U.S. v. Hamilton, 94-7152

• Decision Date: 23 January 1995
• Docket Number: No. 94-7152,94-7152
• Parties: UNITED STATES of America, Appellant, v. Roy HAMILTON.
• Court: U.S. Court of Appeals — Third Circuit

Page 271

46 F.3d 271

UNITED STATES of America, Appellant, v. Roy HAMILTON.

No. 94-7152.

United States Court of Appeals Third Circuit.

Argued Dec. 5, 1994.

Decided Jan. 23, 1995.

Azekah E. Jennings (argued), W. Ronald Jennings, U.S. Atty., Christiansted, St. Croix, VI, for appellant.

Iver A. Stridiron (argued), Charlotte Amalie, St. Thomas, VI, for appellee.

Before: SLOVITER, Chief Judge, SCIRICA and COWEN, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

The government appeals an order of the district court dismissing an indictment without prejudice in a drug case pursuant to the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1988). We have jurisdiction over the government's appeal pursuant to 18 U.S.C. Sec. 3731. We exercise plenary review over the district court's construction and interpretation of the Speedy Trial Act and its provisions regarding excludable time. See United States v. Lattany, 982 F.2d 866, 870 (3d Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993). The findings of fact to which the district court applies the Speedy Trial Act are reviewed under a clearly erroneous standard. Id.

I. Background and Procedural History

On March 25, 1993, three alleged drug couriers, Jewel Rose Hyde, Patricia Gray and Karen Boothe-Waller, were stopped by Customs Inspectors at the Cyril E. King airport in St. Thomas, U.S. Virgin Islands. The government alleges that each of the women had a quantity of cocaine strapped to her body and after her arrest, stated that appellee Roy Hamilton recruited them to carry the cocaine to Florida for him.

Hamilton was arrested in Miami, and was returned to the Virgin Islands to face charges. On April 1, 1993, a four-count indictment was returned in the District Court of the Virgin Islands charging Hamilton with conspiracy to import cocaine into the United States in violation of 21 U.S.C. Sec. 963 and possession with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Hamilton was arraigned before the district court on May 12, 1993. By order of the magistrate judge entered May 28, 1993, Hamilton was released on bail into the joint custody of his parents and the Office of Probation and Control.

The three alleged couriers, Hyde, Gray and Boothe-Waller, also faced criminal charges in a separate criminal proceeding. The record on appeal, however, does not reflect the date on which they were indicted. At some point after they were indicted, the couriers filed suppression motions which delayed the disposition of their case.

The government's case against Hamilton was originally set for trial on July 12, 1993. On that day, the government filed a motion for a continuance of the trial and for an order excluding all delay incident to such continuance for speedy trial computation purposes. In support of its motion, the government stated that "[t]hree material witnesses [the three couriers] are unable to testify until the court disposes of the pending motions." See Government's Motion for Continuance and Request for Entry of Order of Excludable Delay of July 12, 1993. The government also stated that it "anticipates the motions will be resolved within one week and the witnesses will be available to testify at that time." Id.

By order entered July 14, 1993, the district court granted the government's motion for a continuance and an order of excludable delay. Pursuant to that order, the trial was continued until August 23, 1993. The district court found that the ends of justice served by the granting of the motion outweighed the best interests of the public and the defendant in a speedy trial because "a July 12, 1993, trial would unreasonably deny the government the testimony of three material witnesses." App. at 43.

On August 9, 1993, the government filed another motion seeking an order continuing the trial date from August 23, 1993, and excluding all delay incident to such continuance for speedy trial computation purposes. That motion was never ruled upon by the district court. The trial, however, did not go forward on August 23, 1993, although Hamilton allegedly appeared at the scheduled time.

On October 21, 1993, the district court granted the couriers' motion to suppress. The government promptly appealed that decision to this court, where that case was pending during the remainder of the relevant proceedings in this case. ¹

On January 4, 1994, the district court set the government's case against Hamilton for trial during the January 31, 1994 trial period. Once again, the government filed a motion seeking an order continuing the trial indefinitely. In addition, it requested an order excluding all delay incident to such continuance from the district court's Speedy Trial Act computations. In support of this motion, the government asserted that the couriers were "essential" witnesses within the meaning of 18 U.S.C. Sec. 3161(h)(3)(A). The government also contended that the couriers were "unavailable" to testify because the case against them was still pending, and that exclusion of the resulting delay was therefore proper under 18 U.S.C. Sec. 3161(h)(3)(A). Finally, the government argued that if a continuance were not granted pursuant to 18 U.S.C. Sec. 3161(h)(8)(A) the charges against Hamilton would have to be dismissed, which would result in a miscarriage of justice.

On January 20, 1994, the district court denied the government's motion without prejudice, stating that it required additional proof and authority to support the government's contention that the couriers were "unavailable" for Speedy Trial Act purposes. In particular, the court stated that it wished "to be briefed on why these witnesses cannot be made available through a grant of immunity as provided by law which would still permit the case against the three witnesses to go forward, if the government prevails on appeal." App. at 15.

On January 24, 1994, the government filed a motion for reconsideration of the court's Order of January 20, 1994, in which it argued that the issue of whether the couriers could be granted immunity was irrelevant to the district court's analysis, as the decision to grant immunity is solely within the government's discretion. At a hearing on the motion, the district court stated that it "agree[d] that it is within the sole purview of the government in situations like this to grant immunity or not." Transcript of Proceedings, January 28, 1994 at 5. Nonetheless, the court stated that "the interest of justice" weighed against granting the continuance. Transcript of Proceedings, January 28, 1994 at 6-7. The court then set the trial for February 7, 1994.

By order entered February 4, 1994, the district court formally denied the government's motion for reconsideration. It concluded that the ends of justice and the interests of the public and the defendant would not be served by a continuance. The court determined that the three couriers were not unavailable based on (1) the failure of the government to grant use immunity to the couriers, and (2) the reasons set forth by the court at the January 28, 1994 hearing. See App. at 48-49.

On February 7, 1994, the government's case against Hamilton came to trial. The government appeared and declared that it was not prepared to proceed. Hamilton promptly moved for a dismissal of the indictment. The district court granted Hamilton's motion to dismiss without prejudice. It also vacated all conditions of bail and exonerated all bail posted by Hamilton or his surety. The court's order of dismissal was issued, as amended, on February 23, 1994.

In its appeal, the government contends that the district court erred by failing to hold that the three couriers were both "essential" and "unavailable" for the purposes of the Speedy Trial Act. It argues that because the district court erred in failing to exclude a relevant period of delay from its Speedy Trial Act calculation, the order dismissing the indictment pursuant to the Speedy Trial Act should be reversed.

II. Discussion

The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." U.S. Const. amend. VI. The Speedy Trial Act, 18 U.S.C. Secs. 3161-3174, was designed to give effect to the Sixth Amendment right to a speedy trial "by setting specified time limits ... within which criminal trials must be commenced." United States v. Rivera Constr. Co., 863 F.2d 293, 295 (3d Cir.1988); see also H.R.Rep. No. 93-1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7401, 7402. The Act requires that a trial shall start "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." 18 U.S.C. Sec. 3161(c)(1) (emphasis added). The statute provides, however, that certain periods of delay "shall be excluded ... in computing the time within which the trial ... must commence." 18 U.S.C. Sec. 3161(h).

Subsection (h) of 18 U.S.C. Sec. 3161 contains a list of circumstances which merit the exclusion of time from the seventy-day limit imposed by the Speedy Trial Act. Pursuant to that subsection, when a district court makes a Speedy Trial Act time calculation, it "shall" exclude, among other things:

(3)(A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.

(B) For purposes of subparagraph (A) of this paragraph, ... a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.

18 U.S.C. Sec. 3161(h)(3).

In addition, the statute provides that a district court shall exclude any period of delay resulting from a continuance granted by the district court judg...