U.S. v. Saltzman

• Decision Date: 22 January 1993
• Docket Number: No. 92-1019,92-1019
• Citation: 984 F.2d 1087
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Daniel Lee SALTZMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1087

984 F.2d 1087

UNITED STATES of America, Plaintiff-Appellant, v. Daniel Lee SALTZMAN, Defendant-Appellee.

No. 92-1019.

United States Court of Appeals, Tenth Circuit.

Jan. 22, 1993.

Vicki Marani (Michael J. Norton, U.S. Atty., and Craig F. Wallace, Asst. U.S. Atty., Dist. of Colo., Patty Merkamp Stemler, U.S. Dept. of Justice, Washington, DC, on the brief), U.S. Dept. of Justice, Washington, DC, for plaintiff-appellant.

Vicki Mandell-King (Michael G. Katz, Federal Public Defender, with her on the brief), Asst. Federal Public Defender, Denver, CO, for defendant-appellee.

Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and KELLY, Circuit Judge.

BRORBY, Circuit Judge.

The Government appeals the district court's sua sponte dismissal with prejudice of the information filed against Daniel Lee Saltzman. The district court concluded the seven-month time period between Saltzman's arrest and filing of the information constituted a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1985). The issues presented are whether the delay in charging the Defendant mandates dismissal, and whether dismissal with prejudice is the appropriate remedy.

I.

On March 14, 1991, Daniel Lee Saltzman obtained one liter of phenyl- sub2 -propanone (P sub2 P) ¹ from an undercover agent and was subsequently arrested. After executing a valid search warrant, the agent found chemicals and supplies used for manufacturing methamphetamine in Saltzman's garage. On April 3, 1991, the Defendant orally "waived" his right to an indictment within thirty days guaranteed by 18 U.S.C. § 3161(b), after indicating to the magistrate judge that he understood this right. The Defendant executed a written "waiver" of his right to a speedy indictment on April 18, 1991. On May 8, 1991, the Defendant was once again brought before a magistrate judge and both counsel agreed that the Defendant would "waive" his rights to a speedy indictment until July 1, 1991. A similar situation occurred on July 12, 1991, ² extending the speedy indictment waiver until August 23, 1991.

Subsequently, at least two more continuances were granted before an information was finally filed on October 7, 1991. Despite at least nine opportunities, the magistrate judges never made the specific findings required by 18 U.S.C. § 3161(h)(8)(A) "that the ends of justice served by [granting a continuance] outweigh the best interest of the public and the defendant in a speedy trial." The prosecutor and defense counsel also neglected to request that such findings be made.

During this seven-month delay, the Defendant was incarcerated for the first thirty-three days but then agreed to assist the Government as an informant and was released. This cooperation proved helpful to the Defendant because the plea agreement executed halved the Defendant's potential sentence. ³ This agreement was never entered however, due to the trial court's sua sponte dismissal.

The trial court noticed the lack of these essential findings and acted sua sponte in dismissing the information with prejudice. The court reasoned that no waiver occurred because (1) the waiver was not knowing, informed and voluntary, and (2) the Defendant's purported waivers were invalid as a matter of law. The court applied the standards enunciated in 18 U.S.C. § 3162(a)(1) in determining the appropriate sanction was dismissal with prejudice.

II.

The dual purpose of the Speedy Trial Act is to protect a defendant's constitutional right to a speedy indictment and trial, and to serve the public interest in bringing prompt criminal proceedings. United States v. Noone, 913 F.2d 20, 28 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1686, 114 L.Ed.2d 81 (1991). Accordingly, § 3161(b) requires an indictment or information be filed within thirty days of the arrest. ⁴ On its face, the Government violated this provision.

Delays causing an indictment or information to be filed in excess of thirty days may be excludable under § 3161(h). The exceptions in § 3161(h) are exclusive. United States v. Carrasquillo, 667 F.2d 382, 388 (3rd Cir.1981). The only applicable exception for this case is § 3161(h)(8), which excludes any period of delay resulting from a continuance granted on the basis of a judge's findings that the ends of justice served by the continuance outweigh the best interests of the public and defendant in a speedy trial. ⁵ The factors to be considered in making ends of justice findings are provided in § 3161(h)(8)(B).

The Third Circuit explains the dual purpose of making these findings:

First, Congress wanted to insure 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." Second, the requirement provides a record so that an appellate court may review the decision.

United States v. Brooks, 697 F.2d 517, 520 (3rd Cir.1982) (citation omitted), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983). The specific language in § 3161(h)(8)(A) states periods of delay are not excludable unless the court sets forth "ends of justice" findings either orally or in writing. The record is completely void of such findings.

The Tenth Circuit also recognizes the importance of enunciating the "ends of justice" findings. "Failure to address these issues on the record creates the unnecessary risk of granting continuances for the wrong purposes, and encourages overuse of this narrow exception." United States v. Doran, 882 F.2d 1511, 1515 (10th Cir.1989). Other circuits concur in holding no excludable delays are permitted without "ends of justice" findings. United States v. Perez-Reveles, 715 F.2d 1348, 1352 (9th Cir.1983); Carrasquillo, 667 F.2d at 389-90; United States v. New Buffalo Amusement Corp., 600 F.2d 368, 376 n. 12 (2d Cir.1979). Further, the findings must occur contemporaneously with the continuance because Congress intended that the decision should be prospective, not retroactive. Doran, 882 F.2d at 1516. Therefore, the magistrate judges' failure to make "ends of justice" findings at each continuance precludes an examining court from justifying the continuances retroactively.

The Government contends that Mr. Saltzman knowingly waived his right to a speedy indictment. This contention fallaciously assumes a defendant has the authority to waive the speedy indictment provision. The right to a speedy indictment belongs to both the defendant and society. Carrasquillo, 667 F.2d at 389. Therefore, provisions of the Speedy Trial Act cannot be waived by a defendant acting unilaterally because it would compromise the public interest in speedy justice. United States v. Willis, 958 F.2d 60, 63 (5th Cir.1992); United States v. Berberian, 851 F.2d 236, 239 (9th Cir.1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989); United States v. Pringle, 751 F.2d 419, 433-434 (1st Cir.1984). This interpretation comports with Congress' intent. The Senate Committee made clear,

in the strongest possible terms, that any construction which holds that any of the provisions of the Speedy Trial Act is waivable by the defendant, ... is contrary to legislative intent and subversive of its primary objective: protection of the societal interest in speedy disposition of criminal cases by preventing undue delay in bringing such cases to trial.

S.Rep. No. 212, 96th Cong., 1st Sess. 29 (1979).

Consequently, the Defendant's purported "waivers" of his right to a speedy indictment do not extend the statutory thirty-day period in which an indictment must be filed. "The fact that the defendant has requested the continuance or consents to it is not in itself sufficient to toll the operation of the time limits." Administrative Office of the United States Courts, Amended Speedy Trial Act Guidelines (Aug.1981), reprinted in Robert L. Misner, Speedy Trial Federal and State Practice, app. B 775 (1983). It is incumbent on the court to make the necessary § 3161(h)(8)(a) findings before a court may grant a continuance. Perez-Reveles, 715 F.2d at 1352. Therefore, we find an attempted "waiver" by the Defendant is necessarily invalid unless the court simultaneously makes "ends of justice" findings. See Carrasquillo, 667 F.2d at 390. "It would be inconsistent with the statutory scheme to permit a defendant, through a purported 'waiver,' to relieve the court of this obligation." Amended Speedy Trial Act; Guidelines at 776.

Because the filing of the indictment or information lies entirely within the prosecutor's discretion, it is ultimately the obligation of the Government to ensure compliance with the Speedy Trial Act. As the Supreme Court points out in Doggett v. United States, --- U.S. ----, ---- - ----, 112 S.Ct. 2686, 2693-94, 120 L.Ed.2d 520 (1992), "[t]he Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it."

The courts share with the government the responsibility to protect the speedy trial rights of both the defendant and society. Doran, 882 F.2d at 1517. The magistrate judges' collective failure to make any § 3161(h)(8)(a) "ends of justice" findings is a blatant disregard to detail and an abandonment of their obligation to protect the rights of the Defendant and of the public. Moreover, the statute imposes an obligation upon the court to reject a waiver offered by the Defendant. Pringle, 751 F.2d at 434.

The applicable law is clear. The fact that a defendant is desirous of waiving his right to receive an information does not result in a waiver. An effective waiver occurs only if the judge considered the defined factors and concluded the ends of justice are served by an acceptance of the defendant's waiver. We can sympathize with the fact that magistrate judges must face a...