UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: July 29, 1986.
THE UNITED STATES
DEAN K. FELTON, NANCY E. BRUCE, JOHN ZORAK A/K/A JOHNNY, ANTHONY SERRAO, A/K/A BUDDY, RICHARD COX A/K/A RICKY, JAMES THURMAN, JOHN HATHORN
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, (D.C. Crim. No. 83-00049-01), (D.C. Crim. No. 83-00049-02), (D.C. Crim. No. 85-00049-04), (D.C. Crim. No. 85-00049-05).
Before: SEITZ and GIBBONS, Circuit Judges and GERRY, District Judge*fn*
Opinion OF THE COURT
GIBBONS, Circuit Judge:
Dean Felton, Nancy Bruce, Anthony Serrao, and Richard Cox appeal from judgments of sentence imposed following their conviction on various counts for violations of 21 U.S.C. §§ 841, 843, 846, and 848 (1982). The charges involved distribution of marijuana. Felton and Bruce contend that the charges against them should be dismissed because of violations of the Speedy Trial Act. See 18 U.S.C. §§ 3161-3174 (1982). They assert other claims which if meritorious would also require that the charges against them be dismissed, as well as several trial errors which if meritorious would require a new trial. Because we conclude that the Speedy Trial Act claims of Felton and Bruce require a dismissal of the indictment with prejudice, we do not reach those additional contentions. Serrao and Cox, challenging the sufficiency of the evidence against them, urge that their motions for a directed verdict should have been granted. Alternatively they urge that trial errors require a new trial. We find their contentions to be without merit, and thus in their appeals we affirm.
On June 4, 1979 federal agents executed a search warrant at the premises of Antiques International in Plum Borough, Pennsylvania. The agents found substantial quantities of marijuana. They immediately arrested Dean Felton and six others. On June 28, 1979 a federal grand jury returned a four-count indictment. No. 79-121, against the seven who were arrested. Count I of that indictment charged a conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. That count alleged that the conspiracy ran from May 24, 1979 to June 4, 1979, when the arrests were made. Count IV charged Felton with possession of marijuana with intent to distribute in violation of 18 U.S.C. § 841.
Felton was arraigned on indictment No. 79-121 on July 6, 1979. After a series of pretrial maneuvers, including an unsuccessful appeal by the United States from an order suppressing some of the evidence seized on June 4, 1979, the trial commenced on May 11, 1981. Felton was tried only on Count IV, however, because the United States dismissed the other three counts after it lost its appeal of the district court order granting the suppression motion. Felton was convicted, and on July 1, 1981 he was sentenced to a jail term, a fine, and a 20-year special parole term. This court affirmed by judgment order on March 26, 1982, United States v. Felton, Nos. 81-2135, 81-2148 (3d Cir. March 26, 1982).
While the federal charges in indictment No. 79-121 were pending, Pennsylvania state authorities developed an interest in Felton's activities. On May 13, 1981 the Pennsylvania state police executed two search warrants, one at a warehouse leased by Dean Felton in the Kutz Industrial Park in Pittsburgh and the other at a private residence in that city. The state police seized marijuana in a truck at the warehouse and in the basement of the private residence. The next day, as Felton entered the federal courthouse for the continuation of his trial, the state police arrested him. He was charged under Pennsylvania law with possession, possession with intent to distribute, and conspiracy, all with respect to the marijuana seized at Kutz Industrial Park. Felton was granted bail on the state charges, and his federal trial continued on through conviction and sentencing.
Trial on the Pennsylvania charges was scheduled for September 21, 1981. On September 17, 1981, however, the District Attorney of Allegheny County moved ex parte to dismiss those charges because their prosecution was being assumed by the United States Attorney. When Felton, who was in federal custody, learned of the dismissal he objected on the grounds that dismissal and transfer violated his state and federal rights to a speedy trial. The investigation was nevertheless transferred to the Office of the United States Attorney, where it languished while Felton served his sentence.
Felton was released from federal custody on March 5, 1983. Twenty-six days after his release, a federal grand jury handed down a ten-count indictment. No. 83-49, against Felton and six others, including Bruce, Serrao, Cox, and John Hathorn. Count I of No. 83-49 charged the seven named defendants and others unknown with conspiring in violation of 21 U.S.C. § 846 from the beginning of 1979 until May 13, 1981. Count II charged Felton with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Other counts charged possession in violation of 21 U.S.C. 841(a)(1), and use of the telephone in violation of 21 U.S.C. § 843(b). The charges in No. 83-49 were based upon the marijuana seized by the Pennsylvania state police on May 13, 1981. Felton made his initial appearance before a federal magistrate on indictment No. 83-49 on April 1, 1982. He was arraigned on April 11. With the exception of Cox, all the other defendants named in indictment NO. 83-49 were arraigned by May 20, 1983.
The trial on indictment No. 83-49 commenced on April 1, 1985, two years to the day after Felton's first appearance before a magistrate on that indictment, and six weeks shy of five years after he was arrested by the Pennsylvania state police on the virtually identical charges growing out of the May 13, 1981 seizure at Kutz Industrial Park. Meanwhile the district court had considered and denied motions by Felton and Bruce to dismiss the charges for violations of the Speedy Trial Act.*fn1 The defendants were sentenced on May 22, 1985.
The Speedy Trial Act provides that "[i]n any case in which a plea of not guilty is entered the trial of a defendant . . . shall commence within seventy days . . . from the date the defendant has appeared before a judicial officer of the court in which such charge is pending. . . ." 18 U.S.C. § 3161(c)(1). The Act provides, however, for numerous exclusions from this seventy-day period. See 18 U.S.C. § 3161(h). If the defendant is not brought to trial within the seventy-day time period plus the period allowed under the exclusions, the court must dismiss the indictment on motion of the defendant. 18 U.S.C. § 3162(a)(2).
In his motion to dismiss on speedy trial grounds in the district court, Felton urged that since the conspiracy charged in the second federal indictment, No. 83-49, was the same as that charged in the first federal indictment, No. 79-121, the starting time for the speedy trial clock was in 1979 when he was arraigned on the first. The district court agreed that at least Counts I and II of No. 83-49, the conspiracy and continuing criminal enterprise counts, related back to the first indictment. 592 F.2d at 182. Relying on United States v. Budzyna, 666 F.2d 666 (1st Cir. 1981), however, the court held that because the charges in No. 83-49 involved the same conspiracy as was alleged in No. 79-121, indictment No. 83-49 should be deemed to be a 1979 indictment for purposes of imposing sanctions under the Speedy Trial Act. Id. at 183. See 18 U.S.C. §§ 3162(a)(2), 3163(c). Based on its characterization of No. 83-49 as a 1979 indictment, the court held that, regardless of the amount of time that might have run on the speedy trial clock, no sanctions would apply. That holding rested upon the court's interpretation of section 3163(c) of the Act, which provides that the mandatory dismissal sanctions in section 3162 "become effective and apply to . . . all informations or indictments filed, on or after July 1, 1980." 18 U.S.C. § 3163(c).
In Budzyna the Court of Appeals for the First Circuit held that the dismissal sanction was inapplicable to a superseding indictment filed after July 1, 1980 because the original indictment had been filed before the effective date of the mandatory dismissal sanctions and because the superseding indictment related back to the earlier date. 666 F.2d at 270. The court, however, did not hold that the doctrine of relation-back could apply to a new indictment, not superseding an earlier one, but, rather, filed after the first one was tried and the defendant sentenced. Moreover, although the relation-back argument as a means of insulating indictment No. 83-49 from the dismissal sanctions in section 3162(a)(2) is ingenious, it is totally inconsistent with the plain language of the statute and the obvious intention of Congress. Indictment No. 83-49 was an indictment filed on or after July 1, 1980 that threatened Felton with jeopardy entirely apart from the jeopardy involved in No. 79-121, as to which his jail sentence had already been served. Therefore, indictment No. 83-49 clearly falls within the purview of the dismissal sanctions in the Act.
Realizing, perhaps, that the "relation-back" argument for the inapplicability of dismissal sanctions was open to attack, the district court proceeded to address the merits of Felton's and Bruce's Speedy Trial Act claims. With respect to Felton's claim regarding Counts I and II of No. 83-49, the court measured the starting point from the date that indictment No. 79-121 was returned, and determined that, under various provisions of the Speedy Trial Act excluding time from the seventy-day period, only 52 days had elapsed under No. 79-121*fn2 and no time had elapsed under No. 83-49. The court therefore held that the time limit for bringing Felton to trial on Counts I and II of No. 83-49 had not expired. 592 F.Supp. 183-85; 612 F.Supp. at 603. In addition, because it determined that no time whatsoever had expired under indictment No. 83-49, the court also held that the time limit for bringing Felton and Bruce to trial on the entirety of that indictment had not expired. 611 F.Supp. at 603. On appeal Felton and Bruce contend that the Speedy Trial Act was violated, and therefore that they are entitled to a dismissal of indictment No. 83-49.*fn3
The Speedy Trial Act provides that in calculating time chargeable against the seventy-day limit in section 3161(c), certain days are excluded. Felton and Bruce focus primarily upon the excludability of the time between September 25, 1983 and April 25, 1984 under indictment No. 83-49. The exclusions that arguably are relevant to this time period are discussed separately.
Sections 3161(h)(1)(F) & 3161(h)(1)(J)
Motion Practice Exclusions
Section 3161(h)(1)(F) excludes "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."*fn4 18 U.S.C. § 3161(h)(1)(F). Thus section 3161(h)(1)(F) excludes time in two situations: First, if the court holds a hearing on a motion, section 3161(h)(1)(F) excludes all time between the filing of the motion and the conclusion of a hearing on the motion. See Henderson v. United States, 54 U.S.L.W. 4494, 4496 (U.S. May 19, 1986). Although not discernible from the language of section 3161(h)(1)(F) itself, the Supreme Court has held that it also excludes any time consumed after the hearing for the filing of briefs and additional factual materials that are necessary for the proper disposition of the motion. Id. at 4497. Second, if the court does not hold a hearing on a motion, section 3161(h)(1)(F) excludes the time from the filing of the motion until the time at which the matter is completely submitted to the court for decision. Id. at 4496; see also S. Rep. No. 212, 96th Cong., 1st Sess. 34 (1979), reprinted in A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, at 113-15 (Fed. Judicial Center 1980).
Up until the Supreme Court decided Henderson many courts, after a close examination of the language and legislative history of the Act, held that the statute imposed a reasonableness limitation on the length of section 3161(h)(1)(F) exclusions. See, e.g., United States v. Ray, 768 F.2d 991, 998 (8th Cir. 1985); United States v. Mitchell, 723 F.2d 1040, 1047 (1st Cir. 1983); United States v. Janik, 723 F.2d 537, 543 (7th Cir. 1983); United States v. Novak, 715 F.2d 810, 819 (3d Cir. 1983), cert. denied, 465 U.S. 1030 (1984). In Henderson, however, the Court rejected this interpretation of section 3161(h)(1)(F). The Court declared that under the statute all the delay between filing, the hearing, and the completion of post-hearing submissions or between filing and the completion of submissions was excludable regardless of whether the delay was reasonably necessary for a proper resolution of the issues presented in the motions.*fn5 Henderson, 54 U.S.L.W. at 4497.
Although the Henderson Court interred what had been the chief statutory limitation on the power of district courts to swallow up the seventy-day limit by granting extensive exclusions under section 3161(h)(1)(F), the Court did not abjure all limitations: one survives. Consistent with Congress' intent, the Court recognized that "potentially excessive and abusive use of this exclusion [can] be precluded by district or circuit guidelines, rules, or procedures relating to motions practice." Id. at 4496 (quoting H.R. Rep. No. 390, 96th Cong., 1st Sess. 10 (1979), reprinted in 1979 U.S. Code Cong. & Ad. News 805, 814)). See also S. Rep. No. 212, 96th Cong., 1st Sess. 33-34 (1979).
Even prior to Henderson, we invoked this non-statutory limitation in United States v. Novak, 715 F.2d 810 (3d Cir. 1983), cert. denied, 465 U.S. 1030 (1984). There we held binding the limitation contained in the local rules of the Western District of Pennsylvania requiring the government to respond to criminal defendants' pretrial motions within ten days of service in the absence of an extension. Id. at 815-16. See W.D. Pa. R. 24(b) (1984). In addition, we noted, although we did not apply, the limitation set forth in the Plan for Prompt Disposition of Criminal Cases for the Western District of Pennsylvania [P]4(f)(7), at 10 (W.D. Pa. 1980) [hereinafter cited as Speedy Trial Act Plan], stating that "[a]ll pre-trial hearings shall be conducted as soon as the arraignment as possible, consistent with the priorities of other matters on the court's criminal docket." 715 F.2d at 820 n.15. This limitation, we observed, was consistent with the Senate Committee's declaration that it did not "intend that additional time be made eligible for exclusion [under subdivision (F)] by postponing the hearing date . . . of the motions beyond what is reasonably necessary."*fn6 Id. at 819-20 & n.15 (quoting S. Rep. No. 212, 96th Cong., 1st Sess. 33-34 (1979) (emphasis added)).
In sum, therefore, exclusions under section 3161(h)(1)(F) extend from the filing of pretrial motions through the hearing and post-hearing submissions, or through the completion of submissions, except as limited by such court rules regulating motion practice.
The second motion practice exclusion under the Speedy Trial Act is section 3161(h)(1)(J). See 18 U.S.C. § 3161(h)(1)(J). Section 3161(h)(1)(J) excludes "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). Most courts that have addressed the question have held, and we agree, that pretrial motions are "proceedings concerning the defendant." See United States v. Hines, 728 F.2d 421, 426 (10th Cir.), cert. denied, 467 U.S. 1246 (1984); United States v. Janik, 723 F.2d 537, 543-44 (7th Cir. 1983); United States v. Horton, 705 F.2d 1414, 1416 (5th Cir.) cert. denied 454 U.S. 997 (1983); United States v. Stafford, 697 F.2d 1368, 1373 (11th Cir. 1983); United States v. Bufalino, 683 F.2d 639, 642-44 (2d Cir.), cert. denied, 459 U.S. 1104 (1983). But see United States v. Tertrou, 742 F.2d 538, 539 (9th Cir. 1984) (per curiam) (section 3161(h)(1)(J) applies only to "other types of proceedings not enumerated, such as post-trial motions"). This exclusion normally runs for thirty days from the termination date of a section 3161(h)(1)(F) exclusion. See, e.g., Henderson, 54 U.S.L.W. at 4496; Hines, 728 F.2d at 426; Horton, 705 F.2d at 1416; Stafford, 697 F.2d at 1373-74; United States v. Cobb, 697 F.2d 38, 43 (2d Cir. 1982). If the motions are very simple or routine, however, Congress has cautioned that the advertisement period "should be considerably less than 30 days." S. Rep. No. 212, 96th Cong., 1st Sess. 34 (1979).
On appeal Felton and Bruce contend that the district court erred in excluding the time from September 25, 1983 to April 25, 1984 on the basis of these motion practice exclusions. On July 1, 1983 there were pending in the district court thirty-five pretrial motions seeking various forms of relief. These included a motion by Felton to dismiss under both the Speedy Trial Act and speedy trial clause of the sixth amendment. Hearings were held on these motions on July 14, 15 and 28, 1983. Thereafter defendant Bruce filed a severance motion. Felton filed a motion to disqualify Bruce's counsel, and Hathorn filed a double jeopardy motion. Felton and Bruce contend, and our examination of the record confirms, that even allowing for post-hearing written submissions all pending motions, with the exception of Felton's motion to disqualify Bruce's counsel, must be deemed to have been under advisement no later than September 26, 1983.
The government responded to Felton's August 16 disqualification motion on August 25. Nothing more was done on this motion for seven months. Then on March 21, 1984 the court held a hearing, and on April 6, 1984 the court granted the motion. The government contends that the entire 217-day period between August 16, 1983 and March 21, 1984 is excludable under section 3161(h)(1)(F), and that the period between March 21, 1984 and April 6, 1984 is excludable under section 3161(h)(1)(J). We disagree.
The lapse of seven months violated the district court's guideline for the prompt disposition of criminal cases contained in paragraph 4(f)(7) x-1c of the Speedy Trial Act Plan for the Western District of Pennsylvania. As stated above, this guideline requires that such hearings be held "as soon after arraignment as possible." Speedy Trial Act Plan, [P]4(f)(7), at 10. The hearing on the disqualification motion was not held within this time frame. Because Congress intended that such guidelines serve as the primary, if not the exclusive, limitation on the length of exclusions under section 3161(h)(1)(F), see Henderson, 54 U.S.L.W. at 4496, we are bound to apply them. We, therefore, hold that because the seven-month delay goes beyond the bounds of what is permissable under the Speedy Trial Act Plan, it is not excludable under section 3161(h)(1)(F). In addition, because there do not appear to be any reasons of record why this motion could not have been timely resolved,*fn7 we further hold that only the thirty-day period from August 25 to September 24 is excludable under section 3161(h)(1)(F), and the thirty-day period from September 25 to October 25 is excludable under section 3161(h)(1)(J).
Based on the above rulings, the speedy trial clock commenced running on October 26, 1983, at least for purposes of sections 3161(h)(1)(F) and 3161(h)(1)(J). No new motion was made by any party until November 21, 1983 when Felton made a motion to supplement the record and a motion to sever Cox. Thus twenty-six days expired for purposes of those sections. Both of Felton's November 21, 1984 motions were unopposed. The motion to supplement the record was essentially a housekeeping matter which could in no way reasonably require retention under advisement for anything near the maximum thirty-day period in section 3161(h)(1)(J). The unopposed motion to sever Cox, discussed further in connection with section 3161(h)(3), arguably required some judicial consideration for, although the government did not oppose it, a severance of one defendant could result in two trials rather than one. Even if the United States is credited with the ten days required under Rule 24(b) of the local rules of the Western District of Pennsylvania, see W.D. Pa. R. 24(b) (1984), for the filing of a response, and with the maximum of thirty days excludable under section 3161(h)(1)(J), the severance motion should have been acted upon no later than December 30, 1983. It was not acted upon until March 31, 1984.
On December 28, 1983 Felton filed a second housekeeping motion to supplement the record. Crediting the United States with the ten days within which it could have filed opposing papers, the section 3161(h)(1)(F) exclusion ran to January 7, 1984. But since the motion was unopposed, no time past that date, or at best the day or two it might have taken the court to read the papers, can be deemed excludable under section 3161(h)(1)(J). Thus the speedy trial time clock commenced running no later than January 8, 1984.
No new motion was made by any party until February 17, 1984 when Felton filed a renewed motion to dismiss for a violation of the Speedy Trial Act. Thus for purposes of section 3161(h)(1)(F), the thirty-nine days between January 9 and February 17, 1984 must be charged against the seventy days, for a total of sixty-five nonexcludable days.
The argument that a renewed motion to dismiss on speedy trial grounds should trigger a new section 3161(h)(1)(F) exclusion and a second thirty-day period during which the motion may be taken under advisement hardly seems consistent with ostensible Congressional purpose in enacting the Speedy Trial Act. We do not find it necessary, however, to resolve the question whether the renewal of a motion that should have been decided long ago should give the United States and the court additional excludable time. In this case, the government's response to Felton's renewed motion was due on February 27, 1984. It was not filed until March 12, 1984. No justification appears of record for this delay of thirteen days. These thirteen days, when added to the sixty-five which had already expired, brings the chargeable delay to seventy-eight days. On top of that, although a hearing on the motion was held on March 21, 1984, it was not decided until May 18, 1984. Under section 3161(h)(1)(J), the thirty-day period running from March 21 to April 20 is excludable. On April 24 Felton filed a motion to modify his bond. The motion was granted that same day. The three days between April 21 and April 24 are nonexcludable, bringing the total to eighty-one nonexcludable days.
In sum, the exclusions that may be justified under sections 3161(h)(1)(F) and 3161(h)(1)(J) by virtue of motion practice for the period challenged by Felton and Bruce fall far short of eliminating all seventy days specified in section 3161(c)(1).*fn8
Absence of a Defendant
The Speedy Trial Act provides that "[a]ny period of delay resulting from the absence of unavailability of the defendant" shall be excluded in making Speedy Trial Act computations, 18 U.S.C. § 3161(h)(3)(A). The United States contends that Richard Cox, a codefendant named in indictment No. 83-49, was absent from the date the indictment was handed down until his arraignment on March 21, 1984. According to the United States, all of this period should be counted against Felton and Bruce because of the provision in the Act that "[a] reasonable period of delay [is excluded] 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." 18 U.S.C. § 3161(h)(7). Thus, the United States contends, the speedy trial clock did not begin to run in favor of any defendant until March 21, 1984.
For several independent reasons we reject the applicability of sections 3161(h)(3) and 3161(h)(7) to exclude time in this case. These sections operate to exclude time only when a particular codefendant has not been served. We do not construe these sections, however, to exclude time when a severance motion has been made, but as here, has been simply ignored. See United States v. Didier, 542 F.2d 1182 (2d Cir. 1976). Bruce made a severance motion on August 1, 1983, which was not ruled upon until May 5, 1984, and Felton made a severance motion on November 21, 1983, which was not ruled upon until May 21, 1984.
In its sua sponte order of November 3, 1983, the district court relied on sections 3161(h)(3) and 3161(h)(7) to create an open-ended exclusion. Joint Appendix at 35. The court's reliance on Cox's absence on this record, however, is misplaced because there was on November 3, 1983 no basis of record for making a determination of Cox's absence or unavailability. Under section 3161(h)(3), absence and unavailability are defined terms. A defendant is only absent "when his whereabouts are unknown and . . .  he is attempting to avoid apprehension or prosecution," or " his whereabouts cannot be determined by due diligence." 18 U.S.C. § 3161(h)(3)(B). A defendant is only unavailable when "his whereabouts are known but  his presence for trial cannot be obtained by due diligence or " he resists appearing at or being returned for trial." Id. § 3161(h)(3)(B). When the court entered the November 3, 1983 order, there was no information of record as to Cox's whereabouts. The absence of such information is significant because under the Act "the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3)." 18 U.S.C. § 3162(a)(2).
It was not until February 14, 1984 that the court for the first time entered an order requiring the United States to disclose its efforts to locate Cox. By then Felton's motion to sever Cox had been on file for eighty-five days. No status report with respect to Cox was filed until February 22, 1984. The filing of that report did not result in any excludable time because the government's showing did not satisfy the statute. The United States made no effort to establish that Cox was attempting to avoid prosecution. Indeed Agent Carroll testified that Cox was not even aware of the indictment until his arrest. Nor did the United States attempt to establish that Cox's whereabouts were known, but that he resisted returning for trial. Cox resided in Florida throughout the relevant period, and when he learned of the charge he did not resist coming to the Western District of Pennsylvania for trial. Thus the government's position depends upon its showing that Cox's whereabouts could not have been determined or his presence obtained by due diligence.
At a hearing addressed to the due diligence issue, Special Agent Carroll testified for the government. His testimony established the following: In March of 1983 the United States believed that Cox resided in Orlando, Florida. Agent Carroll informed federal agents in Orlando about the indictment, but they were unable to find him. Carroll called the Orlando authorities once in March and once in April of 1983. In June of 1983 the Orlando agents obtained information that Cox had moved to Melbourne, Florida. They conveyed this information to Carroll, along with the information that they had notified the Melbourne police department of this development. Carroll made telephone calls to the Orlando officers in July and either October or November of 1983. He never spoke to the police department in Melbourne, Florida, where Cox was thought to be living, until February 22, 1984, and then only as a result of the court's February 14, 1984 order. Cox was arrested on a warrant almost immediately thereafter.
The government produced no evidence that it caused anyone to check with the Orlando Post Office for a change of address listing, to inquire of the Florida motor vehicle registry for a change of address for any automobile or driver's license issued to Cox, to inquire of his landlord in Orlando whether he left a forwarding address, to inquire of the local telephone company as to a change of a telephone listing for Cox, or to examine any telephone directory for the Melbourne, Florida area. Aside from a few desultory and unfruitful telephone calls to unidentified federal agents in Orlando, so far as this record discloses, the United States exercised no diligence in attempting to locate Cox until the court's February 14, 1984 order. We hold that as a matter of law on this record the United States failed to make out a prima facie case that Cox's whereabouts could not have been determined or his presence obtained through the exercise of due diligence. See United States v. Garrett, 720 F.2d 705, 707-08 (D.C. Cir. 1983), cert. denied 465 U.S. 1037 (1984); United States v. Lopez-Espindola, 632 F.2d 107, 109 (9th Cir. 1980).
Thus whether we decide the question of Cox's absence on the theory that the longstanding severance motion should have been granted and Cox's absence thus cannot under section 3161(h)(7) be attributed to his codefendants, or on the theory that Cox was not absent or unavailable within the meaning of section 3161(h)(3)(B), the result is the same. Cox's absence cannot be used to toll the speedy trial time clock as to Felton and Bruce.
The Interest of Justice Exclusion
The Speedy Trial Act excludes from the seventy-day calculation "[a]ny period of delay resulting from a continuance granted by any judge on his own motion . . . if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). Arguably the November 3, 1983 order, which postponed the decision on pending motions from July of 1983 to May 18, 1984, was a continuance granted by a judge on his own motion. The period of any continuance is not excludable unless the court sets out its reasons why granting it serves the ends of justice. In the absence of such a statement of reasons the time is not excludable. See United States v. Brooks, 697 F.2d 517, 520 (3d Cir. 1982), cert. denied, 460 U.S. 1071 (1983); United States v. Carrasquillo, 667 F.2d 382, 385-86 (3d Cir. 1981). Although the district court purported to comply with this requirement, we hold that the recitals in the November 3, 1983 order are patently insufficient to warrant an ends of justice continuance. Moreover, considering the factors listed in the statute as relevant, we hold that on this record an interest of justice exclusion would never be supportable.*fn9 For these reasons section 3161(h)(8) does not create any excludable time.
None of the statutory exclusions relied upon by the United States suffice to avoid the running of the seventy-day time period in section 3161(c)(1). At least eighty-one nonexcludable days elapsed under indictment No. 83-49 as of April 25, 1984.*fn10 There remains the question of appropriate relief. The Speedy Trial Act provides that if the defendant is not brought to trial within the time limit specified in section 3161(c) "the information or indictment shall be dismissed upon motion of the defendant." 18 U.S.C. § 3162(a)(2). "In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which lead to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." Id. § 3162(a)(2). The United States urges that if we find, as we have, a Speedy Trial Act violation, the sanction should not be a dismissal of the indictment. Its position in this respect is somewhat hard to follow. It submits that
if there was a speedy trial violation in this case, the proper remedy prior to trial would have been dismissal without prejudice. Since the government could then have reprosecuted the case, and obviously had ample evidence with which to do so, it would be senseless to remand the case for a dismissal without prejudice at this stage. The defendants have already had one fair trial. Giving them another trial -- even further in time from the relevant events than the first trial -- would serve no legitimate purpose and would waste judicial resources.
Brief for Appellee at 38-39. The obvious conclusion to be drawn from this reasoning is that no sanction is appropriate. But the reasoning is defective in several respects. First, it simply is not true that Felton and Bruce had a "fair" trial, at least in the sense that it was one which took into account their statutory right not to be tried over their objection when the time specified in section 3162(c)(1) had expired. It is true that had the Felton and Bruce speedy trial motions been granted pretrial when they should have been granted, by our calculations on later than March of 1984, a dismissal without prejudice might have been an appropriate remedy. It is not certain, however, that a second grand jury would have returned an indictment under those circumstances. But the motions were not granted then. Instead the court ignored them until May 18, 1984. It then decided the motions erroneously. Neither the delay in ruling nor the erroneous ruling were reviewable here at the behest of Felton or Bruce, and they were required to go through a trial in violation of the Act.
The government urges that the delay was entirely the fault of the trial court, and thus should not result in the imposition of any sanction against the United States. That is true in the sense that it was the court that failed to hold the disqualification hearing and entered the November 3, 1983 order that is the chief source of the government's difficulties. The United States is hardly blameless, however, because it made no effort to speed up the hearing date or to have the November 3 order vacated. Moreover, so far as we can tell on this record, the United States made no diligent effort to find and arrest the codefendant Cox.
Since defendants cannot obtain pendente lite appellate review of orders (or nonorders) denying Speedy Trial Act claims, the Act can become a dead letter if, post-trial, some effective remedy is not granted. Moreover, if we were to proceed on the assumption that at this stage a dismissal without prejudice to a reindictment is ordinarily appropriate, the incentive upon the government to police diligently its own compliance with the Speedy Trial Act and that of the trial courts would be seriously eroded. The government would face the possibility of a new trial, but so would the defendants. It would be cold comfort to defendants such as Felton and Bruce to know that having been right all along about their statutory right to a speedy trial they would not be right back where they were on March 31, 1983 when the indictment was handed down. Moreover the public interest would be ill-served in the post-trial setting by a remedy which imposed the cost of a new trial either on private defendants or on the limited resources available under the Criminal Justice Act. The cost of two trials is always prejudicial. When the court and the government persist, as here, in the error of denying defendants their rights under the Speedy Trial Act all the way through a long delayed trial, we should proceed on the assumption that the remedy of a dismissal with prejudice is appropriate unless the government has made a strong showing as to why a different result would be both fair to the defendant and consistent with the due administration of the Act.
We conclude, therefore, that in the appeals of Felton and Bruce the judgments of sentence should be reversed and the case remanded for the entry of an order dismissing indictment No. 83-49 against them with prejudice.*fn11 Because of that conclusion it is unnecessary to address the additional grounds for appeal on which they rely.
Neither Serrao nor Cox preserved any Speedy Trial Act claim by moving for dismissal prior to trial. That omission "constitute[s] a waiver of the right to dismissal under . . . section ." 18 U.S.C. § 3162(a)(2). Thus in their appeal we must address their sufficiency of the evidence and trial error contentions.
Sufficiency of the Evidence
Serrao and Cox contend that the trial court erred in denying their motions for judgments of acquittal. Since the evidence against them was not identical, the factual predicates for their respective contentions are different.
Serrao argues that the government proved two similarly motivated but distinct conspiracies; one between him and defendants Cox, Zorak, and August Serrao to harvest marijuana in Nebraska, and a second headed by Felton with some overlap in personnel. He contends that only the latter was charged in the indictment, and that the government's proof only connected him to the former. The record evidence, however, was sufficient for the jury to find that the harvesting of marijuana in Nebraska for its transportation to Pennsylvania to be mixed with higher quality marijuana obtained by Felton from other sources was part of a single conspiracy charged in the indictment. The fact that Serrao did not transport marijuana from those other sources does not require the conclusion that he was not part of the larger conspiracy to possess and to distribute a product from both sources. The evidence was that the Nebraska product had only one channel of distribution.
Cox contends that the trial court should have directed a verdict in his favor because there was proof that he had withdrawn from or was engaged in a separate conspiracy. His separate conspiracy contention is no different from Serrao's and we reject it for essentially the same reasons. There is ample evidence that even if Cox at some point withdrew from the conspiracy he was a participant for a significant period.
Thus the jury verdict against both Serrao and Cox is supported by the evidence. The court did not err in denying motions for judgments of acquittal.
Serrao and Cox contend that the court erred in refusing to instruct the jury on the proposition that they had withdrawn from the conspiracy charged in the indictment or were engaged in a separate conspiracy. Since, as noted above, there is ample evidence of a single distribution conspiracy, and none of any different channel of distribution, the court did not err in refusing to charge on multiple conspiracies.
Serrao and Cox contend that the court erred in admitting tape recorded conversations between them and Felton into evidence. The conversations were admissible under Fed. R. Evid. 801(d)(2)(A) and were plainly relevant.
Serrao and Cox contend that the denial of their motions for a severance from Felton warrants a new trial. The motions were predicated upon the asserted antagonism between their defense and Felton's. We find no such antagonism as would support a determination that the trial court committed an abuse of discretion. See United States v. Dickens, 695 F.2d 765 (3d Cir. 1982) cert. denied, 460 U.S. 1092, 461 U.S. 909 (1983). The fact that the evidence against Felton may have been more damaging than against them does not mandate a severance. See United States v. Simmons, 679 F.2d 1042 (3d Cir. 1982), cert. denied, 462 U.S. 1134 (1983).
The judgments appealed from by Felton, No. 85-3303, and Bruce, No. 85-3304, will be reversed and the case remanded for the entry of an order dismissing the indictments against them pursuant to 18 U.S.C. § 3162. The judgments appealed from by Serrao, No. 85-3305, and Cox, No. 85-3306, will be affirmed.