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United States v. Felton

filed: January 30, 1987.

THE UNITED STATES
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 HATHORN



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, D.C. Crim. Nos. 83-00049-01-02

Before: Seitz and Gibbons, Circuit Judges, and Gerry,*fn* District Judge. Before: Aldisert, Chief Judge, and Seitz, Adams,*fn** Gibbons, Weis, Higginbotham, Sloviter, Becker, Stapleton, and Mansmann, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

Defendants contend that their Speedy Trial rights were violated because the district court used an excessively long time to decide their pretrial motions. After a careful review of the record, we conclude that under several different methods of computing excludable time, the limits of the Speedy Trial Act were not exceeded. To forestall possible delays contrary to the spirit of the Act, in future cases we recommend that district courts in this circuit adopt local rules setting time limits for the period between filing pretrial motions and hearings. Rejecting other allegations of error here, we will affirm the defendants' convictions.

Dean Felton, Nancy Bruce, and others were convicted on various counts of violations of 21 U.S.C. §§ 841, 843, 846, and 848 (1982) growing out of the distribution of marijuana.

This was the second time that Felon had been found guilty of a drug-related crime. The first conviction followed a June 28, 1979 federal grand jury indictment against him and six other individuals. Count I of that four-count indictment charged a conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, running from May 24, 1979 to June 4, 1979. Count IV charged Felton with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a) (1). Trial began on May 11, 1981, but was limited to Count IV because the government had dismissed the other three counts after the district court granted a suppression motion. Felton was convicted, and this court affirmed by Judgment Order on March 26, 1982. United States v. Felton, Nos. 81-2135, 81-2148 (3d Cir. March 26, 1982).

On May 13, 1981, while the trial was in progress, Pennsylvania state police found marijuana both in a warehouse leased by Felton in Kutz Industrial Park in McKees Rocks, near Pittsburgh, and at a private residence linked to defendants. Felton was arrested the next day as he entered the federal courthouse for continuation of his trial. He was charged under Pennsylvania law with conspiracy and substantive drug offenses.

On September 17, 1981, the state district attorney moved ex parte to dismiss the charges because the United States Attorney was undertaking the prosecution. When Felton, then in federal custody, learned of the state dismissal, he objected and alleged that his rights to a speedy trial were being violated. The investigation nevertheless was transferred to the United States Attorney.

Felton served his sentence for the 1979 charges and was released from prison on March 5, 1983. Twenty-six days later, a federal grand jury handed down a ten-count indictment, No. 83-49, against Felton and six others, including Bruce, Cox, Serrao, and Hathorn. These charges were based in part upon the seizure of marijuana at the Kutz Industrial Park by the state police on Mary 13, 1981. Count I charged a conspiracy to distribute marijuana lasting from early 1979 until May 13, 1981. Count II charged Felton with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Other counts charged possession of marijuana with intent to distribute. Still others complained of use of the telephone in violation of 21 U.S.C. § 843 (b).

Felton appeared before a federal magistrate on April 1, 1983, and was arraigned on April 11. With the exception of Cox, all other named defendants were arraigned by May 20, 1983.

The trial on this indictment began on April 1, 1985, two years after Felton's initial appearance before a magistrate. All defendants were convicted and sentenced. Felton received a general sentence of ten years on all counts; Bruce received a lesser sentence.

Before their cases came to trial, Felton and Bruce asserted that their rights under the Speedy Trial Act had been violated and demanded the indictment be dismissed. The district court denied their motions. Although Felton and Bruce have presented a number of contentions on appeal, we devote most of the discussion to the Speedy Trial Act issue.*fn1

I.

The Speedy Trial Act provides that "[i]n any case in which a plea of not guilty is entered, the trial of a defendant . . . shall commence within seventy days . . . from the date the defendant has appeared before a judicial officer of the court in which such charge is pending." 18 U.S.C. § 3161 (c) (1). Numerous exclusions, however, give flexibility to this facially rigid seventy-day period. See 18 U.S.C. § 3161 (h).*fn2 If the defendant is not brought to trial within seventy days, as augmented by allowable exclusions, the court must dismiss the indictment on motion of the defendant. 18 U.S.C. § 3162 (a) (2).

In the district court Felton argued that because the conspiracy alleged in the second federal indictment, No. 83-49, was the same as that charged in the first, No. 79-121, the speedy trial clock began to run in 1979, when he was arraigned on the first indictment. The district court agreed that at least Counts I and II of No. 83-49, the conspiracy and continuing criminal enterprise charges, related back to the first indictment. United States v. Felton, 592 F. Supp. 172, 182 (W.D. Pa. 1984).

A.

The district court discussed two justifications for denying Felton's motion to dismiss. Relying on United States V. Budzyna, 666 F.2d 666 (1st Cir. 1981), the court first concluded that the violation alleged in the 1983 indictment should be deemed a 1979 charge, for purposes of sanctions under the Speedy Trial Act because both indictments described the same conspiracy. 592 F. Supp. at 183. See 18 U.S.C. §§ 3162 (a) (2), 3163 (c).

Based on its characterization of indictment No. 83-49 as one of 1979 vintage, the district court held that, regardless of the amount of time that might have run on the speedy trial clock, no sanctions would apply. That analysis rested on § 3163 (c) of the Act, which provides that the sanctions "become effective and apply to . . . indictments filed, on or after July 1, 1980." 18 U.S.C. § 3163 (c). The court concluded that consistency required relation back not only of the violation alleged but also of the lack of sanctions available and therefore the indictment should not be dismissed.

In Budzyna, the Court of Appeals for the First Circuit held that the dismissal sanction was inapplicable to a superseding indictment filed after July 1, 1980. There, the original charges had been filed before the effective date of the mandatory dismissal sanction. The superseding indictment, however, constituted a mere amendment and related back to the earlier date. In that instance, it was not necessary to hold that a new indictment could relate back -- instead, the court decided only to allow retroactive effect to a superseding indictment that reformulated the earlier charges.

Because that circumstance is not present here, Budzyna does not apply. Indictment No. 83-49 was filed after July 1, 1980, and threatened Felton with jeopardy entirely apart from that presented by No. 79-121, for which his jail sentence had already been served. Indictment No. 83-49, which governs here, clearly falls within the purview of the plain language of the Act applying dismissal sanctions to indictments filed after July 1, 1980. Consequently, denial of Felton's motion cannot be based on the Budzyna approach.

B.

In the alternative, the district court accepted Felton's "tacking" argument that as to Counts I and II of No. 83-49, the beginning point for calculating chargeable time was the date on which the 1979 indictment was returned. After applying various exclusions permitted by the Act, the calculation established that only fifty-two days had elapsed under No. 79-121 and that no time was assessable under No. 83-49. Consequently, the time for bringing Felton to trial on counts I and II of No. 83-49 had not expired. In addition, because it determined that no days were chargeable against No. 83-49, the court held that the period for bringing Felton and Bruce to trial on all the counts of that indictment had not expired. United States v. Felton, 612 F. Supp. 599, 603 (W.D. Pa. 1985).

Defendants disagree with the district court's conclusion that no time was attributable to the 1983 indictment and focus specifically on the period between September 25, 1983 and April 24, 1984.*fn3

Felton makes two arguments in support of dismissal. He contends that No. 83-49 should be dismissed in its entirety because the statutory limit was exceeded. He also asks that Counts I and II of No. 83-49 be stricken because more than seventy days elapsed with respect to those charges when the non-excludable days of No. 79-121 are "tacked" to those under the 1983 indictment. Bruce joins Felton only in the first contention because she was not a defendant under No. 79-121 and therefore cannot assert a "tacking" claim.

II

The Speedy Trial Act lists certain delays that are excluded in calculating time chargeable against the seventy-day limit in § 3161 (c). Some of these are particularly applicable to pretrial proceedings.

A.

Section 3161 (h) (1) (F) excludes "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).

Thus, subsection (F) excludes time in two situations. First, if the court holds a hearing on the motion, all of the days between the filing of the motion and the conclusion of a hearing are excluded. See Henderson v. United States, 476 U.S. 321, 106 S. Ct. 1871, 1876, 54 U.S.L.W. 4494, 4496, 90 L. Ed. 2d 299 (May 19, 1986). Interpreting that provision, the Supreme Court has held that subsection (F) also excludes any time following the hearing that is required for filing briefs and additional materials necessary for proper disposition of the motion. 106 S. Ct. at 1877, 54 U.S.L.W. at 4497.

Second, if the court does not hold a hearing, subsection (F) excludes the period from the filing of the motion until the parties complete the submissions necessary for the court to reach a decision. 106 S. Ct. at 1876, 54 U.S.L.W. at 4496. See also S. Rep. No. 212, 96th Cong., 1st Sess. 34 (1979), reprinted in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, 113-15, Federal Judicial Center (1980).

Before the Supreme Court decided Henderson, other courts had held, as did we in United States v. Novak, 715 F.2d 810 (3d Cir. 1983), cert. denied sub nom. Arabia v. United States, 465 U.S. 1030, 79 L. Ed. 2d 694, 104 S. Ct. 1292 (1984), that the statute imposed a reasonableness limitation on the length of subsection (F) exclusions. See, e.g., United States v. Ray, 768 F.2d 991 (8th Cir. 1985); United States v. Mitchell, 723 F.2d 1040 (1st Cir. 1983); United States v. Janik, 723 F.2d 537 (7th Cir. 1983); United States v. Cobb, 697 F.2d 38 (2d Cir. 1982).*fn4

Three other courts had rejected the reasonableness criterion and held that subsection (F) excludes automatically and without qualification the entire period between filing the motion and conclusion of the hearing. United States v. Henderson, 746 F.2d 619 (9th Cir. 1984), aff'd, 476 U.S. 321, 106 S. Ct. 1871, 90 L. Ed. 2d 299 (1986); United States v. Stafford, 697 F.2d 1368 (11th Cir. 1983). Cf. United States v. Horton, 705 F.2d 1414 (5th Cir.), cert. denied, 464 U.S. 997, 78 L. Ed. 2d 689, 104 S. Ct. 496 (1983).

In Henderson, the Supreme Court resolved the conflict between the circuits. The Court stated that "the plain terms of the statute appear to exclude all time" from the filing through the hearing and the completion of post-hearing submissions "whether that hearing was prompt or not." 106 S. Ct. at 1874-5, 54 U.S.L.W. at 4496. The Court determined also that subsection (F) "does not require that a period of delay be 'reasonable' to be excluded." 106 S. Ct. at 1875, 54 U.S.L.W. at 4496.*fn5

After surveying the Act's legislative history, the Court commended: "Congress was aware of the breadth of the exclusion" in subsection (F) but expected that "any limitations" would be imposed by circuit or district court rules "rather than by the statute itself." 106 S. Ct. at 1875, 54 U.S.L.W. at 4496. The Court suggested that, consistent with Congress' intent, "'potentially excessive and abusive use of this exclusion [can] be precluded by district or circuit guidelines, rules, or procedures relating to motions practice.'" 106 S. Ct. at 1875, 54 U.S.L.W. at 4496, quoting H.R. Rep. No. 390, 96th Cong., 1st Sess. 10, reprinted in 1979 U.S. Cong. & Ad. News 805, 814. See also S. Rep. No. 212, 96th Cong., 1st Sess. 33-34 (1979).

B.

The district court in Henderson had adopted a local rule providing that "all pretrial hearings shall be conducted as soon after the arraignment as possible, consistent with the priorities of other matters on the court's criminal docket." 106 S. Ct. 1871 at 1880 n.2 (White, J. dissenting). The Henderson Supreme Court majority deferred to the court of appeals, noting "it found no violation of the rule." 106 S. Ct. at 1875 n.9, 54 U.S.L.W. at 4496 n.9. Actually, the court of appeals simply had noted the existence of local rules without quoting or discussing any of them. 746 F.2d at 623. The Supreme Court stated that "it would be useful in the future for circuit and district court rules to include specific time tables, thereby giving substance to the obligations of prosecutors and defense counsel under the Speedy Trial Act." 106 S. Ct. at 1875.

The District Court for the Western District of Pennsylvania, where Felton was tried, had adopted a rule with language identical to that discussed by the Supreme Court. The question then arises whether the local rule here acted as a limitation on the open-ended provisions of subsection (F). The language of the rule is general and vague. It gives neither guidance nor notice to either trial judge or counsel. "As soon . . . as possible consistent with the priority of other matters" provides neither beginning nor ending points for exclusion of time. The rule is no more helpful to the parties than the "reasonable" restriction imposed on subsection (F) by courts of appeals and rejected in Henderson.

Moreover, to give effect to the local rule here would be inconsistent with the Supreme Court's resolution of the issues in Henderson. It is significant that there, in rejecting the dissent's suggestion that the local rule filed the gap in subsection (F), the majority instead emphasized that district court rules should "include specific time tables." The same deficiencies in the local rule that existed in Henderson are present here. We are persuaded that fidelity to the spirit of the Supreme Court's holding in Henderson requires that we reject the notion that the precatory local rule at issue here must be read into subsection (F).*fn6

C

The defendants contend that Henderson should not be applied retroactively. We are not persuaded by this contention. Generally, an appellate court applies the law as it exists during the time of the appeal. United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L. Ed. 49 (1801). Even in situations where an exception is made and retroactivity is not imposed, the new decision usually is applied to cases then on appeal. United States v. Johnson, 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982); Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965). This case was on appeal when the Supreme Court decided Henderson, and on that basis also we hold that it does apply.

D.

Another motion practice provision that has some application to this case is 18 U.S.C. § 3161 (h) (1) (J), which excludes "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." Pretrial motions are included within the scope of subsection (J). See United States v. Hines, 728 F.2d 421, 426 (10th Cir.), cert. denied, 467 U.S. 1246, 82 L. Ed. 2d 831, 104 S. Ct. 3523 (1984); United States v. Janik, 723 F.2d 537, 543 (7th Cir. 1983); United States v. Horton, 705 F.2d 1414, 1416 (5th Cir.), cert. denied, 464 U.S. 997, 78 L. Ed. 2d 689, 104 S. Ct. 496 (1983); United States v. Stafford, 697 F.2d 1368, 1373 (11th Cir. 1983); United States v. Bufalino, 683 F.2d 639, 642 (2d Cir.), cert. denied, 459 U.S. 1104, 74 L. Ed. 2d 952, 103 S. Ct. 727 (1983). See also Henderson v. United States, 106 S. Ct. at 1876, 54 U.S.L.W. at 4496. Cf. United States v. Tertrou, 742 F.2d 538 (9th Cir. 1984).

If the motion is very simple or routine, Congress has cautioned that the period "should be considerably less than 30 days." S. Rep. No. 212, 96th Cong., 1st Sess. 34 (1979). But when multiple motions have been filed, some courts have concluded that the thirty-day limitation of subsection (J) does not apply inflexibly. See United States v. Anello, 765 F.2d 253, 257 (1st Cir.), cert. denied sub nom., Wendolkowski v. United States, 474 U.S. 996, 106 S. Ct. 411, 88 L. Ed. 2d 361 (1985); United States v. Tibboel, 753 F.2d 608, 611 (7th Cir. 1985). See also United States v. Janik, 723 F.2d at 544. In view of our disposition of this case, we need not, and do not, ...


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