Although the district court deferred ruling on defendants’ Fourth Amendment suppression motion until trial in order to see whether the government would rely on the challenged evidence, the ensuing delay did not violate defendants’ statutory or constitutional right to a speedy trial.
While the procedural facts of this case are peculiar and defendants’ creative argument has some logic to it, we believe that the issue is resolved against them by a straightforward reading of the statute. Code § 3161(h) provides that the period between the date that a pretrial motion is filed and the date on which a hearing on the motion is concluded is to be excluded from the 70 days by which commencement of trial is mandated.
Federal Rule of Criminal Procedure 12(b) specifically defines a pretrial motion as a motion capable of determination without the trial of the general issue, and it lists specifically a motion to suppress. We note that the rule does not define the term “pretrial” by whether a motion is in fact decided before trial. The motion to suppress filed by defendants on Apr. 16, 1990, thus was a “pretrial motion.”
We conclude that when the Speedy Trial Act refers at 18 U.S.C. § 3161(h)(1)(F) to a “pretrial motion,” the reference includes a motion to suppress whether or not deferred under Fed. R. Crim. P. 12(e).
Defendants further argue that because the resolution of the motion to suppress was deferred until trial, when the trial was ended with a mistrial, the pretrial motion, subsumed in the trial, died with it. Therefore, all the time between the date the trial was aborted on Oct. 26, 1990 and the date the retrial was commenced on Mar. 11, 1991, must be counted as part of the delay regulated by the Speedy Trial Act. Defendants, however, fail to explain why the mistrial voids all motions pending in the case at the time. We believe this argument is without merit and conclude that the pretrial motion did survive the mistrial.
The district court properly excluded the period between the filing of the suppression motion and its resolution. We also observe that the period was occupied reasonably by resolution of the numerous complex motions of 11 defendants and a the good faith efforts to accommodate the schedules of 12 different parties and the court.
The court also rejects the claim of one defendant that he was denied a speedy trail under the Sixth Amendment. He has articulated no additional factors that would suggest that his constitutional rights were violated other than the most general allegations of prejudice.
Defendants other claims are likewise rejected: 1) that hearsay evidence was impermissibly admitted to support defendant Noble’s convictions under counts II and III of the indictment, charging him with sales of cocaine on two separate dates, and without that improper evidence, there was insufficient evidence to convict him; 2) defendant Riley’s contention that his joinder in this case was prejudicial and the district court’s refusal to grant his motion to sever was error; and 3) the contentions of four defendants that there was insufficient evidence to sustain their convictions of participating in a drug distribution conspiracy.
Finding no reversible error in the drug conspiracy convictions or sentences, judgment of the district court is affirmed.
U.S. v. Riley (Niemeyer) No. 91-5086(L), Apr. 19, 1993; USDC at Baltimore, Md. (Ramsey) Beth M. Farber, AFPD,, for appellants; James R. Alsup, AUSA, for appellee. VLW 093-2-112, 9 pp.