U.S. v. Butz

• Decision Date: 08 January 1993
• Docket Number: 91-30409,Nos. 91-30374,s. 91-30374
• Citation: 982 F.2d 1378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glen BUTZ; Danner L. Boone, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1378

982 F.2d 1378

UNITED STATES of America, Plaintiff-Appellee, v. Glen BUTZ; Danner L. Boone, Defendants-Appellants.

Nos. 91-30374, 91-30409.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1992.

Decided Jan. 8, 1993.

Ellison M. Matthews, Boise, ID, E. Alexander DeSalvo, Denver, CO, for defendants-appellants.

Monte J. Stiles, Asst. U.S. Atty., Boise, ID, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before: EUGENE A. WRIGHT, HUG, and POOLE, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Idaho law enforcement officials obtained electronic surveillance evidence against Glen Butz and Danner Boone by procedures that complied with then-existing state law. The Idaho Supreme Court later declared, in a separate case, that pen registers were searches according to the state constitution and required probable cause. The question before us is whether the change in state law required the suppression of the evidence in federal court. We find that a good faith exception applies. Butz and Boone also raise pre-indictment delay and Speedy Trial Act claims. We affirm the district court's pretrial rulings.

BACKGROUND:

In February 1987, Idaho law enforcement officers began an investigation into the alleged marijuana sales of Scott Sarber. Officers conducted surveillance of Sarber and a coconspirator, Joe Davis, with the aid of court-authorized pen registers and wiretaps.

By March 1988, federal officials were involved in the widening investigation, which had uncovered the involvement of several coconspirators in a multi-state drug trafficking scheme. Investigators promptly notified defendants Butz and Boone of their suspected involvement in the conspiracy.

They were indicted in September 1990 and arraigned three months later in federal court. They were charged with conspiracy to distribute marijuana, 21 U.S.C § § 841(a)(1) and 846, and use of a telephone to facilitate the conspiracy, § 843(b). After several motions for continuance, the court vacated the January 22, 1991 trial date, resetting it for May 21, 1991. Following the denial of several pretrial motions, Butz and Boone entered conditional guilty pleas, preserving the right to appeal, and were convicted of conspiracy to distribute marijuana.

They argue on appeal that the district court erred in denying motions to dismiss for pre-indictment delay and to suppress electronic surveillance evidence. Butz also appeals the denial of his motions for bail pending appeal and to dismiss for violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1988 & Supp.1991).

ANALYSIS:

I. Pre-indictment Delay

We review for abuse of discretion the denial of a motion to dismiss for impermissible pre-indictment delay. United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir.1989), cert. denied, --- U.S. ----, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992).

We apply a two-pronged test to determine if pre-indictment delay denies due process. United States v. Moran, 759 F.2d 777 (9th Cir.1985), cert. denied, 474 U.S. 1102, 106 S.Ct. 885, 88 L.Ed.2d 920 (1986). We determine first whether a defendant suffers actual prejudice as a result of the delay. Id. at 780. If there be prejudice, we balance the length of the delay with the reasons for it in deciding whether the defendant's rights were violated. Id. at 780-81.

Among the allegations of actual prejudice presented by Butz and Boone are these: the death of Sarber, a key witness and alleged head of the conspiracy; loss or dimming of witness memories; and failure to secure evidence or locate witnesses because of the belief that no charges were forthcoming.

A defendant has a heavy burden to prove that pre-indictment delay caused actual prejudice. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1050 (9th Cir.1990). The proof must be definite and not speculative. Id. Courts apply the actual prejudice test stringently. See Sherlock, 962 F.2d at 1352 (no actual prejudice from three-year delay and loss of testimony and physical evidence); Moran, 759 F.2d at 777 (no actual prejudice from two-year delay, death of witness and impairment of testimony through dimming of witness memory); United States v. Pallan, 571 F.2d 497 (9th Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2249, 56 L.Ed.2d 411 (1978) (no prejudice from five-year delay and death of witness).

Boone and Butz fail to demonstrate actual prejudice. We agree with the district court that they have not identified evidence that would aid in defense of the charges, withstand cross-examination and/or be found credible by a jury. Their assertions that they were harmed by Sarber's inability to testify are too speculative. See United States v. Galardi, 476 F.2d 1072, 1075 (9th Cir.), cert. denied, 414 U.S. 839, 94 S.Ct. 90, 38 L.Ed.2d 75 (1973) (Actual prejudice not shown by "[t]he assertion that a missing witness might have been useful"). Their claim that they believed no further charges were forthcoming is frivolous. Targets of a government investigation into a major drug distribution conspiracy should anticipate future legal action.

Because we find that Butz and Boone did not establish actual prejudice, we need not address the second prong of the pre-indictment delay test. See Gonzalez-Sandoval, 894 F.2d at 1051. The district court did not abuse its discretion in denying the motion to dismiss.

II. Speedy Trial Act

We review the district court's factual findings concerning speedy trial violations for clear error and questions of law concerning application of the Speedy Trial Act de novo. United States v. Nash, 946 F.2d 679, 680 (9th Cir.1991). We reject the argument that because Butz did not move for a continuance, one granted to several codefendants should not toll his speedy trial time.

The Act's requirement that a trial commence within the relevant 70-day period ¹ may be extended only by the excludable time provisions of 18 U.S.C. § 3161(h). Excludable time includes delay resulting from a grant of continuance. A court may grant one if it finds that the "ends of justice" so require. 18 U.S.C. § 3161(h)(8)(A). We reverse a district court's finding of an "ends of justice" exception only for clear error. United States v. Murray, 771 F.2d 1324, 1327 (9th Cir.1985).

We have upheld the exclusion of time for a continuance to allow defense counsel time to prepare motions. See United States v. Henderson, 746 F.2d 619, 624 (9th Cir.1984), aff'd, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). We have not, however, considered directly whether delay from a grant of continuance to one defendant is excludable time for a codefendant.

The Act specifically addresses the application of exclusions to multiple defendant cases such as this. Section 3161(h)(7) provides that a court shall exclude 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."

Every circuit to consider this section has concluded that "an exclusion to one defendant applies to all co-defendants." United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980); see also United States v. Holyfield, 802 F.2d 846, 848 (6th Cir.1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1298, 94 L.Ed.2d 154 (1987); United States v. Rush, 738 F.2d 497, 504 (1st Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985); United States v. Campbell, 706 F.2d 1138, 1141 (11th Cir.1983); United States v. Fogarty, 692 F.2d 542, 546 (8th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1434, 75 L.Ed.2d 792 (1983); United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980).

We agree. The trial delay due to the continuance granted to Butz's codefendants applies to him as excludable time. To resolve Butz's speedy trial claim, we must determine whether the court properly granted the continuance and whether applying this excludable time to Butz made the resulting delay reasonable.

In Fogarty, the Eighth Circuit held that a continuance granted to coconspirators was justified and that, after applying this delay as excludable time, the defendant's trial fell within the 70-day limit. 692 F.2d at 546. The court reasoned that the complexity of the case, involving seven codefendants and multiple overt acts occurring in seven states, outweighed the interests of individual defendants and that the continuance served "the ends of justice" as required by section 3161(h)(8)(A). Id.

We are persuaded by that court's analysis. Here too, the district court had valid reasons for granting the continuance. The severity and complexity of the charges indicated that counsel would need extra time to conduct discovery, file pretrial motions and to prepare defenses to the charges. ² The conspiracy covered six states and involved nine defendants charged in a 29-count indictment. The wiretap evidence consisted of hundreds of hours of tape time. Discovery was voluminous. Many witnesses were called from both within and outside of Idaho. The government and five of the nine codefendants agreed that a continuance was necessary. The decision to grant one due to the complexity of the case was consistent with section 3161(h)(8)(A).

We also find that, after applying the continuance as excludable time, the resulting delay between Butz's arraignment and trial was reasonable under section 3161(h)(7). The excludable time reduced the 168-day delay to 41 days, well within the speedy trial limit. See id. at 545 (119-day delay reduced by 91 excludable days held reasonable for purposes of 70-day limit); Holyfield, 802 F.2d at 848 (excludable time reduction of 202-day delay to within 70-day limit held reasonable under Speedy Trial Act). The district court did not err in denying Butz's motion to dismiss for a speedy trial violation. ³

III. Pen Registers and...