United States v. Horton, 82-4208.

Citation705 F.2d 1414
Decision Date16 May 1983
Docket NumberNo. 82-4208.,82-4208.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Leon Cordell HORTON and Artis O'Dell Reed, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Thomas E. Royals, court-appointed, Jackson, Miss., for Horton.

W.S. Moore, court-appointed, Jackson, Miss., for Reed.

James B. Tucker, Asst. U.S. Atty., Jackson, Miss., for U.S.

Before GEE, REAVLEY and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

Horton and Reed, convicted by a jury at a joint trial of conspiracy to obstruct commerce by means of extortion in violation of the Hobbs Act,1 appeal. As we shall see, the evidence established that the two conspired and attempted to extort money from a number of large domestic corporations by poisoning their products and threatening to kill their officers and employees. Appellants' primary complaint to us is that their rights to speedy trial were breached. Other contentions are made as well and will be noticed. We reject them all and affirm both convictions.

Speedy Trial

Horton and Reed were indicted on May 20, 1981.2 Reed was arrested in Dallas and returned to Mississippi on May 26. According to the Magistrate's report, the first appearance by either before a judicial officer of the Southern District of Mississippi, where the charges were pending, was that of Reed, on May 27, 1981. Since Horton was not arrested until May 29, in Texas, his first appearance was necessarily later. The earliest date, therefore, on which the Speedy Trial Act's seventy-day period could have begun to run was May 27.3 Trial did not commence until March 1, 1982, a delay of almost 280 days.

The Act requires exclusion of certain periods of pendency from this calculation, however, among which are these:

(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—
. . . . . .
(F) 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;
. . . . . .
(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
. . . . . .
(7) 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.

18 U.S.C. § 3161(h). Reed filed his first motion on June 18, 1981, Horton on June 22. There followed various settings of the motions for hearing, but they were not heard until December 22, 1981, and were not all disposed of until over thirty days thereafter. Obviously, if even the shorter period of motion-pendency, Horton's of 183 days, plus thirty additional days for the "under advisement" exception—a total of 213 days— be deducted from the case's pendency, the critical seventy-day period of the Act was not exceeded. Reed's situation is a fortiori.4

Appellants attack the exclusion of the motion-pendency period as unjustified, asserting that little or none of it was occasioned at their request or on their account. Even assuming this to be so, we still must conclude that the attack fails. The terms of exclusion F, quoted above, are all but absolute. They exclude "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing ...." It is true that there follows a reference to "other prompt disposition" of the motion, one that might be taken to imply that such matters should be promptly disposed of and that might justify, in an egregious case, disregarding some portion of the pendency period. Such a case might be presented by repeated unsuccessful requests for hearings or by other credible indication that a hearing had been deliberately refused with intent to evade the sanctions of the Act. Nothing of the sort is evident here.

The motions were promptly set on July 2, 1981. Because of his occupation with a civil trial on that date, the magistrate rescheduled them for July 30. Unfortunately, he was ill on that date. A later motion was filed by Horton on August 27, seeking the suppression of certain evidence. The record reveals no further attempt by defense counsel to obtain a hearing until November 13, when Reed moved for a setting of all pretrial motions. This was promptly scheduled for December 3 but was re-noticed by counsel for December 22, when all motions were heard. Thus, the longest period of inaction was from July 30 to November 13, three and a half months during which, by the record, counsel sought no hearing. When he did, one was promptly set. We do not regard these periods of pendency with approbation, nor will we countenance trifling with the Act. Nevertheless, the situation and sequences presented do not approach that degree of egregiousness which might, in the circumstances noted above, justify our disregarding the clear language of the exclusion. As Congress doubtless recognized in enacting exclusion F, today's motion practice in criminal cases can be, and often is, both complex and dispositive. That exclusion places no rigid time strictures on the practice whatever, and only the shadow of an implied one. Fidelity to its enactment requires rejection of appellants' contention.5

Other Contentions

Appellants next complain of the denial of a motion by Reed for severance and separate trial. The law governing such motions is epitomized in United States v. Swanson, 572 F.2d 523 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978): that they are addressed to the discretion of the court, which will not be disturbed absent an affirmative showing of its abuse; that considerations of judicial economy and the policy favoring joint trials in conspiracy cases weigh against them; that defenses must be irreconcilable, rather than merely antagonistic, for severance upon such a ground; and that only a showing of compelling prejudice, against which the trial court cannot protect, so that a fair trial cannot be had, will prompt reversal of that court's order.

It is not too much to say that, on this record, appellants have shown little if any prejudice whatever. Their brief cites unfavorable pretrial publicity, but to our reading the two newspaper accounts admitted in evidence are balanced, even skeptical, as to the government's...

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