U.S. v. Budzyna

• Citation: 666 F.2d 666
• Decision Date: 04 December 1981
• Docket Number: No. 81-1082,81-1082
• Parties: UNITED STATES of America, Appellee, v. Raymond S. BUDZYNA, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 666

666 F.2d 666

UNITED STATES of America, Appellee, v. Raymond S. BUDZYNA, Defendant, Appellant.

No. 81-1082.

United States Court of Appeals First Circuit.

Argued Sept. 10, 1981.

Decided Dec. 4, 1981.

Richard D. Glovsky, Boston, Mass., with whom Hanify, King & Glovsky, Boston, Mass., M. Robert Revelli, and Abodeely, Baylis & Revelli, P. C., Worcester, Mass., were on brief, for defendant, appellant.

Thomas J. Drinan, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Raymond S. Budzyna was convicted in the district court after a jury-waived trial of having violated 18 U.S.C. § 1014, which makes it a crime for a person knowingly to make false statements in a loan application to a federally insured bank. The alleged false statements, made in connection with an automobile loan application, concerned Budzyna's former employment. Budzyna now appeals from the conviction.

On January 10, 1978, Budzyna applied for an automobile loan for $5,000 at the Worcester County National Bank. Collateral was to be a 1973 Mercedes Benz. The bank approved the loan and advanced the funds to Budzyna, and he in turn endorsed the certificate of title to the car over to the bank and left the certificate with the bank.

On March 30, 1978, Agent Ryall of the FBI, approached an official of the Worcester bank and made inquiries concerning the nature and amount of the loan made to appellant. At this time bank officials voluntarily surrendered the certificate of title, and copies of the loan application and note, to Agent Ryall. ¹

On June 27, 1978, Budzyna visited the bank and requested the return of the certificate of title. Upon being advised that the certificate had been surrendered to Agent Ryall, appellant called the local office of the FBI, spoke with Agent Ryall and requested the return of the certificate of title. Agent Ryall confirmed that he held the certificate of title and told appellant to stop by the Worcester FBI office to discuss the matter.

When appellant arrived at the FBI office, Agent Ryall informed him that the FBI was conducting an investigation of the bank loan and that until permission to release the certificate was received from the U.S. Attorney's office the FBI intended to retain the document as evidence. Agent Ryall then asked appellant to sign a waiver of rights form and to answer some questions concerning the loan. When appellant at first refused either to sign the proffered form or to respond to Agent Ryall's inquiries, Agent Ryall left the room, called the U.S. Attorney's office and received instructions to return the certificate of title to appellant.

What happened next was disputed at the trial. Budzyna testified that the agent reappeared and waived the certificate "in an almost tempting fashion." According to Budzyna, "If I would give him a statement he would give me the title"; Budzyna intimates in his testimony that he thereafter signed the waiver form and made certain admissions only because of his desire to obtain the certificate in order to consummate a deal that day relative to the car. Agent Ryall, buttressed by testimony from another agent who had been present, presented a different version. Ryall testified that after telephoning the Assistant U.S. Attorney he typed up a receipt, returned to the room where Budzyna awaited him, and told Budzyna that he had been instructed to return the title to him, and that he intended to do so at that time whether Budzyna talked to him about the loan or not. Both agents denied having threatened or coerced Budzyna, and in particular denied having required him to speak as a quid pro quo for return of the title document. According to the agents, the title document was returned to Budzyna before he made his incriminating remarks; and Budzyna also read and signed the waiver of rights form before doing so.

On December 11, 1979, Special Agent Ryall executed a complaint against appellant, charging him with a violation of 18 U.S.C. § 1014. On January 7, 1980 (hereinafter all dates are within 1980 unless otherwise specified), appellant was notified of both the complaint and of scheduled bail and probable cause hearings. On January 14, appellant requested a continuance, and the case was continued until February 6, at which time the bail and probable cause hearings were continued due to the illness of the magistrate. A one count indictment was returned on May 8, appellant was arraigned on June 17, and trial was scheduled for July 21. On the original trial date, the government, citing the absence of a material witness, requested a continuance, and the trial was rescheduled for September 4. On September 1, the government requested an additional delay due to the continued unavailability of a witness. The motion was allowed, and trial was set for October 14. ²

On October 14, an additional continuance was granted when the government informed the court that it was seeking a superseding indictment which would result in the partial dismissal of count one of the original indictment. On October 17, a superseding indictment was returned, and appellant requested a continuance in order to file several motions. This request was granted, and an excusable delay was permitted for nine days. On October 29, appellant filed several pretrial motions, ³ including a motion to dismiss the superseding indictment on the ground that the government had failed to conduct the case expeditiously. This motion was denied, and on November 6, appellant was tried without a jury and found guilty of violating 18 U.S.C. § 1014. On January 12, 1981, the district court entered judgment and sentenced appellant to a fine of $2,000.

1. Application of the Speedy Trial Act

Appellant argues that the Speedy Trial Act mandates the dismissal of his conviction. ⁴ He says that by permitting 90 days to elapse between the issuance of the complaint and the return of the indictment, the government violated 18 U.S.C. § 3161(b) which, in relevant part, provides that, "(a)ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." Appellant further contends that, by permitting 142 days to elapse between the date of arraignment and the time of trial, the government violated 18 U.S.C. § 3161(c) which provides,

(c)(1) In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate on a complaint, the trial shall commence within seventy days from the date of such consent.

(2) Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.

The government denies that the Speedy Trial Act mandates dismissal. It points out that the case was commenced by summons on January 7, 1980, and that the initial indictment was returned on May 8, 1980, both dates preceding the effective date of the mandatory dismissal sanctions of section 3163(c). ⁵ Appellant responds by pointing out that he was tried and convicted under a superseding indictment which was filed after July 1, 1980. This he contends subjects the entire proceeding to the sanction provisions of the Act.

We agree with the government that the sanction provisions of the Act do not reach this case. To be sure, 18 U.S.C. § 3163(c) provides that the mandatory dismissal provisions "shall become effective and apply to ... all informations or indictments filed, on or after July 1, 1980." But where, as here, the same case involves both an original and a superseding indictment, the question becomes which indictment should control for section 3163(c) purposes. We do not think Congress intended the date of a superseding indictment, constituting a mere amendment of the original, to take priority over the original for purposes of determining whether or not the sanction provisions apply to the ongoing case.

The present case was begun by the indictment returned on May 8, 1979. Where that indictment was filed before July 1, 1980, the case was not subject to sanctions for noncompliance with speedy trial provisions. The superseding indictment merely reformulated the earlier indictment by dropping one of the false statements being charged (because, we are told, of the disappearance of a government witness needed to sustain the matter). Otherwise the new indictment alleged the same conduct and the same criminal charge in what was, for all practical purposes, the same case.

The implemental plan adopted by the District of Massachusetts ⁶ expressly provides for the original indictment to determine the time limits for the commencement of trial. Thus the District Court Plan at 4c(3), (4) provides,

(3) If the original indictment or information is pending at the time the subsequent charge is filed, the time limit for commencement of trial on the subsequent charge shall be the time limit for commencement of trial on the original indictment or information.

(4) If the original indictment or information was dismissed on motion of the United States Attorney before the filing of the subsequent charge, the time limit for commencement of trial on the subsequent charge shall be the time limit for commencement of trial on the original indictment or information, as extended by a period equal to that during...