U.S. v. Hohn, 92-2653
| Decision Date | 08 November 1993 |
| Docket Number | No. 92-2653,92-2653 |
| Citation | 8 F.3d 1301 |
| Parties | UNITED STATES of America, Appellee, v. Arnold F. HOHN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James M. Davis, Omaha, NE, argued, for appellant.
Michael P. Norris, Omaha, NE, argued, for appellee.
Before MAGILL, Circuit Judge, LAY, Senior Circuit Judge, and HANSEN, Circuit Judge.
Arnold F. Hohn (Hohn) appeals from the final judgment entered in the district court 1 upon a jury verdict of guilt on all offenses. Hohn's appeal challenges three rulings of the district court. Hohn contends that the district court erred by denying his motion to dismiss on Speedy Trial Act grounds, by denying his motion to suppress evidence, and, finally, by denying his motion to dismiss Count I of the indictment which charged him with the distribution of drugs within 1000 feet of a public school. For the reasons discussed below, we affirm.
The Omaha, Nebraska, police received information from a confidential informant implicating Hohn as a methamphetamine dealer distributing from his home. The informant told the police, among other details, that Hohn was "paranoid," had a vicious dog, and always had at least one gun on his person. The police investigated the information received from the informant and, in the course of the police investigation, Hohn's curbside garbage receptacle was inventoried. The garbage inventory and subsequent testing revealed, among other drug-related items, a zip-lock bag and sno-seals 2 that both tested positive for methamphetamine. The police obtained a "no-knock" search warrant pursuant to Nebraska state law. Hohn was arrested when the search of his residence on June 20, 1990, resulted in the recovery of approximately sixteen grams of methamphetamine, drug paraphernalia, multiple weapons, and money.
Hohn's residence was located within 177 feet of the Central Park Elementary School (Central Park). Central Park's last day of classes for the 1989-90 school year was June 7, 1990. Because the Omaha public school system planned to remodel and attach an addition to the present building, the student body was temporarily reassigned to another building for the 1990-91 school year. From the last day of classes through the date of Hohn's trial, Central Park was carried on the school system's books as a public school. On June 20, 1990, the date of Hohn's arrest, the public maintained access to the school grounds for recreational purposes.
Hohn was consequently indicted on August 24, 1990, on three counts: (I) possession with intent to distribute methamphetamine within 1000 feet of real property comprising a public school in violation of 21 U.S.C. § 845a; (II) use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and (III) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Hohn made an initial appearance at his arraignment on August 30, 1990.
To gain additional time for pretrial motions, the government and Hohn entered into a stipulated agreement to extend the time for pretrial motions until October 19, 1990. The court then entered an order stating that the time between September 19 and October 19 was excludable for Speedy Trial Act purposes.
On October 1, 1990, a pretrial services officer filed a petition for action on conditions of pretrial release (the petition), thus notifying the court that Hohn's urine specimens had tested positive for amphetamine and methamphetamine. The court consequently held a hearing regarding that petition on October 11, 12, and November 9, 1990. The defendant and the government both presented evidence and argument at this hearing. The court found on November 9 that the government had presented clear and convincing evidence that Hohn had violated his conditions of release and ordered Hohn detained.
Hohn's counsel filed a motion to withdraw on December 10, 1990, and the court allowed Hohn's counsel to withdraw on December 18, 1990. On that same date, Hohn's new counsel filed a motion to reconsider detention and urged the court to place Hohn in drug treatment as opposed to continuing to detain him. The court requested pretrial services to investigate Hohn's eligibility for drug treatment and, on December 20, pursuant to pretrial services' advice, released Hohn and ordered him to complete inpatient drug treatment or return to custody. The December 20, 1990, order specifically stated that if Hohn successfully completed drug treatment, a subsequent hearing would be held regarding further terms and conditions of release. Hohn entered inpatient treatment at St. Gabriel's Alcohol and Drug Treatment Center on December 20, 1990.
Hohn filed a motion to dismiss on Speedy Trial Act grounds on January 14, 1991. Meanwhile, on January 23, 1991, Hohn completed drug treatment and was released pursuant to a court order specifying his terms and conditions of release.
The Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1988), requires that a criminal defendant be tried within seventy days of the indictment or the date of first appearance before a judicial officer, whichever is later. Id. § 3161(c)(1). The statute allows, however, certain delays to be excluded for purposes of calculating the seventy-day time limit. See id. § 3161(h). If the government fails to comply with the terms of the Speedy Trial Act, a defendant may move for dismissal either with or without prejudice. Id. § 3162(a). The district court's legal findings are reviewed de novo, but factual findings are reviewed under the clearly erroneous standard. United States v. Hoslett, 998 F.2d 648, 652 (9th Cir.1993).
Hohn argues that the court incorrectly excluded two periods of delay from its calculation for Speedy Trial Act purposes: (1) the period from October 20 through November 9 (twenty-one days), during which the court considered pretrial services' petition 3; and (2) the period from December 21 through January 13, 1991 (twenty-four days), during which Hohn was treated as an inpatient at St. Gabriel's Alcohol and Drug Treatment Center. 4 The district court 5 excluded both these periods of time from its calculation of the seventy-day limit because it found that the first period was excludable pursuant to § 3161(h)(1)(F) as a pretrial motion and the second period of time was excludable pursuant to either § 3161(h)(1)(F) or, in the alternative, § 3161(h)(4). We find that for purposes of determining whether the Speedy Trial Act seventy-day limit had lapsed, both periods of time were properly excluded from the district court's calculation of time.
The period of time from October 20 through November 9 was properly excluded pursuant to § 3161(h)(1)(F) (subsection (F)) as a pretrial motion. The Speedy Trial Act allows for the exclusion of periods of delay due to proceedings concerning the defendant. The Act states in pertinent part:
(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.
18 U.S.C. § 3161(h)(1)(F).
Hohn contends that the period of delay from October 20 through November 9 cannot be excluded pursuant to subsection (F) because subsection (F) refers to pretrial motions and not petitions. Hohn further contends that because the petition was filed by pretrial services, and not a party, the court may not exclude this period of delay pursuant to subsection (F). Finally, Hohn contends that when the court granted continuances from the hearing's initial date of October 11 to October 12 and then to November 9, the court erred when it failed to make the specific statutory finding required pursuant to § 3161(h)(8)(A).
Section 3161(h)(1) specifically states that the periods of delay are "including but not limited to," thus creating in the statute the presumption that the scope of its enumerated delays are not to be interpreted narrowly. A motion is an application to the court for an order. Fed.R.Crim.P. 47. Once pretrial services had filed its petition, the government, now notified of Hohn's possible violation of his terms of release, was requesting the court to revoke Hohn's release--issue an order--when it presented its argument and evidence before the court on October 11, 12, and November 9.
We find that pretrial services' petition is the functional equivalent of a motion to revoke detention. Pretrial services discovered through urine testing that Hohn tested positive for methamphetamine. The use of methamphetamine was a violation of Hohn's original conditions of release and hence pretrial services was obligated to inform the court of its discovery. After the petition was filed, the government proceeded to prosecute the claim that Hohn had violated the court's original conditions of release. The court noted in its order revoking release that the government had established clear and convincing evidence that the defendant violated a term of release. Hence, the court treated the petition precisely as it would have treated a motion for revocation of release brought either by the court's own motion or by the government. If the initial filing with the court had been brought by the government as a motion, Hohn's contention that the period from October 20 through November 9 cannot be excluded for Speedy Trial Act purposes would be untenable.
Petitions may be the functional equivalent of other recognized § 3161(h)(1) delays. See United States v. Davenport, 935 F.2d 1223, 1233 (11th Cir.1991); acc...
To continue reading
Request your trial
-
DePugh v. Penning, C 93-0226.
...purchase of hydroponic gardening equipment, consistent with marijuana cultivation). Olson, 21 F.3d at 850; see also United States v. Hohn, 8 F.3d 1301, 1306 (8th Cir.1993) (affidavit supporting search warrant set forth probable cause, because the police officers sufficiently corroborated th......
-
Hohn v. U.S.
...jury convicted Hohn on all counts. Hohn did not challenge the instruction in his direct appeal, and the Court of Appeals affirmed. 8 F.3d 1301 (C.A.8 1993). Two years after Hohn's conviction became final, we held the term "use'' in §924(c)(1) required active employment of the firearm. Proxi......
-
U.S. v. Harris, 01-2027.
...961 F.2d 1089, 1090-95 (3d Cir.1992); United States v. Wake, 948 F.2d 1422, 1429-34 (5th Cir.1991); see also United States v. Hohn, 8 F.3d 1301, 1307 (8th Cir.1993) (stating, in the context of addressing the defendant's claim that § 860(a) should not apply because the school he was accused ......
-
U.S. v. Koons
...uncovered drug residue in a suspect's trash. United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir.2001); United States v. Hohn, 8 F.3d 1301, 1306 (8th Cir.1993). There is no evidence that Budach's affidavit contained misrepresentations, and the facts which Budach omitted would on......