JOHNSON, Circuit Judge:
Appellant Frederick Lee Campbell was convicted in federal district court for conspiracy to possess with intent to distribute a quantity of cocaine hydrochloride and for aiding and abetting, in violation of 21 U.S. C.A. §§ 846, 841(a)(1) and 18 U.S.C.A. § 2. The only issue before us is whether a 266-day delay from Campbell's indictment to his trial constituted a violation of the Speedy Trial Act, 18 U.S.C.A. § 3161 et seq. We conclude that the Act was not violated and affirm his conviction.
Campbell was arrested on August 14, 1980, and first appeared before a magistrate later that same day. He was indicted, along with four co-defendants, on August 19 and was arraigned on September 2. The Speedy Trial Act, 18 U.S.C.A. § 3161(c)(1), requires that a defendant be tried within 70 days of the filing of the information or indictment, or of the date the defendant first appears before a judicial officer of the court, whichever occurs later. Thus, as Campbell and the government agree, the 70-day Speedy Trial period began the day after August 19. See United States v. Mers, 701 F.2d 1321, 1332 n. 6 (11th Cir. 1983). After August 19, three sets of pretrial motions were filed which triggered exclusions of time from the 70-day period. See 18 U.S.C.A. § 3161(h). We address each set of motions in turn.
1. Campbell's discovery and inspection motions. The government contends that Campbell stopped the Speedy Trial clock on September 11, 1980-21 non-excludable days after August 19
2. The co-defendants' "Northside Realty" motions. During the pendency of the discovery and inspection motions, Campbell's four co-defendants filed motions to dismiss based on alleged statutory and constitutional defects in the selection and empanelment of grand juries in the Northern District of Georgia. Campbell did not file such a motion. On November 14, 1980, while the motions were still pending, the trial court certified as excludable time pursuant to Section 3161(h)(8)(B)(ii) the time from the filing of the motions to their disposition.
After the dismissal orders were entered, the trial court adopted a magistrate's recommendation to exclude, pursuant to Section 3161(h)(7), all time as to Campbell from September 17, 1980, when the first of Campbell's co-defendants filed his motion to
Although Campbell acknowledges that the (h)(7) exclusion applied to him, he disagrees with the manner in which the district court calculated the amount of time excluded. According to the magistrate's recommendation, which the district court adopted, the Speedy Trial clock stopped on September 17 and started again on March 18, the day after the Northside Realty decision. We have already counted 21 non-excludable days before Campbell stopped the clock with his discovery and inspection motions on September 11. Thus, according to the magistrate's calculations, the 22nd non-excludable day began on March 18. This approach, which simply stops the clock for one defendant in the same manner and for the same amount of time as for all co-defendants, follows the interpretation of (h)(7) adopted in this Circuit. See United States v. Struyf, supra, 701 F.2d at 878 ("[A]n exclusion applicable to one defendant applies to all codefendants."); United States v. Stafford, supra, 697 F.2d at 1372 ("[T]he rule in this Circuit is that the delay caused by one defendant is excludable as to his codefendants."); United States v. Varella, 692 F.2d 1352, 1358-59 (11th Cir.1982). This also appears to be the interpretation of the Eighth Circuit, United States v. Fogarty, 692 F.2d 542, 546 (1982), the D.C. Circuit, United States v. Edwards, 627 F.2d 460, 461, cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980), and the Second Circuit, United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980).
Against this method of calculating excludable time under (h)(7), Campbell cites the Judicial Conference's Guidelines (p. 52), which describe the starting and stopping point for the (h)(7) exclusion as follows:
The difference between this calculation and the calculation of the district court is that, while the district court began excluding time for Campbell as soon as the first dismissal motion was filed, the Guidelines suggest beginning the exclusion period only after all 70 days of Campbell's Speedy Trial time otherwise would expire. Not considering the dismissal motions of Campbell's co-defendants, Campbell's 70-day period would have run on November 21, 1980. The Guidelines therefore would begin the (h)(7) exclusion on November 22 and, like the district court, end the exclusion the day his co-defendants were dismissed. This means that March 18 would mark the beginning of the 71st day for Campbell without trial
We decline to follow the Guideline's suggested calculation for excluding time under (h)(7). As indicated above, this Circuit, along with other circuits, reads (h)(7) to exclude the same amount of time for one defendant as is excluded for his co-defendants. See Struyf, supra; Stafford, supra.
Therefore, we hold that the same amount of time that was excluded for the co-defendants under § 3161(h)(8) was also excludable for Campbell under § 3161(h)(7). Campbell, however, also attacks the district court's calculation of the (h)(8) exclusion for his co-defendants, again relying on the interpretation espoused in the Judicial Conference's Guidelines. As with the (h)(7) exclusion, the Guidelines would not begin the (h)(8) exclusion period until after the co-defendants' 70-day periods had expired.
3. Campbell's motion to dismiss. After March 17, 16 non-excludable days passed until April 3, when Campbell filed a motion to dismiss for violation of the Speedy Trial Act. Following a magistrate's recommendation in favor of the government, the district court held a hearing for argument on the motion on May 11. The court denied the motion and Campbell's trial began the next day. Section 3161(h)(1)(F) provides for exclusion of all time between the filing of any pretrial motion and either a) its "prompt" disposition or b) a hearing, if any, on the motion. We need not decide whether the disposition of Campbell's dismissal motion was prompt in light of the May 11 hearing. Section 3161(h)(1)(F) excludes by its terms all time from the filing of the motion to the hearing. United States v. Stafford, 697 F.2d at 1373 & n.4.
Accordingly, 21 non-excludable days passed from August 19 to September 11 and
In Stafford, the Speedy Trial clock began on October 21. Stafford's co-defendant Graham filed pretrial motions on October 22, and the court held that under (h)(7) the clock stopped on that day for both defendants. 697 F.2d at 1374. Obviously, the 70-day period had not expired for Stafford on October 22, when the court began excluding his time.
Other courts calculate the (h)(7) exclusion in the same manner. For example, in United States v. Fogarty, 692 F.2d at 545, the Eighth Circuit excluded 61 days for Fogarty's three co-defendants who had filed various pretrial motions beginning on October 15, 1981. The Speedy Trial clock had started for all four defendants on September 8, 1981. The court excluded all 61 days for Fogarty under (h)(7), even though far fewer than 70 days had passed when his co-defendants' exclusion period began on October 15. Id. at 546-47. See also United States v. Bufalino, 683 F.2d 639, 641 (2d Cir.1982) (exclusion of time for co-defendant's bail hearing four days after arraignment), cert. denied, ___ U.S. ___, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983); United States v. Manbeck, 514 F.Supp. 152, 154 (D.D.C.1981) (applying United States v. Edwards, 627 F.2d at 461).
If no hearing had been held on Campbell's dismissal motion, most of this time nevertheless would have been excludable under § 3161(h)(1)(J). Under that section, a maximum of 30 days' exclusion is permitted during the time that a motion is "actually under advisement by the court." A motion is under advisement starting when the court receives all the papers it expects from the parties. United States v. Stafford, 697 F.2d at 1373 & n. 5. In this case, the government filed its response to Campbell's dismissal motion on April 16, so the exclusion under § 3161(h)(1)(J) would have run from April 16 to May 11.