Of the District of Maine, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-2849

UNITED STATES OF AMERICA,

Appellee,

v.

ANDREW S. HOOD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella and Lynch, Circuit Judges,

and Woodcock, Jr., District Judge. *

Chauncey B. Wood, with whom Shea, Larocque & Wood, LLP was on

brief, for appellant.

Timothy Q. Feeley, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief, for

appellee.

November 17, 2006
 Apparently, Hood was not arrested at this time. 1

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TORRUELLA, Circuit Judge. On August 22, 2005, a jury

found Andrew S. Hood ("Hood") guilty of receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2) and possession

of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

Hood challenges his conviction on the ground that his rights under

the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were violated.

After careful consideration, we affirm Hood's conviction.

I. Facts

In 2004, investigators from the United States Postal

Service, armed with a search warrant, reviewed records of a credit

card processor known to do business with a Russian child

pornography distributor. Hood's name appeared in the processor's

records. Postal investigators sent a letter to Hood soliciting an

order for child pornography videotapes. Hood responded by mailing

an order form and a money order for $125 to the postal

investigators. When Hood arrived at the post office to collect his

videotapes, he was detained by a postal investigator. After being

read his Miranda rights, Hood admitted ordering the videotapes and

further admitted possessing additional child pornography on his

computer. Hood was indicted by a grand jury on March 16, 2005. 1

On March 21, Hood was arrested; the district court appointed Leslie

Feldman-Rumpler ("Feldman-Rumpler") as Hood's attorney and the

Government moved for pretrial detention. Hood later obtained his
 This time period actually encompasses seven days, counting both 2

April 22 and April 28. However, as we later explain, this time

period is excludable.

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own counsel, Robert D. Lewin, who entered an appearance on

April 11. On April 12, the court held a detention hearing for

Hood. On April 13, Feldman-Rumpler, Hood's court-appointed

attorney, filed a motion to withdraw as counsel. The court held

another detention hearing on April 21, during which the court

granted the Government's motion for pretrial detention, but did not

set the conditions of the detention. On April 29, Hood and the

Government attended an initial status conference. On May 4, the

court granted Feldman-Rumpler's motion to withdraw and entered an

"Order of Excludable Delay," stating that for purposes of the

Speedy Trial Act, as of May 31, only "six non-excludable days"

(April 22 - April 28) had passed since Hood's arrest.2

On May 10, the court held a release hearing, during which

it determined conditions for Hood's release from jail. On June 15,

Hood and the Government filed a "Final Status Conference Joint

Memorandum" representing that there were no discovery issues known

or anticipated, no schedule needed to be set, a plea was unlikely,

and the trial would take no more than four days. The order also

represented that there were no periods of excludable delay other

than those mentioned in the May 4 order. The court held the final

status conference on June 16, and entered a "Further Order of
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Excludable Delay," stating that as of June 16, twenty-one nonexcludable days had passed since Hood's arrest.

On June 24, the court scheduled a status/pretrial

conference for June 29. The court cancelled the conference on

June 28. On July 12, the Government filed a motion for a new

pretrial conference and to exclude time from June 29 until the new

pretrial conference. On July 20, Hood agreed to the Government's

proposed pretrial conference and filed his opposition to the motion

to exclude time. On July 21, the court ordered a pretrial

conference to be held on August 4.

On August 4, at the pretrial conference, Hood filed a

"Motion to Dismiss the Indictment with Prejudice for Lack of a

Speedy Trial." The Government filed two motions to exclude time

from April 13 - May 4 and from July 12 - August 4. The court

granted both of the Government's motions to exclude time and denied

Hood's motion to dismiss. The court scheduled trial for August 22.

Hood was tried and convicted of receipt of child pornography in

violation of 18 U.S.C. § 2252(a)(2) and possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

II. Discussion

We review "the district court's denial of a motion to

dismiss based upon the Speedy Trial Act de novo as to legal rulings

and for clear error as to factual findings." United States v.

Maxwell, 351 F.3d 35, 37 (1st Cir. 2003). The Speedy Trial Act
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requires that a court grant a defendant's motion to dismiss for

lack of a speedy trial if the defendant is not brought to trial

within seventy non-excludable days. 18 U.S.C. §§ 3161, 3162(a)(2).

In reviewing a claim under the Speedy Trial Act, we must

first calculate "the aggregate time elapsed awaiting trial."

United States v. Barnes, 159 F.3d 4, 10 (1st Cir. 1998) (quoting

United States v. Staula, 80 F.3d 596, 600 (1st Cir. 1996))

(internal quotation marks omitted). The speedy trial clock begins

ticking on the day a defendant first appears in court and stops the

day the defendant files a motion to dismiss for lack of a speedy

trial. See Staula, 80 F.3d at 600. Hood was arrested and first

appeared in court on March 21; he filed his motion to dismiss on

August 4. We thus calculate that a total of 137 days elapsed

between Hood's arrest and his motion to dismiss.

Next, we determine how many days should be excluded under

the Speedy Trial Act. Barnes, 159 F.3d at 10. Time may be

excluded under the Speedy Trial Act for, inter alia, "delay

resulting from any pretrial motion, from the filing of the motion

through the conclusion of the hearing on, or other prompt

disposition of, such motion," 18 U.S.C. § 3161(h)(1)(F), and "delay

reasonably attributable to any period, not to exceed thirty days,

during which any proceeding concerning the defendant is actually

under advisement by the court," 18 U.S.C. § 3161(h)(1)(J). Hood

does not challenge the orders of exclusion entered on May 4 and
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June 16, which provided for a total of sixty-six excludable days.

Further, the day the motion to dismiss for lack of a speedy trial

is filed is excludable as delay resulting from a pretrial motion.

United States v. Rodríguez, 63 F.3d 1159, 1163-64 (1st Cir. 1995).

Thus, we calculate sixty-seven days that are undisputedly

excludable under the Speedy Trial Act.

Hood argues that the Government uses "pretext" for the

additional exclusions of time that they seek. More specifically,

he adds that two periods of time are evidence of pretext: (1) the

Government's attempted expansion of seven days (associated with

Feldman-Rumpler's motion to withdraw) beyond the court's original

exclusion of time, when the Government had agreed earlier that the

additional time was not excludable, and (2) the time resulting from

the court's unexplained cancellation of the pretrial conference.

We have previously held that the Speedy Trial Act sets

bright-line rules, and we will not distinguish between exclusions

based on "significant or complex 'pretrial motions' and simple or

routine motions." Barnes, 159 F.3d at 11. However, we have

cautioned that "neither counsel nor district courts may employ

measures for excluding time from the speedy trial clock that

impermissibly frustrate the [Speedy Trial Act]'s purpose of

protecting the shared interest of criminal defendants and the

public in 'bringing criminal charges to the bar of justice as

promptly as practicable.'" United States v. Richardson, 421 F.3d
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17, 29 (1st Cir. 2005); see also United States v. Scott, 270 F.3d

30, 54-57 (1st Cir. 2001) (reversing on the basis of the district

court's unauthorized late decisions on motions); Staula, 80 F.3d at

602 n.3 ("We will not permit either the district court or the

prosecution to jerry-build a 'hearing' in order to thwart the

concinnous operation of the Speedy Trial Act.").

The Government sought, and the court granted, exclusion

for April 13 - May 4, during which Feldman-Rumpler's motion to

withdraw was pending. Hood argues that this period should not be

excluded because Feldman-Rumpler's motion to withdraw did not

actually delay the proceedings in the case. Hood points out that

his new attorney, Mr. Lewin, had already begun participating in the

trial before Feldman-Rumpler offered her motion to withdraw, and

thus no delay resulted.

We have stated that the pendency of a pretrial motion is

excludable time regardless of its type or its actual effect on the

trial. See Rodríguez, 63 F.3d at 1166 ("[I]t is clear in this

Circuit as in others that the exclusions of § 3161(h)(1)(F) and (J)

are 'automatic,' and do not depend upon any showing of actual

delay."); see also United States v. Daychild, 357 F.3d 1082, 1095

(9th Cir. 2004) (excluding time during which a defense counsel's

motion to withdraw was pending because "the language of the

statutory exclusion for delay . . . is unqualified as to the type

of motion"). Furthermore, we do not see any evidence that the
 Hood claims that the Government must be held to its 3

representation about the amount of excludable time in the Final

Status Conference Joint Memorandum. However, at oral argument,

Hood conceded that the Memorandum was a status report, not a

binding stipulation. The district court acted within its

discretion in later concluding that additional time was properly

excluded under the Speedy Trial Act.

 On May 4, the court excluded the periods from April 13 - April 4

21 and from April 29 - May 4, neither of which has been challenged

by Hood. Thus, the district court only needed to exclude an

additional seven days, from April 22 - April 28, to account for

Feldman-Rumpler's pending motion to withdraw.

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motion to withdraw was part of a Government attempt to frustrate

the operation of the Speedy Trial Act; to the contrary, the motion

was filed by Hood's own attorney. Thus, the district court did 3

not err in excluding an additional seven days on account of

Feldman-Rumpler's motion to withdraw.4

Accordingly, we add an additional seven excludable days

to the sixty-seven undisputed excludable days, for a total of

seventy-four excludable days. Subtracting seventy-four excludable

days from 137 total days, we find that there could have been no

more than sixty-three non-excludable days prior to Hood's motion to

dismiss. Given that this falls well under the maximum of seventy

non-excludable days permitted by the Speedy Trial Act, 18 U.S.C.

§ 3161, we find that the district court properly denied Hood's

motion to dismiss for lack of a speedy trial. Because of this

calculation, we do not need to address the defendant's argument

about the cancellation of the pretrial conference. We wish,

though, to discourage the cancellations of pretrial conference
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dates without setting new dates and without explanation. Such

practices can create potential Speedy Trial Act problems, as this

case illustrates.

III. Conclusion

For the foregoing reasons, we affirm the district court.

Affirmed.