On Appeal from the District Court of the Virgin Islands. (D.C. No. 93-cr-00067).
Before: Sloviter, Chief Judge, Scirica and Cowen, Circuit Judges.
The government appeals an order of the district court dismissing an indictment without prejudice in a drug case pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1988). We have jurisdiction over the government's appeal pursuant to 18 U.S.C. § 3731. We exercise plenary review over the district court's construction and interpretation of the Speedy Trial Act and its provisions regarding excludable time. See United States v. Lattany, 982 F.2d 866, 870 (3d Cir. 1992), cert. denied, 126 L. Ed. 2d 64, 114 S. Ct. 97 (1993). The findings of fact to which the district court applies the Speedy Trial Act are reviewed under a clearly erroneous standard. Id.
Background and Procedural History
On March 25, 1993, three alleged drug couriers, Jewel Rose Hyde, Patricia Gray and Karen Boothe-Waller, were stopped by Customs Inspectors at the Cyril E. King airport in St. Thomas, U.S. Virgin Islands. The government alleges that each of the women had a quantity of cocaine strapped to her body and after her arrest, stated that appellee Roy Hamilton recruited them to carry the cocaine to Florida for him.
Hamilton was arrested in Miami, and was returned to the Virgin Islands to face charges. On April 1, 1993, a four-count indictment was returned in the District Court of the Virgin Islands charging Hamilton with conspiracy to import cocaine into the United States in violation of 21 U.S.C. § 963 and possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Hamilton was arraigned before the district court on May 12, 1993. By order of the magistrate Judge entered May 28, 1993, Hamilton was released on bail into the joint custody of his parents and the Office of Probation and Control.
The three alleged couriers, Hyde, Gray and Boothe-Waller, also faced criminal charges in a separate criminal proceeding. The record on appeal, however, does not reflect the date on which they were indicted. At some point after they were indicted, the couriers filed suppression motions which delayed the Disposition of their case.
The government's case against Hamilton was originally set for trial on July 12, 1993. On that day, the government filed a motion for a continuance of the trial and for an order excluding all delay incident to such continuance for speedy trial computation purposes. In support of its motion, the government stated that "three material witnesses [the three couriers] are unable to testify until the court disposes of the pending motions." See Government's Motion for Continuance and Request for Entry of Order of Excludable Delay of July 12, 1993. The government also stated that it "anticipates the motions will be resolved within one week and the witnesses will be available to testify at that time." Id.
By order entered July 14, 1993, the district court granted the government's motion for a continuance and an order of excludable delay. Pursuant to that order, the trial was continued until August 23, 1993. The district court found that the ends of Justice served by the granting of the motion outweighed the best interests of the public and the defendant in a speedy trial because "a July 12, 1993, trial would unreasonably deny the government the testimony of three material witnesses." App. at 43.
On August 9, 1993, the government filed another motion seeking an order continuing the trial date from August 23, 1993, and excluding all delay incident to such continuance for speedy trial computation purposes. That motion was never ruled upon by the district court. The trial, however, did not go forward on August 23, 1993, although Hamilton allegedly appeared at the scheduled time.
On October 21, 1993, the district court granted the couriers' motion to suppress. The government promptly appealed that decision to this court, where that case was pending during the remainder of the relevant proceedings in this case.*fn1
On January 4, 1994, the district court set the government's case against Hamilton for trial during the January 31, 1994 trial period. Once again, the government filed a motion seeking an order continuing the trial indefinitely. In addition, it requested an order excluding all delay incident to such continuance from the district court's Speedy Trial Act computations. In support of this motion, the government asserted that the couriers were "essential" witnesses within the meaning of 18 U.S.C. § 3161(h)(3)(A). The government also contended that the couriers were "unavailable" to testify because the case against them was still pending, and that exclusion of the resulting delay was therefore proper under 18 U.S.C. § 3161(h)(3)(A). Finally, the government ...