U.S. v. Perez-Reveles

• Decision Date: 13 September 1983
• Docket Number: PEREZ-REVELE,D,No. 81-1708,81-1708
• Citation: 715 F.2d 1348
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedroefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1348

715 F.2d 1348

UNITED STATES of America, Plaintiff-Appellee, v. Pedro PEREZ-REVELES, Defendant-Appellant.

No. 81-1708.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 1, 1982.

Decided Sept. 13, 1983.

Brian C. Leighton, Fresno, Cal., for plaintiff-appellee.

Tim Magill, Fresno, Cal., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before MERRILL and HUG, Circuit Judges, and BROWN, ^* District Judge.

HUG, Circuit Judge:

Pedro Perez-Reveles appeals his convictions for distribution of heroin and conspiracy to distribute heroin. 21 U.S.C. §§ 841(a) and 846. He contends it was error to deny his pretrial motion for dismissal of the indictment because the trial did not commence within the 70-day period required by the Speedy Trial Act (the "Act"), 18 U.S.C. §§ 3161-3174. We hold that the appellant was not tried within the required 70-day period, and therefore the convictions must be reversed and the indictment dismissed pursuant to section 3162 of the Act.

I Facts

Perez-Reveles was arrested on July 2, 1981. He appeared that day before a magistrate, and was held to answer to the charges of unlawful possession of heroin with intent to distribute and conspiracy to distribute. He was indicted on July 16 and arraigned on July 20, at which time trial was set for August 25. On August 10, Perez-Reveles appeared with court-appointed counsel to confirm the trial date. However, on August 24, the attorney appeared without Perez-Reveles. He stated that Perez-Reveles's codefendants had pleaded guilty that day, and "[i]t will be my intention to not go to trial tomorrow so we can continue our matter so we can use those persons as witnesses after they are sentenced and also to convey an offer that was made to me today to my client." The district court granted the continuance request. Perez-Reveles appeared with counsel for trial confirmation on August 25, and the trial was reset for September 22.

Shortly before September 22, Perez-Reveles substituted retained counsel. He and his attorney appeared on September 22, ready for trial. The Government attorney assumed that the new defense attorney would not be prepared for trial so soon after his substitution and would request a continuance, and thus no jury was empaneled. Perez-Reveles was unwilling to waive the jury. The court suggested the trial be set for September 29, but the Government attorney had a conflicting criminal trial on that date. Defense counsel stated: "[Perez-Reveles] was quite adamant that he proceed to trial as soon as possible, simply because his family and other resources simply do not have any assets with which to post bail. Simply stated, he is in custody, and he wants to proceed to trial at the earliest possible date. And he also told me while I visited him on the initial meeting that he would not waive any of his time limitations. He would try to exercise his speedy trial rights as much as he could."

It was finally agreed that the earliest date at which trial could be reset was October 27. Perez-Reveles appeared with counsel on October 19 to confirm that trial date. He then appeared for trial on October 27 and moved for dismissal of the indictment on the basis that the trial had not commenced within the 70-day limitation prescribed by the Speedy Trial Act. The Government conceded that the 70-day limitation had been exceeded, but argued that the Government should not be faulted because the defendant changed attorneys approximately two months after he was arraigned on the indictment. The Government attorney also argued that Perez-Reveles's court-appointed attorney had been trying to negotiate a plea bargain prior to his withdrawal from the case. The district court denied the motion to dismiss. It found that the 29-day period from August 25 to September 22 was an excludable continuance under 18 U.S.C. § 3161(h)(8)(A) "because of the complexity of the trial and also the settlement pending ...."

II Calculation of the Speedy Trial Period

Section 3161(c)(1) of the Act requires that "[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence 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." When the defendant is arrested prior to indictment, and makes an initial appearance before a magistrate who orders him held to answer the charges in the district court, the 70-day pretrial period runs from the date of his indictment. United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir.1982).

Perez-Reveles's indictment on July 16 thus triggered the Act's 70-day limitation period in his case. The trial commenced October 27, some 103 days later. Even if the 29-day period from August 25 to September 22 is properly excludable, there remains a period of 74 days from the date of the indictment, July 16.

The parties contest whether the four days exceeding the 70-day maximum were properly excluded under the provisions of section 3161(h)(1) of the Act. We need not reach the arguments concerning these contested days of exclusion because we find that the 29-day continuance period was not excludable, and thus the 70-day maximum was exceeded even if the four days were properly excluded.

III Exclusion of Continuance

Section 3161(h)(8)(A) provides that the court may exclude any period of delay resulting from a continuance granted by the judge on his own motion or at the request of either party "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." The "ends of justice" exclusion was included in the Act "in response to the concern that courts need discretion to respond to characteristics of individual cases similar to those granted automatic exclusion." United States v. Nance, 666 F.2d 353, 355 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982). However, the discretion granted to the trial court to invoke the ends of justice exception is narrow. "Realizing that broad discretion would undermine the mandatory time limits of the Act," Congress intended that the ends of justice continuance be "rarely used." Id. at 355.

Congress accordingly imposed two explicit limitations on the court's discretion to grant such continuances. First, to ensure that "the continuance provision ... not be invoked for reasons other than those which would meet the ends of justice," the Act enumerates four factors that must be considered by the district court before a continuance can be granted. H.R.Rep. No. 1508, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 7401, 7426 (hereinafter cited as "House Report"). Among those factors is "[w]hether the case is so ... complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation" within the time limits established by the Act. 18 U.S.C. § 3161(h)(8)(B)(ii). ¹

Second, the court's discretion to grant continuances upon a finding that the ends of justice are served is qualified by the limitation that:

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.

18 U.S.C. § 3161(h)(8)(A). ² The essential inquiry in this case is whether the trial court satisfied this requirement by stating, either orally or in writing, its reasons for granting the August 24 continuance. ³

Both the Act and its legislative history establish that no continuance period may be excluded unless the court makes reasonably explicit findings that demonstrate that the ends of justice served by granting the continuance do, in fact, outweigh the best interests of the public and the defendant in a speedy trial. United States v. Fielding, 645 F.2d 719, 722 (9th Cir.1981); see also United States v. Guerrero, 667 F.2d 862, 867 (10th Cir.1981), cert. denied, 456 U.S. 964, 102 S.Ct. 2044, 72 L.Ed.2d 490 (1982); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir.1979). It is clear that in passing the Act, Congress intended to eliminate the practice of granting continuances as a matter of course. The Act provides that "[n]o continuance ... shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the ... Government." 18 U.S.C. § 3161(h)(8)(C). In order to ensure that continuances are not granted for such purposes, Congress required the district courts to state their reasons for granting the continuance. As the legislative history of the Act makes clear, those reasons must be "set forth with particularity." House Report at 7426 (emphasis added).

In the instant case, there were two opportunities for the district court to make the required findings. The first was on the date of the request, August 24. In response to Perez-Reveles's attorney's discussion of his motion for the continuance, the court responded only "[v]ery well then," thus granting the motion. The court's failure to characterize the continuance as an "ends of justice" exclusion or to make specific findings at that time is entirely understandable. The ruling occurred in a rather informal colloquy between the court and the attorney; Perez-Reveles was not present. At the time of the ruling, trial well within...