U.S. v. Carter, s. 84-1262

Decision Date07 October 1986
Docket NumberNos. 84-1262,84-1263,s. 84-1262
Citation803 F.2d 20
PartiesUNITED STATES of America, Appellee, v. James D. CARTER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Michael F. MURRAY, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Marshall D. Stein, Cherwin & Glickman, Brian J. McMenimen and Gargiulo & McMenimen, Boston, Mass., on brief for James D. Carter.

Gary C. Crossen, Asst. U.S. Atty., and William F. Weld, U.S. Atty., Boston, Mass., on brief for appellee.

Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.


Following our decision in this case, the Supreme Court, --- U.S. ----, 106 S.Ct. 2241, 90 L.Ed.2d 688, vacated and remanded to us for reconsideration (on speedy trial grounds) under Henderson v. United States, --- U.S. ----, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986).

We have thoroughly reviewed our discussion of the speedy trial issue, appearing in 771 F.2d 589, 594-95. While we now modify our reasoning in one major respect, infra, at 22-23, we believe that the result we originally reached remains correct and is in harmony with the Supreme Court's opinion in Henderson. Accordingly, we affirm defendants' convictions.

In our previous opinion we started with the premise that the 30 days from October 17 (when the district court completed hearings on the suppression motions) to November 16, 1983, were excludable as being the 30 days provided in subsection (J) of 18 U.S.C. Sec. 3161(h)(1) (1985) for motions that are "actually under advisement by the court." No one questions our reasoning in that respect. A problem arises, however, because after excluding the 30-day period attributable to the suppression motions, there is still a total of 75 non-excludable days, or five days over the limit set by the Speedy Trial Act. The question thus arises whether there is any basis for excluding at least five more days.

In answering "yes" in our original opinion, we reasoned that the additional five days (and more) were excludable under subsection (F), of 18 U.S.C. Sec. 3161(h)(1), as falling within the period necessary to decide certain other motions, these being motions for severance, for orders in limine election of counts, and to control the sequence of the government's presentation of evidence at trial. These non -suppression motions had been under advisement since the preceding May, but were not actually decided, according to the judge, until after he first made up his mind about the suppression motions. The order deciding these other motions was issued December 21, 1983. 1 The judge explained his reason for not deciding these until after decision of the suppression motions as follows:

These motions [i.e., the other, non -suppression motions] primarily concerned the ordering of the trial. The summary judgment [sic, suppression] motion, however, was dispositive. If [they] had been allowed, the government would not have been able to go forward with trial. I conclude that it was reasonable to hold these motions until I had decided the motion to suppress.

We reasoned that at least five days of the period from November 16, 1983, up to decision of the suppression motions in late December--during all of which period the other motions remained constantly under advisement--was excludable under subsection (F), as

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. 2

In other words, because the non-suppression motions were not ripe for determination until the court had determined the suppression motions, and because the latter were not resolved until after mid-December, we thought it proper to exclude the November 16 to December 21 period as time resulting from necessary delay in effecting a disposition of the non -suppression motions.

We recognize that Henderson indicates that for pretrial motions without a hearing (as the non-suppression motions were), only the time until "the court receives all the papers it could reasonably expect" is normally excludable under subsection (F). 106 S.Ct. at 1876. At that point the motions would be considered "under advisement," and there must be "prompt disposition" of those motions, that is, 30 days under subsection (J). Id. Literally, this might mean that the non-suppression motions were "under advisement" as of May 27, 1983, when all the necessary papers were filed with the court. And none of the period from November 17 to December 21 could be excluded.

But in providing that unheard motions are "under advisement" when all necessary papers are filed, we believe the Court had in mind the usual motion, which, of course, is ready to be decided once all the papers are in. The present motions were unique, in that while they were in and of themselves not difficult, and while the necessary papers had been received as early as May 27, they were still not ripe for decision until the court made up its mind on the suppression motions. And these latter were distinctly not easy or obvious, as the length of both the district court's and our own opinions on the suppression issues attest. As the government argues, in this kind of situation, Henderson reasonably permits us to read subsection (F) to include time for other preliminaries, beyond simply filing papers, where such are essential before motions are ripe for decision, i.e., can meaningfully be taken under advisement.

We are helped to this result by analogous reasoning in Henderson itself. In discussing whether subsection (F) could also exclude time after a hearing on a motion, despite the fact that subsection (F), literally read, only says time "through the conclusion of the hearing," the Henderson Court said that it was "convinced" that time while "a district court awaits additional [post-hearing] filings from the parties that are needed for proper disposition of the motion" can also be excluded under subsection (F). The Court reasoned that "[t]he provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion." 106 S.Ct. at 1877 (emphasis added).

Applying this reasoning to this case, we can understand the district court's awaiting resolution of the suppression motions before believing itself in a position to dispose of the non-suppression motions. Since the court had not resolved the suppression motions until after mid-December, it is arguable that the entire period through then is excludable under subsection (F) as time needed by the trial court before it was "in a position to dispose of" the suppression motions. Id. Certainly the Supreme Court's holding--that any (and not just reasonable) delay before a motion can be taken under advisement is excludable under subsection (F)--also suggests that this interpretation is permissible.

There is, however, one problem with this analysis to which we may not have paid sufficient attention in our original opinion. Both the Speedy Trial Act and Henderson make clear that once a hearing is held, and all needed papers are in, a heard motion (like the suppression motions) may be held under advisement for purposes of computing excludable time only for 30 days. That period expired for the suppression motions on November 16, 1983. This 30-day requirement is expressly set out in subsection (J). While it is understandable and, in a general sense, was perhaps not unreasonable, that these complex suppression motions consumed more than 30 days of the time of a busy trial judge, who also has many other matters to attend to, it is absolutely clear that subsection (J) grants only 30 days of excludable time. (That is, no more than 30 days is excludable unless some other provision, such as clause (A) of section 3161(h)(8), which was not invoked here, applies.)

The question thus arises whether, where the judge has exceeded the 30 days allowed under subsection (J) to decide the suppression motions, we can properly exclude any part of the period thereafter ensuing until he actually decided those motions, as time under subsection (F) properly attributable to the disposition of the non -suppression motions. It is arguable that where the Act specifically allows only 30 excludable days to decide the suppression motions, we should not countenance the longer decisional period actually employed, even if otherwise "reasonable," as a yardstick for timing the remaining motions. This argument gains additional force from the language in subsection (F) which requires that, in cases of motions that do not require a hearing, the excludable time runs only from filing through the "prompt disposition of" the motion. Can it be said that motions dependent upon other motions have been promptly decided if the preceding motions were not themselves, by Congress's 30-day standard, promptly decided?

But we need not pursue this point further, since, upon further reflection, we find that there are an extra five excludable days here even upon a far more restricted reading of subsection (F)--a reading which does not open it to the abuse that some might fear were we to recognize an unlimited period of time (or even a "reasonable" time beyond 30 days) for deciding the underlying motions. Even if we strictly credit the court with only 30 days to decide the underlying suppression motions, i.e., until November 16, 1983, the court is...

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