U.S. v. Pasquale, 93-2144

• Decision Date: 02 June 1994
• Docket Number: No. 93-2144,93-2144
• Citation: 25 F.3d 948
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus PASQUALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 948

25 F.3d 948

UNITED STATES of America, Plaintiff-Appellee, v. Jesus PASQUALE, Defendant-Appellant.

No. 93-2144.

United States Court of Appeals, Tenth Circuit.

June 2, 1994.

Submitted on the Briefs: ^*

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Asst. Federal Public Defender, Denver, CO, for appellant.

John J. Kelly, U.S. Atty., and Rhonda P. Backinoff, Asst. U.S. Atty., Albuquerque, NM, for appellee.

Before MOORE, STEPHEN H. ANDERSON, and KELLY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Jesus Pasquale appeals his jury conviction for possessing cocaine with intent to distribute and for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846. He contends that (1) he was denied his statutory rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174, and (2) he was denied a fair trial because a witness referred to his withdrawn guilty plea. Because we reverse and remand for violation of the Speedy Trial Act, we do not address the evidentiary issue.

BACKGROUND

In November, 1991, Drug Enforcement Administration (DEA) agents in Albuquerque, New Mexico, arrested Gary Glembotski for transporting ten kilograms of cocaine on a cross-country Amtrak train. In exchange for leniency in his sentencing, Glembotski agreed to cooperate by completing his intended delivery to Jesus Pasquale. Accompanying Glembotski to New York City's Pennsylvania Station, officers observed the prearranged meeting and watched Glembotski hand over the suitcase containing cocaine, along with the key to the suitcase, to Pasquale. The officers then followed the two men to Pasquale's rental car where they arrested Mr. Pasquale and read him his Miranda rights in Spanish. When Pasquale refused to Mr. Pasquale entered a guilty plea under an agreement which provided for a two level reduction in his offense level for acceptance of responsibility. However, his persistent claim that he had been misled by Glembotski prevented him from actually getting the reduction, and at the sentencing hearing on September 18, 1992, he withdrew his plea and requested the appointment of a federal attorney. Because Glembotski had been represented by the Federal Public Defender's Office, a conflict prevented that office from representing Mr. Pasquale. Therefore, the district judge referred the matter to the magistrate judge for appointment of an attorney under the Criminal Justice Act.

open the suitcase, the officers took the key from his key chain, opened the suitcase, and showed him the cocaine. Thus confronted, Pasquale said, "You got me, there is nothing I can do," although he refused to assist in any further delivery because of concerns for his family. Mr. Pasquale and Mr. Glembotski were returned to New Mexico where they were indicted on federal drug offenses.

On October 6, 1992, the court set the trial date for November 30, the clerk's office contacted an attorney who agreed to represent Mr. Pasquale, and the clerk sent notices to government and new defense counsel. On November 20, defense counsel picked up the court file, and the paperwork appointing him was officially entered at that time.

On November 24, defense counsel moved for a continuance of the trial, specifically requesting a date in January. R.Vol. I, Tab 87. His motion stated that he needed more time to prepare adequately, that Mr. Pasquale had urged him to seek whatever delays were necessary, and that the government did not oppose the motion. A minute order entered on the same date granted his motion, ordered the trial rescheduled, and reassigned the case to another judge. Id. at Tab 86. On December 1, the trial was rescheduled for December 14. Id. at Tab 88.

On December 2, the new judge entered a second minute order, vacating the December 14 date because of defense counsel's specific request for a trial date in January. Id. at Tab 89. The trial was rescheduled for January 25, 1993. Id. at Tab 90.

On January 15, defense counsel moved to dismiss for violation of the Speedy Trial Act. Id. at Tab 91. The district court denied the motion and entered a nunc pro tunc order with specific reasons for excluding the delays. Id. at Tab 94.

DISCUSSION

We review the application of the legal standards of the Speedy Trial Act ("Act") de novo, and we review the district court's factual findings for clear error. United States v. Davis, 1 F.3d 1014, 1017-18 (10th Cir.1993).

Under 18 U.S.C. Sec. 3161(c)(1), trials must commence within seventy days from the filing date of the indictment, excluding the delays covered by section 3161(h). When trial is delayed because a previously entered guilty plea is withdrawn, Sec. 3161(i) of the Act provides that a defendant "shall be deemed indicted" on the day that an order permitting withdrawal becomes final. In Mr. Pasquale's case, this date was September 18, 1992. Mr. Pasquale contends that his trial should have begun by December 1, and that the district court erred in excluding the sixty-three day delay between September 18, the date he requested new appointed counsel, and November 20, the date the document appointing his new attorney was entered in the file. ¹

Section 3161(h)(1) excludes delays resulting from other proceedings concerning the defendant. ² Subsection (F) excludes the delay resulting from any pretrial motion, from the filing through hearing or prompt disposition. Oral motions can toll the Act. United States v. Louis, 814 F.2d 852, 857 (2nd Cir.1987). For motions that require hearings, the delay need not be reasonably necessary. Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 1876-77, 90 L.Ed.2d 299 (1986). However, since there was no hearing on Pasquale's motion for new counsel, the governing provision is Sec. 3161(h)(1)(J) which excludes "delay reasonably attributable to any period not to exceed thirty days, during which any proceeding ... is actually under advisement...." 18 U.S.C. Sec. 3161(h)(1)(J) (emphasis added). "The phrase 'prompt disposition' was intended to prevent a district court from using subsection (F) to exclude time after a motion is taken under advisement when that time fails to qualify for exclusion under subsection (J)." Henderson, 476 U.S. at 329, 106 S.Ct. at 1876.

The defendant has the burden of proof of supporting a motion to dismiss for violation of the Speedy Trial Act. 18 U.S.C. Sec. 3162(a)(2). Most of Mr. Pasquale's contentions are unsupported and without merit. His argument that his fourth request regarding representation is not a specified exclusion under Sec. 3161(h)(1) ignores the Act's plain language, which excludes delays resulting from motions or proceedings concerning the defendant. Cf. United States v. Willie, 941 F.2d 1384, 1387-88 (10th Cir.1991) (motion to proceed pro se included in tolling motions), cert. denied, --- U.S. ----, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992). His argument that his request was disposed of when he made it contradicts the record. At the time he withdrew his guilty plea, he had already requested and effected the termination of two appointed attorneys and was then represented by a third, whom he had hired privately. Thus, it was necessary to ascertain whether he qualified for a court appointed attorney, and the conflict with the Federal Defenders Office, which had represented Glembotski, prevented the court from summarily appointing that office. We therefore conclude that the court's referral to the magistrate "to look into it and appoint an attorney," R.Vol. VII at 18, deferred the matter for later disposition or advisement.

On October 6, 1992, the court clerk called defense counsel Reber Boult and asked him to represent Mr. Pasquale. R.Vol. I, Tab 87. At that time, Mr. Boult agreed to represent Mr. Pasquale. R.Vol. I, Tab 94. That same day, the court set trial for November 30, 1992, and the clerk sent a notice to Mr. Boult as the specified attorney for Mr. Pasquale. R.Vol. I, Tab 84. When it sent the notice of trial setting to Mr. Boult, the court treated the appointment as effective. ³ Therefore, on October 6, 1992, the period of actual advisement appears to have been completed, with the subsequent entry of the formal appointment being ministerial only. The district court found that the delay in formalizing the appointment was reasonable. R.Vol. I, Tab 94. However, even if the entire delay were reasonable, 18 U.S.C. Sec. 3161(h)(1)(F) and (J) limit the permissible exclusion to the period from September 18 through October 6, as that was the date of prompt disposition or the end of the period of actual advisement.

Mr. Pasquale also complains that the delay due to the continuance, from November 24 to January 25, was improperly excluded. Appellant's Br. at 15 n. 5. ⁴ Mr. Pasquale asks us to direct the district court to reconsider this exclusion on remand. Since this exclusion involves the application of the Act's legal standards, we review de novo.

Section 3161(h)(8)(A) provides that no delays resulting from periods of continuances shall be excludable "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." Although we have recognized that findings may be "entered on the record after the fact," we have insisted that "they not be made after the fact." United States v. Doran, 882 F.2d 1511, 1516 (10th Cir.1989).

Unless it is clear from the record that the trial court struck the proper balance when it granted the continuance, the twin purposes of the record requirement will be ill-served. The trial court will not focus properly on the correct balancing at the time the continuance is granted, and the appellate court will have to settle for reviewing retroactive rationalizations instead of contemporaneous reasoning.

Id. Thus, the "failure to make 'ends of justice' findings at each...