*

Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

Nos. 92-9217, 92-9229.

UNITED STATES of America, Plaintiff-Appellee,

v.

Woodrow Larry BEARD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Timothy BARNES, Defendant-Appellant.

Jan. 10, 1995.

Appeals from the United States District Court for the Northern

District of Georgia. (Nos. 1:88-CR-488-5, 1:89-CR-373-2), Robert L.

Vining, Jr., Judge.

Before KRAVITCH and DUBINA, Circuit Judges, and GIBSON*

, Senior

Circuit Judge.

KRAVITCH, Circuit Judge:

Whether the time calculated under the Speedy Trial Act, 18

U.S.C. §§ 3161-74, is tolled during the pendency of a pretrial

motion, is the main issue presented. Because we hold that the time

during which Appellants' pretrial James motions were pending is

excludable under the Act, we AFFIRM the district court's order

denying Appellants' motions to dismiss their indictments.

I.

Beard was arrested in October 1988 as part of a large scale

drug investigation conducted by the Drug Enforcement Agency and the
 1

In separate indictments, Beard was charged with marijuana

and cocaine violations. He was tried and found guilty on the

cocaine charges. Only the marijuana charges are relevant to this

appeal. 

 2Beard reserved his right to appeal this issue. 

 3Beard was not a codefendant in Barnes's case. 

Georgia Bureau of Investigation.1 On December 5, 1988, Beard filed

a motion for a James hearing to determine whether the statements of

his alleged coconspirators would be admissible against him pursuant

to Fed.R.Evid. 801(d)(2)(E). On January 5, 1989, at a pretrial

conference, the magistrate judge deferred Beard's motion for a

James hearing to the trial judge. Beard was not brought to trial

and on January 16, 1992, he moved to dismiss his indictment,

alleging a violation of the Speedy Trial Act. When that motion was

denied, Beard pleaded guilty to possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1);

attempt to possess with intent to distribute marijuana in violation

of § 21 U.S.C. § 846; and use of a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1). He now

appeals from the denial of his speedy trial motion.2

In June 1989, Barnes pleaded guilty in state court to charges

of cocaine possession. In October 1989, Barnes was arrested on

federal drug charges, stemming from the same overall investigation.

On October 30, 1989, Barnes filed a motion for a James hearing. At

a pretrial conference held on November 21, 1989, the magistrate

judge deferred Barnes's motion for a James hearing to the trial

judge. On April 26, 1990, Barnes and six codefendants were brought

to trial.3

 Barnes became ill during the trial, and on May 3, 1990,
 4

Barnes reserved his right to appeal the district court's

denial of his motion. 

the judge declared a mistrial as to Barnes. At the time when the

judge declared the mistrial, he had yet to rule on Barnes's James

motion. When his retrial had not commenced by January 28, 1991,

Barnes filed a motion to dismiss his federal indictment, alleging

a violation of the Speedy Trial Act. Barnes also alleged that his

prosecution in federal court violated the Interstate Agreement on

Detainers Act ("IADA"), 18 U.S.C.App., and the Department of

Justice's dual prosecution policy. The district court denied the

motion and Barnes pleaded guilty to conspiracy to distribute

cocaine in violation 21 U.S.C. § 841(a)(1) and possession of

cocaine in violation of 18 U.S.C. § 2. He appeals from the denial

of his motion to dismiss the indictment.4

II.

 The Speedy Trial Act requires that a person be tried within

seventy days of his indictment or first appearance before a judge

or magistrate, whichever occurs later. 18 U.S.C. § 3161(c)(1).

The Act enumerates various periods of delay, however, which

automatically toll the computation of time. See 18 U.S.C. §

3161(h). The government argues that the pendency of the James

motions tolls the computation of time in these cases under 18

U.S.C. § 3161(h)(1)(F). We agree.

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" is automatically excluded in

computing the time within which trial must commence. 18 U.S.C. §
 5

Appellants assert that where, as here, a hearing is never

held, exclusion for pending motions is inapplicable. United

States v. Khoury, 901 F.2d 948, 972 n. 25 (11th Cir.1990) ("We

are aware of no case where a motion filed pre-trial excludes all

time through the hearing where the hearing is never held or is

held after the commencement of trial."). This court's statement

in Khoury is merely dicta. In Khoury, there was no pending

motion because the magistrate judge had denied the motion; he

did not defer the motion. Thus, § 3161(h)(1)(F) was

inapplicable. Further, in Phillips, this court made clear that

when a motion is deferred until trial, it remains a pre-trial

motion, triggering the automatic tolling provision of §

3161(h)(1)(F). 936 F.2d at 1254.

A delay of sufficient length may be a Constitutional

violation, even though it is not a violation of the Speedy

Trial Act. See United States v. Loud Hawk, 474 U.S. 302,

305 n. 1, 106 S.Ct. 648, 650 n. 1, 88 L.Ed.2d 640 (1986)

(noting that respondents sought relief under Sixth Amendment

because automatic exclusions precluded relief under Speedy

Trial Act); United States v. Gonzalez, 671 F.2d 441 (11th

Cir.1982). Neither Beard nor Barnes asserts that the

lengthy delay from the time of his indictment to the time of

3161(h)(1)(F); see Henderson v. United States, 476 U.S. 321, 330,

106 S.Ct. 1871, 1876-77, 90 L.Ed.2d 299 (1986) (holding that all

the time between the filing of a pretrial motion and the conclusion

of the hearing on that motion is excluded when calculating the

seventy days, regardless of whether such delay is reasonably

necessary). We have held that motions which are deferred to the

district court by a magistrate judge remain pretrial motions.

United States v. Garcia, 778 F.2d 1558, 1562 (11th Cir.), cert.

denied, 477 U.S. 906, 106 S.Ct. 3279, 91 L.Ed.2d 568 (1986). Thus,

"the entire time from the filing of the [James ] motion to the

conclusion of the hearing is excludable, even [though] the hearing

[was] deferred until trial." United States v. Phillips, 936 F.2d

1252, 1254 (11th Cir.1991); see also United States v. MendozaCecelia, 963 F.2d 1467, 1476 (11th Cir.), cert. denied, --- U.S. --

--, 113 S.Ct. 436, 121 L.Ed.2d 356 (1992).5
his guilty plea violates the Sixth Amendment. We therefore

express no opinion as to whether delays of this length,

under these circumstances, violate the Sixth Amendment right

to a speedy trial. 

 6§ 3162(a)(2) provides that the "[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." 

 Because the trial judge had yet to hold a James hearing when

Beard pleaded guilty, the computation of time for the purposes of

the Speedy Trial Act remained tolled. The district court therefore

properly denied Beard's motion to dismiss his indictment.

III.

Barnes's case requires a slightly different analysis. Barnes

was brought to trial in April 1990 and a mistrial was declared on

May 3, 1990. Following a mistrial, a new trial must "commence

within seventy days from the date the action occasioning the

retrial becomes final." 18 U.S.C. § 3161(e). Barnes asserts that

the government's failure to timely commence a new trial violates

the Speedy Trial Act.

 The government correctly notes that Barnes waived his right

to object to any delay preceding the commencement of the April

trial because he failed to move for dismissal prior to the start of

that trial. 18 U.S.C. § 3162(a)(2).6

 The government argues that

this waiver continues post-mistrial, precluding Barnes from

objecting to any delay in the commencement of his retrial. We

disagree. A waiver pursuant to 18 U.S.C. § 3162(a)(2) does not

continue beyond the declaration of a mistrial. See United States

v. Didier, 542 F.2d 1182, 1185 (2d Cir.1976) ("appellant's waiver

of his right to a speedy trial was voided and his right to a speedy
 7

For purposes of the Speedy Trial Act, Barnes's James motion

survived the mistrial. See United States v. Riley, 991 F.2d 120,

124 (4th Cir.) (pretrial motion to suppress survived declaration

of mistrial for purposes of Speedy Trial Act), cert. denied, ---

U.S. ----, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993). 

 8Barnes's argument that the Speedy Trial Act required the

government to place a detainer on him is belied by the plain

language of the statute. 18 U.S.C. § 3161(j)(1) provides in

trial revived by the declaration of a mistrial"); United States v.

Kington, 875 F.2d 1091, 1107 (5th Cir.1989) (clock resets to zero

following a mistrial).

Although Barnes did not waive his right to a speedy retrial,

his claim nonetheless fails. Barnes had a James motion pending

when his April 1990 trial began, and the judge had yet to resolve

the motion when he declared a mistrial.7 Thus, the James motion

tolled the computation of time. See, 18 U.S.C. § 3161(h)(1)(F);

Philips, 936 F.2d at 1254. Accordingly, we hold that Barnes's

rights under the Speedy Trial Act were not violated.

 Barnes's two other contentions merit little discussion. He

argues that his federal indictment violated the IADA, because he

was never advised of his right to be tried within 180 days of his

transfer from the Georgia state penal system to the federal system.

18 U.S.C.App. III. Barnes concedes that a detainer was never

filed, however, as he was brought into federal custody by means of

a writ of habeas corpus ad prosequendum. Because a detainer was

never filed, the protections of the IADA were never triggered. See

United States v. Mauro, 436 U.S. 340, 361, 98 S.Ct. 1834, 1847-48,

56 L.Ed.2d 329 (1978) (writ of habeas corpus ad prosequendum does

not constitute a "detainer" within the meaning of IADA and

therefore, application of IADA not proper).8
pertinent part:

If the attorney for the Government knows that a person

charged with an offense is serving a term of

imprisonment in any penal institution, he shall

promptly—

(A) undertake to obtain the presence of the

prisoner for trial; or

(B) cause a detainer to be filed with the person

having custody of the prisoner and request him to

so advise the prisoner and to advise the prisoner

of his right to demand trial.

(Emphasis added). 3161(j)(1) is written in the disjunctive. 

The government therefore properly secured Barnes's presence

by filing a writ of habeas corpus ad prosequendum and was

not required to file a detainer. See United States v.

Roper, 716 F.2d 611, 613-14 (4th Cir.1983) (§ 3161(j)(1)

written in alternative; thus no Speedy Trial Act violation

when writ of habeas corpus ad prosequendum was issued to

secure Roper's presence at federal trial). 

 9

The Eleventh Circuit, in the en banc decision Bonner v.

City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as

precedent decisions of the former Fifth Circuit rendered prior to

October 1, 1981. 

 Barnes also argues that his federal prosecution violates the

Department of Justice's policy of refraining from multiple

prosecutions for essentially the same conduct. He asserts that

because he pleaded guilty to cocaine charges in state court, the

federal government may not indict him on charges relating to the

same cocaine.

The dual prosecution policy is an internal policy which

confers no enforceable rights on a criminal defendant. See United

States v. Nelligan,9 573 F.2d 251, 255 (5th Cir.1978) (dual

prosecution policy is "internal policy of self-restraint that

should not be enforced against the government"); Andiarena v.

Keohane, 691 F.2d 993, 995-96 n. 3 (11th Cir.1982). Thus, Barnes
 10Barnes's assertion that Petite v. United States, 361 U.S.

529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), requires the dismissal

of his indictment is unavailing. In Petite, the government

sought to have a conviction vacated based upon its policy of

refraining from multiple prosecutions stemming from the same

conduct. Petite does not give a criminal defendant the right to

enforce this policy. 

may not use the policy to effectuate dismissal of his indictment.10

AFFIRMED.