U.S. v. Simmons, 1083

• Citation: 763 F.2d 529
• Decision Date: 31 May 1985
• Docket Number: No. 1083,D,1083
• Parties: UNITED STATES of America, Appellee, v. Charles SIMMONS, Defendant-Appellant. ocket 84-1445.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 529

763 F.2d 529

UNITED STATES of America, Appellee, v. Charles SIMMONS, Defendant-Appellant.

No. 1083, Docket 84-1445.

United States Court of Appeals Second Circuit.

Argued April 22, 1985.

Decided May 31, 1985.

Robin Charlow, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

Robert Gage, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Stacey J. Moritz, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before FEINBERG, Chief Judge, and FRIENDLY and NEWMAN, Circuit Judges.

FEINBERG, Chief Judge:

Charles Simmons appeals from a judgment of conviction, entered in the United States District Court for the Southern District of New York, before Judge Thomas P. Griesa, after appellant's conditional guilty plea to the charge of possession of heroin with intent to distribute, 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(A). In pleading guilty, Simmons expressly reserved his right to appeal both the denial of his motion to dismiss under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., and the denial of his motion to suppress certain evidence. He was then sentenced to five years imprisonment and a three-year special parole term. For the reasons stated below, we remand for further findings on appellant's Speedy Trial Act claim and affirm as to his remaining claims.

I. FACTS

On March 28, 1984, appellant Simmons and two others, Albert Thrower and Robert Moore, were arrested in connection with the sale of a small quantity of heroin to an undercover police officer. The following day, Simmons appeared before a United States Magistrate on a complaint charging him with possession of heroin with intent to distribute. The complaint was sworn to by arresting officer William Grogan, who asserted that the undercover officer told him the following: The undercover officer approached two men (Moore and Thrower) on the street and asked where he could buy "a half," which is a package of heroin that sells for $20. The two men told the undercover officer to wait outside a game room while they went inside. The officer watched them go into the game room and engage in a brief conversation with Charles Simmons. (According to testimony elicited at the suppression hearing, the game room had both a glass window and a glass door.) Moore and Thrower then left the game room, returned to the undercover officer and handed him a glassine envelope containing what later proved to be heroin. Shortly thereafter, the undercover officer described Simmons, as well as Moore and Thrower, to officer Grogan. Grogan then went to the game room and arrested Simmons, discovering six glassine envelopes of heroin in Simmons' possession.

Simmons was indicted in three counts on April 9, 1984, subsequent to his appearance before the Magistrate. Accordingly, section 3161(c)(1) of the Speedy Trial Act mandated that Simmons' trial begin within seventy days of April 9, unless time was excluded pursuant to 18 U.S.C. Sec. 3161(h). On June 14, 1984, Simmons filed a pretrial motion asserting that he had been arrested without probable cause and that the heroin found in his possession and certain pretrial statements should therefore be suppressed. The speedy trial "clock" was thus stopped after sixty-five days had elapsed. ¹ 18 U.S.C. Sec. 3161(h)(1)(F). The return date of the suppression motion was June 28; on June 29 the government requested and, with the concurrence of defense counsel, was granted until July 3 to file a reply. The government did not file its response until July 13, to which Simmons replied on August 1. On August 21, the government filed its response to Simmons' August 1 letter.

One month later, at a pretrial conference held on September 21, 1984, the district court scheduled a hearing on the suppression motion for October 2. At the same conference, Simmons' counsel stated his "intention to file a motion to dismiss for violation of the Speedy Trial Act." After the parties orally recounted the timing of the relevant motion practice, the district court noted that "nobody moved like lightning, but nobody was really dragging their feet." And while the court stated that it did not think the Act had been violated, it also suggested the possibility of "further discussion of a Speedy Trial motion" after the suppression hearing.

After an additional delay of a week at the instigation of the court for reasons unexplained in the record, the suppression hearing was held on October 9, 117 days after the motion to suppress was filed. Over defendant's objection that the undercover officer should testify, the government presented the testimony of Grogan, the arresting officer. The defense called no witnesses in support of the motion, relying principally on an affidavit submitted by Simmons with the motion to suppress and on post-arrest statements made by Moore and Thrower exonerating Simmons. At the close of the October 9 suppression hearing, the district court denied Simmons' motion, concluding that the arrest had been supported by probable cause.

On October 10, the court and counsel further discussed the speedy trial question. Although both the court and the government apparently assumed that "four or five days" still remained on the speedy trial clock, the court never expressly denied appellant's motion to dismiss. On October 12, Simmons entered a plea of guilty to Count Three of the three-count indictment, which charged him with possession of heroin with intent to distribute. He expressly conditioned his plea on the right to appeal both the denial of the suppression motion and the denial of the motion to dismiss under the Speedy Trial Act. Simmons was sentenced on December 7, 1984, and this appeal followed.

On appeal, Simmons argues that (1) he was not brought to trial within the time limits of the Speedy Trial Act and his indictment must therefore be dismissed; ² (2) his arrest was not supported by probable cause and the district court therefore erred in denying his motion to suppress; and (3) the prosecutor "intimidated" potential defense witnesses, depriving Simmons of his due process rights.

II. SPEEDY TRIAL

When Simmons filed his motion to suppress on June 14, 1984, just five days remained on his seventy-day speedy trial clock. The motion was denied on October 9, 1984, and three days later, on October 12, Simmons entered his conditional guilty plea. Simmons' speedy trial claim turns on whether the period from June 14 to October 9 is excludable pursuant to 18 U.S.C. Sec. 3161(h)(1)(F), which 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." If the entire period is excludable, as the government contends it is, then Simmons pled guilty on the sixty-eighth day of his speedy trial clock, and the Speedy Trial Act was not violated; if three or more days of that period are not properly excludable, however, Simmons was not brought to trial within the mandated seventy days and his indictment must be dismissed.

In United States v. Cobb, 697 F.2d 38, 44 (2d Cir.1982), we held that under section 3161(h)(1)(F),

the period of allowable excludable delay applicable to a pretrial motion begins automatically with the making of the motion and runs for a period of time that is "reasonably necessary" to conclude a hearing or to complete the submission of the matter to the court for a decision. Under this view, long postponements of hearing dates, unless reasonably necessary, would not qualify as excludable time, nor would unnecessarily long extensions of time for the submission of papers.

Recognizing that many considerations, some not likely to be disclosed in the record, might induce the district judge to defer the suppression hearing, we held further that it is the district judge who must in the first instance determine whether under all the circumstances the period of delay was reasonably necessary for processing the motion. This conclusion requires us to reverse and remand to the district court for that purpose.

Id. at 44-45. See also United States v. Mitchell, 723 F.2d 1040, 1047 (1st Cir.1983); United States v. Janik, 723 F.2d 537, 543 (7th Cir.1983); United States v. Novak, 715 F.2d 810, 820 (3d Cir.1983); cert. denied, --- U.S. ----, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984). Appellant contends that most of the period from June 14 to October 9 was not "reasonably necessary" for processing his relatively straightforward motion to suppress. While noting the government's slowness to respond to his June 14 and August 1 submissions--the response took 29 days in the former instance and 20 in the latter--appellant emphasizes the delay between August 21 and October 9, during which no papers were filed by either party. The government answers that because the suppression motion was "vigorously contested" by both sides, the entire period was "reasonably necessary." Indeed, the government contends that it was because of the extensive briefing that the district court was able to hold the hearing and decide the motion in just one day. Our ability to evaluate these competing positions is hindered by the district court's failure to rule explicitly on Simmons' speedy trial motion. Although Judge Griesa apparently did deny the motion, he did not make the findings contemplated by Cobb, supra, 697 F.2d at 44-46. The court's statement that "nobody was really dragging their feet," while perhaps a ruling that neither counsel had been dilatory, does not constitute a finding that the period from June 14 to October 9 was "reasonably necessary" for processing the motion.

Unlike the determination that time will be excluded from the speedy trial clock based on the "ends of justice," 18 U.S.C. Sec. 3161(h)(8)(A), which we have held must be made prospectively, see United States...