Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted July 15, 1988.
E.D.Cal.
AFFIRMED.
Appeal from the United States District Court for the Eastern District of California; Raul A. Ramirez, District Judge, Presiding.
Before JAMES R. BROWNING and HUG, Circuit Judges, and JESSE W. CURTIS, District Judge.
The Honorable Jesse W. Curtis, Senior United States District Judge for the Central District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
Joseph A. Heflin appeals his conviction of two counts of violating 21 U.S.C. § 841(a)(1) and one count of violating 21 U.S.C. § 846. For the following reasons, we affirm the conviction.
First, Heflin contends that the district court's denial of his motion to suppress was error. We review a magistrate's issuance of a search warrant by determining whether the supporting affidavit provided a substantial basis for concluding that probable cause existed, giving deference to the magistrate's conclusion. United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986). Probable cause exists when, under the totality of the circumstances presented in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). We agree with the district court that the affidavit contained a sufficient basis on which to find the existence of probable cause. The information provided by Agent Reger's source and the corroboration provided by the activities of Agent Reger and the local authorities constitute adequate support for the decision to issue the warrant. Because the facts known to Agent Reger constitute valid probable cause, we need not reach Heflin's argument regarding the good faith exception in United States v. Leon, 468 U.S. 897 (1984).
Second, Heflin contends that the failure of his trial counsel to move to reopen the suppression hearing once the trial had begun constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, one must show that counsel's performance was deficient, by showing that counsel made errors so serious that he or she was not functioning as counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). One must also show prejudice resulting from this deficiency. Id.
"The customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 27 U.S.C. § 2255. This is so because usually such a claim cannot be advanced without the development of facts outside the original record." United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943 (1984) (citation omitted). We find that Heflin's ineffective assistance contention should be pursued in collateral proceedings. After careful scrutiny of the record, we cannot determine whether counsel's decision not to reopen the suppression hearing constituted deficient performance and whether, if it did, the failure to reopen prejudiced Heflin. Creation of a factual record on counsel's strategy and reasoning, and the veracity of Agent Reger's affidavit and testimony are necessary before this issue can be resolved.
Third, Heflin contends that the district court erred in denying his motion to dismiss for failure to provide a speedy trial. We review a decision under the Speedy Trial Act, 18 U.S.C. § 3161, et. seq., de novo. United States v. Nance, 666 F.2d 353, 356 (9th Cir.1982). We review denial of a motion under Fed.R.Crim.P. 48(b), which is the vehicle for enforcing the Sixth Amendment right to a speedy trial, for abuse of discretion. United States v. Moore, 653 F.2d 384, 389 (9th Cir.1981), cert. denied sub nom. Lee v. United States, 456 U.S. 918 (1982); see Nance, 666 F.2d at 360.
The Speedy Trial Act requires that trial commence within seventy days after the filing of an indictment or the arraignment, whichever occurs last. 18 U.S.C. § 3161(c)(1). The seventy-day period excludes any period of delay that results from filing of pretrial motions. 18 U.S.C. § 3161(h)(1)(F). In addition, the seventy-day period excludes any period of delay between voluntary dismissal of an indictment by the Government and either the filing of a superseding indictment or the arraignment under that indictment, whichever occurs last. 18 U.S.C. § 3161(h)(6). Taking account of the statutory exclusion of the period of delay caused by pretrial motions and the period between the filing of the superseding indictment and the arraignment thereunder, the trial occurred within the required seventy days. The Speedy Trial Act was not violated.
The denial of the motion on Sixth Amendment and Rule 48(b) grounds also was not error. If we find the delay between indictment and trial to be "presumptively prejudicial," we then go on to consider three other factors: length of the delay; reason for the delay; and the defendant's assertion of the right. Barker v. Wingo, 407 U.S. 514, 531-33 (1972); Nance, 666 F.2d at 360-61. Given the brevity of the delay and the lack of hindrance of the presentation of Heflin's defense, we cannot find that the delay was presumptively prejudicial. See Barker, 407 U.S. at 530-31. Moreover were we to reach the Barker factors, we would find the delay justified insofar as it was caused by pretrial proceedings on complex issues, and there is no evidence of any effort on the Government's part to hamper the defense. Id. at 531.
The judgment is AFFIRMED.