U.S. v. Roman

• Citation: 822 F.2d 261
• Decision Date: 22 June 1987
• Docket Number: No. 948,D,948
• Parties: UNITED STATES of America, Appellant, v. Martin ROMAN, Defendant-Appellee. ocket 86-1521.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 261

822 F.2d 261

UNITED STATES of America, Appellant, v. Martin ROMAN, Defendant-Appellee.

No. 948, Docket 86-1521.

United States Court of Appeals Second Circuit.

Argued March 31, 1987.

Decided June 22, 1987.

Bruce A. Baird, New York City, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Aaron R. Marcu, Asst. U.S. Atty., of counsel), for appellant.

Joel A. Brenner, New York City (Kenneth Joelson, Bobick, Joelson & Rochkind, New York City, of counsel), for defendant-appellee.

Before FEINBERG, Chief Judge, PRATT and ALTIMARI, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

The United States of America appeals, pursuant to 18 U.S.C. Sec. 3731, from an order of the United States District Court for the Southern District of New York, Leisure, J., 646 F.Supp. 1568 (1986), dismissing with prejudice, on speedy trial grounds, one count of a superseding indictment charging appellee Martin Roman with managing a continuing criminal enterprise ("CCE") to distribute heroin in violation of 21 U.S.C. Sec. 848. Roman moved to dismiss the CCE charge, which was first asserted as part of the superseding indictment, on the ground that his right to be tried within 70 days following arraignment on the original indictment had been violated, even though, due to certain exclusions, the speedy trial clock had not yet run out on the original indictment.

The district court concluded that the CCE charge was "required to be joined with" the conspiracy charge of the original indictment, and that the 70-day speedy trial clock therefore commenced to run on the CCE charge with the date of arraignment on the original indictment, but that the exclusions of time under 18 U.S.C. Sec. 3161(h), which had been applied to the original indictment, should not be applied to the additional CCE charge in the superseding indictment. Accordingly, the district court dismissed the CCE count with prejudice. For the reasons set forth below, we reverse and remand.

BACKGROUND

On May 6, 1986, the grand jury returned against Martin Roman an eight count indictment charging him with conspiring to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. Sec. 846, and with distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(b)(1)(B). Roman was arraigned on May 15, 1986.

While the original indictment was pending, various periods of time were excluded from the 70-day period within which the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1), requires trial to commence. The exclusions were granted because some of Roman's co-defendants were unavailable and because defendants made several pretrial motions.

On September 5, 1986, when 48 days still remained on the speedy trial clock, the grand jury returned a superseding indictment that essentially restated the original charges against Roman and added, in count two, a charge of managing a continuing criminal enterprise engaged in the distribution of heroin, in violation of 21 U.S.C. Sec. 848. The conspiracy and distribution charges remained as independent counts and were also incorporated in the new CCE charge as predicate acts.

On October 1, 1986, Roman moved to dismiss the new count two on the ground that 70 speedy trial days had passed without the commencement of trial. 18 U.S.C. Sec. 3161(c)(1). He argued that the CCE count was an offense required to be joined with the charges in the original indictment and that he was, therefore, entitled to be tried on that count within 70 days of his arraignment on the original charges.

In opposition the government argued first that the speedy trial clock did not begin to run with respect to the CCE count until the superseding indictment was filed. Alternatively, the government argued that even if the 70-day period for the CCE charge began to run when Roman was arraigned on the original charge, the time exclusions that had been applied to the charges in the original indictment should apply as well to the superseding indictment.

Roman conceded that the 70-day period had not expired with respect to the charges that appeared in the original indictment but argued, regarding the CCE charge, that "it makes little sense to suggest that speedy trial would be stayed as to charges which did not even exist during this period."

The district court agreed, holding that, under applicable double jeopardy principles, the CCE charge in the superseding indictment must be considered the same as, or required to be joined with, the conspiracy charge in the original indictment, so that the speedy trial clock began ticking for both at the same time: when Roman was arraigned on the original indictment. The district court also rejected the government's argument that the exclusions granted under the original indictment should apply to the 70-day period for the CCE charge. The court therefore dismissed count two of the superseding indictment with prejudice on November 13, 1986, and, on December 22, 1986, denied the government's motion for reargument and reconsideration.

On this interlocutory appeal the issue is whether the speedy trial exclusions applied to the original indictment should apply as well to a superseding indictment that contains charges which, under double jeopardy principles, are required to be joined with the original charges. Because we conclude that 18 U.S.C. Sec. 3161 should be interpreted to apply the original 70-day clock to the superseding indictment, complete with exclusions, we reverse and remand for further proceedings. We reach our decision based on the language of the statute, the Second Circuit Guidelines Under the Speedy Trial Act, relevant case law, the speedy trial plans of every district court in this circuit, common sense, and sound policy considerations.

DISCUSSION

The Speedy Trial Act requires a criminal trial to begin within 70 days of the later of indictment or arraignment. 18 U.S.C. Sec. 3161(c)(1). See United States v. Piteo, 726 F.2d 50, 50 (2d Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1682, 80 L.Ed.2d 156 (1984).

Certain periods of delay are excluded in computing the 70-day period. 18 U.S.C. Sec. 3161(h). Exclusions are commonly granted, for example, for the litigation and disposition of pretrial motions, Sec. 3161(h)(1)(F), or due to the unavailability of a defendant or essential witness, Sec. 3161(h)(3)(A). In addition, the court, on its own motion or at either party's request, may grant a continuance based on its finding that "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. Sec. 3161(h)(8)(A). Thus, the act requires that the trial of an indicted defendant occur within 70 nonexcluded days from the date on which an indictment is filed, or from the date of the defendant's first appearance before a judicial officer, whichever is later.

Although the Speedy Trial Act contains no reference to a "superseding indictment", which is a second indictment filed before dismissal of the original, or underlying, indictment, there is an instructive provision in the act that covers an analogous situation. Section 3161(h)(6) applies when an indictment is dismissed on the government's motion and another charge "for the same offense, or any offense required to be joined with that offense" is filed. In that situation the act provides that the speedy trial clock is tolled during the period of time after dismissal, when no charges are pending, and on the new indictment the clock resumes from the point at which it stopped when the original indictment was dismissed. 18 U.S.C. Sec. 3161(h)(6). See United States v. McCown, 711 F.2d 1441, 1446 (9th Cir.1983) (under Sec. 3161(h)(6), "the time period is merely tolled during the period when no indictment is outstanding"). Thus, the statute provides that when reindictment follows dismissal the exclusions of time allowed under the first indictment continue to apply. We can discern no logical reason to apply a different rule to a superseding indictment simply because it is filed sooner, while the first indictment is still pending.

In addition to the statutory language, the Second Circuit Guidelines Under the Speedy Trial Act are instructive because they focus specifically on superseding indictments. See United States v. Rojas-Contreras, 474 U.S. 231, 106 S.Ct. 555, 558, 88 L.Ed.2d 537 (1985) (using the guidelines to resolve the issue of whether the act prohibits commencement of a trial less than 30 days after arraignment on a superseding indictment).

These guidelines indicate that where the original indictment is pending when the subsequent charge is filed and the superseding indictment contains an "offense required to be joined with an originally charged offense", the offenses contained in the superseding indictment shall inherit both the 70-day time clock of the original indictment and the exclusions granted thereunder. The guidelines provide:

1. If, after an indictment * * * has been filed, [an] * * * indictment * * * ("subsequent charge") is filed which includes the same offense or any offense required to be joined with that offense ("originally charged offenses"), the time limits * * * applicable to the originally charged offenses will be determined as follows:

* * *

* * *

(c) If the original indictment * * * is pending at the time the subsequent charge is filed, * * * [t]he trial of the originally charged offenses included in the subsequent charge shall commence within the time limit for commencement of trial on the original indictment * * *.

Judicial Council of the Second Circuit, Guidelines Under the Speedy Trial Act II(L)(1)(c) (approved Jan. 19, 1979) [hereinafter Second Circuit Guidelines]. The comment to guideline II(L) further clarifies the treatment of "originally charged offenses" in a superseding indictment:

[A]ssume that after days of non-excluded time has run in the arraignment-trial interval and while the first indictment...