U.S. v. Gilliss

• Decision Date: 09 February 1981
• Docket Number: No. 80-1329,80-1329
• Citation: 645 F.2d 1269
• Parties: 7 Fed. R. Evid. Serv. 1700 UNITED STATES of America, Appellee, v. Louis GILLISS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1269

645 F.2d 1269

7 Fed. R. Evid. Serv. 1700

UNITED STATES of America, Appellee, v. Louis GILLISS, Appellant.

No. 80-1329.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 8, 1980.

Decided Feb. 9, 1981.

C. John Pleban, St. Louis, Mo., for appellee.

Evelyn M. Baker, Asst. U. S. Atty., St. Louis, Mo., for appellant.

Before HENLEY and McMILLIAN, Circuit Judges, and VAN PELT, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Louis Gilliss appeals from a judgment entered in the District Court ¹ for the Eastern District of Missouri upon a jury verdict finding him guilty of kidnapping (count I) (18 U.S.C. § 1201(a)) and interstate transportation of a stolen motor vehicle (count II) (18 U.S.C. § 2312). The district court sentenced appellant to twenty years imprisonment on count I and three years on count II, to be served consecutively.

For reversal appellant argues that the district court erred in (1) failing to dismiss the indictment for violation of the Speedy Trial Act and local speedy trial plan, (2) refusing to grant appellant's motion for judgment of acquittal, (3) refusing to subpoena appellant's former wife as a defense witness, (4) giving certain instructions to the jury, and (5) sentencing appellant to a term of imprisonment in excess of twenty years and without specifying that he would be eligible for parole consideration after three years. For the reasons discussed below, we affirm the convictions, vacate the sentence imposed on court I, and remanded to the district court for resentencing consistent with this opinion.

Appellant does not challenge the sufficiency of the evidence. ² Because of a gambling problem, appellant faced a financial crisis in early 1978. The police wanted him on a variety of outstanding warrants in several states for writing bad checks, larceny and embezzlement. In April, 1978, he was in Louisville, Kentucky, looking for a car. On April 8, 1978, at about 3 p. m., appellant approached George Hunter, Jr., as Hunter was getting into his car. Appellant told Hunter that he had a gun, displayed the handle of the gun, and directed appellant to move over to the passenger seat. Hunter testified that he asked appellant if he could leave the car and that appellant refused to let him go. Appellant placed the gun in his lap and told Hunter to give him directions to Nashville, Tennessee. For the next fifteen hours, appellant drove from Kentucky to Tennessee, back to Kentucky, through Illinois, and then to Missouri.

At about 6 a. m. on April 9, 1978, a St. Louis County police officer stopped the car because of appellant's erratic driving. While appellant showed identification to the police officer, Hunter waved his hands in a suspicious manner. The officer radioed for assistance. When the officer asked appellant if anything was wrong with his passenger, appellant jumped in the car and drove off. Hunter in some way managed to roll out of the passenger side. Hunter explained the situation to the police. Another police car chased appellant and forced him off the highway. The police arrested appellant and found the gun about ten feet from the car. The gun was loaded but the cylinder next to the hammer was empty. The police found one round of ammunition in appellant's pocket. ³

Appellant was originally charged on May 11, 1978, in a two-count indictment with kidnapping and interstate transportation of a stolen motor vehicle. Appellant entered a plea of not guilty on June 2, 1978. On the first day of trial, June 17, appellant withdrew his plea of not guilty and pleaded guilty to kidnapping. ⁴ Count II was dismissed. Appellant was originally sentenced to life imprisonment pending a psychiatric evaluation pursuant to 18 U.S.C. § 4205(c). The district court thereafter reduced the sentence to twenty years imprisonment. The district court subsequently amended the sentence to provide for parole consideration after three years pursuant to 18 U.S.C. § 4205(b)(1).

In April, 1979, appellant filed a § 2255 motion. ⁵ The district court (Judge Filippine) granted this motion, finding that the record of the guilty plea proceedings failed to disclose a factual basis for the guilty plea as required by Fed.R.Crim.P. 11(f). Gilliss v. United States, No. 79-494-C-(3) (E.D.Mo. Sept. 27, 1979) (order vacating judgment). The government reindicted appellant on the original two counts. Appellant pleaded not guilty by reason of insanity. The second trial ⁶ began April 7, 1980. Appellant was found guilty on both counts and sentenced to twenty years imprisonment on count I and three years on count II, to be served consecutively.

I. Speedy Trial Act ⁷

Appellant filed several pretrial motions to dismiss the indictment for failure to comply with the provisions of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1976 & Supp. III 1979), as implemented by the Eastern Missouri District Court Rules app. (Speedy Trial Plan) (approved by the Eighth Circuit Judicial Council on June 13, 1978). The district court found that the government had complied with the provisions of the Speedy Trial Act because the 60-day time limit from arraignment to trial began to run with the filing of the superseding indictment in October 1979 and because twenty-seven days counted as excludable delay for psychiatric examinations. United States v. Gilliss, No. 78-101-CR-(4) (E.D.Mo. Nov. 19, 1979) (Hungate, J.) (order denying pretrial motions).

Appellant argues that the time limit for commencement of trial with respect to count II (interstate transportation of a stolen motor vehicle) should be calculated under § 5(d)(3) of the 1978 local speedy trial plan which refers to superseding charges. ⁸ Appellant contends that the time limit began to run on June 2, 1978 (first arraignment), was tolled by the holding in abeyance and dismissal of count II on the motion of the United States Attorney on June 17, 1978, and began to run again on October 19, 1979 (second arraignment upon superseding indictment filed October 18, 1979). Excluding time chargeable to pretrial defense motions and psychiatric examinations, appellant argues that trial should have begun on January 28, 1980, under the 1978 local speedy trial plan's 60-day limit. ⁹ Appellant also applies this timetable to count I, arguing that, because the district court erred in accepting appellant's guilty plea, any delay attributable to the guilty plea should be "constructively chargeable to the government," citing United States v. Carini, 562 F.2d 144, 152 (2d Cir. 1977). Because the second trial did not begin until April 7, 1980, appellant argues that his statutory right to a speedy trial was clearly violated and the district court erred in failing to dismiss the indictment.

We note preliminarily that, assuming the Speedy Trial Act, as implemented by the local speedy trial plan, had been violated, appellant was not necessarily entitled to dismissal of the indictment in the present case. Section 10(b) of the 1978 local speedy trial plan provides only:

Failure to comply with the requirements of Title I of the Speedy Trial Act may entitle the defendant to dismissal of the charges against him. Nothing in this plan shall be construed to require that a case be dismissed in circumstances in which dismissal would not be required by 18 U.S.C. § 3162.

(Emphasis added.) Mandatory dismissal ¹⁰ of an indictment as a sanction for noncompliance with the Speedy Trial Act was not available until July 1, 1980. See 18 U.S.C. §§ 3162, 3163(c) (1976 & Supp. III 1979); e. g., United States v. New Buffalo Amusement Corp., 600 F.2d 368, 376-77 (2d Cir. 1979). During the transition period from January 3, 1975 (the date the Speedy Trial Act became effective, Speedy Trial Act of 1974, Pub.L.No.93-619, 88 Stat. 2076) until July 1, 1980 (the date the sanctions in 18 U.S.C. § 3162 became effective, 18 U.S.C. § 3163(c) (Supp. III 1979), as amended by Speedy Trial Act Amendments Act of 1979, Pub.L.No.96-43, § 6, 93 Stat. 328), violation of the Speedy Trial Act was not per se grounds for dismissal of an indictment. ¹¹ E. g., United States v. Peters, 190 U.S.App.D.C. 370, 587 F.2d 1267, 1270 n.6 (1978); United States v. Carini, supra, 562 F.2d at 148.

Like the district court, we find no violation of the Speedy Trial Act or the 1978 local speedy trial plan. While there may be presented a question whether the applicable section of the Speedy Trial Act is § 3161(e) ¹² (trial following appeal or collateral attack) or § 3161(i) ¹³ (trial following withdrawal of a guilty plea), the day the time limit begins to run is the same under either section, that is, the day the order occasioning the retrial or trial becomes final. ¹⁴ Similarly, under the 1978 local speedy trial plan whether the present case falls under § 5(b) (retrial following appeal or collateral attack) ¹⁵ or § 5(c) (withdrawal of guilty plea), ¹⁶ the operative date remains the same as under the Speedy Trial Act, that is, the day the order occasioning the retrial or trial becomes final. ¹⁷

The meaning of the phrase "the date the action occasioning the retrial becomes final" is not wholly clear. The Speedy Trial Act Guidelines suggest that if a successful collateral attack is not appealed, then the action occasioning the retrial "becomes final" whenever the time for post-judgment motions expires (ten days after entry of order or judgment) or when the district court's ruling on such motions is entered, but if an appeal or a petition for certiorari is filed, the action occasioning the retrial should not be considered final until the appeal or petition has been disposed of and the district court receives the mandate of the court of appeals or the Supreme Court. Committee on the Administration of the Criminal Law, Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended 17-18 (rev. Dec. 1979) (hereinafter Guidelines). In the present case no appeal was filed. The order granting appellant's § 2255 moti...