Appeal from the United States District Court for the Central District of California. D.C. Nos. CR-91-143-MRP, CR-91-533-MRP. Mariana R. Pfaelzer, District Judge, Presiding.
Before: Dorothy W. Nelson, Stephen Reinhardt, and Alex Kozinski, Circuit Judges. Opinion by Judge Reinhardt; Dissent by Judge Kozinski.
REINHARDT, CIRCUIT JUDGE:
This case involves the Speedy Trial Act. As in all such cases, the pretrial history is somewhat complicated. In early 1990, FBI special agent John Kuhn was assigned to investigate a spree of bank robberies in Ventura County, California. In the course of his efforts, Kuhn compared photos of appellant Raymond James Hoslett, who was on federal parole for bank robbery, with bank surveillance photos and decided that Hoslett was the culprit. Kuhn contacted Hoslett's parole officer, who told the agent that an arrest warrant had already been issued for Hoslett on unrelated parole violations. The agent showed the parole officer the bank surveillance photos and he, too, identified the bank robber as Hoslett. FBI agents located Hoslett at his place of employment in late February 1990 and arrested him. During an interview at FBI headquarters, Kuhn told Hoslett that he was a suspect in the bank robberies and questioned him about them. In a subsequent search of Hoslett's vehicle, FBI agents seized a sawed off shotgun, which had no connection with the robberies, from the automobile's trunk.
Hoslett was returned to prison to await a formal parole revocation hearing. In June 1990, it was determined that he had violated his parole because he had admittedly failed a drug test and neglected to appear for further drug testing. The parole revocation panel recommended a ten month term of incarceration for the violations. The panel also informed the Regional Parole Commission Office about the bank robbery allegations. The Commission decided to revoke Hoslett's mandatory release parole but withheld a final Disposition of his case pending receipt of further information regarding the bank robberies. In July 1990, the FBI wrote a letter to Hoslett's parole officer detailing the "conclusive" evidence it had accumulated regarding Hoslett's involvement in the bank robberies. The letter related that the Bureau would seek a federal bank robbery indictment against Hoslett and possibly an indictment on firearms charges as well. Although the Parole Commission was informed of the FBI letter, it took no further action until late January 1991, when it issued a supplemental probable cause letter concerning the bank robbery and firearm allegations. After a hearing in March 1991, the Parole Commission found Hoslett guilty of these additional parole violations and ordered that he remain in custody until the expiration of his original sentence, June 5, 1991.
Although the United States Attorney's Office had instructed FBI agent Kuhn to prepare a prosecutive report in May 1990, Kuhn did not complete the report until January 1991 because of his work on unrelated investigations. In February 1991, the grand jury indicted Hoslett on four counts of bank robbery, one count of being a felon in possession of a firearm, and one count of possession of an unregistered firearm, all in case number CR-91-143. He was arraigned on these charges in March 1991. Hoslett subsequently filed a motion to suppress the evidence taken from his car. On May 20, 1991, at the urging of the district court, the government successfully moved for dismissal without prejudice of the firearm charges on the grounds of misjoinder. Hoslett was reindicted on those charges on June 11, 1991, in case number CR-91-533, and he subsequently moved to dismiss them for failure to bring him to trial within seventy days of indictment; he also filed a motion to suppress in the new case.
In the bank robbery case, the district court denied both Hoslett's motion to suppress and a later motion to dismiss the charges because he had not been indicted within thirty days of his arrest. A jury convicted him on all charges. Hoslett waived his right to a jury trial in the firearm case. After denying Hoslett's speedy trial and suppression motions in that case, the district Judge found him guilty of being a felon in possession of a firearm but dismissed the possession of an unregistered firearm charge. The court sentenced Hoslett to 158 months on each bank robbery count followed by a term of supervised release of three years and to a term of 120 months followed by a term of supervised release of three years on the firearm charge. All sentences are concurrent.
Hoslett appeals his convictions in both cases. He contends that the Judge erred in denying his pretrial motions.*fn1 He also argues that he was denied his Sixth Amendment right to effective assistance of counsel during the bank robbery trial due to an alleged conflict of interest. Finally, he claims that the district court erred in finding that his conduct during one of the robberies involved an express threat of death requiring an increased sentence.*fn2
I. Speedy Trial Act Claims
A. Did the District Court Err in Denying Hoslett's Motion to Dismiss Based Upon Pre-Indictment Delay?
The Speedy Trial Act provides that "any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161(b). If the government fails to bring an indictment within thirty days after a suspect has been arrested on a charge and a complaint has been filed, then "such charge . . . in such complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1). For the dismissal sanction of section 3162(a)(1) to apply, a suspect must either be formally charged at the time of or following his arrest, or be subject to some continuing restraint imposed in connection with the charge on which he is eventually tried. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1049 (9th Cir. 1990); United States v. Candelaria, 704 F.2d 1129, 1131 (9th Cir. 1983); accord United States v. Stead, 745 F.2d 1170, 1172 (8th Cir. 1984). We review legal questions regarding application of the Speedy Trial Act de novo, but factual findings are reviewed for clear error. United States v. Nash, 946 F.2d 679, 680 (9th Cir. 1991).
Hoslett argues that in February 1990 he was arrested and held in connection with the bank robbery charges rather than for parole violations because: 1) Parole Commission records indicate that the parole violations warrant was not executed by the United States Marshals Service until six days after his arrest by the FBI; 2) after the FBI arrested Hoslett, its agents interrogated him regarding his involvement in the bank robberies; and 3) agent Kuhn referred to Hoslett as having been arrested for bank robbery in an FBI report. However, there is no dispute that a warrant for Hoslett's arrest for parole violations was issued in December 1989, a month before Hoslett became a suspect in the bank robberies. Also, it is undisputed that agent Kuhn informed Hoslett at the time of his arrest that he was being taken into custody for violating parole. Given the substantial evidence that supports it, the district court's factual finding that Hoslett's arrest in February 1990 was based upon his parole violations was not clearly erroneous. Thus, as of the commencement of his detention, Hoslett was being held on the parole offenses.
Hoslett next argues that he became subject to continuing restraint in connection with the bank robbery and firearm charges when the Parole Commission, relying on the FBI letter, made the decision to postpone final action on his parole revocation. He contends that even if the ten months the parole panel recommended he serve for the drug test violations are subtracted, he was subject to continuing restraint in connection with the criminal charges for nearly two months before his indictment. The government responds that Hoslett's situation is the same as that of a recaptured prisoner later criminally charged with escape. We have held that such persons are not, for the purposes of section 3161(b), subject to continuing detention in connection with the charges on which they are eventually tried. United States v. Wilson, 690 F.2d 1267, 1276 (9th Cir. 1982), cert. denied, 464 U.S. 867, 78 L. Ed. 2d 178, 104 S. Ct. 205 (1983); accord Stead, 745 F.2d at 1170; United States v. Zukowski, 851 F.2d 174, 177 (7th Cir.), cert. denied, 488 U.S. 868, 102 L. Ed. 2d 144, 109 S. Ct. 174 (1988). However, these cases are distinguishable because the prisoners would have been confined on their original sentences during the period between their recapture and indictment for escape in any event. Hoslett's claim is that he was subject to restraint that he would not have faced but for the criminal allegations.
More relevant are United States v. Ray, 768 F.2d 991, 996-97 (8th Cir. 1985), overruled on other grounds, Henderson v. United States, 476 U.S. 321, 90 L. Ed. 2d 299, 106 S. Ct. 1871 (1986), and Acha v. United States, 910 F.2d 28, 30-31 (1st Cir. 1990), which hold that if a defendant's bail or bond is revoked on account of acts that later form the basis of an indictment, the Speedy Trial Act is not implicated by the defendant's arrest and return to detention. While the reasoning of those decisions is somewhat formalistic, we agree with their basic thrust: 18 U.S.C. section 3161(b) requires something more than that the acts leading to detention be the same as those underlying the eventual criminal charge. Hoslett may be literally correct that he was detained "in connection with" the formal charges on which he was eventually tried, but we think that phrase must have a somewhat narrower meaning in this context.*fn3 The purpose of Hoslett's detention was to allow the Commission to obtain further information for its own proceedings. His detention was not on account of the government's need to gather evidence to obtain an indictment, which is one of the evils to which section 3161(b) is primarily directed. Therefore, we find that Hoslett's detention after the Parole Commission deferred final decision on revocation did not trigger the Speedy Trial Act because it was not "in connection with" the criminal charges on which he was later tried within the meaning of 18 U.S.C. section 3161(b).
We emphasize the limited nature of our ruling. There is no indication here that the government acted in bad faith or that the detention for the alleged parole violations was a ruse for delay in obtaining an indictment. See United States v. Cepeda-Luna, No. 92-30057, slip op. 2959, 2967-69 (9th Cir. Mar. 30, 1993). Although the FBI made the Parole Commission aware of the "conclusive" evidence it had accumulated against Hoslett, there is no evidence that the agency or the prosecutor attempted to manipulate the parole revocation process to keep Hoslett incarcerated. Furthermore, we offer no opinion regarding the length of time or under what circumstances the Parole Commission may postpone a revocation decision without running afoul of the due process clause or its own regulations. We decide only that under the facts present here no violation of section 3161(b) occurred.
B. Did the District Court Err in Denying Hoslett's Motion to Dismiss the Firearm Counts For Pretrial Delay?
A defendant must be brought to trial within seventy days of indictment or his initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1).*fn4 However, there are nine statutory exclusions from the computation of the seventy day period. See section 3161(h). There is no dispute that 134 calendar days elapsed between Hoslett's original arraignment and the date he filed his motion to dismiss in the firearms case, the end-date for computing the seventy day period for those charges. See United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir. 1989) (in ruling on motion to dismiss for Speedy Trial Act, last day to be considered is date on which motion is filed).
Hoslett argues that eighty-seven nonexcludable days elapsed between his original arraignment on the firearm charges and his trial, in violation of the Speedy Trial Act's seventy day limitation. He is plainly incorrect about five.*fn5 As to the remainder, the government maintains that no violation occurred here because of certain excludable periods that transpired involving a number of those days. First, it contends that the district court expressly designated two periods for the preparation of pretrial motions and that the designated time is excludable.*fn6 Second, it urges that the motion to suppress filed on April 29th in case no. CR-91-143 should be considered "pending" in case no. CR-91-533 from the date the latter case was filed and that the period during which the motion remained "pending" in the latter case is excludable under 18 U.S.C. section 3161(h)(1)(F) (delay on account of pretrial motions from their filing to hearing tolls speedy trial clock). We disagree.
1. Relevant Speedy Trial Act Dates
Hoslett arraigned in case no. CR-91-143 and district court orders all motions filed by April 29.
Hoslett files motions to suppress evidence and to sever firearm ...