United States v. Holley

813 F.3d 117, 638 Fed. Appx. 93, 2016 U.S. App. LEXIS 2243, 2016 WL 537676
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 10, 2016
DocketDocket Nos. 13-2068, 13-3490, 13-3032
StatusPublished
Cited by6 cases

This text of 813 F.3d 117 (United States v. Holley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Holley, 813 F.3d 117, 638 Fed. Appx. 93, 2016 U.S. App. LEXIS 2243, 2016 WL 537676 (2d Cir. 2016).

Opinion

PER CURIAM:

Defendant Warren Love appeals from a judgment of conviction, entered on August 6, 2013, following a jury trial, by the United States District Court for the Western District of New York (Larimer, J.), on one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C), one count of use of a premises to manufacture, distribute and use a controlled substance in violation of 21 U.S.C. § 856(a)(1), one count of possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1), and one count of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2).2

Love argues that the district court erred by excluding from calculation, for purposes of the Speedy Trial Act (“STA”), 18 U.S.C. § 3161, forty days of delay resulting from the government’s filing of two motions to set a trial date. Love also argues, for the first time on appeal, that the district court erred by excluding periods of delay resulting from the joinder of his case with that of his codefendant, Tina Holley, and that the associated ends-of-justice continuances were not adequately supported. The question of whether Love waived the latter claim by failing to raise it in his motion to dismiss on STA grounds before the district court is one of first impression in this Circuit. We hold that he did.

Because Love cannot establish an STA violation even if the district court erred in excluding the periods of delay resulting from the government’s motions to set a trial date, we do not decide that question.

BACKGROUND

On April 6, 2010, members of the Greater Rochester Area Narcotics Enforcement Team executed search warrants at the rear first and second floor apartments at 399 Lake Avenue, Rochester, New York. When the officers entered the building to conduct the search, they encountered defendant Warren Love standing in or near the open door to the first floor apartment. During the search of the two apartments, [120]*120the officers recovered cocaine base, marijuana, drug-related paraphernalia, several firearms, body armor, ammunition, and mail addressed to Love and his co-defendant, Tina Holley. Holley arrived at the residence during the search, and the officers took both Love and Holley into custody.

On June 15, 2010, Love and Holley were indicted in the Western District of New York on drug-and firearm-related charges. On September 27, 2010, they were arrested by federal authorities in the Western District of Wisconsin, and Love was arraigned in the Western District of New York on October 20, 2010. On September 30, 2011, following motion practice involving both defendants, the government filed a motion to set a trial date. On October 19, 2011, the court set a pretrial conference for October 31, 2011 and trial for November 7, 2011 as to both defendants. However, Holley decided to plead guilty and cooperate with the government. The court adjourned the trial date to allow the government to supersede the indictment against Love.

On November 3, 2011, the grand jury returned a superseding indictment charging Love in seven counts. On July 23, 2012, following additional motion practice concerning Love, the government filed a second motion to set a trial date. On August 10, 2012, Love moved to dismiss the indictment based on violations of the STA. He raised two arguments, only one of which he renews here. Specifically, he argued that the periods of delay that occurred while the government’s two motions to set a trial date were pending were not excludable because they were not “pretrial motion[s]” within the meaning of the STA. 18 U.S.C. § 3161(h)(1)(D). The district court rejected both arguments, holding that no STA violation occurred.

Love’s trial took place from December 3 to 7, 2012. Following trial, the jury rendered guilty verdicts on six of the seven counts of the superseding indictment.3 The district court granted Love’s motion for a judgment of acquittal with respect to two of those counts and sentenced Love principally to 156 months’ incarceration on the remaining four counts. Love timely filed this appeal.

DISCUSSION

Love argues that the district court erred by denying his motion to dismiss based on violations of the STA. He contends that certain periods of delay were not excludable from the speedy trial clock: (1) delay resulting from the filing of the government’s two motions to set a trial date; (2) delay resulting from Love’s joinder with co-defendant Holley; and (3) continuances granted to Holley’s counsel based on various ends-of-justice exclusions. The government argues that Love waived any challenge to the second and third categories of delay by failing to raise them in the district court. We agree.

The STA requires that a criminal defendant must be tried within seventy days of the filing the information or indictment, or of his initial appearance in the district where the charges are pending, whichever occurs later. See 18 U.S.C. § 3161(c)(1). The STA provides that certain periods of delay are excludable from the seventy-day speedy trial clock, including, as relevant here, “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,” id. § 3161(h)(1)(D), and “[a] reason[121]*121able period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.” Id. § 3161(h)(6).

When a defendant has preserved his STA claims by making a timely motion to dismiss the indictment, we review the district court’s findings of relevant facts for clear error and its application of the STA to those facts de novo. See United States v. Shellef, 718 F.3d 94, 101 (2d Cir.2013). However, the STA provides that “[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.” 18 U.S.C. § 3162(a)(2). Under this provision, if the defendant fails to move for dismissal on STA grounds in the district court, this Court cannot review any such claim on appeal, even for plain error. See United States v. Abad, 514 F.3d 271, 274 (2d Cir.2008) (per curiam).

We have not squarely addressed whether the STA’s waiver provision applies where, as here, the defendant made a timely motion to dismiss on STA grounds but failed to challenge a particular period of delay. Cf. United States v. Oberoi

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Cite This Page — Counsel Stack

Bluebook (online)
813 F.3d 117, 638 Fed. Appx. 93, 2016 U.S. App. LEXIS 2243, 2016 WL 537676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-holley-ca2-2016.