Appeal from an order of the United States District Court for the Western District of New York, John T. Curtin, J., dismissing with prejudice the indictment against defendant Cobb on the ground that defendant had not been brought to trial within the time limit required by the Speedy Trial Act, 18 U.S.C. § 3161 et seq.. Reversed and remanded.
Van Graafeiland, Pierce and Pratt, Circuit Judges.
Only one issue is presented on this appeal: whether Judge Curtin erred in refusing to exclude from the speedy trial calculation 27 days between defendant's oral motion to suppress evidence and the date other periods of excludable delay took effect. If that time is not excluded from the calculation, then as Judge Curtin held, the Speedy Trial Act's 70-day limit for bringing defendant to trial was exceeded, and the indictment was properly dismissed. If that time is excluded, as the government contends it must be, then the allowable 70-day time period did not expire, and dismissal of the indictment was improper.
On July 2, 1981 defendant John Malcolm Cobb, IV, having been previously convicted of a felony, was arrested while entering the United States from Canada by agents of the Bureau of Alcohol, Tobacco and Firearms who found a gun and ammunition in his truck. Cobb was taken before a United States magistrate who released him on bail. Nearly two weeks later, on July 15, 1981,*fn1 the grand jury returned an indictment charging him with interstate transportation of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
On July 27 Cobb appeared again and was arraigned by the magistrate, who granted him an "ends of justice" continuance pursuant to § 3161(h)(8) of the Act to permit him to retain an attorney. Ultimately, the magistrate assigned counsel to Cobb on September 9 and excluded from the speedy trial calculation the 45 days between arraignment and assignment of counsel.*fn2
The problem underlying this appeal began on October 27, 1981 when counsel appeared at the first status conference before Judge Curtin. After asking that a trial date be set, Cobb's attorney said,
App. at 13.*fn3 When the government did not object to the suggested procedure, the court scheduled jury selection for November 23,*fn4 indicating that it would then set a convenient time for trial. Because Cobb was an over-the-road trucker the court sought to accommodate his schedule, and it granted permission for Cobb to absent himself from the jury selection and appear only for the trial. The government's attorney asked if "the suppression hearing would be held at that time when he appears for trial." The court responded, "When he came for trial, we would have the hearing." Cobb's attorney agreed to the arrangements, indicating, "that is fine, your Honor." App. at 15.
Counsel next appeared before Judge Curtin on November 23, 1981, the date scheduled for jury selection. Because Cobb was sick and unable to go to trial, the court postponed the suppression hearing until January 5, 1982, ruling that the period from November 23 to January 5 was excludable time attributable to Cobb's hospitalization. In addition, Cobb's attorney moved to dismiss the indictment, claiming a violation of the Speedy Trial Act. After an evidentiary hearing, Cobb's motion to suppress was denied on January 5, and the court asked for further briefs on the speedy trial issue. The remaining time until dismissal of the indictment on March 11, 1982, 535 F. Supp. 112, was excluded because of the pending speedy trial motion. The parties agree that the time from November 23 to dismissal of the indictment is all properly excluded. They disagree over whether the pending pretrial motion to suppress evidence required exclusion of the 27-day period from October 27 to November 23.
Judge Curtin granted defendant's motion to dismiss. Noting that the exclusion of § 3161(h)(1) applies to "any period of delay resulting from pretrial motions", App. at 8, Judge Curtin pointed out that the suppression motion had not "occasioned any delay of the trial" but that instead, "the delay was due to an error in computation on the part of the United States Attorney", an error which was due to "mere inadvertence" and which did not indicate any bad faith on the part of the government. Id. at 9. Finding the remedy for violation of the Act to be clear, the court dismissed the indictment with prejudice.*fn5
As presented by the government, "the sole issue in this appeal concerns the speedy trial status of a 27-day period between October 27, 1981, the day on which defendant Cobb moved to suppress his post-arrest statements, and November 23, 1981, the day on which the suppression hearing was postponed due to Cobb's illness." Reply brief at 1. The government argues that the plain language of the statute, its legislative history, and the applicable case law, all support an "automatic" exclusion for pending pretrial motions and militate against the causation analysis adopted by Judge Curtin.
Defendant relies heavily on the Revised Plan for Prompt Disposition of Criminal Cases for the Western District of New York which, he contends, grants the trial judge discretion to determine whether the pendency of a particular motion should be excluded from the time calculation. Relying also on the specific language of the Act, and some references to the legislative history, defendant argues that the causation analysis by the court below is supported by common sense and good judgment.
Under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, a defendant is entitled to have the charges against him dismissed if he is not brought to trial within 70 days, unless the excess days are excluded from the time computation. §§ 3162(a)(2), 3161(c), and 3161(h). Authorized exclusions are listed in § 3161(h). Our task is to determine whether the time during which defendant's suppression motion was pending must be excluded from the speedy trial calculation under subsection (F) of § 3161(h)(1).
We begin, of course, with the language of the statute. Section 3161(h) now provides
(h) The following periods of delay shall be excluded in computing the time within which * * * the trial * * * must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to --
(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt ...