The opinion of the court was delivered by: LORETTA PRESKA, District Judge
Defendant Enrique Carlos Mora moves pursuant to the Speedy
Trial Act, 18 U.S.C. §§ 3161 and 3162, for an order dismissing
the indictment against him with prejudice. The instant dispute
arises from the application of two provisions of § 3161(h) (1)
that relate to the time that may be excluded following submission
of a pretrial motion. Defendant argues that the Speedy Trial Act
was violated because only 30 days were excludable pursuant to §
3161(h) (1) (J) following full briefing of his pretrial motion.
The Government contends that the entire period following the
filing of the motion is excludable pursuant to § 3161(h) (1) (F).
For the reasons set forth below, Defendant's motion is granted in
part and denied in part. BACKGROUND
On May 19, 2004, Enrique Carlos Mora ("Mora" or "Defendant")
appeared before Magistrate Judge James C. Francis following his
arrest. On June 3, 2004, a grand jury returned an indictment
charging Mora with one count of receiving and distributing child
pornography in violation of 18 U.S.C. § 2252A(a) (2) (B) and one
count of possessing child pornography in violation of
18 U.S.C. § 2252A(a) (5) (B). Mora was arraigned on the indictment on June
16, 2004. At the arraignment, time was excluded from calculation
under the Speedy Trial Act until June 28, the date set for the
first pretrial conference. Thus, 13 days passed on the Speedy
Trial Act clock between the issuance of the indictment and
arraignment. At the June 28 conference, time was excluded until
August 9, the date for the next status conference. On August 9, a
status conference was held at which time was excluded until
September 22, the date set for the next pretrial conference. The
September 22 conference never occurred. On October 6, the
conference previously scheduled for September 22 was rescheduled
for November 4, and time between October 6 and November 4 was
excluded from calculation under the Speedy Trial Act.
Consequently, an additional 14 non-excludable days elapsed
between September 22 and October 6.
During the November 4 conference, counsel for Defendant
indicated to the Court his intention to file "either one or two" motions. Govt. Opp. Memo., Ex. A.*fn1 The parties agreed to the following
briefing schedule: Defendant would file his motion(s) on or before December
10; the Government would submit its opposition brief on or before December
27; Defendant would submit his reply, if any, by January 3, 2005. Govt. Opp.
Memo., Ex. A. Counsel for Defendant indicated to the Court that one of his
potential motions may require a hearing; the other would not. Govt. Opp.
Memo., Ex. A. Both counsel agreed to contact the Court for a hearing or oral
argument. At the conclusion of the conference, time was excluded from
November 4 through December 10 in the interest of justice to allow defense
counsel to prepare his pretrial motion(s).
On December 9, counsel for Defendant submitted a letter requesting that
the deadline for filing motions be extended to December 17 and that the
Government be given until January 3 to respond.*fn2 The request was granted
and time was excluded until December 17.*fn3 Defendant moved to suppress physical evidence on December 17.
The Government submitted its brief in opposition to Defendant's
motion on January 3, 2005. Defendant did not file a reply brief.
Neither party requested a hearing in their briefs, nor did either
party contact chambers with such a request.
On April 18, 2005, Defendant moved to dismiss the indictment, alleging
that 108 non-excludable days had elapsed since the issuance of the
indictment. The Government submitted its opposition on April 29, contending
that only 27 non-excludable days had elapsed and, therefore, that the
indictment should not be dismissed.
The Speedy Trial Act requires that a defendant be tried within
70 days of "the filing date (and making public) of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs."
18 U.S.C. § 3161(c) (1). Certain periods of delay are excludable from this
calculation under § 3161(h). Relevant to the instant motion are §
3161(h) (1) (F) ("Subsection (F)") and § 3161(h)(1)(J) ("Subsection
Subsection (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). Subsection (J) 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."
18 U.S.C. § 3161(h)(1)(J). The question raised by this case is the extent to
which Subsection (J) limits the time that should be excluded from
calculation under the Speedy Trial Act following the filing of a
pretrial motion for which a hearing is never held.
The Court of Appeals addressed this question in United States
v. Bufalino, 683 F.2d 639 (2d Cir. 1982).*fn4 There, the
Court considered facts similar to those of the instant case.*fn5 The
Government argued to the Court that Subsections (F) and (J) should not be read together because Subsection (J), which imposes
the 30-day limit on proceedings under advisement by the court,
refers to proceedings other than those related to pretrial motion
practice. Id. at 642. In response, the Court observed that
while "a cursory reading of the two subsections lends some
support to the government's position, a careful look at the
legislative history of the Speedy Trial Act and its 1979
amendments makes that theory untenable." Id. After extensively
citing the relevant House and Senate reports, the Court of
Appeals concluded that the legislative history "make[s] it clear
to us that the term `proceeding' in subsection (J) was very much
intended to encompass pretrial motions." Id. at 643.*fn6
In so holding, the Court found that should "the 30-day limit place an unduly harsh burden on a trial judge, it is always open to
him to find that the interest of justice is best served by granting a
continuance under § 3161 (h)(8) for the excess period." Id.
Four years later, the Supreme Court observed that "Subsection
(F) excludes time in two situations. The first arises when a
pretrial motion requires a hearing . . . [t]he second situation
concerns motions that require no hearing and that result in
`prompt disposition.'" Henderson, 476 U.S. at 329. For those
motions requiring a hearing, subsection (F) excludes the entire
period between the filing of the motion and the conclusion of the
hearing.*fn7 Id. The Court held that for motions that do
not require a hearing, "the `point at which time will cease to be
excluded, is identified by [S]ubsection (J), which permits an
exclusion of 30 days from the time a motion is actually `under
advisement' by the court." Id. (quoting S. Rep. No. 96-212, at
34 (1979)). This rule captures the express intent of the Senate
Committee on the Judiciary, which stated:
`In using the words `prompt disposition', the
committee intends to make it clear that, in excluding
time between the filing and disposition on the
papers, the Committee does not intend to permit
circumvention of the 30-days, `under advisement'
provision contained in Subsection (h)(1)(J). Id. The Supreme Court and the Court of Appeals have thus made
clear that pretrial motions not requiring a hearing should be
decided within 30 days of a court having taken such motion under
advisement.*fn8 Two ...