U.S. v. McNeil, s. 87-3069

• Decision Date: 14 August 1990
• Docket Number: 87-3070 and 87-3080,Nos. 87-3069,s. 87-3069
• Citation: 911 F.2d 768,286 U.S.App.D.C. 26
• Parties: UNITED STATES of America v. Gregory McNEIL, James E. Chaney, and Reginald Porter, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 768

911 F.2d 768

286 U.S.App.D.C. 26

UNITED STATES of America v. Gregory McNEIL, James E. Chaney, and Reginald Porter, Appellants.

Nos. 87-3069, 87-3070 and 87-3080.

United States Court of Appeals, District of Columbia Circuit.

Argued May 23, 1989.

Decided Aug. 14, 1990.

Appeal from the United States District Court for the District of Columbia (CR 86-00296-05).

Thomas Lumbard (appointed by the court), for appellants in 87-3069, et al. Dennis M. Hart also entered an appearance for appellants in 87-3069. Douglas J. Wood also entered an appearances for appellants in 87-3070.

Rachel Adelman-Pierson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., were on the brief for appellee in 87-3069, et al.

Before D.H. GINSBURG and SENTELLE, Circuit Judges, and ROBINSON, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Concurring Opinion filed by Circuit Judge SENTELLE.

PER CURIAM:

Appellants Gregory McNeil, James Chaney, and Reginald Porter, along with others not parties to this appeal, were convicted of conspiring to distribute heroin, in violation of 21 U.S.C. Sec. 846, and of various substantive offenses in furtherance thereof. Their primary contention on appeal is that their convictions were obtained in violation of their right to a speedy trial, as guaranteed by the Speedy Trial Act of 1974, 18 U.S.C. Secs. 3161 et seq., and the Sixth Amendment to the Constitution. In the alternative, they challenge the district court's refusal to sever certain counts, the sufficiency of the evidence on various counts, and the admission of certain evidence.

We hold that the district court abused its discretion in granting the Government's day-of-trial continuance motion on the ground that Stephen Simms was an "essential witness" within the meaning of 18 U.S.C. Sec. 3161(h)(3). The delay attributable to the continuance was not, therefore, excludable under the Speedy Trial Act, and consequently, the defendants were not brought to trial within the statutory time limit. We therefore reverse the convictions without addressing the other issues raised by the appellants.

I. FACTS

In early 1985, the United States Attorney for the District of Columbia convened a District of Columbia Superior Court grand jury to investigate the December 1984 murder of Antonio Glover and assault on Stephen Simms. District police arrested appellant Chaney for the shootings in July 1985, and he was held without bond. In April 1986, the police apprehended Willie Yelverton, who has since remained in custody. A search of his apartment turned up materials associated with the distribution of heroin.

The Superior Court grand jury indicted Chaney and Yelverton for first degree murder and assault with intent to kill while armed, D.C.Code Ann. Secs. 22-501, -2401, -3202; and Chaney for carrying a pistol without a license, id. Sec. 22-3204. Chaney's trial was set for September 29, 1986; no date was set for Yelverton's trial. The grand jury also indicted Porter, one of its witnesses, for perjury, id. Sec. 22-2511. Porter, who was arrested but not held, was assigned a trial date of October 15, 1986.

Meanwhile, a federal grand jury began a separate investigation into whether the defendants were operating a heroin distribution ring; this investigation culminated in the September 1986 indictment of Yelverton, Chaney, Porter, McNeil, Robert U. Horne, Archie H. Henderson, and Scarlet A. Parker for conspiring to distribute heroin from August 1984 to July 1985. The indictment also charged various defendants with committing substantive offenses in furtherance of the conspiracy, including possession with intent to distribute, and distribution of, heroin, 21 U.S.C. Sec. 841(a), interstate travel to carry on an unlawful activity, 18 U.S.C. Sec. 1952, and solicitation to commit first degree murder, D.C.Code Ann. Secs. 22-105, -107, -2401, 49-301; and joined the charges pending in the Superior Court against Chaney, Yelverton, and Porter. The defendants were arraigned in the district court in September 1986. Trial was set for December 3, 1986, and the Government obtained a dismissal of the indictments pending in Superior Court.

On December 3, 1986, with all parties present for the start of trial, the Government announced that it was "unable to go forward and must request a continuance [because Simms, an] essential witness with regard to the counts involved, the specific substantive counts of assault with intent to kill while armed and the first degree murder while armed ... is ... detained in Fairfax County, Virginia." It therefore moved for a continuance for at least two months, under Sec. 3161(h)(3) of the Speedy Trial Act. The defendants opposed the continuance, requesting severance of the murder and assault charges and immediate trial on the remaining counts. The Government opposed severance, arguing that the murder and assault charges, which were allegedly committed in furtherance of the conspiracy, were integral to its case.

In response to the defendants' claim that Simms was not an essential witness, the Government stated:

We are not talking about a peripheral witness. We are not talking about a cumulative witness. We are not talking about a corroborative witness. We are talking about a named complainant in the indictment.... This is not a peripheral witness.

The court denied the severance motions and granted the continuance until the next date on which the court and all counsel were available, April 9, 1987.

On February 4, the case was reassigned to a different judge, who, after a status hearing, proceeded to trial on April 9. Just prior to the voir dire, the defendants again raised the speedy trial issue, albeit somewhat tentatively. ("Your Honor, I just have one other issue. I don't think the Court has to rule on this. It has in a sense been ruled on in the past but I would submit Mr. Chaney's speedy trial motion [which was made on behalf of all defendants]. I just want to make sure that at this point that Mr. Chaney, again, wants to assert his right to a speed [sic] trial.").

At trial, Simms testified that on the night of the shooting, he and Glover were "over a girl's house smoking cocaine" until about 5:00 a.m. They then went to 14th and V Streets, N.W., the scene of the shootings, with about $500 each in cash. They gave a woman whom they recognized about $20 each to buy some drugs for them. Chaney and Glover started to follow her as she walked toward a parked car, but they stopped when a man told them not to approach the car. The woman returned, and gave them a package supposedly containing the drugs.

Simms then testified as follows. While trying to hail a cab, he "saw a guy standing by [a] trash can ... and got paranoid." Fearing that the man was going to rob him, he started to walk away. When he next turned around, the man had walked up "behind Mr. Antonio Glover, and he called another dude that was on the other side of the street." Simms then saw gunfire, saw Glover get shot, and was shot in the back himself. He testified that he had never before seen the two men, did not remember their faces, and could not identify them if he saw them again. He also testified that when he awoke in the hospital, he was missing approximately $200. Simms did not mention any of the defendants during his testimony.

Following Simms's testimony, the defendants "renew[ed] for the record [their] motion to dismiss this case for want of a speedy trial." They asserted:

Mr. Simms' testimony was basically one of the shortest witnesses we have had, didn't identify anyone who is allegedly involved in the shooting, and it became quite apparent, after listening to his testimony, that this case could have easily been tried back in December.... And, in fact, he was essentially a non-entity when he testified yesterday.

The court denied the motion to dismiss and

commend[ed] the prosecutor for doing what he did. This is a key witness. He might not have been long but the fact is that not to bring a person that was one of the people that was shot in a murder case ... would have unnecessarily raised questions that shouldn't have been raised. And the fact that the witness was not very favorable, it seems to me, to the government, could not identify any of the parties, is again the role that the government has to play. They should bring forth all witnesses, whether they are favorable or not.

II. THRESHOLD ISSUES

The Speedy Trial Act requires that a defendant be tried "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). The 70-day limit is not inflexible, however; the Act provides that certain "periods of delay shall be excluded in computing the time within which ... the trial of [an] offense must commence," id. Sec. 3161(h).

If the defendant is not tried within the required time, as extended by any periods of excludable delay, then "the information or indictment shall be dismissed on motion of the defendant." Id. Sec. 3162(a)(2). The defendant must formally invoke his speedy trial right, however: "Failure of the defendant to move for dismissal prior to trial ... shall constitute a waiver of the right to dismissal under this section." Id.

In this instance, it is not clear to us that the defendants properly invoked their speedy trial rights by moving to dismiss their indictments before the trial began. The Government has abjured the waiver issue, however. It does not, in its brief, even mention the defendants' failure formally to move for a dismissal. Moreover, when asked at oral argument whether the Government "still want[ed] to concede that this isn't a question of waiver," Government counsel responded: "I think that the statute provides that an objection needs to be made, and I think one was on the Speedy...