United States v. Spagnuolo

United States Court of Appeals
For the First Circuit

No. 03-2312

UNITED STATES OF AMERICA,

Appellee,

v.

GERARD SPAGNUOLO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

H. Ernest Stone for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

November 21, 2006
 LYNCH, Circuit Judge. The Speedy Trial Act (STA), 18

U.S.C. §§ 3161-3174, is generally concerned with two periods of

delay: delay in bringing an information or indictment after arrest

and delay in commencing trial after information, indictment, or the

defendant's first appearance. This case involves a speedy

indictment claim.

The Act proscribes delay of more than thirty days in

bringing an information or indictment, measured from the date the

individual was arrested or served with a summons as to the charges.

Id. § 3161(b). Extensions of this thirty-day period may be granted

for reasons enumerated in § 3161(h).

The Act also requires, subject to exceptions and

extensions, that the trial of a defendant who pleads not guilty to

an information or indictment commence within seventy days from the

filing date of the information or indictment, or from the date the

defendant first appeared before a judicial officer of the court in

which the charge is pending, whichever date last occurs. Id. §

3161(c)(1); see Henderson v. United States, 476 U.S. 321, 322

(1986).

The "[t]ime limits and exclusions" for both speedy

indictment and speedy trial claims are set forth in § 3161, which

is so captioned. In turn, § 3162 bears the caption "[s]anctions"

and governs remedies for violation of the Act. The remedy for

violation of the time requirements is dismissal of an indictment

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either with or without prejudice, depending on the consideration of

several statutory factors. 18 U.S.C. § 3162(a)(1), (2); United

States v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir. 1995); United

States v. Budzyna, 666 F.2d 666, 669 n.4 (1st Cir. 1981).

The questions raised here are (1) whether a trial judge

has an obligation to address sua sponte speedy indictment claims in

the absence of a timely motion by defendant and, if not, (2)

whether defendant has waived any speedy indictment claim by not

making such a motion before trial or entry of a guilty plea. These

questions arise because the text of the sanction provision for

speedy indictment claims, § 3162(a)(1), does not explicitly require

the defendant to file a motion, whereas the sanction provision for

speedy trial claims, § 3162(a)(2), does require the defendant to

file a motion. We hold that the STA, read as a whole, imposes no

obligation on the district court to raise speedy indictment claims

in the absence of a motion by the defendant.1 We also hold that a

defendant who fails to file a timely motion as required by the last

sentence of § 3162(a)(2) waives such claims as a matter of

statutory command. Consequently, not even plain error review is

available to such a defendant.

1
We do not suggest that the district court may not raise
the issue sua sponte and resolve it after notice and opportunity to
be heard.

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 I.

After a four-day jury trial, defendant Gerard Spagnuolo

was found guilty of possessing controlled substances with the

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He

was sentenced to thirty-three months of imprisonment to be followed

by seventy-two months of supervised release. He also was fined

$5,000.

The charge was based on drugs found on Spagnuolo during

a search incident to his arrest on September 29, 2001 for selling

an Oxycontin pill outside a restaurant in Quincy, Massachusetts.

During the search, police found two plastic bags of cocaine

(consistent with street level drug distribution), three Oxycontin

pills, and approximately $200 in cash. In a later search of

Spagnuolo's apartment conducted pursuant to a search warrant,

police found more drugs, cutting agents, drug paraphernalia,

approximately $20,000 in cash, and a Colt .45 caliber pistol with

magazines and bullets.

Spagnuolo was transferred from state to federal custody

on December 7, 2001, on which date he made his initial appearance

before a magistrate judge. The government moved that the detention

hearing be continued for ten days, and the court continued the

hearing until December 20, 2001. On December 20, 2001, Spagnuolo

moved to continue the detention hearing generally and did not

request a rescheduling date; the court allowed the motion that same

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day. On January 9, 2002, the parties filed a joint motion to

continue and to extend the indictment deadline. The magistrate

judge ruled that she was unable to extend the indictment deadline

and indicated that the motion should be placed on the emergency

business docket of the court. For some reason, that was not done,

and so the joint motion to extend the indictment deadline was not

ruled on. On February 20, 2002, the government moved for a status

conference on the issue of Spagnuolo's detention.

On February 27, 2002, Spagnuolo was indicted on four

counts -- possession with intent to distribute and distribution of

Oxycontin, in violation of 21 U.S.C. § 841(a)(1) (Count 1);

possession with intent to distribute Schedule I and Schedule II

controlled substances, in violation of 21 U.S.C. § 841(a)(1) (Count

2); being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1) (Count 3); and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A) (Count 4). He was arraigned on March 15, 2002. On

March 20, 2002, Spagnuolo, through his counsel, assented to

detention without a hearing, and the court entered an order that

day detaining him pending trial.

On October 28, 2002, during a pretrial conference,

Spagnuolo notified the district court of his intention to file a

motion to dismiss based on violations of the STA. The court set a

filing deadline of November 8, 2002 for defendant's motions to

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dismiss. On November 7, 2002, Spagnuolo mailed to the clerk a

motion to dismiss Counts 1 and 3 of the indictment for violation of

the speedy indictment provisions of the STA; the motion was filed

on November 12, 2002. The motion included no request to dismiss

either Count 2 or Count 4.

During a pretrial conference and motions hearing on March

12, 2003, the district court advised the parties that Spagnuolo's

motion to dismiss Counts 1 and 3 for violation of the STA remained

under advisement. Spagnuolo, who was acting pro se with standby

counsel (contrary to the advice of the court), requested, "[I]f

it's not too late, add the other drug charge on with that into that

motion, incorporate it into that." The district court declined to

do so, saying it had given Spagnuolo more opportunity than other

criminal defendants to submit filings to the court. The court,

referring to the STA motion on Counts 1 and 3 which had been filed,

said, "[T]he short of it is I have before me a particular motion.

I'm going to act on the particular motion." Spagnuolo concedes

that he never filed a written motion regarding Count 2, and he does

not argue that the oral attempt to add Count 2 to the earlier

motion complied with the scheduling deadlines and orders set by the

district court.

Just before jury empanelment, the trial court dismissed

Counts 1 and 3 on defendant's motion to dismiss for violation of

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the STA on lack-of-speedy-indictment grounds.2 The court reserved

judgment as to whether the dismissal of those two counts would be

with or without prejudice.

Spagnuolo proceeded to trial on the remaining Count 2 and

Count 4. The jury found defendant guilty on both counts. After

trial, the district court granted defendant's motion under Federal

Rule of Criminal Procedure 29(c) for judgment of acquittal as to

Count 4 for insufficiency of the evidence, but denied the motion

for judgment of acquittal as to Count 2. Later, in light of the

conviction and sentence on Count 2, the government agreed to an

order dismissing Counts 1 and 3 with prejudice. On appeal,

Spagnuolo argues that the district court should have dismissed

Count 2 on speedy indictment grounds. We reject this argument.

II.

The STA was amended in 1979 to provide for two, rather

than three, periods of time to be counted. See Speedy Trial Act

Amendments Act of 1979, Pub. L. No. 96-43, § 2, 93 Stat. 327, 327

(merging ten-day indictment-to-arraignment and sixty-day

arraignment-to-trial limits into a seventy-day indictment-to-trial

2
The court found that there were nineteen non-excludable
days between December 21 and January 8, and forty-one non-
excludable days between January 10 and February 19, for a total of
sixty non-excludable days between December 7, the date Spagnuolo
was taken into federal custody, and February 27, the date of his
indictment. The government argues on appeal that additional time
was excludable under 18 U.S.C. § 3161(h)(1)(F), and that the STA
was not in fact violated. We do not reach this issue.

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period); 3B Wright et al., Federal Practice and Procedure, § 833,

at 398-401 (3d ed. 2004). As amended, the Act imposes a thirty-day

limit on the time between arrest and the filing of an indictment or

information, and a seventy-day limit on the time between the date

that the indictment or information is made public, or the date of

first appearance (whichever is later), and the date of trial. 18

U.S.C. § 3161(b), (c)(1).

The purpose of the STA's thirty-day arrest-to-indictment

requirement "is to ensure that the defendant is not held under an

arrest warrant for an excessive period without receiving formal

notice of the charge against which he must prepare to defend

himself." United States v. Meade, 110 F.3d 190, 200 (1st Cir.

1997) (quoting United States v. Berry, 90 F.3d 148, 151 (6th Cir.

1996)) (internal quotation marks omitted).

The defendant's arguments are resolved against him by the

text and purposes of the STA. The Act, at § 3161, provides in

pertinent part:

(b) Any information or indictment charging an
individual with the commission of an offense
shall be filed within thirty days from the
date on which such individual was arrested or
served with a summons in connection with such
charges. . . .

(c)(1) In any case in which a plea of not
guilty is entered, the trial of a defendant
charged in an information or indictment with
the commission of an offense shall commence
within seventy days from the filing date (and
making public) of the information or
indictment, or from the date the defendant has

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 appeared before a judicial officer of the
court in which such charge is pending,
whichever date last occurs. . . .

18 U.S.C. § 3161(b), (c)(1). This establishes the two periods:

thirty days to indictment and an additional seventy days to trial.

The sanctions for non-compliance with § 3161 are set

forth in § 3162, which provides:

(a)(1) If, in the case of any individual
against whom a complaint is filed charging
such individual with an offense, no indictment
or information is filed within the time limit
required by section 3161(b) as extended by
section 3161(h) of this chapter, such charge
against that individual contained in such
complaint shall be dismissed or otherwise
dropped. . . .

(2) If a defendant is not brought to trial
within the time limit required by section
3161(c) as extended by section 3161(h) the
information or indictment shall be dismissed
on motion of the defendant. The defendant
shall have the burden of proof of supporting
such motion but the Government shall have the
burden of going forward with the evidence in
connection with any exclusion of time under
subparagraph 3161(h)(3). In determining
whether to dismiss the case with or without
prejudice, the court shall consider, among
others, each of the following factors: the
seriousness of the offense; the facts and
circumstances of the case which led to the
dismissal; and the impact of a reprosecution
on the administration of this chapter and on
the administration of justice. Failure of the
defendant to move for dismissal prior to trial
or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the
right to dismissal under this section.

Id. § 3162(a)(1), (2) (emphasis added). The last sentence of

§ 1362(a)(2) is key to the government's arguments.

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 Spagnuolo argues that under § 3162(a)(1), when there is

a failure to indict within thirty days of arrest "such charge

against that individual shall be dismissed or otherwise dropped,"

regardless of whether the defendant files a motion to dismiss on

STA grounds. Literally read, he argues, the Act only requires a

motion from the defendant when the government fails to bring

defendant to trial within seventy days of indictment, in violation

of § 3161(c)(1). Spagnuolo argues that Congress placed no such

burden on a defendant to file a motion if the government fails to

indict within thirty days of arrest, in violation of § 3161(b), and

the language says that "such charge . . . shall be dismissed."

The government responds that Spagnuolo has ignored the

significance of the last sentence of § 3162(a)(2), which provides

that "[f]ailure of the defendant to move for dismissal prior to

trial or entry of a plea of guilty or nolo contendere shall

constitute a waiver of the right to dismissal under this section"

(emphasis added). Pointing out that "Congress ordinarily adheres

to a hierarchical scheme in subdividing statutory sections," Koons

Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004), the

prosecution argues that the phrase "under this section" refers to

all of § 3162, including § 3162(a)(1), and not just to the

subdivision concerned with speedy trial rights, § 3162(a)(2), in

which the sentence is located. Accordingly, Congress must have

been referring to all of § 3162 because it would have used the

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phrase "under this paragraph" if it had intended to restrict the

motion and waiver provision to § 3162(a)(2). See id. at 60-61

(noting that the House and Senate manuals on legislative drafting

both endorse the use of "subsection" for subdivisions beginning

with "(a)," "paragraph" for subdivisions beginning with "(1),"

"subparagraph" for subdivisions beginning with "(A)," and "clause"

for subdivisions beginning with "(i)").

Applying the normal rules of statutory construction leads

us to conclude that the motion and waiver provision of § 3162(a)(2)

also applies to § 3162(a)(1) speedy indictment claims, because

"section" must refer to all of § 3162, and not just to the

paragraph in § 3162 where the motion and waiver provision was

(improvidently) located. Other references in the STA confirm that

the drafters of the Act followed the hierarchy prescribed by the

House and Senate drafting manuals. See, e.g., 18 U.S.C.

§ 3161(d)(1), (d)(2), (e).

Other courts of appeals also have applied the waiver

provision of § 3162(a)(2) to speedy indictment claims under

§§ 3161(b) and 3162(a)(1). See United States v. Gamboa, 439 F.3d

796, 803-04 (8th Cir. 2006); United States v. Lewis, 980 F.2d 555,

560 (9th Cir. 1992); accord United States v. Martinez, 683 F. Supp.

10, 12 & n.2 (D. Mass. 1988); see also United States v. Bittle, 699

F.2d 1201, 1207 n.15 (D.C. Cir. 1983) (identifying and reserving

issue).

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 Furthermore, to read the statute as defendant does would

undercut the purposes of the STA. In Zedner v. United States, 126

S. Ct. 1976 (2006), the Supreme Court acknowledged legislative

history explaining that the STA "was designed not just to benefit

defendants but also to serve the public interest by, among other

things, reducing defendants' opportunity to commit crimes while on

pretrial release and preventing extended pretrial delay from

impairing the deterrent effect of punishment." Id. at 1985-86

(citing S. Rep. No. 93-1012, at 6-8 (1974); H.R. Rep. No. 93-1508,

at 8 (1974), reprinted in 1974 U.S.C.C.A.N. 7401, 7402). The Act

created incentives both for compliance by the government and for

enforcement by defendants. It would be odd to use a different set

of incentives for the two situations of speedy indictment and

speedy trial. Under both, a defendant must move promptly, or waive

his rights.

In Zedner, the Supreme Court interpreted § 3162(a)(2) and

stated that it "serves two unrelated purposes":

First, § 3162(a)(2) assigns the role of
spotting violations of the Act to defendants -
- for the obvious reason that they have the
greatest incentive to perform this task.
Second, by requiring that a defendant move
before the trial starts or a guilty plea is
entered, § 3162(a)(2) both limits the effects
of a dismissal without prejudice (by ensuring
that an expensive and time-consuming trial
will not be mooted by a late-filed motion
under the Act) and prevents undue defense
gamesmanship.

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Id. at 1986-87 (footnote omitted). Each of these purposes would be

undercut if the motion requirement of § 3162(a)(2) were read not to

apply to the speedy indictment provisions.

To accept defendant's argument would lead to an

unwarranted difference in the treatment of speedy indictment and

speedy trial claims.3 Such a result would be inconsistent with the

treatment of periods of excludable delay in § 3161(h), which

expressly applies to both speedy indictment and speedy trial

calculations. 18 U.S.C. § 3161(h) ("The following periods of delay

shall be excluded in computing the time within which an information

or an indictment must be filed, or in computing the time within

which the trial of any such offense must commence . . . .").

Defendant does not dispute that if his claim had been a

seventy-day speedy trial claim, and not a thirty-day speedy

indictment claim, his claim would have been waived if he had not

made a motion to dismiss before trial. See United States v.

Huguenin, 950 F.2d 23, 27-28 (1st Cir. 1991); United States v.

McKinnell, 888 F.2d 669, 676 (10th Cir. 1989), abrogated on other

3
Spagnuolo argues that it is not irrational for Congress
to have created different requirements for speedy trial claims and
speedy indictment claims. He asserts that speedy indictment
violations involve a greater risk of harm because persons held in
custody prior to indictment are outside the supervision and
protection of the courts, and have no avenue to assert
constitutional rights and protections. We reject defendant's
argument, noting that a writ of habeas corpus is available to
prisoners "in custody under or by color of the authority of the
United States." 28 U.S.C. § 2241(c)(1).

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grounds by United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995).

The fact that this is a speedy indictment claim does not change the

result.

The language of the final sentence of § 3162(a)(2)

requires us to hold that Spagnuolo has waived any speedy indictment

claim. That sentence imposes two conditions. A defendant waives

his claim if (a) he has not moved for dismissal, and (b) he has not

done so before trial or before he enters a guilty plea. Spagnuolo

did not meet these requirements. His belated oral request to tack

on an additional speedy indictment claim was not a motion within

either the meaning of the statute, 18 U.S.C. § 3162(a)(2), or the

local rule, D. Mass. R. 7.1, nor was it filed within the time

required by the pretrial order. Pointing to the timely motion

requirements of the last sentence of § 3162(a)(2), this court has

said, "While . . . the appropriate response to a Speedy Trial Act

infraction is dismissal of the indictment, the remedy is not self-

executing . . . ." United States v. Connor, 926 F.2d 81, 83 (1st

Cir. 1991).

Of course, the statute itself limits the waiver rights

under § 3162(a)(2). For example, § 3162(a)(2) does not permit

prospective waivers, since such waivers would undercut the

statute's purposes. Zedner, 126 S. Ct. at 1987. The situation

here, however, does not give rise to a Zedner issue.

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 Further, the statute imposes no requirement that the

waiver be knowing and voluntary, and we decline to read such a

requirement into the statutory language. As noted in United States

v. Gomez, 67 F.3d 1515 (10th Cir. 1995):

[J]ust as the Act provides a remedy for
violation of its speedy trial mandate, so too
it unequivocally provides that the failure of
a defendant to move for dismissal prior to
trial constitutes a waiver of any right to
that remedy.

Id. at 1520.

Moreover, Spagnuolo does not have the benefit of "plain

error" review, since the STA states that the statutory right is

waived and there is no issue of constitutional dimension. See id.

at 1521. Under these circumstances, a defendant who fails to make

a timely motion to dismiss based on a speedy indictment claim does

not obtain the benefit of plain error review. "Deviation from a

legal rule is 'error' unless the rule has been waived." United

States v. Olano, 507 U.S. 725, 732-33 (1993). Where there is

waiver, there can be no error. Gomez, 67 F.3d at 1520.

Spagnuolo's conviction is affirmed.

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