Criminal Practice – No Waiver of Prospective Speedy Trial Claim

U.S. v. Mosteller (Lawyers Weekly No. 14-01-0125, 15 pp.) (Keenan, J.) No. 12-4434, Feb. 4, 2014; USDC at Florence, S.C. (Wooten, J.) 4^th Cir.

Holding: A defendant charged with theft of government funds for her continued receipt of veteran’s surviving spouse benefits after her remarriage and educational benefits while failing to attend classes, is not entitled to plain error review of her Speedy Trial Act claim, after she waived her Speedy Trial Act rights as a condition to obtaining a mistrial in her first trial; the 4^th Circuit affirms her conviction under 18 U.S.C. § 641.

We agree with appellant’s argument that the district court erred in requiring that she agree to waive her rights under the Speedy Trial Act as a condition of granting the mistrial. Under Zedner v. U.S., 547 U.S. 489 (2006), a defendant may not waive application of the Act for a violation that has not yet occurred. We conclude appellant’s agreement purporting to waive future rights under the Act was null and void. To date, however, we have not addressed the question in a published decision whether plain error review is available to consider asserted violations of the Act not timely raised in the district court.

Answering that question here, we hold that plain error review is not available for consideration of Speedy Trial Act claims that were not timely asserted in the district court. Because § 3162(a)(2) specifies that such a “waiver” occurs when a defendant fails to timely assert a Speedy Trial Act violation in the district court, we are not permitted to conduct any appellate review, for plain error or otherwise, of appellant’s claim.

Our holding is in accord with the nearly unanimous views of our sister circuits that have considered this issue and also have relied on the express language of § 3162(a)(2). We are not persuaded by appellant’s reliance on the 9^th Circuit’s decision in U.S. v. Carrasco, 257 F.3d 1045 (9^th Cir. 2001), which appears to be the only published federal appellate decision currently permitting plain error review of a claim under the Act that was not timely raised in the district court.

We reiterate that the plain language of § 3162(a)(2) is unequivocal in requiring that a defendant move for dismissal of an indictment before the beginning of a new trial or suffer a statutorily imposed waiver of rights under the Act. We conclude that we may not review for plain error the assertion of a violation of the Act.

Conviction affirmed.