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UNITED STATES v. NOLAN

October 7, 1981

UNITED STATES of America, Plaintiff,
v.
Charles Wallace NOLAN, Jr., Defendant



The opinion of the court was delivered by: TEITELBAUM

The defendant, Charles Wallace Nolan, Jr., was named in a seven count indictment charging him with various violations of the federal drug laws. Specifically, Mr. Nolan has been charged with conspiracy to import morphine (Count I); conspiracy to possess morphine with intent to distribute (Count II); importation of morphine in June of 1979 (Count III); importation of morphine in November of 1979 (Count IV); possession of morphine with intent to distribute in November of 1979 (Count V); possession of morphine with intent to distribute in September of 1980 (Count VI); and possession of marihuana in September of 1980 (Count VII). The defendant filed ten pretrial motions which this Court has previously considered and ruled on. The opinion sub judice is intended to set forth the reasons for the Court's prior rulings on all but one of the defendant's pretrial motions. Because discussion of the motion to suppress evidence will be somewhat lengthy, discussion of that motion will follow in a separate opinion.

THE SPEEDY TRIAL ACT

 Before turning to the pretrial motions, it seems appropriate to comment on the application of the Speedy Trial Act, 18 U.S.C.A. § 3161-74, to the circumstances of the instant case. The defendant was initially arraigned on July 17, 1981 and bond was set by a federal magistrate at $ 250,000. While the bond was later reset at $ 150,000, the defendant has not posted bond to date and so remains confined. On September 18, 1981, prior to receiving testimony on the pretrial motions, the Court indicated that trial of the instant case was tentatively scheduled for October 26, 1981, a date more than ninety days from the date of arraignment. After informing defense counsel of the proposed trial date the Court inquired whether such a date would create any problems vis a vis the Speedy Trial Act.

 The Court's inquiry about the Speedy Trial Act was prompted by a concern that arguments suggesting varying interpretations of 18 U.S.C.A. § 3164 could be made, and that despite this Court's desire to follow the time requirements of the Speedy Trial Act, and willingness to make any necessary adjustments to its trial calendar to comply with the Speedy Trial Act, an unwitting violation might occur. This concern was prompted by a brief reading of 18 U.S.C.A. § 3164, which reads, in pertinent part:

 
(b) The trial of any person ... (detained solely because he is awaiting trial) ... shall commence not later than ninety days following the beginning of such detention.... The periods of delay enumerated in section 3161(h) are excluded in computing the time limitation specified in this section.

 When the Speedy Trial Act was initially adopted, the underlined portion of the above quotation was not part of the Act. See Speedy Trial Act, Pub.L.No.93-619, 88 Stat. 2081. The Courts of Appeals divided on whether the ninety day period was an absolute time limit unaffected by the provisions of 18 U.S.C.A. § 3161(h), which excluded certain periods from time calculations under the Speedy Trial Act, or whether the provisions of 18 U.S.C.A. § 3161(h) affected the calculation of the ninety day period. For example, in United States v. Tirasso, 532 F.2d 1298 (9th Cir. 1976) the ninety day period was held to be absolute, while in contrast United States v. Corley, 179 U.S. App. D.C. 88, 548 F.2d 1043 (D.C.Cir.1976) held that the ninety day period would be tolled by any of the reasons set forth in 18 U.S.C.A. § 3161(h). This conflict between the Circuits was addressed by the Speedy Trial Act Amendments Act of 1979, Pub.L.No.96-43, 93 Stat. 327. This enactment added the underlined language quoted above. Unfortunately, that language is not a model of clarity. The use of the word, excluded, instead of, applicable, permits the underlined language to be read to mean one should use the exclusions in section 3161(h) to toll expiration of the ninety day period, or, alternatively, the exclusions provided in section 3161(h) should not be used to toll the ninety day period. Fortunately, the legislative history explains the meaning of this language. H.R.Rep.No.390, 96th Cong., 1st Sess. 12, reprinted in (1979) United States Code Congressional and Administrative News 805, 816 reads:

 
(This) recommendation for making the provisions of 3161(h) specifically applicable to detention (sic) ... defendant is being offered in a bill which expands those provisions for exclusions and continuances. It is the intention of the committee that courts apply the provisions of section 3161(h) to these cases in such a manner as to extend only to the bare minimum necessary detention of persons in custody....

 Following this expression of intent, this Court is able to conclude, in reliance on the provisions of 18 U.S.C.A. § 3161(h)(1)(F) which excludes from the calculation of time under the Speedy Trial Act the period from the filing of pretrial motions through their disposition, a period from September 1, 1981, until September 28, 1981, that the commencement of trial on October 26, 1981, will be timely for purposes of 18 U.S.C.A. § 3164. Even were this erroneous, this Court would attribute the delay to the fault of the defendant and his counsel because (1) defense counsel indicated a number of conflicts in his schedule with beginning trial prior to October 26, 1981 and (2) despite direct questioning by the Court on the defendant's view of the Speedy Trial Act, defense counsel stated that obviously the Court would need time to consider the motions, suggesting that the exceptions in section 3161(h) would apply and in reliance upon that statement, the Court has forgone the opportunity to adjust its trial calendar at a time when that might have been feasible.

 MOTION FOR RECUSAL

 On July 9, 1981, this Court conducted a sentencing hearing in Criminal Action No. 81-25, relative to Mr. James Flora. During the course of that hearing, the government indicated that it could prove that Mr. Flora had travelled to India with Mr. Nolan, the defendant in this case, on a number of occasions. Mr. Flora's attorney disputed whether or not Mr. Flora had ever gone to India other than on one occasion while travelling with his co-defendant Mr. Gaul. Having heard from the government that in addition to the one trip to India with Mr. Gaul that Mr. Flora had repeatedly visited India with Mr. Nolan, and deeming that relevant to the sentence to be imposed, as well as the accuracy of the presentence report, this Court inquired of both Mr. Flora and his attorney how often Mr. Flora had visited India with Mr. Nolan. The defendant, Mr. Flora, answered by asserting the Fifth Amendment.

 Based on this Court's question to Mr. Flora at that sentencing proceeding, Mr. Nolan has moved this Court to recuse for personal bias pursuant to 28 U.S.C.A. § 144. That motion has been denied. In questioning Mr. Flora, this Court was performing a judicial function: attempting to ascertain the truth of information contained in a presentence report which would be relevant to the imposition of sentence. It in no way reflects prejudgment of or a personal bias against Mr. Nolan.

 It has repeatedly been held that the bias necessary to require recusal must be personal and not judicial. See, e.g., United States v. Archbold-Newball, 554 F.2d 665 (5th Cir. 1977) rehearing denied 559 F.2d 1217, cert. denied 434 U.S. 1000, 98 S. Ct. 644, 54 L. Ed. 2d 496. In articulating this distinction, the courts have noted that what a judge learns in an earlier stage in the proceeding is not a basis for recusal, United States v. Schmidt, 604 F.2d 236 (3rd Cir. 1979). Nor is what a judge hears at sentencing proceedings of co-defendants, Hanger v. United States, 398 F.2d 91 (8th Cir. 1968) cert. denied 393 U.S. 1119, 89 S. Ct. 995, 22 L. Ed. 2d 124 rehearing denied 395 U.S. 971, 89 S. Ct. 2106, 23 L. Ed. 2d 761 or from presentence reports, United States v. Montecalvo, 5 ...


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