U.S. v. Anello
| Decision Date | 21 August 1985 |
| Docket Number | Nos. 84-1406,s. 84-1406 |
| Citation | 765 F.2d 253 |
| Parties | 18 Fed. R. Evid. Serv. 754 UNITED STATES of America, Appellee, v. Anthony ANELLO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Daniel DUVAL, Defendant, Appellant. UNITED STATES of America, Appellee, v. James Michael OLIVER, Defendant, Appellant. UNITED STATES of America, Appellee, v. David ROOT, Defendant, Appellant, UNITED STATES of America, Appellee, v. John SACHS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Fred R. VERDERAME, Defendant, Appellant. UNITED STATES of America, Appellee, v. Walter WENDOLKOWSKI, Defendant, Appellant. UNITED STATES of America, Appellee, v. Gervasio GUILLEN, a/k/a Jorge Ortiz-Germasio, Defendant, Appellant. to 84-1412 and 84-1452. |
| Court | U.S. Court of Appeals — First Circuit |
Richard R. Booth, Miami, Fla., on brief for Walter Wendolkowski.
Lillian A. Wilmore, Boston, Mass., with whom James W. Lawson, Oteri, Weinberg & Lawson, Boston, Mass., Marshall A. Stern, and Stern & Goldsmith, Bangor, Me., were on brief for David Root.
George R. Goltzer, New York City, with whom Goltzer & Adler, New York City, was on brief for John Sachs.
Ira N. Loewy, Miami, Fla., with whom Edward R. Shohat and Bierman, Sonnett, Shohat & Sale, P.A., Miami, Fla., were on brief for Gervasio Guillen.
Arthur E. Huttoe, Miami, Fla., on brief for Anthony Anello, Daniel Duval and Fred Verderame.
Jay P. McCloskey, Asst. U.S. Atty., Bangor, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief for appellee.
Before BREYER and TORRUELLA, Circuit Judges, and PETTINE, * Senior District Judge.
These appeals arise out of an indictment charging nineteen persons with conspiracy to possess over a thousand pounds of marijuana with an intent to distribute the drugs. See 21 U.S.C. Secs. 841, 846. The government basically claimed that the conspirators were important suppliers, wholesalers, or retailers of marijuana, who, during June and July 1982, bought or sold among themselves (and with others) a large store of marijuana, smuggled into the country and kept near Bangor, Maine. Of nineteen individuals indicted, four pleaded guilty, and four others remained at large during the consolidated trial of the remaining eleven. A jury acquitted two and convicted nine. Eight of those nine now appeal.
After reviewing the extensive record below, we have concluded that the district court rulings at issue were all legally correct. In reaching this conclusion, we have not had to decide any novel question of law; rather, we have simply satisfied ourselves on the basis of the record that the district court's rulings are sufficiently supported by well-established legal precedents. Under these circumstances, we see no need to set forth all the complex facts of this case in detail here. Nor need we write an elaborately detailed opinion. We shall write enough simply to reveal to the parties the basic reasoning underlying our decision.
All eight appellants claim that the district court ought to have dismissed the indictment for violations of the Speedy Trial Act, 18 U.S.C. Secs. 3161 et seq. That Act requires that a trial "shall commence within seventy days" from the time of the indictment or arraignment, whichever is later. Id. Sec. 3161(c)(1). Otherwise "the information or indictment shall be dismissed on motion of the defendant." Id. Sec. 3162(a)(2). The 70-day period can be extended, however, by certain "periods of delay" that are specifically excluded from the day-count. Id. Sec. 3161(h); see United States v. Jodoin, 672 F.2d 232, 236 (1st Cir.1982).
In this case all parties agree that the speedy trial clock began to run on August 2, 1982. It stopped 568 days later, on February 1, 1984, when the jury was impanelled. In deciding how many of these 568 days are excludable, we find applicable here our holding in United States v. Rush, 738 F.2d 497, 503 (1st Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985), that "an exclusion applicable to one defendant applies to all codefendants." We consequently find that a sufficient number of the 568 days were properly excluded from the speedy trial count to make the trial timely.
The 568-day period can be broken down for present purposes as follows:
a. August 2, 1982--November 26, 1982. Appellants do not contest the exclusion of this block of time, during which they were engaged in collateral proceedings before another district judge attacking the lawfulness of the grand jury and foreperson selection procedures. During this period, defendants filed motions, conducted discovery, and participated in hearings on the grand jury issue, which was ultimately resolved against them. This time was plainly excludable, as the trial court held. See 18 U.S.C. Sec. 3161(h)(1) (); United States v. Hawker, 552 F.Supp. 117, 123-24 (D.Mass.1982).
b. November 27, 1982--February 7, 1983. This period falls within Sec. 3161(h)(1)(F), which excludes
delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.
The defendants lost their motions attacking the grand jury's composition on November 26, 1982. United States v. Abell, 552 F.Supp. 316 (D.Maine 1982). By that time they had filed approximately seventy pretrial motions with the trial court, many of which raised complex suppression issues. The court had decided to postpone consideration of these motions until after resolution of the grand jury issues. The court then had to sort through and to analyze these many pending motions, determine which ones could be decided without a hearing, decide them, and set the others for hearing. On December 28, it decided those motions that did not require a further hearing. At the same time, it set a hearing date of February 7 for the remaining motions and framed the issues to be addressed at the hearing. The forty-one day delay between the scheduling of the hearing and the proposed hearing date was necessary because the attorneys needed additional time to prepare to address the issues that the court had framed, and because some defendants initially lacked individual counsel, see United States v. Foster, 469 F.2d 1 (1st Cir.1972). The district court found the entire period of time from November 27 to February 7 to be a "reasonably necessary" delay between the time of filing pretrial motions and the hearing upon those motions. United States v. Mitchell, 723 F.2d 1040, 1047 (1st Cir.1983). We agree, and we add that in the context of the case, the trial court's procedure seems reasonable enough on its face to obviate any need for a "contemporaneous" written explanation. See Mitchell, 723 F.2d at 1047-48.
c. February 7, 1983--June 2, 1983. This period of time is also excludable under Sec. 3161(h)(1)(F), quoted above. As we pointed out in Mitchell, the end of the hearing (for 'speedy trial' purposes) takes place after the court has received "all forthcoming briefs." Id. at 1046 (quoting Massachusetts District Court Plan). The suppression hearings here ran from February 7 to February 15, and the final, related briefs were not presented to the court until June 2 d. June 3, 1983--November 4, 1983. The district court took 155 days from the time all briefs were submitted until the time it decided the relevant suppression motions. The court had many such motions under consideration. Although it would be difficult to arrive at an exact tally, we note that a large number of the seventy-odd pretrial motions originally filed had not been disposed of by the court's December 28 opinion, and therefore remained to be decided; at the suppression hearing, virtually every defendant raised at least one suppression issue, and many defendants pressed several issues. The suppression motions were individually, as well as collectively, filed. They were complicated. The court felt compelled to engage in legal research not covered in the parties' briefs. Eventually, it released a 115-page opinion comprehensively analyzing the relevant arguments and issues and disposing of the motions. We believe that, under these circumstances, the elapsed time from submission to decision was not unreasonable.
Two different statutory exemptions arguably apply to exclude this reasonably elapsed time. The first, Sec. 3161(h)(1)(J) excludes
delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
Although this provision contains language that limits the excluded period to thirty days, the Seventh Circuit has recently held that the language does not apply literally when a court is asked to decide many motions submitted at the same time. United States v. Tibboel, 753 F.2d 608, 611-12 (7th Cir.1985). As a practical matter, it may be impossible for a court to decide 10 or 100 motions, all within the same thirty-day period. Nor is a court likely to grant a continuance when no one has asked for one. See 18 U.S.C. Sec. 3161(h)(8). Thus, we suspect the Seventh Circuit was correct in holding that a "reasonable promptness" requirement applies in such circumstances--a requirement that is satisfied here. Tibboel, 753 F.2d at 612.
We need not decide this question definitely, however, for this period of time is also excludable under Sec. 3161(h)(1)(F) quoted above. In late April 1983, two defendants made additional motions, which were pending throughout the 155-day period. Because these new motions raised issues that would turn on the court's resolution of some of the other suppression motions, the district...
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