U.S. v. Brooks

• Decision Date: 30 December 1982
• Docket Number: No. 82-1265,82-1270,Nos. 82-1265,No. 82-1270,82-1265,s. 82-1265
• Citation: 697 F.2d 517
• Parties: UNITED STATES of America v. Alphonso BROOKS, Appellant in, and UNITED STATES of America v. Charles REED, a/k/a Bouloud Charles Reed, Appellant in
• Court: U.S. Court of Appeals — Third Circuit

Page 517

697 F.2d 517

UNITED STATES of America v. Alphonso BROOKS, Appellant in No. 82-1265, and UNITED STATES of America v. Charles REED, a/k/a Bouloud Charles Reed, Appellant in No. 82-1270.

Nos. 82-1265, 82-1270.

United States Court of Appeals, Third Circuit.

Argued Oct. 28, 1982.

Decided Dec. 30, 1982.

Steven A. Morley (argued), Asst. Defender, Defender Ass'n of Philadelphia, Philadelphia, Pa., for appellant Brooks.

Burton A. Rose (argued), Peruto, Ryan & Vitullo, Philadelphia, Pa., for appellant Reed.

Peter F. Vaira, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, James M. Becker (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS and GARTH, Circuit Judges, and GERRY, District Judge. ^*

OPINION OF THE COURT

ADAMS, Circuit Judge.

In these appeals, Alphonso Brooks and Charles Reed, the appellants, challenge their convictions for participating in a conspiracy to manufacture and distribute controlled substances. They raise two primary contentions: that their rights under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., were violated by the district court's sua sponte decision to grant a continuance, and that there was a fatal variance between the conspiracy charged in the indictment and that proved at trial. After considering these issues, and the appellants' other contentions, we conclude that all their claims are without merit and that the convictions should be upheld.

I

The indictment in this case charges that a number of persons engaged in a single conspiracy to manufacture and distribute methamphetamine, a non-narcotic controlled substance, in violation of 21 U.S.C. Sec. 846. One member of the group, Robert Barron, became a government witness and the other nine were indicted. Barron appears to have been the chief distributor. He received the drugs from two sources: from Reed, one of the appellants here, and from Rick Jones. Brooks, the other appellant, worked with Jones as a chemist, helping to manufacture the drugs and to obtain the needed supplies. The other defendants were distributors of the drugs; none of them has appealed. ¹

On August 5, 1981, the appellants and their seven co-defendants were indicted. The appellants were charged in the conspiracy count only. Five days after the indictment was filed, the defendants were arraigned. On September 8, counsel for Reed moved to extend the time for filing pre-trial motions. This motion was granted on September 29. On October 1, the court sua sponte ordered a further continuance, concluding that the "ends of justice" served by granting the continuance outweighed the interest of the defendants and the public in a speedy trial because of the complicated nature of the case and the fact that some of the defendants had not yet obtained counsel. A trial date of February 16, 1982 was eventually set. ² Prior to trial, counsel for both Brooks and Reed moved to have the case dismissed for violation of the Speedy Trial Act. These motions were denied by the district court, and the case proceeded to trial before a jury. Both Brooks and Reed were found guilty.

Brooks and Reed raise several challenges to their convictions. Although we have considered all of their claims, only two will be discussed in detail. They first argue that the court's sua sponte continuance deprived them of their rights under the Speedy Trial Act. Second, they allege that the proof adduced at trial did not establish that Reed was part of the same conspiracy as Brooks and Jones; rather, appellants claim that they were two separate and competing drug manufacturers. Inasmuch as the indictment charged a single, unified conspiracy, Brooks and Reed assert that this was a prejudicial variance which warrants setting aside their convictions.

II

Since the defendants were arraigned on August 10, 1981, if no time were excluded between that date and the date of trial, the Speedy Trial Act would have required trial to commence no later than October 19, 1981--seventy days from the date of the arraignment. See 18 U.S.C. Sec. 3161(c). On October 1, 1981, the district court granted the continuance that is at issue here, and the trial did not begin until February 16, 1982--190 days after the defendants' first appearance in court. Brooks and Reed argue that the delay time caused by the continuance is not excludible under the Act, because the district court did not properly set forth its reasons for granting the continuance. Even if the court's statements explaining the delay do satisfy the statute's procedural requirements, the appellants further contend that the reasons set forth by the trial court are substantively insufficient to justify a continuance. If they are correct, the statute would make it necessary to dismiss the indictment against them. We reject both of their arguments, however, and hold that the delay caused by the continuance is properly excluded under the Act, and that the reasons given by the district court are sufficient.

Congress enacted the Speedy Trial Act to "give effect to the Sixth Amendment right to a speedy trial" by setting specified time limits after arraignment or indictment within which criminal trials must be commenced. ³ H.R.Rep. No. 1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong., & Ad.News 7401, 7402. A defendant must be brought to trial within seventy days following his indictment or first appearance before the court, whichever occurs later. 18 U.S.C. Sec. 3161(c). ⁴ If this deadline is not met, the Act requires the district court to dismiss the indictment, either with or without prejudice. 18 U.S.C. Sec. 3162(a)(2). Certain periods of delay are excluded from the calculation of the seventy-day time limit, including "[a]ny period of delay resulting from a continuance ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. Sec. 3161(h)(8)(A). The Act provides that the district court may grant such a continuance sua sponte. Id.

The district court is required to set out its reasons for granting an "ends of justice" continuance on the record, either orally or in writing. 18 U.S.C. Sec. 3161(h)(8)(A). If this is not done, the time is not excludible. See United States v. Carrasquillo, 667 F.2d 382, 385-88 (3d Cir.1981); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir.1979). The Act lists some of the factors the court is mandated to consider when deciding whether such a continuance should be granted:

(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.

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18 U.S.C. Sec. 3161(h)(8)(B).

Two purposes are served by the requirement that district courts set forth their reasons for granting an "ends of justice" continuance. First, Congress wanted to insure that a district judge would give careful consideration when balancing the need for delay against "the interest of the defendant and of society in achieving speedy trial." S.Rep. No. 1021, 93d Cong., 2d Sess. 39 (1974). Second, the requirement provides a record so that an appellate court may review the decision. United States v. Molt, 631 F.2d 258, 262 (3d Cir.1980). If a district court's statements do not comport with these two purposes, they are not sufficient to satisfy the statutory command that "reasons" be set forth "in the record of the case." 18 U.S.C. Sec. 3161(h)(8)(A). Without properly explained reasons, the delay caused by a continuance is not an excludible item.

A form has been adopted by the Eastern District of Pennsylvania that judges may use to record their reasons for granting continuances; the judge may place a check mark on the form next to one or more of three reasons justifying the decision. The form lists two statements which track the language of Sections 3161(h)(8)(B)(i) and (ii), and contains a third line, marked "other," which provides space for the judge to write in some alternative basis for granting the continuance. In the proceeding at issue here, the district court checked both of the pre-typed reasons and added no additional comments to the form.

The first reason printed on the form is "[t]he failure to grant such a continuance ... would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice." This is one of the factors Congress insists that the court consider. It is, however, a highly subjective and extremely broad guideline. It supplies the appellate court with little or no indication of the factual basis which prompted the district judge to grant the continuance. ⁵

A second reason is provided by the form: that "[t]he case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution and other complexity, that it is unreasonable to expect adequate preparation within the periods of time established." This provision is more helpful to a reviewing court than the first reason, since it does give some indication of the problems raised by the actual situation presented. Because the statement combines several factual concerns, however, not all of which may be relevant to the district court's decision in any given case, it still may not be sufficient, by itself, to provide clear enough explication of the district court's reasoning to enable an appellate court properly to review the decision to grant a continuance. For the reason set forth below, we need not reach the difficult question whether this...