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United States v. Rivera Construction Company. Rivera Construction Co.

argued: September 16, 1988.

UNITED STATES OF AMERICA
v.
RIVERA CONSTRUCTION COMPANY. RIVERA CONSTRUCTION CO., INC., APPELLANT IN 88-5165, UNITED STATES OF AMERICA V. JOSEPH RIVERA, JOSEPH L. RIVERA, APPELLANT IN 88-5166



On Appeal from the United States District Court for the District of New Jersey, D.C. Criminal Nos. 87-00151-01 and 87-00151-02

Becker, Hutchinson and Scirica, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

Appellants Joseph Rivera and Rivera Construction Company ("RCC") appeal from their convictions of various offenses involving a conspiracy to defraud the United States Department of Defense ("DOD"). Their principal contention is that their rights under the Speedy Trial Act, 18 U.S.C. § § 3161-3174 (1982), were violated by the district court's decision to order a continuance following disqualification of RCC's original trial counsel. We conclude that all of appellants' claims lack merit and we will affirm the convictions.

I.

Under the supervision of the Small Business Administration ("SBA"), small and disadvantaged companies are provided with "set-aside" contracts. Pursuant to 15 U.S.C. § 637(a), SBA nominates minority or "disadvantaged"*fn1 companies to undertake government contracts. Thereafter, the nominated company and the particular government agency negotiate a price for the work to be done.

RCC was founded in 1978 by Rivera, who became its president and principal shareholder. RCC was nominated by SBA for set-aside contracts and thereafter began to negotiate construction contracts with the Directorate of Engineering and Housing ("DEH") at Fort Dix, New Jersey. Before negotiating a contract, DEH would prepare its own cost estimate for the project for use as a guide in the negotiation. The DEH estimates were to be confidential.

In 1984, Rivera approached DEH employees to discover the DEH estimates for particular projects before the contract negotiations. By knowing DEH's estimates, RCC could bid the estimate price even though its own costs for the job might be substantially lower than the DEH figures.

Over the next year and a half, RCC approached a number of DEH employees with offers of cash and other gratuities in exchange for providing RCC with the confidential estimates. Chief among these were Noel Gormay, a DEH draftsman, and Kenneth Don, Chief of DEH's Contract Administration Branch. Rivera ostensibly hired Gormay to provide drafting support to RCC but, from late 1984 until early 1986, Gormay provided Rivera and RCC with at least eight confidential DEH estimates in exchange for total payments of approximately $3,000. RCC paid Don $3,000 and did renovations to Don's home free of charge. In exchange, Don increased by almost $30,000 (or approximately 50%) the DEH estimate for an upcoming contract in order to match RCC's price.

In April 1987, Rivera and RCC, along with RCC employees Luis and Anthony Rivera, were indicted on one count of conspiracy to defraud the United States and eleven counts of bribery. Rivera and RCC were also charged with attempted bribery and obstruction of justice. During the pre-indictment stage, all four defendants were represented by one attorney, Guillermo Bosch. After indictment, Bosch entered his appearance on behalf of RCC.

All four defendants were arraigned on May 11, 1987, starting the clock running for purposes of the Speedy Trial Act, 18 U.S.C. § 3161(c). Trial was originally scheduled for July 8, 1987. However, on June 10, the government moved to disqualify Bosch from representing any defendant in the case. At a hearing on July 20, the district court granted the motion and continued the trial, finding that a continuance was necessary to allow new counsel for RCC to prepare its case.*fn2 The court entered a written order on July 29, 1987, postponing the trial until October 13, 1987.

On July 16, 1987, one of the defendants filed a motion to permit his counsel to interview certain witnesses. On July 30, the district court deferred ruling on the motion, and requested that the parties attempt to settle the matter informally before returning for a hearing. By letter dated August 5, the government informed the district court that the matter appeared to have been resolved and, absent new developments, there would be no need for a hearing. Nonetheless, the motion was not withdrawn and no order disposing of the motion was entered.

On October 8, 1987, all the defendants filed a joint motion to dismiss the indictment for violation of the Speedy Trial Act. At a hearing on October 13, 1987, the district court denied the motion, reiterating that the continuance had been necessary for RCC's new counsel to prepare its case and, therefore, that the elapsed time was excludible from the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(8)(B)(iv).

On November 11, 1987, after a jury trial, RCC and Rivera were convicted of all 14 counts of the indictment. A judgment of acquittal was entered for Luis and Anthony Rivera.

On December 30, 1987--after RCC's conviction, but almost two months before it was sentenced--the district court entered an order appointing a receiver for the corporation. At a hearing held January 5, 1988, the district court maintained the appointment, in order to prevent the illegal diversion of corporate funds.

On February 25, 1988, both Rivera and RCC were sentenced. Rivera was sentenced to ten years imprisonment on each bribery count and two years on each of the other counts, all concurrent terms, and was fined $1,500,000. RCC was fined $1,100,000. The ...


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