                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 15 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50365

              Plaintiff-Appellee,                D.C. No. 3:08-cr-00256-L-7

  v.                                             MEMORANDUM*

MICHAEL DWAYNE TRYALS,

             Defendant-Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                   James M. Lorenz, District Judge, Presiding

                      Argued and Submitted April 12, 2013
                              Pasadena, California

Before: RAWLINSON and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
      Appellant Michael Dwayne Tryals was convicted of conspiracy to distribute

crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Tryals now

challenges on appeal the denial of his motion to dismiss the indictment based on

pre-trial delay in violation of the Speedy Trial Act, 18 U.S.C. § 3161, as well as the

district court’s admission at trial of his statements providing his alias and state of

birth during a post-arrest, pre-Miranda interview. We affirm the district court. The

salient facts are known to the parties and need not be recited here.

      First, the district court properly concluded that only 54 days of non-

excludable time had elapsed between May 6, 2008, the date Tryals’s last co-

defendant was arraigned, and March 15, 2010, the date Tryals orally made his

motion to dismiss for a Speedy Trial Act violation. The district court reasoned that

the remaining time had been tolled by Tryals’s pending discovery motion, which

was filed prior to the last co-defendant being arraigned and resulted in tolling the

clock from the date of filing until the hearing on the motion at the status

conference on January 19, 2010. That motion was noticed for a hearing by Tryals,

and subsequently continued on the date set for the hearing, after defense counsel

represented that they needed additional time to receive and review discovery and

determine what issues remained.


                                           2
      After that, Tryals and his co-defendants requested three continuances by

stipulation, all of which represented to the court that there were motions pending.

Based on these and other representations by defense counsel, the court concluded

that the discovery motion presented a live dispute and that a hearing would be held

on that motion. Because of this factual history, the district court did not clearly err

in finding that there was an identifiable pending motion on the docket which

addressed live discovery disputes that the court was required to rule upon after a

hearing. See United States v. Hardeman, 249 F.3d 826 (9th Cir. 2001); United

States v. Aviles-Alvarez, 868 F.2d 1108, 1113 (9th Cir. 1989). Such a pending

motion tolls the clock until a hearing on that motion, regardless of whether the

delay in holding a hearing is reasonable or necessary. See Henderson v. United

States, 476 U.S. 321, 326-27 (1986).

      Furthermore, the district court did not clearly err in finding that a hearing on

that motion did occur on January 19, 2010, because at that time Tryals spoke to the

court regarding his concerns about discovery that he had just received, the

government responded as to the current status of discovery, and the court

addressed those concerns. Therefore, based on those factual findings, we affirm

the district court’s denial of the motion to dismiss the indictment for a violation of

the Speedy Trial Act.


                                           3
      Second, Tryals’s answers to FBI agents’ questions regarding aliases and his

state of birth were properly admitted as evidence at trial. The record shows that the

FBI agents asked Tryals these questions while filling out a standard booking form,

entitled a “Prisoner Remand” form, because it required the arrestee’s aliases and

state of birth. These questions being “routine booking questions” attendant to

arrest and custody, Miranda is not implicated. Pennsylvania v. Muniz, 496 U.S.

582, 601-02 (1990); see also United States v. Washington, 462 F.3d 1124, 1133

(9th Cir. 2006) (“Asking about a nickname, even if it is for identification purposes,

is no different from simply asking for a suspect’s name. Questions about a

person’s identity are not unconstitutional even if identification of the person may

help lead to the prosecution of that person for a crime. Police routinely ask

suspects their names after being told that the person committed a crime or after

otherwise determining that a person is a suspect.” (internal citations omitted));

United States v. Arrellano-Ochoa, 461 F.3d 1142, 1146 (9th Cir. 2006) (holding

that questions concerning the place and date of birth fall within the “routine

booking question” exception to Miranda).



AFFIRMED.




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