## Facts

- Michael Sposito was indicted on April 13, 1994, in the District of Massachusetts for illegal gambling and aiding and abetting illegal gambling, in violation of 18 U.S.C. § 1955.
- Trial began on January 17, 1995.
- Before trial, the government filed a pretrial motion (including a motion in limine) addressing trial-evidence issues, and the district court postponed a previously scheduled December 1994 trial date while the motion remained pending.
- On January 13, 1995, Sposito moved to dismiss under the Speedy Trial Act (STA), arguing that more than seventy non-excludable days had elapsed between indictment and trial; the parties agreed that the January 13 motion itself stopped the STA clock while it was pending.
- Separately, the government’s theory at trial was that Arthur Marder operated an illegal video-poker business and protected it through payoffs, including payoffs arranged through Sposito.
- Louis Padova had previously testified under oath at Marder’s trial under a grant of immunity, stating that Marder said he was “paying everyone.”
- At Sposito’s trial, Padova refused to testify and was treated as unavailable.
- The government introduced Padova’s prior immunized testimony from the Marder trial to show what Marder told Padova and to support the payoff/protection theory; aside from Padova’s prior testimony, there was no direct evidence of what Marder said to Padova on that point.
- The district court admitted the prior testimony under the residual hearsay exception (then Fed. R. Evid. 804(b)(5)).
- The jury convicted Sposito on the gambling counts, and Sposito appealed.

## Issues

1. Whether the district court violated the Speedy Trial Act by allowing more than seventy countable days to run between indictment and the start of trial, particularly during the period December 1, 1994 through January 13, 1995.
2. Whether the district court erred by admitting Padova’s prior immunized testimony under the residual hearsay exception after Padova refused to testify at Sposito’s trial, and if so, whether the error required reversal.

## Decision

- The First Circuit affirmed Sposito’s convictions.
- The court held there was no Speedy Trial Act violation because the disputed period (December 1, 1994 through January 13, 1995) was excluded under 18 U.S.C. § 3161(h) due to pending pretrial motions and related proceedings; therefore, fewer than seventy non-excludable days elapsed before Sposito’s January 13 STA motion.
- On the evidentiary issue, the court assumed without deciding that admitting Padova’s prior testimony under the residual hearsay exception may have been error, but held that any error was harmless in light of other evidence supporting the verdict.

## Legal Principles

- The Speedy Trial Act generally requires a federal criminal trial to begin within seventy days of the indictment or the defendant’s initial appearance, whichever occurs later, subject to statutory exclusions. 18 U.S.C. §§ 3161–3162.
- Under 18 U.S.C. § 3161(h)(1)(F) (now § 3161(h)(1)(D)), time is excluded for “delay resulting from any pretrial motion” from the filing of the motion through the conclusion of any hearing on it, or other prompt disposition; courts apply Henderson v. United States to treat motion-related delay as excludable even when the delay seems lengthy.
- The First Circuit declined to create a broad “dormant motion” carveout from the STA’s motion-based exclusion; absent clear statements from the district court, an appellate court will not infer that a pending motion stopped generating excludable time.
- In reviewing STA rulings, appellate courts review factual findings for clear error and legal conclusions de novo.
- For evidentiary questions, interpretation of the Federal Rules of Evidence is reviewed de novo, while the trial court’s application of the rules is reviewed for abuse of discretion.
- When reviewing hearsay admitted under the residual exception, an appellate court may affirm without deciding the evidentiary question if any assumed error did not affect the verdict (harmless-error review).

## Conclusion

United States v. Sposito held that the Speedy Trial Act was not violated because the contested time period before trial was excluded due to pending pretrial motions, and it affirmed the conviction despite a challenge to the admission of Louis Padova’s prior immunized testimony, concluding that even if admitting the testimony under the residual hearsay exception was mistaken, the error was harmless given the remaining proof at trial.


United States v. Sposito, 106 F.3d 1042 (1997)