U.S. v. Rush

• Decision Date: 26 July 1984
• Docket Number: 83-1391 and 83-1463,Nos. 83-1177,s. 83-1177
• Citation: 738 F.2d 497
• Parties: UNITED STATES of America, Appellee, v. Donald Nixon RUSH, Larry Joseph Lancelotti, Gregory Lee Lancelotti, Harry J. Shnurman, Robert Michael Cohen, Thomas G. Converse, David Earl Johnson, Irving F. Imoberstag, Carl Eric Olsen, Jacob Shnurman, Randall Collins, Jeffrey Allen Brown, and David Nissenbaum, Defendants, Appellants. UNITED STATES of America, Appellee, v. Michael Lee RISOLVATO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Charles LEATON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 497

738 F.2d 497

UNITED STATES of America, Appellee, v. Donald Nixon RUSH, Larry Joseph Lancelotti, Gregory Lee

Lancelotti, Harry J. Shnurman, Robert Michael Cohen, Thomas

G. Converse, David Earl Johnson, Irving F. Imoberstag, Carl

Eric Olsen, Jacob Shnurman, Randall Collins, Jeffrey Allen

Brown, and David Nissenbaum, Defendants, Appellants.

UNITED STATES of America, Appellee, v. Michael Lee RISOLVATO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Charles LEATON, Defendant, Appellant.

Nos. 83-1177, 83-1391 and 83-1463.

United States Court of Appeals, First Circuit.

Argued May 11, 1984.

Decided June 27, 1984.

Petitions for Rehearing Denied

July 26, 1984.

James R. Cook, Des Moines, Iowa, with whom Cook & Waters Law Firm, and William Kutmus, Des Moines, Iowa, were on brief, for appellants.

James L. Sultan, Boston, Mass., by appointment of the Court, for Jacob Shnurman.

James D. Poliquin, Portland, Me., by appointment of the Court, and Norman & Hanson, on brief, for Thomas G. Converse.

Irving F. Imoberstag on brief, pro se.

Carl Eric Olsen on brief, pro se.

Jeffrey Allen Brown on brief, pro se.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., and Jay P. McCloskey, Asst. U.S. Atty., Bangor, Me., were on brief, for appellee.

Before COFFIN and BOWNES, Circuit Judges, and PETTINE, ^* Senior District Judge.

BOWNES, Circuit Judge.

These appeals are taken by fifteen men convicted after a jury trial of one or both counts under a two-count indictment charging them with (a) conspiracy to possess marijuana with intent to distribute, 21 U.S.C. Secs. 846 & 841(b)(6), and (b) possession of marijuana with intent to distribute, 21 U.S.C. Secs. 841(a)(1) & 841(b)(6). Appellants' principal claims are that their speedy trial rights were violated, that some of them were denied the opportunity to raise

the free exercise clause of the first amendment as a legally sufficient defense, and that motions for severance were improperly denied. We affirm the convictions.

I. BACKGROUND

The evidence may be summarized as follows. On May 20, 1980, an isolated piece of property in Stockton Springs, Maine, was purchased by appellant D. Nissenbaum under the alias Arkin. The so-called Arkin property included several buildings with storage facilities. Five days later, an isolated shorefront property on Deer Isle, Maine, equipped with a deepwater dock and four buildings, was purchased with a $100,000 down payment in the name of a Paula Leurs. Suspecting that the two properties might be used for illegal drug trafficking, law enforcement agents established surveillance of both properties in August, 1980.

On the evening of October 19, 1980, a pickup truck was observed leaving the Arkin property loaded with material; it arrived at the Leurs property around 9:30 p.m. Shortly after 9:00 p.m., a dozen people were observed on the Leurs property carrying large objects, later identified as Zodiac rubber boats, down to the dock. Just after midnight the JUBILEE, a large, oceangoing vessel, was observed approaching from the open sea. It followed the shoreline towards the Leurs property without navigational lights, dropped anchor and cut its engines approximately one-tenth of a mile from the Leurs dock. Over a three-hour period, three rubber boats holding two people each made numerous trips between the dock area and the JUBILEE, transporting bales of what was later identified as marijuana from the JUBILEE to shore. The bales, after having been brought ashore, were loaded into pickup trucks and transported further inland.

The unloading of the marijuana bales continued for roughly three hours. At 3:05 on the morning of October 20, federal and state law enforcement officers entered the Leurs property in police cars with blue lights flashing. As the officers emerged from the cars and approached the dock area on foot, the people gathered there began to run away into the woods. The officers fanned out in pursuit. Ten of the appellants were apprehended at the time of the raid in the shore area and in the woods nearby, ¹ and two more were later found crouched in a hollow a short distance from the dock. ² Approximately twenty tons of marijuana were seized.

When the raid began, the JUBILEE cut anchor and proceeded out to sea, pursued by a police patrol boat, a coast guard search-and-rescue boat, and then a coast guard cutter. The JUBILEE was finally intercepted and boarded after a protracted chase by the cutter, and the four-man crew, including two of the present appellants, ³ was arrested.

Twenty-three people were arrested in connection with the October 20 raid and named in the original indictment returned on October 29, 1980. ⁴ A twenty-fourth defendant, D. Nissenbaum, was added in a superseding indictment. By the time trial commenced in December, 1982, however, two defendants had become fugitives, another two had pleaded nolo contendere, and charges had been dismissed as to four others, leaving a total of sixteen defendants facing trial on the conspiracy and possession with intent charges. ⁵ Of these, five

were convicted on both counts, ⁶ one on the first count only, ⁷ nine on the second count only, ⁸ and one was acquitted on both counts. ⁹

II. SPEEDY TRIAL ACT

The Speedy Trial Act of 1974, as amended, 18 U.S.C. Secs. 3161 et seq., requires that trial commence within a specified time limit:

In 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.

18 U.S.C. Sec. 3161(c)(1). The same section, however, also provides that certain "periods of delay shall be excluded ... in computing the time within which the trial ... must commence." Id., Sec. 3161(h). In the absence of excludable delay under (h), the starting point for computing the seventy-day limit under (c) in this case would be October 30, 1980, the day after the original October 29 indictment. ¹⁰ See Fed.R.Crim.P. 45(a); Committee on the Administration of the Criminal Law, Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended [hereinafter Guidelines ] at 22-23; United States v. Mers, 701 F.2d 1321, 1332 n. 6 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983).

Among the time exclusions for "other proceedings concerning the defendant" are periods of "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. Sec. 3161(h)(1)(F). The exclusion for pretrial motions is automatic; a showing of actual delay is not required. United States v. Novak, 715 F.2d 810, 813 (3d Cir.1983), cert. denied sub nom. Ware v. United States, --- U.S. ----, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984); United States v. Brim, 630 F.2d 1307 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981). The length of time excludable under (h)(1)(F) is limited to "such delay as is reasonably necessary from the time of filing a pretrial motion to the time of conducting a hearing on it or completing submission of the matter to the court for decision." United States v. Mitchell, 723 F.2d 1040, 1047 (1st Cir.1983).

The defendants' first pretrial motion was a motion to preserve evidence, filed on November 7, 1980, by Booth and joined by other defendants. A hearing on that motion was held on November 25, 1980, and it was agreed at that time that no court action was required. The time from November 7 through November 25 was clearly excludable under (h)(1)(F), and the district court so found. The government, however, points out that a government pretrial motion for an "order permitting destruction of seized marijuana" had been filed on October 24, 1980, before the speedy trial clock was even set. A hearing on this motion was held on November 25, and it was granted in an order dated December 18. The government's motion thus overlapped the defendants', and we find that the time from October 30 until the While the government's and the defendants' motions were still pending, defendants Booth and Middleton filed numerous additional pretrial motions in which other defendants joined, which independently gave rise to (h)(1)(F) exclusions. For purposes of speedy trial computations, the relevant motions are two suppression motions, both filed on November 21, 1980. The government filed an opposition on February 4, 1981, an evidentiary hearing was held on February 23-26, and oral argument took place on March 17, 1981. The record before us leaves no doubt that the time from November 21, 1980, through March 17, 1981, was "reasonably necessary" under the standard adopted in Mitchell, 723 F.2d at 1047. On the facts in this case, we must reject the argument to the contrary. See United States v. Gonsalves, 735 F.2d 638, 641 (1st Cir.1984); United States v. Regilio, 669 F.2d 1169, 1172 (7th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982). We agree with the district court that this entire period was excludable under (h)(1)(F).

filing of the defendants' motion on November 7 was excludable. ¹¹

The (h)(1)(F) exclusion applies not only to the particular defendants who file or join in pretrial motions, but also to codefendants whose trials have not been severed and whose speedy trial time has not otherwise run out. Section (h)(7) provides an exclusion for "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Every circuit court that has considered this provision...