U.S. v. Crane, 84-1849

• Decision Date: 07 November 1985
• Docket Number: No. 84-1849,84-1849
• Citation: 776 F.2d 600
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stuart R. CRANE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 600

776 F.2d 600

UNITED STATES of America, Plaintiff-Appellee, v. Stuart R. CRANE, Defendant-Appellant.

No. 84-1849.

United States Court of Appeals Sixth Circuit.

Argued Oct. 10, 1985.

Decided Nov. 7, 1985.

John C. Carlisle (argued), Grosse Pointe, Mich., for defendant-appellant.

Richard Delonis (argued), Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before MERRITT and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge.

MERRITT, Circuit Judge.

By this appeal, the defendant-appellant, Stuart R. Crane, challenges an order by the Federal District Court for the Eastern District of Michigan denying Crane's motion to dismiss the indictment for failure to commence the trial within seventy days of Crane's arraignment as required by the Speedy Trial Act. 18 U.S.C. Sec. 3161(c)(1) (1982). Because we agree that the Speedy Trial Act's time limit was not respected, we reverse the District Court's order.

I.

On April 12, 1984, a federal grand jury returned an indictment charging Crane with four counts of tax evasion in violation of 26 U.S.C. Sec. 7201 (one count for each year from 1977 through 1980), one count of obstructing justice in violation of 18 U.S.C. Sec. 1503, and one count of making false declarations before a grand jury in violation of 18 U.S.C. Sec. 1623. Pursuant to the indictment, Crane was arrested and arraigned on April 13, 1984. He pleaded not guilty to all six counts of the indictment.

On June 19, 1984, Crane's counsel and the attorney for the government received notice that the case had been set for trial on June 20, 1984. Subsequently, they were informed that the June 20 date was for a pretrial conference only rather than for the trial itself. At the pretrial conference, Crane's counsel raised the fact that the Speedy Trial Act's seventy-day limit was about to expire. At that time the trial judge and the attorneys for both sides thought that June 20 was the seventieth day. (Actually, June 22, 1984 was the seventieth day.) Upon inquiry by the judge, Crane's counsel stated that he was ready for trial but would require some time to find his client, who was not present at the pretrial conference. The attorney for the government said that he could not be ready that day. He pointed out that pretrial discovery and final preparation of exhibit and witness lists had not yet been completed. The attorney for the government also stated that Crane's counsel had told him earlier that he could not be ready for trial by July 5, 1984, and that Crane would be seeking a continuance.

The judge indicated that he would be leaving the country on June 21 and, upon his return, would be presiding over another trial until July 3. He set the trial date for July 5, 1984, and directed the attorneys for both sides to complete the remaining pretrial matters by specified deadlines in advance of the trial date.

Later in the day on June 20, the judge discovered that the seventy-day period did not expire until two days later on June 22. That afternoon, the judge instructed a United States Magistrate to begin voir dire in the case on June 21 but not to swear in the jury or proceed further with the trial. Voir dire began before the magistrate on June 22, 1984, over Crane's objection that this procedure was a "false start" and an attempt to circumvent the Speedy Trial Act. After voir dire the jury was not sworn in, and the trial was recessed until July 5, 1984.

On July 5, 1984, the judge again presided over the trial. Crane moved to dismiss on the ground that the Speedy Trial Act's seventy-day limit had expired before the trial commenced. The judge stated that the arrangement with the magistrate to have the jury impaneled on June 22 had been "an inappropriate effort to begin the trial within the 70 days...." However, the judge ruled that the delay from June 20 to July 5 had been a continuance granted in accordance with the terms of the Speedy Trial Act and that the Act's seventy-day period had been tolled by the continuance. Consequently, he denied Crane's motion to dismiss, and he went on to state his basis for having granted the continuance.

After a relatively lengthy trial, the jury found Crane not guilty of tax evasion for the years of 1977 and 1978, but it found him guilty for 1979 and 1980. The jury was deadlocked on the obstructing justice and false declarations counts. On November 21, 1984, the judge sentenced Crane on the two counts for which he was convicted.

II.

The Speedy Trial Act requires that a defendant's trial be commenced within seventy days of the filing date of his indictment or arraignment, whichever is later. 18 U.S.C. Sec. 3161(c)(1). Although one of the Speedy Trial Act's purposes is to protect criminal defendants' sixth amendment right to a speedy trial, Crane does not argue that his sixth amendment right was violated. Crane argues simply that his trial did not commence within seventy days as required by the Act.

A. The June 22 Jury Impanelment

The Act's seventy-day period began on the date of arraignment and, as calculated under Rule 45 of the Federal Rules of Civil Procedure, expired on June 22, 1984. The government argues that the trial did commence on June 22 when the magistrate began voir dire (over Crane's objection). For purposes of the Act, a trial commences when voir dire begins. United States v. Gonzalez, 671 F.2d 441 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982). However, a trial court may not evade the Act by beginning voir dire within the seventy-day limit and then entering a long recess before the jury is sworn in and the rest of the trial goes forward.

In Gonzalez, supra, the trial court had conducted voir dire on the last day of the seventy-day period and had continued the rest of the trial until eleven days later. The Eleventh Circuit, relying on the fact that the trial court had offered to continue the trial to the Monday following voir dire but that both parties had preferred to delay the trial in order to avoid interrupting what was to be a relatively short trial, held that the Act had not been violated. The court issued this warning:

We caution that our decision not be viewed as a license to 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 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.

Gonzalez, 671 F.2d at 444.

United States v. Richmond, 735 F.2d 208 (6th Cir.1984), dealt with a similar set of facts. Judge Peck, writing for the panel, stated that the trial court did not violate the Act when it commenced voir dire within the seventy-day period but then recessed the trial for two weeks, where the reason for the delay was that the defendant's counsel had asked for the time in order to prepare for trial.

In the case at bar, Crane's counsel had expressed no preference for the delay. In fact, he strongly objected to the procedure. We agree with Crane that this last-minute arrangement to have the Magistrate begin voir dire on June 22 was an attempt to evade the spirit of the Speedy Trial Act. Indeed, when the Judge returned to preside over the trial on July 5, 1984, he stated in reviewing past events that he had "arranged for the Magistrate to impanel a jury in an inappropriate effort to begin the trial within the 70 days...." He continued:

Obviously, the decision on whether or not there had been a violation of the Speedy Trial Act is being made on the appropriateness of the recess granted earlier that day, rather than on the fact that the jury was impaneled on June 22.

....

I want to make clear again that in denying the Motion to Dismiss, I am not considering the jury impanelment on June 22, 1984 as the beginning of trial. Compliance or non-compliance with the standard stands or fails on my putting over the trial from June 20 to July 5.

(App. pp. 67-69.) The District Court did not deny Crane's motion to dismiss because the judge determined that the trial had properly commenced on June 22 for purposes of the Act. Rather, the decision rested on the propriety of excluding the delay from June 20 to July 5 from the seventy-day period. We therefore turn to an examination of whether this period of delay may be excluded from the Act's seventy-day period.

B. Excludability of the Delay

The Act lists certain periods of delay that are to be excluded from the Act's time computations. 18 U.S.C. Sec. 3161(h). The list of delays has been held to be exhaustive. United States v. Carrasquillo, 667 F.2d 382, 388 (3d Cir.1981). The District Court denied Crane's motion to dismiss on the ground that the delay should be excluded under the "ends of justice" exclusion. 18 U.S.C. Sec. 3161(h)(8). Under this exclusion, the trial judge must set forth in the record his reasons for finding that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial.

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

....

(8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, 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. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by...