* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60100

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

WILBERT CONCHO

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:06-CR-17-3

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.

PER CURIAM:*

Wilbert Concho appeals his conviction for charges arising from a burglary.

Concho asks us to reverse his conviction and remand to the district court with

instructions to dismiss the subject charge because of alleged violations of the

Speedy Trial Act. We affirm.

Concho, along with Alan Bell and David Bell, allegedly broke into the

home of an elderly member of the Mississippi Band of Choctow Indians

(“MBCI”), within the boundaries of the MBCI reservation, on December 28, 2005.

United States Court of Appeals

Fifth Circuit

F I L E D

April 28, 2008

Charles R. Fulbruge III

Clerk
No. 07-60100

2

The three were arrested soon thereafter. The Choctow police department

arrested Concho and took him into custody ofthe MBCI on January 4, 2006. The

Bells, both Choctow Indians, were provided with free legal counsel and the tribal

charges against them were disposed of quickly. 

The charges against Concho, a Zuni Indian, were handled differently.

Tribal charges were filed against him on January 11, 2006, but after a number

of court appearances spanning several months, his case was not resolved because

he could not secure counsel. Concho alleges that this is because he could not

afford an attorney and to be eligible for free representation from the Tribal

Public Defender, the defendant must be a member of the MBCI. Eventually,

Concho was appointed counsel, and on November 21, 2006 Concho entered a no

contest plea to some of the tribal charges and was sentenced accordingly.

Soon after Concho’s arrest, Choctow law enforcement telephoned Assistant

United States Attorney Jack Lacy to see if he might be interested in pursuing

federal charges because the burglary occurred on an Indian Reservation and

involved an assault on an elderly woman. Lacy expressed an interest in the case

and received a report concerning the offenses the week after January 16, 2006.

The federal case was submitted to the federal grand jury and an indictment

against Concho was returned on May 11, 2006. The Choctow Police Department,

which had custody of the defendant up to that point, transported him to federal

court where on May 22, 2006 he was arraigned on the federal indictment. On

August 1, 2006, Concho filed his initial motion to dismiss the indictment on

speedy trial grounds and asked for a writ of habeas corpus. Hearings on the

motion were conducted on August 14, August 18, August 24, and September 8,

2006, with the district court eventually denying the motion. The case proceeded

to a bench trial on October 12, 2006, where the defendant was convicted of

charges stemming from the burglary. 
No. 07-60100

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Concho appeals his conviction exclusively on Speedy Trial Act grounds.

“We review the district court’s factual findings supporting its Speedy Trial Act

rulings for clear error and its legal conclusions de novo.” United States v. Green,

508 F.3d 195, 199 (5th Cir. 2007), petition for cert. filed (U.S. Feb. 4, 2008) (07-

9219) (internal quotation marks omitted).

Concho’s first argument is that the Speedy Trial Act was violated because

he was not indicted within thirty days of his arrest by the Choctow police

department on January 4, 2006. The Act states in relevant part that “[a]ny

information or indictment charging an individual with the commission of an

offense shall be filed within thirty days from the date on which such individual

was arrested or served with a summons in connection with such charges.” 18

U.S.C. § 3161(b). Concho concedes that normally an arrest by another sovereign,

such as a state or a recognized Indian tribe, does not trigger the running of the

thirty day limit for the return of an indictment. See United States v. Taylor, 814

F.2d 172, 174–75 (5th Cir. 1987). 

Concho says that his Choctow arrest triggered the clock because he was

arrested solely to answer to a federal charge, and the government knew or

should have known this. He relies on United States v. Woolfolk, where the court

held that in some circumstances an individual held by state authorities can be

considered under “federal arrest” or in “federal custody.” 399 F.3d 590, 595–96

(4th Cir. 2005). The court reasoned that “something other than actual federal

custody and federal arrest” can trigger the Speedy Trial Act; namely, “any

restraint resulting from federal action.” Id. at 596 (internal quotation marks

omitted). The court concluded that a “‘restraint resulting from federal action,’

sufficient to trigger the time limits of the Speedy Trial Act, occurs when the

Government [knew or should have known] that an individual is held by state

authorities solely to answer to federal charges.” Id. Concho says that the

evidence that the Woolfolk test is met includes the following: (1) Choctow law
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enforcement contacted AUSA Lacy about possible federal charges soon after he

was arrested; (2) Concho could not be tried in tribal court because he could not

afford private counsel and under MBCI policy he was ineligible for free

representation from the Tribal Public Defender; and (3) Concho’s case was

constantly continued because he could not procure legal counsel. Therefore,

according to Concho, together this shows that the MBCI held him solely to

answer to the federal charges. 

Even assuming the Woolfolk rule governs, Concho’s arrest by the Choctow

authorities did not trigger the speedy trial clock. The evidence does not bear out

Concho’s theory. Multiple Choctow law enforcement officers testified at the

motion to dismiss hearings that they contacted AUSA Lacy about bringing

federal charges in addition to tribal charges. Each said that as far as they knew

the tribal charges remained and would be prosecuted. AUSA Lacy said that he

did not direct the tribe to hold Concho for the federal charges. Concho did not

present any relevant evidence, other than the circumstantial evidence cited

above, to controvert this testimony. In part based on this evidence, the district

court denied Concho’s motion to dismiss, and the factual findings underpinning

its legal conclusion are not clearly erroneous. Concho’s evidence indicates that

the tribal authorities were having trouble finding counselfor him, butit does not

show that they were not pursuing tribal charges. Because Concho’s January 4,

2006 arrest did not start the speedy trial clock, his argument under Section

3161(b) is rejected.

Concho’s second argument is that he was not brought to trial within the

time limit mandated by the Speedy Trial Act’s Section 3161(c)(1). The section

states in relevant part: 

In any case in which a plea of not guilty is entered, the trial of a

defendant charged in an information or indictment with the

commission of an offense shall commence within seventy days from

the filing date (and making public) ofthe information or indictment,
No. 07-60100

5

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). Concho says that because his trial did not occur with

seventy days of his federal arraignment, the statute was violated.

His argument fails because his initial pretrial motion tolled the speedy

trial clock. He acknowledges that pretrial motions generally toll the clock under

the Act’s Section 3161(h)(1)(F), which excludes “delay resulting from any pretrial

motion, from the filing of the motion through the conclusion of the hearing on,

or other prompt disposition of, such motion . . . .” But he says that his pretrial

motions did nottollthe clock because they were Speedy Trial Act motions, which

the court in United States v. New Buffalo Amusement Corporation held are not

chargeable against a defendant because “to do so would improperly penalize

defendants for their invocation of speedy trial rules and run counter to those

rules.” 600 F.2d 368, 375 (2d Cir. 1979) (internal quotation marks omitted).

We need not decide whether to adopt the rule from New Buffalo because

Concho’s August 1, 2006 motion also sought a habeas corpus order directing the

MBCI to release him. This issue resulted in numerous pleadings and hearings,

including discussion at pretrial hearings on August 24 and September 8, 2006,

and a post-trial hearing on October 19, 2006. Although there may be scenarios

where a particular pretrial motion does not toll the speedy trial clock, we see no

reason why his combined pretrial speedy trial and habeas motion and the

subsequent hearings did not toll the Section 3161(c)(1) clock. Therefore, under

the tolling provisions of 18 U.S.C. § 3161(h) and the interpretation given these

provisions in United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994), Section

3161(c)(1) was not violated. Concho’s argument under this section is rejected.

AFFIRMED.