U.S. v. Wilson, s. 86-3076

• Decision Date: 31 December 1987
• Docket Number: Nos. 86-3076,s. 86-3076
• Citation: 266 U.S. App. D.C. 344,835 F.2d 1440
• Parties: UNITED STATES of America v. Darlene WILSON, a/k/a Kilkea, Andrea Ruffin, Appellant. to 86-3080.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1440

835 F.2d 1440

266 U.S.App.D.C. 344

UNITED STATES of America v. Darlene WILSON, a/k/a Kilkea, Andrea Ruffin, Appellant.

Nos. 86-3076 to 86-3080.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 29, 1987.

Decided Dec. 24, 1987.

As Amended Dec. 31, 1987.

David A. Reiser (Appointed by this Court) for Darlene Wilson and Thomas M. Slawson (Appointed by this Court) for Rosalind Wood, with whom Stephen D. Scavuzzo (Appointed by this Court) for Sylvia Bumbry, Mary E. Davis (Appointed by this Court) for Gloria Denson, and Noel H. Thompson (Appointed by this Court) for Mary Adams, were on the joint brief, for appellants.

Theresa L. McHenry, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. and Michael W. Farrell, Asst. U.S. Atty., were on brief, for appellee.

Before WALD, Chief Judge, BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Darlene Wilson and her co-defendants, Mary Adams, Sylvia Bumbry, Gloria Denson, and Rosalind Wood, appeal their convictions for conspiracy to commit wire and mail fraud, and for wire fraud, in violation of 18 U.S.C. Secs. 371, 1341, 1343 (1982). The gist of the government's case was that defendants agreed that Wilson would make a fraudulent application for benefits under the Aid to Families With Dependent Children program, and that she carried out the scheme with advice, information, and false documentation provided by her co-defendants. The government's evidence consisted primarily of 23 taped conversations in which appellants and others discussed and coordinated their scheme. Government agents recorded these conversations pursuant to a court-ordered wiretap.

In this appeal, defendants' primary claims ¹ are that their convictions violated the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (1982), and that wiretap evidence introduced against them was obtained in violation of the requirement of 18 U.S.C. Sec. 2518(5) that such taps "minimize the interception of communications" not otherwise subject to interception." We reject both claims.

I. SPEEDY TRIAL ACT CLAIM

The Speedy Trial Act requires that no more than 70 days elapse between indictment and trial, 18 U.S.C. Sec. 3161(c)(1), other than days excluded from computation. The parties agree that in fact 283 days passed and 43 days are excludable--those from the filing to the disposition of defendants' motions to suppress. The government would exclude 188 additional days: 95 for various other motions, ² and 93 for time the trial court allowed defendants for the preparation of their motions to suppress. The government would also have us exclude, under the ends of justice provision of 18 U.S.C. Sec. 3161(h)(8)(A), the delay resulting from the trial court's decision to postpone this case until completion of a related trial; as we uphold exclusion of 188 disputed days claimed by the government for motions, and this decision leaves only 52 included days, we do not reach that issue.

As to the 95 days excluded for the pendency of motions other than the motion to suppress, defendants raise a variety of objections. One objection goes to whether the pendency of the motions (17 in all) caused the delay that actually occurred. The argument starts by assuming that a causal relation is necessary and then contends that it was missing here--because, defendants argue, the trial court's decision to defer defendants' trial until after the conclusion of a related one was a sufficient explanation of the delay.

A second set of objections goes to the type of motions involved. Rule 12(b)(2) of the Federal Rules of Criminal Procedure requires a defendant to raise certain issues by pretrial motion, on pain of being barred from ever raising such issues. Many of the motions for which exclusion is disputed were not of this type--for example, motions to modify pretrial release conditions and to permit a tape recorder in the cell block. Defendants do not explain why these should be excluded, though they might have advanced the contention as a subspecies of their causation theory. (If defendants need not make a motion nor the trial court resolve it before trial, then in some sense its pendency does not delay trial.) Finally, defendants argue that in any event we must not exclude time for their motion to dismiss on speedy trial grounds. Exclusion of time for that motion, they say, puts defendants in a catch-22 situation, in that assertion of their speedy-trial rights will cause further excludable delay and thus impinge on those very rights.

As to the 93 days allotted to defendants at their request for preparation of motions to suppress, they argue that this period must not be excluded because the Act's provision for exclusion of time for motions does not mention preparation time.

We reject both sets of claims. The result is to exclude an additional 188 days. Thus there is no violation of the Speedy Trial Act.

A. Motions that Are Not the Sole Cause of Trial Delay and that Need Not Be Addressed Before Trial

The Act excludes "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." 18 U.S.C. Sec. 3161(h)(1)(F). The Supreme Court has held that this section must be read in connection with 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." Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986). The two subsections taken together thus exclude the time between the filing of a motion and the date it is taken under advisement by the court, plus the time during which the court holds the motion under advisement (up to 30 days). Id.

First we note that defendants' causation attack is not an argument against double-counting; it would work quite apart from any exclusion of time based on the decision to defer defendants' trial until after the related one (an exclusion which, as noted above, we do not rely on here). The theory is simply that the trial judge's intention to delay the trial on other grounds negates excludability.

The theory is hung on a verbal peg provided by the statute, which only excludes delay "resulting from" a pretrial motion. But acceptance of the claim would force courts to resolve intractable causation issues, for no apparent purpose. Anytime that pretrial motion practice overlapped with a real--but disputable--alternative source of delay, a court would either have to resolve the causation issue or reach the validity of the disputed alternative cause. Pretrial motions necessarily take the time of prosecutors to respond and courts to evaluate. They thus represent a sufficient cause for pretrial delay. No finding of causation is necessary for motions beyond what is implicit in the Act's recognition of their time-consuming character.

Defendants contend that the scheduled delay for a related trial led them to believe that the speedy trial clock was already stopped. This lulled them into the belief that their motions would be "cost free," in the sense of not affecting the time when the Act would bar their trial. They offer nothing to prove that this lulling played any role at all in their decisions to file motions, but the fact gap is no matter: the theory is wrong.

Defendants' knowledge that the trial would be deferred for other reasons was not knowledge that such deferral was legitimate and therefore was not a basis for assuming that they could make a blizzard of motions without affecting their rights under the Act. If the alternative cause for delay was legitimate (the issue we do not reach) and they relied on that for supposing that motions practice would not affect their rights under the Act, then their supposition was right and they were not injured. If the alternative cause was an illegitimate basis for deferral, as we have assumed arguendo, then the pretrial motions were not cost-free (in terms of authorizing trial delay). Any reliance on the alternative cause of trial postponement was incorrect; but the mistake was not due to any deception practiced on the defendants by court or government, but simply to defendants' erroneous assessment of the validity of the alternative cause. Finally, to the extent that the legitimacy of the alternative cause was in doubt, defendants could and should have taken that uncertainty into account in assessing the likelihood that new motions would defer the permissible date for the start of trial.

We are confirmed in our refusal to consider causation by the legislative history of the 1979 amendments, which frequently emphasizes the automatic character of the exclusion for the pendency of motions. The court of appeals for the Second Circuit reviewed this history in detail in United States v. Cobb, 697 F.2d 38, 41-42 (2d Cir.1982). It would serve no purpose for us to repeat it, and defendants call our attention to nothing tending to refute or undermine that court's discussion.

Accordingly, we join not only the Second Circuit but several others finding that the exclusion of the time between the filing and disposition of pretrial motions under Sec. 3161(h)(1)(F) is automatic and need not cause actual delay of the trial. See United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir.) (automatic exclusion for period in which renewal of motion to suppress was pending, even though trial court deferred hearing and ruling on the motion until trial), cert. denied, 469 U.S. 839, 105 S.Ct. 139, 83 L.Ed.2d 79 (1984); United States v. Novak, 715 F.2d 810, 813 (3d Cir.1983) (Congress intended exclusion for all pretrial motions to be automatic), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984); United States v. Stafford, 697 F.2d 1368, 1371 (11th Cir.1983) (noting a contrary conclusion would "present extremely...