United States v. Mitchell Janik

lobby again into the he radi- stepping after FLAUM, Circuit Before POSNER and contact, team, making this time oed the GRANT, District Judges, Senior fol- come inside. Janik had told them to Judge.* and now asked lobby him into lowed answer- doing. he was Without him what POSNER, Judge. Circuit placed up against Janik ing, Heidemann from his conviction appeals Janik Mitchell opened then either he lobby, wall (a unregistered guns two possessing for lobby to admit the team or the door to the shotgun), and a sawed-off gun submachine own, being on their the door they entered 5861(d). The in violation of 26 U.S.C. § handcuffs on police put A officer unlocked. whether are questions appeal on principal agent ordered the head federal Janik but him exceeded the against proceeding the unless Janik was to be ar- them removed Act, Trial 18 Speedy in the time limits charges. Janik asked the on state rested the seq., et and whether 3161 U.S.C. §§ apart- come into his police and agents home violated guns in Janik’s seizure the they that would not be seen ment so Amendment. the Fourth handcuffs were removed The neighbors. Janik immediately or after in either before a sheriff Cook Coun- deputy Janik was come in. A brief the officers to Illinois, in the court asked assigned as a bailiff ty, to see Heidemann, apartment a was made friend search division. He told his was). (no it one else was in bought anyone a whether that he had Chicago policeman, Janik warnings Miranda receiving a man he knew to After gun submachine from and to to counsel right waivers of his signed Heidemann burglar, have a and asked been authorizing forms and consent Later Janik remain silent about this. anybody not to tell unregistered the for apartment in his a search of gun to see the invited Heidemann was then searched 1981, apartment 26, guns. The they March apartment, and on was found shotgun and the sawed-off police again in Heidemann’s together drove there a closet. bag a in gotten laundry in meanwhile car. Heidemann Alcohol, with the federal Bureau touch away guns agents took The federal Firearms, a team of Chica- and Tobacco how- police, The not arrest Janik. but did were agents federal go officers and police suspicion possess- ever, him on arrested building outside waiting concealment gun). (the submachine gun a stolen ing arrived. and Heidemann when Janik dropped but were later charges The state on 27, 1981, Janik was indicted on October the front door of Janik unlocked No- arraigned on charges. He was federal Heidemann entered building, and as he and 23 he moved to 4, on November the button in vember pressed Heidemann lobby * Indiana, designation. sitting by the Northern District Robert A. Grant of Hon. 542

suppress argument did, the evidence seized on March 26. Janik’s that it there abun- is hearing A on motion for was scheduled and we persuasive dant think case authority February 4,1982, changed and then Feb- an arrest does 30-day not start parties 5. When the showed ruary up period running a charge unless criminal is they told court lodged, and no federal criminal was charge re- had cancelled it it would be against lodged Janik until he was indicted. scheduled for a later date. In words Alfarano, United v. See, e.g., States 706 judge, appears district “The case 739, Cir.1983); (6th 741 United States F.2d slipped have into limbo following February Candelaria, v. 1129, 704 (9th F.2d 1131 Cir. 5, judge’s The minute clerk had 1982.” 1983); Sayers, v. and, gone maternity leave as the judge on 1128, (11th 1131 Cir.1983); United v. States “The court’s explained, new minute clerk Jones, 327, Cir.1982). joined the court’s staff late February over 1982. With well 400 cases on the The purpose of the Speedy Trial docket, is court’s hardly surprising Act to implement the Sixth Amendment’s in Janik inactivity was detected trial, 1021, to a right speedy S.Rep. see No. until mid-April.” hearing took place Cong., 1, 93d 2d Sess. Cong. U.S.Code & 3,May on April post-hearing the last 1974, Admin.News p. (1974), right August 6, brief was filed on designed limit the time during then took the matter under advisement. charges per criminal are over hanging But on November she ordered the hear- United unresolved, head States son’s see ing reopened to take testimony additional Marion, 307, 317-18, U.S. S.Ct. on when handcuffs had been removed 462, 30 (1971). L.Ed.2d 468 Therefore “no Janik, testimony and further tak- was Amendment right speedy Sixth trial en 2. on December on Finally, December charges arises until pending” against are 13, she denied suppress. the motion to Jan- MacDonald, the person. United States v. indictment, ik then moved to dismiss 456 U.S. 102 S.Ct. the ground that Trial Act had also (1982). L.Ed.2d See been violated. The motion denied. Samples, (7th Cir.1983). trial, trial, His a bench January was held on person a is After arrested and he is before 18, 1983, on the basis of the record of the arraigned criminal are charges hanging hearing, suppression parties as the him agreed. palpable The over sense even if he is judge found Janik and guilty sentenced him eight for free on prison months bond. But Janik was unconditional submachine, possession of the gun and ly custody released from federal immediate probation $2,000 five years and a fine of ly being after arrested no crimi federal possession of the shotgun. sawed-off charge nal against was filed him at Thus, time. until he arraigned was his The Trial Speedy required Act anyone situation was the same as that of government to indict days Janik within 30 who knows that he is target of a crimi him, after arresting 3161(b), 18 U.S.C. § investigation. nal The Act Speedy Trial which it did not ifdo his arrest on 26 March not protect does the man whose of peace counts. An by arrest state officers on state because, is though mind disturbed he is not charges does not start running of out charge under arrest or on bail and no Iaquinta, United States v. 30-day period. him, against he lodged likely has been is 260, 674 (4th Cir.1982); F.2d United charged. And if he but Wilson, was arrested States 755, 767 n. was being moments later without released Cir.1981). Janik’s detention in the lob booked, same, standpoint it is the from by group a that included federal as well Act, was, see, policies as as if he had state officers behind as we shall a arrest, federal been We would not but did not start the run never arrested. let ning period Although Act 30-day government either. circumvent releas a 3161(b) literal reading of section supports ing an on the eve of arraignment accused him; but that immediately rearresting 3161(h)(1)(F), eration with section which as happened is not what here. amended 1979 excludes “delay resulting motion, pretrial from the filing of Trial Act issue in The difficult through the motion the conclusion of the Jan- delay this case relates to between on, hearing or other prompt disposition of, 1981, 4, arraignment ik’s on November such motion.” The periods first two 18, 1983, January his trial on months 14V2 entirely within the interval later. The Act allows only days to the filing between of the motion and the trial, elapse arraignment between conclusion of the hearing, as re- 3161(c)(1),in time that U.S.C. addition to § opened did not conclude till December 2. is “excludable” from the computation phrase But the prompt disposition” “other under the delay various subsections of 18 implies the court may delay parties U.S.C. 3161. The that 42 agree § criminal trial indefinitely by deferring a days between the and the arraignment trial pretrial indefinitely. motion were not excludable. This leaves a “credit” not, government not, The does and could only days nonexcludable before the United contend otherwise. States v. See 70-day allowance would be exhausted. Cobb, 38, (2d Cir.1982); S.Rep. getting Some time consumed in Cong., No. 96th 1st Sess. U.S.Code excludable, clearly trial was and we can & Cong. p. (1979). Admin.News confine our attention to three periods It is hard to see how the disposition of may not been. The the period have first is Janik’s motion can be “prompt” called when 5, 1982, of 70 between days February when for more than two months the case was in the parties appeared suppression for the limbo, it, judge put as the because her of- hearing only to be told that it had been fice had neglected to reschedule a hearing cancelled, and April when a status con- parties for which both had shown up. The held, following ference was the new minute fact it was in limbo because of the clerk’s discovery that the case had been number of other judge’s cases on the docket during inactive period, to schedule may explain, but does not in a legal sense new hearing. The second was a excuse, delay. delays in bringing 5, 1982, 68 days September between criminal cases to trial that led to the enact- November 12. 3161(h)(l)(J) Section ex- ment of the Speedy Trial Act were due not cludes “delay reasonably attributable to any judges’ to federal district or will- being lazy period, not thirty days, during to exceed ful but to the congestion of their dockets. which any proceeding concerning the de- Nance, See fendant under advisement actually (9th Cir.1982); H.R.Rep. No. 93d court.” proceeding So far as the on the Cong., (1974). 2d Sess. 16 the Act Since concerned, suppress motion to that pe- explicitly rejects “general congestion of the riod ended on September the thirtieth court’s calendar” as a ground for an exclud- after the day last briefs were filed follow- continuance, 3161(h)(8)(C), able 18 U.S.C. § ing suppression hearing and the matter unlikely it is that meant Congress such con- was taken under advisement the district gestion ground to be a for excludable delay judge. day judge November was the when no continuance was The 70 granted. ordered the suppression hearing reopened. days of nonexcludable time allowed The third period comprises days the 31 be- Act, period legisla- chosen after extensive tween the reopen hearing order to deliberations, provide safety tive some mar- of disposition suppress. the motion to gin for the inevitable in a case slips getting If at least 29 days any periods of these to trial. excludable, were not the indictment must be dismissed. precise We can be more about

All of periods requirements prompt disposition three occurred in the in this 3161(h)(l)(J) of proceedings pretrial up course on Janik’s case. allows to 30 Section suppress, begin motion to so we our to be excluded while a matter days consid- is under the court. Although advisement time for deciding the motion Septem- ended subsection does not refer to pretrial motions ber 5. explicitly, argued so that can be We have treated the interval be (“prompt disposition”) subsection F is the tween November and December sepa only provision applicable delay in decid- rately First, for two reasons. it can be motions, ing such of F history refutes argued that the period from November 12 argument. 3161(h)(1)(E) Section of the (when the hearing reopened) was ordered original Trial Act excluded “delay (when December the reopened hearing resulting hearings pretrial mo- held) was was excludable under section tions,” provision but made no for the time 3161(h)(1)(F) as period between filing filing between the of the motion and the hearing motion, of and on a pretrial holding hearing, or between the fil- period that the from December 2 to Decem ing disposition of the motion and the (when ber 13 the motion finally denied) motion if no was held. The 1979 was a of less than 30 days length amendments E changed to F and added an during the motion was under advise requirement unconditional of prompt dispo- if, earlier, ment. But as noted the require supra, sition after filing, S.Rep. No. at ment prompt disposition in section

33-34, 40-41, but there was no intention of 3161(h)(1)(F) may not be circumvented by thereby enlarging 30-day period for indefinitely deferring the scheduling of the consideration of matter (including a hearing, no more may it be circumvented by motion) taken under advisement. The Sen- ordering the hearing reopened more than 30 ate Report explicitly states the use of days after the matter has been taken under “prompt disposition” words is not in- advisement. tended to permit circumvention of the 30- Alternatively it can argued day requirement in J —an observation that the district judge’s action ordering would make no sense if F (that motions the hearing reopened grant was the of a pretrial motions) were subject not also to J. continuance that created excludable time. Id. at 34. A contrary conclusion would It grant continuance, was indeed the of a allow the judge to take days more than 30 every but not continuance creates excluda to decide pretrial motions but not to decide Only ble time. continuances based on any other type submission, motion or “findings of justice ends ... out novel, difficult, however complex weigh the best interest of the public and issues it raised. This result would make no the defendant in a speedy trial” create ex- sense, and has United States rejected. been cludable time. 18 3161(h)(8)(A). U.S.C. § Raineri, (7th 670 F.2d Cir.1982); judge district findings made no such Bufalino, States v. when she ordered the hearing reopened. 642-44 (2d Cir.1982); United States v. And while the required findings need not be Cobb, supra, 697 F.2d at 43; entered at the same grant time as the DeLongchamps, continuance, see United States v. Cir.1982). If 30 days is too little to dispose Brooks, (3d Cir.1982), particular pretrial motion, there, cases cited here no findings were can grant a continuance either on his own made until the judge denied Janik’s motion motion or on that of counsel for either to dismiss the case for violation of the party. Speedy Trial may Act. That well be too Thus, from the time the district If judge gives late. the no indication that a judge took Janik’s motion under advisement granted continuance was upon a balancing after filing the of the last post-hearing specified factors by Speedy the Trial August briefs on 6 she had 30 days to Act until asked to dismiss the indictment decide it unless she granted a continuance Act, for violation of the the danger great is under 3161(h)(8)(A), section which she did every that continuance will be converted not do. Hence period the excludable retroactively of into a continuance creating party judge granted “if the such not the either time, clearly which is excludable findings the basis of his continuance But we need riot decide of the Act. intent justice by taking ends of served such the should be for the deadline this case what outweigh the best interest of the action by the findings required announcing the speedy and the defendant in a trial.” public opinion in her judge the district When Act. 3161(h)(8)(A). There must be 18 U.S.C. § discussed indictment to dismiss the refusing namely the a con- by judge, “action” taken 12 to December November the period tinuance, findings based on made ends-of-justice not make an she did grant- case never judge The in this judge. excluding Her reason analysis. primary time give to herself more a continuance ed under that it was excludable period this did, when Janik’s motion. She of dispose J, it was not. She F and which subsections indictment, make to dismiss she refused were period in this days that 11 say did had war- justice the ends of findings section excludable under alternatively already said delays, and we have ranted ends-of-justice which is the 3161(h)(8)(A), may the Act findings required by specified the same reasons “for provision, granted. after the continuance is be entered But period. of another in” her discussion granted must be But the continuance itself satisfy does by reference incorporation to be excluded period sought before findings specific requirement the Act’s pro- run. the Act does not begins to Since justified. exclusion is showing that continuances, retroactive vide for considered each Although we have Carlone, (7th 666 F.2d 1112 Cir. v. case for dismiss- separately, Janik’s delay grant could not an ‘ends 1981), judge “a stronger if is of course al of the indictment tunc, pro provid- nunc justice’ continuance Af- together. viewed periods three are for unau- justification the fact ing after into slip the case to having ter allowed Rather, ... the district delays. thorized months, judge more than two limbo for consider the matter at the out- must judge determined all the more should have been whether the ‘ends of and determine set within the suppress the motion to decide trial be postponed.” that the justice’ require decisions. allowed for such 30-day period at Brooks, supra, v. is, issue as we suppression Although Carrasquillo, 522. See United States see, complicated, the under- somewhat shall Cir.1981). A district (3d and the need for a simple were lying facts out violations wipe cannot be- emerged have further should by mak- they after have occurred Trial Act Indeed, with the up. days fore the 30 were justified that would have findings ing the apparent is hindsight benefit of continuance excludable-delay an granting hearing to reopen there was no need delay occurred. before time precise take further evidence on cites United States government removed; when the handcuffs Cir. Regilio, the reopened issued after judge’s opinion, ex- days to be 1981), permitted both as still hearing, treats were pending motions pretrial while cluded to her deci- and as inessential unresolved was attributable though delay even sion—which it was. no though and even a clerical error part government Against all this show that granted, had been continuance time “ends of general that otherwise nonexcludable argues recognizes court justice granting “the ends of ... not tied to the exception excluded if may justice” prag- there is a public Although interest of the outweigh the best of continuances. contin- prob exception trial.” The for such an speedy matic basis the defendant —a delay exclude have used to comes as we cannot be language lem is that this uance such oversight, because Act that allows clerical the section of the caused seen from unanticipated resulting definition delay delay “Any period exclusion of —the ar- at oral counsel admitted by any judge government’s granted from a continuance in the find no basis that he could gument of” request or at the on his own motion or structure for such an will much language greater Act’s be than if the first indict- judicial creativity. exercise of ment had not been dismissed. But it is not completely negligible sanction, a viewed significantly The facts of this case are from a standpoint, deterrent since the Regilio. those of After the different from grand jury refuse may to reindict and since the Act for the days disposi- allowed even if it does the may acquit- defendant be tion of a motion under advisement are ex- ted. important, Congress More in decided cluded, Regilio the nonexcludable time in 3162(a)(1), rightly U.S.C. or wrongly, § was 51 and since the defendant’s trial days, to make dismissal without prejudice one of days had been held within 40 nonexcludable the sanctions for violating Speedy Trial (besides question) the 51 in of his arraign- Act, and its is binding on us what- decision “overage” only ment the maximum ever we think of may its wisdom. It there- (40 + days 51-70), compared days to 141 fore will not do for a judge say, as the Regilio this case. Since does not cite sec- case, district said in this that she is 3161(h)(l)(J), tion may court not have denying a motion to dismiss the indictment this thought excess violated the re- for violation of the part Trial Act quirements Moreover, of the Act. the de- because if she granted the motion she Regilio fendant in filed not one but five would dismiss the indictment without preju- pretrial Multiple pretrial motions. motions dice and then the defendant would be worse had also been filed in off in the event that he was A reindicted. Brim, (8th Cir.1980), on judge may forgive a violation merely Regilio specifying relied. In time because the sanction that the legislature limits for the disposition pretrial mo- has provided silly. for the violation seems tions, the Act refers to one motion rather multiple than motions. If 30 of no- days determining In whether to dis delay assigned nexcludable had been to the miss with or prejudice, without “the court disposition pretrial of all the motions in consider, others, shall among each of the Regilio first, other than the the nonexcluda- following factors: seriousness portion ble days would have been offense; the facts and circumstances of the only days, which would not have been dismissal; case which led to the and the enough push Regilio over the 70-day impact reprosecution of a the adminis limit, since he had a credit. Fur- 30-day tration of this and on the administra [Act] thermore, pointed as out United States v. justice.” 3162(a)(1). tion of 18 U.S.C. § Bufalino, supra, 683 F.2d at 644 and n. in The reference to “the court” is to the dis both Brim Regilio multiple motions court, trict not the appeals, court of and it once, were not all filed at possible and it is is the district court that should therefore that at no single time was a motion under make the (subject determination of course advisement for days. more than 30 Our appellate review) unless the answer is so Raineri, decision in supra, clear that no purpose would be served Regilio F.2d at cites for the propo- remand to the district court. As it is now sition that 30 days is indeed the limit of years almost two since the defendant was delay excludable mo- deciding pretrial arraigned, may strong seem a case for tion under advisement. ordering prejudice. dismissal with But next logical against is wheth this factor must be set follow er the dismissal of Janik’s indictment ing facts: the defendant never manifested should be with prejudice. or without Dis desire to see the proceeding moved was; missal without that the prejudice meaning along any faster than it much of the — defendant can may seem a was due to a delay oversight, clerical held reindicted — rather strange violating mitigating sanction for stat to be a factor in United States v. Carreon, ute aimed at the in minimizing delay; if 533 n. 9 Cir. dictment is 1980); one, dismissed and the defendant and his offense was a grave then retried, delay punishable by reindicted and the total a maximum prison sentence

547 5871, purport he was does not a warrant in require ten 26 years, U.S.C. § such of case. Its guilty committing two framers were not worried found standard fenses. The Act’s multi-factored about searches without warrants. Tay- See lor, deciding whether dismissals shall be Two Interpre- for Studies in Constitutional without invites an exer prejudice (1969). with or tation 41 But the modern decisions thereby im judicial cise of discretion state over and over law again that enforce- appellate limited review. plies scope a ment officers must have a reason good for See id. Although at 534. the district warrant, getting not when the especially case stated that if there was a viola e.g., Payton v. See, is of the home. search York, tion of the Trial Act it would not New 573, 589-90, 100 U.S. S.Ct. prejudice, warrant dismissal with this con 1371, 1381-82, (1980). 63 L.Ed.2d 639 Once may clusion have been colored her view Heidemann was told Janik that an un- We, there was no violation. on the registered gun was lying disassembled on violation. contrary, have found a serious table, Janik’s kitchen there was nothing to the authorities prevent getting to be dis- If the indictment were certain warrant, search and no reason is offered remand, prejudice missed with thus bar- why gotten. guns one was not The were reindictment, ring we would have no reason home, moving seized Janik’s not appeal. to discuss the other issues in Janik’s vehicle or under other where circumstances reindietment is a we possibility But since the evidence might disappeared have before ought argu- to consider those of Janik’s a warrant could have been obtained. Nor if ac- accepted require ments that would was the seizure incidental to an arrest. The not his quittal: only argument agents federal did not intend to arrest Jan- prove guilt evidence was insufficient his ik, anyway he was released before ei- doubt, beyond argu- a reasonable but his gun ther was seized. The state officers did ment that the evidence seized in his apart- arrest him but did not seize the guns. ment should have With- suppressed. been out the evidence and the it he supplied leads Nevertheless, warrant no was True, acquitted. would have had to be required for the seizure of either of Janik’s evidence, guns were not but placed unregistered guns. seizure sub- were government testimony guns gun machine invaded no interest operable, testimony essential to convict Jan- protects. Fourth Amendment Under the ik, was based on run on the guns by tests view, majority opin older illustrated Alcohol, the Bureau of Tobacco and Fire- States, ion in Olmstead v. United 277 U.S. However, they arms after were seized. we (1928), 48 S.Ct. L.Ed. need not consider the on which question, protects property Fourth Amendment inter precedents in this circuit are in some ests in a narrow common law sense. Since Graham, United v. States disarray, compare moreover Janik invited Heidemann —who (7th Cir.1981), 638 F.2d with his police Janik knew was a officer —into Gamble, United States gun, see the Heidemann was not a home to (7th Cir.1973), 1276-77 whether the initial trespasser; gun and the seizure of itself search of the whether apartment see chattel, trespass to a because lawful; anyone there was else in it was inter property Janik did not have a lawful nothing against led to that was used Janik unregistered gun. Although est in the Jus at trial. view that the Fourth tice Brandeis’s rather than Although guns protects privacy not Amendment v. United see Olmstead warrant, pursuant just property, seized the Fourth States, 478-79, supra, at contrary popular belief— at S.Ct. U.S. Amendment — has of course (dissenting opinion), say required does not that warrants are 572-73 see, cases, e.g., Amend in the modern prevailed searches or seizures. The Fourth States, ment forbids unreasonable searches and sei Katz v. United U.S. S.Ct. (1967); 507, 19 zures and forbids warrants but it L.Ed.2d 576 general Kramer, Cir.1983), suspicion him on com arresting having crime; stays not Janik. A who help guest it does mitted a federal rather than state to which he part premises officers, light within the for it unclear to the was Ill.Rev.Stat.1981, 38, privacy, 24-2(c)(1), ¶ is invited does not invade his host’s ch. Cool laws, the cases discussed by as is shown Janik had violated the Illinois and gun 443, New idge Hampshire, v. 403 465- indication they U.S. there is no then intend 2022, 2037-41, him 72, possession 29 L.Ed.2d 564 ed to arrest for stolen 91 S.Ct. officers Because no ex (1971), arresting property. which allow to Illinois statute plicitly either a authorizes an Illinois officer to ar things' plain view without seize warrant, rest crime having not for a federal without a justification warrant or a _ Brown, Ill.Rev.Stat.1981, 38, ch. one. See also Texas v. see U.S. ¶¶ 2-12, 102-15, 107-2(1)(c), Janik arrest 1535, argues that _, (1983). 103 75 502 S.Ct. L.Ed.2d illegal. was help got The fact Heidemann officers in the submachine removing other State and federal in Illi officers United States gun make no difference. can work together nois often on apprehending White, v. 1178, 1183 Cir.1981). 660 F.2d (7th persons suspected crimes, of federal we yet only was invasion Not the incremental of know of no case where a court invalidated trivial, privi but if was privacy Heidemann arrest, or suppressed an evidence obtained to leged slip gun jacket underneath his arrest, of an as the fruit of such a person apartment he was leave we think officer an Illinois without a We warrant. to privileged police also have a escort to infer that Illinois officers au implicit have prevent interference by Janik. thority to make federal arrests. Cf. Swarovski, v. 40, (2d 557 43-49 up search that turned Cir.1977), reading broad of “of shotgun laundry bag sawed-off in a 28, Op.Ill.Atty.Gen. (June fense” in justified inviting closet cannot be by Janik’s 1982) to include a traffic It is violation. into Heidemann his kitchen to see sub- true that head federal agent told gun; is of machine but valid consent course Janik, police officers release but this does v. a for a warrant. Schneckloth substitute they not mean that did not least Bustamonte, have at 219, 218, 412 93 U.S. S.Ct. apparent authority They arrest him. (1973). L.Ed.2d 854 Janik acted on the basis of probable cause to argues involuntary consent was (and think he committed was continu he because was intimidated number commit) a ing they federal crime and by being officers and But handcuffed. when they released him were told that found, clearly erroneously, not agents federal did not want arrested. him precisely that whenever were handcuffs removed it was before he signed forms. But even if inval the arrest was custody Even statement is not given in law, the state id under state action of the Wiener, v. United States per involuntary, se arresting officers in Janik was an “un 15, 17 (2d Cir.1976), 534 F.2d Janik was seizure reasonable” under the Fourth longer in custody. no A enforcement law Washington See Fisher v. Amendment. himself, rights officer he knew his Metro Area Transit Authority, not have been except by could intimidated Surdy (4th Cir.1982); Street v. force, or by threats of which there is no ka, If the Cir.1974). hint. had arrested were agents federal Janik and consent, also even argues seeking justify shotgun

Janik that his if the seizure voluntary, arrest, if the fruit of a Fourth as an incident to that no Amendment violation ineffec- and therefore federal statute authorized them to make States, Wong tive, citing arrest, Sun United 371 such an then their if authority (1963). S.Ct. state law to U.S. L.Ed.2d under arrest Janik for federal issue, Heidemann be an Chicago When and the other crimes would because a search seizure, police they justified officers being handcuffed Janik or as incidental arrest, a lawful not make sure that its bore was smooth must be incidental to did to an DiRe, over merely betrays arrest. U.S. confusion what shot- See 222, 226, 92 L.Ed. 210 581, 589, 68 A gun shotgun gun S.Ct. is. with a smooth (1948). for the seizure of the But basis a bore that has not been rifled to bore: an The issue is not shotgun was not arrest. spin projectile way to the on its out impart wheth- there was a valid arrest but whether 5845(d). of the barrel. See U.S.C. § alleged er the misconduct the state offi- unregistered shotgun undoubtedly Janik’s Jariik for a federal crime arresting cers in and the statute does not shotgun was a seizure of the subsequent invalidated the its bore be smooth in the sense require that during a search that Janik consent- shotgun Janik’s counsel: free from dirt. argued by criterion for such misconduct is ed to. The that the evidence that argues only Janik federal, police and is satisfied here. The registered were not to him was a guns reasonably officers believed that federal agent’s testimony phone that a federal want Janik arrested once agents would Although showed them not to be. check had confirmed that Janik had Heidemann gun the Bureau’s certification that neither they an and therefore unregistered weapon, into registered put was to Janik was not even reasonably arresting acted in him evidence, there content testimony was its they turned out to be mistaken and though enough, that was at least in com- good and not) we think may (though have exceeded phone bination with the evidence of the under state law. authority their Knop, check. Cf. United event, consent to In Janik’s 670, (7th Cir.1983). 672-74 not a fruit of the arrest. The search was remaining Janik’s contentions are too in- evidence indicates that Janik invited the require only substantial to discussion. The into his group agents apart and officers error we find is the denial of the motion to but ment not because he had been arrested dismiss the indictment for violation of neighbors because he did not want Act, Speedy requires Trial but that error them, because, that Heide knowing see and the case judgment that the be reversed and him, he knew the betrayed jig mann had consist- proceedings remanded for further causally The arrest was not relat up. opinion. ent with this Circuit Rule 18 shall ed to the events that followed. apply. The last we need discuss is Reversed and Remanded. enough whether there was evidence to con vict Janik a reasonable doubt of beyond FLAUM, concurring in the Judge, Circuit weap an automatic possessing unregistered result. (the an gun), unregister submachine claims that his shotgun, capable being ed sawed-off both The defendant in this case Act, (On the see under the Trial 18 U.S.C. operated. required operability rights 660, violated Woods, (1982) (“Act”), 664- United States v. §§ (5th Cir.1977) post-indictment both (shotgun); by pre-indictment Firearms, argues the defendant delay. Specifically, Seven Miscellaneous time between his F.Supp. (D.D.C.1980) (automatic weap 216-day lapse ons).) on March and his indict- Although guns placed were not “arrest” evidence, 27, 1981, Act. in there violated the was abundant evidence of ment on October that, in com- they judge hap what were and unless the The defendant also contends pened seventy-day period firearms between ar- knowledgeable puting be about by trial allowed having raignment them shown to her would not have Act, excluding court erred in helped they her determine what were. Jan the district (1) January time major lapses: ik told Heidemann that he had fired the two (the period during gun, enough April submachine which was to show failed to schedule that was that in which the district court operable. complaint it (2) hearing); Septem- firing shotgun suppression test the Bureau’s testers 5,1982, (the that, peri- ber to December make clear excluding in time be- during od which the trial court had the filing tween and disposition pa- on the motion to under ad- suppress defendant’s pers, the Committee does not intend to advise- thirty-day visement excess permit circumvention of 30-days, “un- (cid:127) Act). ment allowed After provision der advisement” contained facts, reviewing procedural agree all the I (h)(l)(J). Indeed, Subsection if motions majority with the that the post-indictment simple or they are so routine that do limit delay exceeded the that is seventy-day require hearing, necessary advisement Yet, I allowed the Act. while concur in time should considerably less than result, I cannot adopt majority’s does the days. Nor Committee intend trial to the speedy analysis applied post- as that additional time be made eligible case, indictment and I write delay1 exclusion date postponing separately approach. set forth my disposition beyond or other of the motions It is clear that the Act a maximum allows reasonably what is necessary. seventy days pass arraign- between 96-212, S.Rep. Cong., No. 96th 1st Sess. ment trial.2 Excludable from this sev- (1979). legislative This history reveals that enty-day period resulting is from “delay Congress intended the “other phrase pretrial motion, any filing from the of the prompt to the disposition” apply to only motion the of the through conclusion hear- a pretrial situations where motion is decid on, of, or ing prompt other such disposition filed, papers hearing. ed on the without a motion.” 18 3161(h)(1)(F). U.S.C. This § Report The Senate also indicates Congress’s First, is ambiguous section in two respects. if that, hearing intent or disposition other the “other phrase prompt disposition” is not beyond is what nec postponed reasonably is Second, it explained or defined. is unclear time of essary, postponement the be cannot whether “the hearing” conclusion of a is a the computation excluded from sev of the of type “prompt disposition” and thus has maximum limit enty-day arraign between time restrictions. In light ambigui- of this Relying ment and trial. on legislative ty, explanation an of appearing this section Second history, the Circuit has enunciated 1979 in a Senate Report is instructive: following rule, the useful adopt: which I 3161(h)(1)(F) provides exclusion [Section ] of period delay allowable excludable “[T]he time filing of from to the conclusion of a pretrial motion auto applicable begins hearings disposition” on or prompt “other the matically making with of the motion any motion. language This later is and runs time that is ‘rea provide intended to point at time sonably necessary’ hearing to conclude a or excluded, will cease to be where motions the submission complete are decided on of the matter papers filed without hearing. In the court for decision.” using “prompt the words disposition”, Cobb, 38, 44 intends to (2d committee 697 Cir.1982).3 F.2d Accord pre-in- Although majority 1. The defendant’s contention that 3. cites to the Senate delay 3161(b) dictment Report, violated section of the confines itself to the face of merit, agree is Act without hearing and I with the statute and determines whether majority’s point. discussion on this “prompt.” conflicting this case was For a in- statute, terpretation plain meaning of the Stafford, 1368, 3161(c)(1) provides: States v. 2. Section see United 697 the Act F.2d Cir.1983), (11th court, by 1373 where plea guilty In case in which a of not is “reasonably considering necessary” lan- entered, charged the trial of a in an defendant guage Report only by looking in the Senate information or indictment commis- with statute, to the face concluded “there sion of an offense shall commence within requirement 3161(h)(1)(F)] is no [§ seventy days filing (and from the date mak- hearing promptly.” held See also United ing public) indictment, of the information or 1138, Campbell, States v. 706 F.2d 1143 n. 12 & appeared or the date the has defendant Cir.1983) Stafford, (11th (reaffirming de- but judicial before a officer of the in which court clining reach the there whether charge pending, such whichever date last upon is a ex- “reasonableness” limitation occurs....

551 Smith, United States 217, F.Supp. 563 trial court improperly excluded the period (D.Md.1983). September 5, 1981, between and December 13, 1981, the date on which the motion was present case, In the sup- the motion to denied. press 23, was filed on November 1981. Be- 23, 1981, 22, tween November and January Courts number of circuits have ruled 1982, failed, attempted, counsel to draft but 3161(h)(l)(J) section operates to ex stipulated facts for the trial court use in clude thirty days of the time during which a ruling upon 22, motion. On January pretrial court has a motion under advise 1982, government acknowledged that (the period ment after dealing briefs the effort had pretrial failed and that a with a pretrial motion have been submitted hearing was necessary. hearing hearing, and the if any, See held). has been 1982, scheduled for February 4, and then Bufalino, United States v. 639, _ rescheduled for the day, next 5. February denied, cert. (2d Cir.1982), U.S. The trial court cancelled the on hearing _, 727, 103 S.Ct. (1983); L.Ed.2d 952 5, February and the parties were told that United v. DeLongchamps, States the hearing would be rescheduled (11th Cir.1982); United States v. court for a later I date. find that the Scott, F.Supp. 990, (W.D.Va.1983). postponements of the until hearing up Feb- Until this court had never discussed 5 were ruary reasonably necessary. After Then, the issue.5 in v. Rain February the case became lost in an ed, Cir.1982), cert. administrative shuffle and was found by denied, 103 S.Ct. U.S. the trial court’s new minute clerk in mid- (1983), L.Ed.2d 601 this court cited to sec April. A status took place April 3161(h)(1)(F) tions (J) that, & in deciding 16. This significant period of indefinite magistrate where a pretrial motions postponement cannot be deemed reasonably under advisement for seventy-nine days, it necessary. The trial court thus erred was reasonable to only thirty exclude of excluding this delay from the computation those days from the computation of the of the seventy-day allowable limit between allowable seventy days arraign between arraignment and trial. Furthermore, ment and trial. in addition to the thirty days excludable under section The next contested period delay began of 3161(h)(l)(J), is clear that the statute after both parties their post- submitted allows further exclusion for time any that is hearing briefs. The defendant contends granted through continuance, provided day that the on which the briefs were sub- judge grantfs] that “the such continuance mitted, August 6, 1982, began the period on the basis of his findings that the ends of during which the trial court had the motion justice by served taking such action out under advisement. The defendant further weigh the best interest of the public argues since, that under section the defendant in a speedy trial.” 18 U.S.C. 3161(h)(l)(J) Act,4 only thirty of days 3161(h)(8)(A). § this period were excludable from the com- putation of the seventy-day allowable time present case, In the trial court took the, trial, limit between arraignment the suppression motion under advisement pretrial resulting elusion of proceeding concerning motions in hear- the defendant is actu- ings). ally under advisement the court. 3161(h)(l)(J) provides: 4. Section Regilio, 5. In United States following period!] delay of shall be ex- (7th Cir.1981), denied, cert. 457 U.S. computing cluded in the time within which (1982), 102 S.Ct. 73 L.Ed.2d 1350 this filed, an information or indictment must be only 3161(h)(1)(F) court determined that § computing or in the time within which the specify days “does not the number of excluda any trial of such offense must commence: prompt disposition pretrial ble for motions.” applicability No mention was made of the delay reasonably any period, attributable 3161(h)(l)(J). § thirty days, during not to exceed 6,1982, day on on which the last an exclusion section August vary under this will was filed. on from case In post-hearing brief Based to case. United States v. supra, Edwards, Raineri and the other cases cited I (D.C.Cir.1980), 627 F.2d 460 following thirty days find that trial court granted sponte a continuance sua 3161(h)(l)(J). excludable under section Ac- after it was that counsel for informed one cording judge, to the the motion trial con- of the was ill codefendants and that September 5, tinued under advisement prosecutor conflicting had a trial schedule. until November when the explanation The court made no the rec- ' hearing reopened ordered the so as to later, ord until a when month it simply clarify the factual at issue. events Memo- noted these two during reasons status 18, 1983, randum January Order of at 6. call. The District of Columbia Circuit Yet, there is no evidence in the record that found that listing this reasons for the trial during period court made a continuance adequate to exclude the motion sponte, for a continuance sua or time continuance under section hearing, called a status or contacted case, 3161(h)(8)(A). present In the the trial parties know to let them that the advise- court hearing held a status on November 12 ment period had been extended. The lack that, explained parties to both in order of such me activity accept causes motion, to rule on the suppression she need- majority’s conclusion section interrogate ed to further one of the wit- 3161(h)(8)(A.) apply period does not to the nesses on the issue of removal of the 5, 1982, between September and November Transcript defendant’s handcuffs. at 198. 12, 1982, lapse and that this time was not The majority recognizes that this hearing computation excludable from the of the al- served to continue case I formally. find lowable period between ar- seventy-day further that the judge’s explanation at the raignment and trial. hearing was similar to set forth Edwards, trial court in and it met the re- however, I disagree, with the majority’s quirement, 3161(h)(8)(A), under section ruling that the period between November the trial court set the reasons forth 12, 1982, when the was ordered finding justice ends served 13, 1982, reopened, and December when the granting a outweigh continuance the inter- denied, motion was was not excludable un- Thus, ests in a speedy trial.6 der section 3161(h)(8)(A). This section ex- between November and December cludes time that is granted through a con- 2, 1982, reopened when the court the hear- tinuance, long as as the trial court “sets forth, ing testimony, and took further case, in the the exclud- record of either orally 3161(h)(8)(A).7 or in able under section Further- writing, for finding its reasons that more, 3, 1982, the from until justice ends of the December Decem- by granting served 13, 1982, such ber outweigh when the court denied the continuance the best in- motion, public again terests of the and the the had the defendant court once motion speedy Congress trial.” under precise clearly The verbal formula- advisement. Since tion that is in order for*a district intended that such necessary periods excludable court to make proper support the record to from the of the computation seventy-day Arguably, majority 6. 7. the trial court’s statement of the states that the continuance inadequate granted hearing reasons for a continuance is under at the 12 status November did 3161(h)(8)(A) § because it does not show that not create time because the district excludable actually weighed justice the court the ends of findings court did not make the ends of find, against speedy however, I trial interests. justice outweigh speedy trial interests. While I that the status called the trial court recording findings concede that the of such case, emphasized in this at the court optimal pre- would have been would be significance of the coercion issue to the resolu- case, ferred I do not read motion, suppression tion of the was a sufficient 3161(h)(8)(A) mandating as these find- § performed indication that court ings be recorded. necessary weighing process. the Act does and since period,8 allowable period to one judge limit a specifically SKK, Barry Schrager, INC. motion, each I find of advisement for Plaintiffs-Appellants, 3, 1982, to De- December under sec- 13, 1982, was excludable cember 3161(h)(l)(J).

tion GROUP, INC., SYSTEMS CAMBRIDGE al., Defendants-Appellees. et delays of the nonexcludable light In 5, 1982, accrued, first, February between 83-1654. No. second, between April 12, 1982, 5, 1982, November September Appeals, United States Court limit as seventy-day I conclude that Circuit. Seventh 3161(c)(1) was exceed- section prescribed by 20, 1983. Argued Oct. majori- I concur with the ed in this case and I trial violation. finding speedy of a ty’s Dec. 1983. Decided majority’s examination turn now to court will factors that the trial the three this case deciding whether

consider preju- with or without

should be dismissed statements accept majority’s

dice. I factor, severity first

regarding the remaining regard With

the offense. however, factors, views differ from my

two First, the facts and majority.

those of the of this case reveal that once

circumstances the mis-

the trial became aware of case, took immediate she

placement hearing.

steps suppression to schedule

Also, delay contested was the re- the next review the trial court. scrupulous

sult of periods neither of the two contested

During bring delay

did the defendant Second, the defend-

attention of the court. prejudice

ant has shown no caused concluded that his

delays, and it cannot be by reprosecu- prejudiced

defense would be

tion. accept majority’s I discussion

Finally, case, except

of the other issues in this of the defend- legality In view of our determination

ant’s arrest. the defendant’s consent to search arrest, apartment

his was not a fruit the ar- legality examination of the unnecessary.

rest is supra

8. See note 4.

Case Details

Case Name: United States v. Mitchell Janik

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 22, 1983

Citation: 723 F.2d 537

Docket Number: 83-1469

Court Abbreviation: 7th Cir.