United States v. Bert

801 F.3d 125, 2015 U.S. App. LEXIS 16072, 2015 WL 5254882
Court of Appeals for the Second Circuit·Decided September 10, 2015·No. No. 14-2428-cr·Published·Cited by 8 cases

Opinions

POOLER, Circuit Judge:

' Defendant Raheem Bert appeals his conviction in the United States District Court for the Eastern District of New York (Mauskopf, /.), 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 while Bert remained in custody with his suppression motion under advisement. On appeal, Bert argues that the district court abused its discretion by dismissing his indictment without prejudice rather than with prejudice, thereby permitting his reprosecution. Bert also claims the district court erred in finding no violation of his Sixth Amendment speedy trial rights and in denying his motion to suppress. For the reasons that follow, we REVERSE the district court’s judgment dismissing the indictment without prejudice and do not reach Bert’s remaining arguments.

BACKGROUND

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 black males were trespassing at 55 Holland Avenue. Upon arriving at the building, the officers encountered Bert, another black male, and a woman standing and talking in the hallway of the 10th floor. After detaining the three suspects pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), 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 United States v. Bert, No. 12-CR-100 (RRM), 2014 WL 358983, at *2-3 (E.D.N.Y. Feb. 3, 2014). The officers subsequently arrested Bert, who has remained continuously detained since that evening.

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 law enforcement 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 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, or not preceded by a knowing and voluntary waiver of his Fifth Amendment rights. The dis[129]*129trict court convened 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, 2018 — 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 on the basis that he had not been brought to trial within the timeframe required under the Speedy Trial Act, and alleging that the delay violated his constitutional rights under the Sixth Amendment’s Speedy Trial clause. The government conceded that the Speedy Trial Act had been violated, but argued that the dismissal should be without prejudice, as authorized by 18 U.S.G. § 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 ticking] through the factors in the statutory analysis,” the district court found that “all of the factors tip[ped] in favor of the government’s position on [the] motion.” It therefore 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, which he is currently serving.

Bert appealed, arguing that the district court abused its discretion by dismissing the indictment without prejudice.2 For the reasons explained below, we agree.

DISCUSSION

I. Violation

The Speedy Trial Act mandates that a criminal defendant must be brought to trial within 70 days of the filing of the indictment or the defendant’s initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If that deadline is not met, the Act provides that the indictment “shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2).

The Act excludes delays due to certain enumerated events from the 70-day indictment-to-trial period. See 18 U.S.C. § 3161(h). In this case, the parties agree that the district court properly excluded the period of time from when the motion was filed until it was taken under advisement, 18 U.S.C. § 3161(h)(1)(D), as well as the first thirty days that it was under advisement, .18 U.S.C. § 3161(h)(1)(H). It is similarly undisputed that the remaining eleven months that the motion was pend[130]*130ing were not excluded. Accordingly, the Act’s 70-day indictment-to-trial period (commonly referred to as the “speedy trial clock”) was exceeded by approximately nine months.

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Bert, 801 F.3d 125, 2015 U.S. App. LEXIS 16072, 2015 WL 5254882 (2d Cir. 2015).

801 F.3d 125 (United States v. Bert) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Bert
Second Circuit, 2016
United States v. Koerber
813 F.3d 1262 (Tenth Circuit, 2016)
United States v. Smith
277 F. Supp. 3d 405 (W.D. New York, 2016)