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

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore CAMPBELL, Chief Judge, COFFIN and BREYER; LEVIN H. CAMPBELL; COFFIN
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.
Docket NumberNos. 84-1262,84-1263
Decision Date07 October 1986

Page 20

803 F.2d 20
UNITED STATES of America, Appellee,
v.
James D. CARTER, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Michael F. MURRAY, Defendant, Appellant.
Nos. 84-1262, 84-1263.
United States Court of Appeals,
First Circuit.
Submitted July 21, 1986.
Decided Oct. 7, 1986.

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.

LEVIN H. CAMPBELL, Chief Judge.

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,

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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.

Page 22

We are helped to this result by analogous reasoning...

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6 practice notes
  • U.S. v. Felton, Nos. 85-3303
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 6, 1987
    ...The Bruce severance motion therefore did not stand separate and apart from Felton's disqualification motion. In United States v. Carter, 803 F.2d 20 (1st Cir.1986), the court concluded that the time before a hearing on suppression motions could also be excluded under subsection (F) (hearing......
  • Murray v. United States, Civil Action No. 11–10435–WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 4, 2011
    ...again rejected Murray's Speedy Trial Act claim, but did not reassess the Fourth Amendment suppression issue. See United States v. Carter, 803 F.2d 20 (1st Cir.1986). Murray again appealed to the Supreme Court, which held that the independent source doctrine was applicable to the Fourth Amen......
  • Murray v. United States, Nos. 12–1051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 4, 2013
    ...the Speedy Trial Act issue. See Murray, 476 U.S. 1138, 106 S.Ct. 2241 (mem.). We again affirmed the conviction in United States v. Carter, 803 F.2d 20 (1st Cir.1986). But then, in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), the Supreme Court took up the su......
  • State v. Lange, No. 90-0743-CR
    • United States
    • Court of Appeals of Wisconsin
    • October 16, 1990
    ...vacated and remanded on other grounds, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986), aff'd sub nom. United States v. Carter, 803 F.2d 20 (1st Cir.1986), vacated and remanded sub nom. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). We cannot distinguish......
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6 cases
  • U.S. v. Felton, Nos. 85-3303
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 6, 1987
    ...The Bruce severance motion therefore did not stand separate and apart from Felton's disqualification motion. In United States v. Carter, 803 F.2d 20 (1st Cir.1986), the court concluded that the time before a hearing on suppression motions could also be excluded under subsection (F) (hearing......
  • Murray v. United States, Civil Action No. 11–10435–WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 4, 2011
    ...again rejected Murray's Speedy Trial Act claim, but did not reassess the Fourth Amendment suppression issue. See United States v. Carter, 803 F.2d 20 (1st Cir.1986). Murray again appealed to the Supreme Court, which held that the independent source doctrine was applicable to the Fourth Amen......
  • Murray v. United States, Nos. 12–1051
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 4, 2013
    ...the Speedy Trial Act issue. See Murray, 476 U.S. 1138, 106 S.Ct. 2241 (mem.). We again affirmed the conviction in United States v. Carter, 803 F.2d 20 (1st Cir.1986). But then, in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), the Supreme Court took up the su......
  • State v. Lange, No. 90-0743-CR
    • United States
    • Court of Appeals of Wisconsin
    • October 16, 1990
    ...vacated and remanded on other grounds, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986), aff'd sub nom. United States v. Carter, 803 F.2d 20 (1st Cir.1986), vacated and remanded sub nom. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). We cannot distinguish......
  • Request a trial to view additional results

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