[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 3, 2006

THOMAS K. KAHN

N o . 05-15407

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 04-20306-CR-AJ

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAYMOND SERRANO,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Florida

(O cto b er 3, 2006)

B efo re TJOFLAT, HULL and WILSON, Circuit Judges.

P E R CURIAM:

R aym o n d Serrano appeals his convictions for importation of heroin, in

v io latio n of 21U.S.C. § 952(a), and possession with intent to distribute heroin, in v io latio n of 21U.S.C. § 841(a)(1). On appeal, Serrano argues that the indictment sh o u ld have been dismissed by the district court based on alleged violations of the S p eed y Trial Act ("STA"), 18U.S.C. § 3161.

S e rr an o was arrested on the instant charges on April 20, 2004, and was r ele as ed on a personal surety bond. At the time, he had been serving a three-year te rm of supervised release in Puerto Rico. On May 18, 2004, a federal grand jury r etu r n e d the instant indictment. At a subsequent calender call, Serrano's counsel a d v is ed the court that Serrano was prepared to plead guilty, and the court sch ed u led his guilty plea hearing for July 30, 2004. Serrano failed to appear at the h earin g , and his counsel informed the court that Serrano had been planning to a tte n d and that he could not explain his absence. A warrant for Serrano's arrest was issu ed later that day.

On August 13, 2004, Serrano was sentenced, in the United States District C o u rt for the District of Puerto Rico, to a two-year term of imprisonment for v io la tin g terms of his supervised release. On January 27, 2005, Serrano was in d icted in the Southern District of Florida for failing to appear at his July 30, 2004 h earin g , in violation of 18U.S.C. § 3146(a)(1). He was arrested for this charge on F eb ru ary 17, 2005, made an initial appearance in the Southern District of Florida o n February 18, 2005, and was arraigned on February 22, 2005. That same day, S erran o was also rearrested on the drug trafficking charges.

On March 4, 2005, Serrano's counsel filed a motion, which was granted, to term in ate his appointment. On March 25, 2005, Serrano's new counsel filed a m o tio n for a continuance, explaining that he had not had adequate time to prepare fo r trial. The district court granted the motion. On April 25, 2005, Serrano's c o u n s el filed another motion, which was also granted, to continue the trial in order to file pre-trial motions and obtain documents from Puerto Rico.

On May 6, 2005, both parties filed a joint motion for a continuance, on the g ro u n d s that Serrano's counsel was scheduled to begin another jury trial and g o v ern m en t's counsel was scheduled to be out of the office for medical reasons.

The joint motion was granted by the court on May 9, 2005. In deciding all the three m o tio n s , the court stated that the interests of justice served by a continuance o u tw eig h ed any interest of the public or the defendant in a speedy trial and that the p erio d of delay was excludable time under the STA.

On May 20, 2005, Serrano filed a motion to dismiss the indictment on the g ro u n d that the STA required that his trial begin within 70 days of the date his in d ic tm e n t was filed. He argued that the government's failure to bring him back fro m trial while he was in Puerto Rico or while he was incarcerated resulted in a v io latio n of the Act. On June 21, 2005, the district court denied Serrano's motion to dismiss the indictment on STA grounds, finding, inter alia, that the period b etw een July 30, 2004 and February 18, 2005 was excludable under § 3161(k)(1) b e c au s e : (1) Serrano was absent for more than 21 days; (2) his whereabouts were u n k n o w n ; and (3) he was trying to avoid apprehension or prosecution, under § 3161(h)(3)(B). Shortly thereafter, Serrano pled guilty to the charges in the in stan t indictment, reserving in writing his right to appeal the district court's June 2 1 , 2005, order. In this appeal he seeks review of the district court's order denying h is motion to dismiss, and further argues that the continuances were improperly ex clu d ed from the STA time calculations.

S ta n d a r d of Review W e review conclusions of law under the STA de novo. United States v. B ro w n , 285 F.3d 959, 961 (11th Cir. 2002). However, a district court's factual d eterm in atio n s as to what constitutes excludable time is reviewed for clear error.

United States v. McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996).

D is c u s s io n I . Delay caused by the defendant's initial `absence': O n appeal, Serrano challenges the district court's determination that the p erio d between July 30, 2005 and February 18, 2005 was excludable. The STA, w h ic h generally requires that a trial begin within seventy days of the filing of an in d ictm en t or appearance before a judicial officer, specifically excludes "[a]ny p erio d of delay resulting from the absence or unavailability of the defendant." 18 U .S .C . § 3161(h)(3)(A). The statute deems a defendant `absent' when his "w h ereab o u ts are uncertain and, in addition, he is attempting to avoid apprehension o r prosecution or his whereabouts cannot be determined by due diligence." Id. A d e f en d a n t is unavailable "whenever his whereabouts are known but his presence at trial cannot be obtained by due diligence" or he resists appearing at trial. Id at § 3161(h)(3)(B). Additionally, when the defendant is absent or unavailable at the d ate of his trial and does not appear before the court within 21 days, § 3161(k)(1) r es ets the speedy trial clock to begin running on the date of such appearance.

S erran o first argues that the government was aware of his whereabouts from A u g u st 13, 2004 to February 17, 2005 as he was incarcerated in Puerto Rico during th a t time. Additionally, he alleges that there is no evidence in the record to support th e court's finding that his whereabouts were unknown prior to his August 13, 2 0 0 4 sentencing, and therefore, he should not have been found to be absent.

Serrano further claims that even if his whereabouts are considered unknown, h is failure to appear, without more, is insufficient to establish that he was a tte m p tin g to avoid apprehension or prosecution under § 3161. Finally, he alleges th a t nothing in the record establishes that the government exercised due diligence in attempting to determine his whereabouts or that he resisted appearing at trial, th u s precluding a finding of both absence and unavailability.

W e find that there is sufficient evidence to support the district court's f in d in g s that Serrano was absent for STA purposes. The record establishes that S e rr an o 's attorney was unaware of his whereabouts at the time he failed to appear b efo re the court. Additionally, contrary to Serrano's assertions, there is no in d ic atio n that the government was aware of his subsequent incarceration - in fact b o th the government and the district court attempted to contact Serrano at his home ad d ress during his period of incarceration. See Whaley v. U.S., 394 F.2d 399, 4010 2 (10th Cir. 1968) (rejecting defendant's assertion that the authorities should have k n o w n about his whereabouts while he was detained by the state in a jail housing fed eral prisoners when the government attempted to reach him by mail and his atto rn ey attempted to contact him at his earlier residence.) W e further find that the district court's conclusion that Serrano was attem p tin g to avoid apprehension or prosecution is not clearly erroneous. At the tim e of the guilty plea hearing, Serrano's attorney stated that Serrano was aware of th e date of the hearing and was planning to attend. Additionally, Serrano's parole o f f ic er testified that Serrano had informed her about the date of the hearing. Even if we were to ignore these facts, and accept Serrano's claim that a mistake may h av e been responsible for his initial non-appearance, his failure to communicate w ith the court or counsel would provide support for the district court's conclusion.

Serrano posits that it was nevertheless the government's obligation to find h im in Puerto Rico and bring him to trial. However, we are reluctant to reward him f o r his silence in these circumstances. We have previously held that a delay caused b y a defendant's failure to appear for a hearing was excludable under § 3161(h)(3)(A), noting that "[w]e refuse to add to [the defendant's] n o n - e x c lu d a b le time because of delay caused by his own inaction." United States v. Stafford, 697 F.2d 1368, 1375 (11th Cir. 1983); see also United States v. Helms, 8 9 7 F.2d 1293, 1300 (5th Cir. 1990) superseded on other grounds by United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992) (holding that a delay caused by a cod efen d an t's failure to appear for trial is excludable under § 3161(h)(3)(A)).

We therefore find that district court did not err in finding that Serrano was a b s en t from July 30, 2004 to February 18, 2005 and that the delay of his trial was ex clu d ab le under the STA, such that dismissal of the indictment was not required.

Since we find that the Serrano's whereabouts were properly deemed to be u n k n o w n and that he was appropriately found to be attempting to avoid p r o s e cu tio n or apprehension, we need not consider his arguments regarding other b ases for determining non-excludability.

II. Delay caused by granting continuances of trial Serrano also argues that the delay resulting from the continuances granted by th e court are not excludable time under the STA because the district court failed to s p e cif ic ally state, on the record, its reasons for granting the continuance, as req u ired by § 3161(h)(8)(A). Although Serrano filed a motion to dismiss on STA g ro u n d s before the district court, his motion was based on failure to bring him to trial while he was in Puerto Rico or in federal prison. His challenge to the propriety o f the continuances is raised for the first time on appeal.

S e ctio n 3162(a)(2) of the STA places the burden of making speedy trial c h a lle n g e s on the defendant and mandates that "[f]ailure [] to move for dismissal p r io r to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver o f the right to dismissal under this section." We have routinely refused to hear S T A -b ased claims that were not raised in the District Court. See e.g. United States v. Register, 182 F.3d 820, 828 (11th Cir. 1999); United States v. Stitzer, 785 F.2d 1 5 0 6 , 1520 (11th Cir. 1986); United States v. Tenorio-Angel, 756 F.2d 1505, 1508 ( 1 1 th Cir. 1985).1 Courts reviewing these claims have similarly refused to hear c la im s based on delays occurring after a motion to dismiss was filed, when that m o tio n was not renewed prior to trial or entry of a plea. See e.g. United States v. T in so n , 23 F.3d 1010, 1012 (6th Cir. 1994); United States v. Conner, 926 F.2d 81, 8 4 (1st Cir. 1991); United States v. Mayes, 917 F.2d 457, 460 (10th Cir. 1990).

In this instance, Serrano filed his motion to dismiss on May 20, 2005, but ch allen g ed only the government's failure to try him prior to his February 18, 2005 a rr es t. While we have not directly addressed the need to identify the particular b asis for an STA claim in a motion to dismiss in order to preserve the right to d ism issal, as a general procedural principle, defendants must raise each specific issu e or objection before a district court in order to preserve the issue. See e.g.

U n ited States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (noting that a d efen d an t must raise an objection to her sentence in such clear and simple lan g u ag e that the trial court may not misunderstand it in order for it to be co n sid ered to have been raised below) (internal quotation marks and citation o m itted ); United States v. Reyes-Vasquez, 905 F.2d 1497, 1500-01 (11th Cir. 1990) (h o ld in g that when the factual basis for an objection is included in a sentencing reco rd but is presented to the Court under a different legal theory, it will not be co n sid ered on appeal); United States v. Thompson, 710 F.2d 1500, 1504 (11th C ir.1 9 8 3 ) (alternate justifications for a search waived by government's failure to raise them at suppression hearing before the District Court). See also American F id elity & Cas. Co. v. Drexler, 220 F.2d 930, 934 (5th Cir. 1955) (noting that it is th e duty of counsel to state the grounds for an objection, and in proper instances, th e authority that supports his position).

Normally, the specific grounds for a STA claim in a motion to dismiss must b e brought before the district court in order to preserve those grounds for review.

W e have frequently observed that "as a court of appeals, we review claims of ju d ic ia l error of the trial courts. If we were to regularly address questions . . . that d istricts courts never had a chance to examine, we would not only waste our reso u rces, but also deviate from the essential nature, purpose, and competence of a n appellate court." Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1 3 3 1 (11th Cir. 2004).

We find that Serrano has waived his second claim for purposes of this ap p eal, and we will not consider it.

A F F IR M E D .

1 We acknowledge that decisions reviewing alleged speedy trial violations have occasionally concluded that a defendant merely forfeits, rather than waives, his STA rights by failing to raise his claim in a timely manner thus allowing for plain error review. See e.g. United States v. Griffin, 194 F.3d 808, 824 (7th Cir.1999); United States v. Schwensow, 151 F.3d 650, 654 (7th Cir.1998); United States v. Carrasco, 257 F.3d 1045, 1050-53 (9th Cir.2001). See also United States v. Olano, 507 U.S. 725, 731-732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (describing the difference between forfeiture and waiver of a right). However, "[t]he Act explicitly provides that a defendant's failure to move to dismiss the indictment constitutes a waiver--not a forfeiture--of his rights under the Act, 18U.S.C. § 3162(a)(2), and we may not disregard this provision." United States v. Morgan, 384 F.3d 439, 443 (7th Cir. 2004).