U.S. v. Bullock, 76-1772

• Decision Date: 16 May 1977
• Docket Number: No. 76-1772,76-1772
• Citation: 551 F.2d 1377
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Russell BULLOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1377

551 F.2d 1377

UNITED STATES of America, Plaintiff-Appellee, v. Gary Russell BULLOCK, Defendant-Appellant.

No. 76-1772.

United States Court of Appeals Fifth Circuit.

May 16, 1977.

F. Irvin Dymond, New Orleans, La., for defendant-appellant.

Douglas M. Gonzales, U. S. Atty., Stephen A. Mayo, Cheney C. Joseph, Jr., Asst. U. S. Attys., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before MORGAN and HILL, Circuit Judges, and NOEL ^*, District Judge.

JAMES C. HILL, Circuit Judge:

On July 18, 1975, appellant Gary Bullock and one Gerald Kinchen were indicted for one count, Count I, of conspiring to possess marijuana with intent to distribute it; and one count, Count II, of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1).

From the jury verdict and judgment entered thereon, finding appellant guilty of both counts as charged, comes this appeal from the District Court for the Middle District of Louisiana.

Appellant challenges his conviction on the following contentions:

(1) The trial court erred in denying appellant's motion to dismiss for unnecessary delay in commencing the trial.

(2) The trial court erred in denying appellant's motion to dismiss for failure of the Government to comply with the court's order for discovery.

(3) The trial court erred in denying appellant's motion to dismiss for failure of the Government to produce Jencks Act material two days prior to the commencement of trial.

(4) The trial court erred when it permitted the Government's expert witness to give an expert opinion as to the nature of the substance allegedly possessed by appellant.

(5) The trial court erred in denying appellant's motion for a judgment of acquittal because the Government failed to present substantial evidence that the substance made the basis of the instant prosecution was marijuana.

(6) The trial court erred in charging the jury that appellant was charged with violating the general conspiracy statute, 18 U.S.C. § 371, when appellant was in fact charged with violating 21 U.S.C. § 846, the narcotics conspiracy statute.

I. Unnecessary Delay?

Appellant's contentions with respect to pre-trial delay invoke but one of the three major guides to prompt trial. In this general area, judicial investigation starts with the Sixth Amendment to the Constitution. Obviously, there has been no Sixth Amendment violation in this case and appellant has not so argued.

The second source of guidance, the Speedy Trial Act, 18 U.S.C. § 3161 et seq., spawns the third, the District Court's own Rule 50(b) Plan for Achieving Prompt Disposition of Criminal Cases. While the Speedy Trial Act and District Court Plans are closely related, they are not, and should not be thought of as, the same. The briefs and oral arguments in this case and others before our Court disclose a lack of sensitivity of the bar, and perhaps the bench, to the distinct differences. This inclines us towards a brief statement of the distinctions between them.

The Speedy Trial Act was enacted on January 3, 1975. It represents a major congressional effort to implement the Sixth Amendment's goal of insuring that those who are accused of crime are brought speedily to trial. It expresses the public's interest in prompt conviction of the guilty and the accused's interest in prompt acquittal when the charge is not supported by the evidence. It is not designed to provide new substantive defenses in criminal cases, though, in its mechanical application, some accused of crime are afforded varying measures of relief when the Act's goals are not attained.

During the early years under the Act, the availability of substantial rights to accuseds are confined to those who are kept in confinement awaiting trial and those who have been declared "high risk offenders." 18 U.S.C. § 3164. As to these, the Act clearly mandates that they shall be brought to trial no later than 90 days "following the beginning of such continuous detention or designation of high risk by the attorney for the Government." 18 U.S.C. § 3164(b).

Furthermore, sanctions for failure to meet these time limitations for "custody" and "high risk" defendants are spelled out in the Act. 18 U.S.C. § 3164(c). Subject to specified qualifications, "custody" defendants must be admitted to bail; "high risk" defendants must have their conditions of release reviewed. 18 U.S.C. § 3164(c). The mandatory, substantial relief, provisions of the Act with respect to these classes of defendants have produced the more noteworthy cases ¹ and have thus produced the more reasoned criticism of the Act, itself. ²

Here, however, we are not dealing with a defendant who was classified as "high risk" or who was in custody pending trial. He was admitted to pre-trial release on bail.

The operation of the Act in such cases is vastly different. Until July 1, 1979, the Act states what is to be achieved, 18 U.S.C. § 3161(f) and (g), but furnishes no defendant with any new defense should our courts fall short of the goal. Insofar as the Act is concerned, those engaged in the administration of criminal justice (United States Attorneys, defense counsel, judges, court administrators, clerks of court and others) are given what may be likened unto "job assignments" in industry. Our "production quotas" are set out and we are told to achieve them, but the Act, itself, provides no sanctions should we fall short. See 18 U.S.C. § 3161(f) and (g), 18 U.S.C. § 3163(c).

That is not to say, however, that there shall be no sanctions during these "transitional years." The Act demands self-discipline. Each district is required to convene a planning group for the formulation of a Plan for Achieving Prompt Disposition of Criminal Cases, and such a Plan under Rule 50(b), F.R.Cr.P., shall be adopted under which the speedy trial goals for each transitional year may be achieved. See 18 U.S.C. § 3165 et seq.

Thus, to determine the impact of the Speedy Trial Act on a case such as the one before us, we must look to the Plan adopted by the district court for the particular district from which the appeal is taken. It is a binding rule of court, spawned by but not the same as, the Act.

A comparison of the Speedy Trial Act with the Plan under consideration yields significant and highly apparent differences. For the "transitional year" involved in this case, the Act directs that the trial of a defendant like appellant, who is not in custody, commence within 180 days from arraignment. The Plan, adopted by the United States District Court for the Middle District of Louisiana, on the other hand, mandates a trial within 90 days from the entering of a plea of not guilty. Rule 2(b)(c). This is a goal which may be commendable or which may be overly burdensome. (It may even be both.) However it be evaluated, it is what the Court imposes upon itself and not, in this instance, what the Congress imposed upon the Third Branch.

In the instant case, the Plan for the United States District Court for the Middle District of Louisiana for Achieving Prompt Disposition of Criminal Cases became effective on September 29, 1975, for those defendants, like appellant, whose cases were then pending on the docket of the Court. In appellant's case, then, the 90 day period began to run on September 29, 1975 even though he had entered pleas of not guilty at an earlier date.

Although it is contemplated that in the ordinary case, the 90 day limit from arraignment to trial shall be observed, it is recognized that in certain cases these time limits may fall too harshly on one of the parties. Accordingly, the Plan, like the Speedy Trial Act, an underlying source of law for the Plan, provides for extension of the time limitations.

Rule 3 of the Plan for the Middle District of Louisiana provides in pertinent part as follows:

Any period of time prescribed by these rules may be extended by the Court, . . . Among other reasons, the Court may take into consideration:

(a) A reasonable period of delay resulting from other proceedings concerning the defendant, including, but not limited to, . . . extraordinary pre-trial motions . . . and the period during which such matters are under consideration.

An examination of this provision reveals that the Court is granted a broad discretion in determining what may be conveniently termed, excludable delay.

In the instant case, both parties have agreed that but for a certain 16 day period of time, the 90 day time limitation would have been met.

Appellant contends that the Government's filing of an uncontested motion to sever a defendant named Richard Rogers from the trial of appellant and his co-defendant Kinchen, which consumed a period of 16 days between the submission and the granting of the motion, could not be considered excludable delay under the Plan. We do not agree.

On July 18, 1975, appellant and co-defendant Kinchen were indicted. On October 10, 1975, a superceding indictment was returned, adding Rogers as a defendant in Counts I and II of the original indictment and adding a Count III pertaining to Rogers alone.

Defendants Bullock and Kinchen then filed a motion to sever Count III from the indictment. This motion was granted on November 3, 1975.

The Government not wishing to try defendant Rogers in two separate trials, on November 19, 1975, filed a motion to sever the trial of defendant Rogers from the trial of defendant Kinchen and appellant. Sixteen days later, on December 4, 1975, the motion was granted.

On January 12, 1976, appellant filed a motion to dismiss the indictment for unnecessary delay in bringing the case to trial. The Magistrate held a hearing on the motion and recommended denial, which recommendation, the District Court adopted.

On appeal, appellant renews his contention that the 16 day period could not be considered excludable delay and that dismissal of the indictment is required by the Act...