159 F.3d 4 (1st Cir. 1998), 97-2251, United States v. Barnes

Docket Nº:97-2251.
Citation:159 F.3d 4
Party Name:UNITED STATES, Appellee, v. Marla BARNES, Defendant, Appellant.
Case Date:October 27, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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159 F.3d 4 (1st Cir. 1998)

UNITED STATES, Appellee,

v.

Marla BARNES, Defendant, Appellant.

No. 97-2251.

United States Court of Appeals, First Circuit

October 27, 1998

Heard May 6, 1998.

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Stephen B. Hrones with whom Hrones & Garrity was on brief for appellant.

Jennifer H. Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before TORRUELLA, Chief Judge, COFFIN and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Marla Barnes appeals from her conviction for conspiracy to smuggle cocaine into the United States and criminal forfeiture of $2,900 in drug proceeds. Her appeal presents a single question: whether she was tried within the 70-day time limit imposed by the Speedy Trial Act, 18 U.S.C. § 3161 (1985).

On the first day of trial, Barnes moved to dismiss the indictment, alleging that her right to a speedy trial had been violated. The district court denied the motion, and Barnes was subsequently tried and convicted on both counts. For the reasons that follow, we conclude that the trial court erred when it denied defendant's motion to dismiss. In this case, the court failed to police the speedy trial clock vigilantly during a crucial 5-month period beginning in the fall of 1996 when the trial date was inexplicably adjourned. As a result, the 70-day limit was exceeded by some 121 days. We find, however, that the seriousness of the offenses with which defendant was charged, the absence of any actual prejudice to her, and defendant's own failure to promptly assert her speedy trial rights warrant dismissal of the indictment without prejudice.

BACKGROUND

We begin by recounting the path Barnes's case took below. On August 10, 1995, a complaint was issued in the United States District Court for the District of Massachusetts charging Barnes and her brother Reynaldo Barnes with conspiracy to import cocaine into the United States from Panama. 1 Federal law enforcement agents arrested Barnes on August 11, 1995 in Brooklyn, New York, pursuant to a warrant issued by the United States District Court for the District of Massachusetts. She appeared before a magistrate judge in the Eastern District of New York that same day. An order was entered 3 days later removing Barnes to the District of Massachusetts.

On August 23, 1995, a federal grand jury returned a two-count indictment against Barnes and her brother, charging them with conspiracy to import cocaine under 21 U.S.C. § 963 (1998) and with criminal forfeiture under 21 U.S.C. § 853 (1998).

Barnes's first appearance before a judicial officer in Massachusetts took place on September 25, 1995 before United States Magistrate Judge Joyce L. Alexander. A briefing schedule for pretrial motions was set at this conference: all motions were to be filed by October 3, 1995.

On September 27, 1995, Reynaldo Barnes filed a motion seeking additional time to file pretrial motions up to and including October 13, 1995. This motion was granted.

Barnes was arraigned on October 3, 1995; she entered a plea of not guilty to both counts. At defendant's request, Magistrate Judge Alexander extended the time to file pretrial motions to October 20.

On October 20, 1995, defendants filed a flurry of pretrial motions seeking, inter alia, a bill of particulars, various discovery items, and Jencks Act material. Magistrate Judge Alexander held a hearing on these motions on November 30, 1995, after which she took the matters under advisement, and eventually disposed of all motions on December 14, 1995. An order of excludable delay was

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thereafter entered, excluding the period of time from October 20 to December 14, 1995.

There was no formal activity in the case until January 24, 1996, when the government formally moved the court to schedule a status conference to "enable the Court and parties to establish a firm date for trial, facilitate the identification and resolution of any anticipated evidentiary issues at trial, and possibly facilitate the resolution of this case prior to trial." The district court granted the motion on January 31, 1996, and scheduled a conference for February 20, 1996. By letter dated February 7, 1996, Reynaldo Barnes requested that the conference be adjourned because his counsel, William P. Homans, was to be on trial in another case that same week. The court granted the motion on February 9, rescheduling the conference for March 4, 1996. On March 4, 1996, the status conference was held, during which the court set a trial date of April 8, 1996.

On March 18, 1996, defendants jointly moved to continue the trial date to June 10, 1996 and to exclude the time from the date of the motion until the new trial date. Defendants cited three reasons for the request: Mr. Homans was recovering from pneumonia, defendants were engaged in ongoing plea negotiations with the government, and a conflict had arisen in the trial schedule of Barnes's attorney, Stephen B. Hrones. Their motion was granted by the court on March 19, 1996.

The critical chain of events central to this appeal then occurred. On May 30, 1996, Barnes moved the district court for another continuance "until sometime in late September or early October." She explained that her counsel was engaged in another trial on June 10. The court granted the motion by memorandum order on June 3, 1996 and continued the trial until October 7, 1996 at 11:00 a.m.

The motion for a continuance was followed by defendants' joint motion to "waive their speedy trial rights from June 10 until the date set for the new trial in the fall of 1996." The motion to waive was granted by margin order on August 28, 1996, and the court expressly excluded time from the Speedy Trial clock through October 7, 1996.

Although it is far from certain precisely what happened next, the record suggests that the court set this matter down for trial for October 7, 1996 at 11:00 a.m. and then telephonically adjourned the trial without date. 2 No one appeared for trial on October 7. Neither defendant nor the government can explain why the trial did not go forward. Neither the government nor any of the defendants apparently requested a continuance or objected to it; no one seems to remember when the trial was adjourned. The district court never explicitly excluded time from the speedy trial clock or made any findings as to why the adjournment was required in the interests of justice. It did not issue a written order.

On December 3, 1996, after two months had passed, the parties jointly moved the court for a status conference for the purpose of setting a trial date. The motion included an odd statement: "the parties jointly move to exclude the period of delay in the interests of justice and due to continuing plea negotiations, from the date of entry of an Order on defendant's pre-trial motions until such date as this Court sets for trial." (Emphasis added.) By its terms, the motion sought a retroactive and an unlimited forward-looking exclusion of time. The motion was signed only by the Assistant United States Attorney ("AUSA") on behalf of both the government and Barnes. Barnes's attorney, Mr. Hrones, did not sign the papers.

Seven days later, Barnes filed a "Motion to Correct a Joint Motion for Status Conference" protesting the government's effort to have time excluded by the court. This document stated that "although [her] attorney authorized the Joint Motion for Status Conference he did not give authority to [the AUSA] to add a paragraph indicating that the defendant had agreed to exclude the period of delay." Barnes indicated that she opposed any exclusion of the delay, having

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"made clear for some time now to [the AUSA] that [sh]e want[ed] a trial." Accordingly, Barnes requested that the court "strike the defendant's name from her request to exclude the delay." The government did not oppose defendant's motion to correct.

On March 7, 1997--some three months later--the court sent defendants and the government a notice informing them that a conference had been scheduled for March 25, 1997. The court did not exclude any time, either forward or backward, as requested in the purported joint motion.

Two noteworthy events transpired at the March 25 status conference. First, Reynaldo Barnes moved to change his plea. The motion was granted and a date was set for his anticipated plea of guilty. Second, the court reset Barnes's trial date for May 5, 1997.

On April 4, 1997, the government, with defendant's consent, filed a motion to continue the trial from May 5 to May 19, 1997. Accordingly, the district court memo endorsed the motion and rescheduled trial for May 19, 1997.

On May 15, 1997, Reynaldo Barnes pled guilty to both offenses. The next day, May 16, 1997, the government filed a motion in limine seeking an order permitting the government to use transcripts of recorded conversations between undercover agents and defendants.

On May 19, 1997, the first day of trial but before jury selection, Barnes moved to dismiss the indictment on the basis of the Speedy Trial Act. The court denied the motion but made no factual findings beyond observing that Mr. Hrones was on trial in another case on May 5, "the last time the case was going to be scheduled," and that Reynaldo Barnes's counsel, Mr. Homans, was sick for a period of time. The court then resolved all outstanding motions in limine and empaneled the jury.

Barnes was tried and convicted on both counts, and was eventually sentenced to 188 months in prison, to be followed by five years of supervised release. She then timely filed this appeal.

DISCUSSION

I. Standards

The Speedy...

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