Appeal from judgment of conviction entered in the United States District Court for the Southern District of New York, Thomas P. Griesa, J., after conditional guilty plea to charge of possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). Appellant claims that he was denied his statutory right to a speedy trial under 18 U.S.C. § 3161 et seq., contends that he was arrested without probable cause and that certain evidence should therefore be suppressed, and complains that the prosecutor's conduct deprived him of his right to due process. Affirmed in part and remanded in part for further findings on the speedy trial claim.
Feinberg, Chief Judge, Friendly and Newman, Circuit Judges.
Charles Simmons appeals from a judgment of conviction, entered in the United States District Court for the Southern District of New York, before Judge Thomas P. Griesa, after appellant's conditional guilty plea to the charge of possession of heroin with intent to distribute, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A). In pleading guilty, Simmons expressly reserved his right to appeal both the denial of his motion to dismiss under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and the denial of his motion to suppress certain evidence. He was then sentenced to five years imprisonment and a three-year special parole term. For the reasons stated below, we remand for further findings on appellant's Speedy Trial Act claim and affirm as to his remaining claims.
On March 28, 1984, appellant Simmons and two others, Albert Thrower and Robert Moore, were arrested in connection with the sale of a small quantity of heroin to an undercover police officer. The following day, Simmons appeared before a United States Magistrate on a complaint charging him with possession of heroin with intent to distribute. The complaint was sworn to by arresting officer William Grogan, who asserted that the undercover officer told him the following: The undercover officer approached two men (Moore and Thrower) on the street and asked where he could buy "a half," which is a package of heroin that sells for $20. The two men told the undercover officer to wait outside a game room while they went outside. The officer watched them go into the game room and engage in a brief conversation with Charles Simmons. (According to testimony elicited at the suppression hearing, the game room had both a glass window and a glass door.) Moore and Thrower then left the game room, returned to the undercover officer and handed him a glassine envelope containing what later proved to be heroin. Shortly thereafter, the undercover officer described Simmons, as well as Moore and Thrower, of officer Grogan. Grogan then went to the game room and arrested Simmons, discovering six glassine envelopes of heroin in Simmons' possession.
Simmons was indicted in three counts on April 9, 1984, subsequent to his appearances before the Magistrate. Accordingly, section 3161(c)(1) of the Speedy Trial Act mandated that Simmons' trial begin within seventy days of April 9, unless time was excluded pursuant to 18 U.S.C. § 3161(h). On June 14, 1984, Simmons filed a pretrial motion asserting that he had been arrested without probable cause and that the heroin found in his possession and certain pretrial statements should therefore be suppressed. The speedy trial "clock" was thus stopped after sixty-five days had elapsed.*fn1 18 U.S.C. § 3161(h)(1)(F). The return date of the suppression motion was June 28; on June 29 the government requested and, with the concurrence of defense counsel, was granted until July 3 to file a reply. The government did not file its response until July 13, to which Simmons replied on August 1. On August 21, the government filed its response to Simmons' August 1 letter.
One month later, at a pretrial conference held on September 21, 1984, the district court scheduled a hearing on the suppression motion for October 2. At the same conference, Simmons' counsel stated his "intention to file a motion to dismiss for violation of the Speedy Trial Act." After the parties orally recounted the timing of the relevant motion practice, the district court noted that "nobody moved like lightning, but nobody was really dragging their feet." And while the court stated that it did not think the Act had been violated, it also suggested the possibility of "further discussion of a Speedy Trial motion" after the suppression hearing.
After an additional delay of a week at the instigation of the court for reasons unexplained in the record, the suppression hearing was held on October 9, 117 days after the motion to suppress was filed. Over defendant's objection that the undercover officer should testify, the government presented the testimony of Grogan, the arresting officer. The defense called no witnesses in support of the motion, relying principally on an affidavit submitted by Simmons with the motion to suppress and on post-arrest statements made by Moore and Thrower exonerating Simmons. At the close of the October 9 suppression hearing, the district court denied Simmons' motion, concluding that the arrest had been supported by probable cause.
On October 10, the court and counsel further discussed the speedy trial question. Although both the court and the government apparently assumed that "four or five days" still remained on the speedy trial clock, the court never expressly denied appellant's motion to dismiss. On October 12, Simmons entered a plea of guilty to Count Three of the three-count indictment, which charged him with possession of heroin with intent to distribute. He expressly conditioned his plea on the right to appeal both the denial of the suppression motion and the denial of the motion to dismiss under the Speedy Trial Act. Simmons was sentenced on December 7, 1984, and this appeal followed.
On appeal, Simmons argues that (1) he was not brought to trial within the time limits of the Speedy Trial Act and his indictment must therefore be dismissed;*fn2 (2) his arrest was not supported by probable cause and the district court therefore erred in denying his motion to suppress; and (3) the prosecutor "intimidated" potential defense witnesses, depriving Simmons of his due process rights.
When Simmons filed his motion to suppress on June 14, 1984, just five days remained on his seventy-day speedy trial clock. The motion was denied on October 9, 1984, and three days later, on October 12, Simmons entered his conditional guilty plea. Simmons' speedy trial claim turns on whether the period from June 14 to October 9 is excludable pursuant to 18 U.S.C. § 3161(h)(1)(F), which 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." If the entire period is excludable, as the government contends it is, then Simmons pled guilty on the sixty-eighth day of his speedy trial clock, and the Speedy Trial Act was not ...