U.S. v. Thomas, Nos. 81-5062

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore PHILLIPS and ERVIN, Circuit Judges, and HAYNSWORTH; ERVIN
Citation705 F.2d 709
Parties12 Fed. R. Evid. Serv. 1714 UNITED STATES of America, Appellee, v. Kenneth Ward THOMAS, Appellant. UNITED STATES of America, Appellee, v. John David CURTIS, Appellant. (L), 81-5139, 81-5063 and 81-5140.
Docket NumberNos. 81-5062
Decision Date14 April 1983

Page 709

705 F.2d 709
12 Fed. R. Evid. Serv. 1714
UNITED STATES of America, Appellee,
v.
Kenneth Ward THOMAS, Appellant.
UNITED STATES of America, Appellee,
v.
John David CURTIS, Appellant.
Nos. 81-5062(L), 81-5139, 81-5063 and 81-5140.
United States Court of Appeals,
Fourth Circuit.
Argued Jan. 14, 1983.
Decided April 14, 1983.

Joseph O. Rogers, Jr., Manning, S.C. (Timothy J. Rogers, Rogers, Riggs & Rogers, Manning, S.C., John J. Czura, Augusta, Ga., on brief), for appellants.

Lionel S. Lofton, Asst. U.S. Atty., Charleston, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before PHILLIPS and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

ERVIN, Circuit Judge:

Kenneth Ward Thomas and John David Curtis were convicted on substantive charges of possession and importation of marijuana, and on related conspiracy and aiding and abetting counts, in violation of

Page 710

21 U.S.C. Secs. 841(a)(1), 846, 952(a), 960, and 963, and 18 U.S.C. Sec. 2. They originally were arrested by the Coast Guard while aboard the trawler GULF PRINCESS II off Hilton Head, South Carolina. Thomas was the master of the vessel and Curtis, along with one Kenneth Gorman, comprised the crew. When the vessel was stopped, there were indications that the trawler had not been engaged in fishing: there was neither catch nor ice to preserve a catch. A small quantity of a substance later identified positively as marijuana was found scattered on the deck, on the rails, along the gunnels, and on the bumpers. The stop and arrest were made pursuant to information obtained by the Drug Enforcement Administration that the GULF PRINCESS II was engaged in smuggling drugs from South America to South Carolina.

Pursuant to a grant of immunity, Gorman testified to a federal grand jury that prior to its seizure, the trawler had sailed to South America and picked up a load of marijuana, which it brought back to South Carolina waters where the marijuana was off-loaded. A commercial fisherman named Gordon Hastings told the grand jury that he encountered the GULF PRINCESS II off the coast of Columbia twenty days before its seizure by the Coast Guard, and that it had not appeared to him to be engaged in fishing or shrimping.

When neither Gorman nor Hastings could be found to testify at the trial of Thomas and Curtis, the district court permitted their grand jury testimony to be introduced. The jury found Thomas and Curtis guilty of all charges in the bills of indictment. On appeal, Thomas and Curtis maintain that their convictions were secured in contravention of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (1982), the confrontation clause of the sixth amendment, the federal hearsay rule, and the due process clause of the fifth amendment. We find no reversible error, and affirm.

I.

Thomas and Curtis were arrested on August 30, 1980. The Speedy Trial Act of 1974, as amended in 1979 ("the Act"), required the government, therefore, to secure an indictment by the end of September. See 18 U.S.C. Sec. 3161(b) (indictment must be filed within thirty days of arrest). The Government failed to do this and instead moved for additional time on October 1, after the expiry of the statutory time period. The additional time granted the government pursuant to this motion also ran out on November 12 without an indictment being returned. On November 13, the government once again sought, and secured, a grant of additional time after the period in which it was required to act had elapsed. On December 2, a federal grand jury indicted Thomas and Curtis, who promptly moved to dismiss the indictment on speedy trial grounds. This motion was granted by the district court without prejudice, and on the same day, February 4, Thomas and Curtis were reindicted.

On appeal, the government apparently challenges the propriety of the dismissal of the original indictment. 1 We need not reach this issue in light of our conclusion that the subsequent indictment was timely, notwithstanding the claim by Thomas and Curtis that the dismissal of the first indictment precluded their reindictment by another grand jury. The Act requires dismissal of untimely indictments,...

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27 practice notes
  • United States v. Smith, No. 17-13265; 17-13330
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 2, 2019
    ...parents although the prosecutor knew the witness was not there and the parents had no way to reach her); United States v. Thomas, 705 F.2d 709, 711-12 (4th Cir. 1983) (affirming the admissibility of prior recorded testimony where the two witnesses vanished and the government attempted in va......
  • Williams v. Collins Communications, Inc., No. 85-265
    • United States
    • United States State Supreme Court of Wyoming
    • June 10, 1986
    ...be ascertained from the extensive authorities and case law. (1) A discretional factor for the trial court exists. United States v. Thomas, 705 F.2d 709 (4th Cir.), cert. denied 464 U.S. 890, 104 S.Ct. 232, 78 L.Ed.2d 225 (1983); State v. Grable, Wyo., 649 P.2d 663 (1982); People v. Masters,......
  • United States v. Smith, No. 17-13265
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 2, 2019
    ...parents although the prosecutor knew the witness was not there and the parents had no way to reach her); United States v. Thomas, 705 F.2d 709, 711-12 (4th Cir. 1983) (affirming the admissibility of prior recorded testimony where the two witnesses vanished and the government attempted in va......
  • U.S. v. Shellef, No. 03–CR–0723 (JFB)(ETB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 14, 2011
    ...v. Puett, 735 F.2d 1331, 1333–34 (11th Cir.1984); United States v. Samples, 713 F.2d 298, 302–03 (7th Cir.1983); United States v. Thomas, 705 F.2d 709, 710–11 (4th Cir.1983); United States v. Bittle, 699 F.2d 1201, 1205 (D.C.Cir.1983). The government also argues that defendant Shellef succe......
  • Request a trial to view additional results
27 cases
  • United States v. Smith, No. 17-13265; 17-13330
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 2, 2019
    ...parents although the prosecutor knew the witness was not there and the parents had no way to reach her); United States v. Thomas, 705 F.2d 709, 711-12 (4th Cir. 1983) (affirming the admissibility of prior recorded testimony where the two witnesses vanished and the government attempted in va......
  • Williams v. Collins Communications, Inc., No. 85-265
    • United States
    • United States State Supreme Court of Wyoming
    • June 10, 1986
    ...be ascertained from the extensive authorities and case law. (1) A discretional factor for the trial court exists. United States v. Thomas, 705 F.2d 709 (4th Cir.), cert. denied 464 U.S. 890, 104 S.Ct. 232, 78 L.Ed.2d 225 (1983); State v. Grable, Wyo., 649 P.2d 663 (1982); People v. Masters,......
  • U.S. v. Shellef, No. 03–CR–0723 (JFB)(ETB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 14, 2011
    ...v. Puett, 735 F.2d 1331, 1333–34 (11th Cir.1984); United States v. Samples, 713 F.2d 298, 302–03 (7th Cir.1983); United States v. Thomas, 705 F.2d 709, 710–11 (4th Cir.1983); United States v. Bittle, 699 F.2d 1201, 1205 (D.C.Cir.1983). The government also argues that defendant Shellef succe......
  • United States v. Smith, No. 17-13265
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 2, 2019
    ...parents although the prosecutor knew the witness was not there and the parents had no way to reach her); United States v. Thomas, 705 F.2d 709, 711-12 (4th Cir. 1983) (affirming the admissibility of prior recorded testimony where the two witnesses vanished and the government attempted in va......
  • Request a trial to view additional results

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