                                                                                      [ PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                  ________________________

                                         No. 98-2099
                                                                              FILED
                                    Non-Argument Calendar            U.S. COURT OF APPEALS
                                  ________________________             ELEVENTH CIRCUIT
                                                                            08/28/98
                               D. C. Docket No. 97-136-Cr-J-20B         THOMAS K. KAHN
                                                                             CLERK
UNITED STATES OF AMERICA,

                                                                                Plaintiff-Appellee,

                                              versus

RONALD C. BROADWATER,
    a.k.a. Ronald Hampton,

                                                                            Defendant-Appellant.

                                  ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                               _________________________
                                      (August 28, 1998)

Before BLACK and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

       Ron C. Broadwater was convicted in the United States District Court for the Middle District

of Florida for possession with intent to distribute crack cocaine. On appeal, he contends only that

he was not retried within the time limitations imposed by the Speedy Trial Act, 18 U.S.C. § 3161

et seq. (“the Act”), thereby voiding the conviction. We affirm.

                  FACTS AND PROCEEDINGS IN THE DISTRICT COURT

       In August of 1995, the Clay County Sheriff’s Office began investigating the distribution of

crack cocaine from an apartment in the Magnolia Springs Apartments in Green Cove Springs,

Florida. As a result of this investigation, Broadwater was eventually charged with possession of a
firearm by a convicted felon and possession with intent to distribute crack cocaine. He was initially

indicted on November 9, 1995, and arraigned on November 13, 1995.1 The government orally

moved for a competency examination on November 21, 1995 and later filed a written motion for a

psychiatric examination on December 6, 1995 and an amended motion for such an examination on

December 7, 1995.2 The magistrate judge found Broadwater competent to stand trial on December

28, 1995. A superseding indictment was returned on January 11, 1996, and Broadwater was

arraigned on those charges the following day. He filed the first of a series of pretrial motions on

January 17, 1996. Those motions were finally disposed of on March 5, 1996. The court held a

status conference in the case on March 6, 1996. On March 21, 1996, Broadwater filed a motion to

suppress evidence, which the district court resolved on April 15, 1996 at the commencement of the

trial. On April 18, 1996, the jury found Broadwater guilty of possession of a firearm by a convicted

felon. Because the jury could not agree on a verdict on the possession with intent to distribute crack

cocaine charge, the district court declared a mistrial as to that count on the same day.

       The court held another status conference in the case on April 30, 1996. On

May 2, 1996, the parties moved to continue the retrial of the possession with intent to distribute

count until July 2, 1996. On that date, the court granted Broadwater’s motion to continue his

sentencing. The retrial was also continued at that time. On July 11, 1996, Broadwater was

sentenced on the firearm charge, at which time the government dismissed Count Two of the

indictment.

       There was no further court activity until May of 1997 when Broadwater and two other

defendants were named in a five-count indictment growing out of the original 1995 investigation.3


       1
        Dist. Ct. Dkt. No. 95-131(S1)-Cr-J-10.

       2
         Given the nature of Broadwater’s claim on appeal, the district court’s proceedings will
be related in greater detail than would ordinarily be necessary.
       3
        Dist. Ct. Dkt. No. 97-136-Cr-J-20.

                                                  2
Count Three of the new indictment recharged the possession with intent to distribute offense which

had resulted in the hung jury in the earlier trial. Broadwater made his initial appearance on the new

indictment before the magistrate judge on July 9, 1997. On the same day, the government filed a

motion for a joint trial of the defendants and to continue the trial date. The district court granted the

motion and continued the trial until September 8, 1997, specifically finding that such a delay was

in the interests of justice. Broadwater then filed a series of pretrial motions, the last of which was

not decided until September 22, 1997, the day the second trial began.

        Earlier, on September 16, 1997, Broadwater moved to dismiss Count Three on the ground

that his prosecution on that charge would violate the Act. The district court found that the following

days should be excluded from the speedy trial computation: November 13, 1995 (arraignment);

November 21 - December 28, 1995 (motion for competency examination); January 12, 1996

(rearraignment); January 17 - March 5, 1996 (motions); March 6, 1996 (status conference); March

21 - April 15, 1996 (motion); April 15 - 18, 1996 (trial); April 30, 1996 (status conference); May

1 - July 10, 1996 (continuances); July 11, 1996 (sentencing); July 12, 1996 - July 9, 1997 (dismissal

of indictment to initial appearance in second proceeding); July 10 - September 8, 1997 (continuance

in interests of justice); and September 9 - 22, 1997 (motions).4 Finding that only 53 non-excludable

days had elapsed since Broadwater’s first indictment, the district court concluded that there was no

violation of the Act and denied the motion. The jury eventually convicted Broadwater on Count

Three but was unable to reach a verdict on the remaining charges. Broadwater filed this appeal from

the final judgment.

                                            DISCUSSION




        4
        Stated differently, the district court found that the following days should be counted
toward the seventy-day limit: November 10-12, 1995; November 14-20, 1995; December 29,
1995 - January 11, 1996; January 13-16, 1996; March 7-20, 1996; and April 19-29, 1996.

                                                   3
        The Act requires that a defendant be brought to trial within 70 days of the filing of an

indictment or of a defendant’s first appearance in court, whichever occurs last. 18 U.S.C. § 3161(c).

If the government moves to dismiss a count following a mistrial, it does not get a “fresh clock” on

reindictment; rather, the time is tolled from the dismissal of the original count until the reindictment.

See United States v. Menzer, 29 F.3d 1223, 1227-28 (7th Cir. 1994). The Act permits,

however, various periods of time to be excluded from the computation, including periods of “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.” 18 U.S.C. § 3161(h)(1)(F).

        The district court concluded that Broadwater’s second trial for possessing crack cocaine on

August 12, 1995 with the intent to distribute did not violate the Act because all but 53 days were

excludable under 18 U.S.C. § 3161(h). On appeal, Broadwater contends that the district court erred

by excluding the 16 days during the pendency of the first indictment from November 21, 1995, the

day the government orally moved for a competency examination, to December 7, 1995, the day the

government filed its amended written motion for psychiatric examination, from the computation of

time. He also argues that the district court improperly included May 1, 1996 in the excludable time

because the parties’ joint motion to continue the trial was not filed until the following day.

According to Broadwater, if these 17 days are added to the district court’s computation, his trial on

Count Three was not timely. The government agrees that May 1, 1996 should not have been

excluded from the speedy trial computation because the parties did not file their motion for a

continuance until the following day. Therefore, it is not necessary to further address that argument.5


        5
         The government’s computation of the excludable time varies in two additional respects
from that of the district court. The government does not exclude January 12, 1996, the day
Broadwater was arraigned on the superseding indictment, or April 30, 1996, the date of the status
conference following the first trial. The district court apparently excluded these two days as
“other proceedings concerning the defendant” pursuant to 18 U.S.C. § 3161(h)(1). Compare
Order dated September 22, 1997 at 3-4 with Blue Brief at 6. Therefore, in the government’s
view, 56 non-excludable days elapsed between Broadwater’s first indictment and his trial in this
case.

                                                   4
        Broadwater acknowledges that the Act excludes “delay resulting from any pretrial motion,”

18 U.S.C. § 3161(h)(1)(F), and that pretrial motions “may be written or oral at the discretion of the

judge,” Fed.R.Crim.P. 12(b). The crux of his argument, however, is that Congress intended to

exclude from the computation of time under the Act only the periods during which the district court

is considering a written motion. He relies on this court’s decision in United States v. Martinez, 749

F.2d 623 (11th Cir. 1984), in support of that assertion. That case is inapposite. It simply held that

a district court’s prompt disposition of a motion, for purposes of § 3161(h)(1)(F), is measured from

the date the district court’s order “is officially filed by the clerk of the court,” not the day the district

judge signs the order. Id. at 625.

        As Broadwater concedes, pretrial motions in a criminal case may be written or oral, at the

discretion of the trial judge. See Fed.R.Crim.P. 12(b). As a result, oral pretrial motions made on

the record have generally been held to be motions for purposes of § 3161(h)(1)(F). See, e.g., United

States v. Rodriguez, 63 F.3d 1159, 1164-65 (1st Cir. 1995)(oral motion for supplemental discovery

triggered exclusionary provision of § 3161(h)(1)(F)); United States v. Noone, 913 F.2d 20, 27 (1st

Cir. 1990)(oral motion for reconsideration of detention order excludable under § 3161(h)(1)(F));

United States v. Nixon, 779 F.2d 126, 130 (2d Cir. 1985)(oral motion for surrender of defendant’s

passport excludable under § 3161(h)(1)(F)). This court has applied the rule without specifically

commenting on its import. See, e.g., United States v. O’Bryant, 775 F.2d 1528, 1532 (11th Cir.

1985). Therefore, the district court correctly excluded the period from November 21 to December

6, 1995 from the speedy trial computation, and Broadwater’s speedy trial challenge to his conviction

fails. Accordingly, the judgment of the district court is AFFIRMED.




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