63 F.3d 1159 (1st Cir. 1995), 94-1858, United States v. Rodriguez

Docket Nº:94-1858.
Citation:63 F.3d 1159
Party Name:UNITED STATES of America, Appellee, v. Geraldo RODRIGUEZ, a/k/a Jose Rodriguez, Defendant, Appellant.
Case Date:August 28, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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63 F.3d 1159 (1st Cir. 1995)

UNITED STATES of America, Appellee,


Geraldo RODRIGUEZ, a/k/a Jose Rodriguez, Defendant, Appellant.

No. 94-1858.

United States Court of Appeals, First Circuit

August 28, 1995

Argued Aug. 1, 1995.

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[Copyrighted Material Omitted]

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Andrew Grosso, Washington, DC, for defendant, appellant.

Mervyn Hamburg, Senior Counsel, U.S. Dept. of Justice, Washington, DC, with whom Sheldon Whitehouse, U.S. Atty., Providence, RI, was on brief for the U.S.

Before SELYA, CYR and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Geraldo Rodriguez seeks to set aside his conviction for conspiracy to distribute heroin, contending that he was not brought to trial within the 70 days prescribed by the Speedy Trial Act ("STA"), 18 U.S.C. Secs. 3161 et seq., and that two evidentiary rulings at trial were in error. Rodriguez also appeals his sentence, contending that the district court engaged in impermissible "double counting" when it departed upward based on the purity of the heroin he was convicted of conspiring to distribute while simultaneously enhancing his sentence for his leadership role. The conviction and sentence are affirmed.

I. Background

Geraldo "Jose" Rodriguez and his co-defendant Juvenal Grajales arranged the sale of a total of 97.65 grams of very pure heroin (87% to 96% pure) to a DEA confidential informant named Miguel Teixeira on four occasions in February and April, 1993. Teixeira recorded his conversations with Rodriguez about the particulars of these drug deals at a number of pre-arranged meetings. At some of the meetings, Rodriguez was accompanied by Grajales or other associates; at others, Rodriguez sent associates to assist with or consummate the transactions.

Rodriguez and Grajales were arrested and indicted for distribution of heroin, distribution of cocaine, and conspiracy to possess heroin and cocaine with intent to distribute. Following a period of pretrial motion practice and discovery (set forth in the Appendix that follows this opinion), trial was scheduled for September 23, 1993. On September 22, 1993, the district court accepted a guilty plea from Grajales. On September 23, a jury was empaneled

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(but not sworn) in Rodriguez's case and trial was set to begin on September 30, 1993. On that day, before the jury was sworn, Rodriguez disputed the adequacy of the government's disclosures concerning the background of its key witness Teixeira, the DEA informant. Rodriguez demanded that he be provided with additional information. The district court, accommodating Rodriguez's position, dismissed the jury and adjourned the trial pending resolution of the discovery issue.

Some two weeks later, on October 19, 1993, Rodriguez's trial counsel filed a motion to withdraw from the case. The motion was granted after hearing, and the court allowed Rodriguez time to obtain new counsel. In November, Rodriguez's newly retained counsel Barry Wilson filed an appearance and, later, a motion for admission pro hac vice in the District of Rhode Island. This proved problematic. Based on a contempt order that had been issued against Wilson in an unrelated matter before Judge Pettine, the government opposed the pro hac vice motion. A hearing was not held on the motion until February 22, 1994. The motion was allowed.

That same day Rodriguez filed a motion to dismiss the indictment on grounds that he had not been brought to trial within 70 days as required by the STA. That motion was later denied in a bench ruling.

Trial commenced on May 12, 1994. At the close of the government's case, the district court granted Rodriguez's motion for judgment of acquittal with respect to Count 2 of the indictment, which charged conspiracy to distribute cocaine. At the conclusion of the five-day trial, the jury returned a guilty verdict on Count 1 (conspiracy to distribute heroin) but acquitted Rodriguez on all other counts (distribution of heroin; distribution of cocaine).

At sentencing, after concluding that both a two-level leadership role enhancement and an additional two-level drug-purity upward departure were warranted, the district court imposed a sentence of 121 months imprisonment to be followed by 5 years supervised release, and a $50 special assessment.

II. Speedy Trial Act Claim

Rodriguez's STA claim raises questions of whether certain time consumed in connection with pretrial motions and jury empanelment is excludable from the requisite STA calculations. Factual findings underlying a STA determination are reviewed for clear error, while legal rulings are reviewed de novo. See United States v. Storm, 36 F.3d 1289, 1292 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1798, 131 L.Ed.2d 725 (1995); United States v. Henderson, 746 F.2d 619, 622 (9th Cir.1984), aff'd, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986).

The STA requires that a defendant be tried within 70 days of the filing of the indictment or the defendant's first appearance before a judicial officer, whichever occurs later. See Henderson v. United States, 476 U.S. 321, 322, 106 S.Ct. 1871, 1872, 90 L.Ed.2d 299 (1986). The remedy for violation of the 70-day requirement is dismissal of the indictment either with or without prejudice, depending on consideration of several statutory factors. See 18 U.S.C. Sec. 3162(a)(2); United States v. Ramirez, 973 F.2d 36, 39 (1st Cir.1992). Not every day that passes between indictment or appearance and trial, however, counts toward the 70-day limit. The Act itself enumerates various circumstances that can suspend the running of the time. See 18 U.S.C. Sec. 3161(h). The question presented is whether the total amount of non-excludable time between indictment or judicial appearance and the filing of the pretrial motion suggesting a STA violation exceeded the statutory limit of 70 days.

The metaphor of a running clock is often used in STA cases. The metaphorical clock here started running on June 4, 1993, the day after the indictment, and stopped on February 22, 1994, the day Rodriguez filed his speedy trial motion, which was not renewed before trial. See United States v. Connor, 926 F.2d 81, 84 (1st Cir.1991) ("[A] motion for dismissal [under the STA] is effective only for periods of time which antedate the filing of the motion. Subsequent periods of delay, whether includable or excludable, are inconsequential.").

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There is no dispute that three days devoted to miscellaneous proceedings concerning Rodriguez are excludable. 1 The battle lines are thus drawn around the remaining period of 260 days, and the question is whether at least 190 of those days were excludable. The answer is yes.

Much of Rodriguez's attack focuses on time associated with pretrial motions. The ground rules are set by the statute and Supreme Court case law. Section 3161(h)(1) of the Speedy Trial Act provides for the exclusion of any

(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion; [and]

. . . . .

(J) 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.

18 U.S.C. Sec. 3161(h)(1)(F), (J).

There are significant differences in the excludability of delays attributable to motions afforded hearings and those decided without hearing. Such differences result from the interplay between subsections (F) and (J). In Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the Supreme Court held that under subsection (F), the entire period beginning from the filing of a pretrial motion to the conclusion of the hearing on that motion is excludable time. See id. at 328-31, 106 S.Ct. at 1875-77; see also United States v. McAfee, 808 F.2d 862, 864 (1st Cir.1986). Once the hearing on the motion is concluded, subsection (J) limits the amount of excludable time while the motion is "under advisement" to 30 days. See Henderson, 476 U.S. at 328-329, 106 S.Ct. at 1875-1876; United States v. Ortiz, 23 F.3d 21, 27 & n. 6 (1st Cir.1994); United States v. Wilson, 835 F.2d 1440, 1442 (D.C.Cir.1987).

When there is no hearing, a motion is deemed to be taken under advisement when "the court receives all the papers it reasonably expects...." Henderson, 476 U.S. at 329, 106 S.Ct. at 1876; see also United States v. Johnson, 29 F.3d 940, 944 (5th Cir.1994). Thus, for a motion that does not receive a hearing, subsections (F) and (J) in conjunction allow for the exclusion of all of the time from the filing of the motion to the time that the court receives all reasonably expected papers, plus no more than an additional 30 days of advisement time. See...

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