UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4478

MANUEL A. VENTURA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-204)

Submitted: February 27, 1998

Decided: March 18, 1998

Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David H. Hasty, SMITH, DICKEY, SMITH, HASTY & DEMP-
STER, P.A., Fayetteville, North Carolina, for Appellant. Janice Mc-
Kenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On July 24, 1997, at 3:50 a.m. Manuel A. Ventura was appre-
hended on the Fort Bragg military installation for suspicion of driving
while impaired and for failing to maintain his lane in violation of 18
U.S.C.A. § 13 (West Supp. 1997), assimilating N.C. Gen. Stat.
§§ 20-138.1 and 20-146(d)(1) (1997) respectively. After failing sev-
eral field sobriety tests he was taken to the Provost Marshal's Office
where he refused a breathalyzer test at approximately 5:00 a.m. He
was then released at 8:30 a.m. A criminal information was filed
against Ventura on September 23, 1996, and his initial appearance
before a magistrate judge and arraignment was conducted on October
9, 1996.

On the day of trial, December 10, 1996, Ventura filed a motion to
dismiss on the grounds that he was not taken before a magistrate
judge "without unnecessary delay" as required by Fed. R. Crim. P.
5(a). The magistrate judge orally denied the motion as untimely filed
under Local Rule 44.00. Ventura then pled guilty to both charges,
reserving the right to appeal from the denial of the motion to dismiss.
The district court upheld the magistrate's judge's decision on appeal.
For the reasons that follow, we affirm.

Local Rule 44.00, for the Eastern District of North Carolina, pro-
vides:

          Time Period For Filing Pre-Trial Motions in Criminal
          Cases. All pre-trial motions, including but not limited to
          motions to suppress and motions under Rules 7, 12, 14, 16
          and 41, F.R.Crim.P, shall be filed no later than 30 days after
          indictment or initial appearance, whichever comes later.
          Responses shall be filed within ten days after the service of
          such motions. Untimely motions may be summarily disre-
          garded.

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District courts are authorized to set times for the making of pretrial
motions by local rule or otherwise following a defendant's arraign-
ment. See Fed. R. Crim. P. 12(c). Further, failure of a party to timely
make a pretrial motion as set under Rule 12(c) shall constitute waiver
of an issue, unless the court grants relief for good cause. See Fed. R.
Crim. P. 12(f).

On appeal, Ventura urges this court to reverse the district court's
order on the grounds that his motion to dismiss is not a "pretrial
motion" as envisioned by Fed. R. Crim. P. 12(b). We disagree. First,
Rule 12(b) defines a pretrial motion as "[a]ny defense, objection, or
request which is capable of determination without the trial of the gen-
eral issue . . . ." The fact that Ventura did not receive a timely initial
appearance before a magistrate judge and any prejudice he may have
suffered, were issues unrelated to whether he was guilty of the
offenses charged.* Second, as noted by the district court, Ventura
gave no reason why his motion to dismiss could not have been filed
within the time allotted by the clear language of Local Rule 44.00.

Thus, we affirm the district court's order denying the motion to dis-
miss as untimely filed. See United States v. Chavez, 902 F.2d 259,
263 (4th Cir. 1990) (listing cases showing that appellate courts rarely
grant relief from denials of untimely filed pretrial motions under Fed.
R. Crim. P. 12(f)). We dispense with oral argument as the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED
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*Also, to the extent that Ventura sought the district court to adopt the
North Carolina state law rule announced in State v. Hill, 178 S.E.2d 462
(N.C. 1971), this is a legal argument capable of determination without
reference to his guilt or innocence of the charges against him. See gener-
ally United States v. Canane, 622 F. Supp. 279 (W.D.N.C. 1985) (con-
struing defendant's state claim under State v. Hill in federal court to be
an allegation that he was not brought before a magistrate without undue
delay), aff'd, 795 F.2d 82 (4th Cir. 1986).

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