U.S. v. Bloate

• Decision Date: 25 July 2008
• Docket Number: No. 07-2357.,07-2357.
• Citation: 534 F.3d 893
• Parties: UNITED STATES of America, Appellee, v. Taylor BLOATE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

534 F.3d 893

UNITED STATES of America, Appellee, v. Taylor BLOATE, Appellant.

No. 07-2357.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2008.

Filed: July 25, 2008.

Stephen Robert Welby, argued, St. Louis, MO, for Appellant.

Hal Goldsmith, AUSA, argued, St. Louis, MO, for Appellee.

Before RILEY, JOHN R. GIBSON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Taylor James Bloate was convicted of one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and one count of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). The district court¹ sentenced him to 360 months' imprisonment. Bloate appeals, asserting a Speedy Trial Act violation and other trial and sentencing errors. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

On August 2, 2006, officers saw three vehicles, including a Nissan, driving erratically. A few minutes later, they saw the Nissan parked in front of an apartment building, and began surveillance. Witnessing numerous people coming in and out of the building, they suspected drug activity. Eventually, two individuals left in the Nissan. When the driver committed several traffic violations, the officers tried to make a stop. The driver pulled to the side of the road several times, but then drove off as the officers approached. Finally, the driver stopped completely. As the officers approached, they saw two small bags of a white substance (later determined to be crack cocaine) on the driver's lap. The officers seized the cocaine and arrested the driver, identified as Bloate.

After Miranda warnings, Bloate repeatedly said, "I'm done, I'm done, I'm going to the penitentiary." He also stated that he did not initially stop because he was trying to find the crack cocaine. When asked about the apartment building, he said, "I don't live there, I don't got nothing to do with that place." The passenger was identified as Shanita Boclair, Bloate's girlfriend. She admitted living in the apartment building, consented to a search (both verbally and in writing), and provided officers with a key, which they used to enter the apartment. Boclair accompanied the officers during the search; no one else was in the apartment. Officers discovered a large closet with closed doors. Inside the closet, they found: (1) men's clothing; (2) a bulletproof vest; (3) three firearms (two loaded); (4) ammunition; (5) individually packaged crack cocaine (totaling about 13.47 grams); (6) paperwork with Bloate's name; (7) Bloate's identification card; and (8) marijuana (about 10.33 grams). In the same room, officers discovered a rental agreement for the apartment, dated July 5, 2006, and signed by Bloate and Boclair.

The officers took the firearms, ammunition, bulletproof vest, drugs, and paperwork to the police station where Bloate was. When the officers entered the room with the items, Bloate said, "that's all mine, it's not hers, she's got nothing to do with my business." The officers again administered Miranda warnings. Bloate admitted living at the apartment and owning the items. During booking, officers seized $1,077 cash from Bloate's person.

The case then proceeded as follows:

• August 24: Bloate was indicted for being a felon in possession of a firearm, and possession with intent to distribute crack cocaine.

• September 7: Bloate moved to extend the deadline for pretrial motions, which was granted until September 25.

• September 25: Bloate waived his right to file pretrial motions.

• October 4: A magistrate judge conducted a hearing, finding Bloate's waiver voluntary and intelligent, and granted leave to waive his right to file pretrial motions.

• November 8: Bloate moved to continue the trial date. Also, Bloate, his counsel, the Assistant United States Attorney, and two police officers met. Bloate signed a proffer agreement, and then admitted possession of the crack cocaine and firearms, and provided his sources for the drugs and firearms.

• November 9: The district court granted the motion, rescheduling the trial for December 18.

• December 13: The district court scheduled a change-of-plea hearing for December 20.

• December 20: At the hearing, Bloate decided not to change his plea to guilty, and requested new counsel. The district court rescheduled the trial for February 26, 2007.

• January 3: The district court appointed new counsel for Bloate.

• February 1: Bloate moved for leave to file pretrial motions out-of-time, and also to suppress physical evidence and statements.

• February 14: A magistrate judge denied Bloate's motions, finding he had waived his right to file pretrial motions.

• February 19: Bloate moved to dismiss due to a Speedy Trial Act violation.

• February 21: The district court denied the Speedy Trial Act motion.

• February 23: The district court rescheduled the trial for March 5.

• March 5: The two-day trial began.

At trial, the government presented the testimony of the officers at the scene of the arrest and search, the firearms examiner who tested the firearms, the forensic chemist who tested the drugs, the fingerprint examiner who confirmed Bloate's previous convictions, and an expert on crack cocaine sales and distribution. In response, Bloate presented the testimony of his landlord, his son, and his son's girlfriend. The landlord testified that, on August 2, Bloate's lease was not final because there was still money due, but that Bloate had permission to store some items there. He also stated that the backdoor to the apartment building might have been open, allowing access to the apartment. Bloate's son, Cortez, testified that he was arrested about the same time, and that officers brought him to the scene of the search and placed him in a police car with his father. Cortez's girlfriend testified that the officers first searched the apartment she was in (immediately above Bloate's apartment), and that the back door to the apartment building was open. Before its rebuttal, the government requested admission of statements Bloate made during his November 8 proffer. Over objection, the court allowed the evidence. One officer, present at the proffer, testified as to Bloate's statements admitting possession and disclosing his sources. The district court denied Bloate's motion for judgment of acquittal. The jury found him guilty of both counts.

II.

A.

In the context of the Speedy Trial Act, this court reviews the district court's findings of fact for clear error and its legal conclusions de novo. United States v. Lucas, 499 F.3d 769, 782 (8th Cir.2007) (en banc). The Act requires that a defendant's trial begin within 70 days after the indictment or the defendant's initial appearance, whichever is later, subject to certain exclusions. See 18 U.S.C. § 3161(c)(1), (h). If a defendant is not brought to trial within this time limit, upon motion of the defendant, the district court must dismiss the information or indictment. 18 U.S.C. § 3162(a)(2).

Bloate asserts that the district court erred in denying his motion to dismiss due to a Speedy Trial Act violation. The indictment was filed on August 24, so the Speedy Trial Act clock began August 25. See 18 U.S.C. § 3161(c)(1). Bloate argues that only one other day is excludable, September 7, thus making the 70th day November 3. The district court rejected this reasoning, finding that the time periods between September 7 and October 4, and November 9 and February 26, excludable.

It is uncontested that the time period from August 25 to September 6 is nonexcludable (13 days). The first issue is the period from September 7 — the date the district court extended the deadline for filing pretrial motions — to October 4 — the date Bloate formally waived his right to file pretrial motions, a total of 28 days.

The Speedy Trial Act excludes: "Any period of delay resulting from other proceedings concerning the defendant, including but not limited to ... (F) 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." 18 U.S.C. § 3161(h)(1)(F). Here, Bloate never filed a pretrial motion. He requested an extension of the deadline for filing pretrial motions, but at that deadline, instead of filing motions, he waived his right to do so. Thus, subsection (F) does not apply.

Even without applying subsection (F), six circuits hold that pretrial motion preparation time may be excluded, if the court specifically grants time for that purpose, because that time is "delay resulting from other proceedings concerning the defendant." See United States v. Mejia, 82 F.3d 1032, 1035-36 (11th Cir.1996); United States v. Lewis, 980 F.2d 555, 564 (9th Cir.1992); United States v. Mobile Materials, Inc., 871 F.2d 902, 913-14 (10th Cir. 1989); United States v. Wilson, 835 F.2d 1440, 1444-45 (D.C.Cir.1987); United States v. Tibboel, 753 F.2d 608, 610 (7th Cir.1985); United States v. Jodoin, 672 F.2d 232, 238 (1st Cir.1982). These circuits reason "that the phrase `including but not limited to' in § 3161(h)(1) indicates that the particular time periods listed in subsections A through J are an illustrative rather than an exhaustive enumeration of those delays resulting from `other proceedings concerning the defendant.'" Lewis, 980 F.2d at 564, citing Wilson, 835 F.2d at 1444; Tibboel, 753 F.2d at 610; Jodoin, 672 F.2d at 238; see also, Mobile Materials, Inc., 871 F.2d at 913. One court notes that this construction eliminates a trap for trial judges, where accommodation of a defendant's request for additional time to prepare pretrial motions could cause dismissal of the case under the Speedy Trial Act. See Wilson, 835 F.2d at 1444; see also Mobile Materials, Inc., 871 F.2d at 913-14 ("The grant allows the district court to dispose of the difficult question of whether the defendant's interests are better served by an uninterrupted march to trial or by a pause in proceedings at the...