U.S. v. Tannehill

• Citation: 49 F.3d 1049
• Decision Date: 29 March 1995
• Docket Number: No. 93-1709,93-1709
• Parties: 41 Fed. R. Evid. Serv. 1236 UNITED STATES of America, Plaintiff-Appellee, v. Paul Douglas TANNEHILL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1049

49 F.3d 1049

41 Fed. R. Evid. Serv. 1236

UNITED STATES of America, Plaintiff-Appellee, v. Paul Douglas TANNEHILL, Defendant-Appellant.

No. 93-1709.

United States Court of Appeals Fifth Circuit.

March 29, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied April

26, 1995.

Steven P. Anderson (Court-appointed), Mills, Presby & Anderson, Dallas, TX, for appellant.

Susan Cowger, Thomas M. Melsheimer, James Jacks, Asst. U.S. Attys., Richard H. Stephens, U.S. Atty., Dallas, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH, BARKSDALE and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

As the last of seven defendants in the early 1980s savings and loan "I-30 scandal" in Texas, Paul Douglas Tannehill appeals his convictions for conspiracy and overvaluation of land, with the critical issue being whether his statutory or constitutional rights to a speedy trial were violated; especially, whether, if only argument, and not testimony or other evidence, is presented on a pretrial motion not heard until after trial begins, the period between filing and argument is excludable under Sec. 3161(h)(1)(F) of the Speedy Trial Act (excludes "[a]ny period of delay resulting from ... any pretrial motion, from ... filing ... through ... hearing"). (Emphasis added.) Tannehill contends also that the evidence is insufficient, and that the district court erred in several evidentiary rulings and in refusing a jury instruction. We AFFIRM.

I.

In October 1987, Tannehill, a real estate appraiser, was indicted with David Lamar Faulkner, Spencer H. Blain, Jr., James L. Toler, Arthur Formann, Kenneth Earl Cansler, and Paul Arlin Jensen, as a result of their involvement in a scheme in which fraudulent real estate loans were obtained for the purchase of land and the construction of condominiums along Interstate 30 between Dallas and Fort Worth. See United States v. Faulkner, 17 F.3d 745, 756 n. 9 (5th Cir.), cert. denied, --- U.S. ----, ----, 115 S.Ct. 193, 663, 130 L.Ed.2d 125, 598 (1994). The 88-count indictment charged that Faulkner and Toler, real estate developers, and their employee, Cansler, arranged for Blain and Jensen, who controlled federally-insured savings and loan associations, to make loans for the purchase of building sites and completed condominium developments at inflated prices, and charged that Tannehill and Formann, a real estate appraiser employed by Tannehill furthered the scheme by supplying intentionally inflated appraisals. ¹ Tannehill was charged in 13 counts with conspiracy, overvaluation of land, wire fraud, and aiding and abetting the misapplication of funds.

All seven defendants were tried in Lubbock beginning in early 1989, but a mistrial was declared that September, after the jury was unable to reach a verdict. A second trial began in Dallas in June 1991, but pretrial publicity made it impossible to select a jury in Dallas. The district court severed Faulkner, Toler, Blain, and Formann from Tannehill and the other two defendants, and transferred their four cases to the Western District of Texas (Midland). Their trial began in September 1991, and all were convicted that November. See Faulkner, 17 F.3d at 754-55.

After the Midland trial, Cansler pleaded guilty, and Jensen and Tannehill were severed, at their requests. Jensen was tried and convicted in October 1992. See United States v. Jensen, 41 F.3d 946 (5th Cir.1994). Tried in April 1993, Tannehill was acquitted on the wire fraud and misapplication counts and one overvaluation count, but was convicted for conspiracy and the other eight overvaluation counts. ² He was sentenced, inter alia, to six years imprisonment and fined $30,000.

II.

Tannehill contends that the indictment should have been dismissed for violations of his speedy trial rights; that the evidence is insufficient to sustain his convictions; and that the district court erred by permitting the Government to base its case on summary evidence, by admitting prior trial testimony of a deceased Government witness, and by refusing his requested instruction on reliance on the advice of counsel.

A.

The district court denied Tannehill's motion to dismiss the indictment for violations of his rights to a speedy trial under both the Speedy Trial Act and the Constitution. We turn first to the statutory claim.

1.

"We review the facts supporting a Speedy Trial Act ruling using the clearly erroneous standard and the legal conclusions de novo." United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). Although more than five and one-half years elapsed between indictment in October 1987 and trial in April 1993, Tannehill's statutory claim focuses only on the period between September 4, 1992 (filing of several pretrial motions by Tannehill), and the April 1993 trial. ³ Accordingly, in reviewing his statutory claim, we do not consider any delays prior to then.

"The Speedy Trial Act[, 18 U.S.C. Sec. 3161-3174,] requires that a federal criminal defendant be tried within seventy days of his indictment or appearance in front of a judicial officer, whichever comes later. If the defendant is not brought to trial within this statutory period, the indictment must be dismissed." United States v. Williams, 12 F.3d 452, 459 (5th Cir.1994).

However, "[t]he Act provides for a number of 'exclusions' in which time that passes is not charged against the 70-day clock." Id. One of those provisions, Sec. 3161(h)(1)(F), excludes "[a]ny period of delay resulting from other proceedings concerning the defendant, including but not limited to ... 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) (emphasis added).

For motions that "require" a hearing, ⁴ subsection (F) "excludes the time between the filing of the motion and the hearing on that motion, even if a delay between the motion and the hearing is unreasonable". United States v. Johnson, 29 F.3d 940, 942-43 (5th Cir.1994). Also excluded is the "time after a hearing needed to allow the trial court to assemble all papers reasonably necessary to dispose of the motion, e.g., the submission of post-hearing briefs". Id. And, after the court has received all of the submissions, the motion is considered to have been taken "under advisement", and the speedy trial clock is tolled for 30 days, pursuant to subsection (J), which provides for the exclusion of "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court". 18 U.S.C. Sec. 3161(h)(1)(J).

If a motion does not require a hearing, subsection (J) provides for the exclusion of 30 days after the court receives all submissions from counsel regarding the motion. Johnson, 29 F.3d at 943. "If the court has several motions on which it must rule, however, this time period can be reasonably extended." Williams, 12 F.3d at 460.

In May 1992, the district court set Tannehill's trial on its October 1992 docket. On September 4, however, Tannehill filed numerous pretrial motions, including a motion to dismiss for violations of the Speedy Trial Act, as well as a motion for a hearing on all pretrial motions. The Government's response, and Tannehill's reply, were submitted by the end of September. On November 20, the district court, sua sponte, reset the trial for its February 1993 docket. Tannehill filed additional motions on January 19 and 22, 1993, including a motion in limine. On January 29, the district court reset trial for April 5, 1993.

No hearing was conducted on Tannehill's motions prior to trial. After the jury was sworn, the court heard arguments on some of Tannehill's motions, including the motion to dismiss for violation of the Speedy Trial Act, filed in September 1992, and the motion in limine, filed in January 1993.

One basis for disposing of Tannehill's Speedy Trial Act claim turns on whether the arguments on his pretrial motions, heard after the jury was sworn, constitute a "hearing" within the meaning of Sec. 3161(h)(1)(F). ⁵ Although our court has held that the speedy trial clock is tolled for the period between the filing of a motion and a hearing on that motion, even if the hearing is not conducted until trial, those cases do not address the meaning of "hearing" under Sec. 3161(h)(1)(F). See, e.g., Bermea, 30 F.3d at 1568 ("pending motions carried for hearing just before or during trial will toll the speedy trial clock indefinitely"); United States v. Santoyo, 890 F.2d 726, 728 (5th Cir.1989) (time between filing of pretrial motion in limine and hearing on motion at trial excludable), cert. denied, 495 U.S. 959, 110 S.Ct. 2567, 109 L.Ed.2d 749 (1990).

The Act does not define what constitutes a "hearing", and the parties have not cited, nor have we found, any authorities addressing the issue. ⁶ In other contexts, "hearing" has been defined in various ways. See, e.g., Buxton v. Lynaugh, 879 F.2d 140, 144-45 (5th Cir.1989) ("hearing", as used in habeas corpus statute, 28 U.S.C. Sec. 2254(d), "does not necessarily require an evidentiary hearing and ... factfinding based on a record can in some circumstances be adequate"), cert. denied, 497 U.S. 1031, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990); State v. Orris, 26 Ohio App.2d 87, 269 N.E.2d 623, 624 (1971) (the term "hearing" suggests "to 'give audience to' "); Black's Law Dictionary 721 (6th ed. 1990) (defining "hearing" as "[a] proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or law to be tried, in which witnesses are heard and evidence presented").

In determining what Congress meant by its use of the word "hearing" in subsection (F), we must consider the context in which the word is used...