United States of America, Plaintiff-appellant, v. Nikolas Severdija, Luis Alfonso Marquez-brito, Juan Israelhernandez-linares, Reyes Ruiz Valdez, Defendants-appellees, 723 F.2d 791 (11th Cir. 1984)

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U.S. Court of Appeals for the Eleventh Circuit - 723 F.2d 791 (11th Cir. 1984) Jan. 23, 1984

Stanley Marcus, U.S. Atty., Jon May, Robert J. Bondi, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.

Linda L. Carroll, Miami, Fla., for Nikolas Severdija.

Hugh J. Behan, Asst. Federal Public Defender, Miami, Fla., for Luis Alfonso Marquez-Brito.

Kathleen Hamilton, Coral Gables, Fla., for Juan Israel Hernandez-Linares.

Paul M. Korchin, Miami, Fla., for Reyes Ruiz Valdez.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

In this case the Government appeals the district court's dismissal with prejudice of an indictment against four defendants because of a delay in trial which was held to violate the Speedy Trial Act, 18 U.S.C.A. Secs. 3161-3174. We reverse the dismissal and remand the case for trial because, taking into consideration the number of days properly excludable for computation purposes, the 70-day speedy trial period had not expired at the time the motion was granted.

The Speedy Trial Act, 18 U.S.C.A. Sec. 3161(c) (1), requires that a defendant be tried within 70 days of the filing of the information or indictment, or of the date the defendant first appears before a judicial officer of the court in which the charge is pending, whichever occurs later. In this case the indictment triggered the 70-day speedy trial period. The four defendants were arrested aboard a vessel on or about October 27, 1981, and appeared before a judicial officer on November 1. On November 9, 1981, they were indicted by a grand jury for possession with intent to distribute a controlled substance and conspiracy. 21 U.S.C.A. Secs. 955a(a), 955c; 18 U.S.C.A. Sec. 2. The indictment was later than the appearance before a judicial officer, so the period begins with the November 9 indictment.

The 70-day period does not mean 70 consecutive calendar days, however. The Speedy Trial Act sets forth certain periods that are to be excluded in computing the time within which the trial must be commenced. The parties differ essentially on whether certain pretrial motions and proceedings were excludable. Section 3161(h) provides that periods of delay resulting from or reasonably attributable to the following events relevant to a proceeding are excluded from the computation:

"other proceedings concerning the defendant ..." 18 U.S.C.A. Sec. 3161(h) (1);

"any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion," id. Sec. 3161(h) (1) (F);

"any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court," id. Sec. 3161(h) (1) (J);

"when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted," id. Sec. 3161(h) (7).

These statutory exclusions must be applied to the events in this case, which are listed and discussed here in chronological order. The chart at the end of this case shows these events and whether they are excluded from the 70-day calculation.


According to these calculations, there were 27 excludable days and 67 includable days between the indictment on November 9, 1981, and the court's ruling on the motion to dismiss on February 10, 1982. The includable periods were (1) between indictment and Severdija's Motion to Reduce Bond (14 days); (2) between arraignment and the December 1 pretrial motions (5 days); (3) between the court's rulings on December 3 to the Renewed Motions on September 9 (5 days); and (4) between the order granting Valdez's Motion to Adopt and the Motion to Dismiss (43 days). The 70-day period of the Speedy Trial Act had not expired on February 10, 1982, and the Motion to Dismiss was improperly granted.