U.S. v. Butler

• Decision Date: 07 July 1986
• Docket Number: No. 85-7021,85-7021
• Citation: 792 F.2d 1528
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe B. BUTLER, David R. Holmes, Donnie Waites, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1528

792 F.2d 1528

UNITED STATES of America, Plaintiff-Appellee, v. Joe B. BUTLER, David R. Holmes, Donnie Waites, Defendants-Appellants.

No. 85-7021.

United States Court of Appeals Eleventh Circuit.

July 7, 1986.

Al Pennington, Pennington, McCleave & Patterson, Mobile, Ala., for butler.

Barry Hess, Hess, Atchison & Horne, Richard M. Crump, Mobile, Ala., for Holmes.

J. Stephen Salter, Groenendyke & Salter, Birmingham, Ala., for Waites.

J.B. Sessions, U.S. Atty., Gloria Bedwell, Asst. U.S. Atty., C.S. White-Spunner, Jr., Mobile, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Alabama.

Before JOHNSON and HATCHETT, Circuit Judges, and ALAIMO ^*, Chief District Judge.

HATCHETT, Circuit Judge:

Appellants, Joe Butler, Donnie Waites, and David Holmes, challenge their convictions for conspiracy to import marijuana, in violation of 21 U.S.C. Sec. 963, and conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 846 on grounds involving introduction of evidence, severance, statute of limitations, and sufficiency of evidence. We affirm.

FACTS

On the morning of July 12, 1979, a United States Coast Guard cutter, on routine patrol in the Yucatan Straits, boarded the fishing vessel MORNING STAR. After discovering 25,000 pounds of marijuana on board, Coast Guard officers arrested the crew members. None of the appellants were aboard the vessel. An agent of the Drug Enforcement Administration recognized the name of one of the crew members as the same name in which a vehicle was registered which was under surveillance at the Rod and Reel Fish Camp (Rod and Reel) in Ocean Springs, Mississippi. Apparently, however, the government did not at that time conduct any substantial investigation of the link between the seizure of the MORNING STAR and the activities taking place at the Rod and Reel.

In 1982, after being arrested on unrelated charges, Robert Bosarge began providing the government information regarding various drug smuggling ventures. Bosarge, who was also involved in the MORNING STAR smuggling venture, provided the government with information which led to the indictment and arrest of the appellants. The indictment was filed on July 12, 1984, the fifth anniversary of the MORNING STAR seizure. At trial, Bosarge was the government's chief witness. The appellants were convicted on all counts of the indictment.

The appellants assert the following contentions: (1) that the government failed to commence action against them within the applicable statute of limitations; (2) that the government delayed instituting the proceedings in order to prejudice the appellants' defenses; (3) that the district court erred in failing to grant severances; and (4) that the district court erred in admitting certain evidence. Appellants Waites and Holmes also contend that insufficient evidence existed to support their convictions.

1. Statute of Limitations

The appellants' contentions regarding the statute of limitations may be summarized as follows: (1) The indictment was filed on July 12, 1984; therefore, the crimes charged must have occurred within the period between July 13, 1979, and July 12, 1984. (2) The indictment fails to state any date between July 13, 1979, and July 12, 1984, on which acts in furtherance of the conspiracy occurred. (3) The date of the last overt act in furtherance of the conspiracy was July 12, 1979; consequently, the indictment was filed one day late.

Title 18 U.S.C. Sec. 3282 provides that unless otherwise expressly provided by law, no person shall be prosecuted for a non-capital offense "unless the indictment is found ... within five years next after such offense shall have been committed." The appellants contend, and we find that the conspiracy was terminated on July 12, 1979, the date of the MORNING STAR seizure.

This issue is one of first impression in this circuit. Both parties have presented dictum in binding Fifth Circuit cases to support their contentions. In United States v. Davis, 533 F.2d 921, 926 (5th Cir.1976), in which an indictment was filed on September 5, 1974, the court stated, "in order to convict the government must have alleged and proved an overt act in furtherance of the conspiracy occurring on or after September 5, 1969, and thus within the five years prior to the return date of the indictment." (Emphasis added.) Conversely, in United States v. Bethea, 672 F.2d 407, 419 (5th Cir. Unit B 1982), where an indictment was returned on February 21, 1980, the court stated: "[i]n order for [the defendant's] conviction to have been proper, the jury must have found that one of the acts of racketeering activity occurred after February 21, 1975." In addition, in United States v. Parker, 586 F.2d 422, 427 (5th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979), a case in which the last overt act alleged to support the conspiracy occurred on April 16, 1971, the court found that the indictment filed on April 15, 1976, was filed "a matter of a few hours before the applicable statute of limitations ran." (Footnote omitted.)

In United States v. Edwards, 777 F.2d 644 (11th Cir.1985), in which the last overt act alleged occurred on March 6, 1979, the grand jury returned an indictment on March 2, 1984, when "four days remained before the five-year deadline [of 18 U.S.C. Sec. 3282] expired on the drug charges." 777 F.2d at 647 (footnote omitted). Thus, Edwards is as close as this circuit has come to resolving the anniversary date filing of an indictment. Our issue is compounded because the offenses charged are non-overt-act offenses, and thus, the government is not required to allege an overt act in order to obtain a conviction. Therefore, we need also resolve, in a non-overt-act context, the date from which to measure the five-year period within which the government must obtain an indictment.

The above-mentioned cases are not controlling because they do not address our precise issue. The Second Circuit considered this precise issue in United States v. Guerro, 694 F.2d 898 (2d Cir.1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1230, 75 L.Ed.2d 463 (1983). In Guerro, the defendants were charged with conspiracy to sell explosives stolen from the United States, in violation of 18 U.S.C. Sec. 371. The sale occurred on December 29, 1976. The indictment was filed on December 29, 1981. The Second Circuit held that the prosecution was not barred by 18 U.S.C. Sec. 3282, stating that "[t]he long established general rule is that a statute of limitations begins to run on the day following the day on which the event giving rise to the cause of action occurred." 694 F.2d at 901 (citing Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448 (1931)). The court further noted that "[t]his principle has been applied in criminal as well as civil cases. 'The general rule is that the day of the offense or act is excluded and the day on which the indictment is filed is included.' United States v. Mahler, 181 F.Supp. 900, 903 (S.D.N.Y.1960) (footnote omitted)." 694 F.2d at 901-02.

We find persuasive the Second Circuit's decision in Guerro. Because we find that the conspiracy in this case ended on July 12, 1979, we conclude that the indictment filed on July 12, 1984, was timely. Appellants' assertion that the indictment must allege an overt act to satisfy the statute of limitations is without merit. The law is well settled that neither 21 U.S.C. Sec. 846 nor 21 U.S.C. Sec. 963 require that an overt act in furtherance of the conspiracy be alleged. See United States v. Elledge, 723 F.2d 864, 866 (11th Cir.1984).

We hold that on a non-overt-act conspiracy charge, the indictment satisfies the requirements of the statute of limitations if the government alleges and proves, at trial or pretrial, that the conspiracy continued into the limitations period. United States v. Coia, 719 F.2d 1120, 1124 (11th Cir.1983), cert. denied, 466 U.S. 973, 104 S.Ct. 2349, 80 L.Ed.2d 822 (1984). We further hold that on conspiracy charges which require listing of overt acts, the statute of limitations is satisfied if the last overt act alleged and proved occurs within the limitations period. In both instances (non-overt act or overt act), the day following the event is the beginning date for calculation, and the date of the filing of the indictment or information is included. Thus, in this case, the conspiracy continued until July 12, 1979; the day following, July 13, 1979, is the first day in the calculation. The indictment filed on July 12, 1984, was timely.

2. Delay in Prosecution

The appellants also contend that the trial court erred in denying their motions to dismiss because of prejudicial delay in commencing prosecution. They assert three bases in support of their position: Rule 48(b), Federal Rules of Criminal Procedure, the fifth amendment, and the sixth amendment.

Rule 48(b), Fed.R.Crim.P. provides:

If there is an unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.

We are reminded that "prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt. To impose such a duty 'would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.' " United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752, 760 (1977) (quoting in part United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 631 (1966)). The rule thus vests much discretion in the trial court, and dismissal is mandatory only if the defendant's constitutional rights have been violated....