U.S. v. Richmond

• Decision Date: 05 June 1984
• Docket Number: No. 83-5234,83-5234
• Citation: 735 F.2d 208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie Ray RICHMOND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 208

735 F.2d 208

UNITED STATES of America, Plaintiff-Appellee, v. Eddie Ray RICHMOND, Defendant-Appellant.

No. 83-5234.

United States Court of Appeals Sixth Circuit.

Argued Dec. 6, 1983.

Decided June 5, 1984.

Stephen B. Shankman (argued), Memphis, Tenn. (Court-appointed), for defendant-appellant.

W. Hickman Ewing, Jr., U.S. Atty., Daniel A. Clancy, Devon Gosnell, (argued), Asst. U.S. Attys., Memphis, Tenn., for defendant-appellant.

Before EDWARDS, Circuit Judge, and PHILLIPS and PECK, Senior Circuit Judges.

JOHN W. PECK, Senior Circuit Judge.

Eddie Ray Richmond appeals from a judgment of conviction entered March 25, 1983 in the United States District Court for the Western District of Tennessee following a jury trial. The jury convicted Richmond on four counts of making false statements to the United States Postal Service in violation of 18 U.S.C. Secs. 1001 & 2. Richmond's sole argument on appeal is that the trial court erred in denying his pretrial motion to dismiss his indictment because he had not been brought to trial within the time limits established by the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq.

I

On September 14, 1982, a federal grand jury returned a four-count indictment charging Richmond with making false statements to the United States Postal Service in violation of 18 U.S.C. Secs. 1001 & 2. On September 17, 1982, Richmond was arraigned before a United States Magistrate and pleaded not guilty. The case was set for report on October 22, 1982 and scheduled for trial on November 1, 1982.

At the time of the report on October 22, 1982, Blan R. Nicholson, Richmond's counsel, made an oral motion for a continuance of the trial date to allow him to take an evidentiary deposition from a doctor who would not be available until after the scheduled trial date. The court orally granted the motion. Before the trial court entered an order on the motion, however, it was informed by telephone that the deposition would not be needed but that Nicholson desired to move to be permitted to withdraw as Richmond's attorney. On October 26, 1982, a written motion, signed by Richmond and Nicholson and requesting that Nicholson be permitted to withdraw as Richmond's attorney, was filed. The trial court continued the trial date and set the motion for permission to withdraw for hearing on November 26, 1982. The trial date was reset for December 13, 1982. Because Richmond was unable on November 26, 1982 to attend the hearing, the motion was reset for hearing on December 3, 1982.

On December 3, 1982, the motion was heard. The trial court indicated that it was inclined to grant the motion but took the matter under advisement pending issuance of an order. On December 8, 1982, the trial court issued orders granting Nicholson's motion to withdraw as Richmond's attorney, substituting the Federal Defender as Richmond's attorney, continuing the trial date from December 13, 1982, charging the clerk to set the case for trial on the first available date, and excluding the delay from October 22, 1982 until the entry of the order from the computation of elapsed time under the Speedy Trial Act pursuant to 18 U.S.C. Sec. 3161(h)(8)(B)(iv). The order was entered on the docket sheet on December 9, 1982. On December 13, 1982, the Office of the Clerk scheduled January 14, 1983 as the report date and January 26, 1983 as the trial date.

On January 14, 1983, the trial court inquired about an alternative date for commencing the trial. The trial court noticed at that time that there might be a Speedy Trial Act problem and directed the clerk to have a jury brought in on the following Monday, January 17, 1983.

On January 17, 1983, Richmond's substitute counsel filed a motion to dismiss the indictment on the ground that Richmond had not been brought to trial within the time limits established by the Speedy Trial Act. On the same day, the district court orally denied this motion and commenced voir dire. After the jury was selected, it was excused until January 31, 1983. On January 19, 1983, the district court entered a written order denying the motion to dismiss the indictment on the ground that the continuance from December 13, 1982 to January 17, 1983 was excludable under the "ends of justice" exclusion, 18 U.S.C. Sec. 3161(h)(8)(A). ¹

On January 31, 1983, Richmond's trial was resumed. The jury returned guilty verdicts on each count. On March 25, 1983, the trial court entered a judgment of conviction and imposed a sentence of imprisonment for a term of two years on each count to be served concurrently under 18 U.S.C. Sec. 4205(b)(2).

II

The Speedy Trial Act requires the dismissal of the indictment against any defendant who is not brought to trial within seventy days of the filing of the information or indictment or of the defendant's first appearance before a judicial officer of the court in which the charge is pending, whichever occurs later. 18 U.S.C. Secs. 3161(c)(1) & 3162(a)(2); United States v. Severdija, 723 F.2d 791, 792 (11th Cir.1984); United States v. Janik, 723 F.2d 537, 543 (7th Cir.1983). 18 U.S.C. Sec. 3161(h) provides for the exclusion of various periods of time from the calculation of the seventy-day period. United States v. Guerrero, 667 F.2d 862, 865 (10th Cir.1981).

In this case, Richmond contends that the Speedy Trial Act was violated because more than seventy days elapsed before he was brought to trial. Richmond also argues that the computation of the time should, in this case, include the period between voir dire and the resumption of his trial. The government responds that there was sufficient excludable time to reduce the countable time to seventy days.

The initial question is what time period is at issue. Because the indictment against Richmond was returned prior to Richmond's first appearance before a judicial officer, which was at the arraignment, we conclude that the countable time under the Speedy Trial Act began to run from the day of his arraignment, September 17, 1982. United States v. Carrasquillo, 667 F.2d 382, 384 (3d Cir.1981). In calculating the seventy-day limit, the day of the arraignment is excluded. United States v. Campbell, 706 F.2d 1138, 1139 (11th Cir.1983); United States v. Haiges, 688 F.2d 1273, 1275-76 (9th Cir.1982). Thus, the first day of the seventy-day period was September 18, 1982.

The Speedy Trial Act establishes the commencement of the trial as the end of the period at issue. 18 U.S.C. Sec. 3161(c)(1). Richmond concedes that courts consistently have held that for purposes of the Speedy Trial Act a jury trial commences with the beginning of voir dire. United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 376 (2d Cir.1979). Richmond contends, however, that the district court's scheduling of voir dire on January 17, 1983, followed by a recess until January 31, 1983, was tantamount to an attempt to circumvent, if not the letter, at least the spirit of the Speedy Trial Act. We do not agree.

We concur fully in the position taken by the Eleventh Circuit in Gonzalez that trial courts may not circumvent the time limits of the Speedy Trial Act:

[Trial courts may not] evade the Act's spirit by commencing voir dire within the prescribed time limits and then taking a prolonged recess before the jury is sworn and testimony is begun. The district courts must adhere to both the letter and the spirit of the Act, and we will not hesitate to find that a trial has not actually "commenced" within the requisite time if we perceive an intent to merely pay the Act lip service.

671 F.2d at 444. We do not believe, however, that the district court merely paid lip service to the Speedy Trial Act when it commenced voir dire on January 17, 1983. Our review of the transcript of the hearing on the report date, January 14, 1983, at which the district court scheduled voir dire for January 17, 1983, indicates that after the court scheduled voir dire, Richmond's counsel informed the court that he could not be ready to try the case on that day. In response, the district court informed Richmond's counsel that once the jury was picked, the trial would be adjourned until counsel was ready. In light of the apparent willingness of the trial court to proceed, the inability of the defense counsel to proceed, and the relatively short delay between voir dire and resumption of the trial, we conclude that the district court did not attempt to evade the requirements imposed by the Speedy Trial Act in commencing voir dire on January 17, 1983 and recessing the trial until January 31, 1983 and that, for purposes of the Act, Richmond's trial commenced on January 17, 1983.

The principal issue in this case is whether there was sufficient excludable time within the one hundred and twenty-two days between Richmond's arraignment and the commencement of voir dire to bring this case within the seventy-day limit established by the Speedy Trial Act. Both Richmond and the government agree that the thirty-four days from September 18, 1982 through October 21, 1982 must be included in the calculation of the seventy-day period. ² The parties also agree that the thirty-nine days from October 26, 1982, when Richmond's initial counsel filed the written motion to withdraw, through December 3, 1982, when the hearing was held on the motion, automatically were excludable under 18 U.S.C. Sec. 3161(h)(1)(F). The issue that remains is whether thirteen of the remaining forty-nine days are excludable under one of the exclusions listed in 18 U.S.C. Sec. 3161(h). The forty-nine days fall into four units, each of which involves separate Speedy Trial Act problems: (1) October 22 through October 26, 1982; (2) December 3 through December 8, 1982; (3) December 9, 1982; and (4) December 9, 1982 through January 17, 1983.

Richmond contends that the four-day period from October 22 through October 26, 1982 must be...