UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 4, 1986
THE UNITED STATES
DEAN K. FELTON, NANCY E. BRUCE, JOHN ZORAK A/K/A JOHNNY, ANTHONY SERRAO, A/K/A BUDDY, RICHARD COX, A/K/A RICKY, JAMES THURMAN, JOHN HATHORN, DEAN K. FELTON, APPELLANT IN 85-3303 (D.C. CRIM. NO. 83-00049-01), NANCY E. BRUCE, APPELLANT IN 85-3304, (D.C. CRIM. NO. 83-00049-02, ANTHONY SERRAO, APPELLANT IN 85-3305, (D.C. CRIM. NO. 85-00049-04), RICHARD COX, APPELLANT IN 85-3306, (D.C. CRIM. NO. 85-00049-05)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT OF THE WESTERN DISTRICT OF PENNSYLVANIA
Opinion OF THE COURT
Before SEITZ and GIBBONS, Circuit Judges and GERRY, District Judge*fn*
BIGGONS, Circuit Judge :
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 our examination of the record confirms, that even allowing for post-hearing written submissions all pending motions must be deemed to have been under advisement no later than September 26, 1983.
On November 3, 1983 the district court, ex parte, entered an order "that the time for filing of the pretrial motions until their ultimate resolution be, and the same hereby is, deemed to be excludable under the Speedy Trial Act." Joint Appendix 35. Giving the United States the benefit of all time prior to September 26, 1983, this order was entered thirty-eight days after the submission of the last pending motion by the defendants who had appeared. The order purported to exclude not only the thirty-eight day period, but also an indefinite future period.
By its terms section 3161(h)(1)(F) applies to delay resulting from any pretrial motion.*fn3 Once motions have been filed, excludable time runs from the filing date to either the conclusion of a hearing, or if no hearing is held, the date on which the matter is completely submitted to the court for decision. See S. Rep. 96-212, 96th Cong. 1st Sess. 34 (1979). In order to prevent the abuse that would result from indefinite extensions of the time required for complete of submissions on pretrial motions, this court has held that "permissible exclusions [under section 3161(h)(1)(F)] begin with the filing of a motion and run only 'for a period of time that is 'reasonably necessary' to conclude a hearing [on the motion] or to complete the submission of the matter to the court for decision.'" United States v. Novak, 715 F.2d 810, 820 (3d Cir. 1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1293, 79 L. Ed. 2d 694 (1984) (quoting United States v. Cobb, 697 F.2d 38, 44 (2d Cir. 1982)). But see United States v. Henderson, 746 F.2d 619, 622-23 (9th Cir. 1984), cert. granted, 106 So. Ct. 225 (1985). In addition, in Novak we held that for other than relatively brief delays, the court was required to make "specific and approximately contemporaneous findings as to the reasonableness of any extended exclusions for pretrial motions." 715 F.2d at 820. We held binding, moreover, the provision in the Speedy Trial Act Plan for the Western District of Pennsylvania that the government must respond to criminal defendants' pretrial motions within ten days of service, absent an extension. Id. at 816. See W.D. Pa. R. 24(b) 1984.
Clearly section 3161(h)(1)(F), as this court interprets it, provides no support for the November 3, 1983 order. The district court apparently read our reference to time "reasonably necessary" as dealing not only with the time necessary to complete the process of submission of pretrial motions, but also with the tie required, following completion of submission, to finally dispose of the motions. Novak, however, did not rule upon the second issue. That issue is dealt with specifically in section 3161(h)(1)(J). That section excludes "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." 18 U.S.C. § 3161(h)(1)(J). Most courts which have addressed the question have held, and we agree, that pretrial motions are "proceedings concerning the defendant." United States v. Hines, 728 F.2d 421, 426 (10th Cir.), cert. denied, 467 U.S. 1246, 104 S. Ct. 3523, 82 L. Ed. 2d 831 (1984); United States v. Janik 723 F.2d 537, 543-44 (7th Cir. 1983); United States v. Horton, 705 F.2d 1414, 1416 (5th Cir.) cert. denied 464 U.S. 997, 104 S. Ct. 496, 78 L. Ed. 2d 689 (1983); United States v. Stafford, 697 F.2d 1368, 1373 (11th Cir. 1983); United States v. Bufalino, 683 F.2d 639, 642-44 (2d Cir.), cert. denied, 459 U.S. 1104, 74 L. Ed. 2d 952, 103 S. Ct. 727 (1983). But see United States v. Tertrou, 742 F.2d 538, 539 (9th Cir. 1984) (per curiam) (section 3161(h)(1)(J) applies only to "other types of proceedings not enumerated, such as post-trial motions"). Novak did not read the thirty-day limitation for the disposition of pending motions out of the statute. The Federal Guidelines to the Administration of the Speedy Trial Act of 1974 treats as under advisement and thus subject to the outside thirty-day limit all motions as to which "the court has received everything it expects to receive from the parties before reaching a decision." FEderal Guidelines to the Administration of the Speedy Trial Act of 1974 36 (Dec. 1979). That date was September 26, 1983. Therefore, the time excludable under section 3161(h)(1)(J) expired thirty days later on October 25, 1983.
Assuming, arguendo, that no excludable time ran from the March 31, 1983 indictment to October 2, 1983, the speedy trial clock commenced running on that date, at least for purposes of section 3161(h)(1)(F) and (J). No new motion was made by any party until November 21, 1983 when Felton made a motion to supplement the record, and a motion to sever Cox. Thus twenty-six days expired for purposes of those subsections. Both of Felton's November 21, 1984 motions were unopposed. The motion to supplement the record was essentially a housekeeping matter which could in no way reasonably require retention under advisement for anything near the maximum thirty-day period in section 3161(h)(1)(J). The unopposed motion to sever Cox, discussed further in connection with section 31616(h)(3), arguably required some judicial consideration for, although the government did not oppose it, a severance of one defendant could result in two trials rather than one. Even if the United States is credited with the ten days required under the district court's Speedy Trial Plan for the filing of a response, and with a maximum of thirty days excludable under section 3161(h)(1)(J), the severance motion should have been acted upon no later than December 30, 1983. It was not acted upon until March 31, 1984.
On December 28, 1983 Felton filed a second housekeeping motion to supplement the record. Crediting the United States with the ten days within which it could have filed opposing papers, the section 3161(h)(1)(F) exclusion ran to January 7, 1984. But since the motion was unapposed, no time past that date, or at best the day or two it might have taken the court to read the papers can be deemed "reasonable" under section 3161(h)(1)(F). Thus the speedy trial time clock commenced running no later than January 8, 1984.
No new motion was made by any party until February 17, 1984, When Felton filed a renewed motion to dismiss for a violation of the Speedy Trial Act. Thus for purposes of section 3161(h)(1)(F), the thirty-nine days between January 9 and February 17, 1984 must be charged against the seventy days, for a total of sixty-five nonexcludable days.
The argument that a renewed motion to dismiss on speedy trial grounds should trigger a new "reasonable period for submission" analysis under Novak and a second thirty-day period during which the motion may be taken under advisement, hardly seems consistent with ostensible Congressional purpose in enacting the Speedy Trial Act. We do not find it necessary, however, to resolve the question whether the renewal of a motion which should have been decided long ago should give the United State and the court additional excludable time. In this case, the government's response to Felton's renewed motion was due on February 27, 1984. It was not filed until March 12, 1984. No justification appears of record for this delay of thirteen days. These thirteen days, when added to the sixty-five which had already expired, brings the chargeable delay to seventy-eight days. On top of that, although a hearing on the motion was held on MArch 21, 1984, it was not decided until May 18, 1984. Under section 3161(h)(1)(J), the thirty days running from March 21 to April 20 are excludable. However, the twenty-seven day delay between April 21 and May 18, 1984 does not come within an exclusion, and therefore is chargeable to the Act, bringing the total chargeable time to 105 days.
In sum, the exclusions which may be justified by virtue of motion practice under either section 3161(h)(1)(F) or (J) fall far short of eliminating all seventy days specified in section 3161(c).(1)*fn4
Absence of a Defendant
The Speedy Trial Act provides that "[a]ny period of delay resulting from the absence or unavailability of the defendant" shall be excluded in making Speedy Trial Act computations. 18 U.S.C. § 3161(h)(3)(A). The United States contends that Richard Cox, a codefendant named in indictment No. 83-49, was absent from the date the indictment was handed down until his arraignment on March 21, 1984. According to the United States, all of this period should be counted against Felton and Bruce because of the provision in the Act that "[a] reasonable period of delay [is excluded] 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)(7). Thus, the United States contends, the speedy trial clock did not begin to run in favor of any defendant until March 21, 1984.
For several independent reasons we reject the applicability of sections 3161(h)(3) and 3161(h)(7) to exclude time in this case. These sections operate to exclude time only when a particular codefendant has not been severed. We do not construe these sections, however, to exclude time when a severance motion has been made, but as here, has been simply ignored. See United States v. Didier, 542 F.2d 1182 (2d Cir. 1976). Bruce made a severance motion on November 2, 1983, which was not ruled upon until May 21, 1984.
§ In its ex parte order of November 3, 1983, the district court relied on sections 3161(h)(3) and 3161(h)(7) to create an open-ended exclusion. Joint Appendix 35. The court's reliance on Cox's absence on this record, however, is misplaced, because there was on November 3, 1983 no basis of record for making a determination of Cox's absence or unavailability. Under section 3161(h)(3), absence and unavailability are defined terms. A defendant is only absent "when his whereabouts are unknown and... he is attempting to avoid apprehension or prosecution," or " his whereabouts cannot be determined by due diligence." 18 U.S.C. § 3161(h)(3)(B). A defendant is only unavailable when "his whereabouts are known but  his presence for trial cannot be obtained by due diligence or " he resists appearing at or being returned for trial." Id. When the court rendered the November 3, 1983 order there was no information of record as to Cox's whereabouts. The absence of such information is significant because under the Act "the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3)." 18 U.S.C. § 3162(a)(2).
It was not until February 14, 1984 that the court for the first time entered an order requiring the United States to disclose its efforts to locate Cox. By then Felton's motion to sever Cox had been on file for eighty-five days. No statute report with respect to Cox was filed until February 22, 1984. The filing of that report did not result in any excludable time because the government's showing did not satisfy the statute. The United States made no effort to establish that Cox was attempting to avoid prosecution. Indeed Agent Carroll testified that Cox was not even aware of the indictment until his arrest. NOr did the United States attempt to establish that Cox's whereabouts were known, but that he resisted returning for trial. Cox resided in Florida throughout the relevant period, and when he learned of the charge he did not resist coming to the Western District of Pennsylvania for trial. Thus the government's position depends upon its showing that Cox's whereabouts could not have been determined or his presence obtained by due diligence.
At a hearing addressed to the due diligence issue, Special Agent Carroll testified for the government. His testimony established the following: In March of 1983 the United States believed that Cox resided in Orlando, Florida. Agent Carroll informed federal agents in Orlando about the indictment, but they were unable to find him. Carroll called the Orlando authorities once in March and once in April of 1983. In June of 1983 the Orlando agents obtained information that Cox had moved to Melbourne, Florida. They so informed Carroll, and told Carroll that they had notified the Melbourne police department. Carroll made telephone calls to the Orlando officers in July and either October or November of 1983. He never spoke to the police department in Melbourne, Florida, where Cox was thought to be living, until February 22, 1984, and then only as a result of the court's February 14, 1984 order. Cox was arrested on a warrant almost immediately thereafter.
The government produced no evidence that it caused anyone to check with the Orlando Post Office for a change of address listing, to inquire of the Florida motor vehicle registry for a change of address for any automobile or driver's license issued to Cox, to inquire of his landlord in Orlando whether he left a forwarding address, to inquire of the local telephone company as to a change in a telephone listing for Cox, or to examine any telephone directory for the Melbourne, Florida area. Aside from a few desulatory and unfruitful telephone calls to unidentified federal agents in Orlando, so far as this record discloses, the United States exercised no diligence in attempting to locate Cox, until the court's February 14, 1984 order. We hold that as a matter of law on this record the United States failed to make out a prima facie case that Cox's whereabouts could not have been determined or his presence obtained through the exercise of due diligence. See United States v. Garrett, 232 U.S. App. D.C. 58, 720 F.2d 705, 707-08 (D.C. Cir. 1983), cert. denied, 465 U.S. 1037, 79 L. Ed. 2d 708, 104 S. Ct. 1311 (1984); United States v. Lopez-Espindola, 632 F.2d 107, 109 (9th Cir. 1980).
Thus whether we decide the question of Cox's absence on the theory that the longstanding severance motion should have been granted and Cox's absence thus cannot under section 3161(h)(7) be attributed to his codefendants, or on the theory that Cox was not absent or unavailable within the meaning of section 3161(3)(B), the result within the meaning of section 3161(3)(B), the result is the same. Cox's absence cannot be used to toll the speedy trial time clock as to Felton and Bruce.
The Interest of Justice Exclusion
The Speedy Trial Act excludes from the seventy-day calculation "[a]ny period of delay resulting from a continuance granted by any judge on his own motion ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). Arguably the November 3, 1983 order, which postponed the decision on pending motions from July 18, 1983 to May 18, 1984, was a continuance granted by a judge on his own motion. The period of any continuance is not excludable unless the court sets out its reasons why granting it serves the ends of justice. In the absence of such a statement of reasons the time is not excludable. See United States v. Brooks, 697 F.2d 517, 520 (3d Cir. 1982), cert. denied, 460 U.S. 1071, 103 S. Ct. 1526, 75 L. Ed. 2d 949 (1983); United States v. Carrasquillo, 667 F.2d 382, 385-86 (3d Cir. 1981). Although the district court purported to comply with this requirement, we hold that the recitals in the November 3, 1983 order are patently insufficient to warrant an ends of justice continuance. Moreover, considering the factors listed in the statute as relevant, we hold that on this record an interest of justice exclusion would never be supportable.*fn5 For these reasons section 3161(h)(8) does not create any excludable time.
None of the statutory exclusions relied upon by the United States suffice to avoid the running of the seventy-day time period in section 3161(c)(1). There remains the question of appropriate relief. The Speedy Trial Act provides provides that if the defendant is not brought to trial within the time limit specified in section 3161(c)"the information or indictment shall be dismissed on motion of the defendant. 18 U.S.C. § 3161(a)(2). "In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." Id. The United States urges that if we find, as we have, a Speedy Trial Act violation, the sanction should not be a dismissal of the indictment. Its position in this respect is somewhat hard to follow. It submits that
if there was a speedy trial violation in this case, the proper remedy prior to trial would have been dismissal without prejudice. Since the government could then have reprosecuted the case, and obviously had ample evidence with which to do so, it would be senseless to remand the case for a dismissal without prejudice at this stage. The defendants have already had one fair trial. Giving then another trial--even further in time from the relevant events than the first trial--would serve no legitimate purpose and would waste judicial resources.
Brief for Appellee at 38-39. The obvious conclusion to be drawn from this reasoning is that no sanction is appropriate. But the reasoning is defective in several respects. First, it simply is not true that Felton and Bruce had a "fair" trial, at least in the sense that it was one which took into account their statutory right not to be tried over their objection when the time specified in section 3162(c)(1) had expired. It is true that had the Felton and Bruce speedy trial motions been granted pretrial when they should have been granted, sometime prior to October 25, 1983, a dismissal without prejudice might have been an appropriate remedy. It is not certain, however, that a second grand jury would have returned an indictment under those circumstances. But the motion was not granted pretrial. Instead the court ignored it until May 18, 1984. It then decided the motion erroneously. Neither the delay in ruling nor the erroneous ruling were reviewable here at the behest of Felton or Bruce, and they were required to go through a trial in violation of the Act.
The government urges that the delay was entirely the fault of the trial court, and thus should not result in the imposition of any sanction against the United States. That is true in the sense that it was the court which entered the November 3, 1983 order which is the chief source of the government's difficulties. The United States is hardly blameless, however, because it made no effort tot have that order vacated, and so far as we can tell on this record, made no diligent effort to find and arrest the co-defendant Cox.
Since defendants cannot obtain pendente lite appellate review of orders (or nonorders) denying Speedy Trial Act claims, the Act can become a dead letter if, post-trial, some effective remedy is not granted. Moreover, if we were to proceed on the assumption that at this stage a dismissal without prejudice to a reindictment is ordinarily appropriate, the incentive upon the government to police diligently its own compliance with the Speedy Trial Act and that the trial courts would be seriously eroded. The government would face the possibility of a new trial, but so would the defendants. it would be cold comfort to defendants such as Felton and Bruce to know that having been right all along about their statutory right to a speedy trial they would now be right back where they were on March 31, 1983 when the indictment was handed down. Moreover the public interest would be ill-served in the post-trial setting by a remedy which imposed the cost of a new trial either on private defendants or on the limited resources available under the Criminal Justice Act. The cost of two trials is always prejudicial. When the court and the government persist, as here, in the error of denying defendants their rights under the Speedy Trial Act all the way through a long delayed trial, we should proceed on the assumption that the remedy of a dismissal with prejudice is appropriate unless the government has made a strong showing as to why a different result would be both fair to the defendant and consistent with the due administration of the Act.
We conclude, therefore, that in the appeals of Felton and Bruce the judgments of sentence should be reversed and the case remanded for the entry of an order dismissing indictment No. 83-49 against them with prejudice.*fn6 Because of that conclusion it is unnecessary to address the additional grounds for appeal on which they rely.
Neither Serrao nor Cox preserved any Speedy Trial Act claim by moving for dismissal prior to trial. That omission "constitute[s] a waiver of the right to dismissal under ... section ." 18 U.S.C. § 3162(a)(2). Thus in their appeal we must address their sufficiency of the evidence and trial error contentions.
Sufficiency of the Evidence
Serrao and Cox contend that the trial court erred in denying their motions for judgments of acquittal. Since the evidence against them was not identical, the factual predicates for their respective contentions are different.
Serrao argues that the government proved two similarly motivated but distinct conspiracies; one between him and defendants Cox, Zorak and August Serrao to harvest marijuana in Nebraska, and a second headed by Felton, with some overlap in personnel. He contends that only the latter was charged in the indictment, and the government's proof only connected him to the former. The record evidence, however, was sufficient for the jury to find that the harvesting of marijuana in Nebraska for its transportation to Pennsylvania to be mixed with higher quality marijuana obtained by Felton from other sources was part of the single conspiracy charged in the indictment. The fact that Serrao did not transport marijuana from those other sources does not require the conclusion that he was not part of the large conspiracy to possess and distribute a product from both sources. The evidence was that the Nebraska product had only one channel of distribution.
Cox contends that the trial court should have directed a verdict in his favor because there was proof that he had withdrawn from or was engaged in a separate conspiracy. His separate conspiracy contention is no different from Serrao's and we reject it for essentially the same reasons. There is ample evidence that even if Cox at some point withdrew from the conspiracy he was a participant for a significant period.
Thus the jury verdict against both Serrao and Cox is supported by the evidence. The court did not err in denying motions for judgments of acquittal.
Serrao and Cox contend that the court erred in refusing to instruct the jury on the proposition that they had withdrawn from the conspiracy charged in the indictment or were engaged in a separate conspiracy. Since, as noted above, there is ample evidence of a single distribution conspiracy, and none of any different channel of distribution, the court did not err in refusing to charge on multiple conspiracies.
Serrao and Cox contend that the court erred in admitting evidence of tape recorded conversation between them and Felton. The conversations were admissible under Fed. R. Evid. 801(d)(2)(A) and were plainly relevant.
Serrao and Cox contend that the denial of their motions for a severence from Felton warrants a new trial. The motions were predicated upon the asserted antagonism between their defense and Felton's. We find no such antagonism as would support a determination that the trial court committed an abuse of discretion. See united States v. Dickens, 695 F.2d 765 (3d Cir. 1982) cert. denied, 460 U.S. 1092, 461 U.S. 909 (1983). The fact that the evidence against Felton may have been more damaging than against them does not mandate a severance. United States v. Simmons, 679 F.2d 1042 (3d Cir. 1982), cert. denied, 462 U.S. 1134, 103 S. Ct. 3117, 77 L. Ed. 2d 1370 (1983).
the judgments appealed from by Felton, No. 85-3303, and Bruce, No. 85-3304, will be reversed and the case remanded for the entry of an order dismissing the indictments against them pursuant to 18 U.S.C. § 3162. The judgments appealed from by Serrao, No. 85-3305, and Cox, No. 85-3306, will be affirmed.