U.S. v. Tanner

• Decision Date: 27 August 1991
• Docket Number: No. 90-2205,90-2205
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Algienon TANNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 574

941 F.2d 574

UNITED STATES of America, Plaintiff-Appellee, v. Algienon TANNER, Defendant-Appellant.

No. 90-2205.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 1990.

Decided Aug. 27, 1991.

Deborah J. Daniels, U.S. Atty., Indianapolis, Ind., Rodger A. Heaton, Asst. U.S Joseph K. Etling, Terre Haute, Ind., for defendant-appellant.

Atty., Springfield, Ill., for plaintiff-appellee.

Before POSNER and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Defendant Algienon Tanner has appealed from a final judgment and conviction on one count of possession with intent to distribute cocaine while an inmate in a United States penitentiary, in violation of 21 U.S.C. § 841(a). He argues on appeal that the district court erred in denying both his motion to dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and his motion for mistrial or continuance. He also challenges the sufficiency of the evidence to support the jury's verdict. For the reasons set forth below we affirm the defendant's conviction.

BACKGROUND

Because the defendant's primary contention is that his rights were violated under the Speedy Trial Act, a detailed chronology of his pretrial history is essential to this review.

On September 12, 1989, defendant Algienon Tanner and his wife, Brenda Tanner, were charged in a single-count indictment with possessing with intent to distribute 55 1/2 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). The indictment was based upon facts arising out of a visit Mrs. Tanner made to see her husband when he was an inmate in the United States Penitentiary in Terre Haute, Indiana, on February 12, 1988. In the visiting room, while Mr. Tanner was surreptitiously taking certain items from Mrs. Tanner and swallowing them, prison officials were monitoring and recording their actions. After the visit, the defendant was strip-searched, advised of his rights, and told of the officials' observations. Thereupon he agreed to turn over the secreted items; while in a dry cell he regurgitated 27 condoms containing cocaine.

At the time he was indicted, Algienon Tanner was an inmate in the United States Penitentiary in Leavenworth, Kansas. On September 13, 1989, a warrant was issued requiring Mr. Tanner's appearance, and trial was set for November 15, 1989 in Terre Haute, Indiana. On October 3, 1989, the government requested that Mr. Tanner be transported from Leavenworth to the Southern District of Indiana for prosecution. The records office of the Leavenworth penitentiary received the detainer against Algienon Tanner on October 10, 1989; it promptly served the detainer and advised Mr. Tanner of his rights. The defendant first appeared before a magistrate in Terre Haute, Indiana on October 31, 1989. However, since neither Algienon nor Brenda Tanner had made an initial appearance before a judicial officer in Indiana by October 24, 1989, the court granted the government's motion to vacate the trial date of November 15, 1989, and reset trial for January 10, 1990.

In the meantime, Brenda Tanner had been arrested in Michigan on October 6, 1989. She appeared before a magistrate in the Eastern District of Michigan, who set a removal hearing for October 30, 1989. When she indicated to authorities in Michigan that she wanted to plead guilty and to consent to the disposition of her case in Michigan pursuant to Rule 20 of the Federal Rules of Criminal Procedure, ¹ her removal hearing was continued. On December 28, 1989, in the Eastern District of Michigan, Brenda Tanner signed a plea agreement which, among other things, required On January 4, 1990, the government moved for a continuance of Mr. Tanner's trial date so that it could arrange for Brenda Tanner's presence in Indiana to testify against her husband. It also requested that the delay between October 6, 1989 and the anticipated filing of Brenda Tanner's Rule 20 Consent Form be excluded from the speedy trial period pursuant to 18 U.S.C. §§ 3161(h)(7) ² and (h)(1)(G) ³ because the codefendants had not yet been severed. The next day the government supplemented the motion with a request for further delay due to Brenda Tanner's recent surgery, pursuant to 18 U.S.C. § 3161(h)(3)(A), ⁴ which suspends the speedy trial clock if a defendant or key witness is unavailable. In response, on January 10, 1990, the defendant Algienon Tanner filed a motion to dismiss the case against him for violation of the Speedy Trial Act.

                her to testify against her husband at the trial scheduled for January 10, 1990.   She also executed the Rule 20 Consent to Transfer of Case for Plea and Sentence at that time.   The Rule 20 Form was approved by the United States Attorney for the Eastern District of Michigan in Detroit and thereafter forwarded to the United States Attorney's office in Southern Indiana for approval and filing with the court there.   The actual filing of the Rule 20 Consent Form took place on January 24, 1990.   Brenda Tanner pleaded guilty March 3, 1990, in the Eastern District of Michigan.   As of the date of her husband's trial she had not yet been sentenced
                

By order of January 11, 1990, the district court granted the government's motion for a continuance and excluded the periods of delay related to the Rule 20 processing and the medical unavailability of Brenda Tanner, pursuant to 18 U.S.C. §§ 3161(h)(7), 3161(h)(1)(G), and 3161(h)(3)(A). It reset the trial date to March 1, 1990. On January 16, 1990, the court denied Algienon Tanner's motion to dismiss based on its January 11 order.

After the defendant's two motions for continuance of the trial (due to the unavailability of counsel) were granted by the court on February 8 and March 14, 1990, Algienon Tanner's trial by jury began on April 9, 1990 before Judge Larry J. McKinney. Before proceeding, however, Mr. Tanner moved to proceed pro se or for appointment of new counsel. The court granted defendant's motion for new counsel, appointed a new defense attorney, and scheduled trial to resume on April 30, 1990. On April 9, Mr. Tanner also filed a second motion to dismiss his case for violation of the Speedy Trial Act.

On April 30, when trial commenced, the court denied Algienon Tanner's motion for dismissal and stated that it would issue a written opinion on the motion. It also conducted a hearing, before opening statements, on the government's inability to locate certain defense witnesses. Ultimately it denied Algienon Tanner's motion for mistrial or continuance based upon that issue.

The trial ended on May 1, 1990, with the jury's finding that Mr. Tanner was guilty of the offense charged. On May 18, 1990, he was sentenced to a term of 230 months in prison, to be served consecutive to his current sentence, plus a special assessment pursuant to 18 U.S.C. § 3013. On the same day, the court's order denying the defendant's

                motion to dismiss was filed.   In it the court concluded that Algienon Tanner's speedy trial rights were not violated, for the clock had begun to run on January 24, 1990, and at most only 34 days had expired between that date and the trial.   The court reiterated its earlier determination in the Order of January 11, 1990 that the periods of delay related to Brenda Tanner's Rule 20 processing and medical unavailability were properly excludable from the speedy trial calculations.   It also explicitly excluded the periods of delay from the defendant's two motions for continuance and motion for production of evidence and the court's further continuance, after the trial began, to allow for preparation by the newly appointed defense counsel
                

ISSUES

I. Alleged Violations of the Speedy Trial Act

Algienon Tanner contends that the trial court erred in its denial of his motion to dismiss the indictment. According to the defendant, under the Speedy Trial Act the government must bring a criminal defendant to trial within seventy days, in order to limit the time during which criminal charges remain unresolved. Mr. Tanner asserts that the indictment against him should have been dismissed for violation of the seventy-day period.

On appeal we review the district court's interpretation of the Act de novo, United States v. Dawn, 900 F.2d 1132, 1135 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 368, 112 L.Ed.2d 330 (1990), and its findings of fact concerning the Act for clear error. ⁵ United States v. Magana- Olvera, 917 F.2d 401, 404 (9th Cir.1990); United States v. Simmons, 786 F.2d 479, 483 (2nd Cir.1986). The decision to grant a continuance under the Speedy Trial Act is well within the discretion of the trial court. United States v. Vega, 860 F.2d 779, 787 (7th Cir.1988); United States v. Tedesco, 726 F.2d 1216, 1221 (7th Cir.1984). "Absent legal error, exclusions of time cannot be reversed except when there is an abuse of discretion by the court and a showing of actual prejudice." United States v. Scott, 784 F.2d 787, 789 (7th Cir.), cert. denied, 476 U.S. 1145, 106 S.Ct. 2257, 90 L.Ed.2d 702 (1986) (per curiam).

Mr. Tanner asserts that the speedy trial clock began on October 10, 1989, the date on which the detainer was served and on which he requested a speedy trial. In the alternative, he argues that the clock began to run on October 30, 1989, or whenever Brenda Tanner agreed to proceed under Rule 20, since that consent created a severance of her case from his. However, the district court found that the clock did not begin to run until January 24, 1990, the date that codefendant Brenda Tanner's completed Consent to Transfer Pursuant to Rule 20 was filed with the clerk in the Southern District of Indiana.

We find no merit to Algienon Tanner's contentions, for the defendant has incorrectly identified the event that triggers the speedy trial clock. The statute clearly states that calculations commence from the later of two dates: the filing of the indictment or information, or the defendant's initial appearance before a...