Rehearing and Rehearing En Banc Denied May 16, 1983.
The four appellants, Herman Mers, Lester Mers, Paul Ferrante and Randy Myers, appeal convictions for conspiracy to possess with intent to distribute marijuana, 21 U.S.C. §§ 841(a), 846, and aiding and abetting the distribution of marijuana, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Appellants raise divergent issues before this court but only two require serious treatment: whether a single defense attorney's representation of all four appellants at trial violated the right to effective assistance of counsel of Ferrante, Myers and Herman Mers, and whether Herman and Lester Mers were brought to trial within the time required by the Speedy Trial Act.
Their arrest on February 6, 1981 resulted from Herman Mers and his son Lester Mers having undertaken to sell a large quantity of marijuana to undercover DEA agents. Myers and Ferrante acted as armed guards during the planned exchange of the first 2,000 pounds. The Mers pled entrapment, contending that their involvement in the transaction resulted from pressure on Herman Mers by his neighbor, Michael Fiori, who was acting as a government informant. Myers and Ferrante claimed that they knew nothing of the marijuana; they were told that the marijuana-laden truck contained antiques which they were helping to protect merely as a favor to Lester Mers.
In January, 1981, Herman Mers and two undercover DEA agents flew to Atlanta to arrange the purchase. Over the succeeding week the plans were finalized. Between February 2nd and 6th, there were numerous meetings and conversations between the Mers and the DEA agents. Surreptitious tape recording of these conversations were introduced into evidence at trial. The conspirators agreed that Lester Mers would deliver the marijuana to one agent, while his father and another agent would remain at a restaurant. After the transfer of the drugs was completed, the key to the safe deposit box containing the money would be delivered to the Mers.
On February 6, Lester Mers accompanied a DEA agent to obtain the 2,000 pounds of marijuana from Lester's home. After examining the marijuana, which was stored in a truck, the agent told a second agent to drive the truck to New York. Paul Ferrante and Randy Myers were in a car a block away from the Mers' home while the marijuana was being inspected. One of the DEA agents testified that Ferrante and Myers began to follow the marijuana-laden truck. As they drove by and stopped, however, Lester Mers said "don't worry about the marijuana. Follow me. These guys are good for the money." Ferrante and Myers then followed Lester Mers and the agent to the restaurant where Herman Mers was waiting. As the party left the restaurant for the place where the money was actually to be exchanged, all four appellants were arrested. Myers was armed with a Luger pistol and a .38 caliber handgun, Ferrante was carrying a .357 magnum and agents found a .30 caliber rifle in the back seat of the car.
Joint Representation of Multiple Defendants
Bruce Pashley, an Atlanta criminal defense attorney, represented all four defendants from their arrest until the end of their trial. Appellants contend that Pashley's multiple representation created an actual conflict of interest which was not sufficiently exposed due to the district court's failure to conduct an adequate hearing under the criteria of Fed.R.Crim.P. 44(c) and United States v. Garcia, 517 F.2d 272 (5th Cir.1975). We hold that although the district court erred in failing to conduct an adequate hearing on the conflict of interest issue, that error was harmless because no actual conflict of interest existed in this case.
We agree with appellants that the district court's failure to make full inquiry concerning the conflict issue violated rule 44(c) and Garcia. Rule 44(c) provides that whenever two or more criminal defendants who have been jointly charged are represented by the same counsel, the court "shall personally advise each defendant of his
The court detailed the procedures to be followed in making this determination, stating that district courts should adhere to a procedure similar to that promulgated in Fed.R.Crim.P. 11. 517 F.2d at 278. The court should address each defendant individually and advise him of the potential dangers of joint representation. The defendants must have the opportunity to question the court about the nature and consequences of their legal representation. "Most importantly, the district court should obtain a response from each defendant indicating that he has been advised of his right to effective representation, that he understands the details of the attorney's possible conflict of interest and the potential perils of such a conflict and that he voluntarily waives his Sixth Amendment protections." Id. at 278.
The district court was aware of attorney Pashley's potential conflict of interest. During the second day of trial, when the government's counsel learned that Pashley intended to raise the defense of entrapment on behalf of Herman and Lester Mers, he requested that the court conduct a Garcia hearing. The court asked Pashley whether he had discussed the matter with his clients. Pashley answered that he had not discussed it in the context of a conflict problem, since he saw no conflict. The district judge then described to the defendants the nature of the entrapment defense, after which she recessed the proceedings so that Ferrante and Myers, who were not asserting the defense of entrapment, could confer with Pashley.
Following the recess, Pashley advised the court that he had discussed the matter with his clients and invited the court to proceed with its inquiry. The judge then personally addressed Myers and Ferrante and determined that each felt that he had received an adequate explanation of his position relative to the entrapment defense advanced by the Mers. During this colloquy, Pashley noted that he was asserting an entrapment defense only with regard to the Mers and that his defense with regard to Ferrante and Myers was that they were simply doing a friend a favor, that they had conspired with no one and that they were guilty of nothing. The court then asked Myers:
An almost identical line of inquiry was made of Ferrante. In a post trial order disposing of defendants' request for judgment NOV or a new trial, the court observed that "[d]efendants are correct that the inquiry undertaken by the Court at the request of the Government and despite defense counsel's position to the contrary, with regard to trial counsel's potential conflict of interest, did not meet the requirements of United States v. Garcia ...." In a later evidentiary hearing the judge admitted that "the admonition the Court gave to the defendants was not specific enough because it did not detail to the defendants exactly the nature of the conflict."
Although joint representation of multiple criminal defendants creates a danger of counsel conflict of interest, the "mere fact of joint representation will certainly not show an actual conflict." United States v. Medel, 592 F.2d 1305, 1310 (5th Cir.1979). Accord Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177-78, 55 L.Ed.2d 426 (1978); United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981); Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.1975). Further, failure to comply with Garcia will not mandate reversal absent an actual conflict of interest. In United States v. Benavidez, 664 F.2d 1255 (5th Cir.), cert. denied, ___ U.S. ___, 102 S.Ct. 2963, 73 L.Ed.2d 1352 (1982), a defendant argued that non-compliance with rule 44(c) required reversal notwithstanding his failure to demonstrate actual conflict. The present fifth circuit rejected this argument, noting that the purpose behind rule 44(c) was to establish a "procedure for avoiding the occurrence of events which might otherwise give rise to a plausible post-conviction claim" concerning conflict of interest. Id. at 1258 (quoting Advisory Committee on Criminal Rules, Note to Rule 44(c), in Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure (February 1978) reprinted in 77 F.R.D. 507, 594 (1978) (Advisory Committee Note)). The court held that "neither the inquiry nor the advice is itself the goal of the rule; the goal is preventing conflicts. If there is no actual conflict, then the rule's purpose will not be served by reversal of a conviction." 664 F.2d at 1258.
In United States v. Alvarez, 696 F.2d 1307 (11th Cir.1983), we found the above reasoning from Benavidez persuasive. It would be the height of formalism to reverse a conviction because of literal noncompliance with a procedural rule when the evil that the rule has been designed to prevent has never occurred. The Advisory Committee Note to rule 44(c) supports this construction: "The failure in a particular case to conduct a rule 44(c) inquiry would not, standing alone, necessitate the reversal of a conviction of a jointly represented defendant." Advisory Committee Note, 77 F.R.D. 507, 603 (1978). Thus, appellants must demonstrate that Pashley's joint representation constituted an actual conflict of interest.
Three Supreme Court cases, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), define the standard for analyzing claims that counsel "suffered under a disability (such as conflict of interest) that subtly pervaded his entire conduct of the defense." Stanley v. Zant. 697 F.2d 955, 962 (11th Cir.1983) (parentheses in original).
The Supreme Court reexamined the multiple representation issue in Holloway v. Arkansas. In Holloway, the district court appointed one public defender to represent three defendants charged with rape and robbery. The court denied defense counsel's repeated requests for appointment of separate counsel. As in Glasser, the Supreme Court inferred the conflict from counsel's actions and inactions at trial. The attorney for the defendants informed the court, in the presence of the jury, that despite his recommendation to the contrary all defendants wished to testify. Counsel argued that a conflict of interest was inevitable: he could not effectively examine any given defendant who was on the witness stand, because he had received information from each individually. The trial court rejected counsel's argument that he was bound to protect the interests of the non-testifying defendants while a codefendant was testifying. The attorney refused to question any of the defendants and they testified in a narrative form. Before each defendant took the stand, counsel stated that "I cannot ask you any questions that might tend to incriminate any one of the three of you ...." 435 U.S. at 480, 98 S.Ct. at 1176. The Supreme Court reversed the convictions, concluding that the trial judge erred in failing "either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel." Id. at 484, 98 S.Ct. at 1178. The Court strongly implied that reversal would be automatic "whenever a trial court improperly requires joint representation over timely objection." Id. Because the trial record may mask so much, and because a "conflict of interest hobbles the defense in a manner distinct from other forms of ineffectiveness," Tague, Multiple Representation and Conflicts of Interest in Criminal Cases, 67 Geo.L.J. 1075, 1077 (1979), an appellant asserting conflict of interest need not make a further showing of prejudice. See Holloway, 435 U.S. at 489-91, 98 S.Ct. at 1181-82; Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir.1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982).
We will not find an actual conflict unless appellants can point to "specific instances in the record to suggest an actual conflict or impairment of their interests." United States v. Fox, 613 F.2d at 102. Appellants must make a factual showing of inconsistent interests and must demonstrate that the attorney "made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical." Comment, 68 J.Crim.L. & Criminology, supra at 232 (parentheses in original). There is no violation where the conflict is "irrelevant or merely hypothetical"; there must be an "actual, significant conflict." Foxworth, 516 F.2d at 1077 n. 7. An actual conflict exists when the respective defenses of multiple defendants are inconsistent, i.e., if "introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing." Baty, 661 F.2d at 395. The Benavidez court noted that the former fifth circuit cases reversing convictions on the ground of actual conflict of interest could be classified as falling into at least one of three rubrics:
664 F.2d at 1259 (footnotes omitted).
Appellants Ferrante, Myers and Lester Mers argue that their various defenses were incompatible with the entrapment defense asserted by Herman Mers and that Pashley's representation of all appellants gave rise to an actual conflict of interest. Herman Mers admitted at trial that he was guilty of the acts charged, but argued that he had been entrapped by the government's informant. Lester Mers asserted a variant of the entrapment defense. Because he had no direct contact with the government's informant, he did not have the classical entrapment defense available to him. Nevertheless, he endeavored to claim entrapment under the theory that, since his father Herman was entrapped and as a son he had no choice but to help his father, he also was entrapped. Ferrante and Myers argued, by contrast, that they played no part whatever in the conspiracy, that they thought they were guarding a truck full of valuable antiques.
Ferrante and Myers contend on appeal that the presence of Herman Mers' entrapment defense and Lester Mers' hybrid agency theory/entrapment defense damaged the effectiveness of their own defenses. From an evidentiary and a psychological perspective, they argue, it was impossible for a single counsel credibly to argue all four cases, especially when all four defendants took the stand to tell their divergent stories. Ferrante and Myers further argue that counsel's divided loyalties resulted in a significantly greater emphasis on the defenses of the Mers. Finally, they urge that the desperate nature of the entrapment defense assured that all four defendants
Judge Evans found that, despite the disparity in defenses, counsel was not laboring under an actual conflict of interest:
We agree that Pashley's representation of all four defendants did not create an actual conflict of interest. The defenses in this case were not antagonistic, much less mutually exclusive. Ferrante and Myers did not base their defense on the proposition that no conspiracy existed; rather they argued that they had no knowledge of any conspiracy. We have found "where codefendants' statements are largely corroborative, repetitive or serve the same purpose, there is no conflict." United States v. Medel, 592 F.2d at 1310. Accord United States v. Fannon, 491 F.2d 129, 132 (5th Cir.), cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974). Neither Ferrante nor Myers have shown that they stood "to gain significantly" by abandoning the common defense. Foxworth, 516 F.2d at 1076. On the contrary, Lester Mers bolstered Ferrante's and Myers' defense by corroborating their testimony that the latter thought they were guarding a truck full of antiques.
No appellant has pointed to any different defense theory or new evidence or testimony that independent counsel could have elicited.
Ferrante's and Myers' final conflict of interest argument is that Pashley's common defense denied them the opportunity to shift blame for the offense onto the Mers. They contend that independent counsel would have focused the jury's attention on the Mers by hammering home the point that the evidence against the Mers was far greater than against them. While a strategy of shifting blame to one's codefendants is a legitimate and often effective defense strategy, we conclude that in this case the independence of the defenses asserted precluded the possibility of shifting blame from one codefendant to another.
In Foxworth the former fifth circuit held that a defendant's sixth amendment rights have been violated if the reviewing court perceives from the record a plausible alternative defense theory more favorable to the defendant than that actually pursued by counsel, but which would have prejudiced at least one codefendant by shifting to him more responsibility for the acts at issue. 516 F.2d at 1079. Although the record in Foxworth indicated that conflicting testimony at trial presented opportunities of shifting blame, the former fifth circuit pointed out that a conflict existed in selecting the initial strategy, which precluded counsel from adopting a tactic of shifting blame to one of the codefendants. Id. at 1079-80. The court held that "if the record shows that a plausible defense (one that might have influenced twelve reasonable jurors) was foreclosed because it might have prejudiced the other defendants represented by the same appointed counsel, the conviction must be overturned.... An alleged conflict of interest that obstructs the use of a particular strategy or defense is not significant unless the defense is plausible." Id. (parentheses in original). The court stressed that "the conflict occurred not in presenting the defense chosen by appointed counsel, but in selecting defenses and strategies in the first place." Id. at 1079. The record in that case "amply established such a plausible defense." Id.
The government contends that the fifth circuit in Benavidez effectively overruled the Foxworth holding that counsel's failure
Far from overruling Foxworth, Benavidez does no more than reaffirm the requirement, strongly articulated in Foxworth itself, that an "alleged conflict of interest that obstructs the use of a particular strategy or defense is not significant unless the defense is plausible." Foxworth, 516 F.2d at 1080 (emphasis added). The synthesis of Foxworth and Benavidez is a specific application of the general principle that to warrant reversal, a conflict of interest must be actual rather than hypothetical. Failing to adopt a strategy of shifting blame may well give rise to an actual conflict of interest, but to do so the strategy must have been an option realistically available to trial counsel.
Like the defendants in Benavidez, these appellants are unable to show that a strategy of shifting the blame was really a plausible alternative for Pashley. In pronounced contrast to the situation in Foxworth, the various defenses presented by appellants at trial were the only defenses realistically available to them. Given the highly incriminating conversations tape recorded by the DEA, the Mers had little choice but to admit their indisputable actions and to focus their attack on the conduct of government agents. Likewise, Ferrante's and Myers' only defense was to admit their incontrovertable actions, but to claim that they had no knowledge that the substance in the truck was marijuana. The differences in the nature of the defenses and the compatibility of the various positions asserted precluded the possibility of counsel's adopting a strategy of shifting blame among codefendants. To decide that this case presents an actual conflict would be to impose "a per se rule requiring separate representation: every time a lawyer represents more than one defendant, he is precluded from `shifting the blame' to the client against whom the government presents the stronger case." Benavidez, 664 F.2d at 1260.
Speedy Trial Act
Herman and Lester Mers contend that their trial did not commence within the period required by the Speedy Trial Act. 18 U.S.C. §§ 3161-68. The Act mandates that defendants be brought to trial within seventy days "from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). The accounting of time under the Act is subject to excludable delay attributable to the defendant as well as other particularized delays set out in section 3161(h)(1). In the present case, we assume that the seventy day period began to run on March 2, 1981, the date on which appellants were arraigned. See note 6, infra. Trial commenced on August 5, 156 days after arraignment. The government argues the exclusion of a total of ninety-seven days covering three discrete periods: forty-one days (March 13 to April 22) for motions
Appellants dispute two categories of exclusion. First, they argue that section 3161(c)(2), which provides that trial must commence "not less than thirty days from the date on which the defendant first appears through counsel," prohibits exclusion of any time occurring within that first thirty days following a defendant's first appearance. Appellants contend that otherwise excludable delay resulting from pretrial motions filed by defendants and pending within that thirty day period should not be deemed excludable. Of the total of forty-one days excluded time attributed to defense motions, eight days (March 13 to March 20) fell within the initial thirty day period covered by section 3161(c)(2). Appellants do not dispute the exclusion of other time within this forty-one day period.
Appellants' position finds support in neither the language, legislative history nor policy of the provision. Section 3161(c)(2), added to the Act by Congress in 1979, by its terms speaks to the time during which trial may not commence absent waiver by a defendant of his speedy trial right. See Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended 12-13 (1979) (hereinafter cited as Judicial Guidelines). The section is not addressed to the computation of the overall time period during which trial must commence. Even if this language is arguably ambiguous, the legislative history is not. The legislative history leaves no doubt that the purpose behind subsection (c)(2) was to prevent a trial from being held so quickly that a defendant would not have time to prepare. Section 3161(c)(2) was added to the statute at the behest of the Justice
1979 Senate Report at 32, excerpted in Legislative History at 73-74 (emphasis added).
Appellants can cite only two authorities for their contention that no excludable delay is permitted during the first thirty day interval. The Judicial Guidelines at 12-14 provide that:
The fourth circuit, in United States v. Wooten, embraced the Guideline's passage quoted above and held that section 3161(c)(2) "does not provide for an extension of the 30-day minimum time period between the defendant's appearance with counsel and trial either expressly or by incorporation by reference of Section 3161(h)." 688 F.2d at 949-50. The Wooten court found that the exclusions of section 3161(h) do not "apply" to the time limits of section 3161(c)(2): "There is no language in section 3161(h) which suggests even remotely that its exclusion provisions have any reference to or connection with the time limits fixed by section 3161(c)(2)." 688 F.2d at 950.
While a reading of the Judicial Guidelines and of Wooten supporting appellant's position appears superficially attractive, we believe that such an interpretation would misperceive the import of those sources. The thirty days of section 3161(c)(2) were intended to be measured as calendar days. The concern articulated by the Judicial Guidelines was that a defendant should not be able to lengthen his thirty day minimum period by the filing of motions that would constitute excludable time. The message of the quoted passage is that a clever defendant who wished to postpone indefinitely his trial should not be allowed to argue that certain pretrial motions filed within the first thirty day period tolled the running of the thirty day minimum period. Similarly, the Wooten court stated that "what the statute does not give the criminal defendant is the right, by filing dilatory motions, to extend on his own the date of his trial." 688 F.2d at 951. Thus, "what section 3161(c)(2) does is simply to guarantee to the criminal defendant the right to a delay of at least 30 days between arraignment and trial in any circumstances." Id. We conclude that section 3161(c)(2) merely defines the time during which trial may not commence and that that time is measured as thirty calendar days from the event triggering the speedy trial clock. We join other circuits that exclude time during the initial thirty day period. See United States v. Stuart, 689 F.2d 759, 762 & n. 2 (8th Cir. 1982);
Appellants' second series of Speedy Trial Act arguments challenges the exclusion of certain time attributed to the magistrate's and the district court's disposition of pretrial motions. Appellants filed motions to suppress evidence on March 13, 1981, and the magistrate promptly set a hearing date. The date was postponed until April 22, because appellants obtained three continuances. See note 7 supra. The hearing did not occur on April 22, however, because the government informed the magistrate that it would not seek to introduce certain evidence. Because this decision by the government obviated the need for a suppression hearing, the magistrate orally informed the parties that he deemed all of the motions except one moot. On May 18, the magistrate issued his report and recommendation, in which he recommended that the district court dismiss as moot all motions save one. The magistrate deferred one of Herman Mers' motions to the district court judge for her consideration and gave the parties ten days to object before submitting his report to the court, as required by the Federal Magistrate's Act. 28 U.S.C. § 636(h)(1). No party objected and the report was submitted on June 2. The court adopted the magistrate's report on August 3. The forty-one days for motions practice (March 13 to April 22) were properly excluded under section 3161(h)(1)(F); this is not challenged. Although appellants raise creative arguments to the contrary, we hold that the twenty-six days during which the magistrate had the motions under advisement (April 22 to May 18) and thirty of the days during which the district court had the motions under advisement (June 2 to July 1) were excludable under section 3161(h)(1)(J).
Section 3161(h)(1)(J) provides for the exclusion of "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."
The magistrate spent a total of sixty-seven days dealing with the motions. Forty-one of those days (March 13 through April 22) were excludable as motions practice under section 3161(h)(1)(F). Appellants correctly argue that the excludable time under section 3161(h)(1)(F) ended on April 22, when the magistrate learned that a suppression hearing would not be necessary and when he orally advised the parties of the recommendations that he intended to make in his report and recommendation. The Judicial Guidelines at 33 recommend that the "exclusion for delay resulting from pretrial motions be treated as ending at such time as the court has received everything it expects from the parties before reaching a decision — that is, such date as all anticipated briefs have been filed and any necessary hearing has been completed. Thereafter, the matter should be treated as `under advisement' and subject to the rules of subparagraph (J)." Section 3161(h)(1)(F) and section 3161(h)(1)(J) dovetail; the former ends when the latter begins. Thus the Judicial Guidelines at 42 recommend that the "under advisement period" of section 3161(h)(1)(J) begins on "the day following the date on which the court has received everything it expects from the parties, examining physicians, etc., before reaching a decision. It is normally the date following the expiration of an exclusion under subparagraph (A), (B), (F), or (G)." Once all parties' materials are in and any needed hearings are held (or it is determined that none are needed), the matter should be treated as "under advisement" and subject to section 3161(h)(1)(J) rather than section 3161(h)(1)(F).
The under advisement period was triggered on April 22, when the magistrate first learned from the parties that no suppression hearing would be required. As of that date, the magistrate had before him all of the materials he expected to receive from the parties. With April 22 as the starting date, the issue becomes whether the magistrate issued his report and recommendation within the thirty days permitted and whether the district court then is entitled to an additional thirty days during which to have the motions under advisement.
The magistrate submitted his report and recommendation on May 18. Appellants contend that he thus expended twenty-six days (from April 22 to May 18) of the thirty day total under advisement exclusion, thus leaving the district court a total of four days in which to dispose of the motions. We reject their argument that the thirty day under advisement exclusion is a total for both the magistrate and the district court. The Judicial Guidelines at 43 flatly state that "when a pretrial matter is considered by both a magistrate and a judge pursuant to [the Magistrates Act], the Committee believes that the [Speedy Trial Act] permits two thirty day periods for consideration of the same matter" (emphasis added). We agree with the Guidelines.
The third circuit adopted a similar approach in United States v. Molt, 631 F.2d 258 (3d Cir.1980). In Molt, the defendant was tried before several judges on different indictments. Two judges made decisions on pretrial motions, decisions which the government and the defense agreed were binding as to all of the indictments. One judge handled a suppression motion, while the second judge handled Molt's challenge to the constitutionality of the statute under which he was charged. On appeal, Molt argued that the Speedy Trial Act allowed only a total of thirty days "under advisement"
Id. at 261-62 (emphasis in original).
As a practical matter, allowing only a thirty day period within which both magistrate and judge can consider a motion might well unfairly limit full consideration of important and complex pretrial motions. The magistrate may need to review transcripts of evidentiary hearings and must review counsel's briefs before determining the outcome of a motion. He must then articulate, in writing, findings of fact and conclusions of law. After the magistrate files his report, the parties have ten days within which to file objections. 28 U.S.C. § 636(h)(1).
Appellants' second ground for arguing that the district court was not entitled to a thirty day under advisement period is that, because they had not objected to the magistrate's report and recommendation, there was nothing for the district court to take under advisement. They base this argument in part on a local rule of court which provides that absent objection a magistrate's report and recommendation becomes the order of the court. The magistrate's report, however, cannot automatically become the order of the court merely because none of the parties object.
Regardless of the likelihood that a court will accept or reject a particular magistrate's report, the court's power to do so cannot be questioned. In the present case, the district judge had to rule on the motions. For example, the court might well have remanded to the magistrate with instructions to determine whether a fourth amendment violation (alleged by appellants) may have indirectly resulted in tainted evidence that ought not be admitted into evidence. Further, one pretrial motion was not moot; the magistrate deferred this motion to the district judge for consideration. The court could have required a hearing on that motion.
The district judge, in her order denying appellants' motion to dismiss for failure to comply with the Speedy Trial Act, stated unmistakably that "during this period of time [between submission of the magistrate's report and recommendation and the court's adoption of the report] the Magistrate's Report was under advisement. Thirty days of this period is excluded in computing the time within which the trial must commence. See 18 U.S.C. § 3161(h)(1)(J)." The legitimacy of the thirty day exclusion is in no way negated by the fact that the court did eventually adopt the recommendations of the magistrate. The district judge had several motions to review and resolve, and we decline to inquire whether that process should have taken her the full thirty days. See Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 694 (1976) ("the judge himself will determine whether the period of delay meets this definition and there is nothing to prevent judges from routinely taking all motions `under advisement' for the maximum of 30 days").
Appellants stress the statutory language of section 3161(h)(1)(J) that the court must have the pretrial motions "actually under advisement" before the time is deemed excludable. From this language they argue that unless the district judge can demonstrate that she was actually reviewing a particular matter and can show the precise amount of time she spent on this review, then the time is not excludable; to be excludable under section 3161(h)(1)(J), the time must be reasonably attributable to the decisionmaking process. Such an approach would require appellate courts to evaluate the relative merit of pretrial motions to determine how much "advisement" was appropriate by the district court. Appellants apparently would require the district court to keep a daily log to keep account of the amount of time spent on each pretrial motion. We cannot read this much into the words "actually under advisement." While the section does require that the under advisement period be reasonable, we leave determination of the reasonableness issue to the sound discretion of the trial judge.
The section cannot mean that the district judge must demonstrate that she was actually considering the matter on every excludable day. Rather, the provision envisions excludable time as being that time, prior to disposition, during which the court has the matter under advisement or thirty days,
According to our calculations, appellants were brought to trial within the seventy days net time allowed by the Speedy Trial Act. Trial began 156 days after arraignment. Ninety-seven days were properly excluded: forty-one days for pretrial motions practice (including eight days falling within the initial thirty day period following arraignment), twenty-six days during which the magistrate had the motions under advisement and thirty days during which the district court had the motions under advisement.
Other Arguments on Appeal
Appellants raise several issues which need not detain us long. First, we find that the district court did not violate either Federal Rule of Evidence 801(d)(2)(E) or United States v. James, 590 F.2d 575
Secondly, the trial court did not abuse its discretion in denying Lester Mers a jury instruction on the entrapment defense. A defendant cannot avail himself of an entrapment defense unless the initiator of his criminal activity is acting as an agent of the government. United States v. Noll, 600 F.2d 1123, 1129 (5th Cir.1979); United States v. Garcia, 546 F.2d 613, 615 (5th Cir.), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977). Lester Mers never dealt with or even met Fiori, the government's informant. Any inducements to Lester Mers to traffic in drugs came from Herman Mers, a private citizen. While Lester Mers' vicarious entrapment theory is ingenious, it is not the law.
Thirdly, Lester Mers argues that when the government arranges to provide the drugs to a subject and also arranges for another government agent to purchase the drugs, then the government has achieved a "full circle" transaction that violates a defendant's due process rights. The facts of this case, however, do not suggest a full-circle transaction. The defendants stipulated at trial that no DEA agent supplied marijuana to Fiori or to the Mers. There also was no evidence that Fiori supplied the marijuana.
Fourthly, Herman and Lester Mers argue that their due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) were violated by the government's refusal to disclose Fiori's arrest record and withholding of material relating to the existence of any remunerative agreement between Fiori and the government. Defendants offered no theory of how such material could have been relevant, admissible evidence. Because Fiori was not called as a witness, appellants' arguments based on Federal Rules of Evidence 608, 609 and 404(b) are inapposite.
1979 Senate Hearings, reprinted in Legislative History at 71.
Judicial Guidelines at 42.
S.Rep. No. 1021, 93d Cong. 2d Sess. 36 (1974) excerpted in Legislative History at 104. Similarly, in 1979, the Senate Judiciary Committee noted:
1979 Senate Report at 33-34, excerpted in Legislative History at 114.