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United States v. Holley

United States Court of Appeals, Second Circuit

February 10, 2016

United States of America, Cross-Appellant-Appellee,
v.
Tina L. Holley, Defendant, Warren Love, Defendant-Appellant-Cross-Appellee.

Argued: January 11, 2016

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]

Jerald Brainin, Los Angeles, CA, for Defendant-Appellant.

Joseph J. Karaszewski, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, for Appellee.

Before: Katzmann, Chief Judge; Jacobs and Wesley, Circuit Judges.

PER CURIAM

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. § 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.

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 both 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 ...


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