U.S.A. v. Balsam
| Decision Date | 07 October 1999 |
| Docket Number | 98-1477,98-1478,Nos. 98-1476,98-1672,98-1894,s. 98-1476 |
| Citation | 203 F.3d 72 |
| Parties | (1st Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. STEPHEN BALSAM, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. JOSEPH ZACKULAR, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. TODD A. ARSENAULT, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. THOMAS C. MEUSE, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. JOHN MEUSE, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Reginald C. Lindsay, U.S. District Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Joseph S. Oteri, with whom Oteri, Weinberg & Lawson, Kimberly Homan and Sheketoff & Homan were on brief for appellant Balsam.
Leo T. Sorokin, with whom Elizabeth L. Prevett was on brief for appellant John Meuse.
Geraldine S. Hines, with whom Burnham & Hines was on brief for appellant Zackular.
Douglas J. Beaton for appellant Thomas Meuse.
Kevin E. Sharkey, with whom Kenna, Johnston & Sharkey, P.A. was on brief for appellant Arsenault.
Jonathan L. Marcus, Attorney, United States Department of Justice, with whom Donald K. Stern, United States Attorney, Michael J. Pelgro, Assistant United States Attorney, and Patrick Hamilton, Assistant United States Attorney, were on brief for appellee.
Before Stahl, Circuit Judge, Cyr, Senior Circuit Judge, and Lipez, Circuit Judge.
In these consolidated criminal appeals, Todd Arsenault, Stephen Balsam, John Meuse, Thomas Meuse and Joseph Zackular seek to set aside their respective convictions, and in certain instances the sentences imposed by the district court, in connection with a rash of armed robberies perpetrated in the Boston area during 1990. We affirm the district court judgment in all respects.
While employed as an electrician at BayBank in Lynn, Massachusetts in 1989, Thomas Meuse stole the bank's blueprints. Later, he recruited his friend James Ferguson, a convicted armed robber, as well as several other accomplices, to rob the bank. Meuse planned to cut a hole in the roof at night, through which Ferguson could gain access. Once inside, Ferguson was to wait until bank employees arrived for work the following morning, threaten them with a gun, then force them to open the vaults.
On January 7, 1990, Meuse and Ferguson, along with other accomplices, committed the BayBank robbery as planned and made away with approximately $125,000. Over the next eleven months, the group robbed fourteen other banks and business establishments in the Boston area.1
Thomas Meuse participated in almost all the robberies which took place prior to his arrest in August 1990. James Ferguson participated in all the robberies. The remaining appellants -- John Meuse (Thomas Meuse's brother), Todd Arsenault, Stephen Balsam, and Joseph Zackular -- joined the conspiracy later.2
Thomas Meuse was indicted in December 1994 on a single count of aiding and abetting an armed bank robbery. See 18 U.S.C. § 2113(a), (d); id. § 2(a). Over the next six months, four superseding indictments issued, adding various charges and codefendants.3 Following further discovery and extensive pretrial-motion practice, the forty-eight-day trial began in March 1997.
James Ferguson, a prime government witness whose testimony spanned eight days, described the criminal activities of his codefendants in lurid detail. Notwithstanding the extensive cross-examination of Ferguson by defense counsel, guilty verdicts were returned against each defendant on multiple counts.4
Thomas Meuse claims that the trial was delayed for more than seventy nonexcludable days in violation of the Speedy Trial Act (STA). See 18 U.S.C. § 3161(c)(1). There was no reversible error.5
On May 5, 1995, Thomas Meuse and the government submitted a joint motion to continue the hearing on Meuse's various pretrial motions. The motion stipulated that the "[t]he government [was] in the process of providing defense counsel with 79 transcripts of recorded conversations as well as other discovery materials," and that "[o]nce that process is complete, the parties will be in a better position to agree on certain [discovery-related] matters and to conduct a meaningful hearing before the Court." Through counsel, Meuse expressly agreed that the requested continuance would "serve the ends of justice and that such action outweighs the best interests of the public and the defendants in a speedy trial." Although it allowed the continuance, the district court did not simultaneously reschedule the hearing date. Ultimately, the hearing took place on January 22, 1996 -- 206 days after the fourth superseding indictment had been filed.
The STA states that "interest of justice" continuances are to be excluded in computing the maximum seventy-day STA time period. See 18 U.S.C. § 3161(h)(8)(A).6 Based on our decision in United States v. Barnes, 159 F.3d 4, 9-10 (1st Cir. 1998), Meuse contends that open-ended continuances under section 3161(h)(8)(A) should be strongly disfavored. Barnes is readily distinguishable, however. There the district court had ordered a continuance on its own motion, without defense counsel's consent and with no explanation as to how the continuance would serve the interests of justice. By contrast, Meuse consented to this continuance, and the joint motion itself explained the grounds for the delay. See id. at 13 (). Furthermore, the open-ended continuance was granted because the parties suggested no date certain for rescheduling the hearing. See United States v. Rush, 738 F.2d 497, 508 (1st Cir. 1984) ().
Meuse further contends that his former counsel rendered ineffective assistance by endorsing the continuance. Meuse states that he told his attorney at the outset to accept no continuance because Meuse believed that the government had not yet gathered sufficient evidence to convict. Although we normally decline to address ineffective-assistance claims on direct appeal, see United States v. Ademaj, 170 F.3d 58, 64 (1st Cir. 1999), the present record is sufficiently developed to enable us to do so.
In order to demonstrate ineffective assistance, a defendant must prove that defense counsel's decision was (1) so deficient that it did not come within the "wide range of reasonable professional assistance," and (2) actually prejudiced the defense. United States v. Ortiz, 146 F.3d 25, 27 (1st Cir. 1998) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)).
Notwithstanding the conclusory assertion that the government lacked the evidence to convict, the record discloses that on May 5, 1995 the government and the defense were engaged in exchanging voluminous discovery materials -- including dozens of transcripts of incriminating tape-recorded conversations -- in a highly complex criminal case potentially involving multiple defendants. Moreover, after Meuse dismissed his first attorney, replacement counsel vigorously proceeded with various pretrial and discovery motions. Based on the sheer volume of the discovery materials disclosed by the government, Meuse's attorneys would have rendered less than effective assistance had they insisted on proceeding to trial precipitously, without adequate opportunity to review the strengths and weaknesses of the government's evidence.
Furthermore, the present record does not demonstrate that the 206-day delay prejudiced the Thomas Meuse defense. For one thing, the defense relied heavily on the taped conversations to impeach Ferguson, the prime prosecution witness. See, e.g., infra Section II.H.7 There was no STA violation.
Thomas Meuse and Todd Arsenault contend that it was improper to seal the fourth superseding indictment filed in June 1995 since the government did not disclose the reasons for doing so, and further, that the government chose to seal the indictment in order to gather additional evidence against the defendants, not because it needed more time to arrest defendants. Finally, they urge dismissal on the ground that only a properly sealed indictment tolls the statute of limitations and the limitations period had elapsed before the court unsealed the fourth superseding indictment in February 1996.8
Criminal Rule 6(e)(4) provides:
The federal magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. Thereupon the clerk shall seal the indictment and no person shall disclose the return of the indictment except when necessary for the issuance and execution of a warrant or summons.
Fed. R. Crim. P. 6(e)(4). Rule 6(e) rests on the premise that criminal defendants not yet in custody may elude arrest upon learning of their indictment. Once the court sealed the fourth superseding indictment in this case, arrest warrants were issued against Arsenault, Balsam and Zackular, who had not yet been taken into custody on the federal charges. Contrary to appellants' contention, moreover, the government need not articulate its reasons for requesting that an indictment be sealed, so long as its request is based on a ground set forth in Rule 6(e). See, e.g., United States v. LaLiberte, 131 F.R.D. 20, 20-21 (D. Mass. 1990); United States v. Maroun, 699 F. Supp. 5, 6-7 (D. Mass 1988).
Their further assertion -- that the government utilized the sealing procedure...
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