U.S. v. Zayas, 89-1031

• Decision Date: 02 May 1989
• Docket Number: No. 89-1031,89-1031
• Parties: UNITED STATES of America, Appellee, v. Juan ZAYAS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1057

876 F.2d 1057

UNITED STATES of America, Appellee, v. Juan ZAYAS, Defendant, Appellant.

No. 89-1031.

United States Court of Appeals, First Circuit.

Heard May 2, 1989.

Decided June 7, 1989.

John F. Cicilline, Providence, R.I., for defendant, appellant.

Kenneth P. Madden, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for U.S.

Before BREYER and TORRUELLA, Circuit Judges, and RE, ^* Judge.

TORRUELLA, Circuit Judge.

Juan Zayas appeals from his criminal conviction after a bench trial. The defendant was charged with a single count of possession with intent to distribute heroin. The district court acquitted the defendant on that charge, but found him guilty of the lesser included offense of possession of heroin. Defendant was then sentenced to a year in prison, a one year term of supervised release, a $20,000 fine, and costs of incarceration and supervision.

The conviction stemmed from the following incident. On May 5, 1988, Providence police were following a Jeep. There were two persons in the Jeep: the defendant was the driver and Miguel Fortunato was the passenger. At one point, the Jeep turned down a side street. Fortunato left the Jeep and walked toward some nearby houses. When Fortunato returned, Zayas drove the Jeep back to the main street. The police then called for reinforcements. Sensing that they were being followed, the occupants of the Jeep made a sharp turn into a vacant lot. As the Jeep executed the turn, the driver's window came down and the driver dropped several packages to the ground. It turned out that these packages contained heroin whose net weight was 9.4 grams. Zayas and Fortunato were then arrested.

At trial, Zayas called two witnesses. The first was a police officer who testified that Fortunato told him that Zayas had nothing to do with the drugs. Zayas then took the stand himself and testified that he knew nothing about the transaction and was just giving Fortunato a ride. He also testified that Fortunato had dumped the heroin out of the Jeep from the passenger side window.

Zayas raises three issues on appeal. First, he claims that the indictment should have been dismissed under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., because the trial did not begin until seventy days after his arraignment. Second, he argues that he was deprived of his privilege against self-incrimination with respect to certain questions regarding a videotape recording. Third, he claims that he was incorrectly sentenced because the trial court misapplied the Sentencing Guidelines.

First. The facts relating to the Speedy Trial Act claim are as follows. Zayas was arraigned on July 21, 1988, and both parties agree that this event triggered the statutory 70-day period. See 18 U.S.C. Sec. 3161(c)(1). Since there was no excludable time, see id. Sec. 3161(h), both parties agree that the statutory period expired on September 28, 1988. The jury was empaneled on September 15, 1988, but the actual trial only began on October 27, 1988. ¹ The defendant concedes that empanelment would ordinarily satisfy the statute, but argues that this particular empanelment was merely a pretext to toll the statutory "clock." The government in turn concedes that a pretextual empanelment will not toll the statute, see, e.g., United States v. Scaife, 749 F.2d 338, 343 (6th Cir.1984), but argues that the empanelment in this case was not pretextual.

This claim thus boils down to a factual issue: whether the September 15 empanelment was a pretext. The only proof adduced by the defendant to support this allegation is that the trial court was in the midst of a civil trial on that date, and that this trial ran for three or four months. The government responds that the trial judge was not conducting a civil trial on September 15. Although there were civil cases on the trial calendar, the district court intended to try Zayas' criminal case first, and was in fact ready to begin taking testimony on September 16. The court rescheduled the case because both defense counsel and the prosecutor were involved in another trial before District Judge Ernest Torres, United States v. Tejada, et al, Cr. No. 88-047T. That trial, which began on September 7, 1988, ended on September 20, 1988. Within a week after the end of that trial, defense counsel started another trial before Senior District Judge Raymond Pettine, United States v. Bello-Rodriguez, Cr. No. 88-049P, which lasted from September 27 through September 30. The district court turned to the number one civil case on his docket only because of the unavailability of both counsel. When the district court sought to schedule the trial for October 13, the government alleges that defense counsel told the court that he would be unavailable to begin a trial until October 24. The district court then scheduled the trial for October 27. The government also points out that the jury was empaneled two weeks prior to the expiration of the statutory period, proving that the empanelment was not some last minute maneuver to circumvent the statutory mandate. See United States v. Crane, 776 F.2d 600, 603 (6th Cir.1985).

At the October 27, 1988 hearing on defendant's motion to dismiss the indictment on Speedy Trial Act grounds, the district court adopted the government's version of the facts. See Transcript of October 27, 1988 Hearing at 9 (reproduced in Supplemental Record Appendix). The defendant has not convinced us that these findings are clearly erroneous. See United States v. Henderson, 746 F.2d 619, 622 (9th Cir.1984), aff'd, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). Even if the government's chronology is accurate, the defendant's counsel claimed at oral argument that the delay in commencing the trial should not be attributed to him, but to the federal court, which was responsible for the scheduling of his cases. The short answer to this contention is that defense counsel cannot take advantage of the court's efforts to accommodate his schedule. We hold that the September 15 jury empanelment was not a pretext and reject defendant's claim that his indictment should have been dismissed because the Speedy Trial Act was violated.

Second. Zayas was cross-examined by the prosecutor about a...