United States v. Bert, 14–2428–CR.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation814 F.3d 70
Docket NumberNo. 14–2428–CR.,14–2428–CR.
Parties UNITED STATES of America, Appellee, v. Raheem BERT, aka Raheen Linwood, aka Radio, Defendant–Appellant.
Decision Date09 February 2016

814 F.3d 70

UNITED STATES of America, Appellee,
Raheem BERT, aka Raheen Linwood, aka Radio, Defendant–Appellant.

No. 14–2428–CR.

United States Court of Appeals, Second Circuit.

Argued: April 27, 2015.
Decided: Feb. 9, 2016.

Rehearing En Banc Denied Feb. 9, 2016.

814 F.3d 74

James Darrow, New York, NY, for Defendant–Appellant Raheem Bert.

Douglas M. Pravada, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Kelly T. Currie, acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: JACOBS, POOLER, and HALL, Circuit Judges.

Judge JACOBS concurs in part and dissents in part in a separate opinion.

POOLER and HALL, Circuit Judges:

We initially disposed of this appeal by opinion issued on September 10, 2015. See United States v. Bert, 801 F.3d 125 (2d Cir.2015). We hereby withdraw that original opinion and decide Bert's appeal as follows.

Defendant Raheem Bert appeals his conviction in the United States District Court for the Eastern District of New York (Mauskopf, J. ), after a jury found him guilty of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The Speedy Trial Act was violated when the district court allowed eleven months of unexcluded time to accumulate when Bert's suppression motion was under advisement. On appeal, Bert argues that the district court abused its discretion by dismissing his original indictment without prejudice rather than with prejudice,

814 F.3d 75

thereby permitting the reprosecution that has resulted in the judgment of conviction that Bert is now appealing. In a similar vein Bert also asserts the district court erred when it determined his Sixth Amendment speedy trial rights were not violated. Finally, Bert argues that the district court erred in denying his motion to suppress. For the reasons that follow, we AFFIRM the district court's decision denying the motion to suppress, and we REMAND for further consideration of the Speedy Trial Act and Sixth Amendment speedy trial issues consistent with this opinion.


On January 19, 2012, Bert was arrested in the hallway outside his girlfriend's apartment at 55 Holland Avenue, a Staten Island building participating in New York City's Field Trespass Affidavit Program. Earlier that evening, Officer John Fahim and Officer Besim Pelinku received a radio report that five African–American males were trespassing at 55 Holland Avenue. Upon arriving at the building, the officers encountered two African–American males in the lobby who admitted they had no business in the building. After instructing those men to leave the building, the officers spoke with the building's security guard, who informed them that the three other trespassers had gone either to the 10th or 12th floor. On the 10th floor, the officers encountered Bert, another African–American male, and a woman standing and talking together. When questioned by the officers, the three individuals claimed that they were visiting a friend who lived in a nearby apartment. Officer Fahim then knocked on the apartment door to determine whether, in fact, these persons were visiting the resident of that apartment. The resident of that apartment was unable credibly to confirm that she knew Bert or his companions. It is undisputed that, at this point, Bert was not free to leave. See United States v. Bert, No. 12–CR–100 (RRM), 2014 WL 358983, at *2 (E.D.N.Y. Feb. 3, 2014).

During this exchange, Bert paced back and forth and at one point turned away to face the window prompting Officer Pelinku to draw his firearm and demand that Bert turn around and show his hands. At about the same time, Officer Fahim observed that Bert had a gun on his person. A struggle ensued between Officer Fahim and Bert, during which Bert dropped the gun out of the 10th floor window. See id. at *2. The officers subsequently arrested Bert.

Bert appeared in New York state court the following day. On January 30, 2012, after his state charges were reduced, Bert was transferred to federal custody. He first appeared in the Eastern District of New York on February 16, 2012, on a two-count indictment charging him with possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

By motion filed June 25, 2012, and supplemented by four additional submissions over the next six months, Bert sought to suppress statements he made to the officers on the evening following his arrest and during his transfer to federal custody.1 Government witnesses testified that, during these exchanges, Bert had boasted that he could not be prosecuted because the gun recovered from outside the 10th floor

814 F.3d 76

window was not operable. In his suppression motion, Bert argued that admitting these statements would violate his rights under the Fourth and Fifth Amendments because they were the fruits of his unlawful seizure, made in the absence of a Miranda warning and not preceded by a knowing and voluntary waiver of his Fifth Amendment rights. The district court held a one-day suppression hearing on November 20, 2012. The transcript of that hearing was corrected, pursuant to the government's request, over the next two months.

On February 1, 2013—after the matter had been fully briefed and the hearing transcript corrected—the district court took Bert's suppression motion under advisement. During the twelve months that followed, Bert remained in prison, presumptively innocent, with no apparent activity in his case. The docket sat idle until February 3, 2014, over a year later, when the district court denied Bert's suppression motion in its entirety.

On February 20, 2014, Bert filed a motion to dismiss the indictment with prejudice asserting that he had not been brought to trial within the timeframe required under the Speedy Trial Act and also claiming that the delay violated his constitutional rights under the Sixth Amendment's Speedy Trial clause. The government, conceding that the Speedy Trial Act had been violated, argued that the dismissal should be without prejudice, as authorized by 18 U.S.C. § 3162(a)(1).

Ruling from the bench, the district court rejected Bert's constitutional argument, but concluded that the indictment must be dismissed pursuant to 18 U.S.C. § 3162(a)(2) because the delay violated the Speedy Trial Act. After "quickly tick[ing] through the factors in the statutory analysis," Special App'x at 31, the district court found that "all of the factors tip[ped] in favor of the government's position on [the] motion," Special App'x at 34. It ordered that the dismissal of the indictment be without prejudice to Bert's reprosecution.

That same day, the government re-indicted Bert on identical charges. A three-day trial commenced on May 19, 2014, and the jury returned a verdict of guilty on both counts. The district court then sentenced Bert principally to a term of 120 months' imprisonment.2

Bert appealed, arguing that the district court erred in denying his suppression motion and finding no violation of his Sixth Amendment right to a speedy trial, and abused its discretion by dismissing the original indictment without prejudice.3

814 F.3d 77


Suppression of Bert's Post–Detention Statements

We address first Bert's contention that the district court erred by denying his motion to suppress the statements he made on January 19, 2012 after he was detained by police officers in the apartment building at 55 Holland Avenue.4 Bert argues that the officers lacked reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to hold him and that the detention was primarily motivated by his race. We disagree.

A police officer may detain an individual for questioning if the officer has "a reasonable suspicion that the individual is, has been, or is about to be engaged in criminal activity." United States v. Padilla, 548 F.3d 179, 186 (2d Cir.2008). The officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion on a citizen's liberty interest." United States v. Elmore, 482 F.3d 172, 178–79 (2d Cir.2007) (alteration omitted). "While the officer may not rely on an inchoate and unparticularized suspicion or hunch, he is entitled to draw on his own experience and specialized training to make inferences from and deductions about the cumulative information available to him that might well elude an untrained person." Padilla, 548 F.3d at 187 (alterations and citation omitted).

On appeal of a suppression ruling, we review the district court's reasonable suspicion determination de novo and its factual findings for clear error, "without construing the evidence in favor of [either] party." United States v. Bershchansky , 788 F.3d 102, 110 (2d Cir.2015). "In reviewing...

To continue reading

Request your trial
43 cases
  • United States v. Green, 3:19-CR-233
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 9, 2020
    ...deliberate stalling of counsel. 120 Cong. Rec. 41618 (1974) (statement of Sen. Ervin). 751 F.2d at 429 ; see also United States v. Bert , 814 F.3d 70, 80 (2d Cir. 2016). "Where ... the delay-causing conduct is attributable to the sovereign (the court or the prosecutor), it inveighs progress......
  • United States v. Erickson, Case No. 3:19-cr-0007
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • June 3, 2020
    ...or the government (whether that be the prosecutor or the court). See Hastings, 847 F.2d at 925-26; see also United States v. Bert, 814 F.3d 70, 80 (2d Cir. 2016) ("'The Act controls the conduct of the parties and the court itself during criminal pretrial proceedings. Not only must the court......
  • United States v. Pennick, 10-CR-191-A
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 2, 2016
    ...to exclude time from the speedy trial clock. See Zedner v. United States, 547 U.S. 489, 506-07 (2006); see e.g., United States v. Bert, 814 F.3d 70 (2d Cir. 2016). Pursuant to § 3162(a)(2) of the Act, if the 70-day speedy trial clock is violated, the charges "shall be dismissed on motion of......
  • United States v. Henning, Case No.: SACR 16-00029-CJC-7
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 19, 2021
    ...months of the date of the dismissal, "which new indictment shall not be barred by any statute of limitations"); United States v. Bert , 814 F.3d 70, 86 (2d Cir. 2016) ("The fact that the government must reindict the defendant is not a particularly strong deterrent."). In effect, there would......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT