*1 America, STATES UNITED
Plaintiff-Appellee, (91-6309) Rena MORAN Alamia
Irvin (91-6310), Defendants- Morales
Appellants. 91-6309, 6310.
Nos. Appeals, Circuit.
Sixth 17, 1992. Nov.
Argued July
Decided Rehearing Suggestion
Rehearing and Sept. Denied Banc
En *2 open,
the door Hughes strong smelled a marijuana. that he odor identified as point, Hughes At this called Officer Du- crest to the scene and told him about thé marijuana. odor of Officer request- Ducrest permission truck, ed to search the and Mor- Collins, Cynthia Atty. (argued J. Asst. U.S. Meanwhile, an consented. got Moran into briefed), Atty., and Office Mem- Hughes’ patrol car. When Officer Ducrest TN, phis, plaintiff-appellee. for truck, got to the he heavy noticed the scent of air freshener that seemed to have been briefed), Craig (argued William Hall sprayed immediately before point. The TN, Memphis, defendants-appellants. for only person who could applied spray Morales, passenger who remained in the KENNEDY, MARTIN, Before: throughout seat Despite incident. the air JONES, Judges. Circuit freshener, Ducrest detected the odor of raw marijuana. searched, When the truck was MARTIN, Jr., F. Judge. BOYCE law enforcement officials found several duffel Irvin Alamia Moran and Rena Morales bags containing pounds a total of 160 appeal possession their convictions for of marijuana. bags were located in the marijuana with intent to distribute. Both passenger area behind the seats. Moran and the district court’s deni- Morales were then read their rights Miranda suppress al of their motions to evidence and placed under arrest. of their motions to dismiss the indictment 27, 1989, On November a- criminal com- Speedy plaint against was filed Morales and Moran. seq. et § Morales also contends that A grand jury federal returned a one-count sufficient evidence does not exist sustain against indictment both defendants on De- judgment his conviction. vacate the We cember 11. The charged indictment them the district court and remand the case for aiding abetting each in other dismissal of the indictments with directions possession with intent marijua- to distribute to determine whether the indictments should 841(a)(1). in na violation of 21 U.S.C. On prejudice. be dismissed with or without 10, 1990, January Moran and Morales were 27, 1989, Ducrest, On November David J. arraigned, and subsequently the'trial was Deputy Shelby County, Sheriffs Tennes- 20. The court later see, operating stationary radar device continuance to allow the defendants to file to monitor eastbound traffic on Interstate 40 scheduling motions and to avoid radar, According near Airline Road. January conflicts for Moran’s counsel. On Moran drove Ducrest in a Nissan truck 24, Moran filed a motion to evi- speed with tinted at a sixty-three windows dence found the vehicle. Morales filed a per fifty-five miles miles-per-hour hour motion to the same evidence on zone. Ducrest Lanny contacted Officer February 5. The district court conducted an Hughes by patrol radio in a car and asked evidentiary speeding. him to the truck for By May denied both motions on 11. 1991, both Moran-and Morales filed motions Hughes, When Moran noticed Moran to dismiss the indictments violation of the pulled got over and out of the to talk to truck Speedy Trial Act. These motions were de- Hughes the officer. noticed that the pickup May jury nied on 28. A convicted both guard had struck the rail pulled when Moran July defendants on being After off the road but that Moran showed no con- September sentenced on both defendants regarding possible damage cern to the truck. timely appeals. filed The officer then asked Moran for evidence of registration. the truck opened a door Trial Act sets time limits on passenger, Morales, and asked the Rena prosecution bringing a case to trial give registration him the documents. arraignment When or indictment. 18 U.S.C. indictment). day prior arrésted statute is purpose seq. The et seventy- arraignment the Sixth effective make quantify “to Consequently, Id. period. speedy day trial.” right Amendment bring Moran required to *3 States United 476 v. United Henderson seventy of within to trial 1878, 299 L.Ed.2d Morales 90 333, 106 S.Ct. arraignment barring the The J., dissenting). December (1986) (White, delays. any other excludable date that: provides Act is guilty plea of not in which any case In delay excluded of periods particular Two in charged entered, of defendant trial the Moran at issue. court are district the the com- or indictment information al- of time challenge the exclusion Morales commence shall offenses- of an mission of part motions filing pretrial lowed filing date seventy days within hearing the time between the or of the information (and public) its court issued the district the date (cid:127) defendant indictment, date the fromor the On Janu- to ruling motions on the of officer judicial appeared has that court announced ary the district pending, charge is such in which court the file fifteen to give the would occurs.... last date whichever undisputed that under It motions. is pretrial 3161(c)(1). § 18 U.S.C. 3161(h)(1)(F), speedy-trial the § 18 U.S.C. filed a “periods running when Moran stopped certain permits clock The statute computing January motion be] [to ... must the that district the trial contend which Morales time within the 3161(h). cir the § One not it excluded when 18 U.S.C. erred court commence.” period is seventy-day but filed also motion was which after cumstance time resulting “delay any by the district allowed prior specifically is duration time tolled motion, of such motions. any pretrial preparation for the court period conclusion through the Therefore, is whether the motion of, disposition on, preparation prompt other hearing or court for district .the allowed 3161(h)(1)(F). § ques- U.S.C. motion....” is excludable. motions “delay reason time in this circuit. excludable yet Another been answered has tion exceed period, not ably attributable denying the order court district In any proceeding during days, the indict- motions dismiss defendants’ actually under concerning the Seventh noted ment, court the district by the court.” advisement v. States conclusion Circuit’s begin 3161(h)(1)(J). trial does If § (7th Cir. 1064-65 Barnes, F.2d amount additional days or an seventy within filing of 1990) for the time provid the exclusions allowed time decision The Barnes is excludable. in 3161(h), or indictment by section ed holding in States on the based motion of be must dismissed formation Cir. 152-53 Montoya, 827 prejudice. defendant, or without held 1987). Montoya, the Seventh de 3162(a)(2). court The U.S.C. by the district court period the indictment whether termines clock speedy-trial stops the filing motions prejudice- because without with or dismissed the defen- unless motions deadline until whether to evaluate position in the best it is it has allocated the court dant informs ends serve properly reprosecution and that potential too much time Richmond, 735 justice. United concern proceed without case should 208, 217 pretrial motions. any possible casé, the In the Cir the Seventh disagree with indict from the date to run We began period expressly ex The statute Mentz, conclusion. cuit’s See United ment. filing of the period “from the only the Cir.1988) cludes (holding that sev the conclusion motion [pretrial] run at begins to period enty-day time disposition on, prompt or other hearing the defendant indictment date of, 31.61(h)(1)(F). such motion.” post-hearing .18 U.S.C. its memorandum. thirty- provide day 3161(h)(l)(J) does not that a statute benchmark in section re- .quires district court for prompt disposition of the motion motions is to be excluded from the is held and the district has Moreover, seventy-day computations. the' supplemental filings received all to avoid re- should not starting burden be on the defendant to speedy-trial Mentz, clock. steps keep take speedy- affirmative F.2d at 326. running. trial clock we determine argues United States forty-two days elapsed non-excludable tolling speedy-trial computation con December 1989 and between tinued until *4 because the statute does twenty-eight- 1990. This calculation leaves explicitly apply not the thirty-day limit to day period in which the defendants had to be pretrial consideration of motions. Unit The
tried.
ed States
adopt
contends that we should
speedy-trial question
The other
is Seventh
question.
Circuit’s riilé on the
In
many
seventy-one days
by
how
of the
taken
Tibboel,
v:
court
district
to rule on the
to
motions
(7th Cir.1985), the court held that the maxi
suppress
are not
excludable.
Section mum
days
thirty
number
excludable
is'
3161(h)(1)(F)
the fil
excludes
days in a ease with
pretrial
numerous
mo
'
ing
disposition
aof
motion to the
tions but
is whatever
days
number of
period
tolling
motion. This
necessary
reasonably
make
to
prompt deci
speedy-trial clock includes time after a hear
However,
sion.
merely
Tibboel
created an
ing on a motion
when
district court is
exception that extends the
beyond
time limit
waiting
supplemental
filings from the
thirty days in cases with multiple motions
necessary
disposition
that are
require
additional
time for consider
the motion. Henderson v. United
case,
ation. In
only'two motions,
321, 330-31,
1876-77,
U.S.
90 pertaining
suppression
to
of the same evi
Morales,
(1986).
L.Ed.2d 299
Moran and
dence, are at issue. We do not believe that
(h)(í)(J)
claim that 18 U.S.C. 3161
does not
the district court
thirty
needed more than
delays beyond thirty days
exclude
after the
days
Moreover,
to deliberate.
the United
disposition
motions.
Section State's
us to invoke the
excep
asks
Tibboel
3161(h)(1)(J)
excludes from the
tion
pleadings
number of
in
computation any “delay reasonably attribut
case,
volved in the instant
rather than the
any period,
thirty
able to
not to
days,
exceed
number of
motions as
Tibboel. Even
during
any proceeding
which
concerning the
though
eighteen
the district court
plead
had
actually
by
under advisement
address,
ings to
basically
each of these items
added).
(emphasis
the court”
“A motion is
suppression
involved the same issue:
‘actually under advisement’
‘the
court
acquired
evidence
at the time of
Un
arrest.
papers
receives all
reasonably
ex
circumstances,
der these
we do not believe
”
_’
Mentz,
pects
(quoting
find the evidence of Morales’ sufficient seat level. support to his conviction. checking speeds scope
While
traffic
of
sufficiency
with station-
our review of
of
ary
1989, Shelby
radar on November
inquiry
evidence is narrow. Our
County,
Deputy
reviewing
Tennessee Sheriffs
David
“whether after
the evidence in the
pickup
light
Ducrest clocked a Nissan
truck
prosecution,
at
most
favorable to the
not, however,
approval
justice
I do
wish to indicate
February
of
in the ends of
continuance of
"grandfather”
attempt
"allowing
Court’s
to
1990 were
aof motion to
time taken to
continuity
rule on the motions to
(emphasis
of counsel.”
added)
previous
under the
upon
ends of
exclusion
The continuance based
these factors
difficulty
only
1990. The
with
extended
until the motions
filed
were
attempt
justifying
scheduling
this
at
exclusion of the
counsel’s
difficulties were resolved.
excluding
that a continuance
time must be
retroactively expand-
based
A continuance cannot be
actually motivating
year
on the factors
the continu-
ed—over a
later—to include new factors
1985);
ance.
