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UNITED STATES v. FELTON

May 10, 1985

UNITED STATES OF AMERICA
v.
DEAN K. FELTON, NANCY E. BRUCE, JOHN ZORAK a/k/a Johnny, ANTHONY SERRAO a/k/a Buddy, RICHARD COX a/k/a Ricky, JAMES THURMAN, JOHN HATHORNE



The opinion of the court was delivered by: DIAMOND

 Various pretrial motions filed by the defendants in the above-captioned matter were denied by this court by order dated April 1, 1985. The following constitutes the reasons for their denial.

 Speedy Trial Act

 Defendant Felton has filed a renewed motion to dismiss Counts I and II, a motion to dismiss Counts III through X and a motion to dismiss indictment. Defendant Bruce has filed a motion to adopt the Speedy Trial Act motion of her co-defendants, and defendant Serrao has filed a motion to dismiss Count VIII of the indictment based upon the Speedy Trial Act, 18 U.S.C. § 3161 et seq.

 In United States v. Felton, 592 F. Supp. 172 (W.D.Pa. 1984), this court found that Counts I and II of the present indictment were counts that were required to be joined with those of the indictment at Criminal 79-121. The court relying on United States v. Budzyna, 666 F.2d 666 (1st Cir. 1981), concluded that the non-sanction and time-limit provisions of the Act which applied when the indictment at Criminal 79-121 was returned in June of 1979 control the present case, and that, therefore, no sanctions were applicable. 18 U.S.C. § 3163(c), § 3174(c). Assuming arguendo that the time which expired under the Speedy Trial Act at Criminal 83-49 had to be "tacked" onto the time which had already expired at Criminal 79-121, the court then made findings with respect to the time which had expired at Criminal 79-121. *fn1" The court concluded that forty-eight days had to be deducted from the seventy days within which trial had to commence under the present indictment.

 In this court's Speedy Trial Act calculations for the indictment at Criminal 79-121, we calculated an exclusion pursuant to 18 U.S.C. § 3161(h)(1)(E) based upon the interlocutory appeal of January 15, 1980, as ending on December 17, 1980, the date that the certified copy of the judgment of the Court of Appeals was received and filed by our Clerk of Court, rather than on December 16, 1980, the date that the judgment was issued by the Court of Appeals. [All further references are to subsections of 18 U.S.C. § 3161.]

 In United States v. Rush, 738 F.2d 497 (1st Cir. 1984), cert. denied, 470 U.S. 1004, 105 S. Ct. 1355, 84 L. Ed. 2d 378 (1985), the First Circuit held that the excludable time under (h)(1)(E) ended on the date that the Appellate Court issued its mandate and not on the date that the mandate was received by the district court. Cf., United States v. Ross, 654 F.2d 612 (9th Cir. 1981), cert. denied, 455 U.S. 926, 71 L. Ed. 2d 470, 102 S. Ct. 1290 (1982); but cf., United States v. Gilliss, 645 F.2d 1269 (8th Cir. 1981). In United States v. Russo, 550 F. Supp. 1315, 1319 (D.N.J. 1982), aff'd, 722 F.2d 736 (3d Cir. 1983), cert. denied, 464 U.S. 1045, 79 L. Ed. 2d 179, 104 S. Ct. 716 (1984), the district court held that the date on which the action occasioning retrial became final under § 3161(e) was the date of the issuance of the Circuit Court's judgment and not the date that the judgment was received by the district court. Id. at 1319. While this holding pertained to § 3161(e), we believe it applies as well to § 3161(h)(1)(E); therefore, we now hold that one additional day elapsed at Criminal 79-121 as a result of the issuance of the judgment by the Court of Appeals on December 16, 1980.

 In United States v. Felton we had found that the "338 days between January 15, 1980, and December 17, 1980, when a certified copy of the judgment order was received from the Court of Appeals and filed by our Clerk of Court [were] excludable under (h)(1)(E)." 592 F.Supp at 183.

 We believe that finding must be modified somewhat. The Circuit had originally issued its judgment in lieu of mandate in that interlocutory appeal on October 24, 1980. However, on October 27, 1980, the government filed a motion in the Circuit to stay or recall the mandate. The motion was granted on October 31, 1980, and the case remained in the Circuit on the interlocutory appeal until the judgment was reissued on December 16, 1980, as stated above.

 Since three days elapsed between the initial issuance of the judgment on October 24, 1980, and the filing of the government's motion on October 27, 1980, we also will add those three days to the elapsed time at Criminal 79-121. United States v. Black, 733 F.2d 349 (4th Cir. 1984). Accordingly, we now find that as a result of the appeal of January 15, 1980, at Criminal 79-121, 334 days are excludable under § 3161(h)(1)(E).

 We conclude from the foregoing that fifty-two days at Criminal 79-121 must be deducted from the seventy days within which trial may commence under the present indictment.

 A review of the file and docket entries at Criminal 83-49 reflects the following matters relevant to the computation of the Speedy Trial Act times for the commencement of that trial.

 Initially, the fifty-two days at Criminal 79-121 had to be deducted. This left eighteen days for commencement of trial.

 The indictment at Criminal 83-49 was returned on March 31, 1983, and ordered sealed. Bench warrants were issued for the apprehension of the defendants, and, with the exception of the defendant Cox, all defendants appeared and were ...


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