U.S. v. Pollock

• Decision Date: 02 March 1984
• Docket Number: No. 83-1031,83-1031
• Citation: 726 F.2d 1456
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Lawrence POLLOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1456

726 F.2d 1456

UNITED STATES of America, Plaintiff-Appellee, v. Michael Lawrence POLLOCK, Defendant-Appellant.

No. 83-1031.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 15, 1983.

Decided March 2, 1984.

Donald B. Ayer, U.S. Atty., Sacramento, Cal., Brian C. Leighton, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

Benedict J. Koller, Harry Allan Robertson, San Jose, Cal., for defendant-appellant.

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

Before MERRILL, KENNEDY and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Michael Lawrence Pollock appeals from convictions on thirty-seven counts arising from a conspiracy to manufacture and distribute methamphetamine. He contends that the district court improperly denied his motion to dismiss for a violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. ("the Act"). He also argues that the district court should have granted his motion to suppress evidence he alleges was obtained pursuant to an insufficient warrant. We find that the government did not comply with the 30-day limit between arrest and indictment required by section 3161(b). We therefore vacate Pollock's conviction for the single conspiracy count charged in the original complaint, and remand to the district court to decide whether that count should be dismissed with or without prejudice. We also reverse the district court's ruling that Pollock did not have standing to raise his fourth amendment claim. The search warrant at issue, however, clearly met the particularity requirement. We therefore affirm Pollock's 36 remaining convictions.

FACTS AND PROCEDURAL BACKGROUND

Surveillance of two men suspected of manufacturing methamphetamine led officers of the Federal Drug Enforcement Administration and California Bureau of Narcotics Enforcement to the Fresno residence of Sissie Smith. On the basis of additional information gathered by officers watching the Smith residence, a federal magistrate issued a search warrant for the premises on February 20, 1981. The warrant authorized the seizure of a variety of paraphernalia associated with the manufacture of methamphetamine. State officers and federal agents executed the warrant that day, seizing an operational methamphetamine laboratory, including chemicals, glassware, and documents evidencing manufacture and distribution of the drug, as well as several loaded weapons and silencers. At the same time they arrested appellant Pollock, Sissie Smith, and three other suspects on the premises. All the defendants appeared the next day before a magistrate and were held to answer to the charge of knowingly and intentionally conspiring to manufacture methamphetamine, 21 U.S.C. Secs. 846, 841(a)(1).

The government took a long time to indict the defendants. Thirty-one days later, on March 23, the government made an ex parte application to have time excluded from the normal 30-day limit between arrest and indictment specified by 18 U.S.C. Sec. 3161(b). The magistrate granted the request for the period from March 22 to May 21. He found that it was unreasonable to expect return of the indictment within the statutory time period because the facts before the grand jury were especially complex. Later, during the grand jury inquiry, two witnesses asserted the attorney-client privilege and refused to give certain testimony. A motion on whether that refusal was proper remained before Judge Edward Price from April 21 through May 24. After issuing his decision on that motion, Judge Price also excluded, for Speedy Trial Act purposes, the time he had spent considering it. The indictment was finally filed on June 16, 1982, charging Pollock with 50 counts of criminal conduct based on acts dating back to September 1979.

On December 3, 1982, Pollock moved to dismiss the charges against him with prejudice for violation of his rights under the Speedy Trial Act, and to suppress the evidence from the Smith residence on the ground that the search warrant did not meet the particularity requirement of the fourth amendment. Judge Robert Coyle heard both motions and denied them. Pollock and the government subsequently agreed to proceed to trial before Judge Coyle on stipulated facts. ¹ By virtue of this

agreement the government allowed Pollock to preserve his Speedy Trial Act and fourth amendment claims on appeal, while procuring his guilty plea. In accordance with the agreement, the court convicted Pollock of 37 counts, including conspiracy, 21 U.S.C. Sec. 846, possession and distribution of a controlled substance, 21 U.S.C. Sec. 841(a)(1), and various firearms offenses. The court sentenced him to 22 years imprisonment and a special parole term of life. This appeal from the resulting judgment of confinement raises the issues preserved in the two pre-trial motions.

DISCUSSION

I. Speedy Trial Act

We first address Pollock's claim under the Act. Under Sec. 3161(b) ² of the Act, a defendant must be indicted within 30 days of his arrest, unless the time is extended for one of the eight reasons specified by section 3161(h). If the time limit is not met, the charges in the complaint must be dismissed under section 3162(a)(1) ³. The trial judge may dismiss the complaint with or without prejudice.

The briefs for both Pollock and the government focus only on the validity of the magistrate's order to exclude March 22 through May 21 from counting toward the 30-day limit. The parties argue, in essence, three issues: (1) whether the magistrate had authority under the Act to exclude time, (2) whether the ex parte nature of the government's application for the magistrate's order violated the Act and Pollock's right to due process, and (3) whether the magistrate was substantively correct in finding that the complexity of the case merited an order to exclude time.

We need not reach any of these arguments. ⁴ Neither counsel for Pollock in his brief nor the court below in denying Pollock's motion addressed the point that is dispositive of Pollock's claim. We find that the government did not indict Pollock in a timely manner, notwithstanding the validity of the magistrate's order.

A. Violation of the 30-Day Limit

1. Background

Congress enacted the Speedy Trial Act to solve some of the problems inherent in enforcing the Sixth Amendment guarantee of "the right to a speedy trial." ⁵ See United States v. Antonio, 705 F.2d 1483, 1485 (9th Cir.1983). The Act was intended to clarify the rights of defendants and to ensure that criminals are brought to justice promptly. See A. Partridge,Legislative History of Title I of the Speedy Trial Act of 1974, (Fed.Judicial Center 1980) at 12-13 [hereinafter cited as Partridge ]. Congress was concerned about a number of problems--such as disruption of family life, loss of employment, anxiety, suspicion, and public obloquy--that vex an individual who is forced to await trial for long periods of time. See H.R.Rep. No. 1508, 93rd Cong. 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 7401, 7408. At the same time Congress also recognized that there is a strong public interest in speedy justice. Defendants released on bail are known to commit a large number of crimes, and all defendants whose cases drag on become heavy burdens on the criminal justice system. Id.; see Barker v. Wingo, 407 U.S. 514, 519-20, 92 S.Ct. 2182, 2186-87, 33 L.Ed.2d 101 (1972).

To address these concerns the Act prescribes strict time limits within which each stage of prosecution must be completed. A crucial part of this scheme is the requirement that an indictment be filed within 30 days of arrest. 18 U.S.C. Sec. 3161(b). Pollock's arrest by federal agents on February 20, 1982 triggered the application of this provision. The grand jury did not indict him, however, until June 19, 1982, a total of 119 days later. ⁶

2. The orders to exclude time

Section 3161(h)(1)-(8) specifies eight situations when delay may be excluded in computing the time within which an indictment must issue. ⁷ Only section 3161(h)(8) gives discretion to the trial court; it permits the judge to exclude from the 30-day limit continuances granted when the "ends of justice" outweigh the best interests of the defendant and public in a speedy trial. ⁸

Both Magistrate Christensen and Judge Price granted their respective orders to exclude time on the basis of section 3161(h)(8). Magistrate Christensen excluded the time between March 22 and May 21 and Judge Price excluded the period from April 21 through May 24. The magistrate's order, however, did not cover the 29 days from Pollock's arrest on February 20 to March 22. Judge Price's order did not cover the 26 days from its expiration on May 24 until the indictment came down on June 19. Together, therefore, the two orders did not exclude 55 days, well over the 30-day limit prescribed by section 3161(b).

At oral argument the government conceded that the dates of the two orders substantially coincided but argued that Judge Price intended to extend rather than overlap the time excluded by Magistrate Christensen. The prosecutor contended that since Judge Price based his order on a separate ground, the government should not be denied the full benefit of both exclusions. Were we to add the 34 days excluded by Judge Price to the 61 days excluded by Magistrate Christensen, Pollock's indictment would indeed have been timely.

We decline the government's invitation to ignore the plain meaning of the exclusion orders. The orders of Magistrate Christensen and Judge Price purport to exclude periods of time from particular date to particular date, not for a set number of days at some indefinite time.

This construction is also the most consistent with the purposes of the "ends of justice" exclusion. Congress included the "ends of justice" exclusion of time in recognition that courts need some discretion to deal with otherwise unavoidable delays in the indictment and trial process. The "ends of justice"...