ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 92-00183).
Before: Becker and Alito, Circuit Judges, and Brody, District Judge * * The Honorable Anita B. Brody, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
David Fields has appealed his conviction and sentence for violations of the federal drug laws. He argues that his indictment should have been dismissed under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and that the district court erred in calculating his sentence. We affirm the defendant's conviction, but we vacate his sentence and remand for resentencing pursuant to United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992).
On September 17, 1992, the defendant was indicted in the Western District of Pennsylvania for (count one) possession, with the intent to distribute, of less than 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1); (count two) possession, with intent to distribute, of less than 100 grams of heroin within 1000 feet of a public school or playground, in violation of 21 U.S.C. § 860(a); and (count three) use of a person under 18 years of age to deliver heroin, in violation of 21 U.S.C. § 861(a)(1). On September 25, the defendant was taken before a magistrate Judge in Pittsburgh for an initial appearance. On October 6, the defendant's attorney moved for an extension of the time for filing pretrial motions under the local rules, and on October 7 the district court granted an extension until October 24, which was a Saturday (thus making those motions due on Monday, October 26). The order granting the extension stated:
IT IS FURTHER ORDERED that the extended time period within which defendant may file pretrial motions be excluded under Title 18 U.S.C. § 3161 (h)(8)(A), since the court finds that the additional period is necessary to enable counsel for the defendant adequately to investigate and prepare pretrial motions.*fn1
A change of plea hearing was subsequently requested, and because the Judge to whom the case had initially been assigned was involved in a trial in Erie, another Judge agreed to preside at that hearing on December 10. Due to a severe snowstorm, however, the case agent was unable to attend the hearing in Pittsburgh on that date, and the case was then listed for Disposition, by trial or the entry of a guilty plea, on December 16.
On December 16, the defendant and his attorney requested a 30-day continuance so that plea negotiations could continue. After engaging in an extensive colloquy with counsel and after questioning the defendant personally, the district court Judge granted a continuance pursuant to 18 U.S.C. § 3161(h)(8)(A)*fn2 and made the following findings:
I think that the ends of Justice will be served by taking this action, and those ends outweigh the best interests of the public and the defendant in a speedy trial; and the reason is that this gives the government an opportunity to get more information concerning the drug trade. It gives the defendant an opportunity to furnish more information. This is not only to the benefit of the defendant, but might benefit the government, and, therefore, we will grant the motion.
Eventually, the plea negotiations broke down. Although the defendant expressed a willingness to plead guilty to counts one and two, he refused to plead guilty to count three. The defendant's attorney then moved to dismiss the indictment under the Speedy Trial Act, but that motion was denied, and trial on all counts began on January 20, 1993.
At trial, the prosecution introduced evidence that the defendant had arranged to meet an informant for the purpose of selling him heroin and that this meeting had occurred within a short distance of a playground where children were playing. The prosecution's evidence also showed that at this meeting the informant had given the defendant $200 and that the defendant had instructed a young man or boy to hand over a package of heroin to the informant. The tape recording of the conversation between the defendant and the informant revealed that the defendant had introduced the young man or boy as his nephew Jason, and the prosecution introduced evidence that the defendant's fiancee had a nephew named Jason who was 16 years old at the time of the offense.
The defendant testified and admitted that he had participated in the transaction and that it had occurred within 1000 feet of a playground. He insisted, however, that his accomplice was not his nephew Jason but a different person, who was 18 years old at the time of the offense. The jury found the defendant guilty on counts one and two but not guilty on count three. After denying reconsideration of the defendant's motion to dismiss the indictment under the Speedy Trial Act, the district court sentenced the defendant to 41 months' imprisonment. This appeal followed.
The defendant first argues that he was not brought to trial within 70 days from his initial appearance, as required by the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The defendant contends that the district court's contrary holding was incorrect primarily because (a) the district court erroneously excluded the period from October 6, 1992, when the defendant's attorney moved for an extension of time to file pretrial motions, until October 26, 1992, when those motions were due, and (b) the district court incorrectly excluded the period of delay resulting from the continuance that was sought by the defense for the purpose of pursuing plea negotiations. As previously noted, the district court excluded both of these periods under 18 U.S.C. § 3161(h)(8)(A), which requires the exclusion of
any period of delay resulting from a continuance granted by any Judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government 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. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of Justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
The defendant's arguments are disturbing because he would have us order the dismissal of his indictment based on continuances that his own attorney sought. As we warned in United States v. Lattany, 982 F.2d 866, 883 (3d Cir. 1992), cert. denied, 126 L. Ed. 2d 64, 114 S. Ct. 97 (1993), "defendants cannot be wholly free to abuse the system by requesting (h)(8) continuances and then argue that their convictions should be vacated because the continuances they acquiesced in were granted." See also, e.g., United States v. Culp, 7 F.3d 613, 617 (7th Cir. 1993), cert. denied, 128 L. Ed. 2d 668, 114 S. Ct. 2108 (1994); United States v. Kucik, 909 F.2d 206, 210-211 (7th Cir. 1990), cert. denied, 498 U.S. 1070, 112 L. Ed. 2d 853, 111 S. Ct. 791 (1991). ...