U.S. v. O'Bryant

• Decision Date: 15 November 1985
• Docket Number: No. 84-3640,84-3640
• Citation: 775 F.2d 1528
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Dillard O'BRYANT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1528

775 F.2d 1528

UNITED STATES of America, Plaintiff-Appellee, v. John Dillard O'BRYANT, Defendant-Appellant.

No. 84-3640.

United States Court of Appeals, Eleventh Circuit.

Nov. 15, 1985.

Michael L. Pritzker, Chicago, Ill., for defendant-appellant.

Karla R. Spaulding, Tampa, Fla., Ernst D. Mueller, Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and SIMPSON, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

John O'Bryant was convicted on three counts of making a false statement in applications for passports. 18 U.S.C. Sec. 1542. O'Bryant challenges his conviction on four grounds: first, that the indictment against him should have been dismissed because of the government's failure to prosecute him within the time limits set out in the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq.; second, that the trial court improperly failed to suppress the fruits of a warrantless search; third, that the court improperly rejected several of his requested jury instructions; and finally that the court inadequately polled the jury. We conclude that the court committed no reversible error and affirm O'Bryant's conviction.

I. BACKGROUND

On July 2, 1982, Hallandale police officer Ted Crespi, while on routine parole, spied a briefcase next to an overflowing trash dumpster. Officer Crespi unlatched the briefcase and examined its contents. He found numerous pieces of identification inside. Crespi turned the briefcase over to Detective Negreria who, after examining the contents, turned the briefcase over to the Drug Enforcement Administration (DEA).

The briefcase contained two passports and passport applications in the name of John Dillard O'Bryant as well as passports in the names of George Allan Williams and George Edwin Cuenca. All of the passports bore O'Bryant's photograph. The briefcase also contained birth certificates, drivers' licenses and other identification documents in various names.

II. THE SPEEDY TRIAL ACT

18 U.S.C. Sec. 3161 provides a seventy day period from the date of the information or indictment or the date on which the defendant appeared before a judicial officer of the court where charges are pending, whichever last occurs, and the commencement of the trial. 18 U.S.C. Sec. 3161(c)(1). Failure of the government to bring the defendant to trial within the seventy day period results in dismissal of the case. 18 U.S.C. Sec. 3162(a)(2). Under section 3161(h), however, certain periods of delay are excludable when calculating the time limit:

(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to--[certain specified proceedings].

18 U.S.C. Sec. 3161(h). ¹

Appellant contends that the time span between his indictment and trial exceeded the allowable seventy days and therefore the charges against him must be dismissed in accordance with section 3162(a)(2). In order to properly compute the time involved, the sequence of events must be reviewed.

September 15, 1982--O'Bryant indicted in the Middle District of Florida on three counts of making a false statement in a passport application and an arrest warrant issued the next day.

May 12, 1983--O'Bryant arrested in Maryland for misdemeanor boating violations and held on state bond.

May 13, 1983--O'Bryant brought before a federal magistrate in Baltimore who set $1,000,000 bond and remanded O'Bryant to state officials. Detainer notice filed by federal marshals. ²

August 17, 1983--O'Bryant tried and convicted on state charges. State court set appeal bond in same amount as trial bail bond.

December 20, 1983--State charges against O'Bryant dismissed on appeal.

March 15, 1984--O'Bryant brought before a magistrate in Florida. Arraignment continued until March 21, 1984 to enable O'Bryant's attorney to be present.

March 21, 1984--O'Bryant arraigned, and defense counsel moved for discovery; hearings on discovery motion set for April 13, 1984.

March 28, 1984--Government filed notice of speedy trial considerations. Next day O'Bryant moved for reduction of bond.

April 6, 1984--Trial court ordered O'Bryant to respond to the government's notice of speedy trial considerations by April 13.

April 16, 1984--O'Bryant filed motions to dismiss the indictment and suppress evidence. Government filed motion to revoke defense counsel's pro hac vice admission for failure to abide by April 13 filing date set by court.

April 17, 1984--O'Bryant's counsel failed to appear at status conference. New status conference scheduled for April 30, and subsequently rescheduled for May 18 to accommodate O'Bryant's attorney.

May 17, 1984--O'Bryant's attorney filed motion to continue May 18 status conference. Status conference finally held on May 31, 1984 and trial date set for June 18, 1984.

June 8, 1984--O'Bryant moved to continue trial date; motion granted on June 14. Trial date set for July 2, 1984.

June 11, 1984--Court order deferred ruling on O'Bryant's motion to suppress until the conclusion of the government's case-in-chief.

June 19, 1984--O'Bryant's motion to dismiss for violations of Speedy Trial Act denied.

Although O'Bryant was indicted in September of 1982, he was not brought before a judicial officer of the Middle District of Florida until March 15, 1984. At that time the arraignment proceedings were continued until March 21, 1984, to enable O'Bryant's attorney to attend the proceedings. O'Bryant argues that the seventy day time period should have begun running from May 13, 1983, when he was brought before a United States magistrate in Maryland. On its face, however, the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1) provides otherwise. That section specifically indicates that the seventy day period does not begin until an indictment is filed or a defendant "appear[s] before a judicial officer of the court in which [the charge against the defendant] is pending, whichever date last occurs." Case law and the legislative history of the Act also indicate that, where an indictment has been filed, the seventy day clock does not begin running until a defendant has appeared in the court where the charges are pending. United States v. Wilson, 720 F.2d 608, 609 (9th Cir.1983) (quoting Judicial Conference of the United States, Committee on the Administration of the Criminal Law, Guidelines to the Administration of the Speedy Trial Act of 1974, as amended ), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984); see also H.R.Rep. No. 1508, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 7401, 7423 (purpose of section 3161(c) is to fix a logical point from which to begin time limits). ³ Therefore, in the instant case, the seventy day time period did not begin running until O'Bryant appeared in the Middle District of Florida on March 21, 1984. See United States v. Daly, 716 F.2d 1499, 1504-05 (9th Cir.1983) (Speedy Trial Act's prohibition on commencing trials less than thirty days from arraignment is calculated from the time defendant first appears through counsel), cert. dismissed, 465 U.S. 1075, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984).

We must next determine whether O'Bryant's trial commenced within seventy days after his March 21, 1984 appearance. Although the trial began on July 2, 1984, section 3161(h) of the Speedy Trial Act excludes certain periods of delay. Section 3161(h)(1)(F) excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of a hearing on, or other prompt disposition, of such motion." Delay attributed to continuances also is excludable. 18 U.S.C. Sec. 3161(h)(8)(A). At the March 21, 1984, arraignment, O'Bryant made oral discovery motions. On April 16, O'Bryant entered written motions to suppress evidence and dismiss the indictment. The motion to dismiss was denied on June 19, 1984, and the motion to suppress evidence was deferred until the close of the government's case-in-chief. ⁴ Throughout this period, O'Bryant had motions pending for continuances of pretrial conferences and trial dates. Accordingly, we agree with the district court that O'Bryant's pretrial motions effectively tolled the provisions of the Speedy Trial Act until his trial commenced on July 2, 1984. Therefore, O'Bryant's contention that his Speedy Trial rights under section 3161(c) were violated is without merit.

Alternatively, O'Bryant's allegations may be read as a claim that his Speedy Trial rights under section 3164 of the Speedy Trial Act were violated. Section 3164 provides that a person who is detained solely because he is awaiting a federal trial must be tried within ninety days. The excludable time delays set out in 3161(h) also apply to the ninety day period of section 3164. 18 U.S.C. Sec. 3164(b). Initially we note that the proper redress for a violation of section 3164 is the release of a defendant, not the dismissal of an indictment. 18 U.S.C. Sec. 3164(c); see United States v. Gaines, 563 F.2d 1352, 1357 (9th Cir.1977).

O'Bryant advances alternative arguments regarding the applicable time frame relating to his detention pending federal trial. First, he contends that he was detained solely on federal charges after his initial federal hearing before a Maryland magistrate on May 15, 1983. O'Bryant claims that he could have met the state bond for his misdemeanor boating charges, but was unable to meet the $1,000,000 bond set by the federal magistrate. Thus, according to O'Bryant, the only thing standing between him and freedom was the federal bond. We disagree. O'Bryant did nothing to obtain his freedom: he never posted the state bond. ⁵ More important, the time from O'Bryant's Maryland arrest to the reversal of...