U.S. v. Jones, 81-2205

• Decision Date: 28 April 1982
• Docket Number: No. 81-2205,81-2205
• Citation: 676 F.2d 327
• Parties: 10 Fed. R. Evid. Serv. 461 UNITED STATES of America, Appellee, v. James E. JONES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 327

676 F.2d 327

10 Fed. R. Evid. Serv. 461

UNITED STATES of America, Appellee, v. James E. JONES, Appellant.

No. 81-2205.

United States Court of Appeals Eighth Circuit.

Submitted March 11, 1982.

Decided April 28, 1982.

Julius Lucius Echeles, Caroline Jaffe, Chicago, Ill., for appellant.

Thomas E. Dittmeier, U. S. Atty., Larry D. Hale, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

ROSS, Circuit Judge.

James E. Jones appeals his conviction on a two count indictment for conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846.

In September 1980, a DEA special agent, posing as a large scale drug distributor, had several conversations with Stevenson Smith regarding sale of a large quantity of marijuana. Smith told the agent that he would contact his people in Chicago and also indicated that his source in Chicago would be interested in delivering cocaine to the special agent. Arrangements were made by Smith to bring together the Chicago purchaser and the special agent.

On September 24, 1980, Smith and two other people met the special agent and two additional special agents at a St. Louis County hotel. Smith introduced James Jones to the agents as "his man." Jones told the agents that he wanted to buy 200 pounds of marijuana rather than the 300 pounds originally mentioned in Smith's conversation with the agent. Jones went with the agents to their car in the parking lot and took a sample from a bale of marijuana in the car's trunk. Smith and Jones then took the agents to a gold van parked in the lot to show the agents their money. On their way to the van, Jones asked the special agent if he would be interested in buying cocaine and indicated Jones would deliver a kilogram of cocaine to the agent the next day. Jones also said that he would return to St. Louis to purchase 250 pounds of marijuana the next day after he got the 200 pounds out on the street to his people in Chicago.

In the van the agents met Thomas McCready and after the agents counted the money they left to pick up the remaining bales of marijuana. The agents loaded four bales into two undercover cars and returned to the hotel. Upon returning to the hotel an agent was told by Smith that Jones had limited his purchase to 200 pounds because Jones was short of cash due to a recent purchase of 12 kilograms of cocaine. After going to the parking lot, the agents told appellant to pull his van up next to their cars. The agents opened the trunks of their cars and displayed the four bales of marijuana. The trunk key of one of the vehicles was then given to Jones. The agents then entered the van with Jones and they were given over $54,000 for the marijuana. After receiving the money the agents left the van and appellant and McCready took the two bales of marijuana from the agent's car trunk and put those two bales in the van. The agents then arrested Jones, Smith and McCready.

The arrest occurred at 9:40 p. m. on September 24, 1980. Jones was taken to the DEA offices in Clayton, Missouri. The agents contacted an assistant United States attorney and the attorney authorized Jones' release. At 10:40 p. m. on September 24, 1980, Jones was released and he was told that he would be "notified." No complaint or other charges were filed by the government until July 9, 1981, when an indictment was returned. The indictment was apparently sealed until July 20, 1981. On July 21, 1981, Jones was arrested on the indictment.

Jones moved to dismiss the indictment based on an alleged violation of the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. A pretrial hearing was held before a United States magistrate regarding Jones' pretrial motion. At the hearing the special agent's uncontradicted testimony was that the government had delayed charging Jones for two reasons. First, until June 1981 the DEA was pursuing a number of "reverse sting" operations in the St. Louis area and there was a fear that publicity from charging a person would jeopardize the operations. Second, through May 1981, Jones and the DEA agent had frequent discussions during which Jones represented that he could set up heroin purchases for the DEA; however, Jones never provided any information.

The magistrate recommended that Jones' pretrial motion be denied and this recommendation was adopted by the district court. ¹

On appeal, Jones alleges that the district court erred in denying his motion to dismiss the indictment for violation of the Speedy Trial Act. Jones also asserts the following errors: (1) the evidence was insufficient as a matter of law to establish that he was in "possession" of the marijuana; (2) the evidence was insufficient to establish the "chain of custody" of the substance alleged to be marijuana; (3) the district court erred in failing to grant a mistrial following introduction of "other crimes" evidence regarding the purchase and selling of cocaine.

Speedy Trial Act of 1974

Jones alleges that the delay between his initial arrest and subsequent indictment violated 18 U.S.C. § 3161(b) of the Speedy Trial Act of 1974 (the Act). That subsection provides in pertinent part:

§ 3161. Time limits and exclusions

(b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

Jones argues that a violation of section 3161(b) requires dismissal of the charges against him under 18 U.S.C. § 3162(a)(1) of the Act, which provides:

§ 3162. Sanctions

(a)(1) If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.

The government argues that the case law and the legislative history of the Act establish that the term "arrest" as used in section 3161(b) means an arrest upon a complaint. The government also argues that the sanction of dismissal specified in section 3162(a)(1) applies by the terms of the statute only to an "individual against whom a complaint is filed."

While section 3161(a) may at first glance seem to clearly start the running of the speedy trial "clock" from arrest, it is also fairly clear that no "sanction" is provided for under section 3162(a)(1) for delay in indictment unless a complaint has been filed. However, to read the Act in this manner would create a right without a remedy. Our review of other parts of the Act, its legislative history and case law leads us to the conclusion that subsection 3161(b) is only applicable when the arrested individual is charged with an offense.

The Act specifies in subsection 3161(a) that "at the earliest practicable time" a trial date shall be set "(i)n any case involving a defendant charged with an offense * * * " (emphasis added). Subsection 3161(d)(1) provides:

(d)(1) If any indictment or information is dismissed upon motion of the defendant, or any charge contained in a complaint filed against an individual is dismissed or otherwise dropped, and thereafter a complaint is filed against such defendant or individual charging him with the same offense or an offense based on the same conduct or arising from the same criminal episode, or an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct or arising from the same criminal episode, the provisions of subsections (b) and (c) of this section shall be applicable with respect to such subsequent complaint, indictment, or information, as the case may be.

(Emphasis added.) A similar subsection of the Act, 3161(h)(6), provides:

(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

(6) If the information or indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.

These latter two subsections, 3161(d)(1) and (h)(6) have been interpreted to mean:

(1) under subsection 3161(d)(1) if the complaint is dismissed upon the motion of the defendant or the government, the time limits specified in subsection 3161(b) and (c) (the 30-day time limit for indictment and the 70-day time limit for trial) begins to run anew following the filing of a subsequent complaint, indictment or information. ²

(2) under subsection 3161(h)(6) if the information or indictment is dismissed upon the motion of the government, the time between such dismissal and reinstitution of subsequent charges is excludable, i.e., while the charges remain dismissed the time limit is tolled.

See United States v. Peters, 587 F.2d 1267, 1272-73 (D.C.Cir.1978).

In the recent case of United States v. MacDonald, --- U.S. ----, 102 U.S. 1497, 71 L.Ed.2d ---- (1982), the Supreme Court held that a four year delay between dismissal of military charges for murder and a subsequent indictment...