RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0323p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JASON LOUIS TINKLENBERG,

 Defendant-Appellant.

X

-

-

-

-

>

,

-

-

-

N

Nos. 06-2646; 08-1765

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 05-00239-001—Richard A. Enslen, District Judge;

Paul Lewis Maloney, Chief District Judge.

Argued: June 19, 2009

Decided and Filed: September 3, 2009 

Before: KEITH, CLAY, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Julie Ann

Woods, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for

Appellee. ON BRIEF: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for

Appellant. Julie Ann Woods, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,

Michigan, for Appellee. Jason Louis Tinklenberg, Kalamazoo, Michigan, pro se.

CLAY, J., delivered the opinion of the court, in which KEITH, J., joined.

GIBBONS, J. (pp. 17-20), delivered a separate concurring opinion.

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant-Appellant Jason Louis Tinklenberg

(“Tinklenberg”) appeals his conviction and sentence after a jury found him guilty of one

count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and two

counts of possessing material to manufacture methamphetamine, in violation of 21 U.S.C.

1
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 2

§ 843. On appeal, Tinklenberg contends that the district court improperly denied his motion

to dismiss the indictment, because his trial began after the deadline imposed by the Speedy

Trial Act. Tinklenberg also challenges the district court’s subsequent finding that he

violated the terms of his supervised release, as well as the reasonableness of his ensuing

prison sentence. Because Tinklenberg’s trial violated the Speedy Trial Act, we REVERSE

Tinklenberg’s conviction and REMAND with instructions to dismiss his indictment with

prejudice. 

BACKGROUND

On October 20, 2005, the government charged Tinklenberg in an indictment in the

Western District of Michigan with one count of being a felon in possession of a firearm and

two counts of possessing items used to manufacture methamphetamine. At Tinklenberg’s

initial appearance on October 31, 2005, a magistrate judge ordered him detained, and

scheduled an arraignment hearing for November 2, 2005. On November 2, 2005, prior to

his scheduled arraignment, Tinklenberg moved to receive a psychological evaluation for

competency to stand trial. That day, instead of arraigning Tinklenberg, the magistrate judge

granted Tinklenberg’s motion, committing Tinklenberg “for a period not to exceed 30 days

for placement in an appropriate facility” for psychological evaluation. (ROA at 4, 36.)

Tinklenberg was transported to the Metropolitan Correctional Center in Chicago (the

“MCC”) for testing. 

On December 16, 2005, the government requested a thirty day extension of time to

complete Tinklenberg’s psychological evaluation, stating in its motion that the prison

psychiatrist responsible for evaluating Tinklenberg had reported that Tinklenberg “was not

cooperating in the effort to evaluate him.” (ROA at 38-39.) On December 20, 2005, the

district court granted the government’s request for an extension, and ordered that

Tinklenberg’s trial be held in abeyance until his psychological evaluation was completed.

On December 28, 2005, the magistrate judge set a deadline of February 13, 2006 for

completion of the testing. On February 10, 2006, the government requested a second

extension of time, until March 13, 2006, for completion of Tinklenberg’s evaluation. The

government’s request stated that the psychiatrist at the MCC had said that he needed an

additional four weeks to complete the evaluation, but did not explain the cause of the further
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 3

delay. On February 17, 2006, the magistrate judge granted the government’s second request

and set March 13, 2006 as the new deadline for completion of Tinklenberg’s evaluation.

On March 20, 2006, the court received the MCC’s psychiatric report on Tinklenberg.

Enclosed with the MCC’s evaluation was a cover letter from the warden of the MCC, which

stated that Tinklenberg “was designated to the [MCC] on November 10, 2005, and arrived

at the Institution on November 30, 2005.” (ROA at 147.) On March 22, 2006, the

magistrate judge held a competency hearing, and by order dated March 23, 2006, found

Tinklenberg competent to stand trial. On March 23, 2006, the magistrate judge also

arraigned Tinklenberg, who pled not guilty to all three counts against him. By order dated

March 27, 2006, the district court set the case down for trial on May 30, 2006.

On March 29, 2006, Tinklenberg filed an ex parte petition to receive an independent

competency evaluation. On April 17, 2006, the magistrate judge granted Tinklenberg’s

petition, ordered the independent evaluator to submit his report to the court by May 15,

2006, and stated that “the period of time until Defendant’s competency is determined shall

be excluded time for the purposes of the Speedy Trial Act[.]” (ROA at 53-54.)

On April 26, 2006, Tinklenberg filed a pro se motion for new counsel, and on May 9,

2006, Tinklenberg’s counsel moved to withdraw as Tinklenberg’s attorney. Counsel’s

motion indicated that Tinklenberg would not cooperate with the independent evaluator. The

district court once again adjourned the trial date and referred the motions by Tinklenberg and

his counsel to the magistrate judge to resolve. On June 7, 2006, the magistrate judge held

a hearing on the motions, and, on June 9, 2006, ordered new counsel appointed. With

respect to Tinklenberg’s competency evaluation, though the magistrate judge’s June 9, 2006

order is somewhat ambiguous, it appeared to find Tinklenberg competent, noting that the

independent evaluator had concluded as much and that Tinklenberg now opposed the

evaluation. The district court then scheduled Tinklenberg’s trial for August 15, 2006. On

July 25, 2006, the case was reassigned to a new district judge, and the new judge issued an

order moving the trial date forward one day, to August 14, 2006.

On August 1, 2006, the government requested permission to conduct a video

deposition of a witness. On August 3, 2006, the district court granted the government’s

motion, but ordered that “[t]he parties shall schedule said deposition posthaste so as not to
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 4

delay trial.” (ROA at 115.) On August 8, 2006, the government filed a request to bring two

guns into the courtroom during the trial as evidence, a request the court granted on

August 10, 2006.

On August 11, 2006, Tinklenberg moved to dismiss his indictment, claiming that the

time required for trying him pursuant to the Speedy Trial Act had lapsed. On August 14,

2006, the morning of trial, the district court denied Tinklenberg’s motion, finding that only

sixty-nine days had lapsed for the purposes of the Speedy Trial Act.

Tinklenberg’s trial began on August 14, 2006, and on August 16, 2006, the jury

convicted Tinklenberg on all three counts. On December 13, 2006, the district court

sentenced Tinklenberg to thirty-three months of imprisonment, followed by three years of

supervised release. On December 18, 2006, Tinklenberg filed a notice of appeal of his

conviction and sentence.

On April 21, 2008, while the appeal of his conviction and sentence was still pending,

Tinklenberg was released from prison. On April 28, 2008, Tinklenberg was re-arrested for

violating the terms of his supervised release by testing positive for cocaine. On May 16,

2008, the district court held an evidentiary hearing, at which a probation officer testified that

on April 23, 2008, he took a urine sample from Tinklenberg that tested positive for cocaine.

The government introduced into evidence the lab report showing the test results and

Tinklenberg’s signed statement admitting to cocaine use. On May 30, 2008, the district

court found that Tinklenberg had violated the terms of his supervised release by using

cocaine, and sentenced Tinklenberg to fourteen additional months in prison. Tinklenberg

timely appealed the additional sentence.

Tinklenberg’s challenge to his initial conviction, and his appeals of the finding that

he violated his supervised release and the ensuing sentence, were consolidated on appeal.

DISCUSSION

I. Speedy Trial Act Calculations

The Speedy Trial Act, 18 U.S.C. §§ 3161-74, mandates that “[i]n 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
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 5

filing date (and making public) 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.” § 3161(c)(1). The Speedy Trial Act allows exclusions of time

from the seventy day rule, including, inter alia,

[a]ny period of delay resulting from other proceedings concerning the

defendant, including but not limited to (A) delay resulting from any

proceeding, including any examinations, to determine the mental

competency or physical capacity of the defendant; . . . (D) 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; . . . [and] (F) delay resulting from transportation of any defendant

from another district, or to and from places of examination or

hospitalization, except that any time consumed in excess of ten days from

the date an order of removal or an order directing such transportation, and

the defendant’s arrival at the destination shall be presumed to be

unreasonable[.]

§ 3161(h)(1). The defendant bears the burden of proof to show a violation warranting

dismissal. § 3162(a)(2). This Court “reviews the district court’s interpretation of the Speedy

Trial Act de novo and its factual findings for clear error.” United States v. Marks, 209 F.3d

577, 586 (6th Cir. 2000).

Tinklenberg was indicted on October 20, 2005 and his trial began 287 days later, on

August 14, 2006. The district court found that only sixty-nine non-excludable days lapsed

during the interval. 

A. The Start of the Speedy Trial Clock

The district court found that the Speedy Trial clock began to run on October 31,

2005, the date that Tinklenberg first appeared after his October 20, 2005 indictment. The

government argues that in cases such as this one–where an indictment is filed and the

defendant subsequently appears, but does not plead not guilty until a later date–the seventy

day period does not begin until the not guilty plea. However, this Court has held that where

the defendant’s not guilty plea follows his indictment and initial appearance, whichever of

the indictment or initial appearance that occurs last starts the seventy day period. United

States v. Mentz, 840 F.2d 315, 325-26 (6th Cir. 1988). 
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 6

Moreover, the plain language of the statute supports starting the clock from the date

Tinklenberg initially appeared. “In any case in which a plea of not guilty is entered, the trial

of a defendant . . . shall commence within seventy days from the filing date (and making

public) 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) (emphasis added). Thus, the statute refers to the defendant’s plea in

setting forth the general precondition that the Speedy Trial Act’s requirements are only

relevant in cases in which the defendant proceeds to trial; otherwise, the statute make no

reference to the not guilty plea. See id. However, the statute uses different language, i.e.,

“the date the defendant has appeared,” as the time the seventy day period begins, if the

indictment has already been filed. Id. The well-established rule that “where Congress

includes particular language in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion[,]” Russello v. United States, 464 U.S. 16, 23 (1983), applies

even more clearly where Congress uses contrasting language in the same sentence. Thus,

under the plain language of the statute, “the date the defendant has appeared,” and not the

defendant’s “plea of not guilty,” begins the seventy day period. 

The government cites United States v. O’Dell, 154 F.3d 358, 360-62 (6th Cir. 1998),

to support its opposing position that if the initial appearance occurs before a defendant’s not

guilty plea, the date of the not guilty plea is the event that starts the clock. However, O’Dell

is inapposite. In O’Dell, the defendant initially agreed to plead guilty to manufacturing

marijuana pursuant to an information before an indictment was ever filed, and then

subsequently withdrew his plea. 154 F.3d at 359. The government then indicted him for the

first time, and he pled not guilty. Id. at 359-60. This Court held that the defendant’s

indictment represented an entirely new case against the defendant, and that the defendant’s

initial appearance after that indictment, when he pled not guilty, triggered the Speedy Trial

clock. Id. at 362. This Court found that the clock never started in the defendant’s earlier

case, because he never entered a not guilty plea in the earlier case. Thus, O’Dell stands only

for the proposition that the Speedy Trial Act does not apply to a case in which the defendant

never pleads not guilty. Although this Court opined that the Speedy Trial Act “requires a

not guilty plea to begin the clock running,” that statement was irrelevant to the outcome of
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 7

the case and was therefore dicta. See United States v. Lopez-Valenzuela, 511 F.3d 487, 490

(5th Cir. 2007) (concluding that this Court’s finding in O’Dell that a defendant’s not guilty

plea starts the seventy day period was dicta). 

In short, although the Speedy Trial Act applies only to cases in which the defendant

has entered a not guilty plea, the initial appearance after the indictment is the event that

triggers the seventy day period. Accordingly, Tinklenberg’s initial appearance on October

31, 2005 triggered the Speedy Trial Act’s seventy day period. Following Tinklenberg’s

initial appearance, one day, November 1, 2005, lapsed before Tinklenberg moved for, and

the court granted, a competency evaluation on November 2, 2005. The Speedy Trial clock

thereby stopped after one day had lapsed. 

B. Days Pretrial Motions are Filed and Decided

This Court has been somewhat inconsistent with respect to whether the day a pretrial

motion is filed and the day the court disposes of it should be excluded from the Speedy Trial

period. See, e.g., United States v. Crawford, 982 F.2d 199, 203-04 (6th Cir. 1993) (days on

which motion is filed and resolved are excluded); United States v. Thomas, 49 F.3d 253, 256

(6th Cir. 1995) (day on which motion is filed is excluded, but day on which motion is

resolved is included). However, the plain language of the statute mandates excluding the

days on which motions are filed and resolved. See § 3161(h)(1)(D) (excluding “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”) (emphasis added). Moreover,

the vast majority of appellate courts exclude the dates on which motions are filed and

resolved. See, e.g., United States v. Fonseca, 435 F.3d 369, 372 (D.C. Cir. 2006); United

States v. Papaleo, 853 F.2d 16, 21 (1st Cir. 1988); United States v. Oberoi, 547 F.3d 436,

454 (2d Cir. 2008); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317, 320 n.8 (3d Cir. 1991);

United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996); United States v. Johnson, 29

F.3d 940, 943 n.4 (5th Cir. 1994); United States v. Daychild, 357 F.3d 1082, 1093 (9th Cir.

2004); United States v. Yunis, 723 F.2d 795, 797 (11th Cir. 1984). 

Thus, we will exclude from the time computation the dates pretrial motions were

filed and resolved. In this case, the only two pretrial motions relevant to the Speedy Trial
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 8

1

Tinklenberg’s motion for a new counsel and his counsel’s motion to withdraw did not have any

impact on the Speedy Trial clock because both were filed after Tinklenberg moved for an independent

competency evaluation on March 29, 2006, and were resolved on June 9, 2006, the same day as the court

ruled on the competency motion. The only other pretrial motions at issue are the three pretrial motions filed

in August 2006, during the two weeks prior to trial, but those motions do not create excludable time for

the reasons discussed in Section I.D below. 

Act were the two competency evaluations.1 Under § 3161(h)(1)(A), delays caused by

competency evaluations are treated as a special category of excluded time, which will

be discussed in detail below. However, § 3161(h)(1)(A) does not specifically instruct

whether to count the days on which motions for such evaluations are made and resolved.

See § 3161(h)(1)(A) (stating only that “delay resulting from any proceeding, including

any examinations, to determine the mental competency or physical capacity of the

defendant” is excluded). Because the two incompetency evaluations were commenced

by way of pretrial motions raised by Tinklenberg, we will exclude the days those

motions were raised and resolved from the seventy day period, just as we would in the

case of any other pretrial motion. 

C. Competency Evaluations

The district court excluded from the Speedy Trial clock all of the days from

November 2, 2005 to March 23, 2006, and from March 29, 2006 to June 9, 2006,

because Tinklenberg’s two competency determinations were pending during those

periods. On appeal, Tinklenberg argues that 18 U.S.C. § 4247(b), which generally sets

the rules by which courts may commit defendants for psychiatric evaluations and limits

the period a defendant may be committed for evaluation to thirty days, should be applied

to limit the time excludable under the Speedy Trial Act to thirty days for Tinklenberg’s

competency evaluations. Pursuant to § 4247(b), “[f]or the purposes of an examination

pursuant to [a court] order, . . . the court may commit the person to be examined for a

reasonable period, but not to exceed thirty days[.]” However, this Court and “[e]very

court that has decided this issue ha[ve] concluded that § 4247(b) does not limit the time

period for a competency examination with respect to calculations under the Speedy Trial

Act.” United States v. Murphy, 241 F.3d 447, 456 (6th Cir. 2001). Accordingly,

Tinklenberg’s argument fails.
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 9

2

The government and the concurring opinion both cite Murphy, arguing that this Court has

already held that any delay in transporting a defendant for a mental competency examination is excludable,

notwithstanding the ten day limit imposed by § 3161(h)(1)(F). However, the Court in Murphy did not

address the interplay between § 3161(h)(1)(A) and § 3161(h)(1)(F), because the defendant’s failure to

submit any evidence of the duration of his transportation in support of his argument for a ten day limitation

allowed this Court to reject the defendant’s argument before reaching its merits. 241 F.3d at 455. After

rejecting the claim for lack of evidence, we stated, “[w]e also conclude that Defendant’s contention is

without merit.” Id. However, that statement was not necessary to the outcome, was not accompanied by

any interpretation of the statute, and was followed by a citation to Noone, whose interpretation of the

statutes we follow today. Id. at 455-56. 

Of more substance is Tinklenberg’s argument that the Speedy Trial Act limits to

ten days the time excludable for the transportation of a defendant to and from the

location of his competency evaluation. Although 18 U.S.C. § 3161(h)(1)(A) appears to

exclude all time during which a defendant’s competency evaluation and determination

is pending, § 3161(h)(1)(F) provides that any delay caused by the transportation of a

defendant “to and from places of examination or hospitalization” that is longer than ten

days is “presumed to be unreasonable.” Whether the ten day limit in § 3161(h)(1)(F)

applies to the time in which a defendant is transported to a place of examination pursuant

to a court’s competency evaluation order appears to be a matter of first impression for

this Court.2

 The few other appellate courts to have ruled on the issue are split: the First

and Fifth Circuits have held that an unreasonable delay in the transportation of the

defendant for a competency determination is not excludable, see United States v. Noone,

913 F.2d 20, 25-26 (1st Cir. 1990) and United States v. Castle, 906 F.2d 134, 137 (5th

Cir. 1990), while the Second Circuit has held that any delay associated with a

competency evaluation from the date of the order directing the evaluation until

completion of the competency hearing, including delay from transporting a defendant

for the evaluation, is excludable under § 3161(h)(1)(A), see United States v. Vasquez,

918 F.2d 329, 333 (2d Cir. 1990).

We hold that a delay in transporting a defendant to a mental competency

examination beyond the ten day limit imposed by § 3161(h)(1)(F) is presumptively

unreasonable, and in the absence of rebutting evidence to explain the additional delay,

this extra time is not excludable. Reading § 3161(h)(1)(A) to allow unlimited time for

transporting a defendant to a place of examination, as the Second Circuit did in Vasquez,

would create an internal conflict in the statute, since § 3161(h)(1)(F) expressly limits
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 10

3

The concurring opinion states that the phrase “to or from places of examination” in §

3161(h)(1)(F) “addresses more generally those situations in which a defendant may need to be transported

to the hospital for testing,” Concurring Op. at 19, but it is surely a leap to read “places of examination” to

exclude competency evaluations–the very type of “examination” that a defendant most typically undergoes

prior to trial.

the reasonableness of the transportation period to ten days. See Noone, 913 F.2d at 25

n.5 (finding that allowing unlimited excluded time for transporting defendants to

competency evaluation “would render mere surplusage the specific reference in

[§ 3161(h)(1)(F)] to transportation ‘to and from places of examination or

hospitalization’”). The only way to avoid conflict between § 3161(h)(1)(A) and

§ 3161(h)(1)(F) is to read § 3161(h)(1)(F) as a specific exception to the general rule

announced in § 3161(h)(1)(A): i.e., all 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.

See United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 202

(6th Cir. 1988) (“[W]e are bound to construe statutes in such a way as to avoid internal

conflicts whenever possible[.]”).3

On November 10, 2005, Tinklenberg was designated to the MCC in Chicago, but

did not arrive there until November 30, 2005. Under this Court’s precedent, weekends

and federal holidays are not included when calculating the ten day time period in which

the transportation delays are excluded. United States v. Bond, 956 F.2d 628, 632 (6th

Cir. 1992) (citing Federal Rule of Criminal Procedure 45(a)). Thus, although twenty

calendar days passed until Tinklenberg arrived at the MCC on November 30, 2005, only

two non-excludable days lapsed during that time: ten days were excludable under

§ 3161(h)(1)(F), six days were Saturdays or Sundays, and two days were federal

holidays. Accordingly, by the time Tinklenberg arrived at MCC in Chicago, two more

non-excludable days had lapsed, for a total of three non-excludable days to date.

The period from November 30, 2005 until March 23, 2006, the day the magistrate

judge found Tinklenberg competent, was continuously excludable time, pursuant to

§ 3161(h)(1)(A). See Murphy, 241 F.3d at 456. The next five days were not excludable,

bringing the total number of non-excludable days to eight. On March 29, 2006,
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 11

excludable time began again, because Tinklenberg filed a motion for an independent

psychiatric evaluation on that day. See § 3161(h)(1)(A). On April 17, 2006, the

magistrate judge granted Tinklenberg’s motion and ordered the independent competency

evaluation. Time was therefore excludable until June 9, 2006, when the court again

found Tinklenberg competent. From June 10, 2006 through July 31, 2006, fifty-two nonexcludable days lapsed, bringing the total number of non-excludable days to sixty. 

D. Motions That Do Not Delay Trial 

Between August 1, 2006 and August 14, 2006, the date of trial, three motions

were filed: on August 1, the government requested permission to conduct a video

deposition of a witness, and the court granted the motion on August 3; on August 8,

2006, the government filed a request to bring two guns into the courtroom during the

trial as evidence, a request the court granted on August 10, 2006; and on August 11,

2006, Tinklenberg moved to dismiss his indictment, with the district court denying the

motion on August 14, prior to the commencement of trial. All of these motions were

resolved without a hearing, and without any motion or order to delay the start of trial.

Yet in its calculations, the district court excluded from the Speedy Trial period the days

in which each motion was filed, pending and resolved.

As previously noted, any “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[]” is excluded from the seventy day Speedy Trial period. 18 U.S.C.

§ 3161(h)(1)(D). Thus, this Court has held that “[i]f a motion requires a hearing, the

entire time from the filing of the motion through the date of the hearing is excludable.”

United States v. Gardner, 488 F.3d 700, 717 (6th Cir. 2007). 

However, this Court has not addressed whether a pretrial motion that does not

delay trial, and does not have the potential to cause any such delay, is nevertheless

excludable. Every circuit to have addressed the issue appears to have held that the filing

of any pretrial motion stops the Speedy Trial clock, regardless of whether the motion has

any impact on the trial’s start date. See, e.g., United States v. Wilson, 835 F.2d 1440,

1443 (D.C. Cir. 1987); United States v. Hood, 469 F.3d 7, 10 (1st Cir. 2006); United
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 12

States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993); United States v. Dorlouis, 107 F.3d

248, 253-54 (4th Cir. 1997); United States v. Montoya, 827 F.2d 143, 151 (7th Cir.

1987); United States v. Titlbach, 339 F.3d 692, 698 (8th Cir. 2003); United States v. Vo,

413 F.3d 1010, 1015 (9th Cir. 2008); United States v. Vogl, 374 F.3d 976, 985 (10th Cir.

2004); United States v. Miles, 290 F.3d 1341, 1350 (11th Cir. 2002). Citing this

consensus, the government argues that nine days should be excluded in August as a

result of the three pretrial motions filed. We disagree, and hold that a pretrial motion

must actually cause a delay, or the expectation of a delay, of trial in order to create

excludable time. 

First, “the starting point in any case involving the meaning of a statute[] is the

language of the statute itself.” Group Life & Health Ins. Co. v. Royal Drug Co., 440

U.S. 205, 210 (1979). The statute provides that “[t]he following periods of delay shall

be excluded[,]” and then includes among the list of periods of delay “[a]ny period of

delay resulting from other proceedings concerning the defendant, including but not

limited to” eight different causes of “delay[.]” § 3161(h)(1) (emphasis added). One of

these excluded delays is “delay resulting from any pretrial motion[.]” § 3161(h)(1)(D)

(emphasis added). Thus, the statutory exclusion for pretrial motions contained in

§ 3161(h)(1)(D) and its two prefacatory clauses includes the word “delay” three different

times, and twice states that the delay must “result from” the pretrial motion. There is no

conceivable way to read this language other than to require a delay to result from any

pretrial motion before excludable time occurs. Most of the courts that have read this

delay requirement out of the statute have not examined the language of the statute

closely, although the Eleventh Circuit attempted to explain the statutory basis for its

interpretation as follows: “Although . . . [§ 3161(h)(1)(D)] reads ‘delay resulting from,’

the beginning of Section 3161(h) states that ‘[t]he following periods of delay shall be

excluded . . .’ The latter phrase clearly indicates that each period listed in Section

3161(h) automatically is a period of delay.” United States v. Stafford, 697 F.2d 1368,

1371 (11th Cir. 1983). While the Eleventh Circuit was correct that “each period listed

in Section 3161(h) automatically is a period of delay,” the court failed to recognize that

the “period” listed in § 3161(h)(1)(D) was not “any pretrial motion,” but rather, “delay
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 13

resulting from any pretrial motion[.]” In short, the argument set forth in Stafford simply

reads words out of the statute to reach its holding. See Bailey v. United States, 516 U.S.

137, 146 (1995) (noting that statutes are to be read so as to give each word a “particular,

nonsuperfluous meaning”).

Because the statute is clear, examining the legislative history is unnecessary. See

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“We have stated time and

again that courts must presume that a legislature says in a statute what it means and

means in a statute what it says there. When the words of a statute are unambiguous,

then, this first canon is also the last: judicial inquiry is complete.”) (quotations and

citations omitted). Nevertheless, it is noteworthy that the legislative history that our

sister circuits have cited to support reading the delay requirement out of the statute does

not actually support such a reading. Several of these courts have pointed to Congress’

rejection of a proposed amendment in 1979 that would have eliminated the automatic

exclusions of § 3161(h) in favor of giving judges the discretion to decide whether a

particular proceeding warranted excluding time. See, e.g., United States v. Novak, 715

F.2d 810, 813 (3d Cir. 1983); see also Stafford, 697 F.2d at 1371; Montoya, 827 F.2d at

151. Yet Congress’ rejection of judicial discretion in determining whether an exclusion

should apply was not a rejection of the entire delay requirement connected to pretrial

motions. Viewing Congress’ rejection of a proposed amendment to statutory language

as somehow showing an intent to move away from the plain meaning of the statute

would be nonsensical; if anything, Congress’ rejection of the amendment showed its

contentment with the plain language itself. Since Congress left the myriad references

to delay in the statute, its intent could only have been that where a pretrial motion or any

of the other proceedings listed in § 3161(h) causes delay, an exclusion of time is

automatic, regardless of the delay’s length or reason.

Several courts have also cited the Supreme Court’s decision in Henderson v.

United States, 476 U.S. 321 (1986), as consistent with the proposition that all pretrial

motions trigger excluded time, regardless of whether they actually cause delay. See, e.g.,

United States v. Parker, 30 F.3d 542, 549 (4th Cir. 1994); Vogl, 374 F.3d at 985. Yet
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 14

Henderson held only that under the statute, the time between the filing of a motion and

the conclusion of the hearing on that motion is excluded “whether or not a delay in

holding that hearing is reasonably necessary.” 476 U.S. at 330. In other words, any

delay that occurs during the pendency of a pretrial motion, regardless of whether the

delay could have been avoided or was due to the court’s own inefficiency, is excluded.

Id. at 326-27. Henderson did not address whether time is excluded when no delay

occurs at all, and therefore, offers no support for the flawed consensus established by

other appellate courts.

Thus, in the absence of any binding precedent to the contrary, this Court will

remain faithful to the statutory language and interpret 18 U.S.C. § 3161(h)(1)(D) as

excluding the time in which pretrial motions are filed and pending only if they could

possibly cause any delay of trial. None of the August 2006 motions caused any delay

of the trial, or even threatened to delay the trial. The trial began on August 14, 2006, the

date that had been scheduled before the three August motions were filed. Neither the

parties nor the district court expressed any intent to delay the trial in response to any of

these three motions. Upon the government’s filing of its motion on August 1, 2006 to

depose a witness by video, the court even ordered that “[t]he parties shall schedule said

deposition posthaste so as not to delay trial.” (ROA at 115.) In fact, the trial actually

began one day earlier than the August 15, 2006 trial date the court originally set at the

time of its second competency determination.

Excluding time for mundane pretrial motions to allow a gun into the courtroom

as evidence and depose a witness by video would frustrate the purpose of the Speedy

Trial Act. In the days immediately prior to trial, a litany of evidentiary motions are filed;

there is no evidence that Congress intended to eliminate those days from Speedy Trial

Act calculations, or intended the government to be able to avoid its responsibility to

conduct a timely prosecution simply by filing a flurry of evidentiary motions before trial.

Tinklenberg’s motion to dismiss, filed on the last business day before trial, did not cause

or threaten to cause any delay either; the district court denied the motion the morning of

the trial, and the parties proceeded immediately into voir dire that morning. In light of
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 15

4

The concurring opinion argues that Tinklenberg did not raise this issue before the district court

or on appeal. However, Tinklenberg unquestionably asked both this Court and the court below to count

the number of days that had lapsed for the purposes of the Speedy Trial Act; therefore, Tinklenberg

adequately preserved the overarching issue presented by this appeal.

the obvious understanding of the parties and the court that the motions filed just before

trial would not affect the trial schedule, we will include all thirteen days in August prior

to trial in the Speedy Trial Act calculation.4

Including these thirteen days, a total of seventy-three non-excludable days lapsed

prior to the start of Tinklenberg’s trial on August 14, 2006. The Speedy Trial Act was

therefore violated, and the district court’s denial of Tinklenberg’s motion to dismiss is

reversed.

II. Disposition

If a defendant is not tried within the required time limit, “the information or

indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2).

“The Speedy Trial Act does not specify whether dismissal should be with or without

prejudice, nor does it contain a default presumption one way or the other.” United States

v. Robinson, 389 F.3d 582, 586 (6th Cir. 2004). However, the statute does mandate that,

“[i]n determining whether to dismiss the case with or without prejudice, the court shall

consider, among others, each of the following factors: the seriousness of the offense; the

facts and circumstances of the case which led to the dismissal; and the impact of a

reprosecution on the administration of this chapter and on the administration of justice.”

§ 3162(a)(2).

An analysis of these factors leads us to conclude that Tinklenberg’s case should

be dismissed with prejudice. To be sure, the first two factors point to dismissal without

prejudice. This Court has previously held that one of Tinklenberg’s offenses, being a

felon in possession of a firearm, is a serious offense favoring dismissal without

prejudice. United States v. Carnes, 309 F.3d 950, 957 (6th Cir. 2002). There is no

evidence that the delay was due to any bad faith on the part of the government, and the

defendant’s trial began just three days after the seventy day Speedy Trial period expired.
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 16

See United States v. Howard, 218 F.3d 556, 561 (6th Cir. 2000) (finding that absence of

prosecutorial bad faith, or of evidence that prosecutor tried to take advantage of delay,

was factor supporting dismissal without prejudice); Carnes, 309 F.3d at 957 (exceeding

of seventy day limit by only eight days supported dismissal without prejudice).

However, a reprosecution in this case would nevertheless be contrary to the

administration of justice because Tinklenberg has already served the entirety of his

sentence, as well as his sentence for violating his supervised release, for which he should

have been released in July 2009 at the latest.

“In cases where the district court fails to set forth any findings, the appropriate

remedy would ordinarily be a remand to the court with instructions to provide findings

that are adequate.” Robinson, 389 F.3d at 588. Yet “‘[w]hile the decision is generally

the trial court’s in the first instance, remand for a hearing is not required if the answer

is so clear that no purpose would be served by a remand.’” Id. (quoting United States

v. Pasquale, 25 F.3d 948, 952 (10th Cir. 1994)). This is just such a case. Because no

purpose would be served by retrying Tinklenberg for the offenses for which he has

already been punished in full, there is no reason to require the district court to hold a

hearing on the issue. We will therefore remand, but with instructions that the district

court dismiss the case with prejudice.

III. Violation of Supervised Release 

Tinklenberg appeals the district court’s finding that he violated his supervised

release, and further appeals the reasonableness of his fourteen month sentence for the

violation. Because his case will be dismissed with prejudice, we dismiss these issues as

moot.

CONCLUSION

For the reasons set forth above, we REVERSE the district court’s denial of

Tinklenberg’s motion to dismiss, and REMAND with instructions that the district court

dismiss the indictment with prejudice. Tinklenberg’s appeals of the finding that he

violated his supervised release and his resulting sentence are DISMISSED as moot.
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 17

_________________________

CONCURRENCE

_________________________

JULIA SMITH GIBBONS, Circuit Judge, concurring. I agree that Jason

Tinklenberg’s trial violated the Speedy Trial Act and concur in all of the majority

opinion except for Part I.C. I write separately to clarify my views on several of the

difficult issues presented.

First, I agree with the majority that the plain language of § 3161(h)(1)(D)

requires us to exclude from the Speedy Trial Act clock the day on which a motion is

filed. See 18 U.S.C. § 3161(h)(1)(D) (excluding “delay resulting from any pretrial

motion, from the filing of the motion” (emphasis added)). To the extent that our case

law on this point conflicts, the earlier in time disposition controls because a published

opinion of this court is binding on subsequent panels. See United States v.

Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008). The earliest case I have located,

United States v. Richmond, 735 F.2d 208, 212 (6th Cir. 1984), held that the day on which

a motion is made is “automatically excludable.” Richmond is both consistent with the

statutory language and, absent any prior published opinion of this court to the contrary,

controlling. In light of Richmond, I concur in the majority’s conclusion that the day on

which a motion is filed is excludable.

I disagree, however, with the majority’s conclusion regarding delays in

transportation time to and from a mental competency examination. The Speedy Trial

Act requires that a defendant be brought to trial within seventy days, see 18 U.S.C.

§ 3161(c)(1), subject to certain excludable periods. One such excludable period is any

period of “delay resulting from any proceeding, including any examinations, to

determine the mental competency . . . of the defendant.” 18 U.S.C. § 3161(h)(1)(A).

Consequently, all “time associated with mental competency examinations [is] excluded

from the Speedy Trial clock.” United States v. Murphy, 241 F.3d 447, 455-56 (6th Cir.

2001); see also Henderson v. United States, 476 U.S. 321, 327 (1986). Here, the period

from November 2, 2005, through March 23, 2006, was excludable pursuant to
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 18

§ 3161(h)(1)(A). Notwithstanding the plain language of § 3161(h)(1)(A), however, the

majority concludes that § 3161(h)(1)(F) limits the amount of excludable time spent in

transportation to a mental competency examination. (Maj. Op. at 9.) I respectfully

disagree. Section 3161(h)(1)(F) provides that any “delay [in excess of ten days]

resulting from transportation of any defendant from another district, or to and from

places of examination or hospitalization . . . shall be presumed to be unreasonable.” As

is clear from the language of § 3161(h)(1)(F), that provision does not speak to

competency proceedings. Rather, it addresses more generally those situations in which

a defendant may need to be transported to the hospital for testing. See, e.g., United

States v. Garrett, 45 F.3d 1135, 1137, 1139-40 (7th Cir. 1995) (defendant transported

to hospital for pulmonary testing). Section 3161(h)(1)(A), by contrast, provides a

specific exclusion for any time associated with mental competency proceedings. I see

no reason why the specific provision of § 3161(h)(1)(A) should be qualified by the more

general provision of § 3161(h)(1)(F). See Sprague v. Gen. Motors Corp., 133 F.3d 388,

405 (6th Cir. 1998). In fact, we reached the same conclusion in Murphy. See 241 F.3d

at 456; see also United States v. Vasquez, 918 F.2d 329, 333 (2d Cir. 1990). The

defendant in Murphy raised the same argument that Tinklenberg raises here, namely, that

“a total of ten days can count as excludable time for transportation ‘to and from’ the

place of examination and that any other delay is ‘presumed to be unreasonable.’”

Murphy, 241 F.3d at 455. We rejected this argument:

We note that Defendant fails to point this Court to any evidence in the

record demonstrating the dates upon which he was transported to and

from the facility where the examination was conducted or the actual dates

that Defendant was admitted or released from the facility. We also

conclude that Defendant’s contention is without merit.

Id. (emphasis added). The majority insists, however, that we did not decide the question

in Murphy because “the defendant’s failure to submit any evidence of the duration of his

transportation in support of his argument for a ten-day limitation allowed this Court to

reject the defendant’s argument without reaching its merits.” (Maj. Op. at 9 n.2.) This

characterization of Murphy is refuted by the language quoted above. 
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 19

1

Although not dispositive in this case, I note that the court actually concluded that Tinklenberg

was competent at the hearing held on the previous day. We have held, albeit in an unpublished disposition,

that the § 3161(h)(1)(A) proceeding to determine the mental competency of the defendant is complete

“when, after a competency hearing[,] the court declare[s the defendant] competent to stand trial.” United

States v. Moore, 961 F.2d 1579 (table), 1992 WL 92740, at *5 (6th Cir. 1992) (per curiam). That is, the

day on which the court makes a finding of competency, rather than the day on which the written order of

competency is docketed, should control the Speedy Trial Act clock. Here, the difference of one day does

not affect my conclusion that the Speedy Trial Act was violated.

Based on the plain language of the Speedy Trial Act and our prior decision in

Murphy, I would find all time associated with Tinklenberg’s mental competency

examination, including transportation time, excludable pursuant to § 3161(h)(1)(A).

Tinklenberg entered his initial appearance on October 31, 2005. One day elapsed before

Tinklenberg filed a motion for a psychological evaluation to determine his competency

to stand trial on November 2, 2005. The district court granted the motion and ordered

psychological testing. After receiving a written evaluation and holding a competency

hearing, the court found Tinklenberg to be competent in an order dated March 23, 2006.1

Five days elapsed between the court’s finding of competency on March 23, 2006, and

March 29, 2006, when Tinklenberg filed a motion for an independent psychological

examination. The court granted Tinklenberg’s motion, received the second written

evaluation on June 9, 2006, and made a second finding of competency. Sixty-five

additional days elapsed between June 9, 2006, and the start of Tinklenberg’s trial on

August 14, 2006. By my calculations, a total of seventy-one nonexcludable days elapsed

between October 31, 2005, and August 14, 2006–one day beyond what the Speedy Trial

Act allows. See 18 U.S.C. § 3161(c)(1).

As to motions that do not delay the start of trial, several prudential considerations

would prevent me from reaching the issue. First, it appears to be waived. Tinklenberg

has not raised it in his appellate brief, a fact that ordinarily precludes our review. See

Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003) . Nor did he raise it in his

August 11, 2006, Speedy Trial Act motion to the district court. See Molina-Crespo v.

U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 662 (6th Cir. 2008). To the contrary, in his

motion for reconsideration in the district court, Tinklenberg apparently accepted the

proposition that certain days in August of 2006 were properly excluded pursuant to

§ 3161(h)(1)(D) although they did not delay trial. Second, I would not penalize the
Nos. 06-2646; 08-1765 United States v. Tinklenberg Page 20

government and the district court for acting, in the absence of any controlling authority,

upon the quite reasonable assumption that our circuit would align with the others to have

considered the issue in finding those days to be excludable. Nevertheless, because the

majority reaches the issue, I note my agreement with the majority’s reading of

§ 3161(h)(1)(D) as a matter of statutory interpretation. After today, district courts

should not exclude from the Speedy Trial clock days that are consumed by motion

practice but that do not cause actual delay.

I agree, therefore, that the Speedy Trial Act was violated. Whether Tinklenberg’s

indictment should be dismissed with or without prejudice presents a closer question. As

the majority acknowledges, several of the statutory factors point toward dismissal

without prejudice. See 18 U.S.C. § 3162(a)(2). There is no suggestion of improper

behavior on anyone’s part. Rather, “the district court’s error in this case was a goodfaith misinterpretation of the Speedy Trial Act’s requirements that resulted in a relatively

short delay of the trial.” See United States v. Howard, 218 F.3d 556, 561 (6th Cir.

2000). Neither the government nor the district court could have been expected to

anticipate our disagreement with the other ten circuits to have considered the

§ 3161(h)(1)(D) issue. Moreover, a dismissal with prejudice may have a negative impact

on the administration of justice, see § 3162`(a)(2), in that the instant offense will be

erased from Tinklenberg’s record. Should Tinklenberg be prosecuted again in the future,

his record will not reflect the true extent of his criminal history. Despite these concerns,

I agree that retrying Tinklenberg would be a poor use of government resources and serve

no worthwhile purpose. I therefore join the majority in finding that dismissal with

prejudice is warranted.