U.S. v. Nixon

• Decision Date: 12 December 1985
• Docket Number: D,No. 1259,1259
• Citation: 779 F.2d 126
• Parties: 19 Fed. R. Evid. Serv. 194 UNITED STATES of America, Appellee, v. Michael NIXON, Defendant-Appellant. ocket 85-1002.
• Court: U.S. Court of Appeals — Second Circuit

Page 126

779 F.2d 126

19 Fed. R. Evid. Serv. 194

UNITED STATES of America, Appellee, v. Michael NIXON, Defendant-Appellant.

No. 1259, Docket 85-1002.

United States Court of Appeals Second Circuit.

Argued June 13, 1985.

Decided Dec. 12, 1985.

Thomas H. Nooter, New York City, for defendant-appellant.

Charles E. Rose, Asst. U.S. Atty., E.D.N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Jane Simkin Smith, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before FRIENDLY, OAKES and WINTER, Circuit Judges.

WINTER, Circuit Judge.

Michael Nixon appeals from his conviction by a jury of conspiracy to possess with intent to distribute heroin, 21 U.S.C. Sec. 846 (1982); aiding and abetting the importation of heroin into the United States, 21 U.S.C. Secs. 952(a), 960(a)(1), 963 and 18 U.S.C. Sec. 2; and aiding and abetting possession of heroin with the intent to distribute, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Nixon was sentenced to concurrent five-year prison terms on each count, and concurrent ten-year special parole terms on counts two and three.

Nixon argues on appeal that: (i) the period of time between his arraignment and trial was impermissibly long under the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174; (ii) his trial was prejudiced by erroneous statements by a government witness that Nixon had previously been in jail; and (iii) the trial court improperly admitted hearsay evidence. For the reasons stated below, we affirm.

BACKGROUND

In May, 1984, Habib Makba, an informer for the United States Drug Enforcement Administration ("DEA") in Pakistan, was approached by Haqdad Khan, a Pakistani, about the possibility of importing two kilograms of heroin into the United States. Khan told Makba that the heroin was for two buyers in California and two days later identified these prospective buyers as Royal Franklin Gasso and Michael Nixon. Khan also gave Nixon's California phone number and address to Makba. Makba reported this information to DEA agents in Pakistan and agreed to carry the heroin to the United States as part of an undercover scheme.

Later in May, Makba received the two kilograms of heroin from Khan's brother. On June 17, he flew to New York and, after checking into a Holiday Inn, made several phone calls which were recorded by DEA agents. The first call was to Nixon who in turn gave Makba a number at which Khan, now in the United States, could be reached. Makba then arranged for Khan and Royal Gasso to come to New York to pick up the heroin.

Khan and Gasso took delivery of the heroin at a videotaped meeting in Makba's hotel room. They were subsequently arrested and agreed to cooperate with the government. Gasso and Khan, accompanied by DEA agents, flew to California via Denver in order to conduct a controlled delivery of the heroin to Nixon. Before and during the trip, Gasso made a series of calls to Nixon, also recorded. Nixon stated that he had made a plane reservation for Gasso in a fictitious name, and made statements that, by his own admission, "seem[ed] to indicate a knowledge concerning the purpose of Gasso's original trip to New York." Brief of Appellant at 6. After arriving in California, Gasso and the agents arranged to meet Nixon at a local restaurant. Nixon came to the restaurant but left when he saw Gasso in the company of others. He was arrested after he left the restaurant.

The period between Nixon's June, 1984 arrest and the beginning of his trial in October is the focal point of one of his claims on appeal. Nixon, Gasso and Khan were indicted on June 25, 1984. Nixon first appeared in court on July 6, 1984 but was unrepresented by counsel. A not guilty plea was entered on his behalf only on July 13, his first appearance with counsel.

At a July 27 conference on various pretrial motions, Nixon's attorney requested discovery of evidence in the government's possession and also expressed opposition to a government demand for Nixon's passport. At his request, the attorney was granted leave to submit a memorandum in opposition, with a subsequent opportunity for the government to respond. No papers were filed, however, and the passport was voluntarily turned over on August 9.

Also at the July 27 conference, Nixon's attorney indicated his intention to file a motion to take a foreign deposition. The court and the prosecutor pointed out that such a procedure would be time-consuming and involve the use of letters rogatory. Nixon's counsel persisted in his intention, however, and, as a consequence, the trial, which had been scheduled for August 13, was postponed.

On August 28 another conference was held. Defense counsel reaffirmed his intention to take a foreign deposition. A trial date of September 4 was then abandoned. Three days later, on August 31, defense counsel reversed his position, stating that he no longer planned to take the foreign deposition. He demanded an immediate trial. By then, however, the government had a problem getting witnesses to New York from Pakistan during the week of September 3. A trial date of September 10 was then set.

Nevertheless, trial did not begin on September 10. Co-defendant Gasso unexpectedly decided to go to trial and not to cooperate with the government. This reversal created several problems. Gasso's attorney was unavailable, first due to personal problems and later due to his appearance before the same judge in a different case. In order to accommodate both Gasso's counsel's and the court's scheduling conflicts, Gasso's trial was set for the week of October 22. Nixon moved on October 22 to dismiss his indictment because of a violation of the Speedy Trial Act. This motion was denied on the 23rd, and all parties agreed that the trial would be delayed until a new jury panel was available. Nixon's trial began on October 30.

On appeal, Nixon renews his claim that the period between his arraignment and trial violated his statutory right to a speedy trial. He also raises as error two incidents that took place at his trial. The first involved two statements by Makba on direct examination that Nixon had once been in jail in Pakistan on heroin-related charges. The other claim relates to a Telex introduced by the government on cross-examination of a defense witness, which the defense claims was improperly admitted hearsay evidence. We consider these issues seriatim.

DISCUSSION

1. The Speedy Trial Claim

The Speedy Trial Act requires that a criminal defendant be brought to trial within seventy days of his indictment or "the date the defendant has appeared before a judicial officer," whichever is later. 18 U.S.C. Sec. 3161(c)(1). The Act lists specified circumstances in which periods of time must be excluded from the running of the seventy-day speedy trial "clock." Sec. 3161(h)(1)-(9). If the seventy-day limit is exceeded, the trial court is required to dismiss the indictment, with or without prejudice in the court's discretion. Sec. 3162(a)(2).

A. The Starting of the Speedy Trial Clock

Nixon first appeared in court on July 6 but was not represented by counsel and thus did not enter a plea. He first appeared with counsel on July 13, at which time he pleaded not guilty. Appellant argues, based on the "appeared before a judicial officer" language of Sec. 3161(c)(1), that the July 6 appearance started the speedy trial clock.

An examination of the relevant legislative history reveals that the statutory period was intended to begin only after an appearance at which a not guilty plea has been entered. Congress believed it would be wasteful to require the government to begin planning for trial when it was still possible that a defendant might plead guilty or nolo contendere. As the House Report stated,

After arraignment, a defendant is required to be brought to trial within 60 days at a place within the district set by the court. This language was substituted for that of the original Senate provision, again at the request of the Justice Department. The purpose of the amendment is to begin the running of the time limits from a logical point in the proceedings. At [arraignment], the defendant is required to plead to the charge contained in an information or indictment. The Department pointed out that it would be a waste of judicial resources to require the courts to schedule trials at the time of the filing of an indictment, due to the possibility that the defendant may choose to plead either guilty or nolo contendere, thus making trial unnecessary. The Committee believes that this provision is more consistent with the goals of Section 3161(a), which requires the court to set trial for either a day certain or on a weekly or other short-term calendar. The scheduling of trials for defendants who will ultimately plead guilty only serves to make more difficult the scheduling of trials for those who will demand them.

H.R.Rep. No. 1508, 93d Cong., 2d Sess. 30, reprinted in 1974 U.S.Code Cong. & Ad.News 7401, 7423. Moreover, the statute expressly applies only to cases in which pleas of not guilty have been entered. See 18 U.S.C. Sec. 3161(c)(1). It is evident, therefore, that the July 13 plea started the Speedy Trial Act clock in this case. Because the day after the triggering event is the first day to be counted, United States v. Simmons, 763 F.2d 529, 530 n. 1 (2d Cir.1985), the clock started on July 14.

Nixon's trial began on October 30. Thus, the relevant period for computation of the seventy-day limit is July 14-October 29, a total of 108 days. We must therefore consider which periods are excludable from the speedy trial clock.

B. Uncontested Excludable Periods

Nixon concedes the excludability of certain time periods. First, he concedes that July 27, the date on which pretrial motions were filed and decided, is excludable as a "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. Sec. 3161(h)(1)(F). Nixon also...