U.S. v. Leone, 86-2513

• Decision Date: 10 July 1987
• Docket Number: No. 86-2513,86-2513
• Citation: 823 F.2d 246
• Parties: 23 Fed. R. Evid. Serv. 751 UNITED STATES of America, Appellee, v. Peter John LEONE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 246

823 F.2d 246

23 Fed. R. Evid. Serv. 751

UNITED STATES of America, Appellee, v. Peter John LEONE, Appellant.

No. 86-2513.

United States Court of Appeals Eighth Circuit.

Submitted May 13, 1987.

Decided July 10, 1987.

Anthony F. Renzo, Boulder, Colo., for appellant.

John Jarvey, Washington, D.C., for appellee.

Before HEANEY, BOWMAN, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Peter Leone appeals from his cocaine-related conviction, arguing (1) that the government's procedure leading to trial violated the Speedy Trial Act, (2) that the district court ¹ violated his Fifth Amendment rights by requiring him to speak, and (3) that he was denied effective assistance of counsel. After due consideration of these issues, we affirm Leone's conviction.

I. FACTS.

Narcotics officers of the Des Moines Police Department culminated a cocaine investigation involving Dennis Burdick and appellant Leone on July 20-21, 1985, with the purchase of a pound of cocaine for $28,000. The one-pound purchase on the evening of July 20, 1985, was preceded by two purchases by undercover officers from Burdick of one-eighth ounce and an ounce of cocaine. On July 22, 1985, Leone was arrested in connection with the cocaine purchases. He was held in custody for about five hours and then released with no formal charges being brought at that time.

II. DISCUSSION.

A. Speedy Trial Act Violation.

The Speedy Trial Act of 1974, as amended in 1979, 18 U.S.C. Sec. 3161 et seq. ("Act"), establishes inside and outside time limits for commencing trial in criminal cases. Section 3161(c)(1) of the Act provides in pertinent part that:

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.

Leone argues that the government's procedure in this case violated the seventy-day period established by this section of the Act. On November 14, 1985, the government filed an indictment charging Leone with conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (Count I) and possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B) (Count II). On November 26, 1985, Leone appeared with counsel before the district court for arraignment on the charges. On January 28, 1986, sixty-four days after Leone was arraigned, and with only six days remaining under the Act to bring him to trial, the government dismissed the indictment on its own motion.

The government then reindicted Leone on April 23, 1986, charging the same offenses as in the original indictment. The arraignment on the reindictment was held on May 28, 1986, and the original trial date of June 2, 1986, was rescheduled for June 30, 1986 at the request of Leone's counsel. ² On June 30, before trial began, Leone's counsel filed a motion to dismiss based on a violation of the Act. This motion was considered in chambers and denied. Leone was convicted by jury verdict on July 1, 1986, and sentenced on August 5, 1986, to five years' imprisonment on Count I and five years' imprisonment to run concurrently on Count II plus a special parole term of three years as required by the statute.

Leone first points out, and we accept, that where an indictment is dismissed on the government's motion and a defendant is later reindicted, the seventy-day period continues to run from the first indictment. 18 U.S.C. Sec. 3161(h)(6). See also United States v. Rojas-Contreras, 474 U.S. 231, 106 S.Ct. 555, 559, 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring). The parties also agree that the dismissal of the first indictment temporarily stops the running of the "speedy trial clock." 18 U.S.C. Sec. 3161(h)(6).

Leone contends, however, that when the government restarts a prosecution, the running of the seventy-day period resumes upon the refiling of the indictment, rather than upon a later event, such as an arraignment pursuant to the second indictment. Leone contends, in short, that after an initial indictment is dismissed, the seventy-day clock resumes running on reindictment only. Thus, according to Leone, because sixty-four days passed between his first appearance and dismissal, and then another forty days passed between his second indictment and original trial date, the Act was violated by thirty-four days.

The government argues that for purposes of restarting the "speedy trial clock" the triggering event is the second indictment or second appearance before a judicial officer, whichever is later. Thus, according to the government, although Leone was reindicted on April 23, some forty days before his original trial date, he was arraigned on the reindictment on May 28, 1986, five days from the original trial date and thus falling within the seventy-day limit of the Act by one day. Our examination of the pertinent statutory language and relevant case law compels our conclusion that the government's view on this issue is correct.

Section 3161(c)(1) of the Act, see supra, is unambiguous in stating that upon an initial indictment, the seventy-day clock begins to run upon the later of either (1) the information or indictment, or (2) the defendant's appearance before a judicial officer of the court. Section 3161(h) of the Act sets out several periods of delay which shall be excluded from the running of the seventy-day period. Accordingly, section 3161(h)(6), which deals with a dismissal of the indictment by the government, provides that the following period of delay shall not be included in the seventy-day computation.

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.

18 U.S.C. Sec. 3161(h)(6).

Thus, to determine when to restart the "speedy trial clock," we must determine when "the time limitation would commence to run as to the subsequent charge had there been no previous charge." We find crucial in this section the words: "had there been no previous charge." We therefore read the section as stating that for purposes of restarting the seventy-day clock, the second charge is treated as an original charge. Accordingly, section 3161(c)(1), covering the original charge and specifying that the latter of indictment or appearance is the triggering date, applies.

The cases examining this issue have followed this interpretation. In United States v. Rodriguez-Restrepo, 680 F.2d 920 (2d Cir.1982), the defendant was indicted on November 20, 1979, and the indictment was dismissed on the government's motion on December 20, 1979. The defendant was then reindicted on February 22, 1980, but was not arraigned on this second indictment until January 14, 1981. The court stated:

When an indictment is dismissed and the defendant is subsequently indicted on the same offense or an offense based on the same conduct, the time between the dismissal and the later re-indictment or first appearance on the subsequent indictment is not included in the computations pursuant to the Act. 18 U.S.C. Sec. 3161(h)(6). Thus, the appropriate date for calculating the recommencement of running of time pursuant to the Act is January 14, 1981, the date of Ms. Rodriguez-Restrepo's first appearance before a judicial officer in the Eastern District on these charges.

Rodriguez-Restrepo, 680 F.2d at 921.

Similarly, in United States v. Cova, 580 F.Supp. 588 (N.D.Ind.1984), aff'd, 755 F.2d 595 (7th Cir.1985), the court determined that the excludable time under section 3161(h)(6) "runs to the latter of the date of the filing of the second indictment or the date defendant has first appeared on these amended charges. * * * Thus the period of time from * * * the dismissal of the first indictment * * * to defendant's post second indictment appearance was excludable time under Sec. 3161(h)(6)." Cova, 580 F.Supp. at 590. See also United States v. Scott, 557 F.Supp. 990, 994-95 (N.D.W.Va.1983).

Leone relies on United States v. Arkus, 675 F.2d 245, 247 (9th Cir.1982), where the Ninth Circuit held that the seventy-day clock was tolled from the date of dismissal on the government's motion until reindictment, rather than rearraignment.

The Ninth Circuit has, however, ruled more recently and explicitly on this issue. In United States v. Feldman, 788 F.2d 544, 548 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987), the court stated that "if a government motion prompts dismissal of the indictment, and the defendant is later reindicted for the same offense, the original seventy day period is tolled only for the period between dismissal and reindictment or rearraignment, whichever is later. 18 U.S.C. Sec. 3161(h)(6)." The Feldman court went on to point out, moreover, that Arkus was not explicit in choosing reindictment over rearraignment, and that the choice of date in Arkus made no difference to the applicability of the seventy-day limit. Feldman, 788 F.2d at 548 n. 2. In sum, we accept Feldman rather than Arkus as espousing the Ninth Circuit's position on this issue. We therefore conclude, based upon the explicit wording of the Act and the uniform weight of case law, that Leone's speedy trial attack on his conviction must fail.

B. Fifth Amendment Claims.

Leone next argues that the district court violated two Fifth Amendment rights; his right against self-incrimination and his right to due process.

We summarize the events pertinent to this issue. As part of the cocaine investigation, officers...