U.S. v. Giwa

• Decision Date: 21 October 1987
• Docket Number: No. 86-1924,86-1924
• Citation: 831 F.2d 538
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jelili Olaose GIWA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 538

831 F.2d 538

UNITED STATES of America, Plaintiff-Appellee, v. Jelili Olaose GIWA, Defendant-Appellant.

No. 86-1924.

United States Court of Appeals, Fifth Circuit.

Oct. 21, 1987.

Gerhard Kleinschmidt, Ft. Worth, Tex. (Court appointed), for defendant-appellant.

Jelili Olaose Giwa, pro se.

Lynn Hastings, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, JOHNSON, and WILLIAMS, Circuit Judges.

JOHNSON, Circuit Judge:

Defendant Jelili Olaose Giwa appeals his conviction of two counts of using a false Social Security number in violation of 42 U.S.C. Sec. 408(g)(2). Specifically, Giwa asserts that the district court erred in denying his motion to dismiss his indictment following the Government's failure to comply with the Speedy Trial Act. Giwa also argues that the district court improperly denied his motion to suppress evidence seized during the execution of a search warrant. For the reasons set forth below, we reject both contentions and affirm.

I. FACTS AND PROCEDURAL HISTORY

On August 1, 1986, a special agent of the United States Secret Service obtained a search warrant for the residence of Dominic Ohiwere Aruya with the purpose of the warrant being to search for evidence of credit card fraud. On that same day, the agent obtained a criminal complaint against Aruya for credit card fraud in violation of 18 U.S.C. Sec. 1029. Aruya was described as a black male with a foreign accent of Nigerian nationality. Two different secret service agents, who had been given a description of Aruya, went to Aruya's apartment to execute the search and arrest warrants. The agent who originally obtained the warrant and complaint did not accompany the other secret service agents to Aruya's apartment.

Upon arriving at the apartment, the agents knocked on the door and identified themselves as federal agents; whereupon, defendant Giwa, the sole individual present in the apartment at the time, opened the door clad only in slacks and a bathrobe. Acting upon the mistaken belief that Giwa, a black Nigerian male, was Dominic Aruya, the agents placed Giwa against the wall, conducted a pat-down search, and handcuffed him.

Thereafter, the agents asked Giwa if he was in fact Aruya, to which Giwa responded he was not. When asked for identification, Giwa indicated to the agents that his identification was in a flight bag in the closet and pointed to the closet to which he was referring. The agents then retrieved the flight bag from the closet and confirmed with Giwa his ownership of the bag. After the agents refused a request by Giwa to obtain his identification from the bag himself, Giwa informed the agents that his identification was in the side pocket of the bag. The agents opened the pocket and discovered eight Gulf-Chevron credit cards and one American Express credit card, none of which were in Giwa's name, as well as identification bearing Giwa's photograph. The agents, having probable cause at that point to believe Giwa had committed credit card fraud, arrested him.

On the basis of the evidence obtained in the search of Giwa's bag and further evidence discovered during a search of his vehicle, Giwa was formally charged on August 4, 1986, with credit card fraud in violation of 18 U.S.C. Sec. 1029. On September 10, 1986, forty days following his initial arrest, Giwa was indicted on six counts of mail fraud, 18 U.S.C. Sec. 1341, and the knowing and willful use of a false Social Security number with the intent to deceive, 42 U.S.C. Sec. 408(g)(2). He was not indicted on the credit card fraud charge. Giwa filed a motion to dismiss the indictment on September 12, 1986, alleging that the Government had violated the Speedy Trial Act, section 3161(b), by failing to obtain an indictment within thirty days of Giwa's arrest. Giwa also filed a motion to suppress challenging the validity of the search of his bag. The district court denied both motions.

In denying Giwa's motion to dismiss, the district court reasoned that an arrest triggers the running of the thirty day time period in section 3161(b) only if the arrest is for the same offense for which the accused is subsequently indicted. Applying the above reasoning, the district court concluded that since the offense for which Giwa was arrested, credit card fraud, was different from the offenses for which Giwa was ultimately indicted, mail fraud and use of a false Social Security number, the Speedy Trial Act was not violated. After the denial of his motions, Giwa entered a conditional guilty plea to two counts of use of a false Social Security number, reserving his right to appeal the denial of his pretrial motions.

II. DISCUSSION

A. Speedy Trial Act

Giwa claims that the forty day delay between his initial arrest on August 1, 1986, and his subsequent indictment on September 10, 1986, violated his rights under 18 U.S.C. Sec. 3161(b) of the Speedy Trial Act ("the Act"). Section 3161(b) provides that "any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested...." (emphasis added). If the Government fails to return an indictment within thirty days of arrest, section 3162(a)(1) of the Act mandates as a sanction dismissal of the charges contained in the original complaint. ¹ The sanction of dismissal contained in section 3162(a)(1) is triggered automatically if the indictment is not filed within the thirty day period; therefore, we need not inquire whether the delay in the instant case was due to bad faith or negligence on the part of the Government prosecutors. United States v. Pollock, 726 F.2d 1456, 1462 (9th Cir.1984).

Giwa concedes that the Government has not technically violated section 3161(b). However, Giwa argues that since his arrest and indictment flow out of the same set of transactions and circumstances, the spirit of the Speedy Trial Act has been violated; thus, the Act bars prosecution of not only the charge of credit card fraud, but also the charges of mail fraud and use of a false Social Security number as well. This proposed construction of the Act is overly broad.

While this Court has not yet addressed the dismissal sanction in section 3162(a)(1) in this context, every circuit which has decided this issue thus far has adopted a narrow interpretation of section 3162(a)(1), holding that if the Government fails to indict a defendant within thirty days of arrest, the Act requires dismissal of only the offense or offenses charged in the original complaint. United States v. Ray, 768 F.2d 991, 997 (8th Cir.1985) (arrest on one charge does not trigger the right to a speedy trial on another charge filed after arrest); United States v. Napolitano, 761 F.2d 135, 137 (2d Cir.), cert. denied, 474 U.S. 842, 106 S.Ct. 129, 88 L.Ed.2d 106 (1985) (rejecting defendant's claim that the Act bars prosecution not only for the charge alleged in the complaint, but also for any conduct arising out of the same criminal episode which was known or reasonably should have been known at the time the complaint was filed); United States v. Heldt, 745 F.2d 1275, 1280 (9th Cir.1984) (charges not included in the original complaint are not covered by the Act....); United States v. Brooks, 670 F.2d 148, 151 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1339 (1982) (arrest triggers the running of section 3161(b) of the Speedy Trial Act only if the arrest is for the same offense for which the accused is subsequently indicted). ²

The specific statutory language in section 3162(a)(1) supports the construction given that provision by the courts. The Act requires dismissal of only those charges contained in the original complaint. "Absent a clear indication of legislative intent to the contrary, the statutory language controls its construction." Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n. 3, 101 S.Ct. 2239, 2241 n. 3, 68 L.Ed.2d 744 (1981).

Moreover, the legislative history of the Act supports a narrow interpretation of section 3162(a)(1). While the initial drafts of the Act barred prosecution of those offenses contained in the complaint or "any offense based on the same conduct or arising from the same criminal episode," or those offenses "which were known or reasonably should have been known at the time of dismissal," Congress expressly rejected those drafts in favor of the more restrictive version currently in effect. ³ A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, (Fed. Judicial Center 1980) at 32-33. The original versions of the Act

would have required courts to engage in the complex task of investigating the relationship between the conduct underlying the offenses charged in the complaint and the conduct underlying the offenses listed in the indictment. ... The version of section 3162 actually passed by Congress, however, creates a sensible legal test that courts can efficiently apply.

With the present more restrictive language the offenses to be dismissed are now apparent on the face of the complaint.

Pollock, 726 F.2d at 1463. ⁴

Prosecutors, however, are not free to delay indefinitely bringing charges against an individual which are not brought in the initial complaint. The applicable statute of limitations, the due process clause of the fifth amendment, the general sixth amendment right to a speedy trial, and the power of the court to dismiss a case in its entirety give some degree of protection for a defendant from undue delay of prosecution by the authorities. Heldt, 745 F.2d at 1280 (quoting Pollock, 726 F.2d at 1463 n. 11).

Furthermore, there does exist a notable exception to the general rule that an arrest on one charge does not trigger the right to a speedy trial on another charge filed after arrest. If a subsequent charge merely "gilds" the initial charge filed against an...