C. § 3161(h). On April 7 and May 4, a magistrate judge granted joint motions filed by Hines's then-counsel and the government seeking two separate, successive thirty-day "interests-of-justice" continuances to be excluded from the STA calendar pursuant to 18 U.S.C. § 3161(h)(7), which lists as one of the periods which "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":
Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless 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 such continuance outweigh the best interests of the public and the defendant in a speedy trial.
The stated purpose of each exclusion motion was to allow ongoing plea negotiations to continue and the second motion sought as well "an opportunity to complete a mental health evaluation." Joint Mot. to Exclude Additional Time Under the Speedy Trial Act, United States v. Hines, Cr. No. 10-150 (D.D.C. Apr. 30, 2010). Together, the two continuances extended the indictment deadline to June 7. Shortly after the second motion was filed, however, Hines informed his counsel that he did not want a plea offer and, upon being so notified, the government proceeded with the indictment. On June 3, the grand jury returned an indictment charging Hines with three counts: (1) robbery of a Citibank branch on
February 26; (2) attempted robbery of a Bank of America branch on March 4; and (3) attempted robbery of the BB&T Bank branch on March 4 (all in violation of 18 U.S.C. § 2113(a)).
Hines was arraigned on June 16 and pleaded not guilty. At the arraignment, the district court asked Hines's counsel about the nature of the two STA exclusions, in particular whether they applied to both the thirty-day indictment deadline and the additional ninety-day trial deadline or only to the former. Counsel responded that she did not believe her client "specifically agreed to any exclusion of time, other than the exclusion of time within which to indict him" and that he "was excluding time within which the Government would have to indict him to give [her] an opportunity to present to him the best plea offer." Tr. of Arraignment at 8, 10, United States v. Hines, Cr. No. 10-150 (D.D.C. June 16, 2010). She also informed the court the mental health evaluation mentioned in the second motion to exclude "was at [her] request," was "still an ongoing process" and "was done for the purposes of trying to convince the Government to give [Hines] a better plea offer." Id. at 7. Concluding the matter was not "as clear-cut as it might be," the court indicated it would examine the record further and invited counsel to file a written explanation of her position. Id. at 9. Later during the proceedings, counsel informed the court that Hines had "expressed dissatisfaction with her representation." Id. at 22. After questioning Hines about his willingness to proceed with his current counsel, and explaining to Hines that appointing new counsel would delay the case, the court agreed to look into finding new counsel to represent him. On June 21, the district court conducted a status hearing at which new counsel represented Hines. The government moved to exclude from the STA calendar the period from June 26 to July 7 to make up for the delay caused by changing counsel.*fn3 Hines agreed to the exclusion.
On July 19, Hines moved the court for release pending trial, asserting "a violation of his rights under the [STA]." Mot. to Recons. Def.'s Bond at 1, United States v. Hines, Cr. No. 10-150 (D.D.C. July 19, 2010). According to the motion, Hines's first lawyer "excluded the time to indict [Hines], but did not exclude the time to bring [him] to trial" so that "[t]he ninety-day (90) period for [Hines] to go to trial tolled on Monday June 7, 2010 and therefore [he] should be released pending his trial." Id. at 2. The district court denied the motion on the ground that a continuance under section 3161(h) "appl[ies] both in calculating the time within which an indictment must be filed under section 3161(b) as well as in calculating the time within which a trial must begin under either section 3161(c)(1) or section 3164(b)." Mem. Order at 6, United States v. Hines, Cr. No. 10-150 (D.D.C. July 30, 2010) (citing U.S.C. §§ 3161(h), 3164(b)).
In a July 30 hearing, Hines informed the court that he and his second lawyer were experiencing "irreconcilable differences," Tr. of Status Hr'g at 23, United States v. Hines, Cr. No. 10-150 (D.D.C. July 30, 2010), but ultimately agreed he was "satisfied" and would "work with" his lawyer, id. (ex parte) at 7. Nonetheless, on August 23, his lawyer filed a motion to withdraw as counsel, citing "irreconcilable differences which have resulted in the parties['] inability to discuss the case." Mot. to Withdraw as Counsel for Def. at 1, United States v. Hines, Cr. No. 10-150 (D.D.C. Aug. 23, 2010). At the hearing on the motion, Hines recited various objections to his lawyer's representation. Despite its skepticism of Hines's complaints, the court agreed to appoint new counsel.
Meanwhile, at an August 8 evidentiary hearing on Hines's two motions to suppress, the court had asked Hines's second lawyer if a mental evaluation had ever been performed. Counsel reported that it had but "they did not find that there were any issues that rose to the level of not being competent." Tr. of Mot. Hr'g at 5, United States v. Hines, Cr. No. 10-150 (D.D.C. Aug. 8, 2010). The court concluded "there didn't appear to be any competency issues" and counsel agreed. Id. at 8.
At a status hearing on August 11, the court denied the motions to suppress, in part because it discredited Hines's claim that he was interviewed and confessed on March 10, rather than on March 9, as the government witnesses and other evidence indicated. Hines, she observed, "could be confused or decided based on his own legal research that he could raise an issue to get his confession suppressed by changing the timing." Tr. of Status Hr'g at 18, United States v. Hines, Cr. No. 10-150 (D.D.C. Aug. 11, 2010). At the hearing, the court again observed--this time in the context of Hines's Miranda rights waiver--that the mental health evaluation had not raised any competency issues with him.
At an August 30 status hearing, Hines's third lawyer--who had just been appointed--reported that the first defense counsel had agreed to obtain a written assessment from the psychologist who had assessed Hines's mental health and stated that his brief conversations with Hines had not raised any competency concerns with him.
Hines's criminal trial began on October 26. The government presented overwhelming evidence of Hines's guilt--including his confession to all three offenses, his identification by one of the tellers, his image on bank surveillance tapes and his fingerprints on a note demanding $5,000 from the BB&T Bank teller. Hines elected not to present any evidence. The jury retired to deliberate shortly after 3:00 p.m. on October 27 and around noon the next day returned a verdict of guilty on all three counts of the indictment.
Hines was sentenced on March 30, 2011. Expressly adopting the pre-sentencing report, the court calculated a Guidelines sentencing range of 140 to 175 months, based on a criminal history of V and an adjusted offense level of 29, including a two-point enhancement for obstruction of justice premised on the court's factual finding "by clear and convincing" evidence at the August 11 status hearing that Hines's suppression hearing testimony regarding the date of his interview and confession "was false" and Hines "deliberately lied." Tr. of Sentencing Hr'g at 21, United States v. Hines, Cr. No. 10-150 (D.D.C. Mar. 30, 2011). The court then sentenced Hines to concurrent terms ...