U.S. v. Bowers

• Decision Date: 03 December 1987
• Docket Number: No. 87-3108,87-3108
• Parties: 24 Fed. R. Evid. Serv. 421 UNITED STATES of America, Plaintiff-Appellee, v. Rex Bryant BOWERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 607

834 F.2d 607

24 Fed. R. Evid. Serv. 421

UNITED STATES of America, Plaintiff-Appellee, v. Rex Bryant BOWERS, Defendant-Appellant.

No. 87-3108.

United States Court of Appeals Sixth Circuit.

Argued Oct. 1, 1987.

Decided Dec. 3, 1987.

Robert F. Barnes, Jr. (argued), Cincinnati, Ohio, Rex Bryant Bowers, Texarkana, Tex., for defendant-appellant.

John DiPuccio (argued), Asst. U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Before: KEITH, MILBURN and NORRIS, Circuit Judges.

PER CURIAM.

Defendant, Rex Bryant Bowers, appeals his conviction of three counts of passing altered postal service money orders, in violation of 18 U.S.C. Secs. 2 and 500.

Defendant was arrested on April 30, 1986, pursuant to an arrest warrant issued by the postal inspector. The government filed a motion for pretrial detention on April 30. A detention hearing was held on May 2 and the United States Magistrate denied bond. A written order of pretrial detention was filed on May 5. The United States Attorney assigned to the case and counsel for defendant then entered plea negotiations. A tentative plea agreement was reached in which defendant would waive indictment by a grand jury and plead guilty to a one-count information. Defense counsel promised to review the agreement with his client. Accordingly, the United States Attorney prepared the proposed agreement and information. Arraignment on the information was scheduled for May 19, but defense counsel and defendant failed to appear. Arraignment was rescheduled for May 21. At that time, defendant advised the magistrate and the United States Attorney that he did not wish to plead guilty and the information and plea agreement were withdrawn. Because the grand jury was not currently in session, the matter was scheduled to be presented to the grand jury at its next session on June 5.

Defendant filed a motion for release from custody on June 2, alleging that more than thirty days had passed since the date of his arrest, and he had not yet been indicted. The motion was denied on June 4, and the grand jury returned a three-count indictment against defendant on June 5.

The evidence at trial showed that, on three separate occasions, defendant raised the monetary face value of a postal service money order, and passed it to a motel clerk in payment of his motel bill. Defendant used his own name and driver's license when registering at the motels. He was identified as the passer by some of the motel clerks in a pretrial photographic spread and at trial. Defendant was sentenced to four years on each count, to be served consecutively.

Defendant first contends that he was entitled to release from custody under the "speedy trial" provisions of 18 U.S.C. Sec. 3161(b), since the indictment charging him was filed thirty-five days from the date of his arrest, rather than thirty days as required by the statute. In overruling defendant's motion for release from custody, the district court, following a hearing, concluded that defense counsel and the government had entered into a tentative plea agreement, and that defense counsel failed to report to the United States Attorney his client's rejection until fifteen days later, by which time it was no longer possible to obtain an indictment within the allotted thirty days. The court expressed its concern that a defendant not be permitted to "sandbag" the government under these kinds of circumstances.

Although the indictment appears to have been filed five days outside the thirty-day limit, the statute provides for excluding periods of delay in computing whether the thirty-day limit has been satisfied. Delay attributable to a pretrial motion, from filing until it has been heard and disposed of, is excluded. 18 U.S.C. Sec. 3161(h)(1)(F). Here, on April 30, 1986, the government filed a motion seeking pretrial detention, and the motion was orally granted on May 2; thus, May 1 and 2 are excludable. In addition, another two days are excludable. On May 14, notice was issued for defendant's arraignment at 10:00 a.m., on May 19. Defense counsel was absent from his office from May 13 until noon on May 19 and, thus, neither he nor defendant attended the hearing. They did attend the rescheduled arraignment hearing on May 21. Counsel conceded in oral argument that days attributable to their nonappearance should not be charged to the government. We conclude that May 19 and 20 can be excluded either as a period of delay resulting from the absence or unavailability of the defendant, within the contemplation of 18 U.S.C. Sec. 3161(h)(3)(A) [see United States v. Stafford, 697 F.2d 1368, 1375 (11th Cir.1983) ], or as a period of delay resulting from a proceeding concerning the defendant pursuant to 18 U.S.C. Sec. 3161(h)(1), under the rationale set out below. Clearly, May 21, the day of the arraignment, is excluded as a proceeding concerning the defendant. When these time periods are excluded, defendant's indictment was filed within thirty days.

The record also supports the district court's determination that defendant's indictment was timely, based upon its finding that a tentative plea agreement had resulted from negotiations between defense counsel and the government. Although defendant is correct when he points out that the exclusion of time for plea agreements which is spelled out in 18 U.S.C. Sec. 3161(h)(1)(I) is for delay resulting from consideration by the court of a proposed plea agreement, the periods of delay listed in 18 U.S.C. Sec. 3161(h)(1)(A) through (J) are only examples of delay "resulting from other proceedings concerning the defendant" and are not intended to be exclusive. All the examples listed are of delaying circumstances that ought not be charged to the government. Similarly, the trial court was warranted in declining to charge this...