U.S. v. Simmons

Citation786 F.2d 479
Decision Date12 March 1986
Docket NumberD,No. 622,622
PartiesUNITED STATES of America, Appellee, v. Charles SIMMONS, Defendant-Appellant. ocket 85-1359.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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

Robert Gage, New York City, Asst. U.S. Atty. for S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., Stuart E. Abrams, Asst. U.S. Atty., of counsel), for appellee.

Before FEINBERG, Chief Judge, and FRIENDLY * and WINTER, Circuit Judges.

FEINBERG, Chief Judge:

Charles Simmons appeals from the judgment of the United States District Court for the Southern District of New York, Thomas P. Griesa, J., which held that the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (the Act), had not been violated by delay in processing appellant's suppression motion. On a prior appeal to this court, we found that, aside from the period of the pendency of the suppression motion, 68 days of nonexcludable time had elapsed on appellant's speedy trial clock. We find that the 117-day period from the filing of appellant's motion to the hearing on it, when seen in its entirety, was not reasonably necessary to the processing of the motion and that at least three days of this period were not excludable under 18 U.S.C. Sec. 3161(h)(1)(F). Accordingly, section 3161(c)(1) of the Act requires dismissal of the indictment. After considering the factors listed in section 3162(a)(2), we have determined that dismissal should be without prejudice.

I.

The facts leading to Simmons' indictment are set forth in detail in our earlier opinion, reported at 763 F.2d 529. Appellant, Albert Thrower and Robert Moore were arrested in connection with the sale of a small amount of heroin to an undercover police officer. On April 9, 1984, Simmons was charged in three counts of a four-count indictment with conspiracy to distribute heroin, distribution of heroin and possession of heroin with intent to distribute in violation of 21 U.S.C. Secs. 846, 812, 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. Sec. 2. Under 18 U.S.C. Sec. 3161(c)(1), the filing of the indictment set the speedy trial clock in motion. On June 14, after 65 of the 70 days allowed under the Act had elapsed, Simmons moved to suppress heroin found in his possession and statements made after his arrest, claiming that the arrest was not based on probable cause. The filing of this motion stopped the speedy trial clock and resulted in some period of excludable delay under section 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."

After two rounds of briefing, a conference and an adjournment, Judge Griesa held a hearing on the motion to suppress on October 9, 117 days after the motion was filed. At the conclusion of the hearing, Simmons' motion was denied. At this point, with five days remaining (aside from the disputed 117 days spent on appellant's suppression motion), the speedy trial clock began to run again. On October 12, on the sixty-eighth day of his speedy trial clock (again not counting the disputed 117 days), Simmons entered a conditional plea of guilty to one count of possession of heroin with intent to distribute. He was sentenced to a five-year prison term, to be followed by three years special parole. He expressly reserved the right to appeal from the denial of his suppression and speedy trial motions.

The events relevant to the speedy trial claim, as indicated by the record, are the following:

--On June 14, Simmons filed his motion to suppress, requesting a hearing on the matter and attaching a three-page affidavit by Simmons' counsel and a two-page affidavit by Simmons himself.

--On July 13, the government filed a three-page letter-brief in response contending that the motion should be denied and that, based on Franks v. Delaware, 438 U.S. 154 [98 S.Ct. 2674, 57 L.Ed.2d 667] (1978), Simmons was not entitled to a hearing on the motion because he had failed to make a "substantial preliminary showing" that the arresting officer had made a knowingly or intentionally false statement in his complaint.

--On August 1, appellant responded to the position taken by the government in the July 13 response, in a six-page letter, arguing that Franks was inapplicable to a case, such as Simmons', involving the question whether there was probable cause to make a warrantless arrest.

--On August 21, the government responded in a six-page letter-brief, withdrawing its earlier position and arguing that no factual issue existed sufficient to require the court to hold a hearing on Simmons' motion.

--From July 30 to August 27, Judge Griesa was on vacation. Some time after his return, he scheduled a conference for September 21.

--On September 21, the conference was held. Defense counsel raised the speedy trial issue for the first time. The court announced that it would hold a hearing and, after consultation with counsel, scheduled it for October 2. Shortly before the appointed time, Judge Griesa postponed the hearing until October 9.

--On October 9, Judge Griesa held the suppression hearing, at which one witness testified. At the conclusion of the 1 1/2 hour hearing, the judge denied the motion to suppress in open court.

--On October 10, the court heard argument on other matters, including the motion to dismiss on speedy trial grounds. The motion was apparently denied.

--On October 12, Simmons entered his guilty plea.

This court affirmed Judge Griesa's denial of Simmons' motion to suppress, 763 F.2d at 532-33, but remanded the speedy trial claim. Id. at 532. As we noted, only that period of time that was "reasonably necessary" to the processing of appellant's motion was excludable. See United States v. Cobb, 697 F.2d 38, 44 (2d Cir.1982). Since the district court never explicitly ruled on appellant's speedy trial motion and made no findings as to whether all of the 117-day period from filing of the motion to the hearing was reasonably necessary to the processing of the motion, we remanded the case to the district court with instructions to state the reasons for excluding such time. 763 F.2d at 532. Judge Griesa was directed "to make appropriate findings, either upon the record as it now stands or, in his discretion, upon receipt of further evidence." Id.

On remand, the district court directed the parties to make submissions containing their recollection of relevant events. In response, both parties filed affidavits. Judge Griesa heard oral argument, after which he made findings concerning the events and the reasons for delay. He concluded that the entire period of 117 days from June 14 to October 9 was reasonably necessary to the processing of the motion.

In making this determination, Judge Griesa evaluated each stage in the processing of the motion to suppress. As to the period from the date of June 14 to the government's initial response on July 13 he found that it was reasonable and that, in any event, appellant had formally agreed to an extension of the original June 28 return date to July 3, and had informally agreed to a further extension until July 13. Judge Griesa indicated that he did not try to decide the motion at this point, because "[i]t is my custom to wait a reasonable time to see if there is a reply to papers such as those filed by the government...." The court characterized the 19 days it took appellant to reply to the government's submission as reasonable and beneficial to appellant. Judge Griesa found that the government's final response, submitted 20 days later, required consideration and deliberation and the result benefited both appellant and the court. He noted that Simmons raised no objection to the timing of any of these submissions.

The district judge candidly admitted that delay attributable to his vacation "was something of a factor." He also found that some delay resulted from the post-vacation workload in his office, although he did not believe the interval before the September 21 conference constituted a lengthy postponement. He stated that during this period he reviewed and analyzed the papers submitted so that he was prepared to rule on the threshold issue of whether a hearing should be held. At the conference, he "promptly" set a hearing for October 2. Due to demands of another trial, Judge Griesa stated that he granted a "short" postponement of the hearing. When viewed in the context of the court's other work, he found that the period between the conference and the hearing was not lengthy. While recognizing that it is up to the court to enforce the requirements of the Act, he cited the fact that there was no objection by defense counsel until September 21 as "a circumstance to be noted." This renewed appeal followed.

II.

In United States v. Cobb, this court rejected an interpretation of section 3161(h)(1)(F) that would automatically exclude all of the period during which a pretrial motion is pending from calculation of the 70-day period in which a defendant must be brought to trial. 697 F.2d at 44. Instead, based on the language of the statute and its legislative history, the court determined that

[o]n a pretrial motion Congress intended to exclude under (F) only such time as was reasonably necessary for the fair processing of the motion. We conclude that 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 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.

Id. (emphasis added). Accord United States v. Ray, 768 F.2d 991, 998-99 (...

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