U.S. v. Guerrero, 81-1059
| Decision Date | 10 February 1982 |
| Docket Number | No. 81-1059,81-1059 |
| Citation | 667 F.2d 862 |
| Parties | 1982-1 Trade Cases 64,618, 9 Fed. R. Evid. Serv. 419 UNITED STATES of America, Plaintiff-Appellee, v. Esmerejidado GUERRERO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jeffrey R. Edelman, Denver, Colo., for defendant-appellant.
Carole C. Dominguin, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty., Denver, Colo., with her on the brief), for plaintiff-appellee.
Before DOYLE, McKAY and LOGAN, Circuit Judges.
The matter before the court is the appeal of Esmerejidado Guerrero who was convicted in the United States Court for the District of Colorado on a charge which is based upon 18 U.S.C. § 351(e), assault on a member of Congress. The assault consisted of the throwing of two eggs at Congressman John B. Anderson while he was addressing a political rally in Denver, Colorado. Congressman Anderson was a candidate for president of the United States at the time. There is no dispute about the throwing of the eggs. The issues raised are alleged trial and pretrial errors and particularly the contention of the defendant that he did not receive a speedy trial as required by that Act, 18 U.S.C. §§ 3161-74.
On August 5, 1980 Congressman John B. Anderson addressed a political rally in Denver, Colorado, in the course of his campaign for president. As Mr. Anderson left his local campaign headquarters later that afternoon, two eggs were thrown at him from the crowd that had gathered outside. At least one of the eggs struck Congressman Anderson. There were two secret service agents who accompanied Anderson and they saw the defendant and another person throw the eggs, gave chase and apprehended the defendant. He was released the next day on bond and was arraigned on August 14th. Trial was tentatively scheduled for September 29th. However, on September 26th the presiding judge granted the government's motion for a 45-day continuance because Congressman Anderson was going to be unavailable until after the presidential election.
At the trial Anderson testified that he had been apprehensive and fearful during the incident and that he had been struck by at least one of the eggs. Testimony was given also by the two secret service agents, together with a Denver police officer, who identified the defendant as one of the individuals who had thrown the eggs from the crowd. Also introduced into evidence was a television news videotape showing some footage of the incident itself. Hence there is no dispute about it.
The defendant was convicted and was sentenced to thirty days imprisonment with work release. This appeal followed.
The contentions which are advanced by defendant on this appeal are briefly described as follows:
I. That the trial court failed to comply with the Speedy Trial Act, 18 U.S.C. §§ 3161, 3162 and Rule 50(b) of the local Rules of Court for Colorado.
II. That the trial court erred in receiving into evidence a videotape which was played without the sound and which depicted the actual throwing of the eggs at Congressman John Anderson. It does not show the defendant perpetrating the act; it shows the eggs coming from his direction. The picture also showed the defendant being chased by plainclothes officers.
III. That the statute is overbroad, is an invasion of the defendant's right of free speech and political speech as well, or that the statute is inapplicable to John Anderson because he was not functioning as a Congressman. Instead he was running for president. The bottom line is that Anderson was not serving as a Congressman and therefore the statute was not applicable to him.
On October 6, 1980 the trial court entered an order in which it was stated that the trial of the defendant-appellant herein, which was set for September 20, 1980, would be continued on the motion of the government. The defendant's argument is that the lapse of 101 days between arraignment and trial violated the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Section 3161(c) (1) provides that:
following a plea of not guilty the trial of a defendant charged with commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
Section 3161(h) allows continuances to be excluded in computing the time within which trial must commence, under conditions set forth in § 3161(h)(8) and provides:
That the court may exclude any period of delay resulting from a continuance granted by any judge at the request of the attorney for the government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interests of the public and the defendant in a speedy trial.
The provision goes on to say that:
No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
This, of course, is the nub of the problem in the present case. Our inquiry is whether or not the court satisfied this latter provision by stating, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweighed the best interests of the public and the defendant in a speedy trial.
In the event that there was a failure to comply with the seventy day time limit and if the above provision contained in § 3161(h) is not satisfied, the sanction would be dismissal of the case. 18 U.S.C. § 3163(c); United States v. Hay, 527 F.2d 990, 995, n.8 (10th Cir. 1975); United States v. Fielding, 645 F.2d 719, 721 (9th Cir. 1981). In reviewing a matter of this kind both the standards of "clearly erroneous" and "not normally reversible error" are applicable. See, United States v. Fielding, supra at 721-22. Moreover the defendant is not, in these circumstances, required to assume the burden of proof to show that this continuance prejudices his defense. The substituted standard is if the continuance time was improperly excluded. 18 U.S.C. § 3162(a)(2).
This is not to say that the court may not consider some extraneous factors in deciding whether to dismiss with or without prejudice, however, 18 U.S.C. § 3162(a)(2). In this case the trial court explained in a written order in its grant of the forty-five day continuance at issue here with the following statement. In the mentioned order it was noted that the matter came before the court on the motion of the government for a continuance of the trial, the facts having been presented and the matter having been considered, the court finds that the ends of justice will be served by granting the continuance. Now, therefore, it is
ORDERED that a continuance is granted to December 8, 1980. The court finds that the ends of justice served by taking this action outweigh the best interests of the public and the defendant in a speedy trial for the following reasons:
An essential witness will be unavailable for trial. A forty-five day period of time shall be excludable under the provisions of the Speedy Trial Act.
The motion calls attention to the fact that the reason for the motion was that John Anderson was seeking a postponement of his appearance until after the election on November 4, 1980. The motion goes on to say that Mr. Anderson was a candidate for president of the United States and had been and was currently engaged in his campaign for said office. The motion also said that as a result of Mr. Anderson's campaign schedule, he was resisting appearing at the trial of defendant before the termination of the election on November 4, 1980. The court said that it is the government's goal not to become involved collaterally or otherwise in Mr. Anderson's campaign for the presidency of the United States and that it is the government's goal to limit undue publicity in the defendant's trial. The motion further set forth the standard by saying that the government submits that the ends of justice served by the granting of such continuance outweighs the best interest of the public and the defendant in a speedy trial. The motion also stated that the case was unusual and involved the prosecution of an assault upon a member of Congress who was also running for president of the United States and who had made commitments to appear during the pendency of his campaign prior to November 4, 1980, the day of the general election.
In view of the cryptic form of the order granting the continuance it is essential that the motion for continuance by the district attorney has to be considered in order to judge whether the trial court satisfied the statutory provision. It is certain that the judge was fully aware of the content of § 3161(h)(8) of the Act. The order continuing the trial shows this in that it grants the motion fully and completely and states that the ends of justice, which are referred to in the motion, outweigh the best interests of the public and the defendant in a speedy trial and that an essential witness will be unavailable for trial.
It is important to recognize that the trial court did not follow the literal terms of the statute. Had the court done so it would have repeated that which was in the motion, namely that John Anderson was engaged in campaigning for the presidency of the United States and did not wish to get undue publicity and was unable to satisfy the requirement of his presence. But, was it necessary for the court to expound the...
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