U.S. v. Mitchell, 82-1930

• Decision Date: 29 December 1983
• Docket Number: No. 82-1930,82-1930
• Parties: UNITED STATES of America, Appellee, v. Mark A. MITCHELL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1040

723 F.2d 1040

UNITED STATES of America, Appellee, v. Mark A. MITCHELL, Defendant, Appellant.

No. 82-1930.

United States Court of Appeals First Circuit.

Argued Oct. 3, 1983.

Decided Dec. 29, 1983.

Karnig Boyajian, Boston, Mass. by appointment of the Court, for defendant, appellant.

James F.X. Dinneen, Asst. U.S. Atty., Boston, Mass. with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN and BOWNES, Circuit Judges, and SMITH, ^* Senior District Judge.

BOWNES, Circuit Judge.

This is an appeal from a conviction, following a jury-waived trial, of a conspiracy under 18 U.S.C. Sec. 371 to possess stolen mail, 18 U.S.C. Sec. 1708, to forge and utter forged documents, 18 U.S.C. Sec. 495, and to illegally possess food stamps, 7 U.S.C. Sec. 2024(b). The issues before us all stem from defendant's claim that he was denied his statutory and constitutional right to a speedy trial. In addition to alleging violations of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1974) (amended 1979), defendant also claims that his fifth amendment right to due process of law and sixth amendment right to a speedy trial were infringed, and that the indictment should have been dismissed pursuant to Federal Rule of Criminal Procedure 48(b).

I. THE SPEEDY TRIAL ACT ISSUES

A. The Ex Parte Granting of the Government's Motion to Extend the Time for Filing the Indictment

18 U.S.C. Sec. 3161(b) provides in pertinent part: "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."

Defendant was arrested on February 5, 1982, pursuant to a complaint dated February 4, and held in custody until February 12, when he was released on bail. The indictment, therefore, should have been filed within thirty days of February 5. Failure to file within the thirty-day period requires that the complaint shall be dropped or otherwise dismissed unless the time limit under section 3161(b) has been extended by section 3161(h). The time limit was extended to March 25; it is the manner in which the extension was granted that is the nub of this issue.

On March 1, 1982, the government filed a motion to extend the time for filing the indictment from March 8 ¹ to March 25. Notice of this motion was not given to defense counsel. The motion was granted ex parte on March 3, 1982. Defense counsel was not notified of this either. On March 11, defense counsel filed an objection to the extension motion not knowing that it had already been granted. ² On March 25, an indictment was issued against defendant and six others. Two of the others were named as Jane and John Doe.

We now turn to section 3161(h)(8)(A) which excludes from the Speedy Trial Act's time requirements a period of delay within which an indictment must be filed:

Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

Section 3161(h)(8)(B) lists the factors, which the judge shall consider, among others, in determining whether to grant a continuance under (A). Pertinent here is (B)(iii) which provides:

Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex.

The reasons given by the government for seeking an extension of the indictment filing date were stated in its motion as follows:

The Government has obtained records and documents of the food stamp program and has sent these documents to Washington, D.C. for laboratory analysis which will be necessary to determine the extent and nature of the participation in this scheme of each of the defendants.

Because of the volume of this material the requested analysis has not yet been completed.

In view of the fact that the analysis referred to above is necessary to determine the extent of the conspiracy, evidence of which will be presented to the Grand Jury, and for the other reasons stated above, it is requested that the time for filing an indictment in this matter be extended until March 25, 1982.

In granting the motion, the court stated:

Allowed. The ends of justice served by the granting of the requested continuance outweigh the best interests of the public and the defendant in a speedy trial because the facts upon which the grand jury must base its determination are unusual because of the volume of papers which must be submitted to analysis. 18 U.S.C. Sec. 3161(h)(8)(A) and (B)(iii).

We first note that there is nothing in section 3161(h)(8)(A) requiring that a hearing must be held before a motion for continuance is granted. Indeed, the provision that a continuance may be granted "by any judge on his own motion" suggests that a hearing is not required. Although most cases involving section 3161(h)(8)(A) indicate that a hearing had been held, we have found none holding that one is necessary. In United States v. Edwards, 627 F.2d 460, 467 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980), a sua sponte granting of a continuance by the court after it was informed that counsel for one of the codefendants was ill and that the prosecution had a conflicting trial schedule was upheld, even though the reasons for the continuance were not articulated by the court until later. We hold that the ex parte action of the district judge was not a violation of the Speedy Trial Act. There may be times, as here, when the reasons for granting the continuance are so clear that no hearing is necessary. Under such circumstances, the court would be furthering the purposes of the Speedy Trial Act by eliminating the delay, excludable under section 3161(h)(1)(F), ³ inherent in the time required for notice and hearing. We caution, however, that ex parte action should be the exception, not the rule. The granting of a continuance under (h)(8)(A) is not to be done lightly or routinely. We agree with the Ninth Circuit that "the discretion granted to the trial court to invoke the ends of justice exception is narrow." United States v. Perez-Reveles, 715 F.2d 1348, 1351 (9th Cir.1983). Although we find no abuse of discretion in this instance, United States v. Hope, 714 F.2d 1084, 1086 (11th Cir.1983); United States v. Jodoin, 672 F.2d 232, 238 (1st Cir.1982), ex parte actions under (h)(8)(A) are red flag signals to an appellate court.

We emphatically reject the argument of the government that section 5(c)(1)(B) of the Massachusetts Plan for Prompt Disposition of Criminal Cases "specifically authorizes ex parte consideration of preindictment motions for additional time to file indictments." Supplemental Memorandum of Government. The pertinent part of the rule states: "In appropriate circumstances, the motion may include a request that some or all of the supporting material be considered ex parte and in camera." This is not a license to handle preindictment motions by the government ex parte and if it has been so interpreted, it is hereby revoked.

We turn next to the question whether the district judge met the requirements of (h)(8)(A) and (B) in ruling on the motion to extend the time for filing the indictment. Where the motion sets forth the basic facts, and they are obvious, it is not necessary for the court to articulate them. United States v. Guerrero, 667 F.2d 862, 866-67 (10th Cir.1981), cert. denied, 456 U.S. 964, 102 S.Ct. 2044, 72 L.Ed.2d 490 (1982). By tracking the language of the statute, the judge here demonstrated that he was aware of what requirements had to be met before a continuance could be granted. The facts meeting those requirements were set forth clearly in the motion. Reading the motion and the judge's rulings as complementary documents, we have no difficulty finding that the provisions of (h)(8)(A) and (B) were satisfied. The only reasons defendant gives for finding the continuance invalid are that he was entitled to a speedy trial and that section 3161(b) mandated that the indictment be returned within thirty days of his arrest. He does not challenge the reasons given by the government for requesting an extension of the indictment period except to argue that the government should not have arrested him when they did if the evidence was not sufficient for an indictment. These contentions restate some of the policies underlying the Speedy Trial Act, but the Congress also recognized that the time limit requirements of the Act must be flexible enough to accommodate the practicalities of our adversary system. The excludable time provisions of (h) do this.

Defendant's rights under the Speedy Trial Act were not violated by allowing the government an additional period of seventeen days in which to file the indictment. This period of delay was properly excluded from the time requirements of section 3161(b).

B. The Superseding Indictment

On May 13, 1982, a superseding indictment was brought. The only change from the original was to state the actual names of the two codefendants listed in the...