ON APPEAL FROM THE UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF PENNSYLVANIA
Before SEITZ and GIBBONS, Circuit Judges and GERRY, District Judge*fn*
Dean Felton, Nancy Bruce, Anthony Serrao and Richard Cox appeal from judgments of sentence imposed following their conviction on various counts for violation of 21 U.S.C. §§ 841, 843, 846 and 848 (1982). The charges involved distribution of marijuana. Felton and Bruce contend that the charges against them should have been dismissed because of violations of the Speedy Trial Act. See 18 U.S.C. §§ 3161-3174 (1982). They assert other claims which if meritorious would require that the charges against them be dismissed, as well as several trial errors which if meritorious would require a new trial. Because we conclude that the Speedy Trial Act claims of Felton and Bruce require a dismissal of the indictment with prejudice, we do not reach those additional contentions. Serrao and Cox, challenging the sufficiency of the evidence against them, urge that their motions for a directed verdict should have been granted. Alternatively they urge that trial errors require a new trial. We find their contentions to be without merit, and thus in their appeals we affirm.
On June 4, 1979 federal agents executed a search warrant at the premises of Antiques International in Plum Borough, Pennsylvania. The agents found substantial quantities of marijuana. They immediately arrested Dean Felton and six others. On June 28, 1979 a federal grand jury returned a four-count indictment, No 79-121, against the seven who were arrested. Count I of that indictment charged a conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. That count alleged that the conspiracy ran from May 24, 1979 to June 4, 1979, when the arrests were made. Count IV charged Felton with possession of marijuana with intent to distribute in violation of 18 U.S.C. § 841. Felton was arraigned on the 1979 indictment. After a series of pretrial maneuvers, including an unsuccessful appeal by the United States from an order suppressing some of the evidence seized on June 4, 1979, trial on indictment No. 79-121 commenced on May 11, 1981. Felton was tried only on Count IV, however, because the United States dismissed the other three counts after it lost its appeal of the district court's decision to suppress some it its evidence. Felton subsequently was convicted, and on July 1, he was sentenced to a jail term, a fine, and a 20-year special parole term. This court affirmed by judgment order on March 26, 1982. United States v. Felton, Nos. 81-2135, 81-2148 (3d Cir. March 26, 1982).
while the federal charges in indictment No. 79-121 were pending, Pennsylvania stat authorities developed an interest in Felton's activities. On May 13, 1981 the Pennsylvania state police executed two search warrants; one at a warehouse leased by Dean Felton in the Kutz Industrial Park in Pittsburgh, and the other at a private residence in that city. The state police seized marijuana in a truck at the warehouse and in the basement of the private residence. The next day, as Felton entered the federal courthouse for the continuation of his trial, the state police arrested him. He was charged under Pennsylvania law with possession with intent to distribute, and conspiracy, all with respect to the marijuana seized at Kutz Industrial Park. Felton was granted bail on the state charges, and his federal trial continued on through conviction and sentencing.
Trial on the Pennsylvania charges was scheduled for September 21, 1981. On SEptember 17, 1981, however, the District Attorney of Allegheny County moved ex parte to dismiss those charges because their prosecution was being assumed by the United States Attorney. When Felton, who was in federal custody, learned of the dismissal he objected on the grounds that dismissal and transfer violated his state and federal rights to a speedy trial. The investigation was nevertheless transferred to the Office of the United States Attorney, where it languished while Felton served his sentence. Felton was released from federal custody on March 5, 1983. Twenty-six days after his release, a federal grand jury handed down a ten-count indictment, No. 83-49, against Felton and six others, including Bruce, Serrao, Cox and John Hathorn. Count I of No. 83-49 charged the seven named defendants and others unknown with conspiring in violation of 21 U.S.C. § 846 from the beginning of 1979 until May 13, 1981. Count II charged Felton with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Other counts charged possession, in violation of 21 U.S.C. § 841(a)(1), and use of the telephone in violation of 21 U.S.C. § 843(b). The charges in No. 83-49 were based upon the marijuana seized by the Pennsylvania state police on May 13, 1981. Felton made his initial appearance before a federal magistrate on indictment No. 83-49 on April 1, 1983. He was arraigned on April 11. With the exception of Cox, all the other defendants named in indictment No. 83-49 were arraigned by May 20, 1983.
The trial on indictment No. 83-49 commenced on April 1, 1985, two years to the day after Felton's first appearance before a magistrate on that indictment, and six weeks shy of five years after he was arrested by the Pennsylvania state police on the virtually identical charges growing out of the May 13, 1981 seizure at Kutz Industrial Park. Meanwhile the district court had considered and denied motions by Felton and Bruce to dismiss the charges for violations of the Speedy Trial Act.*fn1 The defendants were sentenced on May 22, 1985.
The Speedy Trial Act provides that "[i]n any case in which a plea of not guilty is entered the trial of a defendant..shall commence within seventy days.. from the date the defendant has appeared before a judicial officer of the court in which such charge is pending..." 18 U.S.C. § 3161(c)(1). The Act provides, however, for numerous exclusions from this seventy-day period. In his motion to dismiss, Felton urged that since the conspiracy charged in the second federal indictment, No. 83-49, was the same as that charged in the first federal indictment, No. 79-121, the starting time for the speedy trial clock was in 1979 when he was arraigned on the first. The district court agreed that at least Counts I and II of No. 83-49, the conspiracy and continuing criminal enterprise counts, related back to the first indictment. 592 F.2d at 182. Relying on United States v. Budzyna, 666 F.2d 666 (1st Cir. 1981), however, the court held that because the charges in No. 83-49 involved the same conspiracy as was alleged in No. 79-121, indictment No. 83-49 should be deemed to be a 1979 indictment for purposes of imposing sanctions under the Act. Id. at 183. Based on its characterization of No. 83-49 as a 1979 indictment, the court held that, regardless of the amount of time that might have run on the speedy trial clock, no sanctions would apply. That holding rested upon the court's interpretation of section 3163(c) of the Act, which provides that the mandatory dismissal sanctions "become effective and apply to ...all informations indictments filed, on or after July 1, 1980." 18 U.S.C. § 3163(c).
In Budzyna the Court of Appeals for the First Circuit held that the dismissal sanction was inapplicable to a superseding indictment filed after July 1, 1980 because the original indictment had been filed before the effective date of the mandatory dismissal sanctions, and because the superseding indictment related back to the earlier date. 666 F.2d at 270. The court, however, did not hold that the doctrine of relation back could apply to a new indictment, not superseding an earlier one, but, rather, filed after the first one was tried and the defendant sentenced. Moreover, although the relation back argument as a means of insulating indictment No. 83-49 from the dismissal sanctions in section 3162 is ingenious, it is totally inconsistent with the plain language of the statute and the obvious intention of Congress. Indictment No. 83-49 was an indictment filed on or after July 1, 1980 which threatened Felton with jeopardy entirely apart from the jeopardy involved in No. 79-121, as to which his jail sentence had already been served.
Realizing, perhaps, that the "relation back" argument for the inapplicability of dismissal sanctions was more ingenious than plausible, the district court proceeded to address the merits of the Speedy Trial Act claim. Measuring the starting point from the date that indictment No. 79-121 was returned, the court determined that, under various of the provisions of the Speedy Trial Act excluding time from the seventy-day period, the time limit for bringing the defendants to trial had not expired as of May 18, 1984. 592 F. Supp. at 183-85. In the same opinion, the district court granted a suppression motion and denied a double jeopardy motion. Id. at 186-91. Because these rulings resulted in appeals to this court by the United States and by defendant Hathorn,*fn2 the trial on No. 83-49 did not commence in 1984. The district court received this court's judgment in the government's appeal of the suppression ruling on March 12, 1985. On March 19, the district court denied a renewed motion to dismiss on Speedy Trial grounds. Jury selection for the trial of indictment No. 83-49 commenced on April 1, 1985, 721 days after its return, and 720 days after Felton's initial appearance before a judicial officer on that charge.
The Speedy Trial Act provides that in calculating time chargeable against the seventy-day limit in section 3161(c), certain delays are excluded. Those arguably relevant in this instance are discussed separately.
Section 3161(h)(l)(F) & (J)
Motion Practice Exclusions
Section 3161 (h)(1)(F) excludes "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." 18 U.S.C. § 3161(h)(1)(F). On July 1, 1983 there were pending in the district court thirty-five pretrial motions seeking various forms of relief. These included a motion by Felton to dismiss under both the Speedy Trial Act and the speedy trial clause of the sixth amendment. Hearing were held on these motions on July 14 and 15, 1983. Thereafter defendant Bruce filed a severance motion, Felton filed a motion to disqualify Bruce's counsel, and Hathorn filed a double jeopardy motion. Hearings were held on the additional motions on August 16 and 17. Felton and Bruce contend, and ...