

                      [NOT FOR PUBLICATION]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) &amp; 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 &amp; 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.                  

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