813 F.3d 117
2d Cir.2016Background
- In April 2010 police executed warrants at apartments tied to Warren Love and found drugs, firearms, ammunition, body armor, and mail linking Love and co-defendant Tina Holley; both were arrested.
- Love and Holley were indicted in June 2010; after Holley later pled guilty and cooperated, the government superseded Love’s indictment in November 2011.
- The government filed two motions to set a trial date (Sept. 30, 2011 and July 23, 2012); Love moved to dismiss under the Speedy Trial Act (STA) on Aug. 10, 2012, challenging only the exclusion of time while those motions were pending.
- At trial (Dec. 3–7, 2012) Love was convicted on multiple counts; the district court denied his STA dismissal motion. Love appealed.
- On appeal Love additionally argued (for the first time) that delays attributable to joinder with Holley and various ends-of-justice continuances were non-excludable; the government contended those arguments were waived.
- The Second Circuit held Love waived the joinder/ends-of-justice challenges for failing to raise them specifically below, and concluded that—even if the motion-to-set delay exclusion were incorrect—no STA violation occurred because total non-excludable delay remained under 70 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether delay while government motions to set trial were pending is excludable as "pretrial motion" time under STA §3161(h)(1)(D) | Love: those days were non-excludable because the motions were not "pretrial motions" for STA purposes | Govt: those delays were excludable; district court treated them as such | Court did not decide the merits because, even if excluded days were wrongly excluded, total non-excludable time <70 days; no STA violation |
| Whether delays due to joinder with co-defendant Holley and associated ends-of-justice continuances were excludable under STA §3161(h)(6) | Love: those joined-delay periods and some continuances were non-excludable | Govt: Love waived these arguments by not raising them specifically in the district court; they were properly excluded | Court: Love waived these claims for failure to raise them specifically below; cannot be considered on appeal |
| Whether raising new STA grounds for dismissal for the first time on appeal is permitted | Love: reply brief gave enough notice to preserve joinder/continuance claims | Govt: reply was too vague; did not place court or government on notice | Court: reply language insufficient; preservation requires specific grounds—statutory waiver applies |
| Whether overall STA violation occurred | Love: cumulative non-excludable delay exceeded 70 days if challenged periods are counted | Govt: accounting shows under 70 days once properly excluded periods applied; Love waived several challenges | Court: even assuming motion-to-set days non-excludable, total non-excludable delay was 62 days; no STA violation |
Key Cases Cited
- Shellef v. United States, 718 F.3d 94 (2d Cir. 2013) (standard of review for preserved STA claims)
- Abad v. United States, 514 F.3d 271 (2d Cir. 2008) (statutory waiver for failing to move to dismiss in district court bars appellate review)
- Taplet v. United States, 776 F.3d 875 (D.C. Cir. 2015) (failure to specify grounds in motion to dismiss waives those grounds on appeal)
- Loughrin v. United States, 710 F.3d 1111 (10th Cir. 2013) (defendants must raise specific STA grounds below or waive them)
- Gates v. United States, 709 F.3d 58 (1st Cir. 2013) (same: specificity requirement for preserving STA claims)
- O’Connor v. United States, 656 F.3d 630 (7th Cir. 2011) (declining to entertain new STA arguments raised only on appeal)
- Zedner v. United States, 547 U.S. 489 (2006) (defendants have primary incentive to spot STA violations)
- Barbour v. City of White Plains, 700 F.3d 631 (2d Cir. 2012) (vague statements insufficient to preserve an argument for appeal)