U.S. v. Moss

Citation217 F.3d 426
Decision Date15 September 1999
Docket NumberNo. 98-6042,98-6042
Parties(6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Larry Lamont Moss, Defendant-Appellant. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Western District of Tennessee at Memphis; No. 97-20094--Julia S. Gibbons, Chief District Judge. [Copyrighted Material Omitted] Brian J. Quarles, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.


Before: BATCHELDER and GILMAN, Circuit Judges; HOOD, District Judge.*

HOOD, D. J., delivered the opinion of the court. BATCHELDER, J. (p. 432), delivered a separate opinion concurring in both the opinion of the court and Judge Gilman's separate concurrence. GILMAN, J. (pp. 433-.36), delivered a separate opinion concurring in the judgment.


DENISE PAGE HOOD, District Judge.

Defendant Larry Moss appeals his jury conviction for possession of cocaine with intent to distribute in violation of 18 U.S.C. § 841(a)(1), and his sentence of 262 months imprisonment, and five years supervised release. Moss claims the district court committed error by: 1) dismissing his first indictment without prejudice for violation of the Speedy Trial Act; 2) not dismissing his second indictment for violation of the Speedy Trial Act and his Sixth Amendment right to a speedy trial; 3) denying his motion to suppress; and 4) enhancing his sentence for obstruction of justice. For the reasons that follow, we REVERSE the district court's decision to dismiss the first indictment without prejudice and do not reach the remaining issues on appeal.


On March 22, 1995, three narcotics officers from the Shelby County Sheriff's Department executed a search warrant at a residence located on 1068 National in Memphis, Tennessee, and brought along "Torque," a narcotics detecting dog. As the officers entered the residence and began handcuffing the people inside, Larry Moss exited from a bedroom in the house. One of the officers handcuffed and patted down Moss and located a tenth of a gram of crack cocaine in his pocket. The officer noticed that Moss' hands were wet. In one of the bedrooms, the officers found a fish tank which contained water, rocks, and a live alligator. Torque, the narcotics detecting dog, indicated that narcotics were in the fish tank. While one officer restrained the alligator, another officer searched the inside of the tank. Beneath the rocks and submerged in water were several bags and a plastic container with crack cocaine inside. In all, the officers seized 79.5 grams of cocaine and two digital scales.

Moss was arrested and made his initial appearance before a magistrate judge on March 23, 1995. The court granted Moss two continuances to allow him to retain counsel. On March 28, 1995, a magistrate judge appointed counsel for Moss and set a probable cause/bail hearing for the next day. Moss appeared the next day with retained counsel. The court found probable cause, and Moss was detained pending trial.

On April 17, 1995, a federal grand jury in the Western District of Tennessee indicted Moss on one count of possession of a controlled substance, 79.5 grams of cocaine base, with intent to distribute in violation of 18 U.S.C. § 841(a)(1). Moss was granted a number of continuances to allow him to retain counsel and was arraigned on May 16, 1995. Moss entered a plea of not guilty. Moss' retained counsel moved to withdraw on June 22, 1995, and the motion was granted on June 23, 1995. Moss appeared before the district court on July 5, 1995, to inform the court of the status of his search for a new attorney and insisted that he would retain counsel. Moss was told to report back on July 7, 1995, but did not report until July 23, 1995. At that time, he informed the court that he had not yet retained counsel, but he still desired to do so. The court instructed Moss to report back on August 14, 1995. On August 17, 1995, Moss reported that he had retained an attorney. The new attorney filed an appearance on August 25, 1995, and requested a number of continuances in order to prepare for trial. Prior to the date set for trial, the defense attorney made an oral motion to withdraw on October 27, 1995. The motion was granted, and the Federal Defender's Office was appointed to represent Moss.

On November 8, 1995, Moss filed a motion to suppress the evidence seized by the Shelby County Sheriff's Department, claiming that the officers violated the "knock and announce" rule. The motion was referred to a magistrate judge, but the order of reference was rescinded when the case was transferred to a different district judge. An evidentiary hearing on the motion was set for January 30, 1996. The trial date was adjourned several times and eventually set for March 18, 1996.

The court held the evidentiary hearing on the motion to suppress on January 30, 1996. At its conclusion, Moss' attorney requested that the court delay its ruling until after the transcripts of the hearing had been prepared and both parties had an opportunity to respond. The motion was taken under advisement, and the court set a briefing schedule. Moss was to file a brief by February 22, 1996, and the Government was to respond by March 1, 1996. Moss responded on February 29, 1996; the Government did not respond. The trial was again adjourned several times while awaiting the court's ruling on the motion to suppress. The district court never rendered a decision.

One year later, on January 29, 1997, Moss brought a motion to dismiss the indictment with prejudice for violation of the Speedy Trial Act. On February 25, 1997, Moss filed a motion to set a hearing date on the motion to dismiss. The Government filed a response to the motion on March 4, 1997, conceding that the Speedy Trial Act had been violated as more than 70 non-excludable days had accumulated, but the Government insisted that the dismissal should be without prejudice. On April 2, 1997, the district court agreed with the Government and dismissed the indictment without prejudice.

On April 30, 1997, Moss was reindicted on the same single count of possession with intent to distribute 79.5 grams of cocaine in violation of 18 U.S.C. § 841(a)(1). Moss made an initial appearance, counsel was appointed, and Moss was released on bond on June 2, 1997. On July 28, 1997, Moss filed a motion to dismiss the second indictment with prejudice for violation of the Speedy Trial Act, a motion to dismiss the second indictment for violation of the Sixth Amendment right to a speedy trial, and a motion to suppress evidence for lack of probable cause and violation of the "knock and announce" rule. The motions were referred to a magistrate judge who issued a report and recommendation denying all three motions. The district court, after overruling Moss' objections, adopted the recommendation of the magistrate judge.

The case was tried to a jury that found Moss guilty. At sentencing, the district judge imposed a two level enhancement to Moss' base level offense for obstruction of justice because the court believed that Moss presented evidence at trial which contradicted evidence he presented pretrial. Moss was sentenced to 262 months imprisonment and 5 years supervised release. The judgment was entered on July 20, 1998, and Moss filed this timely appeal.

On appeal, Moss challenges the district court's determination that although the Speedy Trial Act had been violated, the dismissal of the first indictment should be without prejudice.1 Likewise, Moss claims that the district court should have dismissed his second indictment with prejudice for violating the Speedy Trial Act and the Speedy Trial Clause of the Sixth Amendment. Moss also appeals the district court's denial of his motion to suppress, claiming that the affidavit provided in support of the search warrant did not establish probable cause, and the two level sentence enhancement imposed for obstruction of justice. Because we conclude that the district court should have dismissed the original indictment with prejudice, we do not determine the remaining issues on appeal.


Moss argues that the district court abused its discretion by determining that the dismissal of his original indictment should be without prejudice because the court did not carefully consider all of the factors set forth in Speedy Trial Act, 18 U.S.C. § 3162(a)(2). Moss claims that the dismissal should have been with prejudice because the Speedy Trial Act violation was caused by the district court's own neglect, the delay was lengthy, and the defendant suffered because of his two years of incarceration.

The Speedy Trial Act enumerates three factors that trial courts must consider when deciding whether to dismiss an action with or without prejudice: 1) the seriousness of the offense; 2) the facts and circumstances that led to the dismissal; and 3) the impact of reprosecution on the administration of the Speedy Trial Act and on the administration of justice. 18 U.S.C. § 3162(a). In United States v. Pierce, 17 F.3d 146 (6th Cir. 1994), this circuit opined, "Because Congress has set forth specific factors to be considered, a district court that does not set forth written findings with regard to these factors has abused its discretion and will be reversed." 17 F.3d at 148 (citing United States v. Taylor, 487 U.S. 326, 336 (1989)). If those findings are set forth, however, the appellate court applies a "modified abuse of discretion standard." United States v. Kottmyer, 961 F.2d 569, 572 (6th Cir. 1992). Under this modified standard, the district court's factual findings will be reversed only if the findings are clearly erroneous. Taylor, 487 U.S. at 336. Because the judgment is only arrived at by considering and applying statutory criteria, which...

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