The Sixth Amendment to The United States Constitution guarantees all criminal defendants the right to a speedy and fair trial. In an effort to codify these constitutional protections, Congress enacted the Speedy Trial Act, 18 U.S.C. § 3161 (2006). The Speedy Trial Act requires that the trial of a defendant, who has been indicted or charged in an information and has plead not guilty, begin within seventy days. § 3161(c)(1). The Speedy Trial clock begins ticking when the filing date of the information or indictment is made public, or from the date, in which the defendant appears before a judicial officer, whichever date occurs last. § 3161(c)(1).

The Speedy Trial Act allows for exclusions of time from the
seventy day rule under various circumstances. For example, any
delay resulting from the transportation of a defendant to and
from places of examination or hospitalization shall be excluded,
with the exception of “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.” 18 U.S.C § 3161(h)(1)(F)
(2006 & Supp. 2009).

As of today, there is a split among federal circuits
regarding whether unreasonable delay in transporting a criminal
defendant for a competency determination is excludable when
determining if there has been a violation of the Speedy Trial
Act. The First, Fifth, Sixth, and Seventh Circuits have found
that an unreasonable delay in transportation, past ten days, are
non-excludable from the seventy day time limit. See U.S. v.
Noone, 913 F.2d 20, 25-26 (1st Cir. 1990); U.S. v. Castle, 906
F.2d 134, 137 (5th Cir. 1990); U.S. v. Tinklenberg, 579 F.3d
589, 596 (6th Cir. 2009); U.S. v. Garret, 45 F.3d 1135, 1139
(7th Cir. 1995). The Second Circuit has ruled that any delay
associated with transporting a defendant to and from a
competency testing is excludable. See U.S. v. Vasquez, 918 F.2d
329, 333 (2d Cir. 1990)(holding that ten month delay between
motion for psychiatric exam and receipt of competency report by
court is excludable). An unreasonable delay in transportation of
a defendant to a competency hearing should be non-excludable
when determining if there has been a violation of the Speedy
Trial Act. Federal circuits should adopt the reasonableness
standard applied in Tinklenberg, 579 F.3d at 596.

Ultimately, the federal circuits should universally adopt the Tinklenberg approach because it creates harmony within § 3161 and does not violate a defendant’s constitutional right to a speedy trial.

By adopting the Tinklenberg approach and not excluding
unreasonable delays in transportation, courts will effectively
create harmony within the § 3161. If a court adopted the Second
Circuit approach in Vasquez, which allows for an unlimited
amount of time to transport a defendant to competency hearings,
then an “internal conflict in the statute would arise.”
Tinklenberg, 579 F.3d at 596. An internal conflict would arise
because § 3161(h)(1)(F) expressly limits the transportation time
of a defendant to ten days. Conversely, § 3161(h)(1)(A)
expressly states that any delay resulting from any proceeding,
including any examinations, to determine the mental competency
or physical capacity of the defendant shall be excluded when
computing the time limit required by the statute. The only way
to avoid such a direct conflict would be to read § 3161(h)(1)(F)
as an exception to § 3161(h)(1)(A). Tinklenberg, 579 F.3d at
596. Therefore, all delays caused by proceedings to determine a
defendants competency shall be excluded, except for the time
spent transporting the defendant, which is “presumptively
unreasonable if longer than ten days.” Id.

Proponents of the Second Circuit approach argue that §3161(h) (1)(F) pertains to instances when a defendant may need to be transported to a hospital for testing. Tinklenberg, 579 F.3d
at 602. However, as the majority argues in Tinklenberg, it is a stretch to exclude competency testing from “places of examination” because such testing is the most basic type of pretrial testing for defendants. Id. at 597 n. 3.

By adopting the Tinklenberg approach and not excluding
unreasonable delays in transportation, defendants will receive
as speedy of a trial as possible, preserving their
constitutional rights. When § 3161(h)(1)(F) is strictly
interpreted any transportation time exceeding ten days is
unreasonable and therefore, non-excludable. The very essence of
the statute is being upheld. The Speedy Trial Act was created to
ensure that a defendant’s constitutional right to a speedy trial
was not violated. By allowing for an unlimited time of delay in
transportation, it is quite conceivable that such a
constitutional violation will occur. In essence the government
would not be held accountable to a speedy process and defendants
could be held indefinitely, all under the umbrella excuse of
transportation delay and budgetary constraints.

However, the ten day limit in transportation is a rebuttable presumption if any transportation time exceeding ten days can be justified. If the government can prove that some “extraordinary event occurred in the case to make compliance with the directions of Congress unfeasible” then delays may be excluded from the seventy day period. Castle, 906 at 138. Extraordinary circumstances could be such occurrences as natural disasters or terrorist attacks that directly impact the transportation of a defendant.

A rebuttable presumption approach is a compromise between
the Second Circuits approach and that of the Sixth Circuit in
Tinklenberg. A strict statutory interpretation is applied
affording defendants their constitutional rights to a speedy
trial, while also not holding the government strictly liable for
unforeseen or extraordinary circumstances beyond human control
during the transportation process.

In conclusion an unjustifiable and unreasonable delay in
transporting a criminal defendant for a competency
determination, past the ten day statutory limit, should not be
excluded when determining if there has been a violation of the
Speedy Trial Act.