
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1437                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   KENNETH SCHIAVO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Cummings,* Circuit Judge.                                           _____________                                 ____________________            Ronald  Kovner  with  whom  Paul  F.  Markham  was  on  brief  for            ______________              _________________        appellant.            Dina  Michael Chaitowitz,  Assistant United  States Attorney, with            ________________________        whom  Donald  K.  Stern, United  States  Attorney,  was  on brief  for              _________________        appellee.                                 ____________________                                    August 19, 1996                                 ____________________                                    ____________________             *Of the Seventh Circuit, sitting by designation.               COFFIN,  Senior Circuit  Judge.   Defendant Kenneth  Schiavo                        _____________________          appeals his conviction for conspiring to possess, and possessing,          cocaine  with intent to distribute  in violation of  21 U.S.C.             841(a)(1) & 846.  After careful consideration, we affirm.                                    I.  BACKGROUND               We  briefly sketch  the facts  underlying this case,  as the          jury might have  found them,  saving detail for  our analysis  of          specific claims.   Defendant  Schiavo was involved  in a  cocaine          distribution scheme  with Howard  Winter and Gennaro  Farina that          operated in Massachusetts for  an extended period of time  in the          early  1990s. Winter was the target of a joint investigation into          drug  trafficking   conducted  during  this  time   by  the  Drug          Enforcement  Agency  (DEA) and  the  Massachusetts State  Police.          With  assistance  from a  confidential  informant  (CI), the  law          enforcement agencies developed  extensive evidence through direct          and electronic surveillance.               The CI, who had  been a regular customer of  Winter's before          going to  work for the government in April 1991, reported that in          the spring  of 1990 Winter had disclosed to him that "Kenny . . .          was the supplier" of the cocaine that the CI had been purchasing.          From May to November 1991, the CI engaged in five controlled buys          through  Winter.   A  pattern  emerged  from these  transactions:          after Winter discussed a potential sale with the CI, he called or          met Schiavo,  and then reported pertinent information back to the          CI.                                         -2-               The final transaction provided  the most direct link between          Schiavo and the  conspiracy.   On November 4,  1991, the CI  gave          Winter a New Balance bag containing $9,000 in  identifiable bills          as partial  payment  for  cocaine delivered  November  1.    Soon          thereafter,  Winter and Schiavo  met at a  restaurant in Chelsea.          Schiavo  was followed  from  there  and,  in  accordance  with  a          prearranged  plan,  stopped  by  Trooper  Thomas  Duffy.    Duffy          approached Schiavo, observed  a bulge in his jacket,  frisked him          for  weapons and  discovered the  New Balance  bag.   The officer          seized  the money  in  the bag  and  additional cash  carried  by          Schiavo -- a total of $12,500 -- but did not arrest him.                In  January 1992,  a  grand jury  returned a  multiple count          indictment   against   Schiavo,  Winter   and   Farina,  charging          participation  in a drug conspiracy  from May 1991  to January 5,          1992, and five substantive  counts of possessing and distributing          cocaine.  Schiavo was charged on three of the substantive counts.          Following his arrest,  he successfully moved to suppress  the bag          of money.1               On September 1, 1994, shortly before trial was scheduled  to          begin,  Schiavo  was charged  in  a  superseding indictment  that          pushed  the  conspiracy's  start  date back  eighteen  months  to          December  1989 and added two substantive counts.  Schiavo filed a          motion to  dismiss the superseding indictment,  which was denied.          The  trial eventually  began  on November  14,  1994.   The  jury                                        ____________________               1   The suppression was affirmed  by this court.   29 F.3d 6          (1st Cir. 1994).                                         -3-          returned guilty  verdicts on the conspiracy charge  and the three          substantive counts originally charged.               Schiavo  raises six issues on appeal:  (1) a double jeopardy          violation; (2) improper admission of testimony about the stop and          frisk on  November  4, 1992;  (3) insufficient  evidence that  he          participated  in a  conspiracy spanning  the term charged  in the          superseding  indictment;  (4)  improper  admission  of  the  CI's          reported  statement  from Winter  that  Schiavo  was the  cocaine          supplier;  (5) prosecutorial  vindictiveness; and (6) a violation          of the Speedy Trial Act.  We discuss each in turn.                                   II.  DISCUSSION          A.   Double Jeopardy               _______________               Pursuant to 21  U.S.C.   881(a)(6),  the DEA obtained  civil          forfeiture  of $5,090 of  Schiavo's money.2   Schiavo claims that          his criminal  conviction following this forfeiture  constitutes a          second punishment for  a single  offense, and  thus violates  the          constitutional proscription of  double jeopardy.   This  argument          was firmly  rejected by United States v. Ursery, 116 S. Ct. 2135,                                  _____________    ______          2149 (1996), where the Supreme Court held, inter alia, that an in                                                     _____ ____          rem civil  forfeiture under   881(a)(6)  is "neither 'punishment'          nor criminal for purposes of the Double Jeopardy Clause."          B.   Testimony Relating to the Stop and Frisk               ________________________________________                                        ____________________               2    The  DEA  instituted  separate  forfeiture  proceedings          against the $3500 of non-governmental money seized on November 4,          1991 and  the $1590 seized from Schiavo at the time of his arrest          on March 5, 1993.                                         -4-               On Schiavo's  original motion  to suppress, the  court ruled          that  Duffy's  search reached  its  constitutional  limit at  the          completion of the initial pat frisk, which confirmed that Schiavo          was not carrying  any weapons.  Accordingly, the court suppressed          all  items seized  after this  point, in  particular, the  bag of          currency.               At trial,  Duffy recounted his stop-and-frisk encounter with          Schiavo.                 Q.  And did you approach Mr. Schiavo?               A.  Yes, I did.               Q.  And did you notice anything upon approaching Mr. Schiavo                   after you pulled him over?               A.  I did.               Q.  What did you observe?               A.  I noticed the large bulge in his left breast area.               Q.  After you noticed this bulge, what did you do?               A.  I did an initial pat frisk of that area and I asked if                    that was all him.               Q.  And how did Mr. Schiavo respond when you pat frisked him                   and asked him if it was all him?               A.  He responded "Mostly."               Q.  Did  you make any other comments concerning the bulge in                   his jacket at that point in time?               A.  Yes.               Q.  What did you say?               A.  I asked him more than once if he had a weapon.               Q.  Did you ask him anything else?               A.   As I was touching  that area of his  chest, I asked him          what          it was.                   He replied, "It's a bag."                   I said, "It's an awful big bulge for a bag."                   He responded, "It's big."                Schiavo complains that  it was error to allow  any testimony          regarding  the stop,  especially  testimony that  related to  the          suppressed  bag of  currency.    For  a  number  of  reasons,  we          disagree.                Most significantly, Schiavo's  motion to suppress referenced          only  "items seized," not statements  made.  This distinction was                                         -5-          confirmed  at the  suppression hearing,  where Schiavo's  counsel          made  clear that defendant's statements  were not at  issue.3  On          November 14, 1994, the first day of trial, Schiavo filed a motion          in limine  requesting exclusion  of "any evidence  concerning the          'serialized' currency," but it was  not until November 21,  1994,          that  Schiavo filed a motion  to suppress any  and all statements          made  by him on November 4, 1991.   The court properly denied the          motion  as untimely, see Fed.  R. Crim. P.  12(b)(3), and without                               ___          merit,  but  nonetheless  suppressed statements  made  after  the          illegal seizure of the bag of currency.                 We think the  court's reasoning, that the  completion of the          pat frisk  separated admissible from  inadmissible statements, is          unassailable.   The frisk antedated the unconstitutional conduct;          accordingly, information derived during  it cannot be  considered          fruit of  the poisonous tree.   See United  States v. Crews,  445                                          ___ ______________    _____          U.S. 463, 470-71  (1980).   Moreover, the  court's assessment  of          where the pat  frisk ended  was cautious and  to the  defendant's          benefit.  The statement "It's big" fell well within its span.               Schiavo  alternatively seeks  exclusion  of  the  statements          based  on the absence of  Miranda warnings.   This contention was                                    _______          not raised in any manner below and is waived.4                                        ____________________               3    The  Court:  So, in other  words, there is no motion to                    suppress  any statements that  may or may  not be made,                    we're just concerned with suppression of the money?                    Schiavo's Counsel:  Correct, your Honor.               4  In  any event, the  statements were made during  a lawful          stop and frisk  under Terry v. Ohio,  392 U.S. 1 (1968).   See 29                                _____    ____                        ___          F.3d  at  9.   Schiavo  was  not in  custody  at  the time,  and,                                         -6-          C.  Claims Based on Length of the Conspiracy              ________________________________________               Schiavo contends  that the  government's evidence  failed to          link  him to a conspiracy  lasting from December  1989 to January          1992.   He therefore argues that the jury's guilty verdict on the          conspiracy  charge must  be  vacated and  that the  coconspirator          statement  made in  1990 was  improperly admitted.   We  think it          helpful  to set forth in  detail the evidence  presented at trial          relevant  to the conspiracy charge before analyzing his claims of          error.          The 1990 Transactions          _____________________               The CI  detailed seven transactions that  took place between          January  and  November  1990,  before his  involvement  with  the          government.   The  CI arranged  these deals  through  Winter, who          then,  usually accompanied  by  Farina,  delivered  the  cocaine,          though the drugs were  once delivered by Farina and  another time          by  Winter's son.  Without exception, the CI received the cocaine          on credit, paying Winter within a few days.                 The CI learned of Schiavo's participation during the fifth          transaction, which  occurred in  May or  June of  1990.   On that          occasion, according to his testimony, the CI drove with Winter to          the  Assembly Mall  parking  lot  in  Somerville,  Massachusetts.          Schiavo  arrived  soon  thereafter  and parked  nearby.    Winter          approached Schiavo, received a bag from him,  returned and handed          the bag  to the CI.   The bag contained one  kilogram of cocaine.                                        ____________________          therefore,  Miranda  warnings were  not  warranted.   See  United                      _______                                   ___  ______          States v. Quinn, 815 F.2d 153, 160-61 (1st Cir. 1987).          ______    _____                                         -7-          The  CI  testified that  he  then inquired  into  the deliverer's          identity:  "I asked Howie  who this gentleman was and he  said it          was Kenny and that he was the supplier for the products."                                         -8-          The CI's Cessation of Activities          ________________________________               In  November  1990,  Winter  advised   the  CI  not  to  use          telephones because of "a 3T investigation."5  Upon  hearing this,          the CI terminated  his business with  Winter.  The  conspirators'          awareness of the DEA investigation was further  demonstrated by a          phone conversation intercepted on November 22, in which Schiavo's          son indicated  to a friend that the police were listening.  Later          that same day, Schiavo and Winter  met briefly on a street corner          in Medford.               The  CI  could  not  provide information  about  the  period          between November  1990 and  May 1991.   Nonetheless,  NYNEX phone          records established  that a number  of calls were  placed between          the residences of Schiavo and Winter during this time.6          The 1991 Transactions          _____________________               The 1991 controlled transactions were documented by personal          and  electronic surveillance.   The  CI reinitiated  contact with          Winter  on May 20, 1991, and  met with him the next  day.  On May          22,  Winter and Farina delivered  one kilogram of  cocaine to the                                        ____________________               5    According  to a  DEA  agent,  3T  refers to  electronic          surveillance  authorized pursuant  to  Title III  of the  Omnibus          Crime Control and Safe Streets Act, 18 U.S.C.    2510-2522.  From          November to  early December  1990, the government  had wiretapped          one telephone of Winter's and two telephones of Schiavo's.               6   The phone records entered as  exhibits at trial were not          included in the appellate record.   We accept the representations          of the government at closing argument and in its brief as to what          these records  reflect about the  number and  timing of  specific          calls.   The defendant's closing argument and brief indicate that          there is no dispute as to the contents of these exhibits.                                         -9-          CI; on June 13, 1991, they delivered two.7  In each case, payment          was rendered  the following  day.   At significant  points during          each  deal -- on May 22, near the  time that the CI called Winter          to  arrange for payment; on June 12, following the CI's order for          two  kilograms; and  on June  14, following  the CI's  payment to          Winter -- calls were placed from Winter's home to Schiavo's.               On the  morning of  August 1,  the CI picked  up Winter  and          ordered two kilograms of cocaine.  After stopping to make a phone          call, Winter informed  the CI that,  "He's gonna meet me."   They          proceeded to a  Caldor's parking lot  in Brighton, where  Schiavo          soon  arrived.    After  meeting  briefly  with  Schiavo,  Winter          returned to the car and told the CI, that "[We're] gonna meet him          at 12 o'clock."   Schiavo returned to Somerville, and  parked his          car near Farina's.  At approximately 12:00 p.m., Farina delivered          one kilogram of cocaine to the CI.                 On August  2, the CI paid  Winter and asked about  the other          kilogram of cocaine.  Winter responded "let me call  him up," and          then placed  a call to  Schiavo's home.   He then advised  the CI          that "he's  still trying to --  to get that other  one," and that          "if he  can get it out  there, whatever time, I'll  just give you          the time  and that  kid8 will  be there."   The next  day, Farina          delivered a  kilogram of cocaine to  the CI.  The  CI paid Winter                                        ____________________               7  These transactions served as the basis for the two counts          of the  superseding indictment  for which  Schiavo was  found not          guilty.               8  Earlier in the conversation, Winter had referred to "that          kid Gerry" -- i.e., Farina.                        ____                                         -10-          for  this cocaine  on August  8.   On August  9, Winter  met with          Schiavo  for several minutes in  the parking lot  of the Sheraton          Tara hotel in Framingham.               On October 31,  the CI, while  driving with Winter,  ordered          another  kilogram  of cocaine.   Winter  placed  a phone  call to          Schiavo's  residence and arranged to meet him at a Dunkin Donuts.          Winter and Schiavo met  briefly, and Winter informed the  CI that          he could  pick  up the  kilogram later  in  the day.    Due to  a          misunderstanding -- the CI apparently  went to the wrong location          --  the cocaine  was not delivered  until the  following morning,          when Winter brought it to the CI's home.               As discussed above, the  CI gave Winter  $9,000 in a bag  on          November  4.   A  short time  later,  Winter and  Schiavo arrived          separately  at  the  Chandlery   Restaurant  in  Chelsea.    Upon          departing and being stopped and frisked by Trooper Duffy, Schiavo          stated that he  was carrying a  big bag.   On November 6, the  CI          paid Winter the balance owed on the one kilogram.               1.  The Conspiracy Verdict                   ______________________               Schiavo contends  that the evidence failed  to establish the          single  conspiracy  charged, and  suggests  that,  at best,  only          multiple  conspiracies  were  proved.     We  review  the  jury's          determination  for  evidentiary  sufficiency,  United  States  v.                                                         ______________          Wihbey,  75  F.3d  761, 774  (1st  Cir. 1996),  and  affirm  if a          ______          rational jury could have  found guilt beyond a reasonable  doubt.          United States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995).          _____________    ______                                         -11-               The  controlled nature  of the  1991 deals,  conducted under          extensive surveillance, yielded substantial evidence of Schiavo's          involvement  in  the cocaine  conspiracy.    For example,  Winter          consistently called, or arranged to meet, Schiavo whenever the CI          ordered  or paid for cocaine.  This indicated that Schiavo played          a  major role  in  the  operation.    Moreover,  the  jury  could          reasonably infer,  based on Schiavo's comments  to Trooper Duffy,          that the bag on his person was the bag  of money delivered by the          CI to Winter.       Notwithstanding    Schiavo's   protestations,          there  was  significant evidence  that this  conspiracy commenced          many  months  earlier.    First,  the  particulars  of  the  1991          transactions  were consistent with the 1990 ones:  the CI ordered          cocaine  from Winter, received it  from Winter and/or Farina, and          paid  Winter  for  it  within  a  few  days.     Both  series  of          transactions  involved the  same  people,  contemplated the  same          ends,  and used the same means to  reach those ends, all of which          signify one continuous  conspiracy.  See United States  v. David,                                               ___ _____________     _____          940 F.2d 722, 734 (1st Cir.  1991).  Even more compelling, the CI          observed Schiavo deliver cocaine to Winter in the spring of 1990,          at  which time Winter identified  Schiavo as the  supplier of the          drugs.9                Schiavo's essential argument  is that there  was a lapse  of          six  months  in  which  the  government  failed   to  identify  a          substantive transaction.  We  do not think that  a lapse of  time                                        ____________________               9  We  explain the  admissibility of this  statement in  the          next section.                                         -12-          per se transforms a single conspiracy into multiple conspiracies.          ___ __          See  United States v. Williamson, 53 F.3d  1500, 1513 & n.6 (10th          ___  _____________    __________          Cir.  1995) (citing cases from other  circuits); United States v.                                                           _____________          Maldanado-Rivera,  922 F.2d 934, 963 (2d Cir. 1990).  There is no          ________________          indication whatsoever that Schiavo withdrew from the  conspiracy.          Indeed, phone records indicate  that Schiavo and Winter regularly          communicated during the supposed period of inactivity.  Moreover,          based on the  events in November 1990 -- Winter's  comment to the          CI,  Schiavo's son's  intercepted conversation,  and the  meeting          between  Winter and  Schiavo --  it is  reasonable to  infer that          Schiavo  and Winter  were  well aware  of  the increased  federal          surveillance,  and   resolved  to  be  more   cautious  in  their          activities.               In  short,  the fact  that there  is  no direct  evidence of          cocaine  transactions from  late November  1990 to late  May 1991          does  not  negate  the   evidence  of  a  continuing  conspiracy.          Accordingly,  we  find the  evidence  sufficient  to support  the          verdict.10               2.  Admission of Winter's Statement                   _______________________________               Schiavo complains of the  court's admission of Winter's 1990          statement  identifying him as "the supplier."   The court allowed          the remark as a  statement made by a coconspirator under  Fed. R.                                        ____________________               10   Because  the  evidence supports  the single  conspiracy          charged  in the  indictment, we  need not  address the  issues of          variance  and prejudice  that are  common components  of multiple          conspiracy claims.  See Wihbey, 75 F.3d at 774.                              ___ ______                                         -13-          Evid.  801(d)(2)(E).11    Schiavo  contends  that  there  was  no          evidence that Schiavo and Winter were coconspirators at the time.          The  court, based on a preponderance of the evidence, reached the          opposite conclusion.   We review its  factual findings for  clear          error.  United States v. Sepulveda,  15 F.3d 1161, 1180 (1st Cir.                  _____________    _________          1993).               The law  in this  area  is well  settled.   "To  invoke  the          [801(d)(2)(E)]  exception,  a  party  who wants  to  introduce  a          particular statement must show by a preponderance of the evidence          that a conspiracy embracing both the declarant and the  defendant          existed, and that the declarant  uttered the statement during and          in  furtherance of  the  conspiracy."   United States  v. Flores-                                                  _____________     _______          Rivera,  56 F.3d  319, 329  (1st Cir.  1995)  (internal quotation          ______          marks and citations omitted).  This determination is the province          of the  court.  United  States v. Petrozziello,  548 F.2d 20,  23                          ______________    ____________          (1st Cir. 1977).                 During  a conference near the  end of trial,  the court made          explicit findings under Petrozziello, stating                                   ____________               I have  to make that  finding at  the close of  all the               testimony[] --  that Mr. Winter and Mr. Schiavo and Mr.               Farina were members  of the conspiracy at  the time the               statements were made and  that the statements were made               during  the  course  of   and  in  furtherance  of  the               conspiracy.  I do find that by a preponderance.12                                        ____________________               11    Rule  801(d)(2)(E)  provides that  "a  statement  by a          coconspirator  of a party during the course and in furtherance of          the conspiracy" is not hearsay.               12  We note that  the judge's interpretation of the law  was          more  favorable to Schiavo than required:  a defendant is subject          to  proof of  the comments  of coconspirators  made prior  to his          involvement  in the conspiracy.  United States v. Masse, 816 F.2d                                           _____________    _____                                         -14-               Schiavo argues that there is no extrinsic evidence tying him          to a  conspiracy in 1990.  See Sepulveda, 15 F.3d 1161, 1182 (1st                                     ___ _________          Cir.  1993).  Our earlier discussion of evidentiary sufficiency            disposes of this assertion.  Given the relevant standard of proof          --  more  likely  than  not  --  the  evidence,  absent  Winter's          statement, easily supports the court's finding that the statement          was  made  during the  course of  a conspiracy  involving Winter,          Schiavo and Farina.               Nor  can  its  finding  that   the  statement  was  made  in          furtherance of the conspiracy be attacked.  A statement  furthers          a  conspiracy  if  it  "tends  to  advance  the  objects  of  the          conspiracy  as opposed to thwarting its  purpose."  United States                                                              _____________          v. Masse, 816 F.2d  805, 811 (1st Cir. 1987)  (internal quotation             _____          marks and citation omitted).  Here, the identification of Schiavo          to the CI, then a key participant in the drug distribution chain,          clearly tended to  further the goals of the conspiracy.   See id.                                                                    ___ ___          Winter's statement was properly admissible.            D.  Prosecutorial Vindictiveness              ____________________________               On September 19,  1994, Schiavo filed  a pretrial motion  to          dismiss  the superseding  indictment asserting, inter  alia, that                                                          _____  ____          the indictment was procured as a  result of an abuse of the grand          jury  process.   In particular,  he alleged  that  the government          convened the grand jury to shore up its weak case, violating  the          spirit of United States  v. Doe, 455 F.2d  1270 (1st Cir.  1972).                    _____________     ___          After an evidentiary  hearing, the  motion was  denied.   Schiavo                                        ____________________          805, 811 (1st Cir. 1987).                                           -15-          abandons  the grand  jury  theory  on  appeal,  in  favor  of  an          alternative claim  that the superseding indictment  was a product          of vindictive prosecution.  As this claim was not advanced below,          we  review for plain error.   United States  v. Santiago, 83 F.3d                                        _____________     ________          20, 25 (1st  Cir. 1996); United States v. Whaley,  830 F.2d 1469,                                   _____________    ______          1476-77 (7th Cir. 1987) (vindictive prosecution claim).               A defendant may show  vindictive prosecution by 1) producing          evidence  of  actual  vindictiveness  sufficient to  show  a  due          process violation or 2) demonstrating that the circumstances show          there is a sufficient "likelihood of vindictiveness" to warrant a          presumption of  vindictiveness.  United States  v. Marrapese, 826                                           _____________     _________          F.2d 145, 147 (1st Cir. 1987).  Schiavo does not attempt to prove          actual vindictiveness, but insists  that the following facts give          rise to the requisite presumption:  1) the superseding indictment          was returned soon  after the  government lost its  appeal on  the          suppression of the currency,  2) the indictment was not  based on          the discovery  of new  evidence, and 3)  the government  expected          Schiavo  to  plead.     Even  assuming  that   a  presumption  of          vindictiveness could  arise from  pretrial conduct --  a scenario          that  is questionable in light  of United States  v. Goodwin, 457                                             _____________     _______          U.S. 368, 381 (1982) ("There is good reason to be cautious before          adopting    an    inflexible    presumption   of    prosecutorial          vindictiveness  in  a  pretrial  setting.") --  these  facts  are          deficient as a  matter of law.  The filing  of a pretrial motion,          regardless of its  successful outcome,  and the  failure of  plea          negotiations are routine events  unlikely to provoke a prosecutor                                         -16-          to  "seek to  penalize and deter."   See  id.   Schiavo falls far                                               ___  ___          short  of demonstrating  a  "likelihood  of vindictiveness,"  and          necessarily fails to establish plain error.                                           -17-          E.  Speedy Trial              ____________               Schiavo  claims a  violation  of the  Speedy  Trial Act,  18          U.S.C.    3161-74.  Under the Act, trial  must commence within 70          nonexcludable  days following  defendant's  appearance  before  a          judicial officer of  the court.  Id.   3161(c)(1).   On Schiavo's                                           ___          motion, the court  determined that  578 of the  616 days  between          Schiavo's  initial  court appearance  on March  8, 1993,  and the          start of his trial on November 14, 1994, were excludable, leaving          38 nonexcludable days to go on the speedy trial clock.13               Schiavo  alleges  that the  court  erred  by excluding  time          attributable to 1) his motion for pretrial release, 2) his motion          to  reconsider pretrial  release,  3) his  motion  for return  of          property,  and 4) a one week continuance.   We review the court's          factual findings for clear  error and its legal rulings  de novo.                                                                   __ ____          United  States v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir. 1995).           ______________    _________               The Act excludes "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).   We  think that  "any pretrial  motion"          easily encompasses  pretrial motions relating to pretrial release          or  detention,  and have  previously held  as  much.   See United                                                                 ___ ______          States  v. Noone,  913  F.2d 20,  27  (1st Cir.  1990)  (pretrial          ______     _____          detention).  See also United States v. Lattany, 982 F.2d 866, 872                       ___ ____ _____________    _______                                        ____________________               13  This figure actually represented nonexcludable days that          had already passed.   There were, in  fact, 32 days to  go on the          speedy trial clock.                                         -18-          n.6  (3d Cir.  1992); United  States v.  Wirsing, 867  F.2d 1227,                                ______________     _______          1230-31 (9th Cir. 1989).   We add that  the court, in  accordance          with 18  U.S.C.   3161(h)(1)(J),  properly allowed  only 30  days          exclusion  after  these  motions  were  under  advisement.    See                                                                        ___          Rodriguez, 63 F.3d at 1163.            _________               The motion  for return of  property was a  collateral matter          subsumed  in  the  pretrial motions  for  release.    It did  not          separately   account   for  any   time   excluded,   and  so   is          inconsequential  to Schiavo's  claim.   We need  not address  the          continuance, which accounted  for six excludable  days.  Even  if          exclusion  were   erroneous,   there  would   still   remain   26          nonexcludable days on the speedy trial clock.                                     III.  CONCLUSION               Having found no merit to Schiavo's claims, the judgment is           Affirmed.          ________                                         -19-
