U.S. v. Tunnessen

• Decision Date: 24 May 1985
• Docket Number: D,1112,1096,Nos. 1095,s. 1095
• Citation: 763 F.2d 74
• Parties: UNITED STATES of America, Appellee, v. James TUNNESSEN, Douglas Fullerton, and Michael Robert Reape, Defendants- Appellants. ockets 84-1419, 1431, 1458.
• Court: U.S. Court of Appeals — Second Circuit

Page 74

763 F.2d 74

UNITED STATES of America, Appellee, v. James TUNNESSEN, Douglas Fullerton, and Michael Robert Reape, Defendants- Appellants.

Nos. 1095, 1096, 1112, Dockets 84-1419, 1431, 1458.

United States Court of Appeals Second Circuit.

Argued April 23, 1985.

Decided May 24, 1985.

Mark B. Gombiner, New York City (Gombiner & Avenia, Peter J. Avenia, New York City, Robert H. Gombiner, of counsel, for defendant-appellant Michael Robert Reape.

Charles P. Gelso, Wilkes-Barre, Pa. (John P. Moses, Wilkes-Barre, Pa., of counsel), for defendant-appellant James Tunnessen.

Frank P. Geraci, Jr., (Asst. U.S. Atty., Rochester, N.Y., Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Buffalo, N.Y., of counsel), for appellee.

Before FEINBERG, Chief Judge, and LUMBARD and NEWMAN, Circuit Judges.

FEINBERG, Chief Judge:

Section 3161(h)(8)(A) of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (the Act), permits a district court to toll the running of the speedy trial "clock" upon a determination that the "ends of justice" so require. Since such continuances, if too freely granted, would undermine the purposes of the Act, care must be taken to confine them to appropriate circumstances. In these appeals, we must decide whether the district court followed the proper procedures for granting an ends-of-justice continuance.

James Tunnessen and Michael Robert Reape appeal from judgments of conviction entered after a jury trial before Judge Michael A. Telesca in the United States District Court for the Western District of New York. Douglas Fullerton appeals from a judgment of conviction entered after his guilty plea before Judge Telesca, which was conditioned on the outcome of his Speedy Trial Act claim. Tunnessen, Reape and Fullerton all contend that the government failed to bring them to trial within the seventy-day period provided for by the Act, 18 U.S.C. Sec. 3161(c)(1). Because we conclude that the proceedings in the district court did not comply with the Act, we reverse and remand.

I.

Briefly, the facts giving rise to these appeals are as follows. In early December 1983, a federal grand jury returned a two-count indictment charging defendants-appellants and three others with possessing with intent to distribute approximately four pounds of a substance containing cocaine, 21 U.S.C. Sec. 841(a)(1), 18 U.S.C. Sec. 2 (Count One), and conspiring to distribute and possess with intent to distribute quantities of a substance containing cocaine, 21 U.S.C. Sec. 846 (Count Two). Fullerton and Reape were arraigned on December 12, 1983, and Tunnessen was arraigned on December 20. Defendants filed pretrial motions in January 1984, which were deemed submitted on February 6. On the basis of these motions, the district court decided to hold a suppression hearing; this took place on May 29. Also on that date, all parties consented to an order excluding, for Speedy Trial Act purposes, 113 days from February 6 to May 29. ¹ On July 6, 1984, the district court filed a seven-page Memorandum Decision and Order disposing of all outstanding pretrial motions. The court concluded: "In summary, all of the defendants' omnibus motions are denied and this case is scheduled for trial on September 25, 1984 at 10:00 A.M." All parties apparently agree that the judge correctly noted later that thirty-five days of nonexcludable time had passed as of July 6. Unless the July 6 order can properly be construed as an ends-of-justice continuance, the latest possible trial date consistent with the Act's seventy-day limit was August 10, 1984.

On September 25, after the trial date had been postponed until early October, Fullerton filed a motion to dismiss the indictment on the ground that the Speedy Trial Act had been violated. Reape and Tunnessen subsequently filed similar motions, the government responded, and oral argument was heard on October 10, 1984. In an opinion dated October 12, the district court denied the motions to dismiss, stating: "I hold that although not labeled as such, the court contemplated a continuance from July 6 until September 25 as is evidenced by the terms of its July 6 order." Citing section 3161(h)(8)(A), the court then set forth "[a] number of factors ... contemplated when the trial date of September 25 was established in the July 6 order," most of which concerned counsels' alleged need for additional preparation time. In particular, the court noted the complexity of the case, the substantial number of taped conversations involved, ² a trial conflict of one of the defense attorneys and the fact that several defense attorneys were from out of town.

Trial was rescheduled for October 16, 1984, with Tunnessen and Reape the only remaining defendants. Fullerton had pled guilty to Count One of the indictment on October 4, expressly reserving his right to pursue his Speedy Trial Act claim; He was given a three-year suspended sentence. Tunnessen was convicted on Count Two and sentenced to six months imprisonment and four and one-half years probation. Reape was convicted on both counts and sentenced to a total of three years imprisonment. Tunnessen and Reape are currently serving their sentences.

Defendants advance two arguments on appeal. First, they contend that the procedural requirements of the Speedy Trial Act were violated by the district court's retroactive treatment of its July 6 order as an ends-of-justice continuance. Second, defendants argue that even if the district court's actions were procedurally correct, the reasons given are insufficient to justify the continuance that was granted. Because the district court's statement in October that its July 6 order was in fact an ends-of-justice continuance came too late to satisfy the procedural requirements of the Act, we need not address appellants' substantial challenge to the sufficiency of the reasons given.

II.

The Speedy Trial Act commands the government to bring criminal defendants to trial within seventy days of their first appearance before a judicial officer of the court or the filing of an indictment, whichever is later. 18 U.S.C. Sec. 3161(c)(1). If this deadline is not met, the district court must dismiss the indictment, either with or without prejudice. Id. Sec. 3162(a)(2). Certain precisely defined periods of delay are automatically excluded from the calculation of the seventy-day time limit, such as those resulting from necessary pretrial proceedings or interlocutory appeals. See id. Sec. 3161(h)(1)-(7). In order to "avoid the pitfalls of unnecessary rigidity" and provide courts with the discretion to deal effectively with individual cases, see S.Rep. No. 1021, 93rd Cong., 2d Sess. 21 (1974) (Senate Report), Congress included section 3161(h)(8)(A), which permits a district court on its own motion to grant continuances comprising excludable time when it finds that "the ends of justice ... outweigh the best interest of the public and the defendant in a speedy trial." ³ But despite its interest in insuring flexibility, Congress intended that this exclusion be "rarely used," Senate Report, supra, at 41, and sought to avoid its abuse by providing that no period of delay based on the "ends of justice" may be excluded "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 [would be] served" by granting the excludable delay. Subsection (h)(8)(B) contains a nonexclusive list of factors for the court to consider in deciding whether to grant a continuance under subsection (h)(8)(A). ⁴

At least two purposes are served by the requirement that a district court set forth its reasons for granting an ends-of-justice continuance. First, it insures careful consideration of the relevant factors by the trial court. Senate Report, supra, at 39. Second, the requirement provides the appellate court with an adequate record on which to review the district court's decision. United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983).

In this case, the district judge set defendants' trial date outside the limits of the Act without making any ends-of-justice findings on the record. Only after defendants brought their motions to dismiss did he record his findings as required by section 3161(h)(8)(A). The Act plainly contemplates that the district "judge must determine before granting the continuance that society's interest in meeting the 'ends of justice' outweighs the interest of the defendant and of society in achieving speedy trial." Senate Report, supra, at 39 (emphasis added). See also United States v. Carey, 746 F.2d 228, 230 (4th Cir.1984) ("retroactive continuances that are made after expiration of [speedy trial clock] for reasons the judge did not consider before lapse of the allowable time are inconsistent with the Act"); United States v. Frey, 735 F.2d 350, 353 (9th Cir.1984) ("district court erred by making nunc pro tunc findings to accommodate its unwitting violation of the Act"); United States v. Richmond, 735 F.2d 208, 215-16 (6th Cir.1984) (judgment of conviction reversed because "district court cannot fairly be said to have granted the continuance ... based on the findings that it set forth" later); United States v. Brooks, supra, 697 F.2d at 522 ("district judge must consider the matter at the outset"). Congress intended that the decision to grant an ends-of-justice continuance be prospective, not retroactive; an order granting a continuance on that ground must be made at the outset of the excludable period. Nevertheless, it is reasonably well settled that the required findings need not be placed on the record at the same time that the continuance is granted. See United States v. Brooks, supra, 697 F.2d at 522 (citing cases).

Given these principles, our question is whether the district court's October 12 statement--that on July 6 it had in fact made an ends-of-justice determination in setting the trial date--satisfies the...