BOWNES, Circuit Judge.
These appeals are taken by fifteen men convicted after a jury trial of one or both counts under a two-count indictment charging them with (a) conspiracy to possess marijuana with intent to distribute, 21 U.S.C. §§ 846 & 841(b)(6), and (b) possession of marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) & 841(b)(6). Appellants' principal claims are that their speedy trial rights were violated, that some of them were denied the opportunity to raise
The evidence may be summarized as follows. On May 20, 1980, an isolated piece of property in Stockton Springs, Maine, was purchased by appellant D. Nissenbaum under the alias Arkin. The so-called Arkin property included several buildings with storage facilities. Five days later, an isolated shorefront property on Deer Isle, Maine, equipped with a deepwater dock and four buildings, was purchased with a $100,000 down payment in the name of a Paula Leurs. Suspecting that the two properties might be used for illegal drug trafficking, law enforcement agents established surveillance of both properties in August, 1980.
On the evening of October 19, 1980, a pickup truck was observed leaving the Arkin property loaded with material; it arrived at the Leurs property around 9:30 p.m. Shortly after 9:00 p.m., a dozen people were observed on the Leurs property carrying large objects, later identified as Zodiac rubber boats, down to the dock. Just after midnight the JUBILEE, a large, oceangoing vessel, was observed approaching from the open sea. It followed the shoreline towards the Leurs property without navigational lights, dropped anchor and cut its engines approximately one-tenth of a mile from the Leurs dock. Over a three-hour period, three rubber boats holding two people each made numerous trips between the dock area and the JUBILEE, transporting bales of what was later identified as marijuana from the JUBILEE to shore. The bales, after having been brought ashore, were loaded into pickup trucks and transported further inland.
The unloading of the marijuana bales continued for roughly three hours. At 3:05 on the morning of October 20, federal and state law enforcement officers entered the Leurs property in police cars with blue lights flashing. As the officers emerged from the cars and approached the dock area on foot, the people gathered there began to run away into the woods. The officers fanned out in pursuit. Ten of the appellants were apprehended at the time of the raid in the shore area and in the woods nearby,
When the raid began, the JUBILEE cut anchor and proceeded out to sea, pursued by a police patrol boat, a coast guard search-and-rescue boat, and then a coast guard cutter. The JUBILEE was finally intercepted and boarded after a protracted chase by the cutter, and the four-man crew, including two of the present appellants,
Twenty-three people were arrested in connection with the October 20 raid and named in the original indictment returned on October 29, 1980.
II. SPEEDY TRIAL ACT
The Speedy Trial Act of 1974, as amended, 18 U.S.C. §§ 3161 et seq., requires that trial commence within a specified time limit:
18 U.S.C. § 3161(c)(1). The same section, however, also provides that certain "periods of delay shall be excluded ... in computing the time within which the trial ... must commence." Id., § 3161(h). In the absence of excludable delay under (h), the starting point for computing the seventy-day limit under (c) in this case would be October 30, 1980, the day after the original October 29 indictment.
Among the time exclusions for "other proceedings concerning the defendant" are periods of "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). The exclusion for pretrial motions is automatic; a showing of actual delay is not required. United States v. Novak, 715 F.2d 810, 813 (3d Cir.1983), cert. denied sub nom. Ware v. United States, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984); 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). The length of time excludable under (h)(1)(F) is limited to "such delay as is reasonably necessary from the time of filing a pretrial motion to the time of conducting a hearing on it or completing submission of the matter to the court for decision." United States v. Mitchell, 723 F.2d 1040, 1047 (1st Cir.1983).
The defendants' first pretrial motion was a motion to preserve evidence, filed on November 7, 1980, by Booth and joined by other defendants. A hearing on that motion was held on November 25, 1980, and it was agreed at that time that no court action was required. The time from November 7 through November 25 was clearly excludable under (h)(1)(F), and the district court so found. The government, however, points out that a government pretrial motion for an "order permitting destruction of seized marijuana" had been filed on October 24, 1980, before the speedy trial clock was even set. A hearing on this motion was held on November 25, and it was granted in an order dated December 18. The government's motion thus overlapped the defendants', and we find that the time from October 30 until the
While the government's and the defendants' motions were still pending, defendants Booth and Middleton filed numerous additional pretrial motions in which other defendants joined, which independently gave rise to (h)(1)(F) exclusions. For purposes of speedy trial computations, the relevant motions are two suppression motions, both filed on November 21, 1980. The government filed an opposition on February 4, 1981, an evidentiary hearing was held on February 23-26, and oral argument took place on March 17, 1981. The record before us leaves no doubt that the time from November 21, 1980, through March 17, 1981, was "reasonably necessary" under the standard adopted in Mitchell, 723 F.2d at 1047. On the facts in this case, we must reject the argument to the contrary. See United States v. Gonsalves, 735 F.2d 638, 641 (1st Cir.1984); United States v. Regilio, 669 F.2d 1169, 1172 (7th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982). We agree with the district court that this entire period was excludable under (h)(1)(F).
The (h)(1)(F) exclusion applies not only to the particular defendants who file or join in pretrial motions, but also to codefendants whose trials have not been severed and whose speedy trial time has not otherwise run out. Section (h)(7) provides an exclusion for "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Every circuit court that has considered this provision has held in essence 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); see United States v. Tedesco, 726 F.2d 1216, 1219 (7th Cir.1984); United States v. Campbell, 706 F.2d 1138, 1141 (11th Cir.1983); United States v. Fogarty, 692 F.2d 542, 546 (8th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1434, 75 L.Ed.2d 792 (1983); United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979), cert. denied sub nom. Buckle v. United States, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980); see also Novak, 715 F.2d at 814 (qualified by "reasonableness limitation").
We note that the Guidelines adopt a different interpretation of (h)(7). Under the Guidelines approach, an (h)(7) exclusion would be available only when a particular defendant's seventy days had already run and additional time was necessary to permit a joint trial with an unsevered codefendant as to whom the seventy days had not yet run. See Guidelines at 52-53. The Guidelines approach represents a plausible application of the statutory text. It accurately allocates exclusions to defendants on an individual basis, thus minimizing the burden on individual defendants resulting from joint trials and affording each defendant the fullest possible benefit of the Speedy Trial Act. At the same time, however, the Guidelines approach considerably reduces the amount of excludable time in joint trials and puts pressure on trial courts to sever defendants or grant "ends of justice" continuances routinely as soon as a single defendant's seventy days expire, in order to avoid having even a single nonexcludable day elapse thereafter. Moreover, the Guidelines approach calls for individual speedy trial computations which could easily become unmanageable in a multidefendant case such as the present one. We cannot square such an interpretation with the congressional intent of avoiding waste of resources on unnecessary severances and separate trials. See Novak, 715 F.2d at 814-15; S.Rep. No. 93-1021, 93d Cong., 1st Sess. 38 (1974) and S.Rep. No. 96-212, 96th Cong., 1st Sess. 24-25, reprinted in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 135-36 (Fed.Judicial Center 1980). The Guidelines,
Because of the (h)(7) exclusion, the (h)(1)(F) exclusions for the overlapping pretrial motions applied to all twenty-four defendants.
(Emphasis in original.) Because (h)(7) carries exclusions applicable to one defendant over only to codefendants "as to whom ... no motion for severance has been granted," our computation of speedy trial time for the period after March 17, 1981, depends on a correct determination of the effect of the March 17 order. The three female defendants whose trials were unconditionally severed are eliminated from our calculations at this point, for the charges against them were subsequently dropped and they are not involved in this appeal. As for the two groups of defendants — those "who will assert a `First Amendment' defense," whom we shall call the "first amendment" defendants, and those "who will not be asserting a `First Amendment' defense," or the "conventional" defendants — the severance was only conditional. The court expressly stated that all defendants would be tried together if the court ruled that the first amendment defense were not viable. As it happened, the court did eventually make just that ruling, on November 23, 1982, and ordered all of the remaining defendants tried jointly. Thus, although it was contemplated for a protracted period that the
We do not think that the order can be viewed as providing some sort of temporarily operative severance for speedy trial purposes, because it is virtually impossible to ascertain the composition of the two groups referred to in the order. The record shows that as of July 17, 1981, twelve of the twenty-one defendants remaining at that time had advised the court that they would rely on a first amendment defense,
Between March 17, 1981, when the district court took the suppression motions under advisement, and June 24, 1981, when it issued a detailed memorandum and order denying the motions, well over thirty days elapsed. An automatic exclusion is provided in (h)(1)(J) for "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." Unlike the pretrial motion exclusion in (h)(1)(F), the advisement exclusion in (h)(1)(J) is expressly limited to thirty days, and cannot be extended without resort to another source of excludable time such as an "ends of justice" continuance under (h)(8). United States v. Cobb, 697 F.2d 38, 43 (2d Cir.1982); see also Mitchell, 723 F.2d at 1047 n. 6; United States v. Janik, 723 F.2d 537, 544 (7th Cir.1983). Of the ninety-eight days that elapsed between oral argument and ruling on the suppression motions, therefore, only thirty are excludable under (h)(1)(J), namely the period from March 18 through April 16, 1981.
The government argues that an independent, overlapping exclusion arose under (h)(1)(F) on March 9, 1981, when H. Shnurman filed a memorandum and proffer with respect to the first amendment defense. We reject this argument because, in our view, an offer of proof is not a pretrial motion within the meaning of (h)(1)(F). Instead, it is a submission of evidence which need not be admitted or excluded until trial; indeed, it is commonly carried over until trial. If such submissions were held to be pretrial motions or "other proceedings concerning the defendant" triggering automatic
When the thirty-day exclusion under (h)(1)(J) expired on April 16, 1981, the speedy trial clock finally began to run. After eleven nonexcludable days, it stopped once more because ten of the defendants
The Florida trial disrupted the trial schedule in the present case, which had initially been set for May 18, 1981. The fallback date of June 1, 1981, was likewise precluded by the Florida trial. On June 4, 1981, stating that it had "been advised that the Florida trial has not concluded and that counsel would need additional time to prepare for trial" beyond the second fallback date of July 6, 1981, the district court entered the following order:
Under (h)(8), delay resulting from a continuance is excludable if the trial judge grants the continuance on the basis of findings set out in the record that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial.
Other courts have held that (h)(8) continuances may not be given retroactive effect — that the order granting a continuance must be made at the outset of the excludable period. Janik, 723 F.2d at 545; United States v. Brooks, 697 F.2d 517, 522 (3d Cir.1982), cert. denied sub nom. Reed v. United States, 460 U.S. 1071, 103 S.Ct. 1526, 75 L.Ed.2d 949 (1983); but see United States v. Cameron, 510 F.Supp. 645, 649-50 (D.Md.1981). This court has not addressed the question, United States v. Jodoin, 672 F.2d 232, 237 (1st Cir.1982), and need not do so now. Appellants concede that the entire period from May 18 to June 4 is excludable under (h)(1)(D) without regard to (h)(8).
As to the adequacy of the district court's findings, we note that, although the reasons for an (h)(8) continuance must be "reasonably explicit," United States v. Perez-Reveles, 715 F.2d 1348, 1352 (9th Cir.1983) (conclusory statements insufficient), they need not be given at the time the continuance is granted. United States v. Bryant, 726 F.2d 510, 511 (9th Cir.1984); Janik, 723 F.2d at 544-45; Brooks, 697 F.2d at 522; United States v. Clifford, 664 F.2d 1090, 1095 (8th Cir.1981); Edwards, 627 F.2d at 461, cited in Mitchell, 723 F.2d at 1043-44. The purpose of the requirement that reasons be stated is to insure careful consideration of the relevant factors by the trial court and to provide a reviewable record on appeal. Both purposes are served if the text of the order, taken together with more detailed subsequent statements, adequately explains the factual basis for the continuance under the relevant criteria. Brooks, 697 F.2d at 520-22. Indeed, although the trial court may not merely incorporate reasons by reference, Janik, 723 F.2d at 545, it is not necessary for the court to articulate the basic facts where they are obvious and set forth in a motion for a continuance. Mitchell, 723 F.2d at 1044 (motion and court ruling read as complementary documents). In the present case, the court mentioned the Florida trial and counsel's expressed need for additional preparation time as reasons for granting an "ends of justice" continuance; these are in themselves sufficient grounds under (h)(8)(B)(i) & (iv). Moreover, reviewing the protracted history of the case during the November 23, 1982 hearing on defendants' speedy trial motion to dismiss, the court elaborated on the basis of its June 4, 1981 order.
The court also attributed any unnecessary delay to the defendants:
The district court's findings leave us with no doubt that the June 4 continuance was properly grounded in relevant criteria under (h)(8)(B). The trial could not have gone forward without the continuance, and the delay was requested by defense counsel to enable them to prepare following the Florida trial. Moreover, we think that on its face the record shows that this case was sufficiently complex to justify a continuance under (h)(8)(B)(ii) because of the number of defendants, the
Appellants' third objection to the June 4 continuance is not frivolous. They argue that the district court should have set a specific ending date for the continuance. See United States v. Pollock, 726 F.2d 1456, 1461 (9th Cir.1984) ((h)(8) continuance "proper only if ordered for a specific period of time"). Doubtless it is generally preferable to limit a continuance to a definite period for the sake of clarity and certainty; but at the same time it is inevitable that in some cases, like the present one, a court is forced to order an (h)(8) continuance without knowing exactly how long the reasons supporting the continuance will remain valid.
On July 14, 1981, Booth and Middleton filed motions to dismiss on double jeopardy grounds, claiming that their convictions in the Florida proceedings barred further prosecution in this case. A hearing was scheduled for August 11, 1981, but on that date both defendants filed amendments to their motions; accordingly, the hearing was postponed until September 11. Three days later, on September 14, 1981, the district court ruled on both motions, denying Booth's (in which the eight other defendants convicted in the Florida trial had joined) and granting Middleton's. Appeals were taken by the nine defendants whose motion was denied and by the government respectively on September 17 and 22, 1981. The time from the filing of the motions on July 14 through the September 11 hearing and September 14 rulings was excludable with respect to all twenty-one
Courts which have considered the question of when an appeal ends and the clock begins to run again for speedy trial purposes have generally held that the applicable date is the date on which the appellate court issues its mandate. United States v. Mack, 669 F.2d 28, 33 (1st Cir.1982); United States v. Ross, 654 F.2d 612, 616 (9th Cir.1981), cert. denied, 455 U.S. 926, 102 S.Ct. 1290, 71 L.Ed.2d 470 (1982); United States v. Cook, 592 F.2d 877, 880 (5th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979); cf. United States v. Gilliss, 645 F.2d 1269, 1276 (8th Cir.1981) (noting Guidelines use of date district court receives appellate court's mandate). Although these cases relate to subsection (e) (time limits for retrial following appeal) rather than to (h)(1)(E), we see no reason to apply a different ending date to interlocutory appeals under the latter section. In both situations it is the date on which the mandate is issued which determines when the district court reacquires jurisdiction for further proceedings. See Ross, 654 F.2d at 616. Moreover, where various charges being tried together are appealed separately and the records with respect to both appeals are retained at the defendant's request as a single unit to facilitate review, the speedy trial clock does not begin to run again in the district court until final disposition of both charges. See United States v. Lyon, 588 F.2d 581, 582 (8th Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 381 (1979).
In this case, the records in Booth and Middleton were kept together in this court until the latter appeal was finally decided. Although this was not at the defendants' express request, it was, at least, with their implied consent. No inquiries, let alone requests, as to the record in Booth were made between the time our mandate issued in that case on April 9, 1981, and the issuance of our mandate in Middleton on August 17, 1982. We need not address any speedy trial claims which might be raised if Middleton had not been pending before this court during that interval, however, because Middleton by itself was sufficient to stop the speedy trial clock with respect to all defendants through August 17 under (h)(1)(E) and (h)(7). Until that date, Middleton did not cease to be "a codefendant as to whom the time for trial ha[d] not yet run and no motion for severance ha[d] been granted."
From August 18 through September 20, 1982, we assume, without deciding, that no speedy trial exclusion was in effect and that these thirty-four days ran on the seventy-day clock. On September 21, 1982, a pretrial conference was held "at which an effort was made by the [district court] to set down trials of the two different groups of defendants which kept moving around back and forth and back and forth .... At that time it was agreed by all counsel ... that the speedy trial clock would stop and [speedy trial claims] would not be asserted." Appellants concede that this statement by the district court reflects an accurate account of the September 21 waiver, and they do not dispute that the time from September 21, 1982, until the impanelling of the jury on December 7, 1982, was excludable.
A separate Speedy Trial Act violation is asserted by Converse, Imoberstag, H. Shnurman and J. Shnurman, who argue — paradoxically, it might be thought — that trial took place too soon after their arraignment, depriving them of adequate preparation time. They cite section 3161(c)(2) of the Act, which provides:
The record shows that all four appellants were arraigned on the superseding indictment on December 6, 1982, the day before trial. The record also shows, however, that at the time the superseding indictment was returned the original indictment, identical in all respects except for the addition of D. Nissenbaum as a defendant, was still outstanding, and that all four appellants had been arraigned on the original indictment on October 29 and November 7, 1980. The issue before us, therefore, is whether (c)(2) applies to the superseding indictment at all. We think not.
The Speedy Trial Plan adopted by the District of Maine provides that the thirty-day minimum time limit begins to run at the same time as the seventy-day maximum limit when a superseding indictment is returned before the original indictment is dismissed.
III. FREE EXERCISE CLAUSE AND EQUAL PROTECTION
Appellants claim that they were denied the opportunity to assert a valid, legally sufficient defense based on the free exercise clause of the first amendment.
On November 23, 1982, the district court ruled as a matter of law that the first amendment did not protect the possession of marijuana with intent to distribute by the defendants, and further ordered that the defendants be precluded from introducing at trial any evidence concerning the Ethiopian Zion Coptic Church and the use of marijuana by its members, insofar as such evidence related to their alleged first amendment defense.
It is well established that the absolute constitutional protection afforded freedom of religious belief does not extend without qualification to religious conduct. Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1145, 6 L.Ed.2d 563 (1961); Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). When a law is challenged as interfering with religious conduct, the constitutional inquiry involves three questions: (a) whether the challenged law interferes with free exercise of a religion; (b) whether the challenged law is essential to accomplish an overriding governmental objective; and (c) whether accommodating the religious practice would unduly interfere with fulfillment of the governmental interest. See United States v. Lee, 455 U.S. 252, 256-59, 102 S.Ct. 1051, 1054-56, 71 L.Ed.2d 127 (1982).
In light of the government's stipulations, the first limb of the Lee standard is clearly met; there is no question that marijuana use is an integral part of the religious doctrine and practice of the Ethiopian Zion Coptic Church, and that appellants are sincere practicing members of that Church. The conflict with the criminal sanctions against possession of marijuana with intent to distribute is self-evident.
The question whether the government has an overriding interest in controlling the use and distribution of marijuana by private citizens is a topic of continuing political controversy. Much evidence has been adduced from which it might rationally be inferred that marijuana constitutes a health hazard and a threat to social welfare; on the other hand, proponents of free marijuana use have attempted to demonstrate that it is quite harmless. See Randall v. Wyrick, 441 F.Supp. 312, 315-16 (W.D.Mo.1977); United States v. Kuch, 288 F.Supp. 439, 446 & 448 (D.D.C.1968). In enacting substantial criminal penalties for possession with intent to distribute, Congress has weighed the evidence and reached a conclusion which it is not this court's task to review de novo. Every federal court that has considered the matter, so far as we are aware, has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare, and has upheld the criminal sanctions for possession and distribution of marijuana even where such sanctions infringe on the free exercise of religion. United States v. Middleton, 690 F.2d 820, 825 (11th Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75 L.Ed.2d 929 (1983); United States v. Spears, 443 F.2d 895 (5th Cir.1971), cert. denied, 404 U.S. 1020, 92 S.Ct. 693, 30 L.Ed.2d 669 (1972); Leary v. United States, 383 F.2d 851, 859-61 (5th Cir.1967), rev'd on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Randall, 441 F.Supp. at 316 & n. 2; Kuch, 288 F.Supp. at 448. Only last year, the Eleventh Circuit rejected identical claims raised by some of the very appellants before us in this case, see Middleton, 690 F.2d 820, and the United States Supreme Court denied review. We decline to second-guess the unanimous
Finally, it has been recognized since Leary that accommodation of religious freedom is practically impossible with respect to the marijuana laws:
Leary, 383 F.2d at 861, quoted in Middleton, 690 F.2d at 825; see also Kuch, 288 F.Supp. at 447. Although a narrow administrative exception has been carved out from the Schedule I classification of peyote for the benefit of the Native American Church, see 21 C.F.R. § 1307.31, we think this exemption is properly viewed as a government "effort toward accommodation" for a "readily identifiable," "narrow category" which has minimal impact on the enforcement of the laws in question. Lee, 455 U.S. at 260 n. 11 & 261, 102 S.Ct. at 1057 n. 11. No broad religious exemption from the marijuana laws is constitutionally required. We therefore affirm the district court's ruling rejecting appellants' first amendment defense as a matter of law.
We reject as well appellants' claim that members of the Ethiopian Zion Coptic Church are entitled as a matter of equal protection to a religious exemption from the marijuana laws on the same terms as the peyote exemption granted the Native American Church. Marijuana is not covered by the peyote exemption; this in itself distinguishes this case from Kennedy v. Bureau of Narcotics and Dangerous Drugs, 459 F.2d 415 (9th Cir.1972), cert. denied, 409 U.S. 1115, 93 S.Ct. 901, 34 L.Ed.2d 699 (1973). Moreover, the peyote exemption is uniquely supported by the legislative history and congressional findings underlying the American Indian Religious Freedom Act, which declares a federal policy of "protect[ing] and preserv[ing] for American Indians their inherent right of freedom to believe, express and exercise the[ir] traditional religions ..., including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." 42 U.S.C. § 1996. The legislative history of the Act "is clear in finding that religion is an integral part of Indian culture and that the use of such items as peyote are necessary to the survival of Indian religion and culture." Peyote Way Church of God, Inc. v. Smith, 556 F.Supp. 632, 637 (N.D.Tex.1983). In light of the sui generis legal status of American Indians, see Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-17, 8 L.Ed. 25 (1831) (Marshall, C.J.), and the express policy of the American Indian Religious Freedom Act (which was passed after Kennedy was decided), we think the Ethiopian Zion Coptic Church cannot be deemed similarly situated to the Native American Church for equal protection purposes.
At trial, the sixteen defendants aligned themselves in two groups asserting different defense theories. One group, known as the "conventional" defendants,
United States v. Arruda, 715 F.2d 671, 679 (1st Cir.1983) (citations omitted).
At the outset, we express considerable skepticism concerning the applicability of a Swiderski defense to the facts of this case. Although the Swiderski court held that "[w]here two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is personal drug abuse — simple joint possession, without any intent to distribute the drug further," 548 F.2d at 450, the court also made it unmistakably clear that its holding was "limited to the passing of a drug between joint possessors who simultaneously acquired possession at the outset for their own use." Id. at 450-51. The Swiderski holding appears fully justified on the facts of that case, but we hesitate to approve its casual extension to situations where more than a couple of defendants and a small quantity of drugs are involved, for, as the Swiderski court pointed out,
Id. at 450; see United States v. Taylor, 683 F.2d 18, 21 (1st Cir.), cert. denied, 459 U.S. 945, 103 S.Ct. 261, 74 L.Ed.2d 203 (1982) (Swiderski inapplicable to complex operation, a large quantity of marijuana); United States v. Wright, 593 F.2d 105, 108 (9th Cir.1979) (Swiderski not applicable where drug not simultaneously and jointly acquired). In the unusual circumstances of the present case, the district court left to the jury the factual question whether appellants' religious practices could account for their possession of almost one ton of marijuana per defendant and thus negate an inference of intent to distribute to third persons. This may have been an overabundance of caution on the court's part, but it does not affect our analysis of the severance issue. The Swiderski defendants were entitled to pursue whatever factual defense they could support, however implausible it might seem to a finder of fact; in this case, they may have had no colorable alternative.
In denying the severance motions, the district court relied on our decision in United States v. Talavera, 668 F.2d 625 (1st Cir.), cert. denied sub nom. Pena v. United States, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). In Talavera, we stated:
Id. at 630. Applying this standard, the district court reasoned:
We find this reasoning persuasive, and conclude that Talavera is controlling in this case. As in Talavera, one defense to the charge of possession with intent to distribute contests both elements of possession and intent, while the other contests only the element of intent. The defenses would become irreconcilable only if the conventional defendants were allowed to allege as part of their defense that the Swiderski defendants intended to distribute the marijuana. Talavera, 668 F.2d at 630. This was not done.
A related contention concerning the denial of severance is that the testimony presented by the Swiderski defendants concerning the quantity and methods of marijuana consumption by Ethiopian Zion Coptic Church members had a prejudicial "spillover effect" on the conventional defendants.
Appellants' other sundry contentions lack merit.
We conclude, therefore, that appellants have failed to prove reversible error or prejudicial unfairness in the conduct of the trial.
The convictions are affirmed.
ORDER OF COURT
ON PETITION FOR REHEARING FILED BY ATTORNEY COOK
The petition for rehearing filed by James Cook on behalf of appellants is denied. Appellants seek to equate the panel decision affirming dismissal in United States v. Middleton, 673 F.2d 31 (1st Cir.1982), with a severance of Middleton from the other defendants without regard to the pendency of a timely motion for rehearing. As we held at pages 23-24 of our slip opinion in the present case, the dismissal as to Middleton became operative as the equivalent of a severance for purposes of the Speedy Trial Act only when we issued our mandate on August 17 after considering and denying the government's petition for rehearing. Although, as appellants recognize, the district court could have entered an "ends of justice" continuance under (h)(8) as to the other defendants while the motion for rehearing in Middleotn remained pending, we think this would have been superfluous, for the exclusion under (h)(1)(E) was automatic. Furthermore, unlike (h)(1)(J), (h)(1)(E) does not provide for an exclusion automatically limited to 30 days; the holding in Unted States v. Black, 733 F.2d 349 (4th Cir.1984), concerning an (h)(1)(J) exclusion for an untimely petition for rehearing in banc filed after the issuance of the appellate court's mandate, is not in point. We have already considered and rejected J. Shnurman's contention that the denial of a thirty-day continuance following his arraignment on the superseding indictment violated his rights under the Speedy Trial Act or the sixth amendment. Slip op. at 25-29 & n. 28.
ORDER OF COURT
ON PETITION FOR REHEARING FILED BY CARL ERIC OLSEN
Upon consideration of the petition for rehearing filed by Carl Eric Olsen,
It is ordered that said petition be and the same hereby is denied.
ORDER OF COURT
ON PETITION FOR REHEARING FILED BY JACOB SHNURMAN
The petition for rehearing is denied. Petitioner Jacob Shnurman claims that he was denied the opportunity to present a "factual defense" to the jury based on the theory that "the seized marijuana was jointly possessed by the membership of the Zion Coptic Church." The district court properly ruled that on the facts of this case there was no basis in law or fact for such a defense because the only people who could have acquired joint and simultaneous possession, see United States v. Swiderski, 548 F.2d 445, 450-51 (2d Cir.1977), were those present when the marijuana was unloaded. For reasons fully set forth in our slip opinion, the first amendment does not supersede the criminal sanctions against possession of marijuana with intent to distribute. Petitioner's argument lacks merit.
Petitioner also disagrees with our reasoning distinguishing his situation from that of members of the Native American Church who enjoy an administrative exemption for their religious use of peyote. Our reasoning is fully set out in our slip
ORDER OF COURT
ON PETITION FOR REHEARING FILED BY THOMAS G. CONVERSE
The petition for rehearing filed by James Poliquin on behalf of appellant Thomas Converse is denied. Neither the conventional defendants nor the Swiderski defendants alleged as part of their defense that the other group (or any individual defendant) intended to distribute the marijuana. Under our controlling holding in United States v. Talavera, 668 F.2d 625 (1st Cir.), cert. denied sub nom. Pena v. United States, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982), which we have already declined to reconsider, the district court had discretion to deny the motions for severance.
Section 7 of the Plan provides:
18 U.S.C. § 3161(d)(1).