United States Court of Appeals
For the First Circuit
No. 05-2849
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW S. HOOD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and Woodcock, Jr.,* District Judge.
Chauncey B. Wood, with whom Shea, Larocque & Wood, LLP was on
brief, for appellant.
Timothy Q. Feeley, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
November 17, 2006
*
Of the District of Maine, sitting by designation.
TORRUELLA, Circuit Judge. On August 22, 2005, a jury
found Andrew S. Hood ("Hood") guilty of receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2) and possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
Hood challenges his conviction on the ground that his rights under
the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were violated.
After careful consideration, we affirm Hood's conviction.
I. Facts
In 2004, investigators from the United States Postal
Service, armed with a search warrant, reviewed records of a credit
card processor known to do business with a Russian child
pornography distributor. Hood's name appeared in the processor's
records. Postal investigators sent a letter to Hood soliciting an
order for child pornography videotapes. Hood responded by mailing
an order form and a money order for $125 to the postal
investigators. When Hood arrived at the post office to collect his
videotapes, he was detained by a postal investigator. After being
read his Miranda rights, Hood admitted ordering the videotapes and
further admitted possessing additional child pornography on his
computer.1 Hood was indicted by a grand jury on March 16, 2005.
On March 21, Hood was arrested; the district court appointed Leslie
Feldman-Rumpler ("Feldman-Rumpler") as Hood's attorney and the
Government moved for pretrial detention. Hood later obtained his
1
Apparently, Hood was not arrested at this time.
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own counsel, Robert D. Lewin, who entered an appearance on
April 11. On April 12, the court held a detention hearing for
Hood. On April 13, Feldman-Rumpler, Hood's court-appointed
attorney, filed a motion to withdraw as counsel. The court held
another detention hearing on April 21, during which the court
granted the Government's motion for pretrial detention, but did not
set the conditions of the detention. On April 29, Hood and the
Government attended an initial status conference. On May 4, the
court granted Feldman-Rumpler's motion to withdraw and entered an
"Order of Excludable Delay," stating that for purposes of the
Speedy Trial Act, as of May 31, only "six non-excludable days"
(April 22 - April 28) had passed since Hood's arrest.2
On May 10, the court held a release hearing, during which
it determined conditions for Hood's release from jail. On June 15,
Hood and the Government filed a "Final Status Conference Joint
Memorandum" representing that there were no discovery issues known
or anticipated, no schedule needed to be set, a plea was unlikely,
and the trial would take no more than four days. The order also
represented that there were no periods of excludable delay other
than those mentioned in the May 4 order. The court held the final
status conference on June 16, and entered a "Further Order of
2
This time period actually encompasses seven days, counting both
April 22 and April 28. However, as we later explain, this time
period is excludable.
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Excludable Delay," stating that as of June 16, twenty-one non-
excludable days had passed since Hood's arrest.
On June 24, the court scheduled a status/pretrial
conference for June 29. The court cancelled the conference on
June 28. On July 12, the Government filed a motion for a new
pretrial conference and to exclude time from June 29 until the new
pretrial conference. On July 20, Hood agreed to the Government's
proposed pretrial conference and filed his opposition to the motion
to exclude time. On July 21, the court ordered a pretrial
conference to be held on August 4.
On August 4, at the pretrial conference, Hood filed a
"Motion to Dismiss the Indictment with Prejudice for Lack of a
Speedy Trial." The Government filed two motions to exclude time
from April 13 - May 4 and from July 12 - August 4. The court
granted both of the Government's motions to exclude time and denied
Hood's motion to dismiss. The court scheduled trial for August 22.
Hood was tried and convicted of receipt of child pornography in
violation of 18 U.S.C. § 2252(a)(2) and possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
II. Discussion
We review "the district court's denial of a motion to
dismiss based upon the Speedy Trial Act de novo as to legal rulings
and for clear error as to factual findings." United States v.
Maxwell, 351 F.3d 35, 37 (1st Cir. 2003). The Speedy Trial Act
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requires that a court grant a defendant's motion to dismiss for
lack of a speedy trial if the defendant is not brought to trial
within seventy non-excludable days. 18 U.S.C. §§ 3161, 3162(a)(2).
In reviewing a claim under the Speedy Trial Act, we must
first calculate "the aggregate time elapsed awaiting trial."
United States v. Barnes, 159 F.3d 4, 10 (1st Cir. 1998) (quoting
United States v. Staula, 80 F.3d 596, 600 (1st Cir. 1996))
(internal quotation marks omitted). The speedy trial clock begins
ticking on the day a defendant first appears in court and stops the
day the defendant files a motion to dismiss for lack of a speedy
trial. See Staula, 80 F.3d at 600. Hood was arrested and first
appeared in court on March 21; he filed his motion to dismiss on
August 4. We thus calculate that a total of 137 days elapsed
between Hood's arrest and his motion to dismiss.
Next, we determine how many days should be excluded under
the Speedy Trial Act. Barnes, 159 F.3d at 10. Time may be
excluded under the Speedy Trial Act for, inter alia, "delay
resulting from any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other prompt
disposition of, such motion," 18 U.S.C. § 3161(h)(1)(F), and "delay
reasonably attributable to any period, not to exceed thirty days,
during which any proceeding concerning the defendant is actually
under advisement by the court," 18 U.S.C. § 3161(h)(1)(J). Hood
does not challenge the orders of exclusion entered on May 4 and
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June 16, which provided for a total of sixty-six excludable days.
Further, the day the motion to dismiss for lack of a speedy trial
is filed is excludable as delay resulting from a pretrial motion.
United States v. Rodríguez, 63 F.3d 1159, 1163-64 (1st Cir. 1995).
Thus, we calculate sixty-seven days that are undisputedly
excludable under the Speedy Trial Act.
Hood argues that the Government uses "pretext" for the
additional exclusions of time that they seek. More specifically,
he adds that two periods of time are evidence of pretext: (1) the
Government's attempted expansion of seven days (associated with
Feldman-Rumpler's motion to withdraw) beyond the court's original
exclusion of time, when the Government had agreed earlier that the
additional time was not excludable, and (2) the time resulting from
the court's unexplained cancellation of the pretrial conference.
We have previously held that the Speedy Trial Act sets
bright-line rules, and we will not distinguish between exclusions
based on "significant or complex 'pretrial motions' and simple or
routine motions." Barnes, 159 F.3d at 11. However, we have
cautioned that "neither counsel nor district courts may employ
measures for excluding time from the speedy trial clock that
impermissibly frustrate the [Speedy Trial Act]'s purpose of
protecting the shared interest of criminal defendants and the
public in 'bringing criminal charges to the bar of justice as
promptly as practicable.'" United States v. Richardson, 421 F.3d
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17, 29 (1st Cir. 2005); see also United States v. Scott, 270 F.3d
30, 54-57 (1st Cir. 2001) (reversing on the basis of the district
court's unauthorized late decisions on motions); Staula, 80 F.3d at
602 n.3 ("We will not permit either the district court or the
prosecution to jerry-build a 'hearing' in order to thwart the
concinnous operation of the Speedy Trial Act.").
The Government sought, and the court granted, exclusion
for April 13 - May 4, during which Feldman-Rumpler's motion to
withdraw was pending. Hood argues that this period should not be
excluded because Feldman-Rumpler's motion to withdraw did not
actually delay the proceedings in the case. Hood points out that
his new attorney, Mr. Lewin, had already begun participating in the
trial before Feldman-Rumpler offered her motion to withdraw, and
thus no delay resulted.
We have stated that the pendency of a pretrial motion is
excludable time regardless of its type or its actual effect on the
trial. See Rodríguez, 63 F.3d at 1166 ("[I]t is clear in this
Circuit as in others that the exclusions of § 3161(h)(1)(F) and (J)
are 'automatic,' and do not depend upon any showing of actual
delay."); see also United States v. Daychild, 357 F.3d 1082, 1095
(9th Cir. 2004) (excluding time during which a defense counsel's
motion to withdraw was pending because "the language of the
statutory exclusion for delay . . . is unqualified as to the type
of motion"). Furthermore, we do not see any evidence that the
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motion to withdraw was part of a Government attempt to frustrate
the operation of the Speedy Trial Act; to the contrary, the motion
was filed by Hood's own attorney.3 Thus, the district court did
not err in excluding an additional seven days on account of
Feldman-Rumpler's motion to withdraw.4
Accordingly, we add an additional seven excludable days
to the sixty-seven undisputed excludable days, for a total of
seventy-four excludable days. Subtracting seventy-four excludable
days from 137 total days, we find that there could have been no
more than sixty-three non-excludable days prior to Hood's motion to
dismiss. Given that this falls well under the maximum of seventy
non-excludable days permitted by the Speedy Trial Act, 18 U.S.C.
§ 3161, we find that the district court properly denied Hood's
motion to dismiss for lack of a speedy trial. Because of this
calculation, we do not need to address the defendant's argument
about the cancellation of the pretrial conference. We wish,
though, to discourage the cancellations of pretrial conference
3
Hood claims that the Government must be held to its
representation about the amount of excludable time in the Final
Status Conference Joint Memorandum. However, at oral argument,
Hood conceded that the Memorandum was a status report, not a
binding stipulation. The district court acted within its
discretion in later concluding that additional time was properly
excluded under the Speedy Trial Act.
4
On May 4, the court excluded the periods from April 13 - April
21 and from April 29 - May 4, neither of which has been challenged
by Hood. Thus, the district court only needed to exclude an
additional seven days, from April 22 - April 28, to account for
Feldman-Rumpler's pending motion to withdraw.
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dates without setting new dates and without explanation. Such
practices can create potential Speedy Trial Act problems, as this
case illustrates.
III. Conclusion
For the foregoing reasons, we affirm the district court.
Affirmed.
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