U.S. v. Johnson

Decision Date09 August 1994
Docket NumberNo. 93-8875,93-8875
Citation29 F.3d 940
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Edward JOHNSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Nancy Hollander, Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A., Albuquerque, NM, for appellant.

Joseph H. Gay, Jr., Richard L. Durbin, Jr., Diane D. Kirstein, Asst. U.S. Attys., James H. DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING, JOLLY and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, we are first required to determine whether delays in bringing the defendant to trial constitute a violation of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1985 & Supp.1994). We conclude that more than seventy non-excludable days lapsed prior to the defendant's trial, and consequently, the Speedy Trial Act was violated. Second, we must decide whether the indictment should be dismissed with or without prejudice. We conclude that the indictment should be dismissed without prejudice, and that the case may be retried.

I

In June 1992, Customs officials seized approximately 262 pounds of marijuana, and arrested James Edward Johnson--who was on parole from a prior offense--and several of his acquaintances. On July 1, 1992, Johnson was formally indicted on several drug counts. Johnson's jury trial commenced on October 18, 1993, 473 days after indictment. The jury convicted him on all counts.

Approximately two months before trial, on August 5, 1993, Johnson moved to dismiss his indictment based upon the Speedy Trial Act, which requires that trial commence within seventy non-excludable days after indictment. The district court denied this motion, stating generally that pretrial motions were pending and that seventy non-excludable days had not elapsed. Johnson filed this appeal.

II

Johnson contends that the district court should have dismissed his indictment with prejudice because more than seventy non-excludable days elapsed from the time of indictment until the time of trial. 1 We review the facts supporting a Speedy Trial Act ruling for clear error, but we review legal conclusions de novo. United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir.1991).

A

The Speedy Trial Act is designed to ensure a federal defendant's Sixth Amendment right to a speedy trial, and to reduce the danger to the public from prolonged periods of the defendant's release on bail. United States v. Gonzales, 897 F.2d 1312, 1315 (5th Cir.1990), cert. denied, 498 U.S. 1029, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991). To that end, the Act requires that a defendant be tried within seventy non-excludable days of indictment. If more than seventy non-excludable days pass between the indictment and the trial, the "indictment shall be dismissed on motion of the defendant." 18 U.S.C. Sec. 3162(a)(2) (1985); United States v. Forester, 836 F.2d 856, 858 (5th Cir.1988), cert. denied, 493 U.S. 920, 110 S.Ct. 284, 107 L.Ed.2d 264 (1989). Certain days are excluded from this calculation if those days fall within the Act's specific definition of "excludable days." See 18 U.S.C. Sec. 3161(h)(1) (1985); United States v. Gonzales, 897 F.2d at 1315. Once a defendant has moved to dismiss an indictment for a Speedy Trial Act violation, "[t]he defendant has the burden of proof of supporting [his] motion [to dismiss]." 18 U.S.C. Sec. 3162(a)(2) (1985); United States v. Williams, 12 F.3d 452, 459 n. 32 (5th Cir.1994); United States v. Melguizo, 824 F.2d 370, 372 n. 11 (5th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988).

473 days elapsed between Johnson's indictment and trial. This case turns, however, on whether certain periods of time should be excluded from the Speedy Trial Act calculation. In particular, we are concerned with two provisions of the Act. First, Sec. 3161(h)(1)(F) ("Subsection F") excludes "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." Section 3161(h)(1)(J) ("Subsection J") excludes "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 2

In Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the Supreme Court addressed these provisions in some detail. With respect to Subsection J, the Court stated that it "allows exclusions of up to 30 days while the district court has a motion 'under advisement,' i.e., 30 days from the time the court receives all the papers it reasonably expects...." Id. at 328-29, 106 S.Ct. at 1875-76. After that thirty-day period expires, the Speedy Trial clock begins to tick, regardless of when the trial court ultimately rules on the motion.

With respect to Subsection F, the Henderson Court noted that it applies in two different situations. Id. at 329, 106 S.Ct. at 1876. First, if a motion requires a hearing, Subsection F excludes the time between the filing of the motion and the hearing on that motion, even if a delay between the motion and the hearing is unreasonable. Id. at 329-30, 106 S.Ct. at 1876-77. Additionally, the Court concluded that Subsection F implicitly excludes also that time after a hearing needed to allow the trial court to assemble all papers reasonably necessary to dispose of the motion, e.g., the submission of post-hearing briefs. Id. at 330-31, 106 S.Ct. at 1876-77. Once the court has received all submissions from counsel, it then meets the Henderson definition of taking the motion "under advisement." The trial court then has thirty excludable days under Subsection J in which to rule before the Speedy Trial clock again begins to tick.

In addition, Subsection F also applies in those situations where a motion does not require a hearing. If no hearing is required, Subsection F allows exclusionary time for a "prompt disposition" of the motion. Id. at 330, 106 S.Ct. at 1876. Only that time needed for a "prompt disposition," however, is excluded under Subsection F. The point at which time will no longer be excluded is determined by Subsection J, which permits an exclusion of thirty days from the time a motion is actually "under advisement." Id. at 329, 106 S.Ct. at 1876; United States v. Santoyo, 890 F.2d 726, 727 (5th Cir.1989), cert. denied, 495 U.S. 959, 110 S.Ct. 2567, 109 L.Ed.2d 749 (1990). Thereafter, the fact that a motion is "pending," or is otherwise unresolved, 3 does not toll the Speedy Trial clock. With this explanation as our guide, we turn to the facts of this case.

B

To determine whether the Speedy Trial Act has been violated, we focus our attention only on specific periods of the 473 day time span between Johnson's indictment and his trial. As the district court's docket sheet indicates, there was very little activity in this case from late December 1992 until August 1993. Johnson contends that this period of time--specifically, the 188 days between January 28, and August 5, 1993 4--were non-excludable, and constitute the necessary days for a Speedy Trial Act violation. The government, however, contends that during this critical time period, at least one of four "pending" i.e., unresolved, motions rendered the days in question excludable under the Act. We will, in turn, consider each pending motion, and that motion's effect on the Speedy Trial Act calculation.

(1)

The first motion in question, the defendant's motion for a bill of particulars was filed on August 31, 1992. The government filed a response to the motion on September 16, but no hearing was conducted. The district court ultimately denied the motion approximate one year later on October 12, 1993. Johnson contends that, under Subsections F and J, the Speedy Trial clock was tolled from the date of filing, August 31, through October 16, 1992--thirty days following the filing of the government's response on September 16. We agree with Johnson's reasoning. Clearly, under Henderson, the time between filing of a motion and the opponent's response is excludable, because until the court has before it all papers necessary to rule, the court cannot be said to have taken the matter under advisement. Because, however, it is not always clear from the appellate record when or if a court took a matter under advisement, absent evidence to the contrary, we hold, as a matter of law, that a motion should be considered under advisement for Speedy Trial Act purposes on the day the last paper concerning the motion at issue was filed with the court. 5 In this case, as the docket sheet reflects, after the government filed its response to the motion, neither party filed additional materials concerning the Motion for a bill of particulars. Thus, for Speedy Trial Act purposes, the motion is considered under advisement on September 16, and through the next thirty days, the clock is tolled. Consequently, those days from October 16, 1992 until August 5, 1993 6 are not excludable for reasons associated with the motion for a bill of particulars.

(2)

The second motion, the defendant's motion in limine, was filed on December 16, 1992. The government never responded to this motion, and the court did not conduct a hearing on the matter before granting the motion on October 12, 1993. Because neither party ever filed additional materials concerning the motion in limine before it was ruled on, and because no hearing of any sort preceded the court's ruling, we consider the matter to have been under advisement beginning on December 16, 1992, the date the motion was filed. Thus, under Subsections F & J, the court had thirty excludable days--through January 15, 1993--in which to rule. Thereafter, none of the days between January 15, 1993 and August 5, 1993 7 are excludable for reasons associated with the motion in limine. 8

(3)

The third motion in...

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