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United States v. Novak

decided: August 25, 1983.

UNITED STATES OF AMERICA, APPELLEE,
v.
KATHLEEN NOVAK, CHARLES KIERECKI, RICHARD WARE, DEBRA MCGUIRE, JOANNE KOTOMSKI, PATSY ARABIA, ANTHONY EMANUEL, KAREN VANSACH; PATSY ARABIA, APPELLANT IN NO. 82-5515; RICHARD M. WARE, APPELLANT IN NO. 82-5516; DEBRA MCGUIRE, APPELLANT IN NO. 82-5526



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

Seitz, Chief Judge, Sloviter, Circuit Judge and Louis H. Pollak, District Judge.*fn*

Author: Seitz

Opinion OF THE COURT

SEITZ, Chief Judge.

I.

This is a drug conspiracy case presenting issues under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (1976 & Supp. III 1979). Appellants Arabia, McGuire, and Ware were among eight named defendants in an indictment charging a conspiracy to sell and distribute narcotics and various substantive offenses related to that conspiracy.

Appellants made various pretrial motions, including motions to suppress evidence and to dismiss the indictment under the Speedy Trial Act. The district court denied appellants' motions to suppress and to dismiss.Appellants then entered conditional pleas of guilty subject to their right to appeal the district court's denial of those pretrial motions. For the reasons set forth in the district court's memorandum order, we affirm the denial of the motions to suppress evidence. We address here only appellants' motions to dismiss under the Speedy Trial Act.*fn1

II.

The government filed an initial indictment against McGuire and Ware on October 8, 1981. It filed an initial indictment against Arabia on December 3, 1981. On January 28, 1982, Ware filed a motion to dismiss under the Speedy Trial Act; McGuire filed a similar motion the following day. The government filed a superseding indictment against Arabia, McGuire, and Ware, joining them with five other defendants on February 8, 1982. The initial indictments against appellants were dismissed on the government's motion on February 17, 1982. On February 25, 1982, the trial court granted McGuire's and Ware's motions to renew previously filed pretrial motions.

The charges against Arabia were severed from those against McGuire and Ware on May 24, 1982, when McGuire and Ware entered conditional pleas of guilty. No trial had begun on the charges against McGuire and Ware at the time they pled, 228 days after the original indictment was filed.*fn2 On June 8, 1982, Arabia filed a motion to dismiss under the Speedy Trial Act. Arabia was not brought to trial before July 20, 1982, when he pled, 229 days after the filing of the original indictment.

Under the Speedy Trial Act, criminal charges must be dismissed on defendant's motion, with or without prejudice, if various proceedings do not take place within a statutorily prescribed time. § 3162(a)(2). The defendant bears the burden of proof in support of his motion. Id. Section 3161(c) mandates dismissal if trial does not commence within 70 days of the later of the filing of the indictment or the defendant's first appearance before a judicial officer of the court in which such charges are pending, unless the excess days can be excluded under section 3161(h). The issue on this appeal is whether there was a violation of the Speedy Trial Act in this case.

III.

Arabia

Arabia was arrested on November 3, 1981 and appeared before the magistrate on November 4, 1981. On December 3, 1981, an indictment was filed,*fn3 charging Arabia and one other with conspiracy to possess with intent to distribute a quantity of the narcotic hydromorphone. The indictment also charged Arabia with the substantive offense of possession with intent to distribute a quantity of hydromorphone.

Arabia argues that the charges against him must be dismissed because no trial begun within 70 non-excludable days of the filing of the original indictment. The government argues that the 70-day period to trial is calculated from the filing of the superseding indictment and thus that the period had not expired at the time Arabia pled. The government argues in the alternative that Arabia pled within the 70-day period even if the time for trial were calculated from the filing of the first indictment. We will assume without deciding that the time within which trial must commence is calculated here from the filing of the first indictment.*fn4

The central dispute in this case concerns the number of days, if any, that are excludable due to pretrial motions. Section 3161(h)(1)(F) provides for the exclusion of "delay resulting from any pretrial motions." Applying subsection (F) to the facts of this case presents two issues. First, we must determine whether exclusion under subsection (F) requires a factual determination that the pretrial motions actually delayed the trial date. Second, if any excludable delay arises under subsection (F), we must determine the length of the permissible exclusion.

Arabia argues that no days are excludable under subsection (F) because the pretrial motions filed in this case caused no delay in the commencement of the trial. This causation argument has some appeal. If the pretrial motions did not actually delay the trial date, there seems to be little reason to exclude time from the 70-day period to trial. However, the legislative history of the Speedy Trial Act clearly indicates that Congress intended the exclusions under section 3161(h)(1)-(7) to operate without requiring a factual determination of causation.

In 1979, both the Department of Justice and the Judicial Conference submitted bills to amend the Speedy Trial Act.Both proposed amending section 3161(h)(1)-(7) to do away with the automatic exclusion and to substitute judicial discretion in its stead. S.Rep. No. 96-212, 96th Cong., 1st Sess. 33-34 (1979). Although Congress made significant amendments to the Act in 1979, it rejected that suggestion and left "intact . . . the automatic application of exclusions as provided in existing law." Id. at 33. Thus, we hold that any period of time covered by section 3161(h)(1)(F) is excludable regardless of whether the pretrial motions actually delayed the trial date. See United States v. Stafford, 697 F.2d 1368, 1371 (11th Cir. 1983) (rejecting causation approach); United States v. Cobb, 697 F.2d 38, 42 (2d Cir. 1982) (same); United States v. Brim, 630 F.2d 1307, 1311-12 (8th Cir. 1980) (same), cert. denied, 452 U.S. 966, 69 L. Ed. 2d 980, 101 S. Ct. 3121 (1981); R. Misner, Speedy Trial Federal & State Practice 268 (1983).

We must now determine the scope of the exclusion that section 3161(h)(1)(F) provides. The current language of subsection (F) provides that the period of excludable delay resulting from the filing of pretrial motions runs "from the filing of the motion through the conclusion of the hearing on or other prompt disposition of such motion." § 3161(h)(1)(F). Applying subsection (F) to the facts of this case, we must determine how many days are permissibly excluded under that provision, and whether those exclusions, combined with others provided for in section 3161(h), stopped the Speedy Trial clock long enough to forestall a violation of that Act.

On December 31, 1981, when Arabia filed the first pretrial motion, 26 non-excludable days of the 70-day period to trial had run.*fn5 That motion was a request for an extension of time within which to file pretrial motions. The district court granted the motion on January 4, 1982, creating 5 excludable days under subsection (F) from filing to "prompt disposition."*fn6 In addition to the causation argument rejected above, Arabia contested the exclusion of this period because his motion pertained to the original indictment. The appellant cannot have it both ways: if the Speedy Trial clock starts to run with the filing of the original indictment, it must stop for excludable delays pertaining to that indictment.

On January 6, 1982, Arabia filed additional pretrial motions, stopping the Speedy Trial clock after 27 non-excludable days. While these motions were pending, and before the government filed its response, Arabia was arrested in New Jersey on unrelated charges on January 8, 1982. Arabia remained in custody in New Jersey until May 14, 1982. The two days between January 6 and January 8 are excludable under subsection (F). Arabia properly concedes that the 127 days between January 8 and May 14, during which he was ...


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