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United States v. Bert

United States Court of Appeals, Second Circuit

February 9, 2016

RAHEEM BERT, aka Raheen Linwood, aka Radio, Defendant-Appellant.

Argued: April 27, 2015

Appeal from the judgment of the United States District Court for the Eastern District of New York (Mauskopf, J.), convicting defendant Raheem Bert of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The Speedy Trial Act was violated when the district court allowed eleven months of unexcluded time to accumulate when Bert's suppression motion was under advisement. We conclude that the district court erred in the manner in which it applied and balanced the factors relevant both to determining whether Bert's indictment should be dismissed with or without prejudice under the Speedy Trial Act and to determining whether his Sixth Amendment right to a speedy trial was violated, and we remand so that the district court may further consider its application and balancing of those factors. We intimate no view as to what conclusions the district court should reach with respect to these issues on remand.

JAMES DARROW, New York, NY, for Defendant-Appellant Raheem Bert.

DOUGLAS M. PRAVADA, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Kelly T. Currie, acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: JACOBS, POOLER, and HALL, Circuit Judges.

POOLER and HALL, Circuit Judges

We initially disposed of this appeal by opinion issued on September 10, 2015. See United States v. Bert, 801 F.3d 125 (2d Cir. 2015). We hereby withdraw that original opinion and decide Bert's appeal as follows.

Defendant Raheem Bert appeals his conviction in the United States District Court for the Eastern District of New York (Mauskopf, J.), after a jury found him guilty of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). The Speedy Trial Act was violated when the district court allowed eleven months of unexcluded time to accumulate when Bert's suppression motion was under advisement. On appeal, Bert argues that the district court abused its discretion by dismissing his original indictment without prejudice rather than with prejudice, thereby permitting the reprosecution that has resulted in the judgment of conviction that Bert is now appealing. In a similar vein Bert also asserts the district court erred when it determined his Sixth Amendment speedy trial rights were not violated. Finally, Bert argues that the district court erred in denying his motion to suppress. For the reasons that follow, we AFFIRM the district court's decision denying the motion to suppress, and we REMAND for further consideration of the Speedy Trial Act and Sixth Amendment speedy trial issues consistent with this opinion.


On January 19, 2012, Bert was arrested in the hallway outside his girlfriend's apartment at 55 Holland Avenue, a Staten Island building participating in New York City's Field Trespass Affidavit Program. Earlier that evening, Officer John Fahim and Officer Besim Pelinku received a radio report that five African-American males were trespassing at 55 Holland Avenue. Upon arriving at the building, the officers encountered two African-American males in the lobby who admitted they had no business in the building. After instructing those men to leave the building, the officers spoke with the building's security guard, who informed them that the three other trespassers had gone either to the 10th or 12th floor. On the 10th floor, the officers encountered Bert, another African-American male, and a woman standing and talking together. When questioned by the officers, the three individuals claimed that they were visiting a friend who lived in a nearby apartment. Officer Fahim then knocked on the apartment door to determine whether, in fact, these persons were visiting the resident of that apartment. The resident of that apartment was unable credibly to confirm that she knew Bert or his companions. It is undisputed that, at this point, Bert was not free to leave. See United States v. Bert, No. 12-CR-100 (RRM), 2014 WL 358983, at *2 (E.D.N.Y. Feb. 3, 2014).

During this exchange, Bert paced back and forth and at one point turned away to face the window prompting Officer Pelinku to draw his firearm and demand that Bert turn around and show his hands. At about the same time, Officer Fahim observed that Bert had a gun on his person. A struggle ensued between Officer Fahim and Bert, during which Bert dropped the gun out of the 10th floor window. See id. at *2. The officers subsequently arrested Bert.

Bert appeared in New York state court the following day. On January 30, 2012, after his state charges were reduced, Bert was transferred to federal custody. He first appeared in the Eastern District of New York on February 16, 2012, on a two-count indictment charging him with possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

By motion, and supplemented by four additional submissions over the next six months, Bert sought to suppress statements he made to the officers on the evening following his arrest and during his transfer to federal custody.[1] Government witnesses testified that, during these exchanges, Bert had boasted that he could not be prosecuted because the gun recovered from outside the 10th floor window was not operable. In his suppression motion, Bert argued that admitting these statements would violate his rights under the Fourth and Fifth Amendments because they were the fruits of his unlawful seizure, made in the absence of a Miranda warning and not preceded by a knowing and voluntary waiver of his Fifth Amendment rights. The district court held a one-day suppression hearing on November 20, 2012. The transcript of that hearing was corrected, pursuant to the government's request, over the next two months.

On February 1, 2013-after the matter had been fully briefed and the hearing transcript corrected-the district court took Bert's suppression motion under advisement. During the twelve months that followed, Bert remained in prison, presumptively innocent, with no apparent activity in his case. The docket sat idle until February 3, 2014, over a year later, when the district court denied Bert's suppression motion in its entirety.

On February 20, 2014, Bert filed a motion to dismiss the indictment with prejudice asserting that he had not been brought to trial within the timeframe required under the Speedy Trial Act and also claiming that the delay violated his constitutional rights under the Sixth Amendment's Speedy Trial clause. The government, conceding that the Speedy Trial Act had been violated, argued that the dismissal should be without prejudice, as authorized by 18 U.S.C. § 3162(a)(1).

Ruling from the bench, the district court rejected Bert's constitutional argument, but concluded that the indictment must be dismissed pursuant to 18 U.S.C. § 3162(a)(2) because the delay violated the Speedy Trial Act. After "quickly tick[ing] through the factors in the statutory analysis, " Special App'x at 31, the district court found that "all of the factors tip[ped] in favor of the government's position on [the] motion, " Special App'x at 34. It ordered that the dismissal of the indictment be without prejudice to Bert's reprosecution.

That same day, the government re-indicted Bert on identical charges. A three-day trial commenced on May 19, 2014, and the jury returned a verdict of guilty on both counts. The district court then sentenced Bert principally to a term of 120 months' imprisonment.[2]

Bert appealed, arguing that the district court erred in denying his suppression motion and finding no violation of his Sixth Amendment right to a speedy trial, and abused its discretion by dismissing the original indictment without prejudice.[3]


Suppression of Bert's Post-Detention Statements

We address first Bert's contention that the district court erred by denying his motion to suppress the statements he made on January 19, 2012 after he was detained by police officers in the apartment building at 55 Holland Avenue.[4] Bert argues that the officers lacked reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), to hold him and that the detention was primarily motivated by his race. We disagree.

A police officer may detain an individual for questioning if the officer has "a reasonable suspicion that the individual is, has been, or is about to be engaged in criminal activity." United States v. Padilla, 548 F.3d 179, 186 (2d Cir. 2008). The officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion on a citizen's liberty interest." United States v. Elmore, 482 F.3d 172, 178–79 (2d Cir. 2007) (alteration omitted). "While the officer may not rely on an inchoate and unparticularized suspicion or hunch, he is entitled to draw on his own experience and specialized training to make inferences from and deductions about the cumulative information available to him that might well elude an untrained person." Padilla, 548 F.3d at 187 (alterations and citation omitted).

On appeal of a suppression ruling, we review the district court's reasonable suspicion determination de novo and its factual findings for clear error, viewing the evidence supporting denial of the suppression motion in the light most favorable to the government. Id. at 186. "In reviewing reasonable suspicion determinations, we look to the totality of the circumstances to see whether the officer had a particularized and objective basis to suspect criminal activity." Id. at 187 (quotation omitted). In this regard, "Terry recognized that a 'series of acts, each of them perhaps innocent in itself, ' can when 'taken together warrant[ ] further investigation.'" Id. (alteration in original) (quoting Terry, 392 U.S. at 22).

Here, Officers Fahim and Pelinku had reasonable suspicion to believe that Bert was trespassing in the apartment building. The officers were responding to a radio call indicating that there were five African-American male trespassers inside the building. The officers encountered two of the trespassers in the lobby of the building, whom they instructed to leave, and the officers were told by the security guard that the other three trespassers might be on the 10th or 12th floor. The officers then encountered three African-American individuals, including Bert, another male and a female, on the 10th floor. Because the officers were specifically directed to a location where trespassers could be found, because Bert was found at that location, and because Bert admitted he did not live in the building, the officers were permitted to briefly detain Bert in order to investigate his claim that he was visiting a friend in an adjacent apartment. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 185 (2004).

Bert contends that the court failed to consider factors that weighed against a finding of reasonable suspicion, including that there were discrepancies between the descriptions of the persons provided in the initial call to police and the persons whom the police encountered in the apartment building, that Bert and his companions were peaceful and cooperative, and that Bert was not wearing a jacket inside the building, which may have indicated that he was visiting someone there. These facts lose significance, however, given the security guard's specific description of the trespassers' location, which was where Bert and his companions were ultimately found. On the facts available to them, the police were entitled to investigate the circumstances and to determine whether Bert was visiting a friend, as he claimed. Given the totality of the circumstances, the district court did not err in determining that the officers had reasonable suspicion to detain Bert and that suppression of his subsequent statements was therefore not warranted.

Speedy Trial Act Claim

We next address Bert's claim under the Speedy Trial Act. Because we are remanding for the district court to rebalance its application of the Speedy Trial Act factors in this case, we first delineate the legal framework within which that analysis takes place, and then examine the district court's application of that framework to the facts presented.

I. Violation

The Speedy Trial Act mandates that a criminal defendant must be brought to trial within 70 days of the filing of the indictment or the defendant's initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If that deadline is not met, the Act provides that the indictment "shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2).

The Act excludes from the 70-day indictment-to-trial period delays due to certain enumerated events. See 18 U.S.C. § 3161(h). In this case, the parties agree that the district court properly excluded the period of time from when the motion was filed until it was taken under advisement, 18 U.S.C. § 3161(h)(1)(D), as well as the first thirty days that it was under advisement, 18 U.S.C. § 3161(h)(1)(H). It is similarly undisputed that the remaining eleven months that the motion was pending were not excluded. Accordingly, the Act's 70-day indictment-to-trial period (commonly referred to as the "speedy trial clock") was exceeded by approximately nine months.

In the year that Bert's suppression motion remained under advisement, several key dates passed with no activity in his case. Bert's speedy trial clock began to run on March 4, 2013, when the 30-day advisement period ended. His speedy trial clock expired 70 days later, on May 13, 2013. The district court's six-month list came and went in September of 2013, still with no activity in Bert's case. It was not for another five months that the district court ultimately denied the motion. At no point did the government alert the district court to any impending speedy trial issues, nor did it move to exclude any of the time that had accumulated in the interim.

Neither party contests that a violation of the Speedy Trial Act occurred, and they do not question the statute's unambiguous mandate that the court was required to dismiss the indictment upon Bert's motion. The only dispute with respect to the Speedy Trial Act is whether the district court should have dismissed Bert's indictment with or without prejudice. Bert argues that the district court failed to consider or properly weigh the 18 U.S.C. § 3162(a)(2) factors when it decided that dismissal without prejudice was warranted. He further contends that dismissal with prejudice is the only appropriate remedy under the circumstances because the delay at issue here was lengthy, the product of "administrative neglect, " United States v. Stayton, 791 F.2d 17, 22 (2d Cir. 1986), and presumptively prejudicial given that he remained incarcerated while the motion was pending.

II. Framework for Determining the Remedy

It is well established that "Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation." United States v. Taylor, 487 U.S. 326, 334 (1988); accord United States v. Caparella, 716 F.2d 976, 980 (2d Cir. 1983). Rather, "[t]he determination of whether to dismiss an indictment with or without prejudice is committed ...

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