U.S. v. Bufalino
| Citation | 683 F.2d 639 |
| Decision Date | 15 June 1982 |
| Docket Number | No. 846,D,846 |
| Parties | 10 Fed. R. Evid. Serv. 1052 UNITED STATES of America, Appellee, v. Russell BUFALINO, Defendant-Appellant. ocket 81-1474. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Nathaniel H. Akerman, Asst. U. S. Atty., S. D. N. Y., New York City (John S. Martin, Jr., U. S. Atty., S. D. N. Y., Mark F. Pomerantz, Asst. U. S. Atty., New York City, of counsel), for appellee.
Charles P. Gelso, Wilkes-Barre, Pa., for defendant-appellant.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and FRIEDMAN, Chief Judge, United States Court of Claims. *
Russell Bufalino appeals from a judgment of conviction entered in November 1981 in the United States District Court for the Southern District of New York, Kevin T. Duffy, J., after a jury trial. Appellant's principal argument on appeal is that he was denied his statutory right to a speedy trial. We find that this and appellant's other claims are without merit, and we affirm.
Briefly, the events leading to this appeal are as follows. In April 1976, appellant attempted to recover a $25,000 debt from Jack Napoli by threatening to kill him. Unfortunately for appellant, prior to their meeting, Napoli had taken the precaution of concealing a tape recorder on his body, and used it to record Bufalino's conversation. On the basis of Napoli's testimony, Bufalino was indicted for extortion. Anticipating that the government would call Napoli as a witness at trial, appellant arranged with a business acquaintance, James Fratianno, for Napoli's elimination. This arrangement was unsuccessful, possibly because Napoli had joined the Justice Department's Witness Protection Program and had been relocated and given a new identity. In any case, Napoli lived to testify at the extortion trial and Bufalino was convicted of extortion in August 1977 and was sentenced to four years in prison, see United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). While in jail, appellant again sought to murder Napoli, this time with the aid of another prisoner, Steven Fox, who was about to be paroled. This attempt also failed, but in December 1980, Bufalino was indicted for conspiring to obstruct justice. On April 2, 1981, this indictment was superceded by a second indictment charging Bufalino 1 with conspiring to violate the civil rights of a United States citizen, in violation of 18 U.S.C. § 241 (Count One), and endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503 (Count Two).
At trial, James Fratianno, who was by this time also a member of the Witness Protection Program, and Steven Fox, who was in jail on other charges but had been offered the benefits of that program after his release, testified for the prosecution. Bufalino's defense was a general denial. Testifying in his own behalf, appellant denied that he intended to have Napoli killed for his role in the extortion prosecution. He also called several witnesses to contradict elements in the prosecution's case. In rebuttal, the Government played the tape recording of the threat on Napoli's life. 2 The jury convicted Bufalino on both counts, and he was sentenced to 10 years imprisonment and fined $10,000 on Count One and to a concurrent term of five years imprisonment and fined $5,000 on Count Two. Appellant claims that his conviction must be reversed because he was denied his statutory right to a speedy trial, inadmissible testimony was introduced at trial, and certain jury instructions were in error.
Bufalino's speedy trial claim is based on events that occurred between his arraignment on January 9, 1981 3 and the trial, which began on October 19, 1981. Under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., a defendant is entitled to have the charges against him dismissed 4 if he is not brought to trial within 70 days of arraignment, unless the excess days fall within a list of exclusions set out in § 3161(h). 5 Since Russell Bufalino was tried 283 days after he was arraigned, the issue before us is whether 213 of those days are excludable.
The government has presented us with several ways to reckon the excludable periods that arose in this prosecution. Its most forcefully-urged alternative, which it presented at oral argument, involves excluding one day for Bufalino's co-defendant's bail hearing on January 13 under § 3161(h)(1)(J) (hereinafter "(J)"), two days for the weekend preceding the trial under Fed.R.Crim.P. 45(a); and 210 days for motion practice under § 3161(h)(1)(F) ("(F)"). To arrive at this figure for motion practice, the government excludes the entire period from January 20, when defense counsel claims to have discussed a schedule for filing pretrial motions with Judge Duffy's law clerk, to July 28, when the court decided all the pending motions with the exception of the government's motion to sequester the jury. In addition, the government excludes the time from September 11, when it moved for a ruling on the admissibility of evidence relating to Bufalino's connections with La Cosa Nostra, to September 30, when that motion was decided.
Appellant objects to this calculation on several grounds. The most cogent of these is that (J) limits the amount of time excludable for the consideration of pretrial motions. Under that subsection, which is reproduced in note 5 supra, a maximum of 30 days is excludable when a "proceeding concerning the defendant is actually under advisement by the court." In this case, a first round of motions was fully submitted by March 24, and a second round (which was precipitated by the filing of a superceding indictment) was fully submitted by May 26. As a result, even if a full period of advisement is allowed for each set of motions, only 60 of the 126 days between March 25 and July 28 are excludable by reason of subsection (J). The Government reads the statute differently. It contends that (J) and (F) should not be read together, that (F)-which does not impose a numerical limitation on the time it excludes-is the only subsection that applies to pretrial motions, and, apparently, that (J) refers to other (unspecified) proceedings that could concern a defendant.
The application of (J) to the period of time during which a trial judge considers pretrial motions is an issue of first impression in this circuit, see United States v. New Buffalo Amusement Corp., 600 F.2d 368, 373 n.5 (2d Cir.) (1979). While we think that a cursory reading of the two subsections lends some support to the government's position, a careful look at the legislative history of the Speedy Trial Act and its 1979 amendments makes that theory untenable.
We start with the 1974 Act, which provided that:
(h) The following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence:
(1) Any period of delay result from other proceedings concerning the defendant, including but not limited to-
(E) delay resulting from hearings on pretrial motions;
(G) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.
Under the 1974 Act, subsection (E), which is the predecessor of current subsection (F), was limited in scope. It was apparently aimed at excluding only the days on which pretrial motions were argued in court, and not the days from the filing of the motion to the hearing thereon, see Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 692 (1976). Subsection (G), the predecessor of (J), was intended to deal with delay that arose after pretrial motions were submitted, as the following passage from the House Report that accompanied the bill makes clear:
Section 3161(h)(1)(g) provides for the exclusion of time during which any proceeding concerning the defendant is under advisement. The Subcommittee added language which would limit to 30 days the time that each proceeding could be held under actual advisement. The amendment was adopted at the suggestion of Detroit defense attorney Mr. Barris, who said:
Now, I think the language which is now contained within the bill is that a reasonable time should be allowed when a matter is held under advisement by the district judge. This, of course, is a very flexible term, term "reasonable," and I would suggest that a period of 30 days after all oral argument is heard and all briefs have been submitted on the matter under advisement is not an unreasonable period in which the district judge could act, I do not think that this would compel the judge to reach on any particular issue an improvident answer merely because he is held to a time limit of 30 days. And yet if such a provision or restriction were written into the Act, it would effectively plug up one of the loopholes which I conceive to now exist whereby a district judge were he prone to do so, could well "sit on a matter" for an indefinite period of time and thus rather effectively defeat the purposes of the bill.
The Committee concurs with the views of Mr. Barris and also with the Alaska speedy trial rules of court, which provides that no pre-trial motion shall be held under advisement for more than 30 days. This modification in no way affects the prerogative of the court to continue cases upon its own motion where, due to the complexity or unusual nature of the case, additional time is needed to consider matters before the court, as set forth in section 3161(h) (8).
H.R.Rep.No.93-1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7401, 7425-26.
By 1979, the courts had obtained some experience with the Act, and Congress chose to amend certain portions to reflect that experience. Subsection (G) apparently had not caused the courts any problems, and it was not changed in 1979, except for a change in lettering to (J). Subsection (E), however, had led to controversy, and Co...
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