786 F.2d 479 (2nd Cir. 1986), 622, United States v. Simmons

Docket Nº:622, Docket 85-1359.
Citation:786 F.2d 479
Party Name:UNITED STATES of America, Appellee, v. Charles SIMMONS, Defendant-Appellant.
Case Date:March 12, 1986
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 479

786 F.2d 479 (2nd Cir. 1986)

UNITED STATES of America, Appellee,

v.

Charles SIMMONS, Defendant-Appellant.

No. 622, Docket 85-1359.

United States Court of Appeals, Second Circuit

March 12, 1986

Argued Jan. 6, 1986.

Page 480

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

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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...

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