U.S. v. Brown, 83-1876

Decision Date07 June 1984
Docket NumberNo. 83-1876,83-1876
Citation736 F.2d 807
PartiesUNITED STATES of America, Appellee, v. Charles E. BROWN, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Owen S. Walker, Boston, Mass., for defendant, appellant.

E. Sydney Hanlon, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN and BREYER, Circuit Judges, and BONSAL, * Senior District Judge.

COFFIN, Circuit Judge.

Charles Brown appeals from his conviction for possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), and for conspiracy to commit the above offense, 21 U.S.C. Sec. 846. Brown claims that the district court's delay in disposing of several pretrial motions was not "reasonably necessary" and therefore violated the Speedy Trial Act, 18 U.S.C. Sec. 3161-3174, as construed by this court in United States v. Mitchell, 723 F.2d 1040 (1st Cir.1983).

Brown and others were arrested on February 2, 1983, and first appeared before a magistrate the next day. On February 9, the grand jury returned an indictment, thus starting the 70-day speedy trial clock. 18 U.S.C. Sec. 3161(c)(1). Four non-excludable days elapsed before the defendants' arraignment on February 14. That day is excludable as a "proceeding[ ] concerning the defendant". 18 U.S.C. Sec. 3161(h)(1); see United States v. Novak, 715 F.2d 810, 813 n. 5 (3d Cir.1983) (citing cases). Three more non-excludable days passed before February 18, when the magistrate held a hearing on codefendant Ernest Middleton's motion for reconsideration of bail. That day is also excludable. 18 U.S.C. Sec. 3161(h)(1) & (7). Four additional non-excludable days passed between February 18 and February 23, on which date Brown filed a motion for reconsideration of the magistrate's bail order. Thus, eleven (four plus three plus four) non-excludable days passed between February 9 and February 23. The district court denied Brown's bail motion on February 28. The next day, March 1, Brown and another defendant filed several motions, beginning a lengthy period of excludable delay under the Act. 18 U.S.C. Sec. 3161(h)(1)(F). Brown contends that not all of the ensuing delay--from the filing of these motions on March 1 to the district court's denial of Brown's motion to dismiss under the Act on October 21--properly constituted excludable time. Brown focuses on three unresolved and unheard motions filed by co-defendant Middleton: a motion to suppress statements, filed on March 2; a motion for individual voir dire, filed on March 2; and a motion to suppress statements and physical evidence, filed on March 31.

The parties agree that the period from March 1 to approximately the end of May was properly excludable because of the pendency of other pretrial motions. 1 The parties further agree that the period from July 14 to July 28 (15 days) is excludable because of the pendency of codefendants' motions concerning conditions of release. The district court had not decided or held a hearing on Middleton's motions as of September 14, when Brown filed his first motion to dismiss on speedy trial grounds, or as of October 21, when Brown filed a second speedy trial motion and the district court denied both of Brown's motions.

On May 27, the end of the "under advisement" period for the codefendants' severance motions, 11 days had ticked off the speedy trial clock. Excluding 15 days from the period between May 27 and September 14, on which date Brown filed his first speedy trial motion, leaves a delay of 94 days. 2

In United States v. Mitchell, 723 F.2d at 1047, we held that 18 U.S.C. Sec. 3161(h)(1)(F) "permits only such delay as is reasonably necessary from the time of filing a pretrial motion to the time of concluding a hearing on it or completing submission of the matter to the court for decision" (emphasis added). This appeal hinges on a determination of how much of the 94-day delay was "reasonably necessary" for holding a hearing or disposing of Middleton's motions to suppress. If 60 or more days 3 of the 94-day delay were improperly excluded from Brown's speedy trial clock, then his clock should have ticked past 70 days and Brown's indictment would have to be dismissed (with or without prejudice). 18 U.S.C. Sec. 3162(a)(2).

Before reaching this central issue, we must address two arguments of statutory construction that Brown has presented for reducing the amount of time properly excludable from his speedy trial clock. First, Brown asserts that even if we were to find that the delay was "reasonably necessary" to process Middleton's motions, such delay may nonetheless not be reasonable as applied to Brown. Section 3161(h)(7) of the Act, 18 U.S.C. Sec. 3161(h)(7), requires the exclusion of "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted". Many courts have held that "under this provision, and until severance is granted, 'an exclusion applicable to one defendant applies to all codefendants' ". United States v. Novak, 715 F.2d at 814 (citing cases). The Third Circuit in Novak also recognized a reasonableness limitation on the application of excludable time from one codefendant to another. Brown presented his argument for placing a "reasonableness" constraint on section (h)(7) to the district court and to this court, but in neither instance did he provide any specific reasons for why the excludable period of delay might be reasonable as applied to Middleton but not as applied to Brown. Because Brown has not shown, by reference to relevant facts, how he would benefit from his construction of the statute, we need not interpret the precise interplay of sections (h)(1)(F) and (h)(7) of the Act. 18 U.S.C. Sec. 3161(h)(1)(F) & (h)(7). For the purposes of this case, we hold that any excludable delay properly attributable to the pendency of Middleton's pretrial motions is applicable to Brown.

Second, Brown contends that the period during which a speedy trial motion is pending without a hearing should be non-excludable time. Otherwise, Brown argues, a defendant would dilute his speedy trial rights in trying to assert them. However, section 3161(h)(1)(F) contains no exception to its requirement that "any pretrial motion" triggers a period of excludable delay. A speedy trial claim not asserted before trial is forever lost. 18 U.S.C. Sec. 3162(a)(2). A speedy trial motion is potentially dispositive and often requires a detailed analysis of all pretrial activity. With these considerations in mind, we hold that a speedy trial motion triggers excludable delay under subsection (F). See, e.g., United States v. Bolden, 700 F.2d 102, 103 (2d Cir.1983); Furlow v. United States, 644 F.2d 764, 768 (9th Cir.), cert. denied, 454 U.S. 871, 102 S.Ct. 340, 70 L.Ed.2d 175 (1981). Of course, the duration of that excludable delay is subject to the Mitchell "reasonably necessary" time limitations.

The government would have us find that the 94-day delay was "reasonably necessary", because a district court might be able to manage a criminal case more fairly and efficiently by deferring hearing or disposition of a motion to suppress until immediately before trial or at least until other preliminary motions--such as the motions for severance and for discovery in this case--have been decided. This point, while sensible, has no discernible limit in the speedy trial context. To permit a court both to defer a motion until trial and to order...

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