2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-21-2013

USA v. Lee Graves

Precedential or Non-Precedential: Precedential

Docket No. 12-2688

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2688

_____________

UNITED STATES OF AMERICA

v.

LEE GRAVES,

a/k/a Rasul el-bey

LEE GRAVES,

 Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 11-cr-119-001)

District Judge: Hon. Lawrence F. Stengel

_______________

Submitted Under Third Circuit LAR 34.1(a)

May 31, 2013
2

Before: JORDAN and VANASKIE, Circuit Judges, and

RAKOFF*, Senior District Judge.

(Filed: June 21, 2013)

_______________

Michael N. Huff

1333 Race Street

Philadelphia, PA 19107

 Counsel for Appellant

Zane D. Memeger

Robert Zauzmer

Andrew J. Schell

Office of United States Attorney

615 Chestnut Street – Ste. 1250

Philadelphia, PA 19106

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Lee Graves appeals the judgment of conviction and 

sentence imposed by the United States District Court for the

_______________

* Honorable Jed S. Rakoff, United States District Court 

Senior Judge for the Southern District of New York, sitting by 

designation.
3

Eastern District of Pennsylvania on May 31, 2012. He 

contends that his conviction must be reversed because his 

rights under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., 

were violated. As there was no such violation, we will 

affirm. 

I. Background

On March 2, 2011, a grand jury returned an indictment 

charging Graves with one count of attempted possession of 

500 grams or more of cocaine with intent to distribute, in 

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii) and 21 U.S.C. 

§ 846. He was arraigned on March 31, 2011, at which time 

the presiding magistrate judge decided that Graves should be 

evaluated to see whether he was competent to stand trial. The 

following day, the District Court entered an order instructing 

the Bureau of Prisons to conduct a psychiatric examination 

and mental competency evaluation of Graves, pursuant to 18 

U.S.C. § 4241(b). That evaluation was still pending on 

June 3, 2011, three days before Graves’s trial was scheduled 

to occur. The District Court therefore issued an order 

continuing the case until the filing of the competency report. 

On June 22, 2011, the Bureau of Prisons completed the

report, which concluded that Graves was competent to stand 

trial. The report was mailed to the magistrate judge with a 

cover letter dated June 28, 2011, and it was apparently 

received on July 7, 2011.1 On September 21, 2011, the 

 

1

 Graves claims that the report was received by the 

magistrate judge on July 11, 2011. Although the District 

Court mentioned that date during the hearing on Graves’s 
4

District Court held a status hearing, during which it reviewed 

the report and ruled that Graves was competent to stand trial. 

It also appointed defense counsel, who immediately moved

for a continuance to allow adequate time to prepare for trial. 

On September 26, 2011, the Court granted that motion and set 

Graves’s trial date for February 27, 2012. 

Only weeks after seeking the continuance, however,

Graves moved on October 21, 2011, to dismiss the 

indictment. He claimed that more than 70 days of 

inexcusable delay had passed since the filing of the 

indictment, which he argued violated his rights under the 

Speedy Trial Act, 18 U.S.C. § 3161 et seq., the Speedy Trial 

Clause of the Sixth Amendment, and the Due Process Clause 

of the Fifth Amendment. The District Court held a hearing 

on the motion and concluded that the time between March 31, 

2011, when the competency evaluation was ordered, and 

September 21, 2011, when the competency determination was 

made, was excluded from the speedy trial calculation. It 

further held that the time after the September 21 hearing was 

also excluded due to defense counsel’s request for a 

continuance. The Court therefore found that Graves’s speedy 

trial rights had not been violated. 

Graves’s trial began as scheduled on February 27, 

2012. He was convicted and sentenced to 120 months in 

prison and eight years of supervised release. He then filed 

this appeal. 

 

Speedy Trial Act motion, it also mentioned July 7, and, when 

Graves’s counsel asked for clarification, the Court repeated 

that the report was received on July 7. The reference to July 

11 appears to have merely been a misstatement. 
5

II. Discussion2

The Speedy Trial Act (the “Act”) requires that, in a 

case in which a plea of not guilty is entered, a defendant’s 

trial must begin within 70 days of the public filing of the 

indictment or the defendant’s appearance before a judicial 

officer of the court, whichever is later. 18 U.S.C. 

§ 3161(c)(1). The Act also provides for the exclusion of 

certain periods of delay from the 70-day calculation. Id.

§ 3161(h). Most relevant here, it excludes the “delay 

resulting from any proceeding, including any examinations, to 

determine the mental competency or physical capacity of the 

defendant.” Id. § 3161(h)(1)(A). The Act also excludes the 

“delay resulting from any pretrial motion,” id.

§ 3161(h)(1)(D), and up to 30 days of delay when “any 

proceeding concerning the defendant is actually under 

advisement by the court,” id. § 3161(h)(1)(H). Finally, the 

Act excludes periods of delay “resulting from a continuance 

granted by any judge,” as long as the judge has found “that 

the ends of justice” served by the continuance “outweigh the 

best interest of the public and the defendant in a speedy trial.” 

Id. § 3161(h)(7)(A). We have held that “the days on which 

[excludable] events occurred” are not included “in making the 

70-day calculation.” Gov’t of V.I. v. Duberry, 923 F.2d 317, 

320 n.8 (3d Cir. 1991). 

 

2

 The District Court had jurisdiction under 18 U.S.C. 

§ 3231, and we have jurisdiction pursuant to 18 U.S.C. 

§ 3742(a) and 28 U.S.C. § 1291. “[W]e exercise plenary 

review over [a] district court’s construction of the [Speedy 

Trial] Act and its provisions on excludable time,” and we 

review its factual findings for clear error. United States v. 

Lattany, 982 F.2d 866, 870 (3d Cir. 1992). 
6

Graves’s sole argument on appeal is that the District 

Court erred in concluding that fewer than the 70 days 

permitted by the Speedy Trial Act passed between the filing 

of the indictment and his trial.

3

 He concedes that the

March 31, 2011 request for a competency determination 

began a period of excludable delay, but he argues that that 

period ended on June 22, 2011, when the Bureau of Prisons 

completed the competency report. He thus identifies 118 

days of inexcusable delay – 29 that lapsed between his 

indictment and the March 31 arraignment, and another 89 that 

passed between the completion of the competency report and 

the September 21 hearing, at which his counsel’s request for a 

continuance prompted another period of excludable delay.4 

Because that delay is greater than the 70 days permitted by 

the Speedy Trial Act, Graves argues that the District Court 

should have dismissed the indictment. The government 

disagrees, contending that the District Court was correct to 

conclude that the period of excludable delay for Graves’s 

competency determination continued until the September 21 

status hearing, when the Court considered the report and 

 

3

 Graves has effectively abandoned his claims under 

the Fifth and Sixth Amendments, as he does not mention 

them in his brief on appeal. 

4

 That calculation is not entirely accurate. Only 28 

days of non-excludable time passed between the March 2 

indictment and the March 31 arraignment, as neither of those 

dates should be included in the total. Duberry, 923 F.2d at 

320 n.8. Ninety days, however, passed between June 22 and 

September 21, meaning that the total of 118 days would in 

fact be correct, if Graves were correct about what is and is not 

excludable. 
7

made its competency ruling. The question before us is 

therefore whether a “delay resulting from” a competency 

proceeding extends until a hearing addressing the defendant’s 

competence is held, or just until the completion of a 

competency report. This issue appears to be one of first 

impression for us. 

To resolve the issue, we turn first to the language of 

the Speedy Trial Act, which excludes the “delay resulting 

from any proceeding, including any examinations, to 

determine the mental competency or physical capacity of the 

defendant.” 18 U.S.C. § 3161(h)(1)(A). By making clear that

the time spent examining the defendant is included in the 

delay attributed more generally to a competency proceeding, 

that provision indicates that such a proceeding involves more 

than just the competency examination itself. Furthermore, the 

use of the term “proceeding” suggests judicial involvement, 

not solely the collection of evidence. See Black’s Law 

Dictionary 1241 (8th ed. 2004) (defining “proceeding” as, 

inter alia, “[t]he business conducted by a court or other 

official body; a hearing”). The plain language of the Act 

therefore indicates that the excludable delay under

§ 3161(h)(1)(A) continues beyond the completion of the 

Bureau of Prisons competency report, which, important 

though it is, is only one step in determining a defendant’s 

competence to stand trial. 

That conclusion is consistent with 18 U.S.C. § 4241, 

the statute regarding competency determinations. Section 

4241 “provides a mandatory process” that is “intended to 

culminate in a record-based judicial determination of 

competence.” United States v. Haywood, 155 F.3d 674, 680 

(3d Cir. 1998). The prescribed process imposes a duty on the 
8

court to order a competency hearing whenever “there is 

reasonable cause to believe that the defendant” is mentally 

incompetent, id. (quoting 18 U.S.C. § 4241(a)), as the 

magistrate judge apparently found to be the case here. The 

court may then order a psychiatric examination of the 

defendant in order to “provide evidence for the hearing.” Id.; 

see also 18 U.S.C. § 4241(b) (“Prior to the date of the 

hearing, the court may order that a psychiatric or 

psychological examination of the defendant be conducted ... 

.”). After the hearing, the court must determine whether, by 

a preponderance of the evidence, “the defendant is presently 

suffering from a mental disease or defect rendering him

mentally incompetent” to proceed to trial. Id. § 4241(d). 

Section 4241 thus suggests that a hearing is a vital part of a 

“proceeding ... to determine the mental competency” of the 

defendant. Id. § 3161(h)(1)(A). 

The Speedy Trial Act does not limit the amount of 

time that may be spent on a competency proceeding. In fact, 

it provides that “[a]ny period of delay” for a competency 

proceeding “shall be excluded” from the 70-day calculation. 

Id. § 3161(h)(1). That broad language is in contrast with the 

language in a different subsection of the Act, § 3161(h)(6), 

which provides for the exclusion of a “reasonable period of 

delay when the defendant is joined for trial with a 

codefendant as to whom the time for trial has not run ... .” 

The reasonableness requirement in subsection (h)(6) is absent 

from most of the other excludable delay provisions,5and the 

 

5

 The other provisions that expressly include a 

reasonableness requirement are subsection (h)(1)(F), which 

provides that “any time consumed in excess of ten days” due 

to transportation of the defendant is “presumed to be 
9

Supreme Court in Henderson v. United States has taken that 

absence as an indication that Congress intended the exclusion 

of the periods defined in those other provisions to be 

“automatic.” 476 U.S. 321, 327 (1986) (internal quotation 

marks omitted). Thus, when it turns out that a hearing is 

necessary to resolve a pretrial motion, the entire period before 

the hearing is excluded from the Speedy Trial Act calculation, 

regardless of whether the delay was reasonable. Id. at 329-

30. Although in Henderson the Supreme Court was 

considering the particular exclusion for “delay resulting from 

any pretrial motion,” 18 U.S.C. § 3161(h)(1)(D), the language 

in the exclusion for competency proceedings is equally broad, 

see id. § 3161(h)(1)(A). Therefore, the Court’s reasoning is 

persuasive here as well, and it suggests that all delays 

attributable to a competency proceeding, reasonable or not, 

are excluded from the 70-day calculation.

Based on that precedent and on the statutory language

itself, we conclude that the period of excludable delay under 

§ 3161(h)(1)(A) begins when a party moves for, or the court 

sua sponte orders, a competency determination. The 

excluded time continues at least until a competency hearing is 

held, which occurred here on the same date that the District 

Court rendered its competency determination.6 In other 

 

unreasonable,” and subsection (h)(1)(H), which excludes 

delays “reasonably attributable to any period, not to exceed

thirty days, during which any proceeding concerning the 

defendant is actually under advisement by the court.” 

6 Because the District Court made its competency 

determination at the hearing, we need not resolve the question 

of when a post-hearing delay may also be excluded. We note, 

however, that in Henderson the Supreme Court held that 
10

words, the period between a request for a competency 

 

§ 3161(h)(1)(D) “excludes time after a hearing has been held 

where a district court awaits additional filings from the parties 

that are needed for proper disposition of the motion.” 476 

U.S. at 331 (interpreting § 3161(h)(1)(F), which is now 

codified at § 3161(h)(1)(D)). The Court explained that “[i]t 

would not have been sensible for Congress to exclude 

automatically all the time prior to the hearing on a motion and 

30 days after the motion is taken under advisement, but not 

the time during which the court remains unable to rule 

because it is awaiting the submission by counsel of additional 

materials.” Id. Thus, at a minimum, the delay due to a 

competency determination would likely remain excluded 

from the Speedy Trial calculation until the district court has 

received all papers and evidence needed to make that 

determination. The extent to which it extends beyond that 

point depends on whether § 3161(h)(1)(H) limits the amount 

of time a court can have the issue of competency under its 

advisement. That is an issue of statutory interpretation we 

need not reach here. 

We also need not, and do not, resolve the issue of 

whether an unreasonable delay in the transportation of a 

defendant to a competency examination is excludable. That 

issue has arisen in other cases due to § 3161(h)(1)(F). See, 

e.g., United States v. Tinklenberg, 579 F.3d 589, 596 (6th Cir. 

2009) (considering whether a delay in transporting a 

defendant to a mental competency examination beyond the 

ten day limit is excludable). That provision is not at issue 

here, and thus we do not reach the question of what impact it 

may have on delays for competency proceedings under 

§ 3161(h)(1)(A). 
11

examination and a hearing addressing that issue is clearly part 

of the “delay resulting from any proceeding ... to determine 

the mental competency or physical capacity of the 

defendant,” and therefore is “excluded ... in computing the 

time within which the trial ... must commence.” Id. 

§ 3161(h)(1)(A); see also United States v. Tinklenberg, 579 

F.3d 589, 596 (6th Cir. 2009) (“[A]ll delays caused by 

proceedings to determine a defendant’s competency are 

excluded, except for the time during which the defendant is 

supposed to be in transit, which is presumptively 

unreasonable if longer than ten days.”); United States v. 

Stephens, 489 F.3d 647, 653 (5th Cir. 2007) (“[T]he district 

court correctly concluded that [the defendant’s] motion for a 

competency evaluation stopped the clock from the date it was 

filed ... through the date the court ruled that [he] was 

competent to stand trial ... .”); United States v. Noone, 913 

F.2d 20, 25-26 (1st Cir. 1990) (excluding the “entire period” 

from when the motion to determine competency was filed 

through the date of the competency ruling, other than an 

unreasonable delay in transporting the defendant to the 

competency examination); United States v. Vasquez, 918 F.2d 

329, 333 (2d Cir. 1990) (“Since the delays here complained 

of by [the defendant] 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.”).7 

 

7

 Only the Eighth Circuit has held differently, 

calculating the time excluded as 30 days from the district 

court’s receipt of the competency report. United States v. 

Jones, 23 F.3d 1307, 1310 (8th Cir. 1994). The court based 

that holding on its conclusion that “the trial court had the 

discretion to hold or to forgo” a competency hearing. Id. at 
12

The District Court utilized the approach we now 

endorse, and we therefore can discern no error in its 

interpretation and application of the Speedy Trial Act. As all 

parties agree, the time between the indictment and the 

arraignment is not excluded under the Act. Accordingly, 28

of the 70 permitted days had passed before the magistrate 

judge ordered a competency examination on March 31, 2011. 

That order began a period of excludable “delay resulting from 

[a] proceeding ... to determine the mental competency ... of 

the defendant,” 18 U.S.C. § 3161(h)(1)(A), which continued 

until the September 21, 2011 hearing, at which the District 

Court considered the evidence of competency and rendered a 

decision. Although that decision ended the competency 

proceeding, and thus terminated that particular period of 

excludable delay, a new period immediately began because

Graves’s counsel requested a continuance, which the Court 

found served the ends of justice. See 18 U.S.C. 

§ 3161(h)(7)(A). Therefore, only the initial 28 days counted 

toward the speedy trial calculation. As that period is well 

within the 70 days provided by the Speedy Trial Act, the 

 

1309. That conclusion relied on a previous version of the 

competency statute, id., which required a hearing only if a 

competency examination “indicates a state of present insanity 

or ... mental incompetency in the accused,” see United States 

v. Pogany, 465 F.2d 72, 74 n.1 (3d Cir. 1972) (quoting the 

prior version of the statute, then codified at 18 U.S.C. § 4244) 

(internal quotation marks omitted). As discussed above, we 

have held that the current version provides for a “mandatory 

process” that involves a hearing in all instances in which 

competency is at issue. Haywood, 155 F.3d at 680. 

Accordingly, we decline to follow the approach adopted in 

Jones. 
13

District Court rightly held that Graves’s rights under the Act 

were not violated. 

IV. Conclusion

Because Graves’s trial began within the time allotted 

under the Speedy Trial Act, the District Court did not err in

denying his motion to dismiss the indictment. Accordingly, 

we will affirm.