U.S. v. Tibboel, 84-1072

• Decision Date: 28 February 1985
• Docket Number: No. 84-1072,84-1072
• Citation: 753 F.2d 608
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerrit TIBBOEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 608

753 F.2d 608

UNITED STATES of America, Plaintiff-Appellee, v. Gerrit TIBBOEL, Defendant-Appellant.

No. 84-1072.

United States Court of Appeals Seventh Circuit.

Argued Oct. 2, 1984.

Decided Jan. 29, 1985.

Rehearing and Rehearing En Banc Denied Feb. 28, 1985.

Andrew B. Spiegel, Chicago, Ill., for defendant-appellant.

Mary F. Harkenrider, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY, POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

Tibboel was convicted of willful failure to file income tax returns for three years, in violation of 26 U.S.C. Sec. 7203, and sentenced to serve a year in prison followed by five years on probation and to pay a fine of $10,000. The only issue his appeal raises that merits discussion is whether his rights under the Speedy Trial Act (as amended in 1979), 18 U.S.C. Secs. 3161 et seq., were violated. The Act allows 70 days to bring to trial a defendant who has pleaded not guilty, see 18 U.S.C. Sec. 3161(c)(1), apart from time that the Act excludes from the computation of elapsed time.

The parties agree that the speedy-trial clock started to run on April 14, 1983, when Tibboel pleaded not guilty to the charges against him, and stopped 146 days later, on September 7, when Tibboel moved to dismiss the charges on the ground that the Speedy Trial Act had been violated. Within this stretch, the only period in dispute is between April 14, when Tibboel pleaded not guilty, and July 29, when the judge ruled on Tibboel's pretrial motions. This period has two segments, the first ending on May 19, when the pretrial motions were filed, and the second ending on July 29. The first segment comprises 35 days, and the second 71. Tibboel concedes, however, that 14 of the first 35 days are excludable, May 5-May 19, when the time for filing his pretrial motions was extended pursuant to his motion for an extension of time. (We do not know why he concedes this, since the filing of a motion for an extension of time does not automatically toll the running of the speedy-trial clock, even if the defendant filed the motion. See 18 U.S.C. Sec. 3161(h)(8). But the concession has, as we shall see, no significance, since the entire period from April 14 to May 19 is excludable in any event.) Tibboel also concedes that 30 of the 71 days are excludable from the period in which he had to be tried, by virtue of 18 U.S.C. Sec. 3161(h)(1)(J) which excludes "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." Thus, on his view, the period between April 14 and July 29 yields 62 days of time that counts against the government's speedy-trial allowance (21 + 41), to which must be added the remaining 40 days to September 7, for the parties agree that these days counted against the 70-day allowance. This makes a total of 102 days, leaving, after subtraction of the 70-day allowance, an overage (in Tibboel's view) of 32 days.

When Tibboel appeared in court on April 14 to plead not guilty, the judge gave him 10 days in which to file pretrial motions. Tibboel requested and was granted successive extensions of time amounting to 24 more days, and then filed his motions one day late, making a total (as we said) of 35 days between the plea of not guilty and the filing of the pretrial motions. The Speedy Trial Act--in this as in other respects an unsatisfactory piece of draftsmanship, despite the amendments made in 1979 to cure the deficiencies of the original statute--does not make any provision for time during which the parties are preparing pretrial motions. Although the legislative history to the 1979 amendments contains some, but equivocal, indication that all preparation time is includable (i.e., part of the 70 days) unless the judge grants a continuance, compare S.Rep. No. 212, 96th Cong., 1st Sess. 33-34 (1979), with id. at 26, the statute itself points in a different direction. Section 3161(h)(1) excludes "any period of delay resulting from other proceedings concerning the defendant, including but not limited to ... (F) 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...." It is apparent from subsection F that a proceeding on a pretrial motion is one of the "other proceedings" to which 3161(h)(1) refers; and while F itself refers only to the period between the filing of the motion and the disposition of it, and not to the period during which the motion is being prepared, section 3161(h)(1) is explicit that the particular intervals in subsections A through J are illustrative rather than exhaustive ("including but not limited to"). We therefore agree with the First Circuit in United States v. Jodoin, 672 F.2d 232, 238 (1st Cir.1982) (but cf. United States v. Carrasquillo, 667 F.2d 382, 388 (3d Cir.1981)), that time consumed in the preparation of a pretrial motion must be excluded--provided that the judge has expressly granted a party time for that purpose. This qualification is necessary to avoid creating a big loophole in the statute. If on the eve of trial the government or the defendant files a pretrial motion that the movant has been working on since the prosecution began, there would be a sense in which the whole interval was pretrial-motion preparation time. But that would mean that a party could delay trial indefinitely merely by working on pretrial motions right up to the eve of trial. We conclude that the only time that is excludable for the preparation of pretrial motions is time that the judge has granted for this purpose. But as this condition was met here for all but the last day (the motion was filed on May 19, but the extension of time for filing it that the judge had granted had expired on May 18), 34 of the 35 days between April 14 and May 19 must be excluded. We need not decide whether the question might be decided differently if the government rather than the defendant were the movant.

We note that when Tibboel on September 7 moved to dismiss the charges by reason of the Speedy Trial Act, the judge purported to grant a continuance under 18 U.S.C. Sec. 3161(h)(8) retroactive to April 14 to take care of the period to May 19, when Tibboel filed the pretrial motions. The Act does not permit retroactive continuances; to be effective in preventing time from counting for Speedy Trial Act purposes, the continuance must be granted before the time sought to be excluded begins to run. United States v. Janik, 723 F.2d 537, 545 (7th Cir.1983); cf. United States v. Carlone, 666 F.2d 1112, 1115-16 (7th Cir.1981). But as all but one day was excludable anyway, the judge's error was harmless.

This still leaves for consideration, however, the 71 days during which Tibboel's pretrial motions were under consideration by the judge. Even after 30 days are subtracted on the authority of subsection J (the "under advisement" provision quoted earlier), the Speedy Trial Act would be violated if the rest of the 71-day period had to be included, since that would be 41 days, which when added to the 40 days from July 29 to September 7 that the government concedes must be included, and to the one day before May 19 (May 18) that we have just held must also be included, would exceed by 12 days the Speedy Trial Act's 70-day allowance.

Subsection F, which governs the exclusion of delay between the filing (May 19, here) and disposition (July 29) of a pretrial motion, specifies no time limit other than promptness. But in United States v. Janik, supra, 723 F.2d at 543-44, we held in accordance with considerable authority, cited in id. at 544, to which can be added United States v. Rush, 738 F.2d 497, 505 (1st Cir.1984); United States v. Mitchell, 723 F.2d 1040, 1047 n. 6 (1st Cir.1983) (dictum), and United States v. Mers, 701 F.2d 1321, 1336 (11th Cir.1983), that F must be read together with J, which specifies an outside time limit of 30 days for any matter under advisement, because a pretrial motion that the judge is considering (as distinct from a motion still in...