U.S. v. Tranakos

Decision Date15 August 1990
Docket Number89-8022,Nos. 89-8021,s. 89-8021
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Arthur P. TRANAKOS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William PILGRIM, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Mike DeGeurin of Foreman, DeGeurin & Nugent, Houston, Tex., for defendant-appellant, Arthur P. Tranakos.

Donald I. Schultz of Holland & Hart, Cheyenne, Wyo., for defendant-appellant, William Pilgrim.

Francis Leland Pico, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., Maynard D. Grant, Asst. U.S. Atty., with him on the brief), D. Wyo., Cheyenne, Wyo., for plaintiff-appellee.

Before LOGAN, MOORE and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Arthur Tranakos and William Pilgrim appeal their convictions for conspiring to defraud the United States, 18 U.S.C. Sec. 371, and obstructing justice, 18 U.S.C. Sec. 1503. Tranakos also appeals a conviction for preparing and presenting fraudulent tax returns, 26 U.S.C. Sec. 7206(2). We affirm.

I.

Tranakos and Pilgrim contend that their convictions should be reversed because their statutory and constitutional rights to a speedy trial were violated.

On February 24, 1983, Tranakos, Pilgrim, Lowell Anderson, Ronald Ellsworth, and others were indicted by a federal grand jury in Wyoming for conspiring to defraud the United States by selling common-law trusts which were used to evade federal income taxes. Tranakos was also charged with preparing and presenting fraudulent tax returns for Thomas Woodward and his wife, and with obstructing justice by hindering a grand jury subpoena to Richard Roeske. In addition, Pilgrim was charged with hindering a subpoena to Woodward.

After both district judges in Wyoming recused themselves, the case was assigned to Judge Fred Winner of the District of Colorado. Judge Winner retired soon thereafter, and the matter was reassigned to Judge John Kane Jr., also of the District of Colorado. The government had not yet located Ellsworth, so Judge Kane in May granted the government's motion to exclude from the calculation of the time limits of the Speedy Trial Act all time until Ellsworth became available, which was not until 1986.

In October 1983, Judge Kane dismissed the indictment for prosecutorial misconduct. United States v. Anderson, 577 F.Supp. 223, 234 (D.Wyo.1983). We reversed. United States v. Anderson, 778 F.2d 602, 606 (10th Cir.1985). The defendants moved for reconsideration. While the motion was pending, Lowell Anderson died. The motion was denied, and the final mandate issued on May 1, 1986.

The case was then assigned to the newly-appointed Judge Alan Johnson of the District of Wyoming, who held a hearing on January 16, 1987 during which all pending motions were argued. It thereafter came to light that his wife was on the grand jury which indicted the defendants, so he disqualified himself in March 1987.

In September 1987, the case was reassigned to a district judge in Kansas, who withdrew six weeks later because his circumstances had changed.

In March 1988, the matter was reassigned to Judge Aldon Anderson of the District of Utah. On May 25, he held that the grand jury which indicted the defendants was invalidly drawn. He stayed the proceedings, and a new grand jury brought a superseding indictment on July 15.

The trial was rescheduled for August, but continued by agreement of the parties in order to discuss plea negotiations. When no agreement could be reached, Judge Anderson set January 3, 1989 for a hearing on all remaining motions, with trial to begin at the conclusion of the hearing. The hearing and trial took place as scheduled. The defendants were convicted after a seven-day trial.

A.

The defendants claim that the seventy days within which the Speedy Trial Act, 18 U.S.C. Secs. 3161-74, required that they be brought to trial elapsed 1 between the hearing before Judge Johnson in January 1987 and the reassignment of the case to Judge Anderson in March 1988. 2 The government contends that the period was excluded from the time calculation by section 3161(h)(1)(F), which excludes "[a]ny period of 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." The defendants respond that no motion was pending, and that section 3161(h)(1)(F) should not apply to these facts anyway.

1.

The defendants have overlooked the following statement made by Tranakos's attorney to Judge Johnson:

"I have filed a motion to dismiss Count[s] 7 and 8, Your Honor, and ... I don't want to withdraw those motions yet, but I'm still trying to conduct discovery.... But if you'll just hold that I might try to reurge that later...."

R.Supp. Vol. II at 34-35. 3 This motion remained pending until Judge Anderson denied it on April 19, 1988.

Clearly, no nonexcludable time elapsed as to Tranakos between 1987 and 1988. 18 U.S.C. Sec. 3161(h)(1)(F). Under 18 U.S.C. Sec. 3161(h)(7), any "reasonable period of delay" excludable as to one defendant is excludable as to his or her codefendants. In determining whether it is reasonable to apply this delay to Pilgrim as well, we must weigh the "relevant circumstances." United States v. Theron, 782 F.2d 1510, 1514 (10th Cir.1986).

One important factor is that Pilgrim was free on bond. See United States v. Mobile Materials, Inc., 871 F.2d 902, 917 (10th Cir.), modified on other grounds, 881 F.2d 866 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990); United States v. Theron, 782 F.2d at 1516.

Also, "the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial" must be considered. United States v. Theron, 782 F.2d at 1514. Where "the government will recite a single factual history, put on a single array of evidence, and call a single group of witnesses," a single trial is preferred. United States v. Mobile Materials, Inc., 871 F.2d at 916. This is such a case, for the defendants were charged with a single conspiracy. See, e.g., United States v. Wright, 826 F.2d 938, 945 (10th Cir.1987).

We also consider whether or not Pilgrim zealously pursued a speedy trial. See United States v. Mobile Materials, Inc., 871 F.2d at 917. He never sought a severance from the other defendants. He did move for dismissal on speedy trial grounds, but he also moved for continuances when Judges Johnson and Anderson set trial dates.

It is reasonable to apply the exclusion occasioned by Tranakos to Pilgrim as well. 4

2.

The defendants contend that section 3161(h)(1)(F) does not apply to this case because it excludes delays "resulting from" pending pretrial motions, and this delay actually resulted from the lack of a presiding judge. However, the exclusions in section 3161(h) are automatic, so no inquiry into the true cause of a delay is proper. United States v. Wilson, 835 F.2d 1440, 1442-43 (D.C.Cir.1987); United States v. Montoya, 827 F.2d 143, 150-51 (7th Cir.1987); United States v. Felton, 811 F.2d 190, 195 (3d Cir.), cert. denied, 483 U.S. 1008, 107 S.Ct. 3235, 97 L.Ed.2d 740 (1987); United States v. Velasquez, 802 F.2d 104, 105 (4th Cir.1986); United States v. Keefer, 799 F.2d 1115, 1121-22 (6th Cir.1986); United States v. Matsushita, 794 F.2d 46, 50-51 (2d Cir.1986); United States v. Henderson, 746 F.2d 619, 622-23 (9th Cir.1984), aff'd, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986); United States v. Stafford, 697 F.2d 1368, 1371-72 (11th Cir.1983); United States v. Brim, 630 F.2d 1307, 1312-13 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981).

Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), compels us to apply section 3161(h)(1)(F) automatically. For one thing, the Court quoted with apparent approval the Ninth Circuit's conclusion that the exclusion so applies. See id. at 327, 106 S.Ct. at 1875 (quoting United States v. Henderson, 746 F.2d at 622); see also id. 476 U.S. at 332, 106 S.Ct. at 1877 (referring to the period between filing and hearing as "automatically excludable under Sec. 3161(h)(1)(F)").

Moreover, the Supreme Court vacated the decision of the First Circuit in United States v. McAfee, 780 F.2d 143 (1st Cir.1985), and remanded it for further consideration in light of Henderson. United States v. McAfee, 479 U.S. 805, 107 S.Ct. 49, 93 L.Ed.2d 10 (1986). In that case, a pretrial motion was filed, but not taken under advisement for an unreasonably long time. Also, the defendant waived his rights under the Act. The First Circuit held that section 3161(h)(1)(F) excludes only reasonably necessary delays, so not all of the time consumed by the motion in question was excludable. United States v. Pringle, 751 F.2d 419, 431 (1st Cir.1984). The court also held that Speedy Trial Act rights are nonwaivable, but a delay actually caused by an attempted waiver should be excluded. Id. at 434. On appeal after remand, the court held that the delay was caused not by the defendant's waiver, but by an "administrative mixup" which prevented the district court from realizing that the case required his attention. United States v. McAfee, 780 F.2d at 145-46.

The Supreme Court held in Henderson that section 3161(h)(1)(F) applies to the entire period a motion is pending. See Henderson v. United States, 476 U.S. at 330, 106 S.Ct. at 1876. After McAfee was vacated and remanded, the defendant argued that section 3161(h)(1)(F) did not apply because the delay had resulted not from the pretrial motion but from the administrative breakdown. The court disagreed.

"First, there would have been no remand in Pringle except for our rule that (F) only permitted reasonably necessary delay. Second, the Court's holding that '[t]he provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion' must include time consumed because of an...

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