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United States v. David Fields, 39 F.3d 439, 3rd Cir. (1994)
United States v. David Fields, 39 F.3d 439, 3rd Cir. (1994)
3d 439
David Fields has appealed his conviction and sentence for violations of the
federal drug laws. He argues that his indictment should have been dismissed
under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., and that the district
court erred in calculating his sentence. We affirm the defendant's conviction,
but we vacate his sentence and remand for resentencing pursuant to United
States v. Rodriguez, 975 F.2d 999 (3d Cir.1992).
I.
2
On September 17, 1992, the defendant was indicted in the Western District of
Pennsylvania for (count one) possession, with the intent to distribute, of less
than 100 grams of heroin, in violation of 21 U.S.C. Sec. 841(a)(1); (count two)
possession, with intent to distribute, of less than 100 grams of heroin within
A change of plea hearing was subsequently requested, and because the judge to
whom the case had initially been assigned was involved in a trial in Erie,
another judge agreed to preside at that hearing on December 10. Due to a
severe snowstorm, however, the case agent was unable to attend the hearing in
Pittsburgh on that date, and the case was then listed for disposition, by trial or
the entry of a guilty plea, on December 16.
I6 think that the ends of justice will be served by taking this action, and those ends
outweigh the best interests of the public and the defendant in a speedy trial; and the
reason is that this gives the government an opportunity to get more information
concerning the drug trade. It gives the defendant an opportunity to furnish more
information. This is not only to the benefit of the defendant, but might benefit the
government, and, therefore, we will grant the motion.
7
At trial, the prosecution introduced evidence that the defendant had arranged to
meet an informant for the purpose of selling him heroin and that this meeting
had occurred within a short distance of a playground where children were
playing. The prosecution's evidence also showed that at this meeting the
informant had given the defendant $200 and that the defendant had instructed a
young man or boy to hand over a package of heroin to the informant. The tape
recording of the conversation between the defendant and the informant revealed
that the defendant had introduced the young man or boy as his nephew Jason,
and the prosecution introduced evidence that the defendant's fiancee had a
nephew named Jason who was 16 years old at the time of the offense.
The defendant testified and admitted that he had participated in the transaction
and that it had occurred within 1000 feet of a playground. He insisted, however,
that his accomplice was not his nephew Jason but a different person, who was
18 years old at the time of the offense. The jury found the defendant guilty on
counts one and two but not guilty on count three. After denying reconsideration
of the defendant's motion to dismiss the indictment under the Speedy Trial Act,
the district court sentenced the defendant to 41 months' imprisonment. This
appeal followed.
II.
10
The defendant first argues that he was not brought to trial within 70 days from
his initial appearance, as required by the Speedy Trial Act, 18 U.S.C. Sec.
3161(c)(1). The defendant contends that the district court's contrary holding
was incorrect primarily because (a) the district court erroneously excluded the
period from October 6, 1992, when the defendant's attorney moved for an
extension of time to file pretrial motions, until October 26, 1992, when those
motions were due, and (b) the district court incorrectly excluded the period of
delay resulting from the continuance that was sought by the defense for the
purpose of pursuing plea negotiations. As previously noted, the district court
excluded both of these periods under 18 U.S.C. Sec. 3161(h)(8)(A), which
requires the exclusion of
11 period of delay resulting from a continuance granted by any judge on his own
[a]ny
motion or at the request of the defendant or his counsel or at the request of the
attorney for the Government 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. No such period of delay
resulting from a continuance granted by the court in accordance with this paragraph
shall be excludable under this subsection unless the court sets forth, in the record of
the case, either orally or in writing, its reasons for finding that the ends of justice
served by the granting of such continuance outweigh the best interests of the public
and the defendant in a speedy trial.
12
The defendant's arguments are disturbing because he would have us order the
dismissal of his indictment based on continuances that his own attorney sought.
As we warned in United States v. Lattany, 982 F.2d 866, 883 (3d Cir.1992),
cert. denied, --- U.S. ----, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993), "[d]efendants
cannot be wholly free to abuse the system by requesting (h)(8) continuances
and then argue that their convictions should be vacated because the
continuances they acquiesced in were granted." See also, e.g., United States v.
Culp, 7 F.3d 613, 617 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2108,
128 L.Ed.2d 668 (1994); United States v. Kucik, 909 F.2d 206, 210-11 (7th
Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 791, 112 L.Ed.2d 853 (1991).
Rejection of the defendant's arguments might be justified on this ground alone,
but in any event a straightforward application of the provisions of the Speedy
Trial Act leads to the same conclusion.
13
A. 1. We turn first to the exclusion of the period from October 6, 1992, when
the district court granted the defense motion for an extension of time to file
pretrial motions, until October 26, 1992, when those motions were due. The
defendant contends that this period could not properly be excluded under 18
U.S.C. Sec. 3161(h)(8)(A) because the district court did not comply with the
procedural requirement that it "set[ ] forth, in the record of the case, either
orally or in writing, its reasons for finding that the ends of justice served by the
granting of [the] continuance outweigh[ed] the best interests of the public and
the defendant in a speedy trial." 18 U.S.C. Sec. 3161(h)(8)(A). We do not
agree.
14
In granting the extension, the court stated that it "[found] that the additional
period [was] necessary to enable counsel for the defendant adequately to
investigate and prepare pretrial motions." A9. Moreover, in denying the
defendant's motion to reconsider his motion for dismissal of the indictment, the
district court elaborated that defense counsel "needed time to decide what to do,
to examine the tape recording for example, or to investigate the birthdate of the
alleged minor and perhaps try to suppress both." A5. We have held that the
statement of reasons required by 18 U.S.C. Sec. 3161(h)(8)(A) need not be
placed on the record at the time when the continuance is granted. United States
v. Brooks, 697 F.2d 517, 522 (3d Cir.1982), cert. denied, 460 U.S. 1073, 103
S.Ct. 1531, 75 L.Ed.2d 952 (1983). See also United States v. Lattany, 982 F.2d
at 877; United States v. Brenna, 878 F.2d 117, 122 (3d Cir.1989); United States
v. Rivera Construction Co., 863 F.2d 293, 297 (3d Cir.1988). Consequently,
the explanation provided by the district court in denying reconsideration may
also be properly considered. Viewing the order granting the continuance and
the order denying reconsideration together, we are convinced that the district
court provided a statement of reasons sufficient to satisfy 18 U.S.C. Sec.
3161(h)(8)(A).
15
While acknowledging our prior holdings that the requisite statement of reasons
need not be made when the continuance is granted, the defendant contends that
the explanation given by the district court in denying reconsideration cannot
properly be taken into account under 18 U.S.C. Sec. 3161(h)(8)(A) because this
explanation may not correspond with the actual reasons for granting the
continuance. See Appellant's Br. at 29. However, we see no factual support for
this argument in the record. In granting the continuance, the court expressly
relied on 18 U.S.C. Sec. 3161(h)(8) and stated that defense counsel needed
more time to investigate and prepare pretrial motions. In denying
reconsideration, the court mentioned some of the avenues of investigation that
defense counsel might have wished to pursue. Thus, the reason for the finding-that defense counsel's need to explore possible pretrial motions outweighed the
countervailing speedy trial interests--remained the same throughout.
16
2. The defendant next suggests that, even if the district court made the finding
required by 18 U.S.C. Sec. 3161(h)(8)(A), that finding was wrong because
defense counsel's need for extra time to work on possible pretrial motions did
not outweigh the interests that would have been served by a speedier trial.
Characterizing this case as one involving a "non-complex, single drug
transaction," Appellant's Br. at 29, the defendant suggests that his attorney
should have been able to investigate and prepare any pretrial motions without
the need for an extension. We reject this argument as well.
17
18
19
(iv) Whether the failure to grant such a continuance in a case which, taken as a
whole, is not so unusual or so complex as to fall within clause (ii), would deny
the defendant reasonable time to obtain counsel, would unreasonably deny the
defendant or the Government continuity of counsel, or would deny counsel for
the defendant or the attorney for the Government the reasonable time necessary
for effective preparation, taking into account the exercise of due diligence.
20
21
Second, we see no basis for reversing the district court's conclusion that such a
continuance was appropriate in this case. "Our inquiry is limited to the question
whether the district court abused its discretion in granting this continuance,"
Brooks, 697 F.2d at 522, and we hold that it did not.
22
3. The defendant's final argument regarding the exclusion of the period covered
by the extension of time for the preparation of pretrial motions is based on Rule
12.1(B) of the Local Rules of the United States District Court for the Western
District of Pennsylvania. 5 The defendant argues that the order granting defense
counsel's motion for an extension was "void ab initio " because the motion was
not filed within ten days after arraignment, as required by this local rule. We do
not accept this argument. First, the defendant cites no authority for the
proposition that a motion filed in violation of a local rule is void ab initio for
Speedy Trial Act purposes, and we are aware of no such authority. Second, it
does not appear that the local rule was violated. As the district court noted in
denying reconsideration, the rule provides that "the court, in its discretion for
good cause shown, may permit a motion to be made and heard at a later time."
By entertaining and granting the extension request, the district court appears to
have implicitly granted an extension of the time period specified in the local
rule.
23
We therefore hold that the district court was correct in excluding, for Speedy
Trial purposes, the period from the granting of defense counsel's request for an
extension of time to file pretrial motions until that extension expired.
24
B. We next consider the defendant's argument that the district court erroneously
excluded the period covered by his attorney's request for a continuance so that
plea negotiations could be pursued. The defendant seems to suggest that 18
U.S.C. Sec. 3161(h)(8) cannot apply to a continuance granted for this purpose,
but we do not agree. Nothing in the language of 18 U.S.C. Sec. 3161(h)(8)
suggests that an "ends of justice" continuance may not be granted for this
purpose.6 Instead, the statutory language refers broadly to "[a]ny period of
delay resulting from a continuance granted" to serve "the ends of justice." 18
U.S.C. Sec. 3161(h)(8)(A). In current federal practice, plea negotiations play a
vital role. We therefore see no reason why an "ends of justice" continuance may
not be granted in appropriate circumstances to permit plea negotiations to
continue.7 See United States v. Williams, 12 F.3d 452, 460 (5th Cir.1994). Cf.
United States v. Montoya, 827 F.2d 143, 150 (7th Cir.1987) (delay caused by
plea bargaining excluded under 18 U.S.C. Sec. 3161(h)(1)(D)).
25
III.
26
The defendant next contends that the district court committed several errors in
calculating his sentence.
27
29
(b) If the defendant qualifies for a decrease under subsection (a), the offense
level determined prior to the operation of subsection (a) is level 16 or greater,
and the defendant has assisted authorities in the investigation or prosecution of
his own misconduct by taking one or more of the following steps:
30
31
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial and permitting the court
to allocate its resources efficiently.
I34don't think that you would be entitled to that [the third point] unless he had
accepted responsibility for all of the counts.
Supp.App. 7. The court then added:
35 didn't accept responsibility for all of his counts, and he has been given a
[H]e
reduction of two points for accepting responsibility for the first two counts. That's
the counts he was convicted of. But he went to trial. Fortunately he won, but I think
[the probation officer] is right in giving him only a two-point reduction.
36
Id. at 8. Thus, it appears that the district court's denial of the additional oneoffense-level decrease was based at least in part on the defendant's refusal to
plead guilty to count III, on which he was acquitted.
37
The defendant argues that the district court's ruling was inconsistent with
United States v. Rodriguez, 975 F.2d 999 (3d Cir.1992). In that case, two
defendants, Rodriguez and Anderson, were willing to plead guilty to some of
the charges against them but not to others, and they therefore went to trial.
Rodriguez refused to plead guilty to a firearms possession count on which he
was acquitted at trial. Anderson was willing to plead guilty to a charge of
conspiring to distribute cocaine, but he refused to admit that the object of the
conspiracy was to distribute more than three kilograms of cocaine, and on
appeal our court agreed with his position concerning the amount of cocaine
involved. At the sentencing stage, Rodriguez and Anderson argued that they
were entitled to an offense-level decrease under U.S.S.G. Sec. 3E1.1 even
though they had not pled guilty, but the district court denied that decrease.
38
39
Our holding in Rodriguez essentially reiterates the rules set out in U.S.S.G. Sec.
3E1.1, Application Note 1. That Note states that it is appropriate for a court to
consider a defendant's "truthfully admitting the conduct comprising the
offense(s) of conviction, and truthfully or not falsely denying any additional
relevant conduct for which the defendant is accountable under [U.S.S.G.] Sec.
1B1.3 (Relevant Conduct)." This Note then adds:
Applying these rules here, we believe that the defendant's sentence must be
vacated and that this case must be remanded for resentencing. Based on the
statements made by the district court, it appears that the court may have
incorrectly considered the defendant's refusal to admit conduct not comprising
part of the offenses of conviction. On appeal, the government has propounded
other bases on which an offense-level reduction under U.S.S.G. Sec. 3E1.1
could, in its view, be denied. We will not address these grounds here but will
B. The defendant argues that the district court erred in awarding one criminal
history point under U.S.S.G. Sec. 4A1.1(c) for his prior sentence for the
summary offense of harassment. Under U.S.S.G. Sec. 4A1.2(c), prior sentences
for specified offenses, "by whatever name they are known," are generally not
counted. One of these specified offenses is "disorderly conduct," and the
defendant argues that the offense of "harassment" under Pennsylvania law is
"equivalent" to "disorderly conduct" and therefore should not be counted.
43
We need not and consequently do not reach this question. The district court
calculated that the defendant had 11 criminal history points and therefore
placed him in criminal history category V. Even if we accepted the defendant's
argument concerning his sentence for harassment, the defendant would still
have 10 criminal history points; he would thus remain in criminal history
category V, and his sentence would be unaffected.9
44
C. The defendant's final argument concerning his sentence is that the district
court erred in finding that he was a "supervisor" of criminal activity under
U.S.S.G. Sec. 3B1.1(c) and in thus increasing his offense level by two levels.
We review the district court's finding for clear error. United States v. Belletiere,
971 F.2d 961, 969 (3d Cir.1992); United States v. Phillips, 959 F.2d 1187, 1191
(3d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 497, 121 L.Ed.2d 434 (1992).
Applying that standard, we reject the defendant's argument.
45
The evidence at trial showed that the defendant directed a young man or a boy,
whom the defendant identified as his cousin, to deliver a package of heroin to
an informant. The evidence also established that, after this delivery was made,
the defendant criticized the young man or boy for being too open in his manner
of handing over the package. This evidence, although not overwhelming, was
sufficient to support the district court's finding.
IV.
46
For the reasons explained above, we affirm the defendant's conviction, but we
vacate his sentence and remand for resentencing in accordance with this
opinion.
The Honorable Anita B. Brody, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation
Since the district court's intent appears to have been to exclude the time from
the granting of the extension until the date when pretrial motions were actually
due, we interpret the exclusion to extend until October 26. Accordingly, once
this time was excluded, the Speedy Trial Act deadline for the commencement
of the trial became December 22, 1992
We interpret the district court's order as excluding the 30 days beginning with
the previous deadline for the commencement of the trial
See United States v. Dota, 33 F.3d 1179 (9th Cir.1994) ("An ends-of-justice
continuance may be justified on grounds that one side needs more time to
prepare for trial[,] 18 U.S.C. Sec. 3161(h)(8)(b)(iv)[, even though a case is] not
'complex' as that term is defined in Sec. 3161(h)(8)(B)(ii)...."); United States v.
Monroe, 833 F.2d 95 (6th Cir.1987)
We have considered all of the defendant's Speedy Trial Act arguments that are
not directly addressed in the body of this opinion, and we find those arguments
to lack merit
By instructing that sentencing courts should not count a prior sentence for
"disorderly conduct" "by whatever name [it is] known" (U.S.S.G. Sec. 4A1.2(c)
(1)), the Sentencing Commission appears to mean that sentencing courts should
determine whether a particular offense is in essence the same as the offense of
disorderly conduct as that offense is generally understood. This instruction,
however, is not easy to follow because "disorderly conduct" is "[a] term of
loose and indefinite meaning (except when defined by statutes)...." Black's Law
Dictionary 469 (6th ed. 1990). See also IV C. Torcia, Wharton's Criminal Law
Sec. 523 at 177-78 (14th ed. 1981) ("The offense varies significantly from state
to state, and a uniform and consistent pattern is difficult to discern."). It would
therefore be helpful if the Commission clarified what it means by the essence
of the offense of disorderly conduct