U.S. v. Noone, No. 89-1691

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before CYR, Circuit Judge, COFFIN and BOWNES; CYR
• Citation: 913 F.2d 20
• Parties: 31 Fed. R. Evid. Serv. 229 UNITED STATES of America, Appellee, v. Peter NOONE, Defendant, Appellant. . Heard
• Decision Date: 07 March 1990
• Docket Number: No. 89-1691

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913 F.2d 20 31 Fed. R. Evid. Serv. 229 UNITED STATES of America, Appellee,
v.
Peter NOONE, Defendant, Appellant. No. 89-1691. United States Court of Appeals,
First Circuit. Heard March 7, 1990.
Decided Sept. 6, 1990.

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Owen S. Walker, Federal Defender Office, for defendant, appellant.

Mary Elizabeth Carmody, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for the U.S.

Before CYR, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

CYR, Circuit Judge.

Appellant Peter Noone was convicted of conspiring to destroy property belonging to the Plaza Auto Clinic in Chicopee, Massachusetts, and aiding and abetting its destruction, by means of an explosive device, under 18 U.S.C. Secs. 2, 371 and 844(i). Noone asserts on appeal that the district court mistakenly denied his motion to dismiss the indictment for failure to comply with the Speedy Trial Act of 1974, as amended, 18 U.S.C. Secs. 3161-3174, misinformed the veniremen on voir dire, misinstructed the jury, and erroneously overruled his objection to a leading question. We affirm.

I. Speedy Trial Act Claim

On February 17, 1988, a federal grand jury indicted Noone and four others in connection with the bombing of the Plaza Auto Clinic. Noone's first appearance before a judicial officer in the District of Massachusetts occurred on July 1, 1988, when a magistrate continued the initial pretrial detention hearing to permit Noone to obtain counsel on Noone's representations that he is dyslexic and has difficulty with oral communication. Detention was ordered pending further hearing. Notwithstanding Noone's assurances that he would retain counsel, he appeared without counsel on July 6 and again on July 13. On July 13, prompted by Noone's unusual behavior on that occasion and at previous appearances, the government filed a motion for psychiatric examination and for determination of Noone's competency to stand trial. Hearing on the motion was deferred pending the appearance of Noone's new counsel. On July 14 the magistrate ordered detention pending trial. The next day the government filed a motion for severance, which was allowed on July 18.

At the July 28 hearing on the motion for psychiatric examination under 18 U.S.C. Sec. 4247(b), see infra note 7, Noone was represented by court-appointed counsel, Stewart Graham, Esq. On July 29 the magistrate ordered that Noone undergo examination to determine criminal responsibility and competency to stand trial. When Noone finally arrived at Butner Correctional

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Center on September 8, 1988, he refused to cooperate in the examination, which necessitated an extension of the examination period from October 23 until November 22. On November 23, the authorities at Butner notified the United States Marshals Service that Noone would be released for return to Massachusetts. The record does not indicate when Noone left Butner or when he arrived in Massachusetts, only that he remained at Butner on December 19 and that he again appeared before a magistrate in the District of Massachusetts on January 6, 1989.

On January 6, 1989, Noone orally requested the magistrate to reconsider the pretrial detention order. Attorney Graham requested leave to withdraw as counsel, citing Noone's refusal to cooperate and Noone's threats of legal action if Graham continued to represent him. The magistrate described Noone's behavior as an obvious "attempt to disrupt and manipulate." Due to his dyslexia, Noone was not permitted to proceed without counsel, and the magistrate directed Noone to retain counsel or to accept representation by the federal defender. Noone ultimately decided that Graham should continue to represent him throughout the reopened pretrial detention proceedings. Noone agreed to retain counsel thereafter.

Three more detention hearings were held before the magistrate, and on February 2 the district court ordered Noone detained pending trial. Graham was allowed to withdraw as counsel. The magistrate ordered Noone to appear for arraignment, with replacement counsel, on February 14. Instead, Noone appeared without counsel, which the magistrate described as "an unconscionable effort ... to delay the proceedings." The magistrate refused to allow Noone to proceed pro se, and the arraignment was continued. On March 6, Noone was represented by the federal defender, but refused to enter a plea, and the magistrate directed the entry of a "not guilty" plea.

Various discovery motions were filed in behalf of Noone on March 13. On March 20 Noone personally filed objections to the manner in which the magistrate had conducted the arraignment. These objections were resolved by the district court on April 11. On April 12 the government objected to Noone's discovery motions, which were decided April 26.

On May 16 Noone moved to dismiss the indictment pursuant to the Speedy Trial Act. The district court denied the motion on May 22, the first day of trial. Due to the fact that the "defendant's behavior, including his refusal to accept or retain counsel, was the major factor in the delay," the district court held that the seventy-day pretrial period permitted under the Speedy Trial Act did not start running until the arraignment on March 6, 1989. ¹

Under the Speedy Trial Act, trial was required to begin within seventy nonexcludable days after July 1, 1988, the date Noone first appeared before a judicial officer in the District of Massachusetts.

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an ... indictment ... shall commence within seventy days ... from the date the defendant has appeared before a judicial officer of the court in which such charge is pending.

18 U.S.C. Sec. 3161(c)(1). Thus, Noone's timely motion to dismiss must be allowed if he can establish that more than seventy nonexcludable days elapsed during the 325-day period from his first appearance on July 1, 1988, to the commencement of trial on May 22, 1989. Id. Sec. 3162(a)(2). There is agreement that at least 136 days are

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excludable ² and 25 days nonexcludable, ³ leaving the excludability of 164 days at issue. We conclude that 270 days were excludable under section 3161(h)(1) ⁴ and that no more than 55 nonexcludable days elapsed before the commencement of trial.

Pre-arraignment Period (July 1, 1988--March 6, 1989)

(a) Pre-Butner Phase (July 1-29, 1988)

Noone concedes that the July 1-18 period is excludable as "delay resulting from any pretrial motion," 18 U.S.C. Sec. 3161(h)(1)(F), due to the pendency of the motions for pretrial detention and severance. Noone disputes the excludability of the ensuing eleven days as "delay resulting from any proceeding, including any examinations, to determine the mental competency ... of the defendant," id. Sec. 3161(h)(1)(A). Noone's contention is based on an erroneous assumption that the period of excludable delay under section 3161(h)(1)(A) does not begin until entry of the order of commitment for examination. Instead, the filing of the motion to commit, on July 13, activated the automatic exclusion under section 3161(h)(1)(F). Moreover, it has been held that the section 3161(h)(1)(A) exclusion itself begins when a motion to determine competency is filed. See, e.g., United States v. Howell, 719 F.2d 1258, 1262 (5th Cir.1983), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). See also Committee on the Administration of the Criminal Law, Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended ["STA Guidelines"], at 30. Thus, the entire period from July 1 through July 29 was excludable.

(b) Butner Phase (July 30, 1988--January 6, 1989)

The entire period from July 30, 1988, through January 6, 1989, when the magistrate ruled that Noone was competent to stand trial, is excludable under 18 U.S.C. Sec. 3161(h)(1)(A), unless, as Noone vigorously asserts, there were impermissible delays in (1) transporting him to or from Butner and (2) conducting the examination at Butner.

(i) Transportation to Butner

Section 3161(h)(1)(H) excludes "delay resulting from transportation ... to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant's arrival at the destination shall be presumed unreasonable." 18 U.S.C. Sec. 3161(h)(1)(H). After the magistrate ordered the examination, 40 days elapsed before Noone arrived at Butner. ⁵ Thus, under section 3161(h)(1)(H), 30 days are presumed to have elapsed due to unreasonable delay and to be nonexcludable. ⁶

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6] As the government offers no explanation of the transportation delay, it has failed to rebut the presumption of nonexcludability. See, e.g., United States v. Taylor, 821 F.2d 1377, 1384 (9th Cir.1987), rev'd on other grounds, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988); United States v. Jervey, 630 F.Supp. 695, 697 (S.D.N.Y.1986) ("[O]rdinary institutionalized delay is not an excuse. When this Act was passed Congress knew all about the customs and practices of the prison bus.")

(ii) Butner Examination

Noone contends that the maximum exclusion for delay attendant to psychiatric examinations conducted under 18 U.S.C. Sec. 4247(b) ⁷ is 45 days. We do not address Noone's contention, however, since the court ordered the commitment to Butner for two purposes: evaluation of sanity (criminal responsibility) at the time of the offense, see id. Sec. 4242, and competency to stand trial, see id. Sec. 4241. ⁸ Section 4247(b) permits the court to order a 45-day psychiatric examination for the determination of a defendant's sanity at the time of the offense (criminal responsibility), id. Sec. 4242, and to extend the examination period for up to 30 additional days for good cause.

When the initial 45-day examination period expired on October 24, Butner requested a 30-day extension on account...