U.S. v. Sposito

• Decision Date: 13 September 1996
• Docket Number: No. 95-1755,95-1755
• Citation: 106 F.3d 1042
• Parties: 46 Fed. R. Evid. Serv. 601 UNITED STATES, Appellee, v. Michael SPOSITO, Defendant--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1042

106 F.3d 1042

46 Fed. R. Evid. Serv. 601

UNITED STATES, Appellee, v. Michael SPOSITO, Defendant--Appellant.

No. 95-1755.

United States Court of Appeals First Circuit.

Heard Sept. 13, 1996.

Decided Feb. 18, 1997.

Seth M. Kalberg, Boston, MA, by appointment of the Court, for defendant-appellant.

Cynthia A. Young, Attorney, U.S. Department of Justice, with whom Donald K. Stern, United States Attorney, Ernest S. DiNisco and James D. Herbert, Assistant United States Attorneys, Boston, MA, were on brief for appellee.

Before TORRUELLA, Chief Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

TORRUELLA, Chief Judge.

Defendant-appellant Michael Sposito was convicted of illegal gambling and aiding and abetting illegal gambling in violation of 18 U.S.C. § 1955. He now appeals the district court's denial of his motion to dismiss for violation of the Speedy Trial Act ("STA"), 18 U.S.C. §§ 3161-3167, and the district court's admission into evidence of the prior immunized testimony of Louis Padova under the residual exception to the hearsay rule.

I. The Speedy Trial Act

A. Standard of Review

In reviewing an STA ruling, we examine factual questions under a clear error standard and legal determinations de novo. See United States v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995).

B. The Legal Framework

At issue is 18 U.S.C. §§ 3161 et seq., which require that:

the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whatever date last occurs.

18 U.S.C. § 3161(c)(1); see also Henderson v. United States, 476 U.S. 321, 322, 106 S.Ct. 1871, 1872-73, 90 L.Ed.2d 299 (1986). If the defendant is not brought to trial within the seventy day time period, "the information or indictment shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2); see Rodriguez, 63 F.3d at 1162. Not every day between the indictment or appearance and the start of trial is counted, however. Section 3161(h) provides a list of circumstances in which the STA is tolled.

The question before us, therefore, is whether seventy countable days passed between the indictment of Sposito on April 13, 1994, and the start of the trial on January 17, 1995. There are several periods of time in dispute, but we need only consider the last of these--from December 1, 1994 to January 13, 1995. ¹ Defendant states that 41 countable days passed prior to December 1, 1994. Because we find that there were no countable days from December 1, 1994 to January 13, 1995, defendant's claim under the STA must fail, regardless of how we would rule on the earlier periods.

On November 30, 1994, the previously scheduled trial date of December 12 was postponed indefinitely. At that time, the government's motion in limine to restrict the cross-examination of certain law enforcement witnesses, filed on November 8, was pending. The motion in limine was eventually heard during the trial, with argument on the motion taking place on January 31, 1995. We must decide whether the motion in limine tolled the STA clock from November 8 to January 13.

Three principal sources of authority frame our decision. First, there is the statute, which requires that "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" be excluded from the time counted against the STA. 18 U.S.C. § 3161(h)(1)(F). Congress chose not to include any explicit exceptions in the statutory language. Yet Congress was conscious of the possible need for more flexible exclusion requirements, as demonstrated by other parts of the statute. For example, in section 3161(h)(8)(A), the Act excludes periods of delay resulting from a continuance, but only when the trial court sets forth, in the record, its reasons for finding that "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).

Second, in Henderson v. United States, 476 U.S. 321, 327, 106 S.Ct. 1871, 1875, 90 L.Ed.2d 299 (1986), the Supreme Court held that "Congress intended subsection (F) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is 'reasonably necessary.' " Id. In Henderson, a motion to suppress was filed on November 3, 1980, and a hearing was held on March 25, 1981, at which the trial court "declined to reach a final decision because it needed further information. The court did not receive all filings in connection with the motion until December 15, 1981." Id. at 332, 106 S.Ct. at 1877-78 (citations omitted). The Court excluded all of this time under section 3161(h)(8)(F). Id.

Finally, we are bound by our own ruling in United States v. Rojo-Alvarez, 944 F.2d 959 (1st Cir.1991). In Rojo-Alvarez, the government filed a motion in limine on March 8, 1990. On April 5, 1990, the district court reserved ruling on the merits of the motion until trial. On appeal, this court stated that:

[w]e do not believe that a court should put off consideration of a motion and exclude the time during which the motion lies dormant. However, when the court is presented with papers styled as a motion, whether it ultimately determines that the filing is a pretrial motion or an 'other proceeding' under (J), the court is entitled to exclude at least the period of time during which it considers how to treat the filing.

Id. at 966. The court in Rojo-Alvarez disposed of the case by excluding the time between the filing of the motion and the date upon which it was reserved. The panel's language regarding the time a motion lies dormant did not affect the outcome of the case. ²

In the instant case, the government filed its motion in limine on November 8, 1994. As an initial matter, motions in limine are "pretrial motions" for the purposes of section 3161(h)(1)(F), implying that the filing of such a motion tolls the STA clock. See id.; see also United States v. Santoyo, 890 F.2d 726, 728 (5th Cir.1989); United States v. Johnson, 32 F.3d 304, 306 (7th Cir.1994). The motion was not heard until January 31, 1995, well after the start of trial. Between the filing of the motion and the trial date, the court made no mention of the motion in limine. Specifically, it did not, at any time, state that it considered the motion "dormant."

Defendant-appellant contends that the district court implicitly relegated the motion to dormant status when it postponed the trial indefinitely. He argues that "[u]pon the issuance by the Court on November 30 of the Notice cancelling the December 12 trial date without the setting of a new trial date, and because of that Notice, it was then apparent that the Court's other business and or convenience had put the Sposito case on hold." Appellant's Brief at 25. Appellant then appeals to Rojo-Alvarez for the proposition that time during which motions lie dormant is to be counted against the STA clock.

We disagree with appellant's claim. In our view, the motion was never relegated to dormant status for STA purposes. The order postponing the trial read, in its entirety, "[t]he trial scheduled to begin December 12, 1994 has been canceled. It will be rescheduled for a future date to be advised." District Court Order of Cancellation, November 30, 1994. No reason was given for the postponement and there was no suggestion that the motion in limine had been reserved until trial. ³

To find that the motion was dormant, therefore, we would have to rely on speculative inferences about the statements and actions of the lower court. We decline to do so. We are unwilling to adopt the position that appellate courts should sit in review of the day-to-day operation of district courts in order to determine when a district court's decision to put off consideration of a motion makes that motion "dormant" and when it does not. District courts are busy and must constantly make scheduling decisions with respect to the many matters for which they are responsible. We are ill equipped to second guess these decisions. There is no reliable way for an appellate court to divine the intent of the district court with respect to a particular motion or its docket in general. Rather than open the door to appeals that ask this court to read the tea leaves of a trial's scheduling orders, we will only look to the explicit statements of the lower court.

Our ruling today is also based on our interpretation of the STA and Henderson. On the one hand, neither of these sources suggests that dormant motions fail to trigger excludable time under subsection (F). On the other hand, we recognize that there may be sound policy reasons for an exception to subsection (F) in the case of dormant motions. Because the statute does not itself create such an exception, however, and because Henderson held that even unreasonable delays shall be excluded, any exception for dormant motions should at the very least be drawn narrowly. We do not believe that an exception for motions deemed, by an appellate court, to have been dormant, without any explicit indication to that effect by the district court, would be consistent with the strong language of the STA and Henderson.

Furthermore, from the point of view of an appellate court, there does not appear to be a principled distinction between a motion that is dormant and one for which the period of delay prior to hearing is unreasonable. In other words, finding a motion to have been dormant without any language to that effect in the record will often be similar to concluding that there has been unreasonable...