The government brings these appeals from separate decisions of the district court dismissing the indictments of Gregory Stafford and George Graham under the Speedy Trial Act, 18 U.S.C.A. § 3161 et seq.
The Speedy Trial Act requires that a defendant be tried within 70 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, whichever occurs later. 18 U.S.C.A. § 3161(c)(1). In calculating the 70 day period, Section 3161(h) of the Act excludes time during which certain proceedings involving the defendant or a codefendant are pending. Among these exclusions are three periods of time relevant to this appeal:
The Southern District of Florida's District Plan, adopted pursuant to 18 U.S.C.A. § 3165(e)(3), expressly incorporates these exclusions.
Following their arraignments, Graham's on October 15, 1980, and Stafford's on October 20, 1980, appellees filed a number of pretrial motions over the course of the next several months. On October 22, 1980, Graham filed seven discovery motions
On June 23, 1981, the district court entered an order dismissing Graham's indictment on the same grounds.
The government argues that the district court erred as a matter of law in ruling that, in order to create excludable time under Section 3161(h)(1)(F), a motion must cause actual delay in the commencement date of the trial. Although the trial court and appellees have correctly pointed out that that subsection reads "delay resulting from," the beginning of Section 3161(h) states that "[t]he following periods of delay shall be excluded ...." The latter phrase clearly indicates that each period listed in Section 3161(h) automatically is a period of delay. Moreover, a contrary reading would present extremely difficult practical questions of whether a particular motion did or did not actually delay the commencement of a trial. The virtual impossibility of making such a determination and the resulting uncertainty for defendants as to their Speedy Trial status require the conclusion that Congress could not have intended the statute to be read as appellees suggest. The legislative history of the Act supports our conclusion. See e.g., S.Rep. No. 96-212, 96th Cong., 1st Sess. 33 (1979) (the Act provides for "automatic application of exclusions"); id. at 26 (§ 3161(h)(1)(F) provides for automatic exclusions). Finally, appellees cite no Speedy Trial case interpreting the Act as requiring a factual determination of whether the trial was delayed; our review of the cases reveals that courts seem to have concluded that Section 3161 automatically excludes time. See e.g., United States v. Bufalino, 683 F.2d 639 (2d Cir.1982); United States v. Jodoin, 672 F.2d 232 (1st Cir.1982); United States v. Raineri, 670 F.2d 702, 707-08 (7th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982); United States v. Nance, 666 F.2d 353, 355 (9th Cir.1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982); Furlow v. United States, 644 F.2d 764, 768 (9th Cir.), cert. denied, 454 U.S. 871, 102 S.Ct. 340, 70 L.Ed.2d 175 (1981); United States v. Molt, 631 F.2d 258, 261-62 (3d Cir.1980); United States v. Brim, 630 F.2d 1307, 1311-12 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981). In Brim, the Eighth Circuit, after considering the same arguments presented by the parties in this appeal, stated:
Id. at 1312. We agree with this reasoning and conclude that the trial court in this case erred in deciding that the exclusions are not automatic.
Our holding that Section 3161(h) creates automatic exclusions does not end our inquiry as to whether the Speedy Trial Act was violated in this case. Still before us is the question whether the October 22 motions, the December 15 motion, and the January dismissal motions created enough excludable time to reduce the number of days from arraignment to dismissal to under 70. In order to conduct the necessary calculations, we first must address three threshold issues disputed by the parties concerning the method by which the exclusions are calculated. The first issue is whether a motion filed by one defendant creates excludable time for his codefendant. The second is whether a motion to dismiss under the Speedy Trial Act triggers the exclusion provision contained in Section 3161(h)(1)(F). The third issue concerns the length of time excludable as a result of the filing of pretrial motions.
As to codefendants, Section 3161(h)(7) excludes "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Congress enacted this provision recognizing that multidefendant trials are desirable because they promote efficiency in the disposition of trials. If the Act imposed rigid time limits without applying exclusions to codefendants, courts would be forced to "grant severances which would otherwise not be required." United States v. Varella, 692 F.2d 1352, 1359, (11th Cir.1982) (quoting legislative history of Speedy Trial Act). For this reason, the rule in this Circuit is that the delay caused by one defendant is excludable as to his codefendants. Id.; United States v. Davis, 679 F.2d 845, 849-50 (11th Cir.1982). This rule extends to delay caused by the filing of pretrial motions. Varella, 692 F.2d at 1358. See also United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980); 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).
The parties also dispute the effect of the filing of a motion to dismiss for violation of the Speedy Trial Act. To settle this dispute we need look no further than the explicit language of Section 3161(h)(1)(F), which excludes the period during the pendency of "any motion." A motion to dismiss — regardless of the grounds upon which it is based — is a motion like any other motion, and thus falls within the express exclusion of (F). See Furlow v. United States, 644 F.2d 764, 768 (9th Cir.) (district court was "clearly correct" in ruling that period between the filing of a motion to dismiss for want of prosecution and its disposition is excludable under (F); in reaching this conclusion, the appellate court relied only on the express language of that section), cert. denied, 454 U.S. 871, 102 S.Ct. 340, 70 L.Ed.2d 175 (1981); United States v. Hencye, 505 F.Supp. 968, 972 n. 3 (N.D.Fla. 1981) (dictum). But cf. United States v. New Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir.1979) (motion to dismiss does not toll 180 day period under Rules 5(a)(1) and 7(a)(1) of interim Western District of New York Plan). Moreover, neither party points us to any other provision of the statute or any statement in its legislative history suggesting a contrary interpretation. Nevertheless, appellee Graham urges that we adopt a rule of non-exclusion on policy grounds, arguing that excluding time for filing dismissal motions would penalize defendants for attempting to assert their rights. Of course, if the 70 day period has in fact expired at the time the motion to dismiss is filed, whether or not it stops the clock does not matter. Graham suggests that a defendant concerned about the rule of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and United States v. Herman, 576 F.2d 1139 (5th Cir. 1978) — which requires that courts consider, among other things, the timeliness of a defendant's speedy trial claim in assessing
The final preliminary issue to be resolved concerns the length of time excludable for pretrial motions. Both (F) and (J) of Section 3161 apply to such motions and thus are relevant to our inquiry. The exclusion in (F) is granted in two situations and applies differently depending on which situation occurs. The first is when a pretrial motion requires a hearing. If a hearing is held, (F) by its terms excludes without qualification the entire period between the filing of the motion and the conclusion of the hearing.
S.Rep. No. 96-212, supra, at 34. Our interpretation of (F) and (J) is consistent with United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir.1982), in which we held that no more than 30 days could be excluded for pretrial motions which did not require hearings. The government argues that in DeLongchamps there was no discussion of exclusion under (F). In that case, the pretrial motions were filed December 31, 1980, and were not resolved as to two defendants until July 1, 1981. It seems unlikely that such a disposition could be termed "prompt" so as to meet the requirement of (F); accordingly, we properly limited the exclusion to the 30 day period permitted by (J). In addition to DeLongchamps, we note that at least two other circuits read Section 3161(h) as we do. See United States v. Bufalino, 683 F.2d at 641-45;
Having thus disposed of these questions, the calculation of non-excludable time for each appellee is relatively straightforward. Stafford was arraigned October 20, so the Speedy Trial clock started the next day, October 21. The October 22 motions by Graham stopped the clock as to Stafford — after one non-excludable day. § 3161(h)(7). These motions were, with one exception, decided January 9. No hearing was held on any of the motions, and their disposition was not "prompt" within the meaning of Section 3161(h)(1)(F).
The dates and calculations for Graham are the same as those for Stafford with two exceptions. The first is that Graham's indictment was dismissed over two months after the court dismissed Stafford's indictment. According to the government, the reason that Graham's indictment was not dismissed at the same time as Stafford's was that Graham did not appear at the
The second difference between the calculation for Stafford and the calculation for Graham arises from the fact that Graham was arraigned on October 15 — five days before Stafford's October 20 arraignment. The government argues that we should nevertheless begin counting Graham's time from October 20, citing Section 3161(h)(7) and the legislative history behind that section. See S.Rep. No. 93-1021, 93d Cong., 2d Sess. 38 (1974). We need not reach this question, however, since, even under our alternative calculation for Graham, adding five days to 60 non-excludable days results in a total less than 70.
Accordingly, we REVERSE the trial court's dismissal of each indictment and REMAND this case to the district court for reinstatement of the indictments.