UNITED STATES v. BUFALINO

FEINBERG, Chief Judge:

Russell Bufalino appeals from a judgment of conviction entered in November 1981 in the United States District Court for the Southern District of New York, Kevin T. Duffy, J., after a jury trial. Appellant's principal argument on appeal is that he was denied his statutory right to a speedy trial. We find that this and appellant's other claims are without merit, and we affirm.

Briefly, the events leading to this appeal are as follows. In April 1976, appellant attempted to recover a $25,000 debt from Jack Napoli by threatening to kill him. Unfortunately for appellant, prior to their meeting, Napoli had taken the precaution of concealing a tape recorder on his body, and used it to record Bufalino's conversation. On the basis of Napoli's testimony, Bufalino was indicted for extortion. Anticipating that the government would call Napoli as a witness at trial, appellant arranged with a business acquaintance, James Fratianno, for Napoli's elimination. This arrangement was unsuccessful, possibly because Napoli had joined the Justice Department's Witness Protection Program and had been relocated and given a new identity. In any case, Napoli lived to testify at the extortion trial and Bufalino was convicted of extortion in August 1977 and was sentenced to four years in prison, see United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). While in jail, appellant again sought to murder Napoli, this time with the aid of another prisoner, Steven Fox, who was about to be paroled. This attempt also failed, but in December 1980, Bufalino was indicted for conspiring to obstruct justice. On April 2, 1981, this indictment was superseded by a second indictment charging Bufalino1 with conspiring to violate the civil rights of a United States citizen, in violation of 18 U.S.C. § 241 (Count One), and endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503 (Count Two).

At trial, James Fratianno, who was by this time also a member of the Witness Protection Program, and Steven Fox, who was in jail on other charges but had been offered the benefits of that program after his release, testified for the prosecution. Bufalino's defense was a general denial. Testifying in his own behalf, appellant denied that he intended to have Napoli killed for his role in the extortion prosecution. He also called several witnesses to contradict elements in the prosecution's case. In rebuttal, the Government played the tape recording of the threat on Napoli's life.2 The jury convicted Bufalino on both counts, and he was sentenced to 10 years imprisonment and fined $10,000 on Count One and to a concurrent term of five years imprisonment and fined $5,000 on Count Two. Appellant claims that his conviction must be reversed because he was denied his statutory right to a speedy trial, inadmissible testimony was introduced at trial, and certain jury instructions were in error.

I. Speedy Trial

Bufalino's speedy trial claim is based on events that occurred between his arraignment on January 9, 19813 and the trial, which began on October 19, 1981. Under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., a defendant is entitled to have the charges against him dismissed4 if he is not brought to trial within 70 days of arraignment, unless the excess days fall within a list of exclusions set out in § 3161(h).5 Since Russell Bufalino was tried 283 days after he was arraigned, the issue before us is whether 213 of those days are excludable.

The government has presented us with several ways to reckon the excludable periods that arose in this prosecution. Its most forcefully urged alternative, which it presented at oral argument, involves excluding one day for Bufalino's co-defendant's bail hearing on January 13 under § 3161(h)(1)(J) [hereinafter "(J)"], two days for the weekend preceding the trial under Fed.R.Crim.P. 45(a); and 210 days for motion practice under § 3161(h)(1)(F) ["(F)"]. To arrive at this figure for motion practice, the government excludes the entire period from January 20, when defense counsel claims to have discussed a schedule for filing pretrial motions with Judge Duffy's law clerk, to July 28, when the court decided all the pending motions with the exception of the government's motion to sequester the jury. In addition, the government excludes the time from September 11, when it moved for a ruling on the admissibility of evidence relating to Bufalino's connections with La Cosa Nostra, to September 30, when that motion was decided.

Appellant objects to this calculation on several grounds. The most cogent of these is that (J) limits the amount of time excludable for the consideration of pretrial motions. Under that subsection, which is reproduced in note 5 supra, a maximum of 30 days is excludable when a "proceeding concerning the defendant is actually under advisement by the court." In this case, a first round of motions was fully submitted by March 24, and a second round (which was precipitated by the filing of a superseding indictment) was fully submitted by May 26. As a result, even if a full period of advisement is allowed for each set of motions, only 60 of the 126 days between March 25 and July 28 are excludable by reason of subsection (J). The Government reads the statute differently. It contends that (J) and (F) should not be read together, that (F) — which does not impose a numerical limitation on the time it excludes — is the only subsection that applies to pretrial motions, and, apparently, that (J) refers to other (unspecified) proceedings that could concern a defendant.

The application of (J) to the period of time during which a trial judge considers pretrial motions is an issue of first impression in this circuit, see United States v. New Buffalo Amusement Corp., 600 F.2d 368, 373 n.5 (2d Cir. 1979). While we think that a cursory reading of the two subsections lends some support to the government's position, a careful look at the legislative history of the Speedy Trial Act and its 1979 amendments makes that theory untenable.

We start with the 1974 Act, which provided that:

Under the 1974 Act, subsection (E), which is the predecessor of current subsection (F), was limited in scope. It was apparently aimed at excluding only the days on which pretrial motions were argued in court, and not the days from the filing of the motion to the hearing thereon, see Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 692 (1976). Subsection (G), the predecessor of (J), was intended to deal with delay that arose after pretrial motions were submitted, as the following passage from the House Report that accompanied the bill makes clear:

H.R.Rep.No.93-1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7401, 7425-26.

By 1979, the courts had obtained some experience with the Act, and Congress chose to amend certain portions to reflect that experience. Subsection (G) apparently had not caused the courts any problems, and it was not changed in 1979, except for a change in lettering to (J). Subsection (E), however, had led to controversy, and Congress decided to reword it to make its meaning more precise. The accompanying reports are revealing as to legislative intent:

H.R.Rep.No.96-390, 96th Cong., 1st Sess (1979), reprinted in 1979 U.S.Code Cong. & Admin.News 805, 814. And more significantly,

S.Rep.No.96-212, 96th Cong., 1st Sess. 33-34 (1979), reprinted in Federal Judicial Center, Legislative History of Title I of the Speedy Trial Act 115 (1980) (emphasis added).

These excerpts make it clear to us that the term "proceeding" in subsection (J) was very much intended to encompass pretrial motions. Furthermore, this view is reinforced by contemporaneous and informed administrative interpretation. The Administrative Office of the United States Courts has issued guidelines to aid the courts in applying the Speedy Trial Act, which were prepared, in part, by the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. While these guidelines are not binding, the interpretation they espouse is persuasive. These guidelines state flatly that:

Guidelines to the Administration of the Speedy Trial Act of 1979, as Amended 42-43 (1981). This interpretation is also reflected in the Administrative Office Speedy Trial Advisory Issuance # 32 (August 1981) at Chart B, page 3 ("Defendant Motion Under Advisement. The exclusion covers the time required for the court to consider a motion .... [T]he excludable period under this subparagraph is limited to thirty days ...."). Similarly, the 1979 Plan for the Prompt Disposition of Criminal Appeals of the United States District Court for the Southern District of New York noted that "in some instances docket clerks are not aware of when a judge takes a motion under advisement. This date is important as it starts excludable time running for up to 30 days under § 3161(h)(1)(J)." Plan at III-9. See also Misner, The 1979 Amendments to the Speedy Trial Act: Death of the Planning Process, 32 Hast.L.J. 635, 654-55 (1981).

Moreover, the scanty caselaw on the issue supports these administrative interpretations. It is true that the government cites two circuit court decisions to us for the proposition that the 30-day time limit of (J) is not applicable. However, it does not appear that either case is directly on point. For example, in United States v. Brim, 630 F.2d 1307 (8th Cir. 1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981), it seems that the pretrial period extended for an inordinate length of time because the parties filed many consecutive motions and that at no time was a single motion under advisement for longer than 30 days. ("From [October 23, 1979], overlapping filings by the defendants and the government kept motions pending continuously until December 19, 1979, when the district court disposed of the motions remaining before it...." Id. at 1312.)6 On the other hand, the Seventh Circuit considered the precise issue in United States v. Raineri, 670 F.2d 702 (7th Cir. 1982). There, motions were fully submitted by August 1, but the magistrate did not decide them until October 28, 88 days later. Apparently agreeing with the interpretation advanced by appellant here, that court held that "[i]t is reasonable to attribute and exclude thirty of the days between August 1 and October 28 to the motions under advisement." Id. at 708 (emphasis added); cf. United States v. Molt, 631 F.2d 258, 262 (3d Cir. 1980) (per curiam).

Based upon all of the above, therefore, we reject the government's position that the 30-day limitation of subsection (J) is inapplicable.7 We are aware that this interpretation places a burden on district judges to decide motions rapidly. We believe, however, that it carries out the meaning of the Act. Furthermore, should the 30-day limit place an unduly harsh burden on a trial judge, it is always open to him to find that the interest of justice is best served by granting a continuance under § 3161(h)(8) for the excess period, see H.R.Rep.No.93-1508, supra.

The government argues also that defendants' failure to respond to the government's sequestration motion renders the entire period from the time that the motion was filed to the date of trial excludable under subsection (F). The sequestration motion had been filed on March 27, but neither Bufalino nor his co-defendant, Rizzitello, responded to it. On September 30, during a pretrial conference, the judge asked counsel if they objected to sequestration and, after expressing his own reservations about the practice, stated that he would not do it unless the defense counsel joined in the government's motion.8 Although at that time neither counsel objected to sequestration, Rizzitello's attorney refused to join in the motion without further discussion with Bufalino's counsel. The matter was again brought up by the court on October 19, the date that the trial began. At that time, the following interchange took place:

In view of these facts, we believe that the government's argument to us on this point has merit. Because Judge Duffy was opposed to sequestration, his decision on the government's motion hinged on the defendants' positions towards it. If either one had shared his views of the dangers in sequestration, it is not unlikely that the government's motion would have been denied. Consequently, Judge Duffy could not have taken this motion under advisement in any meaningful way until the defendants made their positions known. Moreover, administration of the Speedy Trial Act has posed difficulties, as the Southern District's summary of its experience indicates, see Southern District Plan, supra, III. Over 750 criminal cases were filed in the Southern District in the year ending June 30, 1981, see Administrative Office of the United States Courts, Management Statistics for 1981 at 26 (1981), far too many for it to be reasonable to require the clerks or the judges to guess each party's position on his adversary's motions in order to calculate times under the Speedy Trial Act. Cf. Misner, supra at 643 n.65. It seems to us that Bufalino, when faced with a government motion, had a duty to do more than stand by without taking a position and then reap the benefit of inaction by having the indictment dismissed on speedy trial grounds.

In finding that (F) applies to the entire period that followed the filing of the government's sequestration motion, we do not mean to say that appellant's failure to respond works as a waiver of his rights. The responsibility for pursuing a prosecution lies entirely with the government, Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101 (1972) ("A defendant has no duty to bring himself to trial ...."); New Buffalo Amusement Corp., 600 F.2d at 375-76; United States v. Didier, 542 F.2d 1182, 1189 & n.9 (2d Cir. 1976). Cf. United States v. Salzmann, 548 F.2d 395, 401 (2d Cir. 1976). We must, however, insure the ability of the courts to administer the Act. If defendants do not make their positions known in response to the motions that are made, neither the court nor its clerk's office will ever know when the "under advisement" period of subsection (J) begins to run. The Act was not, after all, meant to provide defendants with tactics for ensnaring the courts into situations where charges will have to be dismissed on technicalities. Regilio, 669 F.2d at 1173; cf. Furlow v. United States, 644 F.2d 764, 768 (9th Cir.) (per curiam), cert. denied, 454 U.S. 871, 102 S.Ct. 340, 70 L.Ed.2d 175 (1981). In addition, we caution the Government that we will not in the future condone its willingness to stand silent in similar situations. As Barker v. Wingo, 407 U.S. at 527, 92 S.Ct. at 2190, makes clear, the government is charged not only with preserving society's interest in bringing criminals to justice; it is also charged with protecting society's interest in swift prosecutions. In the future, a defendant's failure to respond to a motion within a reasonable time should be brought to the court's attention.

Because we find that the entire period from March 27 to October 19 is excludable under subsection (F), we do not reach the government's alternative theories for calculating the exclusion.9 Taking the approach most favorable to appellant on the question of when motion practice began under subsection (F),10 Bufalino was tried 59 days after his arraignment, well within the 70-day period allowable under the Speedy Trial Act.

II. Rulings on Evidence

Appellant's claims with regard to the evidence introduced at trial are without merit. First, he argues that the trial court should not have allowed the government to cross-examine him about his friendships with members of La Cosa Nostra or about his presence in Apalachin on November 14, 1957.11 While we agree that this line of interrogation poses the danger of allowing the jury to find Bufalino guilty by virtue of his association with known gangsters and his presence at a famous gangland convention, we feel that the cross-examination was proper.

The theory that the government presented to the jury was that Bufalino could prevail upon James Fratianno to have Napoli killed because both were members of La Cosa Nostra, an organization whose members performed murders for one another as a matter of professional courtesy. When, on direct examination, Bufalino claimed that his acquaintance with Fratianno was based on "chance meetings," it became proper for the government to impeach him by introducing evidence of appellant's longstanding relationship with La Cosa Nostra, see United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980) ("[W]hen defendants testify, they must testify truthfully or suffer the consequences."); United States v. Miller, 478 F.2d 1315, 1318 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973). Furthermore, since without this evidence it was unlikely that the jury would believe that Fratianno would agree to commit the crime, we think the trial judge properly exercised his discretion to allow the cross-examination of defendant to proceed, see United States v. Sanzo, 673 F.2d 64, 70 (2d Cir. 1982).

Bufalino's other evidentiary objection is that the tape recording of the extortion threat should not have been admitted because it was highly prejudicial. The general rule is that "other crimes" evidence "is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Fed.R.Evid. 404(b). Such evidence of "other crimes" is, however, permissible for purposes of impeachment, United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir. 1978), and to show motive or intent, Fed.R.Evid. 404(b), United States v. Bradwell, 388 F.2d 619, 622 (2d Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 152, 21 L.Ed.2d 135 (1968). In this case, the tape recorded threat served the double purpose of negating Bufalino's testimony that he never told anyone to kill Napoli and establishing his motive for seeking Napoli's death. Moreover, Judge Duffy gave the jury two curative instructions. Right after the tape was played, the jury was told to disregard the obscenities it contained. More importantly, in his charge, the judge said:

We think that this charge was sufficient to alert the jury to the danger of improperly using the tape as evidence that Bufalino endeavored to obstruct justice. Admission of the tape therefore was not reversible error.

III. The Judge's Charge

Finally, Bufalino objects to the court's failure to give the accomplice instruction that Bufalino requested. Fratianno and Fox, the two principal witnesses for the prosecution, both received — or stood to receive — substantial benefits from the government. Fratianno received a favorable plea bargain on another charge, immunity from prosecution on the criminal activities that he testified about and approximately $200,000 as part of the Justice Department's Witness Protection Program. Fox expected to receive early parole and an opportunity to participate in the Protection Program. Although this information was brought out at the trial, the judge's charge on how their testimony should be evaluated was somewhat equivocal. Specifically, he instructed the jury as follows:

This instruction was arguably inadequate because it asked the jury to devalue Fox's and Fratianno's testimony only if the jury found that their receipt of benefits was contingent on the conviction of Bufalino. We have stated in the past that "trial judges should call the jury's attention to their duty to scrutinize the testimony of accomplices and informers." United States v. Swiderski, 539 F.2d 854, 860 (2d Cir. 1976). This admonition applies to all factors affecting credibility that have been brought out at trial, not merely an interest in the outcome of the case. We do not, however, find that this possible inadequacy in the charge requires a reversal of Bufalino's conviction. The jury received ample evidence of the interest of these witnesses, and could be counted on to use its common sense in evaluating the truth of their testimony. Besides, the defense summation — which referred to Fratianno as a "chronic pathological liar" to whom the government paid $200,000 "that might buy a lie" — more than compensated for the judge's omission. See United States v. Velez, 652 F.2d 258, 261 n.5 (2d Cir. 1981).

For the foregoing reasons, the judgment of conviction is affirmed.