United States Court of Appeals,
Eleventh Circuit.
No. 94-2766.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ronald Eugene MATHIS a.k.a. Romeo, a.k.a. Rome a.k.a. Homey,
Defendant-Appellant.
Oct. 10, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 91-301-CR-T-17), Elizabeth A.
Kovachevich, Chief Judge.
Before TJOFLAT, Circuit Judge, and RONEY and CAMPBELL*, Senior
Circuit Judges.
LEVIN H. CAMPBELL, Senior Circuit Judge:
Defendant Ronald E. Mathis (a/k/a "Romeo") was convicted of
multiple drug counts and received a life sentence without parole.
On appeal, he alleges that the government violated his right to a
speedy trial under 18 U.S.C. § 3161 et seq., that it
unconstitutionally exercised its peremptory challenges, and that
the district court erroneously admitted evidence from
unconstitutional searches.
I.
On October 23, 1991, a 47-count indictment was returned
against Mathis and eleven codefendants for their roles in a crack
cocaine distribution organization that Mathis was alleged to have
led in St. Petersburg, Florida in 1990 and 1991. Mathis was
charged with multiple offenses including racketeering (both for
*
Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
dealing in drugs and participating in acts of violence), engaging
in a continuing criminal enterprise, conspiring to distribute and
distributing crack cocaine, and using a telephone to commit a
crime. A superseding indictment, returned on April 15, 1992, added
a murder count. In November 1992 Mathis's trial was severed from
that of his codefendants. His trial began in February 1994.
Mathis was convicted of racketeering, engaging in a continuing
criminal enterprise, conspiracy, possession of cocaine with intent
to distribute, and distribution of cocaine. He received a life
sentence without parole. This appeal followed.
II. Speedy Trial Act
Mathis contests the district court's rejection of his motion,
filed on March 24, 1992, to dismiss the indictment for violation of
the Speedy Trial Act, 18 U.S.C. § 3161 et seq. Mathis argues that
much of the period from late November 1991, when the last
1
codefendant was arraigned, to March 24, 1992, the date Mathis
filed his speedy trial motion, counts as nonexcludable delay. As
his motion was never renewed, there is no question of counting as
delay any subsequent periods. See United States v. Tinson, 23 F.3d
1010, 1012 (6th Cir.1994); United States v. Wirsing, 867 F.2d
1227, 1230 (9th Cir.1989); see also 18 U.S.C. § 3162(a)(2) ("[t]he
1
In a multiple defendant case, the speedy trial clock begins
to run when the last codefendant is indicted or arraigned.
United States v. Vasser, 916 F.2d 624, 626 (11th Cir.1990)
(citing 18 U.S.C. § 3161(h)(7)), cert. denied, 500 U.S. 907, 111
S.Ct. 1688, 114 L.Ed.2d 82 (1991). The record shows that the
last of Mathis's codefendants were scheduled to be arraigned on
November 22, 1991, but on that day the arraignment was continued
to November 27. Because the record does not contain an
explanation, and the difference in days is not material to our
holding, we need not decide which date triggered the speedy trial
clock.
defendant shall have the burden of proof of supporting such motion"
for dismissal of the indictment on speedy trial grounds).
A defendant must be brought to trial within seventy days of
his indictment or initial appearance, whichever occurs later. 18
U.S.C. § 3161(c)(1). However, certain delays resulting from
pretrial motions and other contingencies that arise in the course
of a criminal proceeding are excludable under the Act. Id. §
3161(h) & (h)(1)(F). Of importance here is the Act's
ends-of-justice exclusion for delay "resulting from a continuance
granted by a judge on his own motion or at the request of the
defendant or his counsel or at the request of the attorney for the
Government, if the judge granted such continuance on the basis of
his findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a
speedy trial." Id. § 3161(h)(8)(A). A district court's granting
of an ends-of-justice continuance is reviewable for an abuse of
discretion. E.g., United States v. Vasser, 916 F.2d 624, 627 (11th
Cir.1990), cert. denied, 500 U.S. 907, 111 S.Ct. 1688, 114 L.Ed.2d
82 (1991).
Mathis had requested a continuance of the trial on November
25, 1991, and the trial was continued until January 29, 1992,
making that period excludable from the seventy-day limit under the
Act. See United States v. Henry, 698 F.2d 1172, 1173-1174 (11th
Cir.1983). At issue here is the district court's further
postponement of the trial on January 29, 1992. Mathis calls this
postponement "indefinite" and says it was granted at the
government's request. He denies that it amounted to an excludable
ends-of-justice continuance. Mathis accuses the government of
seeking delay in bad faith. According to him, the government's
true motive is reflected in its request for time to obtain a
superseding indictment that only differed from the original by
adding a murder count against him that had already been charged as
a predicate act under the racketeering count, and by requesting the
death penalty. These additions were eventually abandoned just
before the beginning of jury selection in February 1994. By then,
several former codefendants had agreed to testify against Mathis.
Mathis says that the district court should have inquired into or
held a hearing on why the government had not charged him earlier
with the murder count and should have made findings, instead of
simply stating, as it did, that the "interests of justice" covered
its decision to postpone trial.
The transcript of the January 29th conference reveals that
the government was not the primary force behind the continuance.
It made no specific request for one. Rather, the court granted a
continuance sua sponte—as the Act permits, see 18 U.S.C. §
3161(h)(8)(A). It also seems clear that neither side was ready for
trial then, or so the court could reasonably surmise. At the
January 29th conference, the district judge asked the government
about the status of the case and what she could anticipate, to
which the government responded that it was preparing a superseding
indictment and awaiting permission from the Department of Justice
to seek the death penalty. Mathis then complained of the
government's failure to deliver promised discovery materials to the
defense. The district court told the government to provide the
discovery materials by February 18 and to report back on the status
of the superseding indictment and death penalty within a few weeks
as well, since those matters could require additional counsel and
preparation time for Mathis. With the attorneys' assistance, the
court then assessed the trial time that would be needed and tried
to establish a trial date when everyone, including the court, would
be available. The judge settled on January 1993 and advised
counsel that the date would be moved up if it became possible to do
so. The court added that another status conference would be held
in the "not-too-distant future," after the superseding indictment
was issued. In response to defendant's objection to any
continuance of trial, the court stated that "[t]he interest of
justice under 3161 certainly does protect us[.]"
The last quoted remark reflects the court's intention, on its
own motion, to continue the case under authority of section
3161(h)(8)(A). The court, it is true, did not adhere to the Act's
requirement to "set[ ] forth, in the record of the case, either
orally or in writing, its reasons for finding that the ends of
justice served by the granting of such continuance outweigh the
best interests of the public and the defendant in a speedy trial."
18 U.S.C. § 3161(h)(8)(A). The reasons, however, are evident from
the record, and we have held that a district court "need not
enunciate its findings when it grants the continuance so long as
there is sufficient evidence in the record indicating that it
considered the factors identified in the statute when it granted
the continuance." Vasser, 916 F.2d at 627. The factors the
statute calls upon the court to consider include:
(ii) Whether the case is so unusual or so complex, due to the
number of defendants, the nature of the prosecution, or the
existence of novel questions of fact or law, that it is
unreasonable to expect adequate preparation for pretrial
proceedings or for the trial itself within the time limits
established by this section.
(iv) Whether the failure to grant such a continuance in a case
which, taken as a whole, is not so unusual or so complex as to
fall within clause (ii), would deny the defendant reasonable
time to obtain counsel, would unreasonably deny the defendant
or the Government continuity of counsel, or would deny counsel
for the defendant or the attorney for the Government the
reasonable time necessary for effective preparation, taking
into account the exercise of due diligence.
18 U.S.C. § 3161(h)(8)(B). "[G]eneral congestion of the court's
calendar" is not a factor that operates to exclude delay resulting
from such a continuance. Id. § 3161(h)(8)(C).
The transcript of the January 29th conference indicates that
the court sufficiently took into account the relevant factors
identified in section 3161(h)(8)(B), supra. See United States v.
McKay, 30 F.3d 1418, 1420 (11th Cir.1994), cert. denied, --- U.S.
----, 116 S.Ct. 323, 133 L.Ed.2d 224 (1995); see also United
States v. Spring, 80 F.3d 1450, 1456 (10th Cir.1996) ("Courts need
not necessarily expressly conduct a balancing or use particular
language" if it is " "clear from the record that the trial court
struck the proper balance when it granted the continuance.' ")
(citations omitted), petition for cert. filed (U.S. June 25, 1996)
(No. 95-9420). The court expressed concern with scheduling
adequate preparation and trial time for this complex narcotics case
involving multiple defendants. It set February 18 as the date for
the handing over of discovery materials to defense counsel so that
counsel would have time to review them with his client. Cf. United
States v. Burke, 673 F.Supp. 1574, 1578 (N.D.Ga.1986) (need for a
continuance was "patently obvious" in light of lengthy indictment
"naming 12 defendants in 36 counts alleging numerous conspiracies
to import massive quantities of narcotics, and to launder large
sums of money, of the 225 pretrial motions filed, and of the scope
of discovery required"), aff'd, 856 F.2d 1492 (11th Cir.1988),
cert. denied, 492 U.S. 908, 109 S.Ct. 3222, 106 L.Ed.2d 571 (1989).
The court also recognized the prosecutor's wish for reasonable time
to prepare a superseding indictment and to obtain approval to seek
the death penalty; it specifically asked how much time would be
needed, and accepted the prosecutor's response of two to three
weeks. Although the court indicated concern with its own schedule
as well, it did so in the context of inquiring about other
attorneys' upcoming commitments, including the prosecutor's
commitment to trying cases in this same court connected to this
drug conspiracy (before the cases were consolidated and Mathis's
was severed). See Henry, 698 F.2d at 1174 ("Appropriate
consideration must always be given to a multiplicity of factors,
i.e. adequate time for defense counsel to prepare, number of
defendants, pending motions, anticipated trial time, possible
severances, conflicts in schedules of judges and trial counsel,
etc.").
Hence, while the district court did not summarize its reasons,
the record indicates that the court took into account the material
statutory factors when granting the continuance. Nor is there
doubt that a continuance of limited duration rather than a mere
indefinite delay was intended. Trial dates were discussed and a
January 1993 date assigned. The court extended the discovery
deadline to a specific date and informed the parties and counsel
that another status conference would be held following the
superseding indictment. See Spring, 80 F.3d at 1457 ("The court
did not specifically state that it was granting a continuance, yet
that was indisputably the effect of its order vacating the
scheduled trial date, pending appearance of new counsel[.]"). But
cf. United States v. Crawford, 982 F.2d 199, 205 (6th Cir.1993).
The court sought and received the government's estimate as to when
it would know about the superseding indictment and death penalty.
The superseding indictment was handed down on April 15; the
defendants were arraigned on April 22; and the court held a
further conference on April 24. In these circumstances, we find a
valid ends-of-justice continuance, excludable under the Act,
running through the handing down of the superseding indictment,
which occurred in mid-April. See Spring, 80 F.3d at 1458
(open-ended continuance was warranted in light of complexity of the
case, need for adequate preparation time, and fact that court set
a new trial date).
Defendant's argument that, had the court made further inquiry,
it would have discovered that the government was acting in bad
faith, is speculative at best. The government freely admitted at
the January 29th conference that the original racketeering count
included, as a predicate act, the murder the government wanted now
to charge separately. Its dropping of the murder count, along with
others, two years later could be based on a host of considerations
not known on January 29, 1992.
As the court's actions on January 29 amounted to the granting
of a valid ends-of-justice continuance, there was no speedy trial
violation. Mathis concedes that if a valid continuance were
granted on January 29, there would be no violation of the Act. We
add that quite apart from the ends-of-justice continuance, a Speedy
Trial Act violation was unlikely because of the pendency during the
same period of pretrial motions and requests from Mathis and his
codefendants. See 18 U.S.C. § 3161(h)(7); Vasser, 916 F.2d at 626
("A motion relating to one defendant tolls the speedy trial clock
for all co-defendants.") (citations omitted).
III. Peremptory Challenges
Mathis, who is African-American, argues that the prosecutor
unconstitutionally used peremptory strikes to exclude an African-
American man and a Hispanic woman from the panel of potential
jurors. We find no constitutional violation.
The prosecutor used four peremptory challenges, one to strike
one of two African-American members on the panel and one to strike
the only Hispanic member. Assuming without deciding that defendant
presented a prima facie case of purposeful discrimination, see
Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722-23, 90
L.Ed.2d 69 (1986); United States v. Williams, 936 F.2d 1243, 1245
(11th Cir.), cert. denied, 502 U.S. 993, 112 S.Ct. 612, 613, 116
L.Ed.2d 635 (1991) and 502 U.S. 1119, 112 S.Ct. 1239, 117 L.Ed.2d
472 and 503 U.S. 912, 112 S.Ct. 1279, 117 L.Ed.2d 504 (1992), we
hold that the district court did not err in accepting the
government's race-neutral explanations and concluding that
defendant had not carried his burden of proving purposeful
discrimination. Only brief comments are necessary in light of
well-established precedent.
The record shows that an African-American panel member, Mr.
Johnson, was challenged because he worked at a funeral home across
from Mathis's car wash (referred to in the indictment as
purportedly Mathis's legitimate place of business), had his
personal car washed there regularly and other business cars washed
there on occasion, and was familiar with people who worked there
and might be called as witnesses. Mr. Anderson did not know Mathis
personally, but knew of him as "Romeo" and also lived fairly close
to the car wash. The district judge conducted her own inquiry of
Mr. Anderson and accepted the government's concern about possible
associational links to the defendant. Under these circumstances,
there was no clear error in granting the peremptory challenge. See
Williams, 936 F.2d at 1247.
The record shows that Ms. Perera, who is Hispanic, was
removed because a close family member of hers had had a cocaine
conviction. There was no clear error in allowing the strike in
this case. See United States v. Bennett, 928 F.2d 1548, 1552 (11th
Cir.1991) ("familial association with someone convicted on drug
charges [is] clearly a weighty and racially neutral reason"). Even
if we were to consider defendant's new argument on appeal—that
purposeful discrimination was shown by the government's striking of
the Hispanic panel member without also striking a white panel
member whose son had had a criminal conviction—our decision would
not change. The latter's conviction did not involve controlled
substances, making his case insufficiently similar to justify an
inference of purposeful discrimination by the government. See
Williams, 936 F.2d at 1246.
Defendant further insists that purposeful discrimination was
shown by the government's unsuccessful attempt to change venue from
Tampa to Fort Myers (where apparently fewer racial minorities are
registered voters). We find no merit in this contention.
IV. Suppression of Evidence
(a) Intercepted Cordless Telephone Conversations
Mathis challenges the district court's refusal to suppress
evidence from cordless telephone interceptions he believes were
unlawful. Mathis filed a pretrial motion to suppress this and
other evidence, which the magistrate judge denied.
The government introduced at trial numerous tapes of
conversations made on cordless and cellular telephones from
Mathis's residence. St. Petersburg Police Department detectives
intercepted these communications from June through October 1991,
2
without Mathis's consent and without prior judicial approval.
Following a denial of Mathis's pretrial motion to suppress the
recordings, the district court, on the first day of trial, allowed
the government to begin admitting them over Mathis's objection.
His objections at this time were based on the attorney-client
privilege (with respect to one conversation) and Florida
constitutional law governing the nonconsensual interception of
cordless telephone communications. In rejecting the latter ground,
the court said, "[t]here's no reasonable expectation of privacy on
a cordless phone." It allowed Mathis's request for a standing
2
The record indicates that court approval had been obtained
to operate pin registers.
objection to the admissibility of all such communications.3
We agree with the district court to the extent that, at the
time Mathis's conversations were intercepted, federal statutory law
recognized no reasonable expectation of privacy on a cordless
telephone.4 Mathis, in fact, has never argued that federal
3
The government contends that Mathis waived this issue,
having conceded at the suppression hearing the absence of a legal
basis for requiring a warrant to intercept cordless telephone
communications (and pressed only the matter of cellular phone
communications). Thereafter, he did not supplement the record
with factual support as the magistrate judge had allowed, or
object to the magistrate's report and recommendation on any
wiretap-related ground. At trial, Mathis's oral motion asserted
the protection of the attorney-client privilege (for one
communication) and also mentioned, with respect to cordless
telephones, the broad right of privacy under the Florida
Constitution recognized just a few weeks earlier by a state
appellate court.
Because the district court chose to consider and to
resolve on the merits Mathis's trial motion claiming a
reasonable expectation of privacy in cordless telephone
conversations, we review the substance of that ruling. See
United States v. Crosby, 739 F.2d 1542, 1548 (11th Cir.)
(citing United States v. Marx, 635 F.2d 436, 440-441 (5th
Cir. Unit B 1981) and United States v. Contreras, 667 F.2d
976, 978 n. 2 (11th Cir.), cert. denied, 459 U.S. 849, 103
S.Ct. 109, 74 L.Ed.2d 97 (1982)), cert. denied, 469 U.S.
1076, 105 S.Ct. 576, 83 L.Ed.2d 515 (1984); see also United
States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir.1988), cert.
denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 978 and
489 U.S. 1029, 109 S.Ct. 1161, 103 L.Ed.2d 220 (1989); 3
Charles Alan Wright, Federal Practice and Procedure:
Criminal 2d § 673, at 769 & n. 57 (1982) (citing cases for
the proposition that "if the district court entertains the
belated motion and decides it on the merits, it cannot be
argued on appeal that it had been waived[ ]").
4
See, e.g., Askin v. McNulty, 47 F.3d 100, 103 (4th Cir.),
(before Congressional amendments in 1994, cordless telephone
communications were "neither a wire nor electronic communication"
under Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, as amended by the Electronic Communications Privacy Act
of 1986, and "[v]irtually every court to have faced the question
of whether cordless phone conversations were oral communications
under [18 U.S.C.] § 2510(2) answered in the negative[ ]")
(emphasis added) (citations omitted), cert. denied, --- U.S. ----
, 116 S.Ct. 382, 133 L.Ed.2d 305 (1995).
statutory or constitutional law at the time these recordings were
made required officers to obtain prior judicial approval to
intercept cordless telephone communications. He has instead
focused on the right of privacy in the Florida Constitution, which
he says bars the interception, without consent or prior judicial
approval, of cordless telephone communications made from his
residence. See Mozo v. State, 632 So.2d 623, 632-634
(Fla.Dist.Ct.App.1994) (holding that "the random interception of a
cordless phone communication, without sufficient cause or
suspicion, constitutes an unreasonable interception of a private
communication in violation of article I, section 12," and that
"under article I, section 23, a person's private conversations over
a cordless telephone are presumptively protected from government
interception" though a showing of a compelling state interest may
overcome the presumption), aff'd on state statutory grounds, State
v. Mozo, 655 So.2d 1115, 1116 (Fla.1995).
Assuming without deciding that Mathis's interpretation of
Florida law is correct, the fact remains, " "that federal law
governs the admissibility of tape recordings in federal criminal
cases,' and complaints that the evidence was obtained in violation
of state law are of no effect." United States v. Butera, 677 F.2d
1376, 1380 (11th Cir.1982) (rejecting that warrantless tape
recordings should have been suppressed under Florida constitutional
law because state and local officials were involved in the
investigation) (quoting United States v. Nelligan, 573 F.2d 251,
253 (5th Cir.1978)), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74
L.Ed.2d 958 (1983); accord United States v. Workman, 80 F.3d 688,
695 (2d Cir.1996). Defendant's citation to United States v.
Bascaro, 742 F.2d 1335 (11th Cir.1984), cert. denied, 472 U.S.
1017, 105 S.Ct. 3476, 3477, 87 L.Ed.2d 613 and 472 U.S. 1021, 105
S.Ct. 3488, 87 L.Ed.2d 622 (1985), is inapposite, as that case held
that state and federal law requirements "govern a federal district
court's determination of the validity of wiretap warrants obtained
by state law enforcement officers in state courts." Id. at 1347.
That ruling—based on a provision of the federal wiretap statute, 18
U.S.C. § 2516, which allows state courts to authorize the
interception of wire or oral communications in conformity with 18
U.S.C. § 2518 and applicable state law—is entirely consistent with
the general rule that federal law determines the admissibility in
federal criminal cases of communications intercepted by a state or
local officer. See Nelligan, 573 F.2d at 253-254.
We reject, therefore, Mathis's claim of error in the district
court's admission of the cordless telephone recordings.
(b) Searches and Seizures
In his appellate brief, Mathis asserts error in the district
court's admission of evidence alleged to be the product of searches
of his residence on March 22, 1990, and November 1, 1991. Mathis's
suppression motion raising these two matters was the subject of a
pretrial hearing before the magistrate judge, who denied the
motion. After careful consideration of the briefs and record, the
magistrate judge's memorandum, and the relevant law, we find no
merit in either claim of error, and see no need to expound further
as to them.
Mathis raises a closer claim regarding evidence uncovered by
police on November 1, 1991, in a warrantless search of a detached
garage on the premises where Mathis's mother resided, next door to
him.5 The magistrate judge determined that Mathis's mother had
consented to this search and that she had the authority validly to
do so. In making this determination, the magistrate judge credited
the police officers' factual version of what had occurred,
including that Mathis's mother was entirely cooperative and
consented to the officers' searching of her house and the garage,
and had told an officer whom she knew personally that the garage
was hers. These and other facts found by the magistrate judge
amply support, in our view, an objectively reasonable belief by the
searching officers that Mathis's mother had authority to consent to
a search of the garage. See Illinois v. Rodriguez, 497 U.S. 177,
188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990); United States
v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39
L.Ed.2d 242 (1974); cf. United States v. Fernandez, 58 F.3d 593,
598 (11th Cir.1995) (where a defendant told police that a trailer
belonged to his codefendant, it was reasonable for officers to
believe that the codefendant had authority to consent to a search);
United States v. Kinney, 953 F.2d 863, 866-867 (4th Cir.), cert.
denied, 504 U.S. 989, 112 S.Ct. 2976, 119 L.Ed.2d 595 (1992). We
reject Mathis's contention that the district court should have
suppressed the evidence found in the garage.
Mathis's conviction is affirmed.
5
Two warrantless searches of the garage were conducted that
day, with only the second revealing information that aided the
officers' investigation and enabled them to obtain a search
warrant for the garage, where they subsequently found a safe
hidden by Mathis containing thousands of dollars.