United States v. Laura Pagan

714 F.2d 225, 1983 U.S. App. LEXIS 25086

• Court: Court of Appeals for the Second Circuit
• Decided: August 8, 1983
• Docket: 808, Docket 82-1333
• Status: Published

Opinions

VAN GRAAFEILAND, Circuit Judge:

Laura Pagan was convicted after a bench trial in the United States District Court for the Eastern District of New York (McLaughlin, J.) of knowingly importing or bringing merchandise into the United States contrary to law. 18 U.S.C. § 545 (1976). She appeals from her conviction on the ground that delay in bringing her case to trial resulted in a violation of the Speedy Trial Act. 18 U.S.C. §§ 3161-3174 (1976 & Supp. V 1981). We affirm.

Appellant was arrested at Kennedy Airport in New York City on December 16, 1981, after a customs search revealed several secreted packets containing a white powdery substance which appellant had failed to declare. On December 17, 1981, appellant was arraigned on a complaint which charged her with importing and possessing cocaine hydrochloride with intent to distribute.

When the Government thereafter discovered that the substance was not cocaine, but lidocaine, a cocaine diluent, it dismissed the complaint without prejudice and without objection from appellant’s attorney. Thereafter, by indictment filed on February 22, 1982, appellant was charged with attempted importation and possession of cocaine hydrochloride with intent to distribute.

On March 8, Judge McLaughlin set a trial date of April 13, and directed that motions be made by March 29 and responded to by April 2. On March 29, appellant moved to suppress the statement, “It’s cocaine”, made by appellant during the customs search.

On April 2, defense counsel requested an indefinite adjournment of the April 13 trial date because of his anticipated unavailability. At the same time, the Government informed the court that it had not decided whether to oppose or acquiesce in the motion to suppress, and whether it would proceed with the case in the event it acquiesced. A status conference was set for April 14, and an order was entered pursuant to stipulation, excluding the period of delay from March 29 to April 14.

The April 14 conference was not held, because, prior thereto, the Government informed the court that it had decided to dismiss the case. However, during the week following April 14, the Government notified the court that it had reconsidered and intended to proceed.

On May 14, 1982, the Grand Jury returned a superseding indictment against appellant charging her with the knowing importation into the United States of merchandise contrary to law, in violation of 18 U.S.C. § 545, and knowingly making false, fictitious and fraudulent statements in violation of 18 U.S.C. § 1001. On June 1, appellant moved to dismiss the case on Speedy Trial grounds. This appeal centers on the July 1 denial of that motion.

The Speedy Trial Act requires that the trial of an accused person commence within 70 days of the person’s first appearance in court or the filing of an indictment, whichever is later. 18 U.S.C. § 3161(c)(1). However, two pertinent periods of time are excluded from the 70-day computation. Section 3161(h)(1)(F) excludes the delay resulting from the filing of a pretrial motion “through the conclusion of the hearing on, or other prompt disposition of, such motion.” Section 3161(h)(l)(J) requires the court to exclude up to 30 days during which “any proceeding concerning the defendant is actually under advisement by the court.” In deciding appellant’s Speedy Trial motion, the district court had to determine whether it had taken appellant’s motion to suppress under advisement, and, if so, whether this was done within a reasonable time after the motion to suppress was made. United States v. Cobb, 697 F.2d 38, 44 (2d Cir.1982). The court concluded that the motion should be considered as under advisement from April 14, the last day covered by the order of exclusion and thus the day on which the Government’s response was due.

Our opinion in United States v. Bufalino, 683 F.2d 639 (1982), cert. denied,-U.S. -, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983), did not preclude the district court from so holding. We held in Bufalino that a defendant could not force a motion into the advisement stage by failing to respond to the Government’s motion to sequester the jury. There, the trial court continued its attempts to ascertain the defendants’ position concerning sequestration until the day the trial began. Here, the district court expected nothing from the Government after April 14. Although the district court was not compelled to hold that, as of that date, the matter was under advisement, the court did not err in holding that it was. When the maximum 30-day “under advisement” exclusions for the motions to suppress and dismiss plus the 16-day period between March 29 and April 14 are subtracted from the 142-day period between the date of indictment and the date of trial, Speedy Trial requirements are satisfied.

Affirmed.