U.S. v. Rein
| Decision Date | 21 January 1988 |
| Docket Number | No. 87-2291,87-2291 |
| Citation | 848 F.2d 777 |
| Parties | 25 Fed. R. Evid. Serv. 1336 UNITED STATES of America, Plaintiff-Appellee, v. David A. REIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Brian A. Addy, Pekin, Ill., for defendant-appellant.
J. William Roberts, U.S. Atty., Springfield, Ill., Mark D. Stuaan, Asst. U.S. Atty., Peoria, Ill., for plaintiff-appellee.
Before CUMMINGS, and WOOD, Jr., Circuit Judges, and WILL, Senior District Judge. **
The defendant-appellant, David A. Rein, was charged with the offense of attempting to possess marijuana with intent to distribute, 21 U.S.C. Secs. 841(a)(1), 846, but convicted by a jury on June 9, 1987, only of the lesser included offense of attempting to possess marijuana in violation of 21 U.S.C. Secs. 844(a), 846. 1
On appeal, the defendant argues that his statutory and constitutional rights to a speedy trial were violated, that the district court erred in admitting evidence of defendant's prior conviction, and that the court erred in instructing the jury on the lesser included offense of which he was convicted. We affirm.
On May 22, 1986, Bruce Johansen was arrested when he attempted to purchase forty pounds of marijuana from undercover agents for $16,400. After his arrest, Johansen agreed to cooperate with law enforcement personnel. Thereafter as part of that cooperation he telephoned people he had previously contacted about buying marijuana. One of the people that Johansen contacted was the defendant.
About one week earlier, according to Johansen's testimony, the defendant and Johansen had met at a bar and discussed an opportunity Johansen had to buy some marijuana. Johansen had asked the defendant if he could give Johansen some money. He explained that a pound would cost $550, unless they bought a larger quantity, in which case the price would be $500 a pound. Johansen testified that the defendant said he might be interested in a pound, but that the defendant would get back to him about it.
A few days after that meeting, the defendant stopped by Johansen's girlfriend's trailer. Johansen was there alone. According to Johansen, the defendant gave him $2,500 in cash. The defendant made no comment about the money, but Johansen combined the defendant's money with other money he had in order to come up with the $16,400 which he used in attempting to buy marijuana from the undercover agents.
On May 22, the defendant received a telephone call from Johansen, and in response went to Johansen's residence. When the defendant arrived, an undercover agent led the defendant to the bedroom, where he showed the defendant some marijuana, saying that they would split it between them. After the defendant assented, he was placed under arrest.
Johansen testified that based on his conversations with the defendant, and the fact that the defendant gave him $2,500, Johansen believed that the defendant wanted to purchase five pounds of marijuana. A law enforcement agent testified that a purchase of five pounds of marijuana was inconsistent with a purchase merely for personal use. The defendant, who testified in his own behalf, denied that he had any agreement or understanding to purchase any quantity of marijuana from Johansen on May 22, 1986.
The defendant was originally charged on May 23, 1986, with conspiracy to possess marijuana with intent to distribute. An indictment on that charge followed on June 18, 1986. The defendant was arraigned July 11, 1986 and entered a plea of not guilty. On September 11, 1986, however, that indictment was dismissed without prejudice. The defendant was reindicted almost a year later and charged with attempting to possess marijuana with intent to distribute, which is this case.
The defendant argues that his rights under the Speedy Trial Act were violated, and that the second indictment should have been dismissed. The Act provides that when a defendant enters a plea of not guilty, the trial "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." 18 U.S.C. Sec. 3161(c)(1). The trial "shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se." 18 U.S.C. Sec. 3161(c)(2). The defendant may consent in writing to an earlier trial. Id. If these time limits are not met, dismissal of the indictment is appropriate.
The indictment under which the defendant was tried was filed April 21, 1987. The defendant appeared May 7, 1987, for arraignment on that charge before the United States Magistrate. Trial was scheduled to begin, and did begin, June 8, 1987. Although these dates clearly indicate compliance with the terms of the Act, the defendant argues that the district court erred in not combining the time that he had already run in connection with the original indictment with the time that had run in this, the second case.
Section 3161(h) provides for certain periods of delay that are to be excluded in time computations under the Act. Under section 3161(h)(6), if an indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay [is excluded] from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.
18 U.S.C. Sec. 3161(h)(6). We have found that, under this section of the Act, "if the information or indictment is dismissed upon the government's motion and if the defendant is later reindicted for the same offense, the time limitation commences with the first indictment, with tolling during the time no indictment is outstanding." United States v. Feldman, 761 F.2d 380, 388 (7th Cir.1985).
The key question is whether the reindictment was for the same offense, or an offense required to be joined in the first indictment. The first indictment here charged the defendant with conspiracy to possess marijuana with intent to distribute; the second indictment charged him with attempt to possess marijuana with intent to distribute. The district court used a double jeopardy analysis to decide whether the second indictment was for the same offense or one required to be joined to the first. Although we have not ruled on this specific approach, the Third Circuit approved it in United States v. Novak, 715 F.2d 810, 817 (3d Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984). In the Third Circuit's view, legislative history makes clear that the term, "required to be joined," not defined in the Speedy Trial Act, refers to joinder required by the double jeopardy clause of the Constitution. U.S. Const. amend. V; S.Rep. No. 96-212, 96th Cong., 1st Sess. 10 (1979).
Before proceeding to the double jeopardy analysis, the district court noted that there is no compulsory joinder under federal criminal law. See Fed.R.Crim.P. 8(a); 1 C. Wright, Federal Practice and Procedure Sec. 143, at 480 (2d ed. 1982); see also United States v. Rabbitt, 583 F.2d 1014, 1021 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). The two offenses charged in the two indictments thus were not required to be joined.
In evaluating whether two offenses are the same for double jeopardy purposes, courts look to whether either requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The original conspiracy charge required the government to prove the existence of an agreement between two or more persons to commit a criminal offense. The second indictment, charging the defendant with an attempt to commit a criminal offense, did not require proof of an agreement, but, unlike the conspiracy charge, did require the government to prove that the defendant took a substantial step toward completion of the offense. Under the Blockburger test, therefore, the two offenses were not the same for double jeopardy purposes, and thus were not the same under the Speedy Trial Act. The time that had passed in connection with the first indictment was appropriately excluded from the computation of time under the second indictment. See United States v. Jones, 808 F.2d 561, 568 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1630, 95 L.Ed.2d 203 (1987). The Speedy Trial Act was not violated.
The defendant asserts that even if his rights under the Speedy Trial Act were not violated, he was denied his constitutional right to a speedy trial. U.S. Const. amend. VI. 2 Because the defendant is challenging the delay between dismissal and reindictment, the proper constitutional basis for the defendant's argument is not the sixth amendment, but the due process clause of the fifth amendment. United States v. Fuesting, 845 F.2d 664, 669 (7th Cir.1988). "Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause." United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982) (footnote omitted).
Statutes of limitations are a defendant's primary safeguard against governmental delay that results in prosecution of stale criminal charges. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971); United States v. Antonino, 830 F.2d 798, 804 (7th Cir.1987). A defendant may demonstrate that the government violated his due...
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