Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Freddie Lee HARRIS, Defendant-Appellant.

No. 89-30344.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1990.Decided June 25, 1990.



The appellant, Freddie Lee Harris, raises four contentions in this appeal from his conviction and sentence for conspiracy, possession with intent to distribute cocaine, and possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(A) (1), (b) (1) (B) (ii) (II), and 846.

The first contention is that the trial court committed reversible error when it denied Harris' motion to dismiss in which Harris argued that the indictment was untimely under the Speedy Trial Act, 18 U.S.C. § 1361(b). Harris contends that his arrest by state police on November 4, 1988 triggered the running of the 30-day period required for indictment under 18 U.S.C. § 1361(b). Harris was not placed in federal custody, however, until December 7, 1988, a date within the 30-day period. Although Harris contends that the date of state arrest controls because of state involvement in the investigation, this court has consistently held that "regardless of the degree of federal involvement, only a federal arrest will trigger the running of the 30-day time period under section 3161(b)." United States v. Redmond, 803 F.2d 438, 440 (9th Cir. 1986), cert. denied, 481 U.S. 1032 (1987); United States v. Manuel, 706 F.2d 908, 915 (9th Cir. 1983); United States v. Adams, 694 F.2d 200, 202 (9th Cir. 1982), cert. denied, 462 U.S. 1118 (1983). Harris' original indictment, therefore, did not violate section 3161(b).

The second contention on appeal is that the district court erred in holding that the superseding indictment was timely under the Speedy Trial Act. Although the superseding indictment was not filed within 30 days of Harris' arrest, we nonetheless find it timely because the original indictment, indicting Harris on the charge contained in the complaint, came down within the 30-day period. See United States v. Heldt, 745 F.2d 1275, 1279-80 (9th Cir. 1984).

Harris' third contention is that the district court should have suppressed evidence found pursuant to a search warrant which did not comply with Fed. R. Crim. P. Rule 41(a). The warrant, however, was a state warrant secured pursuant to a state investigation. State officers conducted the investigation, obtained the warrant from a state judge, and made the arrest. See United States v. Piver, No. 89-30164, slip op. 3601, 3603-04 (9th Cir. April 11, 1990) (search by Portland police was a state search where Portland police conducted the investigation, secured a warrant from a state judge, and discovered and seized the evidence which led to the defendant's federal drug conviction). Rule 41's federal requirements, therefore, do not apply. Id., slip op. at 3604; United States v. Crawford, 657 F.2d 1041, 1046 (9th Cir. 1981). Harris argues that our holding in United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987), renders Rule 41 applicable to state searches which result in federal prosecution. We recently rejected this argument. Piver, slip op. at 3604-05.

Harris' fourth contention is that the district court erred in sentencing him on the basis of possession of more than 500 grams of cocaine. The district court's factual finding is supported by the evidence which showed that the net amount of cocaine in the bag seized from Harris was 324 grams. Harris had been seen in possession of more than 500 grams on two occasions and possessed cash representing proceeds of sale of more than 400 grams of cocaine.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3