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United States v. Wickham

filed: July 29, 1994.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GARY LEE WICKHAM, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-91-0871-AWT-1. A. Wallace Tashima, District Judge, Presiding.

Before: Melvin Brunetti, Alex Kozinski, and Danny J. Boggs,*fn* Circuit Judges. Opinion by Judge Brunetti.

Author: Brunetti

BRUNETTI, Circuit Judge:

Defendant Gary Lee Wickham entered a conditional guilty plea to a charge of escape from custody in violation of 18 U.S.C. § 751. He appeals the district court's denial of his motion to dismiss the information for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We affirm.

I.

Wickham was serving a federal sentence at the Gateway Community Correctional Center in Los Angeles, California. On July 31, 1991, a complaint was filed in the Central District of California charging Wickham with escape from custody in violation of 18 U.S.C. § 751. Deputy United States Marshals arrested Wickham in Dallas, Texas on August 1, 1991.

On August 2, 1991, Wickham appeared before a United States Magistrate Judge in the Northern District of Texas. Although Wickham initially elected to waive the removal hearing and have the preliminary hearing held in Los Angeles, he subsequently decided to plead guilty in Texas to the escape charge pursuant to Rule 20 of the Federal Rules of Criminal Procedure.*fn1 Accordingly, he signed a Consent to Transfer form. That form and the information were both filed in the Central District of California on October 16, 1991. The case was then transferred to the Northern District of Texas.

On November 15, 1991, Wickham pled guilty to the escape charge. He filed a motion to withdraw his guilty plea on January 29, 1992. On February 12, 1992, the Texas district court granted the motion and ordered Wickham transferred to California for prosecution.

Wickham arrived at the Metropolitan Detention Center in Los Angeles ("MDC") on February 27, 1992. He first appeared in federal court in the Central District of California on April 21, 1992. As of that date, no detainer had been filed with the MDC. Wickham was arraigned on May 4, 1992. He pled not guilty and trial was set for June 9, 1992.

Wickham filed a motion to dismiss for violation of the Speedy Trial Act. The district court heard and denied the motion on June 8, 1992. On June 9, 1992, Wickham entered a plea of guilty conditioned on his right to appeal the district court's denial of his motion to dismiss. Wickham timely appealed.

II.

We review de novo the district court's interpretation of the Speedy Trial Act. United States v. Gallardo, 773 F.2d 1496, 1501 (9th Cir. 1985).

Under the Speedy Trial Act, a defendant who pleads not guilty must be tried "within seventy days from the filing date . . . of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). Wickham argues that since he initially pled guilty and later withdrew that plea, the time limit should be determined not under section 3161(c)(1), but rather under section 3161(i), which provides:

If trial did not commence within the time limitation specified in section 3161 because the defendant had entered a plea of guilty or nolo contendere subsequently withdrawn to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained within the meaning ...


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