Certiorari Denied April 5, 1982. See 102 S.Ct. 1776.
KENNEDY, Circuit Judge:
Appellant Harry H. Nance was convicted of two counts and appellants Leon Stelly and Taybren Lee were convicted of one count of theft from interstate shipments, in violation of 18 U.S.C. § 659 (1976). The three were tried together and contend here as the principal ground of appeal that dismissal of their indictments is required by the Government's failure to bring them to trial within the seventy day time limit imposed by the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1976 & Supp. III 1979).
The Speedy Trial Act requires the dismissal of the indictment against any defendant who is not brought to trial within seventy days. 18 U.S.C. §§ 3161(c)(1), 3162(a)(2) (Supp. III 1979). The Act contains narrow, automatic exclusions from the strict time limits for necessary pretrial proceedings, treatment of a defendant, trials on other charges, interlocutory appeals, and unavailability of defendants or essential witnesses, among other reasons. 18 U.S.C. § 3161(h)(1)-(7) (1976 & Supp. III 1979). In addition, in response to the concern that courts need discretion to respond to characteristics of individual cases similar to those granted automatic exclusion,
Realizing that broad discretion would undermine the mandatory time limits of the Act, Congress intended that this provision be "rarely used"
The Congress, at the instance of the House of Representatives, further strengthened the Act to prohibit granting an ends of justice continuance "because of general congestion of the court's calendar,"
As is generally the case, on appellate review of a trial court ruling that the ends of justice exception is grounds for a continuance, we do not disturb factual findings underlying the district court's determination unless they are clearly erroneous, but questions of the correct legal standard are for our de novo review. United States v. Fielding, 645 F.2d 719, 721-22 (9th Cir. 1981).
The case presents the issue whether delays occasioned by defense counsels' scheduling conflicts and previously calendared cases are excludable under the Speedy Trial Act as an "ends of justice" continuance, or rather must be deemed unexcused delays caused by "general court congestion." In part because the strict mandatory dismissal provisions of the Act have come into effect only recently,
On September 3, 1980, Nance, Stelly, and Lee were arraigned before a magistrate. We refer to the consolidated cases as the Nance trial. An indictment issued on September 12, 1980. Indictment or arraignment, whichever is later, commences the Speedy Trial Act's seventy day mandatory trial period. Here, the September 12 indictment started the time.
On September 22, the defendants appeared before the Honorable Terry J. Hatter, Jr. and entered a plea of not guilty. Judge Hatter set the Nance trial for November 4, 1980, which would have been on the 53rd day of the seventy day period mandated by the Act.
On November 4, 1980, the court and the Government were prepared for trial, but the attorney for the defendant Lee was unavailable because of a death in the family. The trial was continued until January 6, 1981, which was the first date counsel could be present. In continuing the trial to January 6, the district court filed findings of fact and an order, excluding the entire period of the continuance under section 3161(h)(8)(A), on the specific ground that the delay was necessary to ensure continuity of counsel for the defense and the Government, 18 U.S.C. § 3161(h)(8)(B)(iv) (Supp. III 1979). The appellants do not contest this finding or the exclusion of the entire first continuance period from the seventy day calculation.
The dispute here centers on additional delays in bringing the matter to trial. The parties were not able to proceed on January 6. Lee's attorney was unavailable because of the trial of a custody defendant in another case. Stelly's attorney requested a one day continuance until January 7. When these difficulties surfaced, the district court made two rulings, one resetting the Nance trial for January 13, and the other setting a criminal trial in an unrelated matter, called Lawton, to commence on January 6 in place of Nance.
The court met with counsel in the Nance case on January 13, the date trial was to commence. Now it was apparent the Lawton case was a problem, and there were additional obstacles to rescheduling Nance. As mentioned, Lawton had been estimated to end by January 13, but now the earliest date for Nance was January 20. The trial judge was scheduled to attend a meeting of judges of the circuit on January 22 and 23. In addition, as of January 13, three custody cases were set for trial in the judge's court for the week of January 27 and were expected to last into the first week of February. Because of these scheduling obligations, Judge Hatter continued the Nance trial until February 10, 1981, and assigned the case to visiting Judge Russell E. Smith as the first trial on his calendar. The defendants moved on January 13 to dismiss for failure to comply with the Speedy Trial Act. The court rejected the motion and made findings and an order excluding the entire continuance, from January 6 to the scheduled date of February 10, to meet the ends of justice as provided in section 3161(h)(8).
The Nance trial actually began earlier than expected, on February 4. The appellants again moved to dismiss for failure to comply with the Speedy Trial Act, and the court denied the motion. The appellants contend here, as they did below, that none of the twenty-nine days between January 6 and February 4 can be excluded and that they were brought to trial on the 82nd day after the indictment, in violation of the Act.
Analyzing the period from January 6, when counsel moved for the continuance, to January 20, the first day after Lawton that Nance could have been tried, we rule that the days January 6 through January 12 are excluded from the time limits as being required for the continuance, and the days January 13 through January 19 are excluded from the limits as continuance time because they relate to illness and unforeseeable delays in the conclusion of Lawton.
While the record is not entirely clear on the point,
We conclude, moreover, that the Lawton trial was properly scheduled as an intervening trial. At the time of scheduling, it appeared that Lawton would end in sufficient time for Nance to begin within the period provided by the Act and at a time when all counsel could be present. The conclusion of the Lawton trial was delayed, however, by four days beyond the original estimate, two days resulting from a late start due to medical reasons
The scheduling of Lawton was entirely proper. The court desired to take full advantage of judicial resources and to avoid leaving the courtroom empty while Nance defense counsel were occupied elsewhere. This is consistent with the speedy trial interests of the public and the defendants. The court was attempting to manage its own docket to achieve maximum efficiency.
The trial judge is responsible, however, for all assigned criminal cases and for protecting the speedy trial rights of all defendants. Thus, even if it is reasonable to schedule an intervening trial, the trial court must keep track of the Act's time limits on the suspended case. If the trial court has awaiting trial only cases which, if scheduled as superseding cases, will cause a suspended case to be tried later than the time provided in the Speedy Trial Act, it must provide for scheduling of the postponed trial within the time mandated by the Act, by transferring the case to another judge, by requesting assignment of a visiting judge, or simply by not scheduling the intervening trial.
An intervening trial thus is properly scheduled if it is a trial set to utilize court resources that would otherwise be unused by reason of the continuance, and if the time estimated for such trial will not extend the commencement of the suspended trial beyond the seventy day limit, calculated by excluding the time necessary for continuance but not excluding the time reasonably estimated for the intervening trial. If the scheduling is reasonable, we must permit the court to exclude any additional delay caused by the unexpected extension of the superseding trial, as this is not within the control or planning of the trial judge, and is itself an inherent risk attributable to the original problem presented to the court when it suspended the first trial to insure continuity of counsel. This specific delay is not an extension for general congestion of the courts, and it is properly excluded as part of the continuance for the ends of justice under 18 U.S.C. § 3161(h)(8)(B)(iv) (Supp. III 1979).
As to the balance of the time from January 20 to February 4, we do not consider whether the two day period during which the judge was required to attend the Judicial Conference, January 22-23, was excluded properly in order to ensure the court's presence.
We have no hesitation, however, in saying that exclusion of the remainder of the period by the trial judge was improper and based on impermissible considerations. The trial judge attempted to exclude the period from January 27 to trial on the ground that three custody cases were set for trial before the court during that time. We agree with defendants that this excuse constitutes "general congestion" of the court's calendar which, under section 3161(h)(8)(C), is an impermissible factor upon which to base an ends of justice continuance. These cases were not scheduled to take advantage of resources left idle by defense counsel's requested continuance. The matters were scheduled in advance and the trial judge, anticipating the scheduling conflict, should have sought earlier compliance with the Central District's Speedy Trial Plan
Hodges v. United States, 408 F.2d 543, 551-52 (8th Cir. 1969). The Speedy Trial Plan adopted by the judges of the United States District Court for the Central District of California enforces this responsibility. It admonishes that individual calendars should be managed so that every criminal case set for trial will be reached during the week of original setting,
In summary, then, of the period from January 6 to February 4, 1981,
II. SIXTH AMENDMENT CLAIM
Defendant Stelly claims that the delay, in addition to violating the seventy day limit of the Speedy Trial Act, also violated his constitutional right to a speedy trial as guaranteed by the sixth amendment, and as implemented by Rule 48(b) of the Federal Rules of Criminal Procedure.
In Barker v. Wingo, 407 U.S. 514, 531-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), the Supreme Court enunciated the factors to be considered in determining whether the sixth amendment right to a speedy trial has been denied: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice resulting from the delay. See United States v. Saunders, 641 F.2d 659, 665 (9th Cir. 1980). Here, the delay between indictment and trial was less than five months. This delay cannot be considered "presumptively prejudicial," so as to even trigger the balancing and require an examination of the other three factors. Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192; United States v. Rich,
III. SUFFICIENCY OF THE EVIDENCE
In addition to his speedy trial contentions, Stelly claims that the evidence against him was not sufficient to convict him of the August 31, 1980, theft from interstate shipment in violation of 18 U.S.C. § 659 (1976). Viewing the evidence in the light most favorable to the Government, we find that there was ample evidence to permit a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Spears, 631 F.2d 114 (9th Cir. 1980).
Accordingly, the convictions are AFFIRMED.
This two day delay accounts for the late start of the Lawton trial and thus excuses two of the four days that Lawton consumed past the original continuance to January 13.
Frase, The Speedy Trial Act of 1974, 42 U.Chi.L.Rev. 667, 702 (1976). The author prefers permitting an ends of justice continuance over reassignment to another judge:
Id.; see United States District Court, Northern District of Illinois, Third Plan Adopted under the Provisions of the Speedy Trial Act of 1974 as Amended 32 (1980). The author notes that the prohibition against granting continuances based on general congestion should not bar exclusions based on such temporary scheduling conflicts. Id. at 702 n.171.
United States District Court, Central District of California, General Order No. 209, Plan for Achieving Prompt Disposition of Criminal Cases, § 4(g) (1980) [hereinafter "Speedy Trial Plan"].