U.S. v. Anderson
| Decision Date | 09 May 1990 |
| Docket Number | D,No. 885,885 |
| Citation | 902 F.2d 1105 |
| Parties | UNITED STATES of America, Appellee, v. Frederick M. ANDERSON, Defendant-Appellant. ocket 89-1509. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul J. Connolly, Albany, N.Y. (Daniel A. Whalen, of counsel), for defendant-appellant.
Bernard J. Malone, Jr., Albany, N.Y., Asst. U.S. Atty. for N.D.N.Y. (Frederick J. Scullin, Jr., U.S. Atty. for N.D.N.Y., Barbara D. Cottrell, Asst. U.S. Atty., of counsel), for appellee.
Before FEINBERG, TIMBERS and PRATT, Circuit Judges.
Defendant Frederick M. Anderson appeals from a judgment of conviction on two counts of possessing lysergic acid diethylamide (LSD) with intent to distribute and two counts of distributing LSD, in violation of 21 U.S.C. Sec. 841(a)(1). Appellant was tried before a jury and Judge Lee P. Gagliardi in the United States District Court for the Northern District of New York, and received on each count concurrent sentences of 120 months and six years of supervised release. Anderson argues on appeal that the district court erred in: (1) denying his motion to dismiss the second superseding indictment for violation of both the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (the Act), and his Sixth Amendment right to a speedy trial; (2) dismissing counts one and two of the first superseding indictment without prejudice, rather than with prejudice, for violation of the Act; and (3) excluding certain evidence at trial. Anderson also argues that the prosecutor's improper comment during summation was plain error and requires reversal. For reasons set forth below, we affirm.
The facts giving rise to this appeal--particularly the chronology--must be stated in detail because of the issues before us. On November 7, 1988, Anderson was arrested following a four-month investigation into his distribution of LSD and methamphetamine. Anderson was continuously incarcerated from the day of his arrest to July 10, 1989, when his trial commenced.
Shortly after Anderson's arrest, an attorney was appointed to represent him. Anderson expressed his desire to proceed to trial in a December 1, 1988 letter to his attorney. However, she was engaged in a trial from November 21, 1988 to December 20, 1988, as was the Assistant United States Attorney assigned to this case. By agreement between defense counsel and the government, on January 6, 1989, Magistrate Ralph W. Smith, Jr., signed a stipulation/order purporting to exclude retroactively from speedy trial time the period from November 7, 1988 to January 6, 1989 (the January 6, 1989 stipulation). Shortly thereafter, Anderson requested that new counsel be appointed to represent him, and this request was granted.
On February 1, 1989, the government filed the original indictment, which charged Anderson with two counts of possession of LSD with intent to distribute (counts I & V), two counts of distribution of LSD (counts II & VI) and two counts of distributing bogus methamphetamine in violation of 18 U.S.C. Sec. 641 (counts III & IV). The pretrial order issued on that date required Anderson to file his pretrial motions by February 28, 1989. Anderson's new attorney and the government subsequently entered into a stipulation extending Anderson's time to file pretrial motions until March 14, 1989, and purporting to exclude from the 70-day speedy trial clock the period from February 28, 1989 to March 14, 1989. On March 2, 1989, the district court approved this stipulation (the March 2, 1989 stipulation).
On March 17, 1989, Anderson filed a motion that sought, among other things, the suppression of certain statements made by him. As will be seen below, this motion assumes crucial importance on this appeal.
On April 12, 1989, the government filed the first superseding indictment. (This indictment was obtained to correct a technical error in the original indictment). On April 19, 1989, Anderson was arraigned on the first superseding indictment. On April 20, 1989, the district judge advised the parties that he was ready to try the case, but defense counsel requested thirty days from the filing of the superseding indictment to the date of trial, see 18 U.S.C. Sec. 3161(c)(2), to prepare for trial. Accordingly, the judge set a trial date of May 22, 1989.
On May 1, 1989, Anderson filed another pretrial motion, seeking dismissal with prejudice of counts I and II of the first superseding indictment on the ground that the January 6, 1989 stipulation was invalid, because its retroactive exclusion of time from November 7, 1988 to January 6, 1989 was improper. On June 28, 1989, the district court dismissed counts I and II but without prejudice. The next day, the government filed a second superseding indictment, identical to the first superseding indictment. On the same day, Anderson filed another motion to dismiss, on constitutional and statutory speedy trial grounds. The district court apparently denied this motion on July 7, 1989 in open court.
On July 7, 1989, the court also held a suppression hearing on that portion of the March 17, 1989 motion that sought suppression of certain statements of Anderson. The motion to suppress was denied at the end of the hearing.
On July 10, 1989, Anderson's trial commenced. At trial, Anderson in effect conceded that on two separate occasions he had distributed to one Frank Pitcher substances that Anderson represented to be LSD. Pitcher had earlier been arrested on drug charges and had agreed to cooperate with authorities in their investigation of Anderson. At trial, Anderson did not deny that the substances he had distributed contained LSD; he did deny, however, any knowledge of that fact. Specifically, Anderson claimed that, upon trying one "hit" from the strip from which the substances came, he concluded that the active ingredient was not LSD, but belladonna, a non-controlled substance. In other words, the defense theory was that Anderson had tried to "rip-off" Pitcher by charging him for a substance that resembled, but was not, LSD. The defense case included Anderson's own testimony, and the testimony of Terrence Russo, a childhood friend.
The jury found Anderson guilty on the counts charging possession with intent to distribute LSD and possession of LSD, and acquitted him on the counts charging distribution of bogus methamphetamine. Because Anderson had two previous felony drug convictions, he faced possible sentencing as a career offender under the Federal Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual Secs. 4B1.1, 4B1.2 (Nov.1989). The government recommended that Anderson be sentenced within the Guideline range of 262-327 months, but the district court departed downward and sentenced Anderson to concurrent terms of 120 months on all four counts. This appeal followed. While the appeal was pending in this court, the district court issued an opinion on March 27, 1990 denying bail.
1. Statutory Claim. The Act commands the government to bring criminal defendants to trial within 70 days of their first appearance before a judicial officer or the filing of the indictment, whichever occurs later. See 18 U.S.C. Sec. 3161(c)(1). Certain defined periods of delay are automatically excluded from the calculation of the 70-day time limit. See Sec. 3161(h)(1)-(7). Anderson argues that the second superseding indictment, on which he was tried, should have been dismissed for violation of the Act.
The speedy trial clock started to run on February 1, 1989, when Anderson was first indicted, and stopped on July 10, 1989 when the trial began. See Sec. 3161(c)(1). This is a period of 158 days. 1 Anderson offers a number of theories as to why only 41 days (from May 1 to June 8 and July 6-7) should be excluded for speedy trial purposes. This would leave a period of delay of 117 days, well beyond the 70-day statutory requirement. We need not, however, address all of Anderson's theories. As will be seen below, our disposition of Anderson's key claim that his March 17, 1989 motion sought only a suppression hearing and not suppression itself renders these other arguments irrelevant.
We turn now to the proper calculation of the number of nonexcludable days between February 1, 1989 and July 10, 1989. The 28-day period between February 2 to March 1 is nonexcludable, and the March 2, 1989 stipulation, to the extent that it purported to retroactively exclude the period February 28 to March 1, is contrary to the law of this circuit. See United States v. Tunnessen, 763 F.2d 74, 78 (2d Cir.1985). The period between March 2 to March 14, however, was excluded prospectively by this stipulation and thus is properly excluded from the speedy trial calculation. The two days of March 15-16 are nonexcludable, since the stipulation had by then expired. Thus, up to March 17, only 30 days (February 2-March 1 and March 15-16) must be counted for calculating the 70-day speedy trial limit.
Anderson's March 17, 1989 motion sought, among other things, the suppression of certain statements. The Act provides that "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing" shall not be counted in computing the time within which the trial of any such offense must commence. 18 U.S.C. Sec. 3161(h)(1)(F). The motion was denied on July 7, 1989, a few days before the trial started. Thus, Anderson's motion to suppress tolled the 70-day speedy trial clock until the court's disposition of that motion on July 7, 1989. Accordingly, Anderson's statutory speedy trial claim must fail, although for reasons other than those given by Judge Gagliardi in his March 27, 1990 opinion denying Anderson's motion for bail pending appeal. When all of the delay attributable to the processing of the suppression motion is excluded, Anderson's trial commenced well within 70 days of the filing of the indictment.
Anderson argues, however, that the...
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