U.S. v. Long

• Decision Date: 16 April 1990
• Docket Number: Nos. 89-5126,89-5134,s. 89-5126
• Citation: 900 F.2d 1270
• Parties: 30 Fed. R. Evid. Serv. 266 UNITED STATES of America, Appellee, v. Faith Annette LONG, Appellant. UNITED STATES of America, Appellee, v. Garrett James BARRY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1270

900 F.2d 1270

30 Fed. R. Evid. Serv. 266

UNITED STATES of America, Appellee, v. Faith Annette LONG, Appellant.

UNITED STATES of America, Appellee, v. Garrett James BARRY, Appellant.

Nos. 89-5126, 89-5134.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 15, 1989.

Decided April 16, 1990.

John W. Lundquist and Bruce H. Hanley, Minneapolis, Minn., for appellants.

Jon M. Hopeman, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, ARNOLD, Circuit Judge, and LARSON, District Judge. ^*

LAY, Chief Judge.

Faith Annette Long and Garrett James Barry appeal their convictions arising out of their scheme to steal and sell blank airline tickets. They were convicted of trafficking stolen property and conspiracy, in violation of 18 U.S.C. Secs. 2315 and 371 (1988). They also were convicted of perjury, with Long's perjury conviction coming under 18 U.S.C. Sec. 1621 (1988), and Barry's under to 18 U.S.C. Sec. 1623 (1988). We reject their claims of error and affirm on all counts.

BACKGROUND

We set forth many of the facts in this case in our previous opinion upholding the district court's suppression order. See United States v. Barry, 853 F.2d 1479 (8th Cir.1988). We repeat only those facts essential to frame the issues presented here.

The FBI enlisted Barry's former employee, Arlene Anderson, to work as an informant in an undercover investigation of Long and Barry. Through Anderson the FBI arranged the ticket sales leading to the arrest of Long and Barry.

On the day of the arrests, Anderson and Barry arrived at a downtown hotel, and Anderson went to obtain money from her "buyer," actually the FBI. The FBI had marked the money with fluorescent powder that showed under black light. Barry had instructed her to take the money into the hotel elevator and hand it over when the doors opened and she saw someone she trusted. The FBI had told her to speak a code word into her microphone when she handed over the money. The elevator doors opened, Anderson saw Barry and gave him the money, but she forgot to speak the code word.

Upon learning of the mistake, the FBI began a frantic search of the hotel. One security guard reported seeing Barry meet with a dark-haired woman. Finally, about 15 minutes later, FBI agents spotted Barry about to enter his locked car. They arrested him and searched him and his car, but did not find the money. They took from his car a key to an airport locker, the contents of which were later suppressed. They also took other items later offered into evidence, including rubber gloves, tape, and a letter to a federal district judge.

About the same time as the hotel search, FBI agents discovered Long in a shopping mall near some lockers they suspected to contain stolen tickets. They interrogated her there, and she turned over to the agents the key to a locker hiding tickets.

Back downtown the search for the money continued several more hours. Using a key they had taken from Barry, the agents identified Barry's van in a ramp near the hotel. They searched the van without a warrant, but did not find the money. They did, however, find a tablecloth with fluorescent powder on it. Barry later told the FBI the money was hidden in a false compartment attached to the underside of the van's oil pan. In exchange for his revealing this information, the FBI agreed not to use the location of the money against him.

Long and Barry raise numerous claims of error. Long asserts that (1) her speedy trial rights were violated; (2) the court should have severed her trial from Barry's; (3) the court should have suppressed the statements she gave to the FBI at the shopping mall along with the evidence Barry asserts that (1) the searches of his car and van violated the fourth amendment; (2) admission of Long's hearsay statements violated his sixth amendment right to confrontation; and (3) the evidence was insufficient to sustain his perjury conviction and one count of his conviction under 18 U.S.C. Sec. 2315.

seized as a result of the statements; (4) the court admitted other improper evidence; (5) her perjury count was misjoined with the other counts in violation of Fed.R.Crim.P. 8(a); and (6) her false statement was not under oath and was not material as a matter of law.

Upon careful review of the record we find that the only claims with enough substance to warrant discussion are Long's Speedy Trial Act and severance claims, and Barry's fourth and sixth amendment claims. ¹

DISCUSSION

A. Speedy Trial Act

Under the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1988) (The Act), an indictment must be filed within 30 days after the defendant is arrested or charged by summons with a crime. 18 U.S.C. Sec. 3161(b). Long was arrested on October 9, 1986. The government dismissed the complaint against her on November 7 and then filed an indictment on November 18. Long argues that because the indictment on November 18 came more than 30 days after the arrest on October 9, the indictment should have been dismissed.

The well-settled rule in this and other circuits holds that when the government drops a complaint but then later brings a new complaint or indictment on the same charge, the 30-day period runs from the second complaint or indictment. United States v. Abernathy, 688 F.2d 576, 579 (8th Cir.1982); United States v. Hutchins, 818 F.2d 322, 325-26 (5th Cir.), cert. denied, 484 U.S. 1041, 108 S.Ct. 772, 98 L.Ed.2d 859 (1987); United States v. Puett, 735 F.2d 1331, 1333-34 (11th Cir.1984); United States v. Samples, 713 F.2d 298, 302-03 (7th Cir.1983); United States v. Bittle 99 F.2d 1201, 1205-06 (D.C.Cir.1983). We need not repeat the well-explained rationale for this rule. See United States v. Puett, 735 F.2d at 1333-34; United States v. Bittle, 699 F.2d at 1205-06. ² Thus, the time between the arrest and the dismissal of the first complaint is not counted, nor is the time between the dismissal and the second indictment. The 30 day rule was not violated.

The Speedy Trial Act also requires trial to begin within 70 days after indictment, 18 U.S.C. Sec. 3161(c), not counting time spent in certain proceedings. See 18 U.S.C. Secs. 3161(d), (h). Long asserts a violation of this 70-day rule. Reviewing this claim involves detailed examination of the time periods that should be counted or excluded from calculation of the 70 days.

Long was indicted on November 18, 1986, and arraigned on November 19, 1986. The count of 70 days therefore began on November 20, 1986. See United States v. Robinson, 767 F.2d 765, 769 (11th Cir.1985) (70 day limit triggered by arraignment and begins to run day after arraignment). The defendants filed pretrial motions on December 1, 1986. The Act excludes from the count "[a]ny period of 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. Sec. 3161(h)(1)(F). The 70-day count therefore stopped on December 1, having elapsed 11 days.

The parties dispute when the clock re-started. The Supreme Court has interpreted language of section 3161(h)(1)(F) to mean that when a pretrial motion requires a hearing, the excludable period runs from the filing of the motions to the date of the hearing, or until the date when the parties have submitted any additional materials requested by the court. When the motions require no hearing, the excludable period runs from the date of filing until the court receives all the parties' submissions regarding the motions. Henderson v. United States, 476 U.S. 321, 328-31, 106 S.Ct. 1871, 1875-77, 90 L.Ed.2d 299 (1986). Following this period excluded under section 3161(h)(1)(F), the Act will allow exclusion of up to 30 more days for the court to consider the motions. 18 U.S.C. Sec. 3161(h)(1)(J); see also, Henderson, 476 U.S. at 328-31, 106 S.Ct. at 1875-77.

The magistrate held hearings on the motions December 3, 4, and 12, 1986. He requested the parties to file additional memoranda by December 30, 1986, and filed a report and recommendation to the district court on January 16, 1987. The report and recommendation provided that the parties could file objections to it by January 30, 1987.

Long contends that the excludable period under section 3161(h)(1)(F) ended, and the 30-day consideration period of section 3161(h)(1)(J) began, on December 30, the due date for additional memoranda to be filed with the magistrate following the hearing. The government asserts that the 30-day advisement period began after January 30, the due date for the parties to file with the district court their objections to the magistrate's report and recommendation. The government argues that because the magistrate's report and recommendation is not an order disposing of the motions, the exclusion period under section 3161(h)(1)(F) should continue until the district court has all materials it needs to consider and rule on the motions, including the magistrate's report and recommendation.

We disagree. Section 3161(h)(1)(F) refers to "the prompt disposition" of a motion. It does not state that "disposition" means an order of the district court. The government's reading would provide the magistrate a blank check to consume unlimited time between the hearing or receipt of all final submissions, and the issuance of his report and recommendation. We see no reason to exempt magistrates from the statutory limit of 30 excludable days for taking a motion under advisement after receiving all materials needed to decide it. All memoranda were filed with the magistrate on December 30, 1986, and he had 30 excludable days from then to rule. He used only 16 to issue his report and recommendation, and thus the 70-day count did not advance.

The issuance of the report and recommendation began a new excludable period under section 3161(h)(1)(F). The magistrate is required to file the report and recommendation with the district court, and the parties must file their objections to it...