U.S. v. Fonseca

• Decision Date: 31 January 2006
• Docket Number: No. 04-3078.,04-3078.
• Citation: 435 F.3d 369
• Parties: UNITED STATES of America, Appellee v. Crictino FONSECA, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

435 F.3d 369

UNITED STATES of America, Appellee v. Crictino FONSECA, Appellant.

No. 04-3078.

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2005.

Decided January 31, 2006.

Appeal from the United States District Court for the District of Columbia (No. 03cr00106-01).

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Mary M. Petras and Neil H. Jaffee, Assistant Federal Public Defenders, entered appearances.

John P. Mannarino, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the time the brief was filed, and Elizabeth Trosman, Assistant U.S. Attorney. Roy W. McLeese, III, Assistant U.S. Attorney, entered an appearance.

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

A jury found defendant Crictino Fonseca guilty of unlawful possession of a firearm and ammunition by a convicted felon. Fonseca raises two issues that are in contention on this appeal. First, he argues that the district court violated the Speedy Trial Act by not beginning the trial that resulted in his conviction until after the statutory deadline. Second, he asserts that the court abused its discretion by limiting his cross-examination of a government witness. Concluding that the district court neither violated the Speedy Trial Act nor abused its discretion in circumscribing cross-examination, we affirm the judgment of conviction.¹

I

On March 11, 2003, Fonseca was indicted on a charge of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Fonseca's first trial stemming from this indictment began on August 18, 2003. Due to the jury's inability to reach a unanimous verdict, the district court declared a mistrial on August 26, 2003. On February 6, 2004, five months after the mistrial, Fonseca filed a motion to dismiss the indictment, alleging that the court had failed to begin his retrial within the time required by the Speedy Trial Act, § 18 U.S.C. 3161(e). The district court denied Fonseca's motion to dismiss, and a retrial was commenced on February 25, 2004.

At the retrial, Liz'a Williams testified that she lived in an apartment at 601 Park Road in northwest Washington, D.C. Fonseca was the resident manager of the apartment building. On the evening of February 15, 2003, Williams went to a neighbor's house at 613 Park Road, where she and her friends played cards, ate pizza, and drank piña coladas. Sometime during the night, a heavy snow began to fall. At 7:00 a.m. the next morning, Williams, along with her friend Wanda Johnson and Fonseca's girlfriend Kee-Kee, walked back toward 601 Park Road, arguing loudly with one another. As the women stood outside the apartment building quarreling, Fonseca leaned out of the window of his second-floor apartment, which overlooked the front of the building. Fonseca, who was holding a handgun, first cursed at the women and then fired three shots at them. The women ducked behind a parked car.

Metropolitan Police Department Officer Michael Rackey testified that, at approximately 7:00 a.m. on February 16, he and Officer Jeffrey Byrd drove to 601 Park Road in response to a police radio report. They arrived at the scene within minutes and were approached by Williams and Johnson, who said that three shots had been fired at them from a second-floor window. The women gave the officers a physical description of the shooter and said that he was the building manager of 601 Park Road.

Rackey testified that, after speaking with the women, the officers entered the building, proceeded to the second-floor apartment identified by Williams, and knocked on the door. As they stood there knocking, the officers noticed defendant Fonseca ascending the stairs from the basement. Because he matched the description of the shooter provided by Williams and Johnson, the officers arrested Fonseca on the spot. They then entered Fonseca's apartment and found that the window from which the women said the shots had been fired was open.

Officer Rackey testified that he next went to the building's basement to search the area from which he had heard Fonseca emerge. After opening the basement's exterior door, Rackey saw a single set of footprints in the freshly fallen snow. The footprints led to a garbage bag, topped by an automobile tire. Rackey lifted the tire and discovered a plastic bag containing a revolver. The gun's six chambers held three live rounds and three expended shell casings.

In his defense, Fonseca called two witnesses. The first was a forensic toxicologist from District of Columbia Pretrial Services, who testified that Liz'a Williams had tested positive for cocaine on January 13, 2003, following her arrest on an unrelated charge of possessing drug paraphernalia. The district court admitted the testimony to impeach Williams' statement, made during cross-examination, that she had not used drugs since 2002. The defense also called Officer Byrd, who testified that he thought the window that Williams and Johnson had indicated as the location of the shooter was on the side of the building, rather than the front. Fonseca did not testify.

On March 4, 2004, the jury found Fonseca guilty as charged. On June 14, the district court sentenced him to a term of 104 months' imprisonment. We consider the two challenges to Fonseca's conviction below.

II

Fonseca's first contention is that his retrial violated the Speedy Trial Act because it did not commence until February 25, 2004, six months after his first trial ended in a mistrial. We review this challenge, which concerns the meaning of the Act's statutory language, de novo. See Zhu v. Gonzales, 411 F.3d 292, 294 (D.C.Cir.2005).

Under the Speedy Trial Act, the trial of a defendant charged in an indictment must begin "within seventy days from the filing date" of the indictment or from the date the defendant appears before a judicial officer, whichever date occurs later. 18 U.S.C. § 3161(c)(1). "If the defendant is to be tried again following a declaration by the trial judge of a mistrial," as was the case here, "the trial shall commence within seventy days from the date the action occasioning the retrial becomes final." 18 U.S.C. § 3161(e). The parties agree that "the date the action occasioning the retrial" became final in this case was August 26, 2003, the date the district court declared a mistrial. They further agree that "seventy days from the date" of that action was November 4, 2003 — seventy days after August 26, not counting August 26 itself. See United States v. Westbrook, 119 F.3d 1176, 1186 (5th Cir.1997); Gov't of Virgin Islands v. Duberry, 923 F.2d 317, 320 n. 8 (3d Cir.1991); Speedy Trial Plan of the United States District Court for the District of Columbia, at 10 (Oct. 30, 2002). Accordingly, unless another statutory provision is applicable, both parties agree that the deadline for commencement of the retrial was November 4, 2003.

There is another applicable provision. The Speedy Trial Act provides that certain "periods of delay shall be excluded in computing" the seventy-day period. 18 U.S.C. § 3161(h). The exclusion at issue here is that described in § 3161(h)(1)(F), which covers "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). The government filed such a pretrial motion on the morning of November 4, 2003, the seventieth day after the mistrial. The court did not resolve that motion until the day the retrial began, February 25, 2004.

Fonseca contends that the government filed its pretrial motion one day too late. According to the defendant, the period of exclusion — "from the filing of the motion through the . . . disposition of [] such motion" — does not begin until the day after the motion is filed. Under that view, the period of exclusion did not begin until November 5, 2003, too late to save a retrial that had to begin no later than November 4.

We disagree. In our view, the most natural reading of the phrase "from the filing of the motion" is that the period of exclusion begins immediately "from the filing." Fonseca's position, that the period begins from "the day after" the filing, would require the insertion of language not in the statute. Although we have never had occasion to reach a holding on this issue, we have previously suggested that the period of exclusion begins on the day a pretrial motion is filed. See United States v. Wilson, 835 F.2d 1440, 1441 n. 2 (D.C.Cir.1987). This was also the view of the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. See Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended (Dec.1979 rev., with amendments through Oct. 1984), 106 F.R.D. 271, 288 (1984). And it is the reading of all but one of the circuits that have considered the question. See United States v. Daychild, 357 F.3d 1082, 1092-93 (9th Cir.2004); United States v. Westbrook, 119 F.3d 1176, 1186 (5th Cir. 1997); United States v. Parker, 30 F.3d 542, 546-47 (4th Cir.1994); United States v. Jodoin, 672 F.2d 232, 237 n. 7 (1st Cir.1982) (Breyer, J.). Only the Sixth Circuit computes the starting date for this exclusion from the day after the motion is filed, and it has offered no explanation for that view other than circuit precedent. See United States v. Thomas, 49 F.3d 253 (6th Cir.1995).²

Fonseca argues that there is no justification for beginning the date of the exclusionary period on the date of the filing of a pretrial motion for purposes of § 3161(h)(1)(F), while not starting the seventy-day clock until the day after the filing date of an indictment or the day after the...