U.S. v. Studnicka
| Decision Date | 06 December 1985 |
| Docket Number | Nos. 84-5012,84-5013,s. 84-5012 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. George R. STUDNICKA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Benedict P. Kuehne, David K. Tucker, Bierman, Sonnett, Shohat & Sale, P.A., Miami, Fla., for defendant-appellant.
Stanley Marcus, U.S. Atty., Linda Collins Hertz, Chief, Appellate Section, Miami, Fla., Gregory W. Kehoe, David H. Lichter, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before TJOFLAT and HENDERSON, Circuit Judges, and NICHOLS *, Senior Circuit Judge.
I.
On September 6, September 29, October 14, and November 29, 1980, George R. Studnicka, the appellant, purchased a number of firearms at two different licensed firearms dealers in Hollywood, Florida. In each transaction he filled out and signed a federal Firearms Transaction Record, Form 4473, 1 and wrote "no" in response to question 8A, section A which reads: "Are you under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year?" 2 These responses, however, were false, because at the time of the purchases Studnicka was defending a two-count information in Florida state court charging him with possession and importation of more than one hundred pounds of marijuana, crimes punishable by prison terms of over one year each.
On February 6, 1981, Studnicka purchased another firearm from a licensed firearms dealer in Hollywood, Florida. He responded in the negative to question 8B, section A of Form 4473 which inquired: "Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?" 3 Studnicka signed the form. This answer, however, was false inasmuch as he had been sentenced to prison on January 15, 1981, on the possession of marijuana charge, after pleading no contest, and had taken an appeal.
On October 15, 1981, a Southern District of Florida grand jury indicted Studnicka, 4 charging him with five counts of knowingly making false and fictitious statements to licensed firearms dealers in connection with the acquisition of firearms we have described, 5 in violation of 18 U.S.C. Sec. 922(a)(6) (1982). 6
Following three continuances granted at Studnicka's request, the case was finally set for trial on March 11, 1982. Studnicka, however, failed to appear for trial on that date, and the district judge issued a bench warrant for his arrest. On March 17, 1982, Studnicka was indicted for his failure to appear for trial. He remained a fugitive until he was apprehended by Florida authorities and held on suspicion of crimes not relevant to these appeals. 7 While in state custody, the Florida District Court of Appeal affirmed Studnicka's conviction for possession of marijuana; a detainer was placed against him, and he was turned over to the Florida prison system to commence service of his sentence.
On July 12, 1983, Studnicka was released to federal custody. He was brought before a United States Magistrate on July 20 for his initial appearance on the firearm and bail-jumping charges pending against him. Studnicka informed the magistrate that he was in the process of hiring an attorney, John Evans, but that Evans would not be available until Monday, July 25. As a result, the magistrate rescheduled his initial appearance for that day. On Monday an attorney standing in for Evans stated that Studnicka had become ill and that the United States Marshal had taken him to Jackson Memorial Hospital in Miami. In addition, the attorney stated that Evans would not be available until the following Monday, August 1. The magistrate rescheduled Studnicka's appearance for August 1. On that day, Evans appeared and indicated that he and Studnicka had been discussing the matter of representation, but that no agreement had been reached. Studnicka was not at the hearing, as he was still hospitalized.
On October 6, 1983, the prosecutor learned that Studnicka had been moved on August 6 to the federal Metropolitan Correction Center in Miami, where he was receiving medical treatment. The prosecutor immediately contacted Evans to determine whether he had undertaken to represent Studnicka. Evans indicated that he had not and that the matter remained unresolved.
On October 10, 1983, the district court convened a hearing to resolve the counsel issue. Studnicka appeared without a lawyer. Studnicka indicated that the law firm of Colodny and Fass, not John Evans, would represent him on the firearm charges. When no one from the firm entered a formal appearance on behalf of Studnicka, the Government, on October 12, moved the district court: (1) to determine whether Studnicka had retained counsel in the pending case and, if not, to appoint counsel; (2) to determine whether Studnicka was physically able to stand trial; (3) to set a trial date; and (4) to determine excludable time for purposes of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1982).
On October 13, 1983, the district court held a hearing to determine whether Studnicka had retained counsel for his two cases. Attorney Evans attended the hearing at the court's request. He stated that he would not be representing Studnicka in either of the cases. Attorney Joel Fass then advised the court that he had entered a formal appearance for Studnicka in the firearms case, but not the bail-jumping case. When the court asked Studnicka whether he wished counsel to be appointed in that case, Studnicka said that he was trying to hire a lawyer to handle it. The court, attempting to eliminate further delay, gave Studnicka five days to retain counsel for the bail-jumping case; otherwise, the federal public defender would be appointed to represent him. The court then set the cases for trial on November 14, 1983, with the firearms case proceeding first. Turning to the question of how much time had run on the speedy trial clock in the bail-jumping case, the court ruled that any time between October 13, 1983, and the start of the trial would be excludable, because Studnicka needed that time to prepare for trial. 8
On October 24, 1983, Studnicka filed a formal response to the Government's October 12 motion and, in addition, moved the court to dismiss the indictment in his firearms case under the Speedy Trial Act. 9 Studnicka, represented by the federal public defender, filed a similar motion in the bail-jumping case. The court heard the first speedy trial motion on November 14, just before the trial of the firearms case commenced, and denied it. The court denied the second motion following a hearing on November 15. 10 At the November 15 hearing, Studnicka moved the court to continue the trial of his bail-jumping case. The court denied the motion, and Studnicka immediately pled guilty to bail-jumping. 11
The trial of the firearms case commenced on November 14 before a jury, as scheduled. Prior to the impanelment of the jury, the prosecutor informed the court that he intended to establish, in the Government's case in chief, the fact that Studnicka had failed to appear for trial on March 11, 1982, as substantive evidence of Studnicka's guilt. The court ruled that the prosecutor could not introduce this evidence of flight as part of the Government's proof but that he could cross-examine Studnicka about his failure to appear if he took the stand. Following the court's ruling, Studnicka's attorney announced that his client would not testify.
The jury found Studnicka guilty on all counts. The court sentenced him to concurrent four-year terms of imprisonment for the firearm offenses, to be followed by a consecutive one-year term of incarceration for the bail-jumping charge.
Studnicka appeals from each conviction, presenting three claims of error. First, he contends that the district court erred in calculating the excludable time under the Speedy Trial Act and that both indictments should be dismissed with prejudice. 12 Second, he contends that he is entitled to acquittals on the firearm charges because the evidence was insufficient to convict. Third, he contends that he is entitled to a new trial in the firearms case because the court erred in ruling that the prosecutor could question him on cross-examination about his failure to appear when the case was initially set for trial on March 11, 1982. 13 For the reasons that follow, we reject each claim of error.
II.
Appellant contends that he was not brought to trial in the firearms or bail-jumping cases within the time period prescribed by the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1982). Section 3161(c)(1) provides in relevant part:
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.
The statute excludes certain periods of time from this seventy-day computation. See 18 U.S.C. Sec. 3161(h) (1982). If a court determines that the defendant has been denied a speedy trial, it must dismiss the indictment. 18 U.S.C. Sec. 3162(a)(2) (1982). 14
Appellant was turned over to the federal authorities on July 12, 1983, and brought before a magistrate eight days later in both the firearms and bail-jumping cases. The trial of these cases was set for November 14. 15 Appellant argues that the 117 intervening days constituted a violation of section 3161(c)(1). 16 We are not persuaded. Whether this period of time violated the Speedy Trial Act depends upon the number of days excluded pursuant to section 3161(h) from the 117 day total. We examine this issue as it relates to both the firearm and bail-jumping charges.
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