U.S. v. Henderson, s. 83-1075

• Decision Date: 07 March 1985
• Docket Number: Nos. 83-1075,83-1076 and 83-1112,s. 83-1075
• Citation: 746 F.2d 619
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. HENDERSON, Scott O. Thornton and Ruth Freedman, Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 619

746 F.2d 619

53 USLW 2271

UNITED STATES of America, Plaintiff-Appellee, v. Thomas J. HENDERSON, Scott O. Thornton and Ruth Freedman Defendants- Appellants.

Nos. 83-1075, 83-1076 and 83-1112.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 13, 1984.

Decided Nov. 5, 1984.

Opinion on Denial of Rehearing and Rehearing In Banc March 7, 1985.

Sidney M. Glazer, Acting Chief, Appellate Section, Washington, D.C., for plaintiff-appellee.

Paul G. Sloan, Denise Anton, Serra, Perlson, Metcalf & Murko, Alex Reisman, San Francisco, Cal., for defendants-appellants.

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

Before DUNIWAY, SKOPIL, and FERGUSON, Circuit Judges.

DUNIWAY, Circuit Judge:

Henderson, Thornton, and Freedman appeal from their criminal convictions for conspiracy, manufacture, sale and possession of controlled substances (methamphetamine and phenyl-2-propanone). They argue that (1) unreasonable delays in the disposition of pretrial suppression motions violated their rights under the Speedy Trial Act; (2) use of an electronic beeper violated their Fourth Amendment privacy rights; and (3) a search warrant affidavit did not establish probable cause. We affirm.

FACTS:

In February 1980, Henderson (under the alias "Richard Martin") ordered from Buckeye Scientific Co. of Columbus, Ohio, chemicals that could be used to produce methamphetamine and phenyl-2-propanone, which are controlled substances listed in Schedule II and prohibited by 21 U.S.C. Sec. 841(a)(1). This order triggered Drug Enforcement Agency attention. In April, Henderson and co-defendant Bell rented a private plane, flew from California to Ohio, and accepted delivery of the chemicals at a hotel parking lot. Henderson telephoned Thornton's house from the hotel. Henderson ordered more chemicals, for June pick-up. An agent got a warrant from a U.S. Magistrate in Columbus, authorizing installation of an electronic beeper transmitter in one of the chemical containers. Henderson drove from California to Ohio, picked up the chemicals on June 24, and headed homeward. Agents following by car and plane lost the beeper signal.

Agents had located Henderson in California, however, by a Modesto post office box used in business dealings with Buckeye. They also watched Thornton and had discovered phone calls between them, and also linked Thornton with Freedman and Bell. Agents searched for the beeper by air and, on July 15, picked up the signal from Freedman's house near Watsonville, California. They got a search warrant, raided the house on the 17th, and found the suspected drug factory.

On August 27, 1980, a Grand Jury indicted the appellants on a variety of charges involving the manufacture and possession with intent to distribute methamphetamine and phenyl-2-propanone. On July 21, 1982, Thornton, later joined by the other appellants, moved to dismiss for violation of the Speedy Trial Act. The district court held a hearing on the motion and denied it on October 8, 1982. Thornton also filed a petition for writ of mandamus on the same grounds to this court, which denied it. Thornton v. U.S. District Court for the Northern District of California, 9 Cir., order filed November 8, 1982, No. 82-7624.

After a trial, a jury convicted the three defendants of conspiracy to manufacture and possess with intent to distribute methamphetamine and phenyl-2-propanone, 21 U.S.C. Sec. 846; Thornton and Freedman of manufacture and possession with intent to distribute methamphetamine, 21 U.S.C. Sec. 842(a)(1); and Henderson of two counts of travelling interstate with intent to promote the manufacture and possession of methamphetamine, 18 U.S.C. Sec. 1952(a)(3). The district court severed the case of co-defendant Bell, the pilot for the April trip, who was tried separately and acquitted.

I. SPEEDY TRIAL ACT REQUIREMENTS.

The Speedy Trial Act requires that trial begin within 70 days of the latest indictment, information, or appearance. 18 U.S.C. Sec. 3161(c)(1). All agree that the clock started on September 3, 1980, when defendant Bell was arraigned. Trial did not start until November 1, 1982, some 789 days later. After a hearing on the appellants' motion to dismiss for Speedy Trial Act violations, the district court ruled that at most 66 days of the delay (specifically, 48 days from 9/3/80 to 10/22/80, 4 days from 1/15/82 to 1/19/82, 5 days from 1/20/82 to 1/25/82, and a tentative 9 days from 1/25/82 to 2/3/82) were not excludable time and, therefore, there was no violation. (Memorandum and Order of October 8, 1982.) The appellants argue that 303 to 394 days of the delay were nonexcludable and that the district court should have dismissed the indictment with prejudice under Sec. 3162(a)(2).

The standard of review in Speedy Trial appeals is "clear error" in the district court's factual findings and de novo review of questions of correct legal standards. United States v. Nance, 9 Cir., 1982, 666 F.2d 353, 356.

A. Pretrial Motions.

The Act provides, 18 U.S.C. Sec. 3161(h)(1)(F):

(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--

* * *

(F) 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;

* * *

(Emphasis ours.)

The trial judge excluded most of the time as pretrial motion delays under that section. The appellants argue that the court erred; that it could exclude only delays that were "reasonably necessary." The government points out that the statute contains no such requirement and argues that such a requirement is undesirable.

Without expressly addressing this question, we have treated the exclusion as automatic. See, e.g., United States v. Van Brandy, 9 Cir., 1984, 726 F.2d 548, 551-52; United States v. Manfredi, 9 Cir., 1983, 722 F.2d 519, 524. Several other circuits exclude pretrial motion time automatically. See, e.g., United States v. Horton, 5 Cir., 1983, 705 F.2d 1414, 1416; United States v. Stafford, 11 Cir., 1983, 697 F.2d 1368, 1373 & n. 4; United States v. Fogarty, 8 Cir., 1982, 692 F.2d 542, 545; United States v. Brim, 8 Cir., 1980, 630 F.2d 1307, 1312. Some circuits, however, have adopted a "reasonably necessary" standard. See, e.g., United States v. Novak, 3 Cir., 1983, 715 F.2d 810, 819-20; United States v. Cobb, 2 Cir., 1982, 697 F.2d 38, 43-44.

On its face, the statute excludes delays resulting from pretrial motions without qualification. Condensed, the language is "The following periods ... shall be excluded ...: Any period of delay ... including ... delay resulting from any pretrial motion, from the filing of the motion to the conclusion of the hearing on, or other prompt disposition of such motion." It does not say "any reasonable period of delay." The word "prompt" applies only to dispositions other than by hearing. Stafford, 697 F.2d at 1373 & n. 4.

Congress knew how to require that a period of delay be reasonable when it wished to do so, see Sec. 3161(h)(7): "Any reasonable period of delay when the defendant is joined for trial with a defendant as to whom the time for trial has not run...." We note that Sec. 3161(h) contains paragraphs (1) through (6), every one of which except (6) begins with the words "Any period of delay," and paragraph (6) uses the same words, though not at the beginning. The difference between (7) and (1) through (6) is a strong indication that exclusion of the periods defined in (1)-(6) was intended to be automatic.

In general, the legislative history supports this view. The House Committee reported its "intention that potentially excessive and abusive use of this exclusion be precluded by district or circuit guidelines, rules, or procedures relating to motions practice." H.R.Rep. No. 390, 96th Cong., 1st Sess. 10, reprinted in 1979 U.S.Code Cong. & Ad.News 805, 814. Similarly, the Senate Committee reported that "if basic standards for prompt consideration of pretrial motions are not developed, this provision could become a loophole which would undermine the whole Act," making this "an appropriate subject for circuit guidelines" pursuant to Sec. 3166(f). S.Rep. No. 212, 96th Cong., 1st Sess. 34 (1979). See generally Plan for Prompt Disposition of Criminal Cases, United States District Court for the Northern District of California, part II Sec. 6, West's Calif.Rules of Court 669, 671 (1984). Congress did not indicate that Sec. 3161(h)(1)(F) itself required or ensured prompt or otherwise time-constrained hearing of pretrial motions.

The Senate Committee repeatedly referred to the Sec. 3161(h)(1)(F) exclusion as "automatic," S.Rep., supra, at 33, 34, and the courts in Horton, Stafford, Fogarty, and Brim, all supra, also read the statute this way. See, e.g., Stafford, 697 F.2d at 1373 & n. 4.

The Senate Committee, however, noted that it did not "intend that additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary." S.Rep., supra, at 34. The courts in Novak, 715 F.2d at 819-20, and Cobb, 697 F.2d at 43-44, relied on this expression of legislative intent to hold that Sec. 3161(h)(1)(F) excludes only the time "reasonably necessary" for the disposition of pretrial motions.

We do not agree. It is important that the court and the parties know when the clock stops running under the Act. It is even more important that they know when it starts again. But if the start is to be at the point when the passage of time becomes "unreasonable," even if the period of delay mentioned in the statute has not expired, neither the court nor the parties can know where they stand. Moreover, there...