788 F.2d 544 (9th Cir. 1986), 84-5142, United States v. Feldman

Docket Nº:84-5142.
Citation:788 F.2d 544
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Barry Jay FELDMAN, Defendant-Appellant.
Case Date:April 24, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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788 F.2d 544 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,


Barry Jay FELDMAN, Defendant-Appellant.

No. 84-5142.

United States Court of Appeals, Ninth Circuit

April 24, 1986

Argued and Submitted Dec. 6, 1985.

As Amended May 23, 1986.

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[Copyrighted Material Omitted]

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Ronald J. Nessim, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Barry Jay Feldman, in pro per.

An Appeal From United States District Court for the Central District of California.

Before FLETCHER, PREGERSON, and CANBY, Circuit Judges.

PREGERSON, Circuit Judge.

On May 5, 1983, a bearded man wearing mirrored sunglasses robbed the Security Pacific National Bank in Irvine, California of $2,585. The robber handed the teller a typed index card which stated: "This is a robbery. There is a gun in my case. Do not set off any alarm. Do as I ask." Six weeks later, City of Orange police officers arrested Barry Jay Feldman in a parking lot when he returned to a vehicle that had been identified as a stolen rental car. In searching the car, officers found a briefcase

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containing a single index card bearing the same words as those used in the bank robbery, a toy pistol, a cloth bank bag and a pair of mirrored sunglasses. The bank teller subsequently identified Feldman as the robber from a "photospread."

A federal grand jury indicted Feldman for unarmed bank robbery. Following arraignment, Feldman elected to proceed in propria persona. The district court, sua sponte, twice dismissed indictments against Feldman because the government provided him inadequate access to a law library. He was brought to trial on a third identical indictment, found guilty by a jury, and sentenced to seven years' imprisonment. Feldman timely appealed raising nine constitutional and evidentiary errors. We affirm.

I. Speedy Trial Act Claim

Feldman argues that the United States failed to bring him to trial within the seventy days from indictment or arraignment mandated by the Speedy Trial Act ("the Act"), 18 U.S.C. Sec. 3161(c)(1), and that the court should have dismissed his third indictment, 18 U.S.C. Sec. 3162(a)(2). Feldman computes 147 chargeable days from his first arraignment until the beginning of his trial. Since we conclude that the sua sponte dismissals restarted rather than tolled the speedy trial "clock," and that fewer than seventy days elapsed between the third indictment and trial, we need not reach the government's assertion that sufficient days between the first indictment and trial were excludable to reduce the delay below seventy days. 1 We review factual

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issues concerning Speedy Trial Act disputes for clear error by the district court. United States v. Henderson, 746 F.2d 619, 622 (9th Cir.1984), cert. granted, --- U.S. ----, 106 S.Ct. 225, 88 L.Ed.2d 224 (1985). Questions of law concerning the Act are reviewed de novo. Id.

A. Trial Court's Sua Sponte Dismissals.

If an indictment is dismissed on the defendant's motion, and the defendant is later reindicted for the same offense, the Act's seventy day "clock" begins anew. 18 U.S.C. Sec. 3161(d)(1). However, if a government motion prompts dismissal of the indictment, and the defendant is later reindicted for the same offense, the original seventy day period is tolled only for the period between dismissal and reindictment or rearraignment, whichever is later. 18 U.S.C. Sec. 3161(h)(6). 2 Here, the two dismissals without prejudice were on the district court's own motion. Neither the plain words of the Act nor any present case law indicate the effect of a sua sponte dismissal on the seventy day clock.

Feldman relies on United States v. Dennis, 625 F.2d 782 (8th Cir.1980) and United States v. Harris, 724 F.2d 1452 (9th Cir.1984). Neither case is on point. In Dennis, the court dismissed one count sua sponte, then granted a continuance to allow the government to consider an appeal. Subsequently, the grand jury reindicted Dennis who claimed that, for speedy trial purposes, the seventy days began on the first indictment. The Eighth Circuit concluded that the district court properly decided that the ends of justice served by the continuance outweighed Dennis' speedy trial interests, and that, therefore, the period of delay resulting from the continuance was excludable. 625 F.2d at 794. See 18 U.S.C. Sec. 3161(h)(8)(A). The court did not address whether the sua sponte dismissal tolled or reset the speedy trial clock.

In Harris, the defendant sought dismissal with prejudice of a pending prior indictment after arraignment on a superseding indictment. The panel affirmed the granting of the government's request to dismiss the prior indictment without prejudice but reversed on another speedy trial issue. 724 F.2d at 1454-55. Feldman asserts that Harris holds that a dismissal without prejudice is a government-initiated motion. While this was true in Harris because the government successfully moved to have the court's dismissal made into a dismissal without prejudice, the situation is not the same in our case. Indeed, here, the government strongly opposed any dismissal of Feldman's first two indictments.

Feldman further argues that, since the government's actions in persistently refusing to provide him with legal research facilities precipitated the sua sponte dismissals, the time delay caused by the need to reindict twice should be charged to the government. The government contends that it vigorously opposed the dismissals and that, because of section 3161(h)(6)'s narrow limitation to dismissals "upon motion

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of the attorney for the Government," the tolling provision of the subsection cannot apply here. The government's position is consistent with courts' reluctance to extend section 3161(h)(6) beyond its literal wording. See, e.g., United States v. Bounos, 730 F.2d 468, 470-71 (7th Cir.1984) (Government need not have good faith basis for dismissing indictment).

We think it significant that section 3161(d)(1) requires restarting the clock where the indictment "is dismissed upon motion of the defendant, or any charge contained in a complaint filed against an individual is dismissed or otherwise dropped." (Emphasis added.) The two disjunctive clauses, with their passive construction, suggest that the subsection applies to any manner of dismissal of an indictment except on the government's own motion, presumably including a sua sponte dismissal.

The legislative history offers only marginal guidance. The government draws attention to certain explanatory comments which state that 18 U.S.C. Sec. 3161(d)(1) was intended to give the government time to prepare a further indictment when the "case has previously been dismissed on non-speedy trial grounds." S.Rep. No. 1021, 93rd Cong., 2d Sess. 33 (1974). This may suggest that any non-government-inspired, non-speedy trial-based dismissal is charged to the defendant and restarts the clock. However, this conclusion is placed into doubt by this court's recognition that Congress intended that "the courts and the government, not the defendant, assume primary responsibility for ensuring that criminal trials proceed expeditiously." United States v. Pollock, 726 F.2d 1456, 1464 (9th Cir.1984).

There can be no doubt that Feldman was the beneficiary of the sua sponte dismissals, even though he opposed the second dismissal because it was not with prejudice. The result of the dismissals was to free him from custody, and to force the government unexpectedly to prepare a new indictment. Thus, the effect of the dismissals is the same as if the court had acted on Feldman's motion. This outcome of the court's action, when taken with the fragmentary indications from the statute itself and from the legislative history, indicates that the sua sponte dismissals here should be treated as if they were on Feldman's motions, thus restarting the clock at seventy days on each reindictment and rearraignment.

Since fewer than seventy days elapsed between Feldman's third indictment and arraignment and the beginning of his trial, the district court correctly denied Feldman's motion to dismiss on speedy trial grounds.

II. Fourth Amendment Claim

Feldman was originally arrested for auto theft when he returned to the stolen rental car. The police, who had "staked out" the vehicle, knew that Feldman had rented the car, that he was in violation of state parole, and that he had a conviction record. 3 The officers arrested Feldman when it was clear that he intended to attempt to take the car from the lot. The officers handcuffed Feldman at gunpoint a few feet from the car. Feldman had not entered the vehicle which remained locked. 4

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The arresting officer's affidavit states that his colleague had earlier looked through the car windows and seen "an empty gun holster," 5 clothing and a zippered briefcase. The officers patted Feldman down and asked him where the gun was. Feldman then told the officers of the toy gun in the briefcase. Detective Manavian testified: "At that moment, I intended to conduct an inventory search.... It was my option to conduct this inventory search at the scene or wait until the car was taken to an impound lot. I chose to search the car at the [scene] because I was concerned about the possibility that there was a weapon in the car. Despite Feldman's statement about a toy gun, there was a fair chance of a real weapon because of the holster and Feldman's prior criminal history." Detective Manavian took the keys from Feldman and searched the car, opening the briefcase. Manavian then "took all the personal property taken from the car back to the Orange Police station, where [he] filled out the property report." The car was later returned to the rental company.

The government argues that...

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