U.S. v. Tedesco

• Decision Date: 31 January 1984
• Docket Number: No. 83-1222,83-1222
• Citation: 726 F.2d 1216
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis TEDESCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1216

726 F.2d 1216

UNITED STATES of America, Plaintiff-Appellee, v. Louis TEDESCO, Defendant-Appellant.

No. 83-1222.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 6, 1983.

Decided Jan. 31, 1984.

Lorna E. Propes, Bobb, Kane, Obbish & Propes, Chicago, Ill., for defendant-appellant.

John L. Sullivan, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and PELL and WOOD, Circuit Judges.

PELL, Circuit Judge.

Defendant Louis Tedesco and fourteen other persons were named in a seventy-nine count indictment charging them with conspiracy to distribute cocaine and other drug related offenses. The indictment was filed December 3, 1980, but numerous delays postponed Tedesco's trial until December 16, 1982. Defendant was convicted and sentenced to two years incarceration and four years probation. The sole issue on appeal is whether the delays violated defendant's rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161 et seq.

FACTS

The Speedy Trial Act requires the Government to bring a defendant to trial within seventy days of defendant's indictment or his initial appearance before a judicial officer, whichever occurs last. The Act provides for the exclusion of time from the seventy-day period in a number of circumstances. Defendant here concedes that only The Government's evidence included tape recordings of conversations between the various defendants. Tedesco filed a motion seeking exclusion of these tapes under United States v. Santiago, 582 F.2d 1128 (7th Cir.1978). The court denied this motion on July 20, 1982, ending an uncontested period of exclusion under the Act. Defendant does contest the exclusion of subsequent delays, and we will concern ourselves solely with events occurring after July 20, 1982.

two days had run under the Act as of July 10, 1982. ¹

On July 20, 1982, co-defendant Browning filed a motion to dismiss alleging that the prosecution constituted double jeopardy as he had previously been prosecuted for his role in the conspiracy. The court denied the motion on July 28, the same day co-defendant Bounos filed a similar motion to dismiss. Browning renewed his double jeopardy motion on August 2. The court conducted a hearing on these motions on August 3. Trial of the five defendants who had not pled guilty or fled was set to begin the next day. The court expressed concern over the delays caused by Browning and Bounos and indicated that it would attempt to secure an expedited appeal of denial of the motions should Browning and Bounos seek interlocutory review. Counsel for Tedesco requested that her client be severed from Browning and Bounos and be tried with co-defendants Husted and Wagner. After some debate over the amount of time that would be required for separate trials, the court denied Tedesco's motion and reset the trial for November 8. The court then set a schedule for written defense motions to avoid any further delay.

Bounos filed a motion to delete prejudicial material on August 18. On August 22 the court denied the double jeopardy motions. Bounos and Browning filed an interlocutory appeal on September 1, which was denied ultimately by this court on November 3. In the meantime, on September 8 Tedesco filed a motion to exclude the tapes because they were unintelligible.

On November 4, 1982, the parties convened before the court. Defendant presented several pages of objections to the Government's transcripts of the recorded conversations. Browning announced that he intended to argue at trial that the conspiracy was a continuation of the previous conspiracy for which he had already been prosecuted, a defense aligned with the Government's contention that a conspiracy existed and antagonistic to the position of the other defendants. Browning also filed a second interlocutory appeal, which was dismissed on November 17. On November 10 Tedesco moved to dismiss the indictment because the delays had violated his rights under the Speedy Trial Act, and moved for severance and a separate trial because of Browning's hostile position. During a discussion on the severance claim counsel disputed the Government's trial estimates, but the court did not rule on the motion. On November 15 Bounos changed his plea to guilty. On November 18 the Government joined in Tedesco's severance motion, and the court severed Browning from Tedesco and Wagner, the two remaining defendants. The court reset the trial to December 6, 1982. Tedesco moved to delete racial slurs from the tape recordings and renewed his Santiago motion. On November 30 the court ruled on the admissibility of the tapes.

On December 6 the Government announced its intention of calling Bounos as an immunized witness. Obtaining Bounos' cooperation, however, took several days, and the court reset the trial date to December 16. On December 16, 1982, Tedesco's trial began.

EXCLUSION OF TIME UNDER THE SPEEDY TRIAL ACT

The Speedy Trial Act provides that a defendant must be brought to trial within seventy days from the date of indictment or the date of defendant's initial appearance before a judicial officer, whichever occurs last. 18 U.S.C. Sec. 3161(c)(1). However, subsection (h) provides that:

The following periods of delay shall be excluded in computing ... the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to--

* * *

* * *

(E) delay resulting from any interlocutory appeal;

(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;

(3)(A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.

* * *

* * *

(7) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.

(8)(A) Any period of delay resulting from a continuance granted by any judge ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.

The district court concluded that these exclusions covered most of the delays in bringing defendant to trial. Defendant here renews his claim that these exclusions, when properly applied, do not cover the delays. We will examine each major delay in turn.

A. Exclusion under Section 3161(h)(7)

The trial court concluded that periods during which pretrial motions and interlocutory appeals by Browning and Bounos were pending were properly excludable under Section 3161(h)(7) as reasonable periods of delay "when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Defendant does not contest that reasonable delay caused by codefendants' motions and interlocutory appeals stops the clock for all defendants, United States v. Campbell, 706 F.2d 1138, 1141 (11th Cir.1983), nor does he claim that Browning's and Bounos' pretrial maneuverings did not stop the clock as to them. Rather, Tedesco claims that (h)(7) is inapplicable because he should have been granted a severance on August 3 and an immediate trial on August 4.

Rule 14 of the Federal Rules of Criminal Procedure grants the district court the discretion to order a severance if "it appears that a defendant ... is prejudiced by a joinder of ... defendants." Denial of a motion for severance will only be reversed for an abuse of discretion, which requires a showing of compelling prejudice. United States v. Butera, 677 F.2d 1376 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); United States v. Hedman, 630 F.2d 1184 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981); United States v. Crouch, 528 F.2d 625 (7th Cir.1976), cert. denied, 429 U.S. 900, 97 S.Ct. 266, 50 L.Ed.2d 184. In exercising its discretion the court should balance the interests of the defendant against the needs of judicial economy. United States v. Zicree, 605 F.2d 1381 (5th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

Defendant claims that the court was incapable of properly exercising its discretion because the Government misrepresented the amount of time separate trials of the various defendants would require. Tedesco claims that the Government informed the court that the separate trials would be quite Defendant also claims that the delays caused by Bounos and Browning were not properly excludable under (h)(7) because their motions and interlocutory appeals were unreasonable, and the district court was therefore required to grant Tedesco a severance. We do not agree that the court was required to grant a severance in this situation. The Speedy Trial Act did not alter a trial court's function in ruling on a severance motion; the court must still balance the needs of each defendant against the needs of judicial economy. United States v. Varella, 692 F.2d 1352, 1359 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3542, 77 L.Ed.2d 1392 (1983). In this case the court could not prevent Browning and Bounos from presenting their double jeopardy motion as they did, but was limited to expediting the process as much as possible, which the court did. Under defendant's analysis the court, presented with this situation, would be required to grant a severance regardless of the amount of time that would be wasted by conducting separate, repetitive trials for each defendant, and regardless of how little prejudice the defendant would suffer from not obtaining a severance. We do not believe that the Speedy Trial Act hobbles multidefendant prosecutions in this manner.

lengthy, while privately informing his counsel that a trial of Tedesco alone would only take three days....