U.S. v. Rivera Const. Co., s. 88-5165

Citation863 F.2d 293
Decision Date19 January 1989
Docket Number88-5166,Nos. 88-5165,s. 88-5165
PartiesUNITED STATES of America v. RIVERA CONSTRUCTION COMPANY. Appeal of RIVERA CONSTRUCTION CO., INC., Appellant in 88-5165. UNITED STATES of America v. Joseph RIVERA. Appeal of Joseph L. RIVERA, Appellant in 88-5166.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Joseph H. Reiter, Kostos Reiter and Lamer, Edward F. Borden, Jr. (argued), Philadelphia, Pa., for appellants.

Richard J. Schechter (argued), Marion Percell, Edna Ball Axelrod, Chief, Appeals Div., U.S. Attorney's Office, Newark, N.J., for appellee.

Before BECKER, HUTCHINSON and SCIRICA, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Appellants Joseph Rivera and Rivera Construction Company ("RCC") appeal from their convictions of various offenses involving a conspiracy to defraud the United States Department of Defense ("DOD"). Their principal contention is that their rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1982), were violated by the district court's decision to order a continuance following disqualification of RCC's original trial counsel. We conclude that all of appellants' claims lack merit and we will affirm the convictions.

I.

Under the supervision of the Small Business Administration ("SBA"), small and disadvantaged companies are provided with "set-aside" contracts. Pursuant to 15 U.S.C. Sec. 637(a), SBA nominates minority or "disadvantaged" 1 companies to undertake government contracts. Thereafter, the nominated company and the particular government agency negotiate a price for the work to be done.

RCC was founded in 1978 by Rivera, who became its president and principal shareholder. RCC was nominated by SBA for set-aside contracts and thereafter began to negotiate construction contracts with the Directorate of Engineering and Housing ("DEH") at Fort Dix, New Jersey. Before negotiating a contract, DEH would prepare its own cost estimate for the project for use as a guide in the negotiation. The DEH estimates were to be confidential.

In 1984, Rivera approached DEH employees to discover the DEH estimates for particular projects before the contract negotiations. By knowing DEH's estimates, RCC could bid the estimate price even though its own costs for the job might be substantially lower than the DEH figures.

Over the next year and a half, RCC approached a number of DEH employees with offers of cash and other gratuities in exchange for providing RCC with the confidential estimates. Chief among these were Noel Gormay, a DEH draftsman, and Kenneth Don, Chief of DEH's Contract Administration Branch. Rivera ostensibly hired Gormay to provide drafting support to RCC but, from late 1984 until early 1986, Gormay provided Rivera and RCC with at least eight confidential DEH estimates in exchange for total payments of approximately $3,000. RCC paid Don $3,000 and did renovations to Don's home free of charge. In exchange, Don increased by almost $30,000 (or approximately 50%) the DEH estimate for an upcoming contract in order to match RCC's price.

In April 1987, Rivera and RCC, along with RCC employees Luis and Anthony Rivera, were indicted on one count of conspiracy to defraud the United States and eleven counts of bribery. Rivera and RCC were also charged with attempted bribery and obstruction of justice. During the pre-indictment stage, all four defendants were represented by one attorney, Guillermo Bosch. After indictment, Bosch entered his appearance on behalf of RCC.

All four defendants were arraigned on May 11, 1987, starting the clock running for purposes of the Speedy Trial Act, 18 U.S.C. Sec. 3161(c). Trial was originally scheduled for July 8, 1987. However, on June 10, the government moved to disqualify Bosch from representing any defendant in the case. At a hearing on July 20, the district court granted the motion and continued the trial, finding that a continuance was necessary to allow new counsel for RCC to prepare its case. 2 The court entered a written order on July 29, 1987, postponing the trial until October 13, 1987.

On July 16, 1987, one of the defendants filed a motion to permit his counsel to interview certain witnesses. On July 30, the district court deferred ruling on the motion, and requested that the parties attempt to settle the matter informally before returning for a hearing. By letter dated August 5, the government informed the district court that the matter appeared to have been resolved and, absent new developments, there would be no need for a hearing. Nonetheless, the motion was not withdrawn and no order disposing of the motion was entered.

On October 8, 1987, all the defendants filed a joint motion to dismiss the indictment for violation of the Speedy Trial Act. At a hearing on October 13, 1987, the district court denied the motion, reiterating that the continuance had been necessary for RCC's new counsel to prepare its case and, therefore, that the elapsed time was excludible from the Speedy Trial Act pursuant to 18 U.S.C. Sec. 3161(h)(8)(B)(iv).

On November 11, 1987, after a jury trial, RCC and Rivera were convicted of all 14 counts of the indictment. A judgment of acquittal was entered for Luis and Anthony Rivera.

On December 30, 1987--after RCC's conviction, but almost two months before it was sentenced--the district court entered an order appointing a receiver for the corporation. At a hearing held January 5, 1988, the district court maintained the appointment, in order to prevent the illegal diversion of corporate funds.

On February 25, 1988, both Rivera and RCC were sentenced. Rivera was sentenced to ten years imprisonment on each bribery count and two years on each of the other counts, all concurrent terms, and was fined $1,500,000. RCC was fined $1,100,000. The judgment of sentence for RCC made no reference to the receivership.

II.

Rivera and RCC contend that the continuance of the trial date until October 13, 1987 violated their rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174. Specifically, they argue that the district court did not place the reasons for ordering the continuance on the record until after the statutory period had expired and a motion to dismiss was filed, in violation of 18 U.S.C. Sec. 3161(h)(8)(A). The government responds that the district court placed sufficient reasons for the continuance on the record and, therefore, the period from July 30, 1987 until October 13, 1987 was excludible under 18 U.S.C. Sec. 3161(h)(8)(A). Alternatively, the government argues that the period from July 16, 1987 until October 13, 1987 was excludible, under 18 U.S.C. Sec. 3161(h)(1)(F), because during that entire period a motion was pending before the court for Anthony Rivera to interview witnesses. 3

The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." U.S. Const. amend. VI. Congress enacted the Speedy Trial Act to "give effect to the Sixth Amendment right to a speedy trial" by setting specified time limits after arraignment or indictment within which criminal trials must be commenced. H.R.Rep. No. 1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7401, 7402. A defendant must be brought to trial within 70 days following his indictment or first appearance before the court, whichever occurs later. 18 U.S.C. Sec. 3161(c). If the trial does not commence within the 70-day period, the Act requires that the indictment be dismissed. 18 U.S.C. Sec. 3162(a)(2).

Certain delays in commencing the trial may be excluded from calculation of the 70-day period. Section 3161(h) provides an exclusive list of nine circumstances which warrant exclusion, United States v. Carrasquillo, 667 F.2d 382, 388 (3d Cir.1981), including "[a]ny period of delay resulting from a continuance ... if the judge granted such a 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." 4 18 U.S.C. Sec. 3161(h)(8)(A). The district court may order such a continuance sua sponte but, in doing so, must set out its reasons for granting the continuance on the record, either orally or in writing. 18 U.S.C. Sec. 3161(h)(8)(A). 5 If the reasons are not placed on the record, the time is not excludible. United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983); United States v. Carrasquillo, 667 F.2d at 385-88.

Placing the reasons for an "ends of justice" continuance on the record serves two purposes:

First, Congress wanted to ensure that a district judge would give careful consideration when balancing the need for delay against "the interest of the defendant and of society in achieving speedy trial." S.Rep. No. 1021, 93d Cong., 2d Sess. 39 (1974). Second, the requirement provides a record so that an appellate court may review the decision. United States v. Molt, 631 F.2d 258, 262 (3d Cir.1980).

United States v. Brooks, 697 F.2d at 520. If the district court's reasons do not comport with these two purposes, they are not sufficient to satisfy the Act; without properly explained reasons, the delay is not excludible. Id.

Viewed in the totality of circumstances, we believe the district court made the requisite findings on the record and that those findings are supported by adequate evidence in this case. The district court balanced the interests of the public and of all the defendants and, when it ordered the continuance on July 20, 1987, it stated on the record that its reason for doing so was to allow the new counsel for RCC sufficient time to prepare his case:

We are bringing in new counsel representing a client, a client which may be a corporation, but has every right as your client has to independent and zealous...

To continue reading

Request your trial
69 cases
  • U.S. v. Gomez-Olmeda, CR. 03-073(JAF).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 12 Noviembre 2003
    ...offends the Sixth Amendment right to a speedy trial on which the STA is based, and must be dismissed. United States v. Rivera Const. Co., 863 F.2d 293, 295 (3d Cir.1988). In the case at bar, the Original Indictment was filed well within thirty days of Defendant's arrest. However, the Supers......
  • MCI Telecommunications Corp. v. Teleconcepts, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 8 Diciembre 1995
    ...Appellate Procedure 3(c), then the appellate court does not acquire jurisdiction over the undesignated issues. United States v. Rivera Constr. Co., 863 F.2d 293, 298 (3d Cir.1988). Even though the notice of appeal does not mention the September 15, 1992 order (denying Teleconcepts' motion t......
  • Drinkwater v. Union Carbide Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 6 Junio 1990
    ...requirements of Fed.R.App.P. 3 and 4, they may nevertheless construe those rules liberally. See United States v. Rivera Construction Co., Inc., 863 F.2d 293 (3d Cir.1988). Moreover, a liberal reading of the Elfman standard has been endorsed by this court after Torres. In Williams v. Guzzard......
  • City of Philadelphia Litigation, In re
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 3 Abril 1995
    ...now to appeal from that December 1988 dismissal, we must reject the attempt for lack of jurisdiction. See United States v. Rivera Const. Co., 863 F.2d 293, 298-99 (3d Cir.1988) ("where the order or judgment upon which the appellant seeks review is neither directly nor indirectly referred to......
  • Request a trial to view additional results
1 books & journal articles
  • The Not So Speedy Trial Act
    • United States
    • University of Whashington School of Law University of Washington Law Review No. 89-3, March 2020
    • Invalid date
    ...134. 18 U.S.C. §§ 3161(c)(1), 3161(h), 3162(a)(2) (2012). 135. Id. § 3161(h)(7)(A). 136. See United States v. Rivera Constr. Co., 863 F.2d 293, 297 (3d Cir. 1988) (holding that trial judges can delay articulating their on-the-record reasons for granting the continuance if those reasons are ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT