13

‐ 2068 (L)

United States v. Love

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

_______________

August Term, 2015

(Argued: January 11, 2016 Decided: February 10, 2016)

Docket Nos. 13

‐ 2068, 13

‐ 3490, 13

‐ 3032

___________________ _____________________ ________________

U NITED S TATES OF A MERICA

,

Cross

‐ Appellant

‐ Appellee

,

—v.—

T INA L. H OLLEY

,

Defendant,

W ARREN L OVE

,

Defendant

‐ Appellant

‐ Cross

‐ Appellee.

___________________ _____________________ ________________

Before: K ATZMANN

, Chief Judge ; J ACOBS and W ESLEY

, Circuit Judges

.2 Appeal from a judgment of conviction following a jury trial on one count

of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§

841(a)(1) & 841(b)(1)(C), one count of use of a premises to manufacture,

distribute and use a controlled substance in violation of 21 U.S.C. § 856(a)(1), one

count of possession of firearms in furtherance of drug trafficking crimes in

violation of 18 U.S.C. § 924(c)(1), and one count of being a felon in possession of

firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2)

(Larimer, J. ). We hold that Love has waived his claims of violations of the Speedy

Trial Act, 18 U.S.C. § 3161, that he did not specifically raise in the district court,

and that even if he were to prevail on the claims that he did raise in the district

court, no violation of the Speedy Trial Act occurred. 1

_______________

J ERALD B RAININ

, Los Angeles, CA, for Defendant

‐ Appellant

.

J OSEPH J. K ARASZEWSKI

, Assistant United States Attorney, for William J. Hochul,

Jr., United States Attorney for the Western District of New York, for Appellee.

_______________

P ER C URIAM :

Defendant Warren Love appeals from a judgment of conviction, entered

on August 6, 2013, following a jury trial, by the United States District Court for

the Western District of New York (Larimer, J .), on one count of possession with

intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) &

841(b)(1)(C), one count of use of a premises to manufacture, distribute and use a

controlled substance in violation of 21 U.S.C. § 856(a)(1), one count of possession

of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. §

1 We address Love’s other claims on appeal in a separate summary order filed concurrently

with this opinion.3 924(c)(1), and one count of being a felon in possession of firearms and

ammunition in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). 2

Love argues that the district court erred by excluding from calculation, for

purposes of the Speedy Trial Act (“STA”), 18 U.S.C. § 3161, forty days of delay

resulting from the government’s filing of two motions to set a trial date. Love

also argues, for the first time on appeal, that the district court erred by excluding

periods of delay resulting from the joinder of his case with that of his co

‐

defendant, Tina Holley, and that the associated ends

‐ of

‐ justice continuances

were not adequately supported. The question of whether Love waived the latter

claim by failing to raise it in his motion to dismiss on STA grounds before the

district court is one of first impression in this Circuit. We hold that he did.

Because Love cannot establish an STA violation even if the district court

erred in excluding the periods of delay resulting from the government’s motions

to set a trial date, we do not decide that question.

2 The jury also convicted Love of one additional count of use of a premises to manufacture,

distribute and use a controlled substance in violation of 21 U.S.C. § 856(a)(1) and one additional

count of possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C.

§ 924(c)(1). The district court granted Love’s motion for a judgment of acquittal on these counts

pursuant to Fed. R. Crim. P. 29. The government filed notices of appeal on May 15, 2013 and

September 4, 2013 challenging that decision and Love’s sentence, respectively. However, the

government subsequently determined that it would not pursue these cross

‐ appeals.

Accordingly, the government’s cross

‐ appeals are dismissed.4 BACKGROUND

On April 6, 2010, members of the Greater Rochester Area Narcotics

Enforcement Team executed search warrants at the rear first and second floor

apartments at 399 Lake Avenue, Rochester, New York. When the officers entered

the building to conduct the search, they encountered defendant Warren Love

standing in or near the open door to the first floor apartment. During the search

of the two apartments, the officers recovered cocaine base, marijuana, drug

‐

related paraphernalia, several firearms, body armor, ammunition, and mail

addressed to Love and his co

‐ defendant, Tina Holley. Holley arrived at the

residence during the search, and the officers took both Love and Holley into

custody.

On June 15, 2010, Love and Holley were indicted in the Western District of

New York on drug

‐ and firearm

‐ related charges. On September 27, 2010, they

were arrested by federal authorities in the Western District of Wisconsin, and

Love was arraigned in the Western District of New York on October 20, 2010. On

September 30, 2011, following motion practice involving both defendants, the

government filed a motion to set a trial date. On October 19, 2011, the court set a

pretrial conference for October 31, 2011 and trial for November 7, 2011 as to both5 defendants. However, Holley decided to plead guilty and cooperate with the

government. The court adjourned the trial date to allow the government to

supersede the indictment against Love.

On November 3, 2011, the grand jury returned a superseding indictment

charging Love in seven counts. On July 23, 2012, following additional motion

practice concerning Love, the government filed a second motion to set a trial

date. On August 10, 2012, Love moved to dismiss the indictment based on

violations of the STA. He raised two arguments, only one of which he renews

here. Specifically, he argued that the periods of delay that occurred while the

government’s two motions to set a trial date were pending were not excludable

because they were not “pretrial motion[s]” within the meaning of the STA. 18

U.S.C. § 3161(h)(1)(D). The district court rejected both arguments, holding that no

STA violation occurred.

Love’s trial took place from December 3 to 7, 2012. Following trial, the jury

rendered guilty verdicts on six of the seven counts of the superseding

indictment. 3 The district court granted Love’s motion for a judgment of acquittal

with respect to two of those counts and sentenced Love principally to 156

3 On the government’s motion, the district court dismissed count one, which charged Love with

narcotics conspiracy in violation of 21 U.S.C. § 846 before trial.6 months’ incarceration on the remaining four counts. Love timely filed this

appeal.

DISCUSSION

Love argues that the district court erred by denying his motion to dismiss

based on violations of the STA. He contends that certain periods of delay were

not excludable from the speedy trial clock: (1) delay resulting from the filing of

the government’s two motions to set a trial date; (2) delay resulting from Love’s

joinder with co

‐ defendant Holley; and (3) continuances granted to Holley’s

counsel based on various ends

‐ of

‐ justice exclusions. The government argues that

Love waived any challenge to the second and third categories of delay by failing

to raise them in the district court. We agree.

The STA requires that a criminal defendant must be tried within seventy

days of the filing the information or indictment, or of his initial appearance in the

district where the charges are pending, whichever occurs later. See 18 U.S.C. §

3161(c)(1). The STA provides that certain periods of delay are excludable from

the seventy

‐ day speedy trial clock, including, as relevant here, “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,” id. § 3161(h)(1)(D),7 and “[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.” Id. § 3161(h)(6).

When a defendant has preserved his STA claims by making a timely

motion to dismiss the indictment, we review the district court’s findings of

relevant facts for clear error and its application of the STA to those facts de novo

.

See United States v. Shellef

, 718 F.3d 94, 101 (2d Cir. 2013). However, the STA

provides that “[f]ailure of the defendant to move for dismissal prior to trial or

entry of a plea of guilty or nolo contendere shall constitute a waiver of the right

to dismissal under this section.” 18 U.S.C. § 3162(a)(2). Under this provision, if

the defendant fails to move for dismissal on STA grounds in the district court,

this Court cannot review any such claim on appeal, even for plain error. See

United States v. Abad

, 514 F.3d 271, 274 (2d Cir. 2008) (per curiam).

We have not squarely addressed whether the STA’s waiver provision

applies where, as here, the defendant made a timely motion to dismiss on STA

grounds but failed to challenge a particular period of delay. Cf. United States v.

Oberoi

, 547 F.3d 436, 458 (2d Cir. 2008), vacated on other grounds

, 559 U.S. 999

(2010). However, several other circuit courts have held that, under these8 circumstances, the defendant has waived any claims not specifically raised

below. See United States v. Taplet

, 776 F.3d 875, 881 (D.C. Cir. 2015); United States

v. Loughrin

, 710 F.3d 1111, 1121 (10th Cir. 2013); United States v. Gates

, 709 F.3d 58,

67 (1st Cir. 2013); see also United States v. O’Connor

, 656 F.3d 630, 637 (7th Cir.

2011). We are persuaded by the reasoning of our sister circuits.

The statute provides that “[f]ailure of the defendant to move for dismissal

prior to trial” constitutes waiver and imposes on the defendant “the burden of

proof of supporting such motion.” 18 U.S.C. § 3162(a)(2). As the D.C. Circuit has

noted, “[i]mplicit in the requirement that a defendant ‘move for dismissal’ is the

requirement that the defendant specify the reason for the motion. When a

defendant fails to specify the particular exclusions of time within his or her

motion to dismiss, the defendant has failed to move for dismissal on that

ground.” Taplet

, 776 F.3d at 880 (citing Fed. R. Crim. P. 47(b) (“A motion must

state the grounds on which it is based.”)); accord Gates

, 709 F.3d at 67–68.

Therefore, the text of the statute strongly suggests that Congress intended for the

waiver provision to preclude the defendant from making new arguments on

appeal.9 This conclusion is consistent with the broader statutory scheme. The

Supreme Court has noted that the STA “assigns the role of spotting violations of

the Act to defendants—for the obvious reason that they have the greatest

incentive to perform this task.” Loughrin

, 710 F.3d at 1121 (quoting Zedner v.

United States

, 547 U.S. 489, 502–03 (2006)). This ensures that the district court has

the opportunity to develop all arguments below and fully explain its reasoning

for excluding a particular period of delay. Id. If we were to review arguments

raised for the first time on appeal, then the burden to identify STA violations

would shift to the district court to comb the record for potential violations. See id

.

(“The alternative would force the court on a motion to dismiss for [an] STA

violation to consider every conceivable basis for challenging its orders of

continuance and exclusions of time.

. . .”). This would contravene Congress’s

intent to place that burden squarely on the defendant.

Love argues that he preserved his arguments relating to delay attributable

to Holley in his reply to the government’s opposition to his STA motion, which

stated:

[A]lthough not specifically referred to in our motion to dismiss, the

defense does not concede or agree that the Court need only decide

or be limited in the specific dates referenced in our motion to

dismiss. Should there be additional periods of time the Court10 concludes are not excludable under the speedy trial act we would so

move for those time periods to be included and added to the speedy

trial clock.

Reply Brief for Defendant at 2, United States v. Love

, No. 6:10

‐ cr

‐ 6116 (W.D.N.Y.

Sept. 4, 2012), ECF No. 113. This vague statement is plainly insufficient to

preserve the arguments that Love now makes on appeal (for the first time in

reply); it does not provide the court or the government any meaningful notice of

Love’s claims. See Barbour v. City of White Plains

, 700 F.3d 631, 634 (2d Cir. 2012)

(holding that statement “[l]acking specificity or citation to legal authority” was

insufficient to preserve argument for appeal). Accordingly, we hold that Love

has waived his arguments relating to Holley because he failed to specifically

raise them below.

Love also argues that the district court erred by excluding the forty days of

delay that followed the government’s filing of its two motions to set a trial date.

Even if that is the case, however, no violation of the STA occurred. The

government concedes that, excluding the periods that Love challenges on appeal,

twenty

‐ two days of non

‐ excludable delay elapsed. If Love is correct that the

additional forty days of delay were non

‐ excludable, then a total of sixty

‐ two days

of non

‐ excludable delay elapsed between his arraignment and the filing of his11 motion to dismiss on STA grounds. As discussed above, Love has waived all

other periods of non

‐ excludable delay. Therefore, the non

‐ excludable delay in

this case totaled less than the seventy days permitted by the STA, and no STA

violation occurred. We need not reach Love’s argument that the government’s

motions to set a trial date were not “pretrial motions” within the meaning of the

STA.

CONCLUSION

For the reasons stated herein, we hold that Love has waived his claim that

the district court violated the STA by excluding periods of delay attributable to

his co

‐ defendant and that, even if the other challenged periods of delay were not

excludable, no violation of the STA occurred.