Certiorari Denied March 21, 1983. See 103 S.Ct. 1434.
FLOYD R. GIBSON, Senior Circuit Judge.
Gregory Richard Fogarty was convicted at a bench trial on stipulated facts of one count of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a) and 963 (1976), and one count of conspiracy to possess marijuana with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. Fogarty appeals his conviction, claiming (1) that the district court
I. Factual Background
A federal grand jury indictment was handed down on August 19, 1981, charging Fogarty and six others with conspiracy to import and distribute marijuana. The indictment, which was made public on October 23, 1981,
Fogarty was arraigned on September 8, 1981 and was joined for trial with four other indicted coconspirators (codefendants). Beginning in mid-October, 1981, Fogarty's codefendants filed numerous pretrial
Among the pretrial motions were the continuance motions filed by three of Fogarty's codefendants on October 15, 1981. While Fogarty did not join in these motions, he did file eight pretrial motions of his own on November 16, 1981, including a motion to sever his trial from the other defendants and a motion to dismiss the indictment for failure to comply with the Speedy Trial Act.
On November 24, 1981, the district court issued an order granting the three codefendants' motions to continue and moving the trial date from December 7, 1981 to January 6, 1982. On December 10, 1981, the court denied Fogarty's motions to dismiss and to sever and, accordingly, determined that Fogarty would be tried along with his four coconspirator/codefendants on January 6, 1982. The remaining pretrial motions were disposed of on December 22, 1981.
Before January 6, 1982, Fogarty's four codefendants pled guilty under plea bargaining agreements. Fogarty was tried pursuant to stipulated facts on January 6, 1982. His right to raise the issues in the instant appeal were expressly preserved at trial.
II. Speedy Trial Act
Fogarty contends that his trial was not timely under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (1976) (Act), and, therefore, the district court should have dismissed the indictment against him.
Fogarty specifically urges that the 119-day delay between his arraignment on September 8, 1981 and the commencement of his trial on January 6, 1982 violated § 3161(c)(1) of the Act which provides:
Thus, assuming that Fogarty's arraignment on September 8, 1981 started the seventy-day count, a timely trial would have begun on November 16, 1981, barring periods of excludable delay.
However, § 3161(h) of the Act sets forth a list of various periods of delay which are to be excluded when computing the elapsed time within which the trial must commence. Two of these "excludable time" provisions apply in this case to bring Fogarty's trial on January 6, 1982 within the seventy-day limit.
First, § 3161(h)(1)(F) (as amended 1979), provides in relevant part:
In this case, the court was faced with numerous overlapping pretrial motions which were pending continuously from October 15, 1981, when the three codefendants' continuance motions were filed, until December 22, 1981, when the district court finally disposed of the remaining pretrial motions. Section 3161(h)(1)(F) clearly requires automatic exclusion of the sixty-one days during which such pretrial motions were continuously pending. United States v. Brim, 630 F.2d 1307, 1312-13 (8th Cir.1980) cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981).
In this case, the court clearly articulated on the record its reasons for continuing the defendants' trial date from December 7, 1981 to January 6, 1982. The court specifically noted the complexities of the instant case due to the existence of seven defendants, ten unindicted coconspirators, and forty-five alleged separate overt acts that took place over seven states and three foreign countries. The court also found that one of the codefendant's counsel had a significant trial conflict which necessitated a continuance to assure "continuity of counsel." We find these reasons valid and, therefore, agree with the district court's conclusion that "the ends of justice served by granting the motion for continuance ... outweighed the best interests of the public and the individual defendants in a speedy trial." Accordingly, the thirty-one-day delay resulting from the continuance is excludable time under § 3161(h)(8)(A).
Finally, these exclusions of sixty-one days and thirty days apply to Fogarty despite his failure to join in the pretrial continuance motions and his unsuccessful attempt to sever. The Act specifically addresses the application of exclusions to multiple defendant cases such as this one. Section 3161(h)(7) provides that a court shall exclude:
We agree with the D.C. Circuit's view that "[this provision] is crucial in a case involving multiple defendants because it provides that an exclusion applicable to one defendant applies to all codefendants." United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980); accord, United States v. Manbeck, 514 F.Supp. 152, 154-55 (D.D.C.1981). Applying this provision here, we note that: (1) Fogarty's severance motion was never granted and he was to be tried along with his coconspirator/codefendants; (2) the January 6, 1981 trial date was clearly timely as to Fogarty's codefendants who successfully sought continuances; (3) the district court properly determined that the delay resulting from the granting of the continuance motions was reasonable.
III. The Controlled Substances Act
Fogarty also contends that his conviction should be reversed because of the alleged unconstitutionality of the Federal Controlled Substances Act. 21 U.S.C. §§ 801-904 (1976) (CSA or Act). Specifically, Fogarty claims that the classification of marijuana as a Schedule I controlled substance,
In addressing this argument, we first note the highly deferential standard of review applicable here. Because there is no fundamental constitutional right to import, sell, or possess marijuana, the legislative classification complained of here must be upheld unless it bears no rational relationship to a legitimate government purpose. United States v. Kiffer, 477 F.2d 349, 352 (2nd Cir. 1972), cert. denied, 414 U.S. 831, 94 S.Ct. 165, 38 L.Ed.2d 65 (1973). Accordingly, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines .... " New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). Furthermore, judicial self-restraint is especially appropriate where as here the challenged classification entails legislative judgments on a whole host of controversial medical, scientific, and social issues. Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618 (1974); also see Kiffer, 477 F.2d at 352. As noted in Williamson v. Lee Optical, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1954): "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."
With this in mind, we conclude that Fogarty has not met his heavy burden of proving the irrationality of the Schedule I classification of marijuana.
Judgment affirmed. Costs assessed against Appellant.