U.S. v. Dennis

• Decision Date: 01 October 1984
• Docket Number: Nos. 83-2383,83-2433,s. 83-2383
• Citation: 737 F.2d 617
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher DENNIS and William McCoy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 617

737 F.2d 617

UNITED STATES of America, Plaintiff-Appellee, v. Christopher DENNIS and William McCoy, Defendants-Appellants.

Nos. 83-2383, 83-2433.

United States Court of Appeals Seventh Circuit.

Argued April 9, 1984.

Decided June 14, 1984.

Certiorari Denied Oct. 1, 1984.

See 105 S. Ct. 215.

David R. Freeman, Federal Public Defender, East St. Louis, Ill., William D. Stiehl, Jr., Belleville, Ill., for defendants-appellants.

Laura J. Jones, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before ESCHBACH and FLAUM, Circuit Judges, and JAMESON, Senior District Judge. ^*

JAMESON, Senior District Judge.

Christopher Dennis and William McCoy filed separate appeals from a judgment of conviction following a jury verdict finding both defendants guilty of conveying homemade knives within the United States Penitentiary at Marion, Illinois, in violation of 18 U.S.C. Sec. 1792. The appeals were consolidated for argument. We affirm the conviction of both defendants.

I. Factual Background

On May 23, 1982 prison officials observed two inmates attempting to climb on to the roof of the north corridor at the federal penitentiary in Marion, Illinois. When the alarm sounded, both inmates dropped to the ground and walked away. As they were leaving the north corridor, each dropped an object from inside his coat to the ground. Officials cleared and searched the area immediately and discovered two homemade knives. They also identified Dennis and McCoy as the two inmates.

II. Contentions on Appeal

Both appellants contend that the district court committed reversible error in denying (1) their request for a recess following voir dire to permit the defendants and their counsel to confer out of the jury's presence regarding the exercise of peremptory challenges; (2) a motion for mistrial after a government witness testified to an "escape attempt", and (3) motions for judgment of acquittal. In addition, appellant Dennis contends that he was denied a speedy trial under the Speedy Trial Act of 1974 as amended, 18 U.S.C. Sec. 3161.

III. Request for Recess after Voir Dire

At the conclusion of voir dire, appellants' counsel requested a recess to confer with their clients out of the jury's presence about the use of their peremptory challenges. The court denied the request but granted additional time to confer in the courtroom. Appellants contend that they were denied a fair trial "because of the restrictions placed on their ability to confer with counsel concerning the exercise of their peremptory challenges."

In United States v. Mackey, 345 F.2d 499 (7th Cir.), cert. denied, 382 U.S. 824, 86 S.Ct. 54, 15 L.Ed.2d 69 (1965), we held:

The manner in which peremptory challenges are exercised is within the sound discretion of the trial court, and in the absence of violation of settled principles of criminal law, federal statutes, or constitutional rights of defendant, such discretion is not abused.

Id. at 502. (citations omitted). Appellants fail to point out any settled principle of criminal law, federal statute or constitutional right contravened by the court's practice in this case. We find no abuse of discretion by the district court. Moreover, appellants have failed to demonstrate that they suffered more than inconvenience in conferring with counsel out of the hearing but in the presence of the jury. Any conceivable error was harmless and not a ground for reversal. Fed.R.Crim.P. 52(a); 28 U.S.C. Sec. 2111.

IV. Motion for Mistrial

Prior to trial the parties agreed that no comments would be made and no testimony elicited concerning the escape attempt since the defendants had not been charged with escape. At no time during its opening statement or closing arguments did the prosecution allude to an attempted escape. On direct examination, however, one government witness mentioned "an escape attempt." Defendants moved for a mistrial, but the court denied the motion after the government explained that the testimony was inadvertent and sought to caution the witness against returning to the prohibited subject. Defendants objected to these preventive efforts, and the district court "let it go at that." ¹ Apparently, no cautionary instruction was requested or given and no motion to strike was made.

In United States v. Phillips, 640 F.2d 87, 91 (7th Cir.), cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981), this court held that "[d]enial of a motion for mistrial will not be reversed unless the denial amounts to an abuse of discretion by the trial court." We affirmed denial of the motion in Phillips under facts considerably more compelling than those argued here. Consequently, we find no abuse of discretion here when the court was evidently willing to cure any possible prejudicial effect of the witness's remark but was met by defense objections.

V. Motion for Judgment of Acquittal

At the close of the government's case and again at the close of all of the evidence, appellants moved for acquittal. The district court denied both motions. Appellants contend "in light of the lack of evidence introduced by the government ... no rational trier of fact could have found proof of guilt beyond a reasonable doubt."

The standard for appellate review of a motion for judgment of acquittal is the same as the standard applied by the trial court:

The rule has long been established that when ruling on a motion for acquittal the test that the court must use is whether at the time of the motion there was relevant evidence from which the jury could reasonably find [the defendant] guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to the Government ... bear[ing] in mind that "it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences."

United States v. Beck, 615 F.2d 441, 447-48 (7th Cir.1980) (quoting United States v. Blasco, 581 F.2d 681, 684 (7th Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978)). The record contains ample evidence from which a jury reasonably could and did find the appellants guilty beyond a reasonable doubt. Correctional officers testified that Dennis and McCoy were observed through binoculars when they each dropped an object to the ground after leaving the north corridor wall. Officers immediately searched the area and found the two knives. Appellants contend that no evidence connects them with the knives. The jury, however, clearly could have drawn a reasonable inference that the objects appellants dropped were in fact the knives. This inference is particularly appealing because officers testified that no other objects were found in the area. Certainly the evidence was circumstantial, but we conclude that it was "relevant evidence from which the jury could reasonably find [the defendants] guilty beyond a reasonable doubt." See also United States v. Moya, 721 F.2d 606, 609-10 (7th Cir.1983) (reaffirming the "reasonable doubt" test in reviewing sufficiency of evidence). The district court, therefore, did not err in denying appellants' motion for judgment of acquittal.

VI. Speedy Trial

Appellant Dennis contends that his conviction must be reversed because his trial did not begin within the 70-day period provided under the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1). ² The government offers two responses: (1) Dennis' trial was timely if we exclude, under 18 U.S.C. Sec. 3161(h)(7), the time necessary to bring McCoy to trial; and (2) Dennis' trial was also timely if we exclude, under section 3161(h)(1)(F), the time devoted to pretrial motions.

Both Dennis and McCoy were indicted by a grand jury on January 20, 1983 and joined for trial. Dennis' 70-day limit began to run on January 26 when he was arraigned before the United States Magistrate, who scheduled his trial for March 7. McCoy could not be arraigned immediately because he had been transported out of the district on a preceding writ of habeas corpus ad prosequendum for prosecution on a different charge in federal court in Kansas. In the meantime, Dennis filed pretrial motions on February 15, and the court ruled on them at a pretrial conference on February 28. On March 3 the government moved to continue Dennis' trial. The court granted the motion on March 29, 1983 and set a new trial date.

McCoy was finally arraigned on April 15, and on May 4 Dennis unsuccessfully moved to dismiss the indictment for failure to accord him a speedy trial. McCoy then moved to continue the trial, and the court granted McCoy's motion on May 11. Again Dennis moved to dismiss on speedy trial grounds on May 16. The court denied the motion on June 11, finding the delay was not unreasonable and was excludable under section 3161(h)(7) because Dennis had not moved to sever his case from that of his codefendant McCoy. Trial finally began on June 20.

18 U.S.C. Sec. 3161(h)(7) excludes from the time within which trial must begin "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." It is well established under this section that the excludable delay of one defendant may be ascribed to all codefendants in the same case, absent severance. See United States v. Campbell, 706 F.2d 1138, 1140-43 (11th Cir.1983); United States v. Fogarty, 692 F.2d 542, 546 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1434, 75 L.Ed.2d 792 (1983). As appellant points out, these cases treat specific delays arising from the motion practice of codefendants. The issue before us, however, is a more general one, namely whether the district court can exclude from Dennis's speedy trial period the delay in bringing McCoy to trial. The legislative history of section 3161(h)(7) convinces us that the delay attributable to McCoy is excludable as to Dennis as long as it was reasonable.

In determining whether the delay was reasonable we are guided by...