U.S. v. Theron

• Citation: 782 F.2d 1510
• Decision Date: 31 January 1986
• Docket Number: 85-2882,Nos. 85-2881,s. 85-2881
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frans J. THERON, Defendant-Appellant. Frans J. THERON, Petitioner, v. Honorable Earl E. O'CONNOR, United States District Judge for the District of Kansas, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1510

782 F.2d 1510

UNITED STATES of America, Plaintiff-Appellee, v. Frans J. THERON, Defendant-Appellant.

Frans J. THERON, Petitioner, v. Honorable Earl E. O'CONNOR, United States District Judge for

the District of Kansas, Respondent.

Nos. 85-2881, 85-2882.

United States Court of Appeals Tenth Circuit.

Jan. 31, 1986.

William W. Robertson, Peter B. Bennett, Thomas L. Weisenbeck, and John M. Simon, of Hannoch Weisman, Roseland, N.J., and Bruce C. Houdek, of James, Millert, Houdek, Tyrl & Somers, Kansas City, Mo., for petitioner and defendant-appellant.

Benjamin L. Burgess, Jr., U.S. Atty., and Richard L. Hathaway, Asst. U.S. Atty., Topeka, Kan., for respondent and plaintiff-appellee.

Before McKAY, LOGAN, and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

We have before us an application for a writ of mandamus and an appeal, permitted by Fed.R.App.P. 9(a), of a district court's refusal to release a criminal defendant from custody pending trial. Petitioner-defendant, Frans J. Theron, seeks a writ of mandamus ordering the trial judge to either commence his criminal trial or dismiss the indictment against him pursuant to the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174. Thereon also appeals the district court's refusal to release him from custody pending trial, asserting that his continued detention violates 18 U.S.C. Sec. 3164 and his constitutional due process rights.

On September 11, 1985, Theron and eleven others were indicted in the United States District Court for the District of Kansas on sixty-four counts of conspiracy and mail fraud. On September 20, 1985, Theron surrendered to California authorities and has since been detained. He was transferred to Kansas and ordered held without bail there because that court found he presented a risk of flight under 18 U.S.C. Sec. 3142(b). Theron appealed this decision to the United States Court of Appeals for the Tenth Circuit; we affirmed the district court's denial of bail. United States v. Theron, No. 85-2564 (10th Cir. Dec. 18, 1985).

On November 25, while the bail appeal was pending, the district court heard a motion by ten of Theron's codefendants who had been released on bail and who argued that the case should be continued because of its complexity. Despite Theron's opposition to this motion, the court granted a continuance based on an "ends-of-justice" finding pursuant to 18 U.S.C. Sec. 3161(h)(8). Theron then filed a motion under the Speedy Trial Act for an immediate trial or dismissal of his indictment because he was not going to be tried within seventy days of his indictment, as required by 18 U.S.C. Sec. 3161(c)(1). The district court denied this motion. United States v Theron, No. 85-20068-02 (D.Kan. Dec. 23, 1985). This denial is the subject of Theron's mandamus action, No. 85-2882, before us.

On December 17, 1985, the district court heard Theron's motion for severance and release pending trial. Theron argued that he could not be detained more than ninety days without bail. The district court also denied this motion. United States v. Theron, No. 85-20068-02 (D.Kan. Dec. 23, 1985). After the court's oral ruling, Theron, pursuant to Fed.R.App.P. 9(a), made a motion to an individual appellate judge that the district court's order denying his release be stayed and that he be released on bail pending disposition of his appeal of the district court's order. The judge denied relief, submitting the appeal to this three-judge panel, No. 85-2881.

I

The Speedy Trial Act requires that a defendant be tried "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). This seventy-day period is subject to exclusions of time under Sec. 3161(h). Section 3161(h)(8) excludes from the seventy-day period:

"(8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial."

(emphasis added). Theron argues that the district court erred in granting an ends-of-justice continuance pursuant to 18 U.S.C. Sec. 3161(h)(8) and excluding that time from the seventy-day period.

The district court recognized that it could not base an ends-of-justice continuance on the congestion of its own calendar and denied doing so. See 18 U.S.C. Sec. 3161(h)(8)(C). The court stated that its own schedule would permit an immediate trial. Memorandum and Order of Dec. 23, 1985, at 11. It also denied basing the continuance on the government's need to prepare, noting that "the government has consistently maintained that it is prepared to go to trial," id. at 7, and that the government did not oppose the continuance only because it feared a de facto severance, id. at 8. The court stated that it relied on the complexity of the case and that failure to grant the continuance would result in "an inability of defendants adequately to prepare for trial." Id. at 10. It added that its decision "is based primarily on a desire to safeguard the rights of all the defendants. We simply believe at this juncture of the case that it is in the interests of justice to try all twelve defendants at one time." Id. at 11.

Defendant Theron at all times has claimed his right to be tried within the seventy-day Speedy Trial Act limitation. He moved for a severance and an immediate trial, did not join any of his codefendants' motions, and was willing to be tried immediately even if it meant waiving certain rights. Transcript of Nov. 25 hearing at 22-23. Thus the court's continuance could not have been based on Theron's need for more preparation time.

It appears that the trial court relied on three other factors to justify the continuance: (1) the codefendants' need for preparation time; (2) the complexity of the case; and (3) the desirability of trying all defendants at once. In the context of this case these are either improper or insufficient factors to justify an ends-of-justice continuance under Sec. 3161(h)(8). ¹

First, that section requires the court to find that the ends of justice "outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. Sec. 3161(h)(8)(A) (emphasis added). It does not say that the court may weigh the interests of codefendants. Subsection (h)(7) treats exclusions of time because codefendants are in the case, not subsection (h)(8). This defendant used all means available to him to secure an immediate trial; his desire and his position as a defendant who is not out on bail must weigh strongly in favor of applying the seventy-day limitation of the Act.

Second, although Congress recognized that an ends-of-justice exclusion often would be appropriate in trials of complex criminal conspiracies, it noted that "[e]ach time such a continuance is granted in a complicated case the judge will still have to weigh the right of society and the defendant to a speedy trial against the 'ends of justice.' " United States v. Carrasquillo, 667 F.2d 382, 387 (3d Cir.1981) (quoting S.Rep. No. 93-1021). Thus the complexity of a case does not automatically justify an ends-of-justice continuance.

Finally, the hard question is whether the coincidence of a complex case and multiple defendants, without more, outweighs the interest of this defendant in a prompt trial. This incarcerated defendant's only contribution to the need for delay is his alleged participation with the codefendants in a complex scheme alleged to be illegal. In holding that complexity plus multiple defendants are not enough, by themselves, we are influenced by Congress' express intent that the ends-of-justice exception be used rarely and only in narrow circumstances:

"The history of speedy trial legislation has shown that both the defense and the prosecution rely upon delay as a tactic in the trial of criminal cases. However, from the defendant's point of view, delay is not synonymous with due process. A defendant who is required to wait long periods to be tried suffers from a magnitude of disabilities which in no way contribute to his well being. If he is incarcerated awaiting trial, unnecessary delay in the commencement of the trial could result in irreparable injury to an innocent individual. To one who is ultimately found guilty of a criminal offense, the time spent in detention may represent added time to his ultimate sentence and further retard the rehabilitative process."

H.R.Rep. No. 1508, 93d Cong., 2d Sess. 4, reprinted in 1974 U.S.Code Cong. & Ad.News, 7401, 7407-08; see also United States v. Frey, 735 F.2d 350, 352 (9th Cir.1984); Carrasquillo, 667 F.2d at 387.

Also, holding that a complex multiple defendant case is enough to toll the Act under subsection (h)(8) would emasculate the specific separate provision in subsection (h)(7), which excludes from the seventy-day limitation "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." We should, of course, read independent sections of a law to have separate meaning and application if possible. See 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566 (1951); Superior Oil...