U.S. v. Kalady
| Decision Date | 15 August 1991 |
| Docket Number | No. 90-8087,90-8087 |
| Citation | 941 F.2d 1090 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael KALADY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Aleksander D. Radich, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., Gay Woodhouse, Asst. U.S. Atty., with him on the brief), Cheyenne, Wyo., for plaintiff-appellee.
Ronald G. Pretty, Cheyenne, Wyo., for defendant-appellant.
Before ANDERSON, TACHA, and BRORBY, Circuit Judges.
Joseph M. Kalady (Kalady, or Appellant) appeals his conviction and sentence for failure to appear in violation of 18 U.S.C. § 3146. Kalady claims he was illegally denied a speedy trial, improperly refused access to a sentencing recommendation, and illegally sentenced. Familiarity with the flow of events which brought Kalady to this juncture is necessary to understand his appeal.
This case begins on December 2, 1988, when Kalady was indicted by a federal grand jury in Cheyenne, Wyoming, for seven counts including mail fraud, wire fraud, and conspiracy. Kalady was at that time on parole from a previous federal fraud conviction in the Northern District of Illinois. Kalady was arraigned on the new charges in the United States District Court for the District of Wyoming (district court) in January 1989. Pursuant to a plea agreement, Kalady was then released on a personal recognizance bond after he agreed to appear for trial on May 3, 1989. Kalady did not appear on that date. A bench warrant was promptly issued for his arrest. Meanwhile, on May 17, 1989, United States Parole Commissioners in Illinois issued an arrest warrant based upon "reliable information" The second chapter in this saga opens with Kalady's arrest at a Wisconsin monastery by United States Marshals on November 8, 1989. Kalady was arrested on the parole violation warrant from Illinois. Kalady was then taken to a federal facility in Chicago, Illinois. As the pace of events temporarily quickened, a federal grand jury in Cheyenne indicted Kalady on December 1, 1989, for his previous failure to appear. The federal district court in Wyoming issued a warrant for Kalady's arrest on that charge five days later.
that Kalady had "violated one or more conditions of his release."
Ensnared in the maw of the federal parole authorities, however, Kalady was obliged to winter in Chicago. During that time period, the Government attempted to negotiate a plea agreement with Appellant's counsel in Cheyenne. Back in Chicago, although a preliminary hearing was held within a month of his arrest, Kalady's parole revocation hearing was delayed until late February 1990. The Parole Commission issued a formal order revoking Kalady's parole on March 9, 1990.
Meanwhile, alert to the passage of time, federal officials in Wyoming requested a court ruling that Kalady's right to a speedy trial on the failure to appear charge was not jeopardized by his detention in Illinois on the federal parole violation charges. On the following day, February 7, 1990, the Wyoming federal court responded and issued its "Order Excluding Time and Granting A Continuance." On April 3, the Government requested Kalady's transportation to Wyoming. Even so, Kalady was not returned to Wyoming until May 3, 1990, when federal officials effected his transfer. When he finally arrived in Cheyenne, Kalady was served the arrest warrant for failure to appear.
As the pace of events again quickened, Kalady was arraigned on May 11, 1990. The government, "due to the failing memory of one of Kalady's co-defendants--a key Government witness", then successfully moved to dismiss the underlying fraud indictment with prejudice. Kalady pled guilty to the failure to appear charge on July 2, 1990, and reserved his right to appeal the alleged speedy trial violation.
After preparation of a presentence report, Appellant was sentenced under the United States Sentencing Guidelines (U.S.S.G.) on August 14, 1990. The court granted a two-level reduction for acceptance of responsibility and set Kalady's total offense level at ten. As Kalady had amassed eighteen criminal history points, he fell within category VI, the highest criminal history category. After discussing Kalady's criminal history at length, the court declined to pronounce a sentence within the guideline range of 24 to 30 months. The court departed upward, sentencing Kalady to 40 months incarceration and three years of supervised release. Kalady timely appealed.
Kalady argues the trial court failed to express adequately its reasons for upward departure and for the actual sentence imposed. Kalady insists the court abused its discretion in pronouncing a consecutive rather than concurrent sentence. Kalady also argues the trial court unconstitutionally deprived him of the right to see the probation officer's sentencing recommendation. Finally, Kalady claims his indictment should have been dismissed because his constitutional and statutory rights to a speedy trial were violated. The Government disagrees on all counts. We consider the issues in reverse order for analytical clarity.
Kalady appeals the denial of his motion to dismiss the failure to appear charge for violation of his speedy trial rights. Kalady directs our attention to the six-month period between his arrest in Wisconsin on November 8, 1989, and his subsequent arrest and arraignment in Wyoming in May 1990, claiming this delay violates his constitutional and statutory rights to a speedy trial. Kalady claims the Government intentionally failed to procure his transfer to Wyoming We first consider Kalady's statutory right to a speedy trial. Kalady argues the seventy-day period specified in the Speedy Trial Act, 18 U.S.C. § 3161 et seq., was exceeded and his indictment should have been dismissed with prejudice. The relevant section of the Speedy Trial Act provides:
for its own tactical advantage, thereby substantially prejudicing his defense.
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the 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.
18 U.S.C. § 3161(c)(1) (emphasis added). The seventy-day period may be extended by resort to the exclusions listed in § 3161(h). See, e.g., United States v. Pena, 920 F.2d 1509, 1516-17 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991).
Kalady assumes the statutory, seventy-day period runs from the date of his initial arrest. He is mistaken. Kalady was indicted on December 1, 1989, but did not appear before a judicial officer of the court in which that charge was pending until May 4, 1990. 1 Under the plain language of the Speedy Trial Act, the seventy-day period therefore began to elapse on the "last occur[ing]" date, May 4, 1990. Although § 3161(c)(1) directs us to consider the time period following that date in determining whether a violation has occurred, Kalady argues seventy-day period was exceeded before that date. Kalady's grievance is simply not addressed by § 3161. He was not deprived his statutory right to a speedy trial. See United States v. Snyder, 707 F.2d 139, 142 (5th Cir.1983) ().
Kalady next argues the district court should have dismissed his indictment under Fed.R.Crim.P. 48(b) for " 'unnecessary delay in bringing a Defendant to trial.' " Rule 48(b) states:
If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint.
Fed.R.Crim.P. 48(b) (emphasis added). A dismissal under Rule 48(b), whether it be on motion or sua sponte, is a matter addressed to the sound discretion of the trial court. United States v. Barney, 550 F.2d 1251, 1254 (10th Cir.1977).
Appellant's complaint focuses on the period between November 1989, and May 1990. Kalady asserts he "was arrested on 8 November, 1989 on the warrant from Wyoming," and argues that the Government intentionally delayed his return to Wyoming in order to avoid "Speedy Trial problems." This argument fails because the record establishes that Kalady was arrested in November 1989 on the parole violation warrant from Illinois. Kalady was not arrested on authority of the Wyoming warrant for failure to appear until May 3, 1990. Therefore, Appellant's complaint involves post-indictment, pre-arrest delays.
However, "Fed.R.Crim.P. 48(b), treating unnecessary delay in presenting the charge to a grand jury or in bringing a defendant to trial, applies only to post-arrest delay." United States v. Revada, 574 F.2d 1047, 1048 (10th Cir.1978) (emphasis added). See United States v. Lovasco, 431 U.S. 783, 789 n. 8, 97 S.Ct. 2044, 2048 n. 8, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 462, 30 L.Ed.2d 468 (1971). Thus, Appellant can claim no relief under Rule 48(b).
We next consider Appellant's constitutional claims. First, Kalady claims he was deprived of his speedy trial right under the Sixth Amendment. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." U.S. Const. amend. VI. As Appellant correctly notes, we apply the four factors of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in determining whether the constitutional guarantee of a speedy trial has been violated.
"A Sixth Amendment speedy trial claim is assessed by balancing the length of the delay, the reason for the...
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