United States v. Bush

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4552
LARRY LAMONT BUSH,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-01-611)
Argued: February 4, 2005
Decided: April 13, 2005
Before WILKINSON and WILLIAMS, Circuit Judges, and
Henry F. FLOYD, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Wilkinson and Judge Floyd joined.
COUNSEL
ARGUED: Caroline D. Ciraolo, ROSENBERG, MARTIN, FUNK &
GREENBERG, L.L.P., Baltimore, Maryland, for Appellant. Robert
Reeves Harding, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Thomas M. DiBiagio, United States Attorney, Joyce K.
2 UNITED STATES v. BUSH
McDonald, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
OPINION
WILLIAMS, Circuit Judge:
Larry Lamont Bush challenges his conviction and sentence for var-
ious crimes of identity theft. Bush asserts on appeal that the district
court erred by denying his motion for self-representation, his motion
to dismiss the indictment for a violation of the Speedy Trial Act, and
his motion to suppress evidence obtained in a search of his home. We
conclude that Bush’s challenges to his conviction are without merit,
and, accordingly, affirm his conviction and sentence.
I.
The investigation leading to Bush’s prosecution began in Septem-
ber of 1998. On September 15, 1998, Detective Ellsworth Jones, an
officer with the Howard County, Maryland, Police Department,
received a telephone call from a Ms. Brenda Moon, who believed
someone was attempting to obtain a loan in her name from Norwest
Financial Bank in Maryland. Jones met with bank employees, who
informed him that a woman had indeed called the bank representing
herself to be Brenda Moon. The bank employees also told Jones that,
during the phone call, a man could be heard in the background,
instructing "Ms. Moon." Jones and some fellow officers began sur-
veillance at Norwest Financial, and when "Ms. Moon" called later
that day to check on the status of her loan application, she was
instructed to come in as soon as possible to complete the application
process.
An hour after the phone call from "Ms. Moon," a man and a
woman appeared together at Norwest Financial. They arrived in a
Jeep Grand Cherokee driven by a man. Upon entering the bank, the
woman identified herself as "Ms. Moon" and was led away to com-
plete the loan process. The man, who identified himself as Larry
Bush, remained in the lobby while "Ms. Moon" completed her loan
UNITED STATES v. BUSH 3
process. After "Ms. Moon" and Bush exited the bank, Jones followed
them to the Jeep. "Ms. Moon" opened the passenger door to the Jeep,
hiked up her skirt as if she was about to enter the Jeep, and placed
her purse on the floor of the passenger side of the car. Before she
entered the Jeep, however, Jones placed her under arrest. The woman
identified herself as Yvette Canty. Jones and another officer then
detained Bush because, given the bank employee’s statement that a
male voice was heard during the phone conversations, Jones con-
cluded that he "had good reason to believe that at that point that he
was probably involved." (J.A. at 189.)
Jones then conducted a search of the vehicle. The search revealed
information regarding the fraudulent loan, including a computer print-
out of a credit report for Brenda Moon as well as a sheet of paper con-
taining handwritten information about Brenda Moon. Jones also
discovered a phone bill in Bush’s name that listed an address of 122
North Wolfe Street in Baltimore. Jones then placed Bush under arrest.
Following her arrest, Canty waived her Miranda rights and pro-
vided the following written statement to Jones:
I Yvette went in the loan office and signature for a loan that
was not mine. I was ask [sic] to do this because of problems
I have [sic] money and drugs. All the paper that I need [sic]
to use was give to [sic] me by Larry Bush. All information
too. I would had been pay [sic] for this if it happen.
(J.A. at 67.)
Canty also gave several oral statements to Jones, indicating that
Bush lived at the North Wolfe Street address, and that Bush had a
computer at that address that contained all of the information on the
fraudulent loan.
Jones obtained a search warrant for Bush’s 122 North Wolfe Street
residence. In the course of executing the warrant, Jones seized two
computers which produced evidence against Bush. Based on that evi-
dence, Bush was prosecuted in Maryland state court for bank fraud.1
1
The record is somewhat unclear as to what happened in the Maryland
proceedings. Apparently Bush was convicted, but he was granted a new
4 UNITED STATES v. BUSH
After Bush’s initial conviction was reversed on appeal, Bush was
scheduled to be retried on state law charges in 2001. Jones, who
expected to testify at the second trial, began to reacquaint himself
with the case. In the course of familiarizing himself with Bush, he ran
a motor vehicle report in March 2001. The motor vehicle report
revealed that Bush had a 2000 BMW sport-utility vehicle titled in his
name. Because of Jones’s prior experience with Bush’s fraudulent
activities, Jones decided to investigate further.
Jones’s investigation established that the 2000 BMW was origi-
nally titled in the name of Robert Bogle, a recently-deceased resident
of New Jersey. Suspicion aroused, Jones made several inquiries and
discovered that Bush had a fake New Jersey’s driver’s license made
with his picture and Bogle’s personal information. Upon receiving
this information, Jones contacted the Federal Bureau of Investigation
for assistance. Eventually, Jones and the agents discovered that Bush
had, on several occasions, used fake driver’s licenses to obtain online
loans for purchasing luxury cars. These driver’s licenses contained the
personal information of recently-deceased individuals and Bush’s
photograph. After obtaining the loan and purchasing the car, Bush
would then create fake lien release papers and resell the cars for cash.
Upon discovering this information, Jones then executed another
search warrant at the North Wolfe Street address on June 8, 2001.
This search revealed, among other physical evidence, software for-
mats used to create the fake driver’s licenses, personal information of
the individuals whose identities Bush stole, and the fake lien-release
papers.
Shortly thereafter, on January 2, 2002, Bush was indicted by the
federal grand jury for the District of Maryland. The superseding
indictment charged Bush with fifty-six counts. Count One of the
indictment alleged that Bush used a false identity to defraud Arkansas
trial because he was not informed of his right to a jury trial. Bush then
pleaded guilty before the second trial and was sentenced in 2001 to fif-
teen years imprisonment, which was suspended to eight years. Bush had
also been arrested on a credit card fraud scheme by Maryland state
authorities. Bush was, at the time of the federal prosecution at issue in
this case, incarcerated in Maryland state prison.
UNITED STATES v. BUSH 5
National Bank in 1998 in violation of 18 U.S.C.A. §§ 1342, 1344
(West 2000). Count Two alleged that Bush used a fake Social Secur-
ity Number to obtain a car loan in violation of 42 U.S.C.A.
§ 408(a)(7)(B) (West 2003). Counts Three through Six alleged that
Bush committed identity theft to procure loans from banking institu-
tions to finance his luxury car scheme in violation of 18 U.S.C.A.
§§ 1342-44 (West 2000 & Supp. 2004). The remaining counts,
Counts Seven to Fifty-Six, related to Bush’s decision to adopt his
step-mother’s identity for the purpose of obtaining her Social Security
payment in violation of 18 U.S.C.A. § 2 (West 2000) and 18 U.S.C.A.
§ 510(a)(2) (West 2000). Bush’s step-mother passed away in May
1997. Bush obtained a death certificate for his step-mother, but he did
not inform the Social Security Administration of her passing. Instead,
Bush or an accomplice forged his step-mother’s signature and Bush
continued depositing the checks into a joint checking account he held
with his step-mother.
Bush made his initial appearance in the district court on January
11, 2002, with appointed counsel, Franklin Draper. On February 8,
Draper, at the Government’s suggestion, filed a motion to sever
counts in the superseding indictment so that plea negotiations could
commence. The Government responded to this motion on October 2,
2002. At that time, the Government believed that Bush had agreed to
enter into a plea bargain. Bush, however, refused to sign the plea bar-
gain, and on October 7, 2002, Bush filed a motion to appoint new
counsel, which was granted following a hearing on October 21, 2002.
Bush also filed a pro se motion to suppress certain evidence obtained
from his home at 122 North Wolfe Street. On January 3, 2003, the
district court denied the motion to suppress. At the close of that hear-
ing, the district court also denied the motion to sever.
On January 22, 2003, Bush filed a pro se motion to dismiss the
indictment for a violation of the Speedy Trial Act. Although the clerk
received this motion on that date, instead of officially docketing the
motion, the clerk forwarded the motion to the district judge’s cham-
bers. The motion was properly docketed during a hearing on March
4, 2003, and the district court affirmed that the motion had been
received in January. This motion was denied.
On February 19, 2003, a week before trial was set to begin, Bush
filed a pro se motion for new counsel or for the right to proceed pro
6 UNITED STATES v. BUSH
se. The district court addressed that motion in a lengthy hearing on
the morning of the first day of trial, February 24, 2003, and ultimately
denied Bush’s request to proceed pro se. The basis for Bush’s motion
was that his counsel failed to communicate with him. Bush’s counsel
responded that the failure to communicate lay with Bush, and, "it is
my view that Mr. Bush has decided, for whatever reason, to make me
the issue [in this case]." (J.A. at 235.) Bush explained his position
stating, "I would rather be my own sacrificial pig and just go before
the court on my own, by going pro se. I have that right, and I want
to exercise it." (J.A. at 238.)
The district court recognized, "the circumstances under which [the
court] could actually refuse to permit [Bush] to represent [him]self are
very, very narrow," and "it’s not at all clear . . . that those circum-
stances [we]re presented in this case." (J.A. at 241.) The district court
explained the virtues of being represented by counsel and admonished
Bush, "you are saying to me you are willing to sit there and try to
keep up with all of this, when I know full well that you can’t." (J.A.
at 248.) Nonetheless, the district court again mentioned, "I am proba-
bly going to have to allow it." (J.A. at 248.) The district court asked
Bush whether he was familiar with federal practice and procedure.
Bush responded that he had been indicted twice by a federal grand
jury. Bush again urged, "I prefer to put my own defense on . . . if you
are not going to give me another counsel, I will represent myself."
(J.A. at 254.)
The district court asked Bush if he was prepared to go to trial, and
Bush responded "[n]o. But you said you are not going to honor a con-
tinuance, so I have no other choice." (J.A. at 254.) The district court
then reversed its earlier inclination and said, "I think then I have the
prerogative under those circumstances not to permit you to represent
yourself . . . where you just admitted to the Court that you are not
ready for trial." (J.A. at 255.) Bush then responded that he could put
on a better defense than his counsel, and that if counsel remained, he
would absent himself from the proceedings.
Before turning to other issues, the Government asked the district
court to create a formal record, as we suggested in United States v.
Singleton, 107 F.3d 1091 (4th Cir. 1997). The district court obliged
and entered into a colloquy with Bush. During the exchange, Bush
UNITED STATES v. BUSH 7
revealed that he had been previously diagnosed with manic depres-
sion, and that he was currently on Prozac to combat depression. After
some prodding, Bush also revealed that he had attempted suicide as
a juvenile and as an adult.
At the close of the colloquy, the district court denied the motion
and made the following findings:
I find that you are not capable of representing yourself. By
your own admission, you have not reviewed the discovery.
Although you have dropped a few legal terms and you
clearly have done some reading on the law, you are no more
prepared to represent yourself in this trial than that easel sit-
ting over there, with all respect.
While you were jealously guarded of disclosing your psy-
chiatric history, and I understand why and I respect that, it
is reasonably clear to this Court that you are not capable of
making a rational, intelligent, competent, knowing decision
to discharge [counsel].
...
I referred to you as manipulative earlier, and I think you
are manipulative, but, given your psychiatric history . . . it
may well be that you are not, shall we say, purposely manip-
ulative.
(J.A. at 299-300.)
The district court viewed Bush as manipulative, stating, "I find that
you are misrepresenting the nature of your relationship [with coun-
sel]." (J.A. at 300.) Later, the district court referred to Bush as a "con-
trol freak." (J.A. at 303.) The next day, Bush moved for the district
court to reconsider its earlier ruling. The district court declined to do
so, explaining, "[i]t is clear to this Court that Mr. Bush, indeed, does
not have a genuine and sincere wish to represent himself. To the con-
trary, what Mr. Bush wants is for the Court to make a third appoint-
ment of counsel." (J.A. at 347.) Continuing, the district court stated,
8 UNITED STATES v. BUSH
"Bush obviously wants . . . primarily, number one, a further postpone-
ment of the trial of this case, and, second, a third lawyer, someone he
can control, someone who will do exactly what he says . . . ." (J.A.
at 347.) The district court concluded by noting, "[h]e wants to make
a mockery of these proceedings. That’s what Mr. Bush wants." (J.A.
at 348.)
Following the denial of the motion for self-representation or
appointment of new counsel, Bush requested to absent himself from
the proceedings, contending, "I can do much better representing
myself, and I would rather not be here to watch myself crash and
burn." (J.A. at 360.) Bush also posited, "I will find it very hard to just
sit here and see a lie being put forward and not speak up against it."
(J.A. at 306.) The district court noted that during this proceeding Bush
was "smiling very broadly and grinning and fairly enjoying himself."
(J.A. at 359.) The district court granted Bush’s request to absent him-
self, and trial began. On March 4, Bush was convicted on Counts 1-
6 and 14-56 in the indictment. He was acquitted on Counts 7-13. Bush
was sentenced to 105 months imprisonment. He noted a timely pro
se appeal, and we have jurisdiction under 28 U.S.C.A. § 1291 (West
1993).
II.
On appeal, Bush raises several challenges to his conviction.2 First,
Bush argues that the district court erred in denying his motion for
self-representation. Next, Bush contends that his Speedy Trial Act
rights were violated because of the delay between his indictment and
trial. Finally, Bush asserts that the district court erred in denying his
motion to suppress evidence relevant to Count 1 of the indictment, the
allegation of fraud against Arkansas National Bank.3 We address each
argument in turn.
2
At oral argument, Bush requested that we remand the case for resen-
tencing in light of Booker v. United States, 125 S. Ct. 738 (2005). Bush
subsequently withdrew his request to remand for resentencing.
3
Bush also contends on appeal that the district court should have
granted him a hearing pursuant to Franks v. Delaware, 438 U.S. 154(1978) to determine whether the 1998 search warrant application for
Bush’s 122 North Wolfe Street home contained material false statements.
We have reviewed the briefs and record in this case and do not believe
that the allegedly "false information was essential to the probable cause
determination." Simmons v. Poe, 47 F.3d 1370, 1383 (4th Cir. 1995).
UNITED STATES v. BUSH 9
III.
Bush’s first contention on appeal is that the district court erred in
refusing to grant his request for self-representation. We review a dis-
trict court’s denial of a defendant’s right to self-representation de
novo. Singleton, 107 F.3d at 1091 n.3. We review the district court’s
findings of historical fact for clear error. United States v. Mackovich,
209 F.3d 1227, 1236 (10th Cir. 2000).
The Supreme Court first recognized a defendant’s right to self-
representation at trial in Faretta v. California, 422 U.S. 806 (1975).
After cataloguing the history of the right, both in England and the
American colonies, the Court held that "the defendant . . . must be
free personally to decide whether in his particular case counsel is to
his advantage," and that "his choice must be honored out of that
respect for the individual which is the lifeblood of the law." Id. at 834(internal quotation marks omitted). This right, however, is mutually
exclusive of the right to counsel guaranteed by the Sixth Amendment.
United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000). In rec-
ognition of that fact, the Court explained, "in order to represent him-
self, the accused must knowingly and intelligently forgo those
relinquished benefits [obtained from the right to counsel]." Faretta,
422 U.S. at 835 (internal quotation marks omitted). In addition, "[the
defendant] should be made aware of the dangers and disadvantages
of self-representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open." Id. (internal
quotation marks omitted). The Court made clear that the defendant
"need not himself have the skill and experience of a lawyer," but it
also cautioned that the "right of self-representation is not a license to
abuse the dignity of the courtroom." Id. at 835, 834 n. 46. Later cases
have clarified that a district court cannot deny a defendant’s right to
self-representation merely because the defendant lacks "technical
legal knowledge." Godinez v. Morgan, 509 U.S. 389, 399-400 (1993);
see also United States v. Mack, 362 F.3d 597, 601 (9th Cir. 2004).
We "review the sufficiency of a waiver of the right to counsel by
evaluating the complete profile of the defendant and the circum-
stances of his decision as known to the trial court at the time," by "ex-
amining the record as a whole."4 Singleton, 107 F.3d at 1097. In
4
A district court faced with a request for self-representation should
inquire into "the defendant’s background capabilities and understanding
10 UNITED STATES v. BUSH
determining whether a defendant properly has exercised his right to
self-representation and waived his right to counsel, we ascertain
whether the assertion of the right to self-representation is (1) clear and
unequivocal; (2) knowing, intelligent and voluntary; and (3) timely.
See Frazier-El, 204 F.3d at 558. The requirement that the assertion
be clear and unequivocal "is necessary to protect against an inadver-
tent waiver of the right to counsel by a defendant’s occasional mus-
ings," and it also "prevents a defendant from taking advantage of and
manipulating the mutual exclusivity of the rights to counsel and self-
representation." Id. at 558-59 (internal quotation marks omitted).
Additionally, "[i]n ambiguous situations created by a defendant’s vac-
illation or manipulation, we must ascribe a ‘constitutional primacy’ to
the right to counsel." Id. "At bottom, the Faretta right to self-
representation is not absolute, and the ‘government’s interest in ensur-
ing the integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer.’" Id. (quoting Marti-
nez v. Court of Appeal, 528 U.S. 152 (2000)).
The district court denied Bush’s request to represent himself
because Bush did not clearly and unequivocally assert the right, and
because Bush was not capable of making a knowing, intelligent, and
voluntary waiver of his right to counsel.5 The district court erred to
the extent it relied on Bush’s lack of legal knowledge and history of
mental illness in making this ruling. See Godinez, 509 U.S. at 399("[T]he competence that is required of a defendant seeking to waive
his right to counsel is the competence to waive the right, not the com-
petence to represent himself.")
We have held, however, that a district court can deny a request for
of the dangers and disadvantages of self-representation," but the failure
to conduct a formal inquiry is not per se reversible error. United States
v. Singleton, 107 F.3d 1091, 1098 (4th Cir. 1997).
5
In its brief, the Government asserts that Bush’s request was also
untimely. We disagree. In Singleton we set the beginning of trial as the
relevant date for denying a request as untimely. See Singleton, 107 F.3d
at 1099 ("And if a defendant first asserts his right to self-representation
after trial has begun, the right may have been waived."). Bush’s motion
in this case was filed about a week before trial, and was therefore timely.
UNITED STATES v. BUSH 11
self-representation when the request is made for purposes of manipu-
lation because, in such cases, the request will not be clear and
unequivocal. Frazier-El, 204 F.3d at 560. "A trial court must be per-
mitted to distinguish between a manipulative effort to present particu-
lar arguments and a sincere desire to dispense with the benefits of
counsel." Frazier-El, 204 F.3d at 560. See also Buhl v. Cooksey, 233
F.3d 783, 797 (3d Cir. 2000) ("the right of self-representation is not
a license to disrupt the criminal calendar, or a trial in progress").
Bush argues that the district court clearly erred in determining that
he was manipulative, and that, accordingly, his assertion was clear
and unequivocal. We do not believe, on the record as a whole, the dis-
trict court clearly erred in finding Bush manipulative. Bush’s reason
for dismissing his first counsel was counsel’s refusal to file motions
as Bush requested. Bush told the district court that he wanted to repre-
sent himself but was not ready for trial. Bush referred to himself as
a "sacrificial pig," (J.A. at 238) and appeared in court wearing his
orange jumpsuit, even though the Maryland Division of Corrections
offered him civilian clothing. Bush’s own counsel stated that Bush
was attempting to make counsel the issue in the case. Bush decided
to absent himself from the proceedings because he would disrupt
them if he remained. Even though Bush was represented by counsel,
prior to and during the trial he continued to file pro se motions. Bush
informed the district court that he wanted a forensic expert appointed
in the trial, which the district court noted was unnecessary. In fact,
Bush stated during the self-representation hearing that "I would have
pled guilty to this case a long time ago if I had just been given my
day in court on a fair motions hearing. That’s all I asked for." (J.A.
at 302.)
We believe, on the record before us, the district court was permit-
ted to find that Bush was engaged in an effort to manipulate and dis-
tort the trial process. The facts of Mackovich present a helpful
comparison. In that case, the defendant was held over for two compe-
tency hearings, because he believed he was receiving prophecies from
God. Mackovich, 209 F.3d at 1231. During the oral hearings on his
competency, he was "especially noisy" and made "loud and inappro-
priate comments." Id. On the eve of trial, the defendant moved to rep-
resent himself because of a "rift" with counsel. Id. at 1235. The
district court denied the request, and the Tenth Circuit affirmed. The
12 UNITED STATES v. BUSH
Tenth Circuit reaffirmed that defendants cannot use the right to self-
representation as "a tactic for delay." Id. at 1237. In upholding the dis-
trict court’s ruling, the Tenth Circuit found important that the defen-
dant had (1) used counsel for almost seven months; (2) appeared in
court with his attorney on multiple occasions; (3) made the request
only six days before trial; (4) made the request because counsel failed
to file frivolous motions; and (5) threatened to "stand mute" if the
request was denied. Id.Likewise, in this case Bush had appeared in court with counsel on
several occasions, including the hearing on the motion to suppress.
Bush’s request, while not per se untimely, was made only a week
before trial was scheduled to begin and was based on counsel’s
refusal to file certain motions. Bush, in fact, continued to file motions
during the trial while represented by counsel. Admittedly, Bush did
not threaten to "stand mute;" to the contrary, Bush threatened to dis-
rupt the trial if his motion was denied.
In sum, "[e]ven at the trial level, . . . the government’s interest in
ensuring the integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer." Martinez, 520 U.S.
at 162. The district court did not clearly err in finding that Bush’s
request was an effort to delay and manipulate the trial proceedings,
and, accordingly, it did not err in denying Bush’s request for self-
representation.
IV. Speedy Trial Act
Bush next asserts that the delay between his indictment and trial
violated the Speedy Trial Act, 18 U.S.C.A. § 3161 (West 2000 &
Supp. 2004). "We review de novo a district court’s interpretation of
the [Speedy Trial Act], while we review any of the court’s related fac-
tual findings for clear error." United States v. Leftenant, 341 F.3d 338,
342 (4th Cir. 2003).
The Speedy Trial Act provides, in relevant part, that "[i]n any case
in which a plea of not guilty is entered, the trial of a defendant
charged in an information or indictment with the commission of an
offense shall commence within seventy days from the filing date . . .
of the information or indictment, or from the date the defendant has
UNITED STATES v. BUSH 13
appeared before a judicial officer . . . whichever date last occurs." 18
U.S.C.A. § 3161(c)(1) (West Supp. 2004). Bush’s initial appearance
was on January 11, 2002, but his trial did not commence until Febru-
ary 24, 2003, over a year later.
The Speedy Trial Act, however, provides that some periods of
delay are excluded when calculating the seventy-day time period.
Section 3161(h)(1)(F) provides that "[t]he following periods of delay
shall be excluded . . . in computing the time within which the trial of
any such offense must commence: . . . delay resulting from any pre-
trial 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.A. § 3161(h)(1)(F) (West 2000). Section 3161(h)(1)(J) pro-
vides that "delay reasonably attributable to any period, not to exceed
thirty days, during which any proceeding concerning the defendant is
actually under advisement by the court" should also be excluded
when calculating time under the Act. 18 U.S.C.A. § 3161(h)(1)(J)
(West 2000).
Bush filed a motion on February 8, 2002, to sever several counts
in the indictment for trial. Bush’s motion also requested a hearing.
The Government responded to that motion on October 2, 2002. The
motion was denied by the district court at the close of the suppression
hearing on January 3, 2003. The Government contends that, under
§ 3161(h)(1)(F), all of the time from the filing of the motion to sever,
on February 8, 2002, until its resolution, on January 3, 2003, should
be excluded from the seventy-day time period. With that time
excluded, the Government notes, no Speedy Trial Act violation
occurred. Bush contends that, because no hearing took place on the
motion to sever, § 3161(h)(1)(J) applies and only thirty days can be
excluded under the Speedy Trial Act.6
Bush is correct that, under United States v. Henderson, 476 U.S.
321, 329 (1986), § 3161(h)(1)(J) applies to any motion the district
court rules upon that requires no hearing. In Henderson, the Court
6
Bush also contends, without citation, that the motion to sever cannot
permit any time under the Speedy Trial Act to be excluded because he
did not consent to the filing of the motion by defense counsel. This argu-
ment lacks merit.
14 UNITED STATES v. BUSH
examined § 3161(h)(1)(F) in detail, explaining that "[s]ubsection (F),
written in the disjunctive, excludes time in two situations." Id. at 329.
Relevant here:
The second situation concerns motions that require no hear-
ing and that result in a ‘prompt disposition.’ There, the
promptness requirement was "intended to provide a point at
which time will cease to be excluded, where motions are
decided on the papers filed without hearing." S.Rep. No. 96-
212, at 34. The "point at which time will cease to be
excluded" is identified by subsection (J), which permits an
exclusion of 30 days from the time a motion is actually
"under advisement" by the court.
Id.; see also United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir.
1994) ("Once a hearing has been held on a motion and all necessary
additional materials submitted to the court, or once a motion not
requiring a hearing is filed along with necessary supporting materi-
als, § 3161(h)(1)(J) limits the excluded period to thirty days")
(emphasis added); United States v. Davenport, 935 F.2d 1223 1237
n. 12 (11th Cir. 1991) (same).
Thus, subsection (J) excludes thirty days for motions not requiring
a hearing, from the time the motion is filed with all necessary sup-
porting materials. If a hearing is conducted, then § 3161(h)(1)(F)
applies and "all time between the filing of a motion and the conclu-
sion of the hearing on that motion, whether or not a delay in holding
that hearing is reasonably necessary" is excluded under the Speedy
Trial Act. Henderson, 476 U.S. at 330 (1986). Thus, our resolution of
this issue hinges upon whether a hearing was required on Bush’s
motion to sever.
In this case, the following exchange occurred between counsel and
the district court on the motion to sever:
The Court: Now, Mr. Gigliotti, do you want to be heard
briefly on the motion to sever?
Mr. Gigliotti: Your honor, I didn’t receive the motion to
sever, although I have a huge box. I did read Mr. Harding’s
response, so I am —
UNITED STATES v. BUSH 15
The Court: Okay. So, you know what it says. I will recon-
sider it if you want to have me reconsider it, but I am pre-
pared to deny the motion.
Mr. Gigliotti: After I look at it, if I could raise it again, I
would appreciate it.
The Court: I will allow you to raise it again, but it is clear
to me that for the reasons spelled out in the government’s
opposition, this truly is one scheme.
(J.A. at 225-26.)
Bush contends that this limited exchange was not a "hearing" for
purposes of § 3161(h)(1)(F), while the Government contends other-
wise.7 We need not decide this question, however, because we believe
that § 3161(h)(1)(F) applies because, when the motion to sever was
filed, Bush specifically requested a hearing. The district court, in the
above colloquy, was offering that hearing, which Bush’s counsel
declined. Given the specific request for a hearing by Bush, coupled
with the offering of that hearing by the district court, we believe that
§ 3161(h)(1)(F) applies and permits the exclusion of the time from the
filing of the motion on February 2, 2002 until the resolution of the
motion on January 3, 2003. A contrary rule would permit defendants
to knowingly manipulate the time limitations of the Speedy Trial Act.8
7
The Government notes that we have never held what constitutes a
"hearing" under the Speedy Trial Act, and points us to decisions from the
First and Fifth Circuits, as thoughtful opinions on the topic. See United
States v. Staula, 80 F.3d 596, 602 (1st Cir. 1996) ("a hearing is any on-
the-record colloquy in which the district court hears the arguments of
counsel and considers those arguments prior to deciding a pending
motion."); United States v. Grosz, 76 F.3d 1318, 1325 (5th Cir. 1996),
("[h]earing . . . includes a situation . . . in which the district court hears
the argument of, and questions, counsel for the party against whom the
ruling on the motion is made.")
8
We do not suggest such a motive in this case. At the time the hearing
was conducted on January 3, 2003, Bush was represented by a different
defense counsel from the one who filed the original motion to sever. As
the excerpted portion from the hearing makes clear, Bush’s new counsel
was not familiar with the particulars of the motion to sever.
16 UNITED STATES v. BUSH
Defendants would be free to request a hearing, delay the actual hold-
ing of that hearing, and then decline the hearing altogether and allege
a Speedy Trial Act violation.
In sum, if a defendant requests a hearing, and a hearing is offered
and declined, we believe that § 3161(h)(1)(F) applies, and excludes
all of the time up until the offer of the hearing is affirmatively
declined. After the defendant declines the offer of a hearing, then the
motion is under advisement and § 3161(h)(1)(J) applies. Applying
that rule here, no Speedy Trial Act violation occurred. The time from
February 2, 2002 until Bush’s counsel declined the district court’s
offer to hold a hearing on January 3, 2003, is excluded from the sev-
enty day window. Excluding that time period, fewer than seventy
days elapsed between Bush’s initial appearance and trial.
V. Fourth Amendment Violation
Bush next contends that all of the evidence obtained from his North
Wolfe Street residence should have been suppressed as "fruit of the
poisonous tree." Specifically, Bush contends that the 1998 search of
his Jeep Grand Cherokee by Jones was an unconstitutional warrant-
less search, and therefore, because the affidavits in support of the
search warrants filed in 1998 and 2001 for the 122 North Wolfe Street
address included information found in the Jeep, those search warrants
must be declared invalid.9
We review a district court’s factual findings on a suppression
motion for clear error and its legal conclusions de novo. United States
v. Brookins, 345 F.3d 231, 234 (4th Cir. 2003). The Government con-
cedes that a warrantless search occurred in this case when Jones
searched Bush’s Jeep Grand Cherokee in 1998. It is, of course, a "car-
dinal principle that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment — subject only to a few specifically
established and well-delineated exceptions." Mincey v. Arizona, 437
U.S. 385, 390 (1978) (internal quotation marks omitted). The Govern-
9
Bush contends that this motion to suppress related to evidence used
to support Counts One to Six in the indictment. The Government con-
tends that only Count One in the indictment is implicated by the motion
to suppress. Because we believe the district court was correct to deny the
suppression motion, we need not address this dispute.
UNITED STATES v. BUSH 17
ment, however, contends that the exception recognized in New York
v. Belton, 453 U.S. 454 (1981), applies in this case. The district court
agreed with the Government and denied Bush’s motion to suppress
after ruling that the Belton exception applied. We, too, agree with the
Government, and we hold that Belton, as interpreted in Thornton v.
United States, 124 S.Ct. 2127 (2004), permitted Jones to search the
Jeep Cherokee.
In Belton, the Court held that, "when a policeman has made a law-
ful custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger com-
partment of that automobile." Belton, 453 U.S. at 460. Belton did not
purport to answer whether such a rule applied in cases where a recent
occupant of a car was arrested in the immediate vicinity of the vehi-
cle. This past term, the Supreme Court decided, in Thornton, 124
S.Ct. at 2132, that Belton permits search of vehicles incident to arrests
made outside of the vehicle as long as the arrested individual was a
recent occupant of the vehicle.
The Court in Thornton justified the extension of Belton to recent
occupants arrested outside of the vehicle because "the arrest of a sus-
pect who is next to a vehicle presents identical concerns regarding
officer safety and the destruction of evidence as the arrest of one who
is inside the vehicle." Thornton, 124 S.Ct. at 2131. The Court also
explained that in "some circumstances it may be safer and more effec-
tive for officers to conceal their presence from a suspect until he has
left his vehicle." Id. Likewise, we believe that, in this case, the arrest
of Canty as she prepared to enter the vehicle presented the same con-
cerns of officer safety and destruction of evidence recognized by the
Court in Thornton. Accordingly, because officers had seen Canty exit
the Jeep just before entering the Norwest Financial Bank, and because
Canty was in the process of reentering the Jeep at the time of her
arrest, Jones was permitted to search the Jeep incident to Canty’s
arrest. Accordingly, the search warrants executed at 122 North Wolfe
Street are not invalid as fruit of the poisonous tree.
VI.
For the foregoing reasons, Larry Lamont Bush’s conviction and
sentence are affirmed.
AFFIRMED