WIDENER, Circuit Judge:
The defendant, Clarence Wright, appeals the district court's refusal to dismiss his indictment. Wright argues that his indictment was returned in violation of the Speedy Trial Act, 18 U.S.C. § 3161(b). We find no error and we affirm.
Wright was arrested on August 16, 1991 for two counts of distributing and possessing with the intent to distribute five or more grams of crack cocaine under 21 U.S.C. § 841(a)(1). On August 19, 1991, Wright went before the Magistrate Judge for his F.R.Cr.P. 5 hearing (initial appearance). On the government's motion, a temporary detention order for Wright was granted by the court. A combination detention and preliminary hearing was set by the Magistrate Judge for August 20. The next day, August 20, the Magistrate Judge found that there was probable cause Wright had committed the charged offenses. The Magistrate Judge also ordered the defendant detained.
On Monday, September 16, 1991, thirty-one days after he was arrested, Wright filed a pro se motion to dismiss the complaint arguing the government violated the Speedy Trial Act by not indicting him within
The district court rejected Wright's motion to dismiss his indictment, finding there was not a violation of the Speedy Trial Act. The district court found that Wright's initial appearance on August 19, 1991 and his detention and preliminary hearing on August 20, 1991 were pre-trial proceedings excludable from the thirty-day computation of the Speedy Trial Act under 18 U.S.C. § 3161(h)(1). After excluding those two days from the computation, the district court held that the indictment was returned within the 18 U.S.C. § 3161(b) time period. A later October 15th motion by Wright for reconsideration of his earlier motion to dismiss (now the indictment) was denied by the district court on October 18, 1991. After a jury trial, Wright was convicted on one count of the indictment. The sole issue on appeal is whether the district court erred when it refused to dismiss Wright's indictment, returned thirty-two days after his arrest, as in violation of the Speedy Trial Act.
We review the legal conclusions in the district court's application of the Speedy Trial act de novo. United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir.1991).
The relevant provision of the Speedy Trial Act is clear. It states that
18 U.S.C. § 3161(b). Under 18 U.S.C. § 3162(a)(1), an indictment in violation of this time period must be dismissed. Wright's argument is that the thirty-two days from the time of his arrest on August 16, 1991 to the day of his indictment on September 17, 1991 is a violation of this section and the charge should have been dismissed.
The requirement of dismissal, however, is not absolute. Section 3162(a)(1) provides:
(emphasis added). Section 3161(h) provides for certain periods of excludable delay that extend the thirty-day period of § 3161(b). Most relevant of these tolling provisions to this case are § 3161(h)(1) and § 3161(h)(1)(F). They provide:
Giving plain, ordinary meaning to the wording of these provisions, we are of opinion that the district court was correct when it refused to dismiss Wright's indictment by excluding both August 19th, the day of Wright's initial appearance, and August 20th, the day of Wright's preliminary and detention hearing, from the Speedy Trial thirty-day period of § 3161(b).
We are of opinion and hold that Wright's initial appearance on August 19 qualifies under § 3161(h)(1) as a "period of delay resulting from other proceedings concerning the defendant." Certainly a Rule 5 hearing is a "proceeding concerning the defendant." See United States v. Bowers, 834 F.2d 607, 609 (6th Cir.1987) (day of arraignment excluded); United States v. Yunis, 723 F.2d 795, 797 (11th Cir.1984)
Much the same should be said for August 20th, the next day in question, and the day Wright had his combination preliminary and detention hearing. This day qualifies as an excusable delay under § 3161(h)(1). Thus, under the Speedy Trial Act, both August 19th and August 20th were excludable days because of the proceedings concerning Wright that occurred on those days and also the pretrial motion for detention made by the government and resolved by the court.
We also rely on an alternate analysis which supports the holding of the district court. Because the last day of the Speedy Trial period fell on a Sunday, Federal Rule of Criminal Procedure 45(a) applied, which made Monday, September 16th, the 30th day (not counting statutory exclusions) to indict Wright.
Under any rationale we have set forth, our conclusion is the same. The indictment 32 calendar days after the defendant's arrest was not a violation of the Speedy Trial Act.
The judgment of conviction is accordingly