U.S. v. Bayless, 90-2655

• Decision Date: 29 August 1991
• Docket Number: No. 90-2655,90-2655
• Citation: 940 F.2d 300
• Parties: UNITED STATES of America, Appellee, v. James BAYLESS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 300

940 F.2d 300

UNITED STATES of America, Appellee, v. James BAYLESS, Appellant.

No. 90-2655.

United States Court of Appeals Eighth Circuit.

Submitted April 10, 1991.

Decided July 25, 1991.

Rehearing Denied Aug. 29, 1991.

James C. Ochs, argued (Clifford Schwartz, on brief), St. Louis, Mo., for appellant.

Howard J. Marcus, St. Louis, Mo., for appellee.

Before BOWMAN and FRIEDMAN ^*, Circuit Judges, and HENLEY, Senior Circuit Judge.

BOWMAN, Circuit Judge.

Appellant James Bayless was convicted by a jury of conspiring to distribute cocaine, and possessing it with the intent to distribute it. He was sentenced to ten years in prison. On appeal, he challenges both his conviction and his sentence. We affirm.

On June 3, 1988, Donald McCloskey, John McConnell, Damon Dobbins, Deborah Byrne, David Dixon, and Bayless were indicted for conspiracy to possess marijuana and cocaine with intent to distribute. McCloskey, McConnell, Dobbins, and Byrne were in custody within five days of the indictment and were taken to trial without Dixon or Bayless, neither of whom could be found. On February 9, 1989, all four were convicted.

Unbeknownst to the U.S. Marshal service or the Drug Enforcement Agency, Bayless had been living under the name of "Jonathan Delmonico" in Florida since 1985. ¹ On November 22, 1988, he was arrested under that name on a state drug charge, but because he agreed to cooperate with the authorities, he was released from custody on a reduced bond. It was not until July 18, 1989, that the Florida authorities learned that Jonathan Delmonico was, in fact, James Bayless and that he was wanted on a Federal warrant from the Eastern District of Missouri. Upon learning this, they again placed him under arrest. Two days later they took him before a state judge. That same day his bail bondsman formally surrendered his bond, and the following day the U.S. Marshal's Office filed a detainer against him with the Florida authorities. On July 31, 1989, his Florida bond was revoked pursuant to a motion by the state of Florida.

As a consequence of the above proceedings, Bayless remained in custody in Florida until his acquittal on the state charge in the early part of February 1990. At that time, the United States Marshals again arrested him and returned him to the Eastern District of Missouri. There he was arraigned and his trial date was set for May 21, 1990. The magistrate ² ordered that he be held without bond. Then, less than two weeks before his scheduled trial date, the government filed a superseding indictment, to which Bayless responded by filing his first motion for a continuance. The District Court ³ granted this motion and reset the trial date for July 2, 1990. Meanwhile, the court conducted a hearing to reconsider whether Bayless should be held without bond. It later fixed his bond at $100,000. On June 14, 1990, Bayless posted bond and was released. Shortly thereafter the District Court moved the trial date to July 5, 1990.

On July 3, Bayless again moved for a continuance, arguing that he had "reason to believe that he could locate Dixon and could force him to testify." Appellant's Brief at 26. He did not explain how he proposed to accomplish these tasks, given that Dixon was one of Bayless's indicted co-conspirators and had been a fugitive since he was indicted in June 1988, nor did he provide the court with an affidavit of Dixon's expected testimony. Two days later, on the first day of trial, the District Court denied Bayless's motion for a continuance.

After a two-day trial the jury found Bayless guilty. The District Court denied his motion for a new trial and sentenced him to ten years in prison without parole. On appeal he argues first, that the District Court abused its discretion when it denied his July 3 motion for a continuance; second, that the District Court lacked jurisdiction to hear the case; third, that irrelevant and prejudicial testimony and exhibits were admitted erroneously into evidence; and fourth, that the District Court violated his constitutional rights by failing to credit his sentence for the time that he was held in jail, without bond, in both Florida and Missouri. We disagree with Bayless's first three arguments, and we find his fourth argument is not properly before us. We therefore affirm his conviction and sentence.

I.

Bayless's argument that the District Court abused its discretion by denying his motion for a continuance is meritless. In support of his position he argues that the government violated Rules 5 and 9 of the Federal Rules of Criminal Procedure by failing promptly to take him before a federal magistrate after his July 18, 1989 arrest. ⁴ He also argues that the government violated his rights under the Fifth and Eighth Amendments by directing the Florida authorities to hold him without bond. ⁵ Finally, he argues that his rights under these amendments were violated further in the Eastern District of Missouri where he was not permitted to post bond until three weeks before his trial. ⁶ He asserts that the cumulative effect of these violations somehow impaired his ability to locate Dixon, who, he claims, would have provided testimony essential to his defense. Accordingly, he concludes that it was an abuse of discretion for the District Court to deny his motion for a continuance. ⁷ Bayless's position is unsound.

"A trial judge has broad discretion in deciding whether to grant or deny a motion for a trial continuance." United States v. Heine, 920 F.2d 552, 555 (8th Cir.1990). "To determine whether the trial court has abused its discretion, the reviewing court will consider factors including counsel's time for preparation, conduct of counsel at trial and presence of prejudice in the record." Nerison v. Solem, 715 F.2d 415, 418 (8th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 220 and 465 U.S. 1026, 104 S.Ct. 1283, 79 L.Ed.2d 686 (1984). Here, Bayless's only complaint is that the denial of his motion for a continuance prejudiced his defense by preventing him from locating a witness material to his defense. A review of the record, however, does not support such a conclusion.

Bayless was returned to St. Louis by March 1990, and he had been represented by counsel there since September of the year before. He filed his first motion for continuance, which was granted, only four days before his original trial date of May 21, 1990. In that motion he did not mention that he needed to locate Dixon, that he thought he could locate Dixon, or that Dixon's testimony was essential for him to be able to get a fair trial. In the six weeks between the original trial date and the second trial date on July 2, Bayless never mentioned that he needed more time to locate Dixon. Then, just two days before his final trial date, he moved for a continuance, arguing that he had reason to believe he could locate Dixon and force him to provide favorable testimony, despite the fact that Dixon had been indicted along with Bayless and despite the fact that Dixon had been hiding from the law for over two years. Bayless did not offer any reasons that would cause the District Court, or this court, to believe that he indeed could locate Dixon or that Dixon would testify favorably. He also made no effort to reconcile his position with the fact that he originally had appeared to be ready to go to trial on May 21, even though he had not located Dixon and had not been released on bond. Moreover, he made no effort to explain why he had failed to mention, until two days before his final trial date, his asserted need to locate Dixon. In these circumstances, we cannot conclude that the District Court abused its discretion by denying Bayless's motion for a continuance. Cf. United States v. Ware, 890 F.2d 1008 (8th Cir.1989) (finding no abuse of discretion in District Court's denial of defendant's pro se motion for continuance, made for the purpose of permitting him to study the law, when the defendant's motion to proceed pro se had been granted just two days before trial).

II.

Bayless argues that the District Court lacked jurisdiction to hear his case. We disagree. Bayless bases this argument upon the Interstate Agreement on Detainers Act, 18 U.S.C. app. Sec. 2 (1988), ⁸ which provides in part that:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution ..., and whenever during the continuance of the term of imprisonment there is pending in any other ... State any untried indictment ... on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment....

18 U.S.C. app. Sec. 2 Art. III(a). Bayless insists that the 180-day limitation period of this act should be applied to his case because, first, he was not taken before a federal magistrate until long after his July 18, 1989 arrest, and thus it was the government's violation of his rights that prevented him from invoking the act; and second, the motions filed by his St. Louis counsel in September 1989 constitute "substantial compliance" with the affirmative requirements of the act and thus are sufficient to invoke the act. He reasons that because he invoked the act in September 1989, and because he was not tried until July 5, 1990, the act's 180-day limitation period necessarily expired prior to his trial. He therefore concludes that the District Court was without jurisdiction to hear his case. ⁹

Bayless, however, overlooks the plain requirements of the statute. By its terms it applies only to persons who have "entered upon a term of imprisonment in a penal or correctional institution," 18 U.S.C. app. Sec. 2 Art. III(a), and we have held that pretrial detainees are not...