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United States v. Mosteller

United States Court of Appeals, Fourth Circuit

February 4, 2014

UNITED STATES of America, Plaintiff-Appellee,
v.
Megan Nichole Hanson MOSTELLER, Defendant-Appellant.

Argued: Dec. 12, 2013.

Page 504

ARGUED:

Bradley M. Kirkland, Bradley M. Kirkland, LLC, Columbia, South Carolina, for Appellant.

William E. Day, II, Office of the United States Attorney, Florence, South Carolina, for Appellee.

ON BRIEF:

William N. Nettles, United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Judge MOTZ and Judge THACKER joined.

BARBARA MILANO KEENAN, Circuit Judge:

Megan Hanson Mosteller was charged with theft of government funds, in violation of 18 U.S.C. § 641. As a result of evidentiary problems occurring during her trial, Mosteller moved for a mistrial, which the district court granted on the condition that she waive her rights under the Speedy Trial Act, 18 U.S.C. §§ 3161 through 3174 (the Speedy Trial Act, or the Act). More than 70 days after the mistrial was declared, the court conducted a second trial, in which the jury found Mosteller guilty of violating 18 U.S.C. § 641. Mosteller did not assert a violation of the Speedy Trial Act in the district court, but alleges on appeal that her rights under the Act were violated.

We hold that although Mosteller's attempt to waive her rights under the Speedy Trial Act was null and void, she is not entitled to assert for the first time on appeal that a violation of the Act occurred. The plain language of the Act requires that a defendant asserting a violation of the Act move for dismissal of an indictment before a new trial begins, or be precluded from seeking such a dismissal. In view of this waiver imposed by statute, we are not permitted to consider Mosteller's argument that her rights under the Act were violated, even under the plain error standard of review. Accordingly, we affirm the district court's judgment.

I.

In September 2007, Megan and Jeremy Lewis Mosteller, Jr. (Jeremy), a lance corporal in the United States Marine Corps, ...


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