TJOFLAT, Circuit Judge:
Appellants Struyf and Williams were convicted in the district court of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 (1976); Williams was also convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1976) and 18 U.S.C. § 2 (1976). We affirm the convictions.
Both appellants urge that the district court erroneously refused to dismiss the indictment because the government's enforcement technique violated their due process rights. Appellants' arrests arose out of the same Drug Enforcement Agency (DEA) operation upheld in United States v. Savage, 701 F.2d 863 (11th Cir. 1983). Because the facts of Struyf's case do not differ substantially from those in Savage, we affirm Struyf's conviction based on the reasoning expressed therein.
The government's conduct toward Williams is distinguishable from its conduct in Savage because the government's informant, Howard Tharpe, who was used to solicit buyers of marijuana, was Williams' former brother-in-law. Williams testified at trial that at least at one time he and Tharpe had been close friends. On cross-examination, Williams stated that he had been divorced from Tharpe's sister for nine years. He admitted that he did not see Tharpe for three to four years after the divorce, during which time Tharpe was living in Tennessee while Williams was living in Miami, Florida. Williams began seeing Tharpe occasionally when Tharpe returned to Miami, which occurred three to four years prior to trial.
Williams testified that about three months prior to his arrest, which occurred on July 30, 1980, Tharpe started coming by his house and talking about drug deals. Williams testified that Tharpe came to his house about six to eight times in May, at least ten times in June, and about eight times the last two weeks in July. According to Williams, on these occasions and during phone conversations, Tharpe told Williams that unidentified persons were chasing him and threatening to kill his children; that his wife had to have a lung removed; that he had stomach cancer; and that he needed money desperately.
Williams also called three witnesses who testified collectively that they had seen Williams upset either after or while he had talked with Tharpe either in person or on the phone.
Regardless whether Williams' testimony and that of his witnesses should be credited, and regardless whether Tharpe's statements to Williams, if made, were true, we do not believe the above facts make out a due process violation. See United States v. Tobias, 662 F.2d 381 (5th Cir. Unit B 1981).
Rather, Williams made out an arguable case for entrapment, which the jury, who had the opportunity to judge the demeanor of the witnesses, rejected.
Appellant Struyf asserts that he was denied his right to a speedy trial under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (1976 & Supp. V 1981) (the Act) and under the sixth amendment to the Constitution. Under the Act
Id. § 3161(c)(1) (Supp. V 1981).
Section 3161(h) of the Act sets forth those periods of delay excluded in computing the time within which the trial must be commenced. The following exclusions are relevant to Struyf's claim: "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing or other prompt disposition of such motion," id. § 3161(h)(1)(F) (Supp. V 1981); "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court," id. § 3161(h)(1)(J) (Supp. V 1981); "[a] reasonable period of delay when the defendant is joined for trial with a co-defendant as to
Struyf's argument that the statutory time period was exceeded rests in large part on his inclusion of the time periods during which various pre-trial motions of his codefendants were pending.
Excluding those periods during which pre-trial motions of Struyf's codefendants were pending, we find only thirty-one days of includable time between the date the indictment was filed and the date of trial, computed as follows:
Days Defendant Date Event Elapsed ___________________________________________________________ All defendants 08-27-80 Indictment (Record, vol. 1, at 1) 7 Struyf 09-04-80 Motion to withdraw (Id. at 5) 09-22-80 Order (Id. at 97) Gidus 09-11-80 9 motions (not part of record) 09-22-80 Order (Id. at 96) Struyf 09-18-80 22 motions (Id. at 12-95) 10-02-80 Order (Id. at 111) Williams 09-25-80 3 motions (Id. at 98-109) 10-02-80 Order (Id. at 111) 12 Struyf 10-15-80 Motion to suppress (Id. at 115) 02-03-81 Order (Record, vol. 2, at 164) Struyf 10-21-80 Motion to travel (Record, vol. 1, at 120) 12-04-80 Order (Record, vol. 2, at 143) Struyf 10-27-80 Motion to dismiss (Id. at 132) 02-03-81 Order (Id. at 164) Williams 10-24-80 Motion to adopt Struyf's motion to suppress (Id. at 124) 11-06-80 Order (Record, vol. 4, at 11, 69) 11-06-80 FIRST HEARING ON MOTION TO SUPPRESS (Record, vol. 4, at 1-126) Williams 11-13-80 Motion to transfer (Record, vol. 2, at 141) 12-15-80 Order (Id. at 145) Struyf 12-18-80 Additional Memorandum in Support of Motion to Suppress (Id. at 146) Gidus 12-23-80 Order to Respond (Id. at 153) 01-28-81 SECOND HEARING ON MOTION TO SUPPRESS 02-03-81 Order on motions (Id. at 164) 9 Struyf 02-13-81 Motion for discharge (Id. at 180) Williams 02-18-81 Petition for review (Id. at 184) 02-27-81 Order (Id. at 203) 3 Struyf 03-03-81 Trial ___________________________________________________________ Total elapsed time 31
Because the amount of includable time was well within the seventy-day limit, we reject Struyf's claim that he was denied his right to a speedy trial under the Act.
Concerning a defendant's constitutional right to a speedy trial, the court applies "a balancing test in which the conduct of the prosecution and that of the defendant are weighed." United States v. Varella, 692 F.2d 1352, 1359 (11th Cir.1982).
Id. (quoting United States v. Edwards, 577 F.2d 883, 888 (5th Cir.1978)).
We hold that the seven month delay in this case was not "presumptively prejudicial"