U.S. v. Hutchins

• Decision Date: 19 May 1987
• Docket Number: No. 86-2524,86-2524
• Citation: 818 F.2d 322
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Harold HUTCHINS and Philip L. Hutchins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 322

818 F.2d 322

UNITED STATES of America, Plaintiff-Appellee, v. James Harold HUTCHINS and Philip L. Hutchins, Defendants-Appellants.

No. 86-2524.

United States Court of Appeals, Fifth Circuit.

May 19, 1987.

Marvin Coan, Louisville, Ky., for James Harold Hutchins.

Malcolm Segal, James R. Kirby, II, Sacramento, Cal., for Phillip Lee Hutchins.

James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for U.S.

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

Before JOLLY and DAVIS, Circuit Judges, and FELDMAN, ^* District Judge.

E. GRADY JOLLY, Circuit Judge:

James Hutchins and Philip Hutchins appeal their convictions and sentences on charges of conspiracy to possess marijuana with intent to distribute and for attempt to possess marijuana with intent to distribute. For the most part, the arguments they raise on appeal lack merit, and we affirm their convictions. Because James and Philip Hutchins were not sentenced under a valid statute, however, we vacate their sentences, and remand this case for resentencing.

I

This case involves a marijuana "reverse sting" operation. Drug Enforcement Agency (DEA) undercover agents, along with a confidential informant, began in May 1984 to negotiate with Robert Rivera and Eugene Petak on behalf of Philip Lee Hutchins to supply the latter with eight to ten thousand pounds of marijuana per month. During the negotiations, an undercover agent travelled to Kentucky, where James Harold Hutchins showed him $150,000 in cash. A "flash" of this money was used to assure the agent that the Hutchins brothers were financially able to carry out the deal. A "test" load of one thousand pounds was agreed upon.

Randall Ray Moore and James Frank Martin were engaged by Philip Hutchins to drive the load of one thousand pounds of marijuana from Houston to Kentucky. Both of them came from outside Texas to aid in this smuggling enterprise and they were to be paid by Philip Hutchins.

The first load of marijuana was to be purchased by Philip Hutchins from the agents for $305,000 in cash. Conversations with Philip Hutchins and codefendant Eugene Petak revealed that the object of the conspiracy was the routine purchase and transportation to Kentucky of two thousand pounds of marijuana per week.

On October 12, 1984, when Philip Hutchins presented the $305,000 cash which he had previously shown the agents, the money was seized and the defendants, Philip Hutchins, James Hutchins, Eugene Petak, Robert Rivera, Randall Moore and James Martin, were arrested by federal and state officers on drug-related charges.

II

The first indictment against the defendants was returned by the grand jury in Houston on November 15, 1984, on the same charges for which the defendants were arrested. Because thirty-three days had elapsed between the date of arrest and the return of the indictment, the defendants' motion to dismiss under the Speedy Trial Act, 18 U.S.C. Sec. 3161(b), was granted without prejudice on April 8, 1985. More than fifty days elapsed between the date of dismissal and May 30, 1985, when the grand jury's indictment, charging the same criminal conduct that was the subject of the dismissed indictment, was returned against the defendants. The defendants were arrested, arraigned, and released on bond on June 3, 1985. At a pretrial conference on August 26, 1985, the defendants urged the court to dismiss the superseding indictment based on alleged violations of the Speedy Trial Act and the Local Speedy Trial Plan.

The district court, in a published opinion, United States v. Petak, 623 F.Supp. 74 (S.D.Tex.1985), denied the motion to dismiss.

The indictment charged the defendants Philip Hutchins, James Hutchins, Eugene Petak, Robert Rivera, Randall Moore and James Martin, with conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. Secs. 846 and 841(a)(1) and 841(b)(6), (count one); with an attempt to distribute marijuana in violation of 21 U.S.C. Secs. 846 and 841(a)(1) and 841(b)(6), (count two), together with violations of the Travel Act, 18 U.S.C. Sec. 1952(b) (counts three through seven). After a jury trial, Philip Hutchins was found guilty of counts one and two and James Hutchins of count two. James Hutchins was acquitted of count one. (The other defendants pled guilty to various counts and have not appealed.)

Philip Hutchins was sentenced to twenty years and James Hutchins to eight years imprisonment. Both appeal.

III

On appeal, both James and Philip Hutchins argue that their convictions must be reversed because the second indictment brought against them was not timely under the Speedy Trial Act. Philip Hutchins argues that his sentence was invalid because its length reflected the district court's intention to punish him for exercising his constitutional right to stand trial. Philip Hutchins also argues that his sentence was invalid because it was illegally enhanced and because consecutive sentences were given for conspiracy and attempt arising from a single transaction. Philip Hutchins argues that his conviction is defective because there is no evidence that he conspired to possess in excess of one thousand pounds of marijuana, and because the district court allowed the introduction of inadmissible hearsay evidence at his trial.

James Hutchins argues that his conviction for attempted possession of marijuana with intent to distribute was not supported by sufficient evidence. James Hutchins also argues that the district court improperly admitted evidence of a prior conviction at his trial, and that the district court imposed an illegal sentence on him. With the exception of the appellants' assertions pertaining to the statutory validity of their sentences, we reject their arguments.

IV

The Speedy Trial Act provides that a defendant must be indicted within thirty days of his arrest or the indictment is subject to dismissal. 18 U.S.C. Secs. 3161(b) and 3162(a)(1). The initial indictment was dismissed upon motion by the defendants ¹ because of the thirty-four-day delay in bringing them to trial. The dismissal was made without prejudice. More than fifty days elapsed between the date of the dismissal and May 30, 1985, when the grand jury returned a second indictment against the defendants, charging the same criminal conduct that was the subject of the earlier dismissed indictment. The defendants moved to dismiss the second indictment, arguing that the delay of over fifty days between the dismissal of the first indictment and the return of the second indictment violated the Speedy Trial Act's requirement that defendants be indicted within thirty days of arrest or service of summons. ² In a thoughtful and reasoned opinion the district court denied the motion, noting that "the dismissal of an indictment does not trigger the running of the Speedy Trial Act because no statutorily defined event has occurred which implicates the applicable time limits." United States v. Petak, 623 F.Supp. at 77.

The district court's ruling was clearly correct. The dismissal of an indictment without prejudice does not trigger the running of the Speedy Trial Act's time limits. United States v. May, 771 F.2d 980, 983 (6th Cir.1985); United States v. Puett, 735 F.2d 1331, 1333-34 (11th Cir.1984); United States v. Bittle, 699 F.2d 1201, 1205-07 (D.C.Cir.1983). On appeal, however, James and Philip Hutchins have modified their argument and now contend that the district court's dismissal of the first indictment did not stop the Speedy Trial Act clock from running because they remained under restraint, as their bail was not exonerated after the first indictment had been dismissed. This argument lacks merit.

In the analogous context of the right to a speedy trial under the sixth amendment, a defendant's speedy trial right attaches only after the defendant has become an "accused." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). In Marion, the court specified that a person is not an "accused" unless he or she is either formally charged or else arrested on criminal charges. Id. at 320, 92 S.Ct. at 463. The Supreme Court recently reaffirmed the Marion restrictions on the applicability of the sixth amendment speedy trial right in United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). In Loud Hawk, the Supreme Court held that the time when no indictment was outstanding against the defendants in that case did not apply towards their speedy trial claims. 106 S.Ct. at 650. The Court noted that "when no indictment is outstanding, only the actual restraint imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provision of the Sixth Amendment." Id. at 654.

We believe that the principles set forth in Marion and Loud Hawk apply to the Speedy Trial Act as well, since the Speedy Trial Act itself explicitly provides that the time limits for returning indictments are to be measured from the date that the individual in question is arrested or served with a summons in connection with criminal charges. 18 U.S.C. Sec. 3161(b).

In this case the first indictment against the appellants was dismissed. When it dismissed the indictment, the district court failed to exonerate the bail of the appellants. This was no more than a technical oversight on the district court's part, and we have no indication from the record that the appellants took any steps to correct the situation. It is clear that no charges were pending against them, that they were not accused under the law, that they were not under arrest, and there is no evidence that their movement was restrained in any practical way. Under these circumstances, it would be most inappropriate to hold that the Speedy Trial Act clock continued to run after dismissal of the first indictment. The technical failure of the district court to exonerate bail after dismissal of the indictment,...