United States v. Felton, Crim. No. 83-49.

• Decision Date: 10 May 1985
• Docket Number: Crim. No. 83-49.
• Citation: 612 F. Supp. 599
• Parties: UNITED STATES of America v. Dean K. FELTON, Nancy E. Bruce, John Zorak a/k/a Johnny, Anthony Serrao a/k/a Buddy, Richard Cox a/k/a Ricky, James Thurman, John Hathorne.
• Court: U.S. District Court — Eastern District of Pennsylvania

612 F. Supp. 599

UNITED STATES of America v. Dean K. FELTON, Nancy E. Bruce, John Zorak a/k/a Johnny, Anthony Serrao a/k/a Buddy, Richard Cox a/k/a Ricky, James Thurman, John Hathorne.

Crim. No. 83-49.

United States District Court, W.D. Pennsylvania.

May 10, 1985.

Jeffrey Manning, Linda Kelly, Asst. U.S. Attys. W.D.Pa., Pittsburgh, Pa., for plaintiff.

W. Thomas McGough, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for Felton.

Kim Wm. Riester, Pittsburgh, Pa., for Bruce.

Patrick J. Thomassey, Monroeville, Pa., for Serrao.

Stephen M. Sokol, Pittsburgh, Pa., for Cox.

OPINION

DIAMOND, District Judge.

Various pretrial motions filed by the defendants in the above-captioned matter were denied by this court by order dated April 1, 1985. The following constitutes the reasons for their denial.

Speedy Trial Act

Defendant Felton has filed a renewed motion to dismiss Counts I and II, a motion to dismiss Counts III through X and a motion to dismiss indictment. Defendant Bruce has filed a motion to adopt the Speedy Trial Act motion of her co-defendants, and defendant Serrao has filed a motion to dismiss Count VIII of the indictment based upon the Speedy Trial Act, 18 U.S.C. § 3161 et seq.

In United States v. Felton, 592 F.Supp. 172 (W.D.Pa.1984), this court found that Counts I and II of the present indictment were counts that were required to be joined with those of the indictment at Criminal 79-121. The court relying on United States v. Budzyna, 666 F.2d 666 (1st Cir. 1981), concluded that the non-sanction and time-limit provisions of the Act which applied when the indictment at Criminal 79-121 was returned in June of 1979 control the present case, and that, therefore, no sanctions were applicable. 18 U.S.C. § 3163(c), § 3174(c). Assuming arguendo that the time which expired under the Speedy Trial Act at Criminal 83-49 had to be "tacked" onto the time which had already expired at Criminal 79-121, the court then made findings with respect to the time which had expired at Criminal 79-121.¹ The court concluded that forty-eight days had to be deducted from the seventy days within which trial had to commence under the present indictment.

In this court's Speedy Trial Act calculations for the indictment at Criminal 79-121, we calculated an exclusion pursuant to 18 U.S.C. § 3161(h)(1)(E) based upon the interlocutory appeal of January 15, 1980, as ending on December 17, 1980, the date that the certified copy of the judgment of the Court of Appeals was received and filed by our Clerk of Court, rather than on December 16, 1980, the date that the judgment was issued by the Court of Appeals. All further references are to subsections of 18 U.S.C. § 3161.

In United States v. Rush, 738 F.2d 497 (1st Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985), the First Circuit held that the excludable time under (h)(1)(E) ended on the date that the Appellate Court issued its mandate and not on the date that the mandate was received by the district court. Cf., United States v. Ross, 654 F.2d 612 (9th Cir.1981), cert. denied, 455 U.S. 926, 102 S.Ct. 1290, 71 L.Ed.2d 470 (1982); but cf., United States v. Gilliss, 645 F.2d 1269 (8th Cir.1981). In United States v. Russo, 550 F.Supp. 1315, 1319 (D.N.J.1982), aff'd, 722 F.2d 736 (3d Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 716, 79 L.Ed.2d 179 (1984), the district court held that the date on which the action occasioning retrial became final under § 3161(e) was the date of the issuance of the Circuit Court's judgment and not the date that the judgment was received by the district court. Id. at 1319. While this holding pertained to § 3161(e), we believe it applies as well to § 3161(h)(1)(E); therefore, we now hold that one additional day elapsed at Criminal 79-121 as a result of the issuance of the judgment by the Court of Appeals on December 16, 1980.

In United States v. Felton we had found that the "338 days between January 15, 1980, and December 17, 1980, when a certified copy of the judgment order was received from the Court of Appeals and filed by our Clerk of Court were excludable under (h)(1)(E)." 592 F.Supp. at 183.

We believe that finding must be modified somewhat. The Circuit had originally issued its judgment in lieu of mandate in that interlocutory appeal on October 24, 1980. However, on October 27, 1980, the government filed a motion in the Circuit to stay or recall the mandate. The motion was granted on October 31, 1980, and the case remained in the Circuit on the interlocutory appeal until the judgment was reissued on December 16, 1980, as stated above.

Since three days elapsed between the initial issuance of the judgment on October 24, 1980, and the filing of the government's motion on October 27, 1980, we also will add those three days to the elapsed time at Criminal 79-121. United States v. Black, 733 F.2d 349 (4th Cir.1984). Accordingly, we now find that as a result of the appeal of January 15, 1980, at Criminal 79-121, 334 days are excludable under § 3161(h)(1)(E).

We conclude from the foregoing that fifty-two days at Criminal 79-121 must be deducted from the seventy days within which trial may commence under the present indictment.

A review of the file and docket entries at Criminal 83-49 reflects the following matters relevant to the computation of the Speedy Trial Act times for the commencement of that trial.

Initially, the fifty-two days at Criminal 79-121 had to be deducted. This left eighteen days for commencement of trial.

The indictment at Criminal 83-49 was returned on March 31, 1983, and ordered sealed. Bench warrants were issued for the apprehension of the defendants, and, with the exception of the defendant Cox, all defendants appeared and were arraigned on various dates up to and including May 20, 1983.

Subsequent to defendant Felton's arraignment, his retained counsel was permitted to withdraw. Defendant Felton then filed a pro se motion to extend the time for filing pretrial motions due to lack of counsel. Appointment of counsel for Felton under the Criminal Justice Act was made on April 21, 1983, and appointed counsel promptly moved for a further enlargement of time to file pretrial motions. The court granted the motion to extend time, and, pursuant to 18 U.S.C. § 3161(h)(8)(A) and (B), made appropriate findings and a determination with respect to excludable delay. A similar extension was granted to defendant Hathorne on June 14, 1983.

The defendants and the government then proceeded to file motions and responses up to and including July 13, 1983, and a hearing on all pending motions was held on July 14, 15 and 28, 1983.

At this point there were several periods of excludable delay which applied to defendant Felton as well as his co-defendants. See United States v. Novak, 715 F.2d 810 (3d Cir.1983).

A) The period of March 31, 1983, to April 8, 1983, the time from filing and making public the indictment, is excludable under (c)(1).

B) The period of April 18, 1983, through July 28, 1983, is excludable under (h)(1)(F), covering delays from the filing of pretrial motions until disposition.

C) The period commencing April 1, 1983, when multiple defendants are awaiting trial and no motion for severance has been granted, (h)(7).

D) Extensions to file pretrial motions, (h)(8)(A) and (B).

E) The delays resulting from proceedings involving a defendant, (h)(1).

At the conclusion of the hearing in July, 1983, briefs and a transcript were ordered. Since the briefs and transcript were received by August 26, 1983, the period of July 29, 1983, through August 26, 1983, is excludable under (h)(1)(F) and (h)(7).

In Novak, the court refused to fix a time limit of thirty days within which to hold pretrial motions under advisement, and, thus, as of August 26, 1983, disposition of pending motions was subject to the reasonableness criterion. Id. at 820. However, during the hearings on motions pending as of July 13, 1983, and thereafter, some defendants continued to file new and amended pretrial motions. As a result, the court determined that an additional hearing would be required with respect to some of the previously pending motions as well as the post-hearing motions, and, therefore, excludable delay from July 13, 1983, through November 2, 1983, continued to accrue under (h)(7) and (h)(1)(F).

On November 3, 1983, the court by order made findings that an additional hearing was necessary with respect to some pre-July 13, 1983, motions and entered an order as to all motions as provided for in (h)(8)(A) and (B), which order held that the time from filing of pretrial motions until their ultimate disposition was to be excluded.

In the November 3, 1983, order the court made a further observation that a period of excludable delay in fact had begun on April 1, 1983, under (h)(3)(A) as to defendant Cox who was in a fugitive status, which applied to all co-defendants under (h)(7), since no motions for severance had been filed or granted.

From November, 1983, through March, 1984, defendant Felton continued to file pretrial motions and responses.

Defendant Cox was apprehended and appeared in this district with counsel on March 21, 1984. This ended the "fugitive status" exclusion under (h)(7), however, the (h)(7) exclusion continued as to all other defendants since defendant Cox could not be forced to trial before thirty days from his first appearance on March 21, 1984, as provided for in (c)(2). In addition, the period from March 21, 1984, through April 10, 1984, is excludable under (h)(7) as to defendant Cox, since there were further pretrial motions pending which had been filed by the co-defendants prior to and after Cox's apprehension.

On March 21, 1984, the supplemental hearing on pretrial motions was held and the transcript filed April 6, 1984. Defendant Cox filed his pretrial motions on April 10 and 17, 1984, which continued the (h)(7) exclusion for his co-defendants and a (h)(1)(F) exclusion as to Cox until disposition of...