Decided: February 4, 2014
The Fourth Circuit Court of Appeals affirmed the district court’s judgment charging Megan Hanson Mosteller (“Mosteller”) with theft of government funds. The Fourth Circuit held that although Mosteller’s attempt to waiver her rights under the Speedy Trial Act (“the Act”) was null and void, she was not entitled to assert for the first time on appeal that a violation of the Act occurred, based on the plain language of the Act. Therefore, in view of this waiver imposed by statute, the Fourth Circuit may not review for plain error Mosteller’s argument asserting a violation of the Act.
In September 2007, Megan and Jeremy Lewis Mosteller, Jr. (“Jeremy”) were married. In March 2008, Jeremy committed suicide. After Jeremy’s death, Megan Mosteller applied for and began receiving “dependency and indemnity compensation” as Jeremy’s surviving spouse from the Department of Veteran Affairs (“VA”). She was required to inform the VA of any change in marital status. Mosteller also applied for and received education benefits, for which she was obligated to notify the VA if she ceased attending classes or remarried. In August 2008, Mosteller remarried. She did not inform the VA of her change in marital status and continued to receive surviving spouse benefits until October 2010. Additionally, Mosteller did not inform the VA that after receiving the education benefits, she had not attended any classes. Mosteller was charged with one count of theft of government funds. Notably, the indictment charged her with theft of surviving spouse benefits but did not include any reference to education benefits.
Mosteller’s first trial began on November 11, 2011. When evidence was introduced at trial regarding the education benefits, for which she was not charged, Mosteller moved for a mistrial. The court decided to grant a mistrial on the condition that Mosteller waive her rights under the Act. Two weeks later, the grand jury issued a superseding indictment, charging Mosteller based on her receipt of both the education and the surviving spouse benefits. Although Mosteller’s second trial began on February 21, 2012, well more than 70 days after the mistrial, Mosteller did not move to dismiss the superseding indictment based on a violation of the Act.
On appeal, Mosteller argued that the district court erred in requiring that she waive her rights under the Act as a condition of granting a mistrial, and that her rights under the Act were violated.
The Act generally requires that a trial begin “within 70 days of the filing of an information or indictment or the defendant’s initial appearance.” Or, in the event of a mistrial, a new trial must begin within 70 days “from the date the action occasioning the retrial becomes final.” Under the Act, if a defendant makes a timely motion to dismiss, the remedy for a violation of the Act is dismissal of the information or indictment. Significantly, the Act contains a waiver provision stating that the “failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.”
The Fourth Circuit initially agreed with Mosteller that the district court erred in requiring that she agree to waive her rights under the Act as a condition of granting the mistrial. Based on the Supreme Court’s holding in Zedner, a defendant may not waive application of the Act for a violation that has not yet occurred. However, the Zedner court further explained that although a defendant may not waive future application of the Act, a waiver nevertheless will result by operation of the statutory waiver provision if the defendant fails to move to dismiss the indictment before the new trial begins. Therefore, the Fourth Circuit concluded that Mosteller’s failure to make a timely motion to dismiss an indictment before the start of the new trial constituted a waiver of the defendant’s right to assert a violation of the Speedy Trial Act, based on Zedner.
However, the Fourth Circuit for the first time addressed the question whether plain error review was available to consider asserted violations of the Act not timely raised in the district court. The Fourth Circuit noted that the express language of the waiver provision states that the failure to file a motion to dismiss before trial “shall” constitute a “waiver of the right to dismissal” under the Act. Based on the unambiguous terms of the statute, “waiver of the right to dismissal” is the only possible outcome of a defendant’s failure to file a timely motion to dismiss under the act. Therefore, because the Act specifies that such a “waiver” occurs when a defendant fails to timely assert a Speedy Trial Act violation in the district court, the Fourth Circuit concluded it was not permitted to conduct any appellate review, for plain error or otherwise, of Mosteller’s claim.
– Sarah Bishop