Posted on March 10, 2010 by Anthony Lake

Bloate v. U.S.: Extensions of Time to File Pretrial Motions Not Automatically Excludable from Speedy Trial "Clock"

The United States Supreme Court has sped up the clock in criminal cases with consequences for how attorneys practicing federal criminal law will practice in the future. The Speedy Trial Act of 1974, 18 United States Code Section 3161 et seq., requires that the trial of a criminal defendant begin within 70 days of the date he is charged or makes an initial appearance, whichever is later. The Act, however, contains numerous periods of delay which are not counted when computing the 70 day time frame. Some of the periods of delay are “automatically” excluded from the 70 day time period, and are contained in Section 3161(h)(1). Other periods are only excludable if the district court makes specific findings, pursuant to Section 3161(h)(7), which provides that certain time periods “may” be excludable if the judge finds that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,”

One of the “automatic” exclusions is for “(D) 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 United States Code Section 3161(h)(1)(D). Courts traditionally read this provision to include additional time granted to defendants to file pretrial motions. Yesterday, however, the Supreme Court issued its opinion, authored by Justice Clarence Thomas, in Bloate v. U.S., No. 08–728, available here, in which the majority held that “delay resulting from pretrial motions is automatically excludable, i.e., excludable without district court findings, only from the time a motion is filed through the hearing or disposition point specified in the subparagraph, and that other periods of pretrial motion-related delay are excludable only when accompanied by district court findings.” (Emphasis in original).

Counsel for Bloate, who was indicted for possession of cocaine, had obtained an approximately one month extension of time to file pretrial motions, and subsequently filed a motion to dismiss the indictment for Speedy Trial Act violations. The district court held that the extension to file pretrial motions was excludable under Section 3161(h)(1)(D) and the Eighth Circuit Court of Appeals affirmed his conviction, however the Supreme Court reversed and remanded. The majority responded to criticisms by dissenting Justices Samuel Alito and Steven Breyer that its holding would force district courts to choose between denying requests for additional time to file pretrial motions and potential dismissal of the indictment, noting that courts may make specific findings that the time is excludable from the Speedy Trial computation under Section 3161(h)(7), and that, even if the indictment is dismissed without prejudice, the government may still re-indict the defendant.

Most criminal cases already move quickly precisely because of the Speedy Trial Act. Conversely, the cases may be complex, preparation of effective pretrial motions may require substantial time and criminal lawyers may be occupied on other cases. Extensions of time to file pretrial motions are a frequently sought remedy. In view of the Court’s holding in Bloate, practitioners now must consider the implications under the Speedy Trial Act in requesting necessary extensions of time. Lawyers will have to consider how any proposed extension should be excludable from the Speedy Trial clock in the interest of justice, and may be forced to agree or stipulate that any extension will be excludable.


 

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Posted on March 17, 2009 by Anthony Lake

Summary of Eleventh Circuit Criminal Opinions, Week of March 9, 2009

            As part of a new, ongoing weekly feature, following are summaries of relevant criminal decisions by the Eleventh Circuit Court of Appeals for the previous week. Only substantive opinions by the Court discussing criminal law will be covered—summary opinions and orders will not be listed.

In U.S. v. Watley, NO. 08-11768, 2009 WL 635185 (11th Cir., Mar. 13, 2009), a prosecution of the defendant for drug and firearm offenses, the Court affirmed the trial court’s admission of evidence of prior controlled drug buys not charged in the indictment, relying on the rule that “‘[e]vidence of criminal activity other than the charged offense is not extrinsic under [Federal Rule of Evidence] 404(b) if it is... necessary to complete the story of the crime, or [ ] inextricably intertwined with the evidence regarding the charged offense,’” id. at *2 (quoting U.S. v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004)). The Court also held that the district court did not abuse its discretion in refusing to compel disclosure of the identity of a confidential informant to the defense, finding that the CI was not involved in the events underlying the charges against the defendant, and that the CI’s proposed testimony would have harmed, rather than helped, the defendant. Id. at *3.

The Court in U.S. v. Strachan, No. 08-13949, 2009 WL 641225 (11th Cir., Mar. 13, 2009), held that it was not required to dismiss the defendant’s appeal of his sentence for various drug and firearms offenses despite a sentence appeal waiver in the defendant’s plea agreement where the record contained no transcript of the plea hearing and did not indicate that the defendant “clearly understood the consequences of his sentence appeal waiver,” id. at * 2. The Court proceeded to find that the district court did not discuss any of the sentencing factors under 18 U.S.C. § 3553(a) at sentencing and vacated the case and remanded for resentencing, observing that a sentencing court “‘need not make detailed findings with respect to each § 3553(a) factor, but the record must make it clear that it considered them.’” Id. at *2 (quoting U.S. v. Williams, No. 08-11361, at 5-7 (11th Cir. Feb. 9, 2009); U.S. v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997)).

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            In U.S. v. Brye, No. 08-12578, 2009 WL 637553 (11th Cir., Mar. 13, 2009), a prosecution for being a felon in possession of a firearm and ammunition, the Eleventh Circuit rejected the defendant’s arguments that the Second Amendment’s protection of an individual’s right to possess a firearm should apply to the defendant as a convicted felon and that the indictment should be dismissed, that the trial court erred in denying the defendant’s motion to strike the indictment’s reference to his five prior felonies as surplusage, that the trial court erred in denying the defendant’s motion to strike the jury panel based upon a venireperson’s prejudicial comments made in front of the other jurors, that the trial court erred in denying the defendant’s motion for mistrial based upon the government’s failure to provide all notes by a witness, that the trial court’s instruction to the jury regarding where the ammunition was found was erroneous, and that the trial court abused its discretion by declining to give the defendant’s requested jury instruction regarding guilt by mere proximity to contraband, id. at *2-*3.

In U.S. v. Grant, No. 08-13879, 2009 WL 637556 (11th Cir., Mar. 13, 2009); U.S. v. Hudson, No. 08-14176, 2009 WL 614785 (11th Cir., Mar. 12, 2009); U.S. v. Williams, No. 08-12360, 2009 WL 624073 (11th Cir., Mar. 12, 2009); U.S. v. Rochelle, No. 08-14868, 2009 WL 614779 (11th Cir., Mar. 12, 2009); U.S. v. Dean, NO. 08-13352, 2009 WL 585785 (11th Cir., Mar. 09, 2009), crack cocaine cases, the Court upheld its earlier holding that U.S. v. Booker, 125 S.Ct. 738 (2005) does not apply to post-sentencing reductions of a defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(2), id. at *1 (citing U.S. v. Melvin, No. 08-13497, 2009 WL 236053, *1 (11th Cir. Feb. 3, 2009)). Amendment 706 to the Sentencing Guidelines reduced the offense levels associated with certain crack cocaine offenses. Similarly, in U.S. v. Montgomery, No. 08-12233, 2009 WL 579276 (11 Cir., Mar. 09, 2009), the Court affirmed the district court’s denial of the defendant’s motion to reduce his sentence for a crack cocaine offense pursuant to § 3582(c)(2), holding that “[b]ecause Montgomery was sentenced as a career offender under U.S.S.G. § 4B1.1, the crack cocaine base offense level played no ultimate role in his sentence, and therefore, the district court correctly determined that Montgomery was not eligible for a sentence reduction pursuant to Amendment 706,” id. at *2.

The Court affirmed the defendant’s sentence in U.S. v. Jackson, Slip Copy, No. 08-12047, 2009 WL 641220 (11th Cir., Mar. 13, 2009), holding that “[m]itigating role adjustments are unavailable to career offenders sentenced under U.S.S.G. § 4B 1.1,” id. at *1 (citing United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003)).

 

The Court in U.S. v. Lee, No. 08-12570, 2009 WL 595995 (11th Cir., Mar. 10, 2009), found that the evidence was sufficient to sustain the defendant’s convictions for various drug offenses; that the defendant’s right to a fair trial was not violated where the government asked questions regarding a prior felony offense by the defendant in violation of a stipulation agreement, given the fact that the district court both sustained the defendant’s objection and instructed the jury about the limited purposes for considering a prior felony conviction; and that the defendant’s counsel was not ineffective for failing to object to inadmissible hearsay by a confidential informant, failing to move for judgment of acquittal or failing to move for a mistrial in response to the government’s questioning regarding the prior felony conviction, id. at *1-3.

In U.S. v. Grady, No. 08-13876, 2009 WL 585784 (11th Cir., Mar. 09, 2009), the first indictment against the defendant for cocaine offenses was dismissed under the Speedy Trial Act based upon delays by the clerk’s office, and the defendant was re-indicted and found guilty, id. at *1. The defendant appealed, arguing that the trial court should have dismissed the original indictment with prejudice, and the Court rejected this argument, noting, pursuant to U.S. v. Brown, 183 F.3d 1306, 1310 (11th Cir.1999), that, in cases of speedy trial violations, there is no preference for one type of dismissal over the other and courts must consider several factors in determining whether to dismiss a case with or without prejudice. Id. at *2 (citing 18 U.S.C. § 3162(a)(1); Brown, at 1310).
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