U.S. v. Fielding

• Decision Date: 18 May 1981
• Docket Number: No. 79-1793,79-1793
• Citation: 645 F.2d 719
• Parties: 8 Fed. R. Evid. Serv. 609 UNITED STATES of America, Plaintiff-Appellee, v. Carl FIELDING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 719

645 F.2d 719

8 Fed. R. Evid. Serv. 609

UNITED STATES of America, Plaintiff-Appellee, v. Carl FIELDING, Defendant-Appellant.

No. 79-1793.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 1, 1980.

Decided May 18, 1981.

Donald M. Currie, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Thomas W. Hillier, II, Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before ELY and NELSON, Circuit Judges, and KARLTON, ^* District Judge.

PER CURIAM:

The Petition for Rehearing is denied. Various arguments we have received, however, lead us to modify our discussion of the issues in this case. Accordingly, the opinion of October 23, 1980, reported at 630 F.2d 1357 (9th Cir. 1980), is withdrawn and the following opinion is substituted.

INTRODUCTION

Appellant Fielding was indicted on July 15, 1975, for (1) importation into the United States of an unspecified amount of marijuana "on or about September, 1974," 21 U.S.C. §§ 812, 952, 960(a)(1), (b)(2); 18 U.S.C. § 2; and (2) conspiracy, with four others, "beginning on or about September, 1973, and continuing through on or about September, 1974," to import marijuana with the intent to distribute in violation of 21 U.S.C. §§ 846, 953. Fielding was not arrested until April, 1979, when he was returned from Lima, Peru. After an initial trial continuance, he was tried in August, 1979, and found guilty on both counts.

Appellant raises four contentions on appeal:

1. A one-month continuance violated the Speedy Trial Act;

2. United States complicity in his detention and torture by Peruvian police required dismissal of the indictment;

3. The admission of hearsay declarations of alleged coconspirators violated both the hearsay rule and the Sixth Amendment Confrontation Clause; and

4. Other items of evidence were improperly admitted. ¹

The case involved a smuggling scheme that utilized the ship Osprey to import marijuana. Appellant allegedly handled stateside operations while other coconspirators ran the actual importation activities. The Government's case consisted primarily of the testimony of Richard Lotz, one of the operators of the ship, David Wagner, ² and DEA Special Agent Dixon McClary. The latter two witnesses' testimony recounted declarations allegedly made to them by Robert and Rafael Flores, two alleged coconspirators. Additional facts pertinent to the decision are reported in the body of this opinion. As we explain, the judgment of conviction must be reversed because the introduction of the Floreses' declarations violated the hearsay rule. ³

I SPEEDY TRIAL ACT CLAIM

Appellant was arraigned on May 30, 1979. On July 16, 1979, the scheduled day of trial, the court granted the Government's request for a one-month continuance and made a written finding that the continued time was excludable under the "ends of justice" exclusion of the Speedy Trial Act. 18 U.S.C. § 3161(h)(8)(A). Appellant argues that the continuance was not justified and that the Initially, the issue of the applicability of the sanction provisions is raised. Under the original Speedy Trial Act, the sanction provisions became "effective after the date of expiration of the fourth twelve-calendar-month period following July 1, 1975." Speedy Trial Act of 1974, Pub.L. No. 93-619, ch. 208, § 3163(c), 88 Stat. 2080 (current version at 18 U.S.C. § 3163(c)). In other words, sanctions were not applicable until July 1, 1979. See United States v. Cordova, 537 F.2d 1073, 1075 n.1 (9th Cir. 1976); United States v. Noll, 600 F.2d 1123 (5th Cir. 1979). The Act was amended on August 2, 1979, to provide that the sanction provisions would become "effective and apply to all cases commenced by arrest or summons, and all informations or indictments filed, on or after July 1, 1980." Speedy Trial Act Amendments of 1979, Pub.L.No. 96-43, § 6, 93 Stat. 328, amending 18 U.S.C. § 3163(c).

delay of his trial attendant to the granting of the motion resulted in a violation of the Speedy Trial Act (by not bringing defendant to trial within the statutory period) which required the sanction of dismissal. See 18 U.S.C. § 3162. ⁴

Appellant was indicted and arraigned prior to July 1, 1979, and, as noted, the continuance in question was granted July 16, 1979. Thus, this case comes within the "one month gap" between the applicability of sanctions under the unamended Act, and the suspension of sanctions by the new Act. ⁵

Whether Congress could constitutionally deprive a defendant of a procedural benefit retroactively is uncertain. See Hamm v. Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). We need not reach this issue because, even assuming arguendo the applicability of the dismissal sanction, the continuance did not violate the requirements of the Act.

Both parties assume that the appropriate standard of review of the District Court's action is an abuse of discretion standard, citing cases where a defendant's motion for a continuance was denied. See, e. g., United States v. West, 607 F.2d 300, 305 (9th Cir. 1979) (per curiam) ("The granting or denial of a continuance is a matter wholly within the discretion of the trial court which will not be disturbed on appeal unless that discretion is clearly abused."); United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978). These cases do not address the standard of review for exclusions of time under the Speedy Trial Act, but concern defense contentions that denial of a continuance deprived the defendants of an opportunity to prepare effectively for trial.

While the cases have not specifically discussed the applicable standard of review, it appears to us that the appropriate standard is not hard to discern. In applying the exclusions under the Act, the trial judge resolves both legal and factual issues. Thus the scope of appellate review is dependent upon whether the challenged determination is legal, factual, or both. For instance, for the excludable time sections applicable in the present case, the trial judge is barred from considering certain factors (e. g., a crowded docket), and required to consider other factors. See 18 U.S.C. § 3161(h)(8)(A). ⁶ Failure to consider factors which the Act requires to be considered, or consideration of factors which the Act excludes from consideration, would be an action contrary to law and normally reversible error. No such claim is made in the present case. In considering the applicable A review of the transcript reveals a lengthy and searching inquiry by the trial judge as to the proprietary of the requested continuance. At the hearing, the following facts were disclosed: (1) four years had passed since the indictment was handed down (appellant was a fugitive during this period); (2) initial attempts to locate witnesses began in early May, 1979, and the United States had trouble locating these witnesses after four years. Subpoenas were actually issued on June 19, 1979, when the Government believed it could locate the witnesses, although even then the witnesses' current addresses were unknown. Material witness warrants were issued on July 11, 1979. At the time of the hearing only one of the witnesses (Lotz) had been located. That witness was represented by counsel and was hostile and unwilling to talk to the United States Attorney. The United States Attorney stated that the testimony of his informer alone was not sufficient because he was not a percipient witness. ⁷

factors, however, the trial judge is also required to make factual findings. Under subsection (h)(3)(A), the findings would concern the unavailability of a witness, due diligence, etc. Under subsection (h)(8)(A), the judge must explicitly set forth his reasons for finding that the ends of justice served by the continuance outweigh other interests protected by the Act. Under normal standards of review, such a factual finding should not be disturbed unless "clearly erroneous." See Fed.R.Civ.P. 52(a).

The court granted the motion for a thirty day continuance and later signed an order prepared by the United States Attorney which cited the ends of justice exclusion, 18 U.S.C. § 3161(h)(8)(A), and found: "(1) The Government, despite the exercise of due diligence, has been unable to determine the whereabouts of three essential witnesses ... (2) Failure to grant the requested continuance would be likely to result in a miscarriage of justice. (3) Therefore, the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial...." ⁸

Appellant does not argue that a section 3161(h)(8) exclusion and finding were inappropriate, but argues that the standard for such a continuance, if based upon the unavailability of a witness, must be measured by subsection (h)(3). ⁹

Even if the standards of subsection (h)(3) apply, however, the record clearly indicates that this standard was in fact cited and relied upon at the hearing. Furthermore, under section 3162(a)(2), in any motion to dismiss, defendant bears the burden of proof, although the Government has the burden of going forward in connection with a section 3161(h)(3) exclusion. The Government came forward with a showing of necessity and unavailability; neither was rebutted by appellant. Accordingly, appellant's first argument must fall.

II TOSCANINO OBJECTION

Appellant argues that the trial judge should have dismissed the indictment because of the alleged complicity of the United States in his torture and kidnapping in Peru. See United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); see generally Annot., 28 A.L.R.Fed. 685 (1976). Appellant does not argue that any evidence was illegally seized; rather, he argues that the indictment should have been dismissed because of police conduct "shocking to the conscience."

Toscanino certainly did involve conduct shocking to the conscience. In that case, defendant had offered to prove direct complicity...