U.S. v. Van Brandy, s. 83-5082

• Decision Date: 22 February 1984
• Docket Number: Nos. 83-5082,s. 83-5082
• Citation: 726 F.2d 548
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elliott VAN BRANDY, Gardie Shine, and Charles Patterson, Defendants-Appellants. to 83-5084.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 548

726 F.2d 548

UNITED STATES of America, Plaintiff-Appellee, v. Elliott VAN BRANDY, Gardie Shine, and Charles Patterson,

Defendants-Appellants.

Nos. 83-5082 to 83-5084.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 7, 1983.

Decided Feb. 22, 1984.

Mitchell D. Dembin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Paul H. Duvall, Jenkins & Perry, Frank M. Murphy, III, Judy Clarke, San Diego, Cal., for defendants-appellants.

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

Before BROWNING and NORRIS, Circuit Judges, and SCHNACKE, District Judge. ^*

SCHNACKE, District Judge:

(1) Introduction: Van Brandy and Shine each appeals from a judgment convicting him of conspiracy to commit robbery and of attempted bank robbery. Patterson appeals from a judgment convicting him of aiding and abetting attempted bank robbery. The three judgments were entered after a jury trial. Appellants have, between them presented three contentions on appeal: (a) that their trial was not commenced within the maximum time allowable under the Speedy Trial Act (all three appellants raise this issue); (b) that the trial court erred in not compelling the government to produce an informant file maintained by the Federal Bureau of Investigation (only Van Brandy and Patterson raise this issue); and (c) that Patterson's conviction for aiding and abetting attempted bank robbery was fatally inconsistent with his acquittal on a conspiracy to commit bank robbery charge (Patterson's contention alone). None of these contentions is meritorious.

(2) Speedy Trial Act: The Speedy Trial Act [18 U.S.C. Secs. 3161 et seq., hereinafter "Act" or "Sec. 3161"] requires that the trial of a defendant shall commence within 70 days from the filing of the indictment [Sec. 3161(c)(1) ], unless expanded by the addition of "excludable time" [Sec. 3161(h) ].

Appellants claim that, even allowing for excludable time, the appellants were not brought to trial within the 70-day period. The government contends that the total excludable time brings the December 14, 1982 trial date within the 70-day period.

All parties are agreed that the speedy trial clock began to run on August 26, 1982, the day after the filing of the indictments in this case, and that by December 6, 1982--the day appellants moved to dismiss the indictment for violation of the Act--103 days had passed. By December 14, the trial date, 111 days had passed. It is undisputed that the 30 days between October 7 and November 5 (inclusive) are excludable, and that the 5 days between December 6 and 10 (inclusive) are excludable due to delay resulting from consideration of defendants' speedy trial motions [see United States v. Bolden, 700 F.2d 102, 103 (2nd Cir.1983) ]. Subtracting these 35 days from the 111-day total gives the result that the December 14 trial date was 76 days from the indictment, 6 days after the speedy trial deadline, unless other time was excludable.

The trial judge determined that the time from November 1, when appellant Patterson renewed a previously withdrawn motion to suppress, until December 14, when the motion was decided, was excludable by virtue of Sec. 3161(h)(1)(F) which reads:

(h) The following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence:

(1) 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.

Appellants concede that the motion was pending during the period November 1 to December 14, but contend that, because the trial judge deferred hearing and ruling on the motion until time of trial, no "delay" resulted from the pendency of the motion.

This contention has been rejected in each circuit in which it has been raised. In United States v. Cobb, 697 F.2d 38, 43-46 (2nd Cir.1982), after an exhaustive analysis of the excludable time provisions of the Speedy Trial Act, their purpose and legislative history, the Court concluded, at page 46:

"We reject [an] ... analysis which would require that to be excludable under (F) a particular pretrial motion must have caused an actual delay in the commencement of the trial. We accept, instead, the government's view that a pretrial motion triggers an automatic exclusion, with the qualification, however, that the amount of time eligible for exclusion may not be extended by postponing the hearing date or other disposition of the motion beyond what is reasonably necessary for processing the motion."

There is no suggestion here that the hearing date, continued with the consent of all parties, was unreasonably delayed.

The Eleventh and the Eighth Circuits are in accord. [United States v. Stafford, 697 F.2d 1368, 1371 (11th Cir.1983); United States v. Brim, 630 F.2d 1307, 1312-1313 (8th Cir.1980) ].

While only Patterson had a motion pending during the critical period, any delay attributable to him is equally attributable to all co-defendants [18 U.S.C. Sec. 3161(h)(7); United States v. Davis, 679 F.2d 845, 849-50 (11th Cir.1982) ].

The trial judge correctly decided that the trial commenced within the maximum time allowable under the Speedy Trial Act.

(3) Non-disclosure of Informant File: Appellants Van Brandy and Patterson claim that the government violated their due process rights by not releasing "Brady" evidence favorable to them and material to their guilt or punishment [citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963) ]. The evidence sought was the FBI's file on Blevins, an informant, which, it was claimed, "may contain exculpatory facts such as whether the government promised Blevins immunity from future prosecution for his information". The government gave appellants summaries of the information contained in informant's file, but appellants claim that even the FBI agent in charge of the summaries admitted these summaries were not complete. Appellants contend that this information was material in that it "might have affected the outcome of the trial" [United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976) ].

The Brady right to access to evidence, favorable to a defendant, and in the prosecution's...