923 F.2d 317 (3rd Cir. 1991), 90-3398, Government of Virgin Islands v. Duberry

Docket Nº:90-3398, 90-3399.
Citation:923 F.2d 317
Party Name:GOVERNMENT OF the VIRGIN ISLANDS v. DUBERRY, Leslie. Appeal of Leslie DUBERRY.
Case Date:January 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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923 F.2d 317 (3rd Cir. 1991)

GOVERNMENT OF the VIRGIN ISLANDS

v.

DUBERRY, Leslie.

Appeal of Leslie DUBERRY.

Nos. 90-3398, 90-3399.

Submitted under Third Circuit Rule 12(6)

United States Court of Appeals, Third Circuit

January 22, 1991

        Dec. 6, 1990.

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        Thurston T. McKelvin, Federal Public Defender, Melody M. Walcott, Asst. Federal Public Defender, Christiansted, Saint Croix, Virgin Islands, for appellant.

        Terry M. Halpern, U.S. Atty., David L. Atkinson, Asst. U.S. Atty., Christiansted, Saint Croix, Virgin Islands, for appellee.

        Before HIGGINBOTHAM, Chief Judge, and GREENBERG and COWEN, Circuit Judges.

       OPINION

        GREENBERG, Circuit Judge.

        An information was filed on November 27, 1989, in the District Court of the Virgin Islands charging appellant Leslie Duberry and Larry Lockhart with kidnapping with intent to commit robbery, kidnapping, first degree robbery, assault in the first degree, grand larceny, and unlawful use of a motor vehicle, V.I.Code Ann. tit. 14, Secs. 11, 1052, 1051, 1862, 295, 1083, and 1382 (1964 & Supp.1989). The victim of the crimes which were committed by Duberry and one other person on September 19, 1989, on the University of the Virgin Islands campus following Hurricane Hugo was Ramkisoon Goonie, a 69-year old security guard. Goonie was attacked from behind, robbed, bound and gagged, taken to his own car and stuffed in the trunk. While Duberry was driving away, he was recognized by several police officers as an escaped inmate who had been able to flee from the Golden Grove penitentiary because of damage from the storm. A pursuit followed and, though Duberry escaped, he abandoned the car and Goonie was freed from the trunk. Duberry was arrested several days later. Lockhart was alleged to have been with Duberry when the offenses were committed, but he was ultimately acquitted.

        Duberry and Lockhart were arraigned on December 7, 1989, and pleaded not guilty. The trial was scheduled for January 20 or 22, 1990, but on January 18, 1990, Duberry filed a motion for a continuance. 1 On January 19, 1990, Duberry's motion was granted and a trial date for both defendants of February 5, 1990, was fixed. A magistrate with the defendants' consent selected the

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jury on that day and the trial was continued until February 16, 1990.

        On February 16, 1990, the defendants were not available for trial until Lockhart was brought to the courthouse at about 11:00 a.m. 2 The trial judge that day, Judge Edward N. Cahn of the Eastern District of Pennsylvania, sitting by designation, was scheduled to leave the Virgin Islands the next day. 3 Judge Cahn understandably was concerned about whether the trial could be completed while he was still available but offered to start the trial if the defendants would agree to waive a double jeopardy claim should it be aborted and a mistrial declared but neither would. In the circumstances, Judge Cahn indicated that he would grant "a continuance in the interest of justice." On March 6, 1990, Judge Cahn signed an order under the Speedy Trial Act pursuant to 18 U.S.C. Sec. 3161(h)(8)(A):

that trial must be continued due to the probable unavailability of the Court to try the case to verdict, which could cause the continuation of the case to be impossible, result in the distinct possibility that a re-trial of the case could be barred under Fifth Amendment principles, and result in a miscarriage of justice, all as contemplated by 18 U.S.C. [Sec.] 3161(h)(8)(B)(i); and,

        The Court further finds that the ends of justice served by postponing this case until it can be tried to completion outweigh the best interest of the public and defendant in a speedier trial; therefore,

        It is hereby ordered that trial in the above-captioned case be postponed until a date to be set by the Court when it can be tried to completion; and

        It is further ordered that the delay occasioned hereby shall be excludable for purposes of the Speedy Trial Act analysis (18 U.S.C. [Sec.] 3161).

        App. at 445-46. 4

        The trial was rescheduled for March 21, 1990, with Judge Daniel H. Huyett III of the Eastern District of Pennsylvania sitting by designation. On that day, however, three of the 14 jurors earlier selected were either unavailable or unable to serve so that only 11 jurors could hear the case. Accordingly, as the parties did not reach an agreement for a trial before an 11-person jury, the trial was continued until March 26, 1990, when a jury was selected. 5 On March 28, 1990, Duberry filed a motion to dismiss the information pursuant to the Speedy Trial Act, and on March 29, 1990, Lockhart joined in the motion which, following argument, was denied that day by Judge Robert J. Kelleher of the Central District of California, sitting by designation. The evidentiary portion of the trial was started on March 29, 1990, and was completed on April 2, 1990, when Duberry was convicted on all counts and Lockhart was acquitted. Duberry was sentenced to a general sentence of life imprisonment on the two kidnapping counts and to a general sentence of 15 years, consecutive to the life sentence, on the remaining counts, as reflected

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in an amended judgment entered on June 13, 1990. 6 This appeal followed.

        Duberry contends first that there was a Speedy Trial Act violation and that Judge Cahn could not properly invoke the "ends of justice" provisions of 18 U.S.C. Sec. 3161(h)(8)(A) to grant a continuance at trial. His calculations of trial delay are as follows. He was arraigned on December 7, 1989, but on January 18, 1990, 7 moved for a continuance. He concedes that there should be an exclusion of the time from the day he filed his motion for the continuance, January 18, 1990, until February 5, 1990, when the jury was selected, and then another exclusion from then until February 16, 1990, the date to which the trial was continued after February 5, 1990. He urges, however, that the clock started running again on February 16 and ran until March 21, 1990. Accordingly, he calculates that there were 75 non-excludable days from arraignment to the commencement of the trial. Thus, he urges that the district court erred in denying his motion for a dismissal predicated on a violation of the Speedy Trial Act. He does not contend that the period after March 21, 1990, should be treated as non-excludable. 8

        We reject Duberry's speedy trial argument. The Speedy Trial Act provides that if a plea of not guilty is entered, the trial of a defendant charged in an information or indictment "shall commence" within 70 days from the filing date and the making public of the information or indictment or from the date the defendant has appeared before a judicial officer of the court in which the charge is pending, whichever date is last. 18 U.S.C. Sec. 3161(c)(1). While the statute does not define "commence," other courts of appeals have held that for Speedy Trial Act calculations, a trial commences when voir dire begins and we will follow that rule. Therefore the trial in this case commenced on February 5, 1990. United States v. Fox, 788 F.2d 905, 908 (2d Cir.1986); United States v. Crane, 776 F.2d 600, 603 (6th Cir.1985); United States v. Martinez, 749 F.2d 601, 604 (10th Cir.1984); 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).

        The Speedy Trial Act does not require that once a trial commences it continue without interruption and it is therefore recognized that the Act is not violated if the jury is selected within the 70-day period but a short recess places its swearing outside the statutory period. Fox, 788 F.2d at 908; Crane, 776 F.2d at 603. However, if a district court attempts to evade the spirit of the Act by conducting voir dire within the 70-day period and then ordering a prolonged recess it may violate the Act. United States v. Scaife, 749 F.2d 338, 343 (6th Cir.1984). In United States v. Gonzalez, the trial court conducted voir dire on the last day of the 70-day period and continued the trial for eleven days. The court of appeals held that the Act had not been violated as the trial court had offered to continue the trial until the Monday following voir dire, though the parties asked for and obtained a longer delay to avoid interruption

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at the trial. 671 F.2d at 444. Similarly, in United States v. Richmond, 735 F.2d 208 (6th Cir.1984), the court of appeals found that the Act had not been violated when voir dire had been conducted within the 70-day period but trial was recessed for two weeks because the defendant's counsel had asked for time to prepare.

        In this case even though neither defendant requested a delay beyond February 5, 1990, the delays which did occur do not support a finding that the district court intended to evade the spirit of the Act. On February 16,...

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