United States v. Irvin Alamia Moran (91-6309) and Rena Morales (91-6310)

998 F.2d 1368

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 2, 1993
• Docket: 91-6309, 6310
• Status: Published

Opinions

BOYCE F. MARTIN, Jr., Circuit Judge.

Irvin Alamia Moran and Rena Morales appeal their convictions for possession of marijuana with intent to distribute. Both defendants challenge the district court’s denial of their motions to suppress evidence and of their motions to dismiss the indictment under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. Morales also contends that sufficient evidence does not exist to sustain his conviction. We vacate the judgment of the district court and remand the case for dismissal of the indictments with directions to determine whether the indictments should be dismissed with or without prejudice.

On November 27, 1989, David J. Ducrest, Sheriffs Deputy in Shelby County, Tennessee, was operating a stationary radar device to monitor eastbound traffic on Interstate 40 near Airline Road. According to the radar, Moran drove by Ducrest in a Nissan truck with tinted windows at a speed of sixty-three miles per hour in a fifty-five miles-per-hour zone. Ducrest contacted Officer Lanny Hughes by radio in a patrol car and asked him to stop the truck for speeding.

When Moran noticed Hughes, Moran pulled over and got out of the truck to talk to the officer. Hughes noticed that the pickup had struck the guard rail when Moran pulled off the road but that Moran showed no concern regarding possible damage to the truck. The officer then asked Moran for evidence of the truck registration. Moran opened a door and asked the passenger, Rena Morales, to give him the registration documents. When the door was open, Hughes smelled a strong odor that he identified as marijuana.

At this point, Hughes called Officer Du-crest to the scene and told him about thé odor of marijuana. Officer Ducrest requested permission to search the truck, and Moran consented. Meanwhile, Moran got into Hughes’ patrol car. When Officer Ducrest got to the truck, he noticed the heavy scent of air freshener that seemed to have been sprayed immediately before this point. The only person who could have applied the spray was Morales, who remained in the passenger seat throughout the incident. Despite the air freshener, Ducrest detected the odor of raw marijuana. When the truck was searched, law enforcement officials found several duffel bags containing a total of 160 pounds of marijuana. The bags were located in the area behind the passenger seats. Moran and Morales were then read their Miranda rights and placed under arrest.

On November 27, 1989, a- criminal complaint was filed against Morales and Moran. A federal grand jury returned a one-count indictment against both defendants on December 11. The indictment charged them with aiding and abetting each other in the possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). On January 10, 1990, Moran and Morales were arraigned, and the'trial was subsequently set for February 20. The court later granted a continuance to allow the defendants to file suppression motions and to avoid scheduling conflicts for Moran’s counsel. On January 24, Moran filed a motion to suppress evidence found in the vehicle. Morales filed a motion to suppress the same evidence on February 5. The district court conducted an evidentiary hearing on January 24, 1991, and denied both motions on April 11. By May 1, 1991, both Moran-and Morales filed motions to dismiss the indictments for violation of the Speedy Trial Act. These motions were denied on May 28. A jury convicted both defendants on July 31, 1991. After being sentenced on September 27, both defendants filed timely appeals.

The Speedy Trial Act sets time limits on the prosecution for bringing a case to trial after arraignment or indictment. 18 U.S.C. , et seq. The purpose of the statute is “to quantify and make effective the Sixth Amendment right to a speedy trial.” Henderson v. United States, 476 U.S. 321, 333, 106 S.Ct. 1871, 1878, 90 L.Ed.2d 299 (1986) (White, J., dissenting). The Speedy Trial Act provides that:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offenses- shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant • has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs....

18 U.S.C. § 3161(c)(1).

The statute permits certain “periods of delay [to be] excluded ... in computing the time within which the trial ... must commence.” 18 U.S.C. § 3161(h). One circumstance in which the seventy-day period is tolled is the duration of any “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. § 3161(h)(1)(F). Another excludable time is a “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.” 18 U.S.C. § 3161(h)(1)(J). If the trial does not begin within seventy days or an additional amount of time allowed under the exclusions provided by section 3161(h), the indictment or information must be dismissed on motion of the defendant, with or without prejudice. 18 U.S.C. § 3162(a)(2). The district court determines whether the indictment should be dismissed with or without prejudice- because it is in the best position to evaluate whether reprosecution would properly serve the ends of justice. United States v. Richmond, 735 F.2d 208, 217 (6th Cir.1984).

In the present casé, the seventy-day period began to run from the date of indictment. See United States v. Mentz, 840 F.2d 315, 325 (6th Cir.1988) (holding that the seventy-day time period begins to run at the date of indictment when the defendant is arrésted prior to indictment). The day of arraignment is excluded from the seventy-day period. Id. at 326. Consequently, the United States was required to bring Moran and Morales to trial within seventy days of December 11, 1989, barring the arraignment date and any other excludable delays.

Two particular periods of delay excluded by the district court are at issue. Moran and Morales challenge the exclusion of time allowed for filing pretrial motions and part of the time between the suppression hearing and the date the district court issued its ruling on the motions to suppress. On January 10, the district court announced that it would give the parties fifteen days to file pretrial motions. It is undisputed that under 18 U.S.C. § 3161(h)(1)(F), the speedy-trial clock stopped running when Moran filed a motion to suppress on January 24, 1990. Moran and Morales contend that the district court erred when it excluded not only the time after the motion was filed but also all prior time specifically allowed by the district court for the preparation of such motions. Therefore, the issue is whether the period allowed by .the district court for preparation of pretrial motions is excludable. This question has not yet been answered in this circuit.

In the district court order denying the defendants’ motions to dismiss the indictment, the district court noted the Seventh Circuit’s conclusion in United States v. Barnes, 909 F.2d 1059, 1064-65 (7th Cir. 1990) that the time given for the filing of motions is excludable. The Barnes decision was based on the holding in United States v. Montoya, 827 F.2d 143, 152-53 (7th Cir. 1987). In Montoya, the Seventh Circuit held that the time period set by the district court for filing motions stops the speedy-trial clock until the motions deadline unless the defendant informs the court that it has allocated too much time to potential motions and that the case should proceed without concern for any possible pretrial motions.

We disagree with the Seventh Circuit’s conclusion. The statute expressly excludes only the period “from the filing of the [pretrial] motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” .18 U.S.C. § 31.61(h)(1)(F). The statute does not provide that a period allowed by the district court for preparation of pretrial motions is to be excluded from the seventy-day computations. Moreover, the' burden should not be on the defendant to take affirmative steps to keep the speedy-trial clock running. Therefore, we determine that forty-two non-excludable days elapsed between December 11, 1989 and January 24, 1990. This calculation leaves a twenty-eight-day period in which the defendants had to be tried.

The other speedy-trial question is how many of the seventy-one days taken by the district court to rule on the motions to suppress are not excludable. Section 3161(h)(1)(F) excludes the time from the filing of a pretrial motion to the disposition of the motion. This period of tolling the speedy-trial clock includes time after a hearing on a motion when the district court is waiting for supplemental filings from the parties that are necessary for disposition of the motion. Henderson v. United States, 476 U.S. 321, 330-31, 106 S.Ct. 1871, 1876-77, 90 L.Ed.2d 299 (1986). Moran and Morales, claim that 18 U.S.C. § 3161 (h)(í)(J) does not exclude delays beyond thirty days after the disposition of pretrial motions. Section 3161(h)(1)(J) excludes from the seventy-day computation any “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” (emphasis added). “A motion is ‘actually under advisement’ when ‘the court receives all the papers it reasonably expects _’ ” Mentz, 840 F.2d at 327 (quoting Henderson, 476 U.S. at 329, 106 S.Ct. at 1876)).

In this case, the United States filed the final post-hearing memorandum on January 30, 1991. Moran and Morales correctly contend that the clock began to run again on March 1, 1991 because at that point, thirty days had passed since the United States filed its post-hearing memorandum. The thirty-day benchmark in section 3161(h)(l)(J) re.quires prompt disposition of the motion after the hearing is held and the district court has received all supplemental filings to avoid restarting the speedy-trial clock. Mentz, 840 F.2d at 326.

The United States argues that the tolling of the speedy-trial computation continued until April 11 because the statute does not explicitly apply the thirty-day limit to consideration of pretrial motions. The United States contends that we should adopt the Seventh Circuit’s riilé on the question. In United States v: Tibboel, 753 F.2d 608, 612 (7th Cir.1985), the court held that the maximum number of excludable days is' not thirty days in a ease with numerous pretrial motions ' but is whatever number of days is necessary to make a reasonably prompt decision. However, Tibboel merely created an exception that extends the time limit beyond thirty days in cases with multiple motions that require additional time for consideration. In the present case, only'two motions, pertaining to suppression of the same evidence, are at issue. We do not believe that the district court needed more than thirty days to deliberate. Moreover, the United State's asks us to invoke the Tibboel exception because of the number of pleadings involved in the instant case, rather than the number of motions as in Tibboel. Even though the district court had eighteen pleadings to address, each of these items basically involved the same issue: suppression of the evidence acquired at the time of arrest. Under these circumstances, we do not believe that the district court needed additional time to research the issues. Therefore, we decline to apply Tibboel to the case at hand.¹

We also reject the district court’s rationale for excluding the time after the thirty-day period from speedy-trial computations. The district court applied an “ends of justice” continuance under section 3161(h)(8). The statute provides for the exclusion' of:

[a]ny period of delay resulting from a continuance granted by any judge on his own motion ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.

18 U.S.C. § 3161(h)(8)(A).

The district court originally issued an ends .of justice continuance on February 5, 1990 to allow “the filing of a motion to suppress and continuity of counsel” (emphasis added). Based upon its very terms, the continuance lasted only until the suppression motions were filed and counsel’s scheduling difficulties were resolved. However, the district court later retroactively expanded the continuance to exclude all of the time through the date the court ruled on the motion. The district court reasoned that it did not need to issue a separate ends of justice continuance because the time between January 24 and April 11 had already been excluded by the earlier continuance. This type of post-hoe rationalization is not permitted. See United States v. Crane, 776 F.2d 600, 606 (6th Cir.1985) (“ ‘A district judge cannot wipe out violations of the Speedy Trial Act after they have occurred by making the. findings that would have justified granting an excludable delay continuance before the delay occurred.’” (citation omitted)). Therefore, in accordance with 18 U.S.C. § 3161(h)(1)(J), we determine that forty-one non-excludable days elapsed while the district court was considering how to rule on the motions to suppress.

This holding does not conflict with our opinion in United States v. Monroe, 833 F.2d 95, 99 (6th Cir.1987), where .we held that a delay may be excluded under section 3161(h)(8)(B), providing that the appropriate finding is made that a delay is in the interest of justice prior to the beginning of the period of delay. In the instant case, however, no such finding was made. As such, the delay was not excludable under the Speedy Trial Act.

After making all of the aforementioned adjustments, we find that there was a violation of the Speedy Trial Act. The forty-two days between the indictment date and the date Moran filed a motion to suppress evidence are included in the seventy-day calculation. We also count the last forty-one days of the seventy-one days taken to rule on the motions to suppress. The total of eighty-three days exceeds the maximum allowable under the Speedy Trial Act. Therefore, we vacate the judgment and remand the case for entry of dismissal of the indictments. The district court will determine whether the indictments should be dismissed with or without prejudice. As a result of this decision, we need not decide Morales’ argument regarding sufficiency of the evidence.

1 . Such cases as Tibboel and Montoya, which create exceptions to the Speedy Trial Act, circumvent its purpose, which is to guarantee a speedy trial. See Henderson, 476 U.S. at 333, 106 S.Ct. at 1878 (White, J., dissenting) (noting that the exclusions "are not to be used either to undermine the time limits established by the Act, or to subvert the very purpose the Act was designed to fulfill”).