U.S. v. Mastrangelo

• Decision Date: 01 June 1984
• Docket Number: No. 83-5363,83-5363
• Citation: 733 F.2d 793
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Carmine MASTRANGELO, a/k/a John A. Marino, a/k/a John James Rossi, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 793

733 F.2d 793

UNITED STATES of America, Plaintiff-Appellee, v. John Carmine MASTRANGELO, a/k/a John A. Marino, a/k/a John James Rossi, Defendant-Appellant.

No. 83-5363.

United States Court of Appeals Eleventh Circuit.

June 1, 1984.

Sandstrom & Haddad, Ray Sandstrom, Fort Lauderdale, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Linda Collins Hertz, Asst. U.S. Atty., Miami, Fla., Eileen M. O'Connor, Asst. U.S. Atty., Fort Lauderdale, Fla., Sonia O'Donnell, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL and ANDERSON, Circuit Judges, and THORNBERRY ^*, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

On November 29, 1978, John Carmine Mastrangelo purchased a pistol from a licensed firearms dealer in Fort Lauderdale, Florida. In purchasing the pistol, Mastrangelo completed a firearms transaction form, ATF form 4473, falsely representing his name, place of birth, and date of birth. During the transaction, he also furnished and exhibited a false driver's license to the firearms dealer.

Mastrangelo was arrested and charged in a two-count indictment. Count I charged that he knowingly made false and fictitious written statements on the firearms transaction form concerning his true name, place of birth, and date of birth, in violation of 18 U.S.C. Sec. 922(a)(6) (1976). Count II charged Mastrangelo with knowingly furnishing and exhibiting false, fictitious, and misrepresented identification to the firearms dealer by furnishing and exhibiting the false driver's license, also in violation of 18 U.S.C. Sec. 922(a)(6) (1976). Defendant was found guilty on both counts after a bench trial. He was sentenced to three years imprisonment as to Count I, ordered confined for a period of six months, with the remainder of the sentence suspended, and given a term of five years probation to begin upon discharge from incarceration. Defendant was sentenced to twenty months on Count II, to be served concurrently with the sentence imposed on Count I.

Mastrangelo appeals his convictions and sentences arguing that the district court erred in denying his motion to dismiss for violation of the Speedy Trial Act, erred in denying his motion to suppress, and erred in adjudicating separate convictions and in imposing separate sentences. We find no violation of the Speedy Trial Act and no error in denying the motion to suppress. But, we view the appellant's making false written statements and furnishing false identification as a single violation of 18 U.S.C. Sec. 922(a). Thus, we vacate the sentences and remand for resentencing.

I. SPEEDY TRIAL ACT

Mastrangelo contends that his rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1982), were violated because his trial did not commence quickly enough or, alternatively, because his trial commenced too quickly. Appellant was indicted on October 27, 1982, and first appeared for arraignment on November 3, 1982. Nineteen days later, on November 23, 1982, he filed a motion to dismiss the indictment and a motion to suppress. On December 15, 1982, the magistrate issued an order on the motions denying the motion to dismiss and stating that the motion to suppress would be retained by the district judge. Appellant filed a motion to dismiss for violation of the Speedy Trial Act on March 4, 1983. On March 14, 1983, the district judge denied the motion to dismiss under the Speedy Trial Act and conducted a hearing on the motion to suppress. At the conclusion of the March 14 hearing, the court denied the motion to suppress; trial commenced later the same day.

Mastrangelo asserts that 120 days lapsed between the time of his arraignment on November 3, 1982, and the March 4, 1983, filing of his motion to dismiss for violation of the Speedy Trial Act. ¹ According to appellant, the only excludable time within this 120-day period, as defined by 18 U.S.C. Sec. 3161(h), was the 23-day period between November 23, 1983, and December 15, 1983, during which the magistrate considered the motion to dismiss the indictment and the motion to suppress. He reasons that 120 days less the 23 days of excludable time leaves 97 days of nonexcludable time, in violation of the 70-day period between postindictment arraignment and commencement of trial mandated by 18 U.S.C. Sec. 3161(c)(1).

Section 3161(h)(1)(F) of the Speedy Trial Act, however, excludes all time from the filing of any pretrial motion through the conclusion of the hearing on such motion. As this court stated in United States v. Stafford, 697 F.2d 1368, 1373 (11th Cir.1983), "[I]f a hearing is held, (F) by its terms excludes without qualification the entire period between the filing of the motion and the conclusion of the hearing." See also United States v. Campbell, 706 F.2d 1138, 1143 (11th Cir.1983). Therefore, the entire period between the filing of the motion to suppress on November 23, 1982, and the conclusion of the hearing on the motion on March 14, 1983, is excludable from the calculation of the 70-day period imposed by section 3161(c)(1). Accordingly, only 19 nonexcludable days passed from the appellant's arraignment to the commencement of his trial, well within the time strictures of the Speedy Trial Act. ²

Alternatively, Mastrangelo contends that if the exclusion in section 3161(h)(1)(F) results in only 19 nonexcludable days, then 18 U.S.C. Sec. 3161(c)(2) was violated. Section 3161(c)(2) of the Act states that, unless the defendant consents in writing, the trial shall not commence less than 30 days from the date on which the defendant first appears through counsel. Appellant maintains that the mandatory minimum period of 30 days is extended by the periods of excludable delay provided in 18 U.S.C. Sec. 3161(h).

Section 3161(h) states that the enumerated 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." Therefore, the plain and unambiguous language of section 3161(h) does not apply the excludable time provisions to the 30-day time limit set forth in section 3161(c)(2). In the only reported case addressing the issue, the Fourth Circuit carefully considered the statutory language, the legislative history, and the purpose of the Speedy Trial Act and held that the thirty-day minimum period for commencement of trial is not extended by the exclusions of section 3161(h). United States v. Wooten, 688 F.2d 941, 949-51 (4th Cir.1982). This is the same view announced by the Committee on the Administration of the Criminal Law of the Judicial Conference. Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended 12-14 (1981); see also Misner, The 1979 Amendments to the Speedy Trial Act: Death of the Planning Process, 32 Hastings L.J. 635, 653 (1981) ("This Article concludes that the excludable time provisions should be inapplicable to section 3161(c)(2)").

Although we are aware of language in the Senate Report on the 1979 Amendments to the Speedy Trial Act that suggests that the exclusions should be applied to extend the limitations in section 3161(c)(2), Sen.Rep. No. 96-212, 96th Cong., 1st Sess. 32 (1979), we agree with the interpretation of section 3161(c)(2) by the court in United States v. Wooten. Particularly under the facts of this case, where the defendant had over four months to prepare for trial and at no time suggested to the trial court any need for further time to prepare, the purpose of section 3161(c)(2) to ensure that a defendant has adequate time for pretrial preparation was aptly served without requiring further nonexcludable time. We therefore hold that the thirty-day limitation established by 18 U.S.C. Sec. 3161(c)(2) is measured simply in calendar days and not by application of the excludable time provisions of section 3161(h).

Finding that appellant was not brought to trial either too soon or too late, we hold that the district court did not err in denying the motion to dismiss for violation of the Speedy Trial Act.

II. MOTION TO SUPPRESS

The district court denied Mastrangelo's motion to suppress (1) the pistol found in his car after an arrest by state police for conspiracy to traffic in marijuana, (2) a driver's license in the name of John Angelo Marino, (3) a driver's license in the name of John James Rossi, and (4) the ATF transaction form used in purchasing the pistol from the firearms dealer. Mastrangelo asserts that his original arrest for conspiracy to traffic in marijuana was illegal and tainted the seizure of the pistol and other evidence derived as a result of the arrest.

In August and September of 1980, undercover police officers met Peter Cristodero and William O'Donnell and made arrangements for Cristodero and O'Donnell to purchase 1,000 pounds of marijuana from the officers. Cristodero arrived at the agreed time and place for the sale along with several associates, including Mastrangelo, who was driving a Cadillac with O'Donnell as a passenger. One of the officers stated that he had to see the money before any marijuana was exchanged. Mastrangelo then leaned over, opened the glove box to the Cadillac, either pushed a button that opened the trunk of the car or told O'Donnell to push the button, and said the money was in the trunk in the suitcase. The officer counted $200,000 in the trunk and walked over to talk to another officer. The two officers returned to the car and appellant was told that the second officer wanted to view the money. Either Mastrangelo or one of his associates through his command again opened the trunk of appellant's car. During the transaction, an officer noted what appeared to be a police radio in the Cadillac and asked Mastrangelo about it. Appellant responded that he checked out the area before he drove up for the meeting and stated that he could pick up United States Customs, DEA, and other...