Petition — Ferrante v. United States

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83-% 3 ju 15 1983

STEVAS,

$+ AccAANYo™

CLERK

BOR ch caitrass

IN THE

Supreme Court of the United States

October Term, 1982

PAUL L. FERRANTE ana

RANDY JAMES MYERS

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Mark J. KADISH

ROsALYN 8. KaDISH

KADISH AND KADISH, P.C.

955 West Wesley Road, N.W.

Atlanta, Georgia 30327

(404) 351-6200

II.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE INDICTMENT AGAINST

PETITIONERS SHOULD HAVE BEEN DIS-

MISSED BECAUSE OF FAILURE TO COMPLY

WITH APPLICABLE PROVISIONS OF THE

SPEEDY TRIAL ACT, 18 UNITED STATES

CODE, SECTION 3161, ET. SEQ., IN THAT

TRIAL OF THE CASE DID NOT COMMENCE

WITHIN THE ALLOWABLE STATUTORY

TIME.

WHETHER A SINGLE DEFENSE ATTOR-

NEY’S REPRESENTATION OF ALL FOUR CO-

DEFENDANTS AT TRIAL, WHERE DIVER-

GENT DEFENSES WERE PROPOUNDED,

DENIED PETITIONERS A FUNDAMENTALLY

FAIR TRIAL AND THEIR RIGHT TO EFFEC-

TIVE ASSISTANCE OF COUNSEL AS GUAR-

ANTEED BY THE SIXTH AMENDMENT.

TABLE OF CONTENTS

Page

Questions Presented for Review...... i

eg on ss cles sce c cence eccs 2

ee ole cance aes vcccssccesces 2

Constitutional and Statutory Provisions

OE 2

EE 4

Reasons for Granting the Writ.................... 10

I. The opinion of the Court of Appeals below

creates conflicts in the decisions of the Court of

Appeals; this case raises important federal

questions which have not been, but should be,

II.

Review by this Court of provisions of the

Speedy Trial Act, 18 United States Code,

Section 3161, et. seg. is necessary to explicate

the computation of time limitations contem-

plated by the Act and to clarify the applica-

tion of appropriate sanctions for

Coca s cel etc eeseves

The decision of the Court of Appeals below is in

conflict with applicable decisions and statutory

authority that is binding precedent upon that

NES

A. The Court of Appeals failed to apply the

principles of United States v. Garcia,

517 F.2d 272 (Sth Cir. 1975) and the Court

of Appeals decision is contrary to the

mandate of Federal Rule of Criminal

Ce cae wecacccece

Tee TT TT eee cee ccccces

TABLE OF AUTHORITIES

Page

Cases:

Baty v. Balkom, 661 F.2d 391 (5th Cir. 1981)... ..17, 19

United States v. Alvarez, 696 F.2d 1307

Cite Cir. 2968). So: Bear ree 17

lnited States v. Benavidez, 664 F.2d 1255 (5th Cir.

1982), cert. denied __ U.S. ____, 102 S(t. 2963.

73 L.Ed.2d 1352........ 17

United States v. Bufalino, 683 F.2d 639 (2nd

a | Ae PR ee ee ee 24% 2 er 12

United States v. DeLongchamps, 679 F.2d 217

Sth Cor, 1988). oo oe, es 7, 14

United States v. Garcia, 517 F.2d 272

(Sem Car. 1978) 5 ~ 9, 14, 15. 16, 18

United States v. Mers. 701 F.2d 1321 (11th Cir.

|). | RE Zz is

United States v. Stafford, 697 F.2d 1368 (11th Ch.

3) SSeS RA en Pkg 9) . bene

Constitutional Provisions and Other Authority:

United States Constitution, Sixth Amendment..2. 16). 18

18 United States Code, Section 2 pou eens 4

18 United States Code, Section 3161.... 3, 4, 10, 11, 12

21 United States Code, Section S41(a)(1)........... 4

21 United States Code, Section S46. 4

28 United States Code, Section 1254. 2

Federal Rules of Criminal Procedure.

Rule 44(¢). 3, 15, 16, 17

Advisory Committee Note, 77 F.R.D. 507 (197s) 16

Pes ce

IN THE

Supreme Court of the United States

October Term, 1982

PAUL L. FERRANTE and

RANDY JAMES MYERS,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

To the Honorable, the Chief Justice of the United States,

and the Associate Justices of the Supreme Court of the

United States:

The Petitioners, PAUL L. FERRANTE and RANDY

JAMES MYERS, Appellants in the court below, respect-

fully pray that a Writ of Certiorari issue to review the

judgment of the United Sta:es Court of Appeals for the

Eleventh Circuit entered in the above case on March 21,

1983. That decision affirmed a judgment of conviction by

a jury in the United States District Court for the North-

ern District of Georgia at Atlanta on August 10, 1981.

]

OPINIONS BELOW :

The opinion of the United States Court of Appeals for

the Eleventh Circuit, affirming the judgment of convic-

tion, is reported at 701 F.2d 1321 (11th Cir. 1983) and

is set forth as Appendix *‘A’’. A subsequent Motion to

Clarify the Record was granted to reflect that the Speedy

Trial and argument in support thereof was made appli-

cable to Petitioners Ferrante and Myers under a previous

motion to adopt.

JURISDICTION

The judgment of the United States Court of Appeals

for the Eleventh Circuit was entered on March 21, 1983.

A timely Petition for Rehearing with Suggestion for Re-

hearing En Bane was denied by that court on Mav 16,

1983. This petition for certiorari is being timely mailed

for filing within sixty days of that date. pursuant to Rule

28.2 of this Court. The jurisdiction of the Supreme Court

is invoked pursuant to 28 United States Code. Section

1254/1).

CONSTITUTIONAL AND STATLTORY

PROVISIONS INVOLVED

United States Constitution, Amendment VI (1791):

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impar-

tial jury of the State and district wherein the crime

shall have been committed, which district shall have

been previously ascertained by law, and to be in-

formed of the nature and cause of the accusation; to

be confronted with the witnesses against him: to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defense.

' Petitioners were two of four co-defendants who appealed to the

Court of Appeals. The others were Herman Mers and Lester Mers.

The case on appeal is styled L’nited States v. Herman Mers, et al.

United States Code Title 1S.

Federal Rules of Criminal Procedure, Rule 44(c):

Right to and Assignment of Counsel.

e) Joint representation. Whenever two or more

defendants have been jointly charged pursuant to

Rule Sb) or have been joined for trial pursuant to

Rule 13. and ure represented by the same retained

or assigned counsel or by retained or assigned coun-

se] who are associated in the practice of law, the court

shall promptly inquire with respect to such joint rep-

resentation and shall personally advise each defen-

dant of his right to the effective assistance of counsel,

including separate representation. Unless it appears

that there is good cause to believe no conflict of in-

terest is likely to arise, the court shall take such

meusures us may be appropriate to protect each

defendant's right to counsel,

United States Code Title 18. Chapter 208 —Speedy Trial

$3161. Time limits and exclusions:

el) In any ease in which a plea of not guilty is

entered, the trial of « defendant charged in an in-

formation or indictment with the commission of an

offense shall commence within seventy days from the

filing date and meking public) of the information or

indictment. or from the date the defendant has ap-

peared before a judicial officer of the court in which

such charge ix pending. whichever date last occurs.

If « defendant consents in writing to be tried before

2 Magistrate on a complaint. the trial shall commence

within seventy davs from the date of such consent.

= oa =

h) The following period of delay resulting from other

proceedings concerning the defendant, including but

not limited to—

1) Any period of delay resulting from other pro-

ceedings concerning the defendant, including but

not limited to—

x «x =

(F) delay resulting from any pretrial motion,

from the filing of the motion through the con-

clusion of the hearing on, or other prompt dis-

position of, such motion:

= = =

(J) delay reasonably attributable to any period,

not to exceed thirty days, during which any

proceeding concerning thie defendant is actually

under advisement by the court.

STATEMENT OF THE CASE

On February 18, 1981, Petitioners were charged in a

two count indictment with conspiracy to possess with

intent to distribute marijuana in violation of Title 2].

U.S.C. §841(a)(1) and $846, and with aiding and abetting

the distribution of marijuana in violation of Title 21

U.S.C., §841(a)(1) and Title 18 U.S.C. §2. Also named in

both counts of the indictment were Herman Mers and

Lester Mers. On March 2, 1981, Petitioners entered pleas

of not guilty to the indictment.

On August 5, 1981, a jury was empanelled to try Peti-

tioners along with co-defendants Herman and Lester

Mers. All four co-defendants were represented by the

same trial counsel, Mr. Bruce Pashley, Esquire. On

August 10, 1981, the jury returned a verdict finding each

defendant guilty of both counts. Petitioner Myers was

sentenced to three years of incarceration on each Count

With sentences to run concur.ently. Additionally, a

special parole term of three years was imposed as to

Count Two. Petitioner Ferrante was sentenced to five

years on each Count with the sentences to run concurrent-

ly. In addition, he was sentenced to a special parole term

of five years as to Count Two.

Thereafter, Petitioners retained new counsel, who, on

October 14, 1981, filed a Motion for New Trial and for

Judgment of Acquittal. On November 25, 1981, an eviden-

tiary hearing on the post-trial motions was conducted by

the trial Court. The Court denied the Motions for New

Trial and Judgment of Acquittal.

Appeals were taken to the United States Court of

Appeals for the Eleventh Circuit, and on March 21, 1983.

that court affirmed the judgment of conviction.

On the evening of Petitioners’ arrest. Mr. Bruce Pash-

lev. Esquire, entered into an attorney client relationship

with all four defendants in the instant case. (1st Supp.

V.2:28): Mr. Pashley’s law partner, Mr. Scott Mers, is the

son of defendant Herman Mers, and the brother of defen-

dant Lester Mers. (1st Supp. V.2:29) Because of this re-

lationship, Mr. Pashley’s representation of the Merses

was on a pro bono basis. (1st Supp. V.2:29) It was impli-

citly understood between Mr. Pashley and Herman and

Lester Mers that Mr. Pashley would represent Petitioners

Ferrante and Myers in the trial of the case. (1st Supp.

V.2:32) Initially, Mr. Pashley suggested to Petitioners

Ferrante and Myers that he would have no problem

representing them through the discovery phases of the

case, but that they subsequently would probably want

their own lawyer. (lst Supp. V.2:33) The representation,

? Citations to the Record on Appeal refer to the volume number,

followed by the page number. E.g. ‘(V.2:110)"’ References to the

first and second Supplemei:tal Record on Appeal appear as ‘‘(lst

Supp. V.2:35)”.

however. ultimately continued through the trial of the

ease. Petitioner Myers was unable to pay legal fees and

Mr. Pashley received no fee from him for his representa-

tion. (Ist Supp. V.2:34) Petitioner Ferrante paid a

nominal $1,050.00 for Mr. Pashley's representation; this

payment was made to Mr. Scott Mers. (1st Supp. V.2:31)

On August 5, 1981, the four day trial of the case began

with Mr. Pashley representing all four co-defendants.

Toward the end of the second day of trial the governn ont

beeame aware that Mr. Pashley intended to raise the

defense of entrapment on behalf of co-defendants Hern an

and Lester Mers. (V.3:150) At that point, the Assiscant

United States Attorney Wisebram stated:

MR. WISEBRAM: Your Honor, I fee! Constrained

at this point, if I may, to ask the Court once again to

ask these defendants if thev “are Willing to Walve ony

conflict of interest. Iam sure as Mr. Pashley knows

ithe informant] never had any contact with any of

the defendants other than Mr. Mers, and as such if

he is claiming entrapment through ithe informant}

just for Mr. Mers, I personzlly feel it may be a poten-

tial for some sort of conflict. (V.3:151)

The Court directed a response from Mr. Pashley:

MR. PASHLEY:... we have a situation where we do

have an entrapment defense as to two defendants. |

perhaps should make that very clear. It is with

respect to two defendants but that doesn’t raise a

conflict of interest with respect to me in terms of the

other two defendants. It wouldn't be available to

them under any circumstances. V.3:151-152)

Thereafter, Mr. Wisebram stated:

MR. WISEBRAM: Your Honor, I would beg the

Court's indulgence on that point. Under Garcia it

specifically mandated the Court should question the de-

fendants almost to the degree of a Rule 11 type question-

‘

ing, and I would certainly appreciate the Court doing

so, to have them make an intelligent and knowing waiver

in open court to any potential conflict they may have.

(V.3:153) (Emphasis added)

The Court, in the presence of all four defendants, noted

the conflict of interest arising from the assertion of an

entrapment defense:

THE COURT: Well, I suppose what entrapment

says to the jury is I did something wrong but it

Wasn't my fault. It was the government's fault and

to that extent one might argue it runs counter to the

idea of maintaining the position you didn’t do any-

thing wrong. Do vou see what I mean? (V.3:153)

Thereafter, a ten minute recess was taken so that Mr.

Pashley could confer with Petitioners Ferrante and

Myers. Until that point in the trial, neither Petitioner

Ferrante nor Myers knew that entrapment would be

raised as a defense. (1st Supp. V.2:50, 61) It was Peti-

tioner lerrante’s testimony at the post-trial hearing on

the Motion for New Trial that during the ten minute

recess, Mr. Pashley advised him that there was no con-

flict of interest as far as he and Petitioner Myers were

concerned, (Ist Supp. V.2:62) At the conclusion of the ten

minutes recess, however, neither Petitioner Myers nor

Petitioner Ferrante understood what constituted u de-

fense of entrapment, or what constituted a conflict of

interest. (Ist Supp. V.2:51, 62, 63)

At the conclusion of the recess, Mr. Pashley advised the

Court that he had discussed the matter with his clients

and invited the Court to proceed with the inquiry. (V.3:

154) The Court proceeded to briefly question both Peti-

tioners Ferrante and Myers. Petitioner Myers was asked

if he had received an adequate explanation of his position

“relative to the defense of entrapment” from his counsel,

Mr. Pashley. The defendant responded in the affirmative.

(V.3:154) The Court then asked if Mr. Myers was sutis-

fied with the defense of entrapment being raised on behalf

of the defendants Mers, He responded:

MR. MYERS: I am not sure I understand what vou

are saving. (V.3:154)

The Court then directed a question to Mr. Pashley in an

attempt to establish the breadth of the entrapment de-

fense. Mr. Pashley responded:

MR. PASHLEY: .. . The entrapment issue is ex-

tremely important with regard to Messrs. Mers. With

regard to Mr. Ferrante and Mr. Myers, ou position

is very simply there is no conspiracy. They never had

possession of anything, and what. in fact, they were

doing was a favor that had nothing to do with any

illegality. [| mean they are just plain not guilty of

anything | guess is the easiest way to put it plainly.

V.3:155

The Court then asked Mr. Mvers:

THE COURT: .... Let me ask vou this, Mr. Mvers:

to the extent there is any conflict between vour posi-

tion and that of Mr. Lester Mers and Mr. Herman

Mers, do vou waive vour rights in connection with

any such conflict?

MR. MYER: I don't see anv conflict, no, I don't.

THE COURT: If there is a conflict, do vou consent

to Mr. Pashley representing vou as well as Lester and

Herman Mers?

MR. MYERs: At this time I do. (V.3:155)

An almost identical line of inquiry was made of Petitioner

Ferrante. (V.3:156) This was the only inquiry conducted

by the District Court during the course of the trial. In its

November 10, 1981 Order denying Appellants’ Motion for

New Trial, the District Court made as a finding of fact:

With regard to defendants’ Motion for a new trial,

defendants are correct that the inquiry undertaken

by the Court at the request of the government and

despite defense counsel's position to the contrary, see

Record at 153, with regard to trial counsel's poten-

tial conflict of interest, did not meet the requirements

of United States v. Garcia, 517 F.2d 272, 278 (Sth Cir.

1975). (Ist Supp. V.1:144) (Emphasis added)

The evidence adduced at the hearing on the Motion

for New Trial further demonstrated that during a week-

end recess in the trial proceedings, Mr. Ferrante discussed

the trial of his esse with a friend and member of the

Georgia Bar who told Petitioner Ferrante that in his

opinion, one lawyer: could not effectively represent all

four co-defendants. especially now that the entrapment

defense was raised as to defendants Mers. As a result of

this discussion, Ferrante approached Mr. Pashley early

Monday morning and advised him of his discussion with

the aitorney and further told Myr. Pashley that he did

not think he was getting adequate representation in that

he believed there was a conflict of interest. He now

to ratse the conte: of interest issue before ihe

stot1ed

Cou. (ist Supp. V.2:63-ti4) Petitioner Mvers was also

present and stated that he wished to raise the issue before

the Court.’ (Ist Supp. V.2:53-54) Mr. Pashley advised

both co-defendants that at this late stage in the proceed-

ings. he would advise his clients not to raise the conflict

of interest issue as it would only sueceed in irritating the

judge. (1st Supp. V.2:54, 65)

Later in the afternoon of August 10, 1981, the jury re-

turned a verdict finding Appellants guilty as charged.

The discussion between Mr. Pashley and Appellants Ferrante

und Myers occurred on Monday morning, August 10, 1981, just prior

to closing argument.

REASONS FOR GRANTING THE WRIT

1. The opinion of the Court of Appeals below creates

conflicts in the decisions of the Court of Appeals: this

case raises important federal questions which have

not been, but should be, settled by this Court.

A. Review by this Court of provisions of the Speedy

Trial Act, 18 United States Code, Section 3161.

et seq. is necessary to explicate the computation ot

time limitations contemplated by the Act and to

clarify the application of appropriate sanctions for

noncompliance.

Pursuant to the Speedy Trial Act, Title 18, U.S.C.,

§3161 et seq., a defendant’s trial must commence within

70 days of his arrest or indictment, whichever occurs last.

The accounting of time under the Act is subject to ex-

cludable delay attributable to the defendant as well as

other particularized delays as set out in Section 31610)

(1) of the Act.

In the case at bar the Petitioners were wriested on Fel-

ruary 6, 1981 and were indicted on February 15, 1481;

the speedy trial time under the Act, therefore, began to

run on February 18, 1981. Speedy Trial Act, $3161/e)(1).

On March 13, 1981, numerous motions were filed on

behalf of the Defendants before the Magistrate. Since

one of the motions required an evidentiary hearing, said

hearing was scheduled. After several postponements of

said hearing, the Government informed the Magistrate

that it would not seek to introduce the evidence which

the Defendants hoped to suppress at said hearing and

therefore the hearing was not necessary. On this date,

April 22, 1981, after being informed that the previously

scheduled hearing was unnecessary the Magistrate orally

ruled on all of the Defendants’ motions.‘

On May 18, 1981, the Magistrate filed his Report and

Zecommendation which stated in writing his previous

rulings of April 22, 1981. No objections were filed to said

Report and Recommendation and the Distriet Court

adopied said Report on August 3, 1981. Also on that

date, defense counsel filed a Motion to Dismiss the In-

dictment based upon a violation of the Speedy Trial Act.

Thai Motion was denied and Petitioners were brought to

tris] on August 5, 1981.

In evaluating the various proceedings in the instant

case end the excludable time under the Speedy Trial Act

for said proceedings. the panel in the case at bar deter-

mined that the forty-one (41) days from March 13 to

April 22. were excludable for motions practice before the

Magistrate pursuant to $3161(h)(1)(F). The Court fur-

ther determined that the twenty-six (26) days from April

22 to May 18, were excludable pursuant to §3161(h)(1)(J)

as motions which were under advisement by the Magis-

trate. Finally, the panel concluded that the Distriet Court

had thirty (30) days from June 2 to July 1. of excludable

time during which the Magistrate’s Report and Recom-

mendation was under advisement by the District Court

under $31610h)(1)(J) at 2145.

The panel's decision to exclude a total of fifty-six (56)

days pursuant to the “under advisement” section of $3161

h)(1)\J) after the Magistrate had ruled on all motions is

absolutely irreconcilable with the language of the stat-

ute, the Judicial Guidelines to the statute, and prior

decisions of the Eleventh Circuit Court of Appeals.

‘ ‘The only motion not decided on April 22, by the Magistrate was

one which concerned a statement made by the Defendant with said

motion being deferred to the trial court for a Jackson v. Denno hearing.

Section 3161(h)(1)(J) permits the exclusion of time

under the Speedy Trial Act for any delay reasonably at-

tributable to any period, not to exceed thirty (30) days,

during which any proceeding concerning the defendant is

actually under advisement by the court. (Emphasis added).

In speaking to this section the Judicial Guidelines issued

by the Administrative Office of the United States Courts

stated that:

J) Proceedings Under Advisement

Starting date. The starting date is the date fol-

lowing the date on which the court has received

everything it expects from the parties, examining

physicians, ete., before reaching a decision. It is

normally the date following the expiration of an

exclusion under subparagraph (A), (B), (F), or (G).

Ending Date.

The ending date is the earliest of (1) the date the

judge’s decision is filed, (2) the date the judge ren-

ders his decision orally in open court, or (3) the

expiration of the thirty (30) day maximum period.

Guidelines to the Administration of the Speedy

Trial Act of 1979, as amended 42-43 (1981). As

cited in United States v. Bufalino, 683 F.2d 639

(2nd Cir. 1982).

In the case at bar the Magistrate received the Defen-

dants’ motions on March 13, 1981. On April 22, 1981,

after learning that an evidentiary hearing would not be

needed on any of the motions, the Magistrate orally ruled

on all motions. Consequently, the time from March 13

to April 22, was excludable pursuant to $3161(h)(1)(F).

After April 22, there was nothing ‘‘under advisement’ by

the Magistrate and consequently any exclusion under

§3161(h)(1)(J) was improper. The case at bar represents

exactly that situation which the Judicial Guidelines re-

ferred to when the starting date of the ‘under advise-

ment” section begins following the expiration of an ex-

clusion under another subparagraph (in this case sub-

paragraph F). The ending date for said “under advise-

ment”’ section is ‘‘the date the judge renders his decision

orally in open court.”’ In this case that occurred on April

22, and consequently thereafter there was nothing “‘under

advisement” by the Magistrate.

This exact question, the interrelationship between sub-

paragraph (F) and (J) was resolved by another panel of

the Eleventh Circuit in the recent decision of United

States v. Stafford, 697 F.2d 1368 (11th Cir. 1983). The

holding of that panel was exactly inapposite to the ruling

rendered by the panel in the instant case. In Stofford the

panel stated:

The exclusion in (F) is granted in two situations

and applies differently depending on which situation

occurs. The first is when a pretrial motion requires

a hearing. If a hearing is held, F) by its terms ex-

cludes without qualification the entire period between

the filing of the motion and the conclusion of the

hearing. The second situation in I) applies to mo-

tions which result in ‘prompt disposition’. For these

motions, the period of exclusion begins at the filing

of the motion and ends at the point of its ‘prompt

disposition’. The inclusion of the promptness require-

ment was intended to provide a point at which time

will cease to be excluded, where motions are decided

on the papers filed without hearing. 697 at 1373.

In speaking to the relationship between F) and (J) the

Court in Stafford stated:

(F) apparently does not exclude time in a third sit-

uation—namely, where the motion requires no hear-

ing and its disposition is not prompt. In this situa-

tion, however, (J) permits an exclusion of up to

thirty (30) days from the time the motion is ‘actually

under advisement’ by the court. 697 at 1373.

In the case at bar the Magistrate ruled on all motions

on the papers filed without a hearing on April 22, 1981.

Said ruling was consistent with subparagraph (IF) and

constituted a “prompt disposition” of all motions under

subparagraph (F). In such a situation there was abso-

lutely nothing after April 22 which was “actually under

advisement” by the Magistrate. Consequently, subpara-

graph J) was neither necessary nor applicable. Stafford,

Supra,

In speuking to its interpretation of subsection (I) and

J) the Court in Stafford stated:

Our interpretation of (F) and (J) is consistent with

United States v. DeLongchamps, 679 F.2d 217-220

11th Cir. 1982), in which we held that no more than

thirty 30) days could be excluded for pretrial mo-

tions which did not require hearings. 697 at 1374.

In the case ut bar the panel concluded that after all

motions had been orally ruled upon it was proper to ex-

elude twenty-six (26) days pursuant to the “under ad-

visement™ section and an additional thirty (30) days pur-

suant to said section for the District Court. To permit a

fifty-six 56) day delay after all motions have been ruled

upon is entirely inconsistent with the Speedy Trial Act,

the Judicial Guidelines to said Act and most importantly

the previous decisions of the Eleventh Circuit in DeLong-

champs and Stafford,

II. The decision of the Court of Appeals below is in con-

flict with applicable decisions and statutory authority

that are binding precedent upon that Court.

A. The Court of Appeals failed to apply the princi-

ples of (United States v. Garcia, 517 F.2d 272 (5th

Cir. 1975) and the Court of Appeals decision is

contrary to the mandate of Federal Rule of Crimi-

nal Procedure 44(c).

Petitioners contend that because a single defense attor-

ney represented all four co-defendants at trial and diver-

gent defenses were propounded, they were denied a

fundamentally fair trial and their right to effective assist-

ance of counsel.

The Eleventh Cireuit Panel that rendered the instant

opinion unanimously found that:

_ neither the probing inquiry mandated by Tule

44(¢) nor thai required by Garcia was satisfied in this

ease, The distriet court did not specifically advise

defendants of their right to separate representation,

as required by Rule 44(¢). The district court judge

candidly admitted failing to comply with Garesa,

United States v, Mers, 701 F.2d 1321, 1326 (11th Cir.

1983).

The panel then coneluded that notwithstanding the

compounded error, reversal was not mandated unless the

multiple representation constituted an actual conflict of

interest. Petitioners respectfully submit that the prnel

decision was in confliet with Eleventh Circuit precedent

and in contravention to Rule 44(¢), Fecerel Rules of

Criminal Procedure.

In United States v. Garcia, 517 F.2d 272 (Sth Cir. 1975),

which is binding precedent upon the Eleventh Circuit,

the Court addressed the issue of a criminal defendant’s

right to retain counsel of his own choice even though the

trial court considered counsel to be disqualified because of

a conflict of interest. In holding that the defendants have

the privilege of waiving their constitutional right to con-

flict-free counsel, the Court instructed the Distriet Court

to hold a hearing on remand in order to ascertain whether

the defendants were knowingly and voluntarily waiving

their Sixth Amendment protections. The Garcia Court

recognized ‘the unchallenged importance of the need for

adequate representation during criminal proceedings.”

(At 277). The Court, however. did not require a showing

that an actual conflict existed. In the instant case, the

panel determined that the inquiry mandated by Gareia

Was not satisfied.

Rule 44(¢), promulgated by this Court and given legis-

lative embodiment by Congress is directory upon the

Courts, and provides that when a potential conflict of

interest arises, “the Court shall promptly inquire ... and

shall personally advise each defendant of his right to the

effective assistance of counsel.”’ In the case sub judice, the

panel concluded that the district court’s failure to inquire

constituted error under Rule 44(c). Petitioners respect-

fully submit that where the error is compounded because

of the trial court’s non-compliance with both statutory

mandates and Circuit precedent, and the double proce-

dural error rises to a constitutional deprivation, reversal

should be mandated.

The Panel opinion cites to the Advisory Committee

Note to Rule 44:¢) for the proposition that failure to

conduct a proper Rule 44(c) inquiry, standing alone,

would not require reversal. However, the Committee

Note continues:

as is currently the case, a reviewing court is more

likely to assume a confliet resulted from the joint

representation when no inquiry or an inadequate

inquiry was conducted.

Advisory Committee Note, 77 F.R.D. 507, 603 (1978).

In the instant case, the failure to conduct a Rule 44(c)

inquiry was compounded by the Gare7a violation. Clearly,

as the legislative intent demonstrates, it must be assumed

that a conflict resulted from My. Pashley’s joint repre-

SOntAtION,

Moreover, Petitioners contend that the Panel erron-

eously misapplied United States v. Benavidez, 664 F.2d

1255 (3th Cir. 1982), cert. denied, ___ U.S, _._, 102

S.Ct. 2963, 73 L.Ed.2d 1352: and United States v, Alvarez,

606 F.2d 1307 (11th Cir. 1983), in affirming their con-

vietions,

Alvarez, supra, & recent Eleventh Circuit case inter-

preting the Rule 44.¢) requirement, is distinguishable, In

Alvarez, two co-defendants were represented by the same

counsel, Alverez challenged the trial court's failure to

follow Rule 44.¢) and contended that a conflict was

present because the co-defendant testified at trial and

Alvarez did not. Alvarez did not challenge the testimony

of the coedefendant as in any way adverse to his defense,

but only alleged that he was prejudiced by the co-defen-

dant’s mere act of testifving. The Court determined that

that the fact that the co-defendant took the stand, does

Hot, without rrore, prove the existence of an actuel con-

tliet. La the instant case, Appellants challenge the multiple

representation of all four co-defendants by a single at-

torney who attempted to propound three divergent de-

fenses. Clearly, the error alleged in Alvarez is innocuous

colspared to problems that were apparent in the instant

try.

benardez, too, is inapplicable and moreover is not bind-

ing on the Circuit Court.

Petitioners nevertheles’ have demonstrated thay an

actual confliet of interest existed. Recently in Baty v,

Lalkom, 661 F.2d 391 (Sth Cir. 1981), the Court discussed

the standard to be applied in determining whether a con-

flict of interest situation would give rise toa Sixth An end-

ment violation:

For a conflict of interest to cause representation to

fail Sixth Amendment standards, this Cireuit requires

that the conflict be actual, not speculative. An actual

conflict exists if counsel's introduction of probative

evidence or plausible arguments that would s iqniticantly

henefit one defendant would damage the detense of

another defendant whom the same counsel is v presente

ing. At 395. (Emphasis added).

In the instant case, the defenses presented by My.

Pashley for the four co-defendants ran the whole gamut of

the defense spectrum, Herman Mers claimed that he was

guilty of the crime charged, but that he was a vietim of

entrapment by the government. Lester Mers, becatise he

had no contact with the government agent, did not have

the entrapment defense available to him. Nevertheless,

he endeavored to claim entrapment under the theory that

since his father was entrapped, as his son he had no choice

but to help his father. As to Appellants Ferrante sud

Myers, Mr. Pashley advanced the urgunent that il CV

were simply "Johnny come latelys” who plas od ro per

whatsoever in the conspiracy, notwithstanding the entrap.

ment of Herman Mers. In this faetual context. it was

impossible for Myr, Pashley to credibly plead the cuses of

his four clients,

Mr. Pashley did not raise the entrapment defense as

to co-defendants Herman and Lester Mers until half way

through the trial. Neither the government nor Petitioners

were aware that this defense would be raised until it be-

came apparent at trial. Upon learning this, the govern-

ment immediately requested that the court make the

Garcia inquiry. Obviously, if Herman and Lester Mers

claimed that they were guilty of the crime, but entrapped

by government agents, Petitioners’ defense that they had

no knowledge of the alleged marijuana conspiracy beeame

significantly less plausible in the eves of the jury. The

government recognized this conflict inherent in the di-

vergent defenses when it again requested that the court

obtnin a waiver from the co-defendants. The instant case

is Clourly one where the arguments propounded by Her-

mano and Lester Mers significantly damaged Appellants’

defense, Thus, the standard set forth in Baty, supra, is

applicable here. Mar, Pashley’s effectiveness was impaired

by undertaking representation of all four co-defendants,

but in addition each of the defendant's defense and cred-

ibility was diluted in the eves of the jury. Had separate

counsel propounded the separate and incompatible de-

fenses, certainly the defendants would have been in a

much better position to persuade the jury that their tes-

timony Was meaningful and truthful,

This Court should grant certiorari in this case both for

the purpose of resolving conflicts within the Court of

Appeals and for the purpose of settling a disputed ques-

lion of statutory interpretation, confusion over which

could have grave cohsequences in the area of criminal

lnw and procedure,

CONCLUSION

For the foregoing reasons, it is respectfully requested

that this Honorable Court issue a writ of certiorari to re-

view the judgment of the United States Court of Appeais

for the Eleventh Circuit.

Respectfully submitted,

KADISH AND KADISH, P.C.

By -

MARK J. KADISH

ROSALYN SS. KADISH

CERTIFICATE OF SERVICE

This is to certify that I have this date served the follow-

ing persons with copies of the within and foregoing Pet-

tion for a Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit: Solicitor General of

the United States, Room 5614, Department of Justice,

Washington, D.C. 30530, and Mr. steve Wisbram, Assis-

tant United States Attorney, United States Courthouse

75 Spring Street, S.W., Atlanta, Georgian 30303, by depos-

iting same in the United States Mail in properly addressed

envelopes with adequate postage affixed thereon to insure

delivery.

This the ____. day of July, 1983.

Mark J. IXADISH

APPENDIX

APPENDIX A

UNITED STATES of America,

Plaintiff-Appeilee,

Herman MERS, Lester Mers, Randy

James Myers, Paul J. Ferrante,

Defendants- Appellants.

No. 81-7777.

United States Court of Appeals,

Eleventh Circuit.

March 21, 1983.

Four defendants were convicted in the United States

District Court for the Northern District of Georgia at

Atlanta, Orinda D. Evans, J., of conspiracy to possess

with intent to distribute marijuana and aiding and abet-

ting distribution of marijuana. Defendants appealed. The

Court of Appeals, Vance, Circuit Judge, held that: (1

single defense attorney's representation of all four defen-

dants at trial did not violate right to effective assistance

of counsel, as claimed by three of the defendants, and (2)

two defendants were not, as they claimed, brought to

trial in violation of the Speedy Trial Act.

Affirmed.

1. Criminal Law 641.5, 1166.11

District court erred in failing to conduct adequate

hearing on issue whether joint representation of multiple

defendants in prosecution for conspiracy to possess with

intent to distribute marijuana and aiding and abetting

distribution of marijuana created actual conflict of inter-

est, but error was harmless, there being no actual conflict

12133}

of interest. Fed.Rules Cr.Proc. Rule 44/¢), 18 U.8.C.A.:

U.s.C.A. Const.Amend. 6; Comprehensive Drug Abuse

Prevention and Control Act of 1970. $$ 401(a), (a)(1),

406, 21 US.C.A. $$ S4lia), (a)(1), 846: 18 U.S.CLA. § 2.

2. Criminal Law 641.5

Where joint representation of defendants is proposed,

court should address each defendant individually and ad-

vise him of potential dangers of joint representation, ane

defendants must have opportunity to question court s} out

nature and consequences of their legal representation.

Fed.Rules Cr.Proe. Rule 44/¢), 18 US.C.A.: USCA.

Const.Amend., 6.

3. Criminal Law 641.5

Mere fact of joint representation does not show ectual

conflict, which will not be found unless defendants can

pout to specific Instances in the record to suggest actus!

conflict or impairment of their interest, Fed.Rules ('r,

Proc. Rule 44(c), 18 U.S.C.A.; U.S.C.A. Const.Amend. 0.

4. Criminal Law 641.5

There is no violation where asserted conflict arising

from joint representation of multiple defendants is irrele-

vant or merely hypothetical; rather, there must be actual.

significant conflict. Fed.Rules Cr.Proc. Rules 44/c). 44

note, 18 U.S.C.A.; U.S.C.A. Const.Amend. 6.

5. Crimina! Law 641.5

No actual conflict of interest was shown to have arisen

from joint representation of multiple defendants. some of

whom claimed entrapment and some of whom claimed

nonparticipation, the defenses being not antagonistic, and

(2134)

not mutually exclusive. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, $§ 401(a). [2134] (a)(1).

406, 21 U.S.C.A. §$§ 841(a), (a)(1), 846; 18 U.S.C.A. § 2:

U.s.C.A. Const.Amend. 6; Fed.Rules Cr.Proc. Rules

44(c), 44 note, 18 U.s.C.A.

6. Criminal Law 641.5

Failing to adopt strategy of shifting blame may well

give rise to actual conflict of interest, but to do so the

strategy must have been option realistically available to

trial counsel. Fed. Rules Cr.Proc. Rules 44/¢), ISU.S.C.A.:

U.s.C.A. Const.Amend. 6.

7. Criminal Law 577.8

Assuming that 70-day period under Speedy Trial Act

began to run on March 2, 1981. date on which defen-

dants were arraigned, 41-day period between March 13

and April 22 for motions practice before magistrate, 26-

day period from April 22 to May 18 during which megis-

trate had motions under advisement and 30-day period,

June 2 to July 1, during which magis'in-e’s report and

recommendation were under advisement by district court

were all properly excludable. 18 U.S.C.A. $§ 3161-3168,

3161(c) (1, 2), (h), (h)(1), (h)(1)(F, J), (h)(3)(A).

8. Criminal Law 577.5, 577.8

Speedy Trial Act provision that trial must commence

“not less than 30 days from the date on which the de-

fendant first appears through counsel’? was intended to

prevent trial from being held so quickly that a defendant

would not have time to prepare, and such minimum time

period is measured as 30 calendar days from event trig-

gering speedy trial clock. and, under the Speedy Trial

Act, excludable delay is permitted during first 30-day

dau

(2134)

interval. 18 U.s.C.A. $§ 3161-3168, 3161(e)(1, 2). th),

(h)(1). (h)(1)(F. J), (h)(3) (CA).

9. Criminal Law 577.8

Under Speedy Trial Act, 30-day ‘under advisement”

exclusion is not total for both magistrate and district

court, but, rather, Act permits two 30-day periods for

consideration of the same matter. 18S U.S.C.A. $§ 3161 (hh)

1)(F. G, J); 28 U.S.C.A. § 636(h)(1

10. Criminal Law 577.5

Magistrate's report on pretrial motions cannot uuto-

matically become order of court merely because no party

objects, and, under Speedy Trial Act, district court was

entitled to 30-day “under advisement” period despite

want of objections to magistrate’s report and recommen-

dation. 18 U.S.C.A. $$ 3161(h)(1)(F, G, J); 28 U.S.C.A.

$ €36(h)1

11. Criminal Law 577.5

Phrase “actually under advisement” in reference to

motions practice under speedy trial statute requires that

under-udvisement period be reasonable, but leaves de-

termination of reasonableness issue to sound discretion of

trial judge, who is not required to demonstrate that he

or she was actually considering matter on every exclud-

able day. 18 U.S.C.A. § 3161(h)(1) (J): 28 U.S.C.A. § €36

b)(1), (h)(1); U.S.C.A. Const. Art. 3, § 1 et seq.

12. Criminal Law 577.8

For Speedy Trial Act to work, parties must know, as

each day passes, whether or not that day is excludable,

courts being under duty to insure ability of courts to ad-

minister the Act. 18 U.S.C.A. $$ 3161, 3161(h)(1).

(2135

13. Conspriacy 47 12

Drugs and Narcotics 123

Government's having met requirement that statements

of coconspirator are admissible only if there is substantial

independent evidence of conspiracy, evidence of making

of such statements was admissible, and such evidence,

with other testimony by drug enforcement agents, was

sufficient to support convictions of two defendants for

conspiracy and aiding and abetting. Comprehensive Drug

Abuse Prevention and Control Act of 1970, $$ 401(a),

a)(1), 406, 21 U.S.C.A. $$ 841(a), (a)(1), 846; 18 U.S.C.A.

§ 2: U.S.C.A. Const.Amend. 6; Fed.Rules Evid. Rule

S$01(d)(2)(E), 28 U.S.C.A.

14. Criminal Law 37 3

Defendant cannot avail himself of entrapment defense

unless initiator of his criminal activity is acting as agent

of the Government. and anv indy ements to codefendant

to trnffie in drugs could not support finding of entrap-

ment. such vicarious entrapment theory being not the

law. Comprehensive Drug Abuse Prevention and Control

Act of 1970, $§ 401(a), (a)(1), 406, 21 U.S.C.A. §§ 841 (a),

a1), S46.

15. Constitutional Law 257.5

Facts of case did not suggest ‘full circle’ transaction

violating defendant's due process rights, defendants hav-

ing stipulated at trial] that no DEA agents supplied mari-

juana to government informant or to defendant husband

or to his defendant wife, and there being also no evidence

that undercover agent supplied the marijuana. Compre-

hensive Drug Abuse Prevention and Control Act of 1970,

$$ 401(a), (a)(1), 406, 21 U.S.C.A. §$§ 841(a), (a)(1), 846;

(2135)

18 U.S.C.A. §$§ 2. 3161 et seq.: U.S.C.A. Const. Amends,

5, 6, 14.

16. Constitutional Law 268 5

Defendants failed to show that their due process rights

under Brady were violated by government’s refusal to

disclose undercover agent’s arrest record and withholding

of material relating to existence of any remunerative

agreement between undercover agent and government,

absent any theory offered by defendants as to how suc!

material could have been relevant, admissible evidence.

and where such undercover agent was not called as wit-

ness. Comprehensive Drug Abuse Prevention and Contro!

Act of 1970, §§ 401(a), (a)(1), 406, 21 U.S.C.A. $$ S4lia,

(a)(1), 846; 18 U.S.C.A. §§ 2. 3161 et seq.; U.S.C.A.

Const.Amends. 5. 6, 14: Fed.Rules Evid. Rules 404}.

608, 609, 28 U.s.C.A.

Appeals from the United States District Court for the

Northern District of Georgia.

Before HILL and VANCE, Circuit Judges. and TUT-

TLE. Senior Circuit Judge

VANCE, Circuit Judge.

The four appellants, Herman Mers. Lester Mers, Pau!

Ferrante and Randy Myers, appeal convictions for con-

spiracy to possess with intent to distribute marijuana, 21

U.S.C. §§ 841(a), 846, and aiding and abetting the dis-

tribution of marijuana, 21 U.S.C. § S84l(a)(1) and 1s

U.S.C. § 2. Appellants raise divergent issues before this

court but only two require serious treatment: whether «

single defense attorney's representation of all four appel-

lants at trial violated the right to effective assistance of

counsel of Ferrante, Myers and Herman Mers, and wheth-

er Herman and Lester Mers were brought to trial within

the time required by the Speedy Trial Act.

2136}

Their arrest on February 6, 1981 resulted from Herman

Mers and his son Lester Mers having undertaken to sell

large quantity of marijuana to undercover DEA agents.

Myers and Ferrante acted as armed guards during the

planned exchange of the first 2,000 pounds. The Mers

plesd entrapment. contending that their involvement in

the transection resulted from pressure on Herman Mers

hy his neighbor, Michael Fiori, who was acting as 4 gov-

ernment informant. Mvers und Ferrante claimed that

they knew nothing of the marijuana, they were told that

the marijuans-laden truck contained antiques which they

were helping to protect merely as a favor to Lester Mers.

in January, 1981, Herman Mers and two undercover

DEA agents few to Atlanta to arrange the purchase. Over

the succeeding week the plans were finalized. Between

Febriary 2nd and 6th, there were numerous meetings and

conversations between the Mers and the DEA agents.

Surreptitious tape recordin of these conversations were

introduced into evidence at trial. The conspirators agreed

that Lester Mers would deliver the marijuana to one

agent. while his father and another agent would remain

at a restaurant. After the transfer of the drugs was com-

pleted the key to the safe deposit box containing the money

would be delivered to the Mers.

Qn February 6, Lester Mers accompanied a DEA agent

to obtain the 2.000 pounds of marijuana from Lester’s

home. After examining the marijuana, which was stored

in a truck, the agent told a second agent to drive the

truck to New York. Paul Ferrante and Randy Myers

were in a car a block away from the Mers’ home while

the marijuana was being inspected. One of the DEA

agents testified that Ferrante and Myers began to follow

the marijuana-laden truck. As they drove by and stopped,

[2136]

however, Lester Mers said ‘‘don’t worry about the mari-

juana. Follow me. These guys are good for the money.”’

Ferrante and Myers then followed Lester Mers and the

agent to the restaurant where Herman Mers was waiting.

As the party left the restaurant for the place where the

money was actually to be exchanged, all four appellants

were arrested. Ferrante was armed with a Luger pistol

and a .38 caliber handgun, Ferrante was carrying a .357

magnum and agents found a .30 caliber rifle in the back

seat of the car.

(1)

Joint Representation of Multiple Defendants

(1} Bruce Pashley, an Atlanta criminal defense attor-

ney, represented all four defendants from their arrest

until the end of their trial. Appellants contend that Pash-

ley’s multiple representation created an actual conflict of

interest which was not sufficiently exposed due to the

district court’s failure to conduct an adequate hearing

under the criteria of Fed.R.Crim.P. 44(¢) and United

States v. Garcia, 517 F.2d 272 (Sth Cir.1975). We hold

that although the district court erred in failing to con-

duct an adequate hearing on the conflict of interest issue,

that error was harmless because no actual conflict of

interest existed in this case.

We agree with appellants that the district court's fail-

ure to make full inquiry concerning the conflict issue vio-

lated Rule 44(c) and Garcia. Rule 44(c¢) provides that

whenever two or more criminal defendants who have been

jointly charged are represented by the same counsel, the

court ‘‘shall personally advise each defendant of his rights

to the effective assistance of counsel, including separate

representation.’ Garcia [2137] articulated the standard for

[2137]

determining whether a defendant has voluntarily waived

his right to conflict-free counsel. In Garcia, defendants in

a federal criminal proceeding selected counsel to repre-

sent them. The trial court refused to allow the retained

attorneys to serve as counsel because of a conflict of in-

terest. In holding that defendants have the privilege of

waiving their constitutional right to conflict-free counsel.

the Fifth circuit remanded the case for a hearing to ascer-

tain whether the defendants had knowingly and volun-

tarily waived their Sixth Amendment protections.

(2) The court detailed the procedures to be followed in

making this determination, stating that district courts

should adhere to a procedure similar to that promulgated

in Fed.R.Crim.P. 11. 517 F.2d at 278. The court should

address each defendant individually and advise him of

the potential dangers of joint representation. The defen-

dants must have the opportunity to question the court

about the nature and consequences of their legal repre-

sentation. ‘Most importantly, the district court should

obtain a response from each defendant indicating that he

has been advised of his right to effective representation,

that he understands the details of the attorney’s possible

conflict of interest and the potential perils of such a con-

flict and that he voluntarily waives his Sixth Amendment

protections.”’ Jd. at 27S.

The district court was aware of attorney Pashley’s po-

tential conflict of interest. During the second day of trial,

when the government's counsel learned that Pashley in-

tended to raise the defense of entrapment on behalf of

Herman and Lester Mers, he requested that the court

conduct a Grarcia hearing. The court asked Pushley wheth-

er he had discussed the matter with his clients. Pashley

answered that he had not discussed it in the context of a

10a

(2137)

conflict problem, since he saw no conflict. The court then

described to the defendants the nature of the entrapment

defense, after which she recessed the proceedings so that

Ferrante and Myers, who were not asserting the defense

of entrapment, could confer with Pashley,

Following the recess, Pashley advised the court that he

had discussed the matter with his clients and invited the

court to proceed with its inquiry, The judge then per-

sonally addressed Myers and Ferrante and determined

that each felt that he had received an adequate explety-

ton of his position relative to the entrapment defer se

advanced by the Mers. During this colloquy, Pashley

noted that he was asserting an entrapment defense only

With regard to the Mers and that his defense with regnrd

to Ferrante and Myers was that they were simply doing

a friend a favor, that they had conspired with no one

and that they were guilty of nothing. The court then

asked Myers:

THE COURT: ... To the extent there is wy Cons

Hict between your position and that of Mr. Lester Mers

and Mr. Herman Mers, do you waive your rights in

connection with any such conflict?

MR. MYERS: I don't see any conflict, no, I don’t.

THE COURT: If there is a conflict, do you consent

to Mr. Pashley representing you as well as Lester and

Herman Mers?

MR. MYERs: At this time, I do.

THE COURT: All right, and do you have any ob-

jection to Mr. Pashley raising the entrapment defense

us he indicated he would?

MR. MYERS: No, Your Honor,

An almost identical line of inquiry was made of Fer-

rante. In a post trial order (2138) disposing of defendants’

lla

request for judgment NOV or a new trial, the court ob-

served thet “[djefendants are correct that the inquiry un-

'y the Court at the request of the Government

aid despiie defense counsel's position to the contrary,

with regard to trial counsel's potential conflict of interest,

did por aureet the requirements of (yited States v. Gareia

“Snow later evidentiary hearing the judge admitted

that “the odimomion the Court gave to the defendants

dertake.:

Was Lot sneerfic enough because it did not detail to the

Cele auiyiis exuetly the histure of the conthh “poe

Thos. neither the probing inquiry mandated by rule

44 hoy that required by Garcia was satisfied in this

cuse, “Phe district court did not specifically advise defen-

dunts of their right to separate representation, as required

hy hue 44ic), The district court judge candidly admitted

failing to comply with Gareia, But although her inquiry

coustituted error under Garcia and Rule 44/¢), that error

will net require reversal unless Pashley's representation

of these multiple defen’ants did in fact constitute an

wetual conflict of interest,

3.4 Although joint representation of multiple crimi-

nal defendants creates a danger of counsel conflict of in-

terest, the “mere fact of joint representation will certainly

not show an actual conflict.”’ United States v. Medal, 592

F.2d 1305, 1310 (Sth Cir.1979). Accord Holloway v. Ar-

kansas, 445 U.S. 475, 482, 98 S.Ct. 1173, 1177-78, 55

L.Ed.2d 426 (1978); United States v. Burroughs, 650 F.2d

595, 598 (Sth Cir.), cert. denied, 454 U.S. 1037, 102 S.Ct.

580, 70 L.Ed.2d 483 (1981); Forworth v. Wainwright, 516

F.2d 1072, 1076 (5th Cir.1975). Further, failure to com-

ply with Garcia will not mandate reversal absent an ac-

tual conflict of interest. In United States v. Benavidez, 664

F.2d 1255 (5th Cir.), cert. denied, _... U.S. —, 102

l2a

(2138)

S.Ct. 2963, 73 L.Ed.2d 1352 (1982), a defendant argued

that noncompliance with Rule 44(c) required reversal not-

withstanding his failure to demonstrate actual conflict.

The present Fifth circuit rejected this argument, noting

that the purpose behind Rule 44(c) was to “establish{ | «

procedure for avoiding the occurrence of events which

might otherwise give rise to a plausible post-conviction

claim” concerning conflict of interest. Jd. (quoting Advi-

sory Committee on Criminal Rules, Note to Rule 44(c),

in Committee on Rules of Practice and Procedure of the

Judicial Conference of the United States, Preliminary

Draft of Proposed Amendments to the Federal Rules of

Criminal Procedure (February 1978) reprinted in 77 F.R.D.

507, 594 (1978) (Advisory Committee Note)) at 1258, The

court held that ‘neither the inquiry nor the advice is it-

self the goal of the rule; the goal is preventing conflicts.

If there is no actual conflict, then the rule’s purpose will

not be served by reversal of a conviction.” G64 F.2d at

1258.

In United States v, Alvarez, 696 F.2d 1307 (11th Cir.

1983), we found the above reasoning from Benavidez per-

suasive, It would be the height of formalism to reverse a

conviction because of literal noncompliance with a pro-

cedural rule when the evil that the rule has been designed

to prevent has never occurred. The Advisory Committee

Nate to Rule 44/¢) supports this construction: The fail-

ure in a particular case to conduct a Rule 44(¢) inquiry

would not, standing alone, necessitate the reversal of a

conviction of a jointly represented defendant.”’ Advisory

Committee Note, 77 F.R.D, 507, 603 (1978). Thus, ap-

pellants must demonstrate that Pashley's joint represen-

tation constituted an actual conflict of interest,

13a

[2139]

Three Supreme Court cases, Glasser v. United States,

315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Holloway

v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426

(1978) and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct.

1708, 64 L.Ed.2d 333 (1980), define the standard for ana-

lyzing claims that counsel “suffered under a disability

(such as conflict of interest] that subtly pervaded his cn-

tire conduct of the defense.”’ Stanley v. Zant. The Court

in Glasser es.ablished the principle that counsel's con-

flicting loyalties in multiple representation cases could

lead to an unconstitutional impairn ent of a defendant's

Sixth Amendment right to effective representation. Glas-

ser and Kretske were codefendants in a conspiracy case.

Despite Glasser’s objection, the district court appointed

Glasser’s attorney to represent Kretske as well. The Su-

preme Court reversed, holding that the assistance of

counsel ‘‘guaranteed by the Sixth Amendment contem-

plates that such assistance be untrammeled and unim-

paired by a court order requiring that one lawyer shall

‘ Our contlict of interest cases may be contrasted with the approach

we take in analyzing cases such as Washington v. Strickland, 693

F.2d 1243 (5th Cir.1982) and Stanley v. Zant, 697 F.2d 955 (11th

Cir.1983) in which criminal defendants assert on appeal that “coun-

sel’s actual! performance was inadequate, that specific actions or omis-

sions of his attorney rendered his representation ineffective.” Stanley

v. Zant, O97 F.2d at 962. The differences between these two genera!

types of ineffectiveness have been discussed at length by courts and

commentators alike, Professor Waltz distinguished between “extrin-

sic” pressures interfering with counsel's representation (such as con-

ficts of interest) and “intrinsic’’ ineffectiveness (such as failure .

present defendant's only possible defense). See Waltz, Jnadequacy o/

Trial Defense Representation as a Ground for Post-Conviction Relic)

in Criminal Cases, 50 Nw U.L. Rev. 28%, 326-41, 301-326 (1064).

Compare Washington v. Strickland (en banc (requiring prejudice in

cases of intrinsic ineffectiveness) with Baty v. Balkcom, 661 F.2d

391 (Sth Cir. 1081), cert, denied, — US. —_, 102 8.Ct. 2307, 7

L.Ed.2d 1308 (1982) (not requiring prejudice in cases of extrinsic

inetfecti veers).

l4a

(2139)

simultaneously represent conflicting interests.” 315 U.S.

at 70, 62. 8.Ct. at 465. Although ambiguous language in

Glasser led courts to confusion regarding the test for dem-

onstrating conflict of interest and for the need to show

prejudice in multiple representation cases, see Lowenthal,

Joint Representation in Criminal Cases: A Central Apprai-

sal, 64 Va.L. Rev. 939, 973-74 (1978); Comment, Conflict

of Interests in’ Multiple Representation of Criminal Co-

Defendants, 68 J.Crim.L. & Criminology 226 (1977), under

the facts of Glasser itself the conflict of interest was actual

and ascertainable on appellate review. The confliet was

underscored by defense counsel's cross-examination and

in his attempts to counter evidence introduced by the

government. Counsel's cross-examination of prosecution

Witnesses Was circumscribed and hesitant, and in at least

one instance the defense attorney conducted no cross-

examination at all. The Supreme Court found that such

conduct raised an inference that counsel's trial strategy

Was infected by conflicting obligations and divided loyal-

ties, See Comment, 68 J.Crim.L. & Criminology, supra,

ut 280-31,

The Supreme Court reexamined the multiple represen-

tation issue In Holloway v. Arkansas. In Holloway, the

district Court appointed one public defender to represent

three defendants charged with rape and robbery. The

court denied defense counsel's repeated requests for ap-

pointment of separate counsel, As in Glasser, the Supreme

Court inferred the conflict from counsel's actions and in-

actions at trial. The attorney for the defendants informed

the court, in the presence of the jury, that [2140] despite

lis recommendation to the contrary all defendants wished

to testify, Counsel argued that a confliet of interest was

inevitable: he could not effectively examine any given

loa

(2140)

defendant who was on the witness stand, because he had

received information from each individually. The trial

court rejected counsel's argument that he was bound to

protect the interests of the nontestifying defendants \ hile

a codefendant was testifving. The attorney refused to

question any of the defendants and they testified in a

narrative form. Before each defendant took the stand,

counsel stated that “I cannot ask you any questions tha’

might tend to incriminate any one of the three of vou

.... 435 US. at 480, 98 S.Ct. at 1176. The Supreme

Court reversed the convictions, concluding that the trial

judge erred in failing “either to appoint separate counsel

or to take adequate steps to ascertain whether the risk

of a conflict of interest} was too remote to Warrant sep-

arate counsel.”’ Jd. at 484, 98 S.Ct. at L178. The Court

strongly implied that reversal would be automatic “when-

ever a trial court improperly requires Joint representation

over timely objection.’ /d. Because the trial record may

mask so much, and because a “conflict of Interest hobbles

the defense in a manner distinct from other fo.n s of in-

effectiveness,” Tague, Multipli Repre sentation and Con-

ficts of Interest in Criminal Cases, 67 Geo. LJ. L075, 1077

1979), an appellant asserting couflict of interest need

not make a further showing of prejudice. Seo Holloway,

435 U.s. at 489-91, 9S S.Ct. at 1181-82: Baty ». Balkeom,

661 F.2d 391, 395 (Sth Cir.1981), cert. denied. US.

, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982),

Most recently, in Cuyler ve. Sullivan, 446 U.S. 335, 100

S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court

stated that “the possibility of conflict is insufficient to

impugn a criminal conviction. In order to demonstrate a

violation of his Sixth Amendment rights, a defendant

must establish that an actual conflict of interest adversely

2140)

affected his lawyer's performance.” Jd. at 330, 100 8.Ct’

at 1719; see also United States vr. Freeman, 619 F.2d 1112.

1122 (Sth Cir.1980), cert. denied, 450 U.S. 910, 101 S.Ct.

1348, 67 L.Ed.2d 334 (1981); United States v. For. 613

I'.2d 99, 102 (5th Cir.1980). We have held that “the

standard imposed by the Supreme Court in Cuyler is met

by proof of an actual conflict of interest. As a component

of that proof, of course, petitioner also must show that

counsel with the conflict was representing the petitioner

actively.” Baty v. Balkcom, 661 F.2d at 397.

We will not find an actual conflict unless appellants

can point to “specific instances in the record to suggest

an actual conflict or impairment of their interests,” United

Stites v. Fox, 613 F.2d at 102. Appellants must make a

factual showing of inconsistent interests and must demon-

strate that the attorney “made a choice between possible

alternative courses of action, such as eliciting (or failing

to elicit) evidence helpful to one client but harmful to

the other. If he did not make such a choice, the conflict

remained livpothetical.”’ Comment, 6S J.Crim.L. & Crim-

inology, supra, at 232 (parenthese in original). There is

no violation where the conflict is “irrelevant or merely

hypothetical’; there must be an “actual, significant con-

flict.” Foxworth, 516 F.2d at 1077 n. 7. An actual conflict

exists when the respective defenses of multiple defen-

dants are inconsistent, i... if “introduction of probative

evidence or plausible arguments that would significantly

benefit one defendant would damage the defense of an-

other defendant whom the same counsel is repre- 2141)

senting.” Baty, 661 F.2d at 395. The Benavidez court

noted that the former Fifth Circuit cases reversing-convic-

tions on the ground of actual conflict of interest could be

classified as falling into at least one of three rubrics:

17a

2141)

1) the conflict was brought to the trial court’s at-

tention at the outset of the trial or at the time when

the conflict first became apparent; 2) one defendant

had evidence that would have exculpated himself but

inculpated « codefendant; 3) the prosecution's evi-

dence offered defendant a theory under which he could

prove his own innocence by proving his codefendant’s

guilt.

664 F.2d at 1259 footnotes omitted).

Appellants Ferrante. Myers and Lester Mers argue that

their various defenses were incompatible with the entrap-

ment defense usserted by Herman Mers and that Pash-

ley’s representation of all appellants gave rise to an actual

conflict of interest. Herman Mers admitted at trial that

he was guilty of the acts charged, but argued that he had

been entrapped by the government's informant. Lester

Mers asserted a variant of the entrapment defense. Be-

cause he had no direct contact with the government s

informant, he did not have the classical entrapment de-

fense available to him. Nevertheless, he endeavored to

claim entre pment under the theory that, since his father

Herman wes entrapped and as a son he had no choice

but to help his father, he also was entrapped. Ferrante

and Mvers argued, by contrast, that they played no part

whatever in the conspiracy, that they thought they were

guarding a truck full of valuable antiques.

Ferrante and Myers contend on uppeul that the pres-

ence of Herman Mers’ entrapment defense and Lester

mers’ hybrid agency theory entrapment defense damaged

the effectiveness of their own defenses. From an eviden-

tiary and a psychological perspective, they argue, it was

impossible for a single counsel credibly to argue all four

cases, especially when all four defendants took the stand

to tell their divergent stories. Ferrante and Myers fur-

ISa

(2141)

ther argue that counsel's divided lovalties resulted in a

significantly greater emphasis on the defenses of the Mers.

Finally, they urge that the desperate nature of the en-

trapment defense assured that all four defendants would

be jointly shot down as “birds of a feather.”’ Similarly,

Herman Mers argues that his entrapment defense was

diluted and was prejudiced by the court's finding that

Lester Mers could not avail himself of the entrapment

defense,

Judge Evans found that, despite the disparity in de-

fenses, counsel was not Inboring under an actual eonffiet

of interest:

It is true as an abstract proposition that inherent in

establishing entrapment is the acknowledgement, albeit

under pressure, of participation in an illegal objective.

Raising entrapment as a defense for one coconspirator

is thus a stragegy which potentially conflicts with the

assertion by others of lack of knowledge of the illegal

activity. Defendants, however, have not given anv in-

dication that such conflict developed In the instant

ease... . Thev have given no indiesation of what other

defense posture would have better served them in the

context of a joint trial for conspiracy and of the Gov-

ernment’s evidence that a truck which ther. while

armed, had been following was filled with 2.0090 pounds

of marijuana.

5) We agree that Pashley’s representation of all four

defendants did not create an actual conflict of interest.

The defenses in [2142] this case were not antagonistic, much

less rnutually exclusive. Ferrante and Mvers did not base

their defense on the proposition that no conspiracy exist-

ed; rather they argued that they had no knowledge of any

conspiracy. We have found “where codefendants’ state-

ments are largely corroborative, repetitive or serve the

1On

(2142)

saute purpose, there is no conflict.” United States v. Medel,

“Y2 bod at 1310. Accord United States v. Fannon, 491

P2129, 132 (Sth Cir.). cert. denied, 419 U.S. 1012, 95

S05 352. 42 L.Eed.2d 286 (1974). Neither Ferrante nor

\Ivecs have shown that they stood “to gain significantly”

Vv sboundomimg the common defense. Forworth, 516 F.2d

a 107) On the contrary, Lester Mers bolstered Ferrante

and Myers’ defense by corroborating their testimony that

the latter thought they were guarding a truck full of an-

hiques.- burther, the record suggests that the various

detenses, while different. were coordinated. The testi-

mony of the Mers could have greatly harmed Ferrante

and Mavers. Consistent with their own entrapment de-

Telises. 101 exumple, the Mers could have devastated Fer-

rontes and Asvers’ defense by testifving that they had

intoriued Ferrante and Myers that they were guarding

murijuans and that the latter were fully aware of details

of the transaction. By contrast. nothing in the record

siggests that Ferrante and Myers could have offered

damaging testimony against the Mers. DEA agents had

> Lester Mers testitied as follows:

Q All right, and what did you ask him [Ferrante] to do?

A Well, I told him that I was in the middle of « transaction

of an estate, of a house that had been sold in the neighborhood,

and that there was some antiques and some furniture that I

Was responsible for to move, and I would appreciate it if he

could help me out by following me with this truck to the bank

where there would be a transaction of money for this deal and

tu give me a ride home after that.

Q Did you ever mention the word marijuana to him?

A No, I never did.

(2 What did he say generally in response to your request?

A Well, he said it was sort of an inconvenience because he

Was going out of town, but if I couldn't get any help from any-

body, then I should call him back, and I said I had already

made as many calls as I could, and I couldn't find anybody.

20a

(2142)

taped several of the Mers’ negotiations over the proposed

marijuana transaction. Nothing to which Ferrante and

Myers could have testified would have inculpated the

Mers more than those taped admissions. Also, to have

damaged the Mers, lerrante and Mvers would have had

to inculpate themselves in the conspirney. We find that

these appellants’ interests “are closely aligned such that

their united front strategy might well have been the hest

strategy available.” (onited States vo Medel, 592 F.2d at

1512.

No appellant has pointed to any different defense theory

or new evidence or testimony that independent counsel

could have elicited. Rather, appellants contend that an

actual conflict resulted because the respor sibility of repre-

senting all defendants diluted Pashley’s credibility before

the jury. We decline to hold that these appellants have

shown an actual conflict merely hecatse separate counsel

might have been more impressive to «a jury. All appel-

lants’ defenses were fully end forcefully presented through

their own testimony. Their entire defense depended upon

whether the jury believed or disbelieved this testimony.

Further, cross-examination of governn.ent witnesses was

probing and thorough and closing argurent highlighted

the strengths of the various defenses. To argue that [2143]

because, stylistically or psychologically, anothe: attor-

ney might have been more persuasive underestimates the

jury’s ability to evaluate the credibility of evidence.

Ferrante and Myers’ final conflict of interest argumer:

is that Pashley’s common defense denied them the oppor-

tunity to shift blame for the offense onto the Mers. They

contend that independent counsel would have focused

the jury’s attention on the Mers by hammering home the

point that the evidence against the Mers was far grea:er

2la

(2143)

than against them. While a strategy of shifting blame to

one’s codefendants is a legitimate and often effective de-

fense strategy. we conclude that in this case the indepen-

dence of the defenses asserted precluded the possibility

of shifting blame from one codefendant to another.’

In Forworth the former fifth circuit held that « defer-

dant’s sixth amendment rights have been violated if the

reviewing court perceives from the record a plausible al-

ternative defense theory more favorable to the defencant

than that actually pursued by counsel, but which would

have prejudiced at least one codefendant by shifting to

him more responsibility for the acts at issue. 516 F.2d

at 1079. Although the record in Forworth indicated tic

conflicting testimony at trial presented opportunities of

shifting blame.‘ the former fifth cireuit pointed out that

a conflict existed in selecting the initial strategy, which

The conflict claim asserted by appellants and its “shifting the

lame” corollary are particularly troubling in conspiracy cases, where

‘the very nature of the charge suggests the desirability of disasso-

ciation.” Fryar v. United States, 494 F.2d 1071, 1073 (10th Cir.1968),

cert. denied, 305 US. 64, SO S.Ct. 2109, 23 L.Ed.2d 175 (1969). In

Glasser the Supreme Court noted the special risks of multiple repre-

the liberal rules of evidence and the wide latitude accorded the prose-

cution may, and sometimes do, operate unfairly against an individ-

ual defendant, it is especially important that he be given the benefit

of the undivided assistance of his counsel... .’ 315 U.S. at 76, 62

S.Ct. at 467-68. See also Geer, Representation of Multiple Criminal

Defendants: Conflicts of Interest and the Professvonal Responsibilities

of the Defense Attorney, 62 Minn.L.Rev. 119, 136 (1978); Dawson,

Joint Trials of Defendants in Criminal Cases: An Analysis of Effi-

ciencies and Prejudices, 77 Mich.L.Rev. 1379, 1397-1448 (1979).

‘In Forworth four prisoners were convicted of murdering a fifth.

The four other prisoners in the cell testified for the prosecution; the

defense’s theory was that these four government witnesses had com-

mitted the murder. The government contended that the four defen-

dants had an interest in presenting a united defense: they had a

common interest in discrediting the prosecution's witnesses. Further,

their own positions were compatible with the joint strategy.

22a

(2143)

precluded counsel from adopting a tactic of shifting blame

to one of the codefendants. 516 F.2d at 1079-80. The

court held that “if the record shows that a plausible de.

fense (one that might have influenced twelve reasonable

jurors) Was toreclosed because it might have prejudiced

the other defendants represented by the same appointed

counsel, the conviction must be overturned. ... An al-

leged confliet of interest that obstructs the use of a par-

ticular strategy or defense is not significant unless the

defense ls plausible.” 1d, at 1074, 1080), The court stressed

that “the confliet occurred not in presenting the defense

chosen by appoimted counsel, but in selecting defenses

and strategies in the first place. Id. at 1079. The record

in that cuse “amply established such a plausible defense.”’

ld.

The government contends that the fifth circuit in

Benavides effectively overruled the Forworth holding that

counsel's failure to “shift the blame” among codefendants

2144) could constitute an actual conflict of interest. We

cannot ugree. Like Foxworth, each defendant in Benavidez

contended that because the evidence against his codefen-

dunt wus stronger than the evidence against him, his coun-

sel should have adopted a strategy of shifting the blame

to the -odefendant and emphasizing the relative weakness

of the cuse against himself; because trial counsel repre-

sented both defendants, lie was not free to adopt such a

strategy. Unlike Foxworth, however, the court in Bena-

videz stated that the appellant could “not point to any

specific argument that counsel was precluded from mak-

ing or to any specific evidence that counsel was precluded

from adducing on his behalf, and in reviewing the record

we have discerned none.’ 664 F.2d at 1262 (emphasis

added). Because appellants could offer no evidence or

23a

(2144

argument in support of a “plausible alternative strategy,”

id, at 1260, the court could not find an actual conHict of

interest. Accord United States v. Huntley, 535 F.2d 1400.

1406 (5th Cir.1976), cert. dented, 430 U.S. 929, 97 S.Ct.

1548, 51 L.Ed.2d 773 (1977): United States ex rel. Smal

v. Rundle, 442 F.2d 235. 238 (3d Cir.1971

(6) Far from overruling Forworth, Benavider does no

more than reaffirm the requirement. strongly articdated

in Foxworth itself, that an ‘alleged contlict of interest tha

obstructs the use of . particular strategy or defense is

not significant unless the defense is plausible.” Forworth,

916 I.2d at 1080) emphasis added). The synthesis of Fur-

worth and Benavidez is « specific spplication of the gen-

eral principle that to warrant reversal, a condict of in-

terest must be actual rather than hivpothetical. Failing

to adopt a strategy of shifting blame may well give rise

to an actual conflict of interest. but to do so the strategy

must have been an option realistically available to trial

counsel,

Like the defendants in Benaridez, these appellants are

unable to show that a strategy of shifting the blame was

really a plausible alternative for Pashley. In pronounced

contrast to the situation in Furiworth, the various defenses

presented by appellants at trial were the only defenses

realistically available to them. Given the higlily incrim-

inating conversations tupe recorded by the DEA. the

Mers had little choice but to admit their indisputable

actions and to focus their attack on the conduct of gov-

ernment agents. Likewise, Ferrante and Myers’ only de-

fense was to admit their incontrovertable actions, but to

claim that they had no knowledge that the substance in

the truck was marijuana. The differences in the nature

of the defenses and the compatibility of the various posi-

24a ;

2144)

tions asserted preclude the possibility of counsel's adopt-

ing « strategy of shifting blame among codefendants. To

decide that this case presents an actual conflict would be

to impose “a per se rule requiring separate representa-

tion: every time a lawyer represents more than one defen-

dant. le is precluded from ‘shifting the blame’ to the

client against whom the government presents the stronger

ense.”’ Benavidez, 664 F.2d at 1260.

Speedy Trial Act

‘+. Herman and Lester Mers contend that. their

trial did not commence within the period required by the

speedy Trial Act. 18 U.S.C. $§ 3161-68. The Act man-

dates that defendants be brought to trial within seventy

luvs “from the filing date and making public) of the in-

formation or indictment. or from the date the defendant

lias appeared before a judicial officer of the court in [2145]

whieh such charge is pending. whichever date last occurs.”’

Is Us. $3161 ¢)1). The accounting of time under the

Act is subject to excludable delay attributable to the de-

fendant as well as other particularized delays set out in

section 3161 h) 1). In the present case, we assume that

the seventy day period began to run on March 2, 1981,

the date on which appellants were arraigned. See note 6,

infra. Trial commenced on August 5, 156 days after ar-

raignment. The government argues the exclusion of a

total of ninety-seven days covering three discrete periods:

forty-one days ‘March 13 to April 22) for motions prac-

tice before the magistrate, § 3161(h)(1)(F); twenty-six

days April 22 to May 18) during which the magistrate

had the motions under advisement, § 3161(h)(1)(J); and

thirty days June 2 to July 1) during which the magis-

(2145,

trate’s report and recommendation under advisement by

the district court. § 3161(h)\1)\J).. We agree that the

time was properly excludable.*

Appellants dispute two categories of exclusion. First.

thev argue that section 3161(¢c)2), which provides that

trial must commence ‘‘not less than thirty days from the

date on which the defendant first appears through coun-

sel.’ prohibits exclusion of any time occurring within that

first thirty days following a defendant's first appearance

in court. Appellants contend that otherwise excludable

delay resulting from pretrial motions filed by defendants

’ The government als) sought to exclude three days (August 2 to

August 5) during which defense moticns to dismiss the indictment

based on Speedy Trial Act violations were pending before the dis-

trict court. See 18 U.S.C. § 3161(h)(1)(F). and Herman Mers was

rial. See id. at section 3161(;h)(3)(A). Appellants do

ot dispute this exelusio

* Appellants contend that the ses ime period should

“yi! t ol + », 1981 inte of a giment but r the 1s |

February 18 (dete of indictment). They base this contention on the

hat they appeared for a bond hearing befere a judicial qfiec

a magistrate) on February 6, the day of their arrest. If a defendant

has appeared before a judicial officer in connection with the charge

prior to the filing of the indictment, then the speedy trial clock com-

mences on the date the indictment was filed. See 18 U.S.C. §$ 3161(c¢)

1); Judicia! Guidelines at 7-8. Although it is true that “[wlhen the

defendant is arrested prior to indictment and makes an initial ap-

pearance before a magistrate who orders him held to answer the

charges in the district court. the seventy-day period runs from the

date of his indictment.’’ United States v. Haiges, 688 F.2d 1273, 1274

(9th Cir.1982); see also United States v. Carrasquillo, (67 F.2d 382,

384 (3d Cir.1981), we need not reach this issue. Even accepting ap-

pellants’ contention that the clock should have begun on the date

of indictment (February 18), that starting date adds only eleven

days (February 18 to March 1) to the time that must be counted;

March 2. the arraignment date, would be excluded under section

3161(h)(1) as a proceeding relating to defendant. Eleven days, added

to the fifty-six net non-excludable time as we calculate it, equals

sixty-seven days. Even with this earlier starting date, trial began

within the requisite seventy days.

26a

2145]

and pending within that thirty day period should not be

deemed excludable. Of the total of forty-one days ex-

cluded time attributed to defense motions, eight days

March 13 to March 20) fell within the initial thirty day

period covered by section 3161/¢)2). Appellants do not

dispute the exclusion of other time within this forty-one

day period.’

214th

Appellants’ position finds support in neither the lan-

guage, legislative history nor policy of the provision. See-

tion 3161 ¢)2), added to the Act by Congress in 1979,

by its terms speaks to the time during which trial may

nef commence absent waiver by a defendant of his speedy

trial right. “ee Committee on the Administration of the

Criminal Law of the Judicial Conference of the United

States, Guidelines to the Administration of the Speedy

Trial Aet of 1874, As Amended (1979) hereinafter cited

as Judicial Guidelines) at 12-13. The section is not ad-

dressed to the computation of the overall time period

during which trial must commence. Even if this language

is arguably ambiguous, the legislative liistory is not. The

legislative history leaves no doubt but that the purpose

held so quickly that a defendant would not have time to

"On March 13, defendants filed numerous pretrial motions. Three

days later, a pretrial conference disposed of some but not all of the

motions. On March 26, the date for which a suppression hearing

Was originally scheduled, the hearing was continued, at the request

of appeallants, until April 8. On April 8, appellants again requested

and were granted a continuance; the same thing happened on April

15. On April 22, the magistrate concluded that no suppression hear-

ing would be needed, based on the government's representation that

it would not call its informant to testify at trial. Appellants chal-

lenge the excludability of only eight days of this time: March 13

to March 20

Jeu

2146,

the behest of the Justice Department, the Judiciai Con-

ference and the American Bar Association. See Misner,

The 18279 Amendments to the Speedy Trial Act: Death ou

the Planning Process, 32 Hastings L.J. 635, 642-43 (1981).

Assistant Attorney General Phillip Hevmann testified

before the Senate Committee on the Judiciary that ‘lit

ix In recognition of the special problems often faced by

defense counsel that the Department has included « pro-

Vision in its bill requiring « minimum of 30 davs for de-

fense preparation. This insures the defendant some min-

imum preparation time even in the simplest case.’ * The

Speedy Trial Act Amendments of 1974: Hearings Before

the Senate Committee on the Judiciary on S. 961 and S.

1028, 96th Cong. Ist Sess. 47, 53 (1979), ‘hereinafter cited

us 1479 Heurings), excerpted in Federal Judicial Center,

Legislative History of Title I of the Speedv Trial Act of

* Heymonn specitied ;

Special emphasis should be made of the fact that the prob-

lems created by these strict time limits {in the 1974 act] apply

at least equally to defense counsel as they do to * ssecutors. In

fact more often in these more complex cases, defense counsel

needs are greater than ours because we have at a minimum pre-

pared the case for presentation to the grand jury. In many of

the more complex cases, especially in the white-collar crime

area, We have spent considerably more time investigating the

case. Sometimes the pre-indictment investigation can take vears

during which time the prosecutor has accumulated masses of

documents on which he has spent a great deal of time and energy

in review.

Equally serious problems arise for defense counsel in trying

to rapidly become familiar with very esoteric federal laws or

specific standard business practices and operating procedures.

Often there is a need to become expert in the details of the par-

ticular regulations of a federal agency.

Defense counsel also has the particular problems, raised most

often in multi-defendant cases, of potential conflicts in represen-

tation and difficulties in coordinating among the lawyers on the

defense team. Each of these special problems is supported by

the OIAJ study.

1979 Senate Hearings, reprinted in Legislative History at 71.

28a

(2146)

1974, at 70, 71 (1980) ‘hereinafter cited as Legislative

History). See also 8.Rep. No. 212, 96th Cong. Ist Sess.

31-32 (1979) ‘hereinafter cited as 1979 Senate Report).

excerpted in Legislative History at 73 (explaining the pur-

pose of the subsection as ‘guaranteeing the defendant a

reasonable period in which to obtain counsel and prepare

for trial’); 1979 Senate Hearings 87, 91 (statement of

Daniel Freed); id. at 115-17 (statement of Salvatore Mar-

toche); Judicial Guidelines at 10 (the section ‘‘was added

to the Act in 1979 to guarantee a minimum period of

thirty davs for the prep-'2147Jaration of the defendant's

case’); Misner, supra at 642-43 (observing that section

3161(¢c)(2) was an “apparent attempt to guarantee that

the Act did not become the ‘Speedy Convictions Act’ ”’

and that the ‘avowed reason for this amendment was to

ensure that a defendant has adequate time for pretrial

preparation’’). See also United States v. Horton, 676 F.2d

1165, 1173 (7th Cir.1982), petition for cert. filed, __. U.S.

U.S. Oct. 19, 1982) (No. 82-681) (Swygert, J., dissenting)

‘section 3161\¢)(2) “recognizes that an accused generally

needs thirty days to prepare his defense based on the

charges detailed in his indictment’); United States v.

Wooten, 688 F.2d 941, 951 (4th Cir.1982) (‘what section

3161(c) 2) does is simply to guarantee to the criminal

defendant the right to a delay of at least thirty days be-

tween arraignment and trial in any circumstances’). The

Senate Report explicitly stated that purpose would be in

no way furthered by holding that time that is otherwise

excludable under the Act should not be excluded if it

occurs within the first thirty days elapsing from the de-

fendant’s initial appearance:

Prohibiting trial less than 30 davs after the date the

defendant appears in a position to begin preparing his

29a

[2147]

defense more fully protects basic due process rights. It

is the Committee's intent that the exclusions provided

in section 3161(h) apply to the 30-day minimum to-trial

provision. Therefore, if an event occurs which would

automatically exclude time under subsection (h), such

as a pretrial mental examination, that time is not only

excluded from computing the time within which trial

must occur prior to imposition of the dismissal sanc-

tions, but time would also automatically be excluded in

computing the 30-day minimum period of time, during

which the judge could not schedule trial without the

defendant's consent.

1979 Senate Report at 32, excerpted in Legislative His-

tory at 73-74 (emphasis added),

Appellants can cite only two authorities for their con-

tention that no excludable delay is permitted during the

first thirty day interval. The Judicial Guidelines at 12-14

provide that:

In spite of language to the contrary..., it is the

view of this Committee that the thirtv-day minimum

period for commencement of trial is not extended by

the exclusions of Section 3161(h).... Moreover, if the

thirty-day minimum were interpreted as subject to the

exclusions, the provision would become a powerful

weapon for defendants who wanted to delay their pros-

ecutions, a result that is wholly at odds with the major

purpose of the statute. Under such an interpretation,

the court could be compelled to defer a trial simply

because the defendant filed a motion or because the

court took a pretrial matter under advisement —both

events that trigger periods of excludable time under

Section 3161(h)/1).

The fourth circuit, in United States v. Wooten, embraced

the Guideline’s passage quoted above and held that sec-

tion 3161(c)(2) ‘does not provide for an extension of the

30-day minimum time period between the defendant's

30a

(2147)

appearance with counsel and trial either expressly or by

incorporation by reference of Section 3161 h).”° 688 F.2d

at 949-50. The Wooten court found that the exclusions of

section 3161 h) do not “apply” to the time limits of sec-

tion 3161(c)\2): There is no language in section 3161(h).

which suggests even remotely that its exclusion provi-

sions have any reference to or connection with the time

limits fixed by section 3161(¢)(2)."’ Id. at 950.

214s,

While appellants’ reading of the Judicial Guidelines

and of Wooten appears superficially attractive, we believe

that they have misperceived the import of those sources.

The thirty davs of section 3161\¢c)\2) were intended to

be measured as calendar davs. The concern articulated

by the Judicial Guidelines was that a defendant should

not be uble to lengthen his thirty day minimum period

by the filing of motions that would constitute excludable

time. The message of the quoted passage is that a clever

defendant who wished to postpone indefinitely his trial

should not be allowed to argue that certain pretrial mo-

tions filed within the first thirty day period tolled the

running of the thirty day minimum period. Similarly, the

Wooten court stated that ‘what the statute does not give

the criminal defendant is the right, by filing dilatory

motions, to extend on his own the date of his trial.’’ 68S

F.2d at 951. Thus, “what section 3161/c)(2) does is simply

to guarantee to the criminal defendant the right to a

delay of at least 30 days between arrignment and trial in

any circumstances.’ Jd. We conclude that section 3161/¢

(2) merely defines the time during which trial may not

commence and that that time is measured as thirty cal-

endar days from the event triggering the speedy trial

clock. We join other circuits that exclude time during the

sla

(214s!

initial thirty day period. See United States v. Stuart, 689

F.2d 759. 762 & n. 2 (Sth Cir. 1982) * United States v.

Jodoin. 672 F.2d 232 at 236-38 (1st Cir.1982);'* United

States v. Rainert, 670 F.2d 702, 707-08 (7th Cir.), cert.

denied, U.S. __. 103 8.Ct. 446, 74 L.Ed.2d

1982) ::! United States v. Regilio, 669 F.2d 1169, 1171-72

7th Cir.1981). cert. denied, __. U.S. ——, 102 S.Ct

2959. 73 L.Ed.2d 1350 (1982) same);'? United States

Brim. 630 F.2d 1307, 1811-12 (Sth Cir.1980), cert. denied,

452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981)."

Appellants’ second series of Speedy Trial Act argu-

* An information against Stuart was filed on June 22, L¥8l. bSY

F.2d at 761. The court found that in “counting days elapsed before

trial. we exclude the 16-day period from July 14, 1981, to July 30,

1981. The record on appeal shows that the continuance granted dur-

ing this time was to allow defendant to obtain counsel.” //. at 762

n. 2 (citation omitted).

1° Jodoin was arraigned on August 25, 1980. 672 F.2d at 238. The

first circuit excluded two periods falling within the first thirty divs

after arraignment. The court excluded ten days (August 25 to Sep-

tember 5) between the time when defense counsel made un ora

motion for time to file a suppression motion and the time when th

motion was actually filed. The court also excluded twenty-six days

(from September 5 to September 30) when the motion to suppress

was pending before the district court prior to hearing. /d. at 237.

!! Raineri was arraigned on June 23, 1980. 670 F.2d at 707. The

court found that “the period from June 23 to August | does not

count toward the seventy days because it was occupied with the

prompt disposition of the motions the defendant filed on three differ-

ent dates.” Jd. at 708.

1? Defendant was arraigned on August 15, 1980. 669 F.2d at L171.

On August 27, the defense initiated the motions practice exclusion

by filing five pretrial discovery requests. /d. The court of appeals

affirmed the district court’s exclusion of eight-one days between Au-

gust 27, when the motions were filed, and November 17, when the

order denying the motions was issued. /d. at 1172.

(3 Brim was arraigned on October 16, 1979. 630 F.2d at 131! The

court held that from “October 23 until December 19 various pretrial

motions were continuously pending. During that period the running

of the seventy day limitation was tolled. /d. at 1313.

32a

214s

ments challenges the exclusion of certain time attributed

to the magistrate’s and the district court’s disposition of

pretrial motions. Appellants filed motions to suppress

evidence on March 13, 1981, and [2149) the magistrate

promptly set a hearing date. The date was postponed

until April 22, because appellants obtained three contin-

uaunces. See note 7 supra. The hearing did not occur on

April 22, however, because the government informed the

mugistrate that it would not seek to introduce certain evi-

dence. Because this decision by the government obviated

the need for a suppression hearing, the magistrate orally

informed the parties that he deemed all of the motions

except one moot. On May 18, the magistrate issued his

report and recommendation, in which he recommended

that the district court dismiss as moot all motions save

one. The magistrate deferred one of Herman Mers’ mo-

tions to the district court judge for her consideration and

guve the parties ten days to object before submitting his

report to the court, as required by the Federal Magis-

trates Act, 28 U.S.C. § 636 h) 1). No party objected and

the report was submitted on June 2. The court adopted

the Magistrate's report on August 3. The forty-one days

for motions practice (March 13 to April 22) were properly

excluded under section 3161/h)1)(F); this is not chal-

lenged. Although appellants raise creative arguments to

the contrary, we hold that the twenty-six days during

which the magistrate had the motions under advisement

April 22 to May 18) and the thirty davs during which

the district court had the motions under advisement (June

2 to July 1) were excludable under section 3161(h)(1) J).

section 3161;hj)(1)(J) provides for the exclusion of

“delay reasonably attributable to any period, not to

exeeed thirty days, during which anv proceeding con-

cerning the defendant is actually under advisement by

33a

(2149)

the court.” 14 Appellants dispute the exclusions on two

grounds, First, they argue that section 3161(h)(1)(J)

permits only a total of thirty days under advisement

period for both the magistrate and the district court.

This is an issue of first impression. Although in United

States v. Delongchamps, 679 F.2d 217, 219-20 (11th Cir.

1982) we observed that section 3161:h)(1)\J) permits

the magistrate a maximum of thirty davs during which

to take motions under advisement, see also United States

2nineri. 670 F.2d at 707 (holding that section 3161 /h)

1) J) allows thirty day exclusion for magistrate having

motions under udvisement), this does not resolve the

issue of whether the district court then may take an ad-

ditional excludable thirty day under advisement period

of its own for consideration of the same motion.

4 The magistrate spent a total of sixty-seven days

dealing with the motion=. Forty-one of those days March

13 through April 22) were excludable us motions prac-

tice under section 3161/h)(1)(F). Appellants correctly

argue that the excludable time under section 3161 (h) 1)

I) ended on Aj rij 22. when the magistrate learned that

4 suppression hearing would not be necessary and when

he orally advised the parties of the recommendations that

he intended to make in his report and recommendation.

The Judicial Guidelines at 33 recommend that the “‘exclu-

sion for delay resulting from pretrial motions be treated

as ending at such time as the court has received every-

thing it expects from the parties before reaching a deci-

sion —that is, such date as all anticipated briefs have been

* The section has as its predecessor section 3161(h)(1)(G) of the

original 1974 Speedy Trial Act. The provision was “added by the

Senate Judiciary Committee so that such exclusions would not have

to be made under the ‘ends of justice’ continuance provision; the 30-

day limitation was later added by the House.” Frase, at 693 (1976).

34a

(2149)

filed and any necessary hearing has been completed. [2150

Thereafter, the matter should be treated as ‘under ad-

visement’ and subject to the rules of subparagraph (J).”’

Section 3161(h)(1)(F) and section 3161(h)(1)(J) dove-

tail; the former ends when the latter begins. Thus the

Judicial Guidelines at 42 recommend that the ‘under ad-

visement period” of section 3161/h)\1)\J) begins on “the

day following the date on which the court has received

everything it expects from the parties. examining plivsi-

cians, etc., before reaching a decision. It is normally the

date following the expiration of an exclusion under sub-

paragraph (A), (B), (F), or (G).” Once all parties’ ma-

terials are in and any needed hearings are held (or it is

determined that none are needed), the matter should be

treated as “under advisement” and subject to section

3161(h)(1)(J) rather than section 3161(h)(1)/ F).

—

The under advisement period was triggered on April

22, when the magistrate first learned from the parties that

no suppression hearing would be required. As of that

date, the magistrate had before him all of the materials

he expected to receive from the parties. With April 22 as

the starting date. the issue becomes whether the magis-

trate issued his report and recommendation within the

thirty days permitted and whether the district court then

is entitled to an additional thirty davs during which to

have the motions under advisement.

The magistrate submitted his report and recommenda-

tion on May 18. Appellants contend that he thus expend-

ed twenty-six days (from April 22 to May 18) of the

thirty day total under advisement exclusion, thus leav-

ing the district court a total of four days in which to dis-

pose of the motions. We reject their argument that the

thirty day under advisement exclusion is a total for both

3048

{2151}

the magistrate and the district court. The Judicial Guide-

lines flatly state that “when a pretrial matter is consid-

ered by both a magistrate and a judge pursuant to ‘the

Magistrates Act), the Committee believes that the Speedy

Trial Act, permits tie thirty day periods for consideration

of the same matter” emphasis added), We agree with

thie Guidelines.

The third circuit adopted a similar approach in United

States v. Molt, 631 F.2d 258 (3d Cir.1980). In Molt, the

defendant was tried before several judges on different

indictments, two judges made decisions on pretrial mo-

tions, decisions which the government and the defense

agree were binding as to all of the indictments. One

judge handled a suppression motion, while the second

judge handled Molt’s challenge to the constitutionality

of the statute under which he was charged, On appeal,

Molt argued that the Speedy Trial Act allowed only a

total of thirty days ‘under advisement” for both judges

und both motions. In rejecting thi- -ontention, the third

circuit stated:

Such # narrow construction is not required by the

language of the Act, nor is it consistent with the Act’s

intent. It is unlikely that a complex case like this, with

motions affecting the disposition of multiple indict-

ments being heard separately by different judges, was

envisioned by the drafters. Although the Act is meant

to speed prosecutions, it is not intended to ensnare trial

judges. To allow only one exclusion would have that

ettect. for if only [one judge's] advisement period is ex-

cluded, then no time is allowed [the other judge’. First,

this forces judges to race to decisions. Second, because

one judge may not be aware of the action of the other,

neither may even know that the time for consid-|2151)

eration of the motion has been preempted by the other

judge. A single judge hearing two motions is aware of

36a

(2151)

the limits and can plan accordingly. Where two or more

judges are hearing separate motions affecting a single

case, each should have the same opportunity to bring

his schedule into conformity with the Speedy Trial Act.

Id, at 261-62 (emphasis in original).

As a practical matter, allowing only a thirty day period

within which both magistrate and judge can consider a

motion might well unfairly limit full consideration of im-

portant and complex pretrial motions. The magistrate

must review all transcripts of evidentiary hearings as well

as counsel's briefs before determining the outcome of a

motion. He must then articulate, in writing, findings of

fact and conclusions of law. After the magistrate files his

report, the parties have ten days within which to file ob-

jections. 28 U.s.C. § 636(h)(1).'* The district court then

must conduct an independent review and dispose of the

motion. We decline to adopt a mechanical rule that all

of this must be accomplished within thirty days. Such a

rule is not required by the Speedy Trial Act. Rather, we

agree with the Judicial Guidelines that the magistrate

and the district court have thirty days each during which

to take pretrial motions under advisement. Here, the

magistrate conducted the suppression hearing on April

22 and issued his report and recommendation on May 18.

That span of twenty-six days during which he had the

motions under advisement was less than the thirty to

which he was entitled.'*

'§ We need not decide whether this ten days may properly be ex-

cluded under other sections cf the Speedy Trial Act.

'6 We do not wish to suggest that magistrates and district courts

should, as a matter of course, routinely take motions under advise-

ment for the maximum permissible period:

the designation of magistrates to hear pretrial matters should

not become a justification for prolonging the pretrial stage. Mag-

37a

[2152]

(10) Appellants’ second ground for arguing that the

district court was not entitled to a thirty day under ad-

visement period is that, because they had not objected

to the magistrate’s report and recommendation, there wus

nothing for the district court to take under advisement.

They base this argument in part on a local rule of court

which provides that absent objection, a magistrate’s report

and recommendation becomes the order of the court. The

magistrate’s report, however. cannot automatically be-

come the order of the court merely because none of the

parties object.'’ The appellants’ argument misunderstands

the [2152] role of the mugistrate under the Federal Magis-

trates Act. Magistrates are not Article III judges; their

jurisdiction is derived from the Magistrate’s Act. That

Act provides that a federal judge mav reject, in whole or

in part, the findings of the magistrate. 28 U.S.C. § 636 b

(1). The statute does not limit the court’s power to reject

istrates should normally be expected to render their determi-

nations, proposed findings, and recommendations sufficiently

promptly so that the judge has adequate time to consider the

matter without causing the total time a matter is “under ad-

visement’’ to exceed thirty days. A district judge referring a

matter to a magistrate should continue to maintain control over

the case during the period of consideration by the magistrate

so that the purposes of the act will be accomplished.

Judicial Guidelines at 42.

‘? The record suggests, however, that the operation of the local

rule is far from automatic:

MR. PASHLEY: I would point out that that particular report

which was an order and a report became the order of the Court

because there were no objections filed thereto. In other words,

if a [report and recommendation] from the magistrate is, in fact,

sent on to the Court and there are no objections thereto, the

local rule is it becomes the order of the Court within 10 days.

THE COURT: Not necessarily. I suppose more often than

not I do adopt the magistrate’s report, but I have on occasion

not adopted one even when there has been no objection to it.

Osa

[2152]

only those reports to which objections are made, and no

local rule may alter a district court's scope of jurisdiction.

Regardless of the likelihood that a court will accept or

reject a particular magistrate’s report, the court's power

to do so cannot be questioned. In the present case, the

district judge had to rule on the motions. For example.

the court might well have remanded to the magistrate

with instructions to determine whether a fourth amend-

ment violation alleged by appellants) may have indi-

rectly resulted in tainted evidence that ought not be ad-

mitted into evidence. Further, one pretrial motion was

not moot: the magistrate deferred this motion to the dis-

trict judge for consideration. The court could have re-

quired a hearing on that motion.

The district judge, in her order denying appellants’

motion to dismiss for failure to comply with the Speedy

Trial Act, stated unmistukably that “during this period

of time between submission of the magistrate’s report

and recommendation and the court’s adoption of the

report the Magistrate's Report was under advisement.

Thirty days of this period is excluded in computing the

time within which the trial must commence. See 18 U.S.C.

$3161 1) J).” The legitimacy of the thirty day exclu-

sion ix in no way negated by the fact that the court did

eventually adopt the recommendations of the magistrate.

The district judge had several motions to review and re-

solve, and we decline to inquire whether that process

should have taken her the full thirty days. See Frase.

supra, at 694 (“Of course, the judge himself will deter-

mine whether the period of delay meets this definition

and there is nothing to prevent judges from routinely

taking all motions ‘under advisement’ for the maximum

of 30 days’’),

39a

(2153)

(11, 12] Appellants stress the statutory language of

section 3161(h)(1)(J) that the court must have the pre-

trial motions ‘‘actwally under advisement” before the time

is deemed excludable. From this language they argue

that unless the district judge can demonstrate that she

was actually reviewing a particular matter and can show

the precise amount of time she spent on this review, then

the time is not excludable: to be excludable under section

3161 /h)(1)(J). the time must be reasonably attributable

to the decisionmaking process. Such an approach would

require appellate courts to evaluate the relative merit ot

pretrial motions to determine how much “advisement”

was appropriate by the district court. Appellants appar-

ently would require the district court to keep « daily log

to keep account of the amount of time spent on each pre-

trial motion. We cannot read this much into the words

“actually under advisement.”” While the section does re-

quire that the under advisement period be reasonable.

we leave determination of the reasonableness issue to the

sound discretion of the trial judge.

The section cannot mean that the district judge must

demonstrate that she was actually considering the mut-

ter on every excludable day. Rather, the provision en-

visions excludable time as being that time, prior to dis-

position, during which the court has the matter under

advisement or thirty days. whichever is less. Thus, if a

court renders [2153] its decision on the tenth day after its

submission, then the matter is deemed under “actual ad-

visement”’ for ten days and that the court can only exclude

ten days, not thirty days. The thirty day under advise-

ment exclusion. like the other exclusions in section 3161,

is automatic. United States v. Stafford, 697 F.2d 1368, at

pp. 1371-72 (11th Cir.1983). The Senate Judiciary Com-

40a

(2153)

mittee’s Report recommended that the 1979 amendments

“leave intact” the “automatic application of exclusions

us provided in existing law.’’ Specifically, the Report

noted that section 3161(h)(1) ‘currently provides that

periods of delay consumed by the following are to be au-

tomatically excluded: . . . Periods when [hearings on pre-

trial motions) are under advisement by the court.” 1979

Senate Report at 33, excerpted in Legislative History at

113-114. Accord Stafford, at 1371-72 (Concluding that the

language of Section 3161(h) ‘clearly indicates” that each

excludable period listed in the section ‘automatically is a

period of delay’’ and “holding that Section 3161(h) cre-

utes automatic exclusion .. ."’); United States ». Fogarty,

692 1'.2d 542, 545 (Sth Cir.1982) (‘‘[slection 3161(h)(1)

F) clearly requires automatic exclusion of the sixty-one

days during which such pretrial motions were continu-

ously pending’’); United States v. Brim, 630 F.2d at 1312-

1313 adopting the district court’s conclusion that “‘the

Act intended automatic exclusion”). But see S.Rep. No.

1021, 93d Cong., 2d Sess. 36 (1974) excerpted in Legisla-

tive History at 104.'* For the Act to work, the parties

* It was not the intent of the Committee in adopting this amend-

ment to give a blanket exception to matters under advisement

for the time excluded must be “reasonably attributable” and

the matter must be ‘‘actually under advisement.” Therefore the

judge must be actually considering the question, for example,

conducting the research on a novel legal question.

S.Rep. No. 1021, 93d Cong., 2d Sess. 36 (1974) excerpted in Legisla-

tive History at 104. Similarly, in 1979, the Senate Judiciary Com-

mittee noted:

Although some witnesses contended that all time consumed by

motions practice, from preparation through their disposition,

should be excluded, the Committee finds that approach unrea-

sonable. This is primarily because, in routine cases, preparation

time should not be excluded where the questions of law are not

novel and the i».es of fact simple. However, the Committee

would permit through its amendments to subsection (h)(8)(B)

dla

12154]

must know, as each day passes, whether or not that day

is excludable. We must “insure the ability of the courts

to administer the Act.’’ United States v. Bufalino, 683

F.2d 639, 646 (2d Cir.1982), petition for cert. filed,

U.S. __, 103 S.Ct. 727, 74 L.Ed.2d —— (1982). To

hold that an appellate court must examine retroactively

the amount of “advisement” needed for a given pretrial

motion would inject a dangerous element of uncertainty

into the statutory scheme. Accord Stafford, at 1371.

According to our calculations, appellants were brought

to trial within the seventy days net time allowed by the

Speedy Trial Act. Trial began 156 days after arraign-

ment. Ninety-seven days were properly excluded: forty-

one days for pretrial motions practice (including eight

days falling within the initial thirty day period following

arraignment), twenty-six days during which the magis-

trate had the motions under advisement and thirty days

during which the [2154] district court had the motions

under advisement.

Other Arguments on Appeal

(13) Appellants raise several issues which need not

detain us long. First, we find that the district court did

not violate either Federal Rule of Evidence 801(d)(2)(E)

or United States v. James, 590 F.2d 575 (Sth Cir.), cert.

denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.E-.d.2d 283 (1979),

reasonable preparation time for pretrial motions in cases pre-

senting novel questions of law or complex facts. We suggest cau-

tion by courts in granting “ends of justice’ continuances pur-

suant to this section, primarily because it will be quite difficult

to determine a point at which preparation actually begins.

1974 Senate Report at 33-34, excerpted in Legislative History, at 114

42a

[2154]

in admitting into evidence certain statements made by

coconspirator Lester Mers. The government met the

James requirement that such statements are admissible

only if there is ‘substantial independent evidence” of a

conspiracy. Jd. at 581 ‘emphasis omitted), Our earlier

recitation of the facts shows that Ferrante and Mvers

were acting in concert with Lester Mers. Ferrante and

Myers, who were both armed at the time, monitored the

transfer of the marijuana-laden trucks from Lester Mers

to the undercover Di:A agents; they began following the

truck until Lester Mers ordered them to follow him in-

stead; they then complied with Mers’ directive and fol-

lowed him to the restaurant where Herman Mers was

Waiting. Similarly, this evidence, combined with other

testimony by DEA agents, was sufficient to support Fer-

rante’s and Myers’ convictions for conspiracy and aiding

und abetting. as

14) Secondly, the trial court did not abuse its disere-

tion in denying Lester Mers a jury instruction on the en-

trapment defense. \ defendant cannot avail himself of an

entrapment defense unless the initiator of As criminal

activity is acting as an agent of the government. United

States v. Noll, 600 F.2d 1123, 1129 (5th Cir.1979); United

States v. Garcia, 546 F.2d 613, 615 (5th Cir.), cert. denied.

430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977). Les-

ter Mers never dealt with or even met Fiori, the govern-

ment’s informant. Any inducements to Lester Mers to

trafiie in drugs came from Herman Mers, a private citi-

zen, While Lester Mers’ vicarious entrapment theory is

ingenious, it is not the law,

‘15! Thirdly, Lester Mers argues that when the gov-

ernment arranges to provide the drugs to a subject and

also arranges for another government agent to purchase

43a

(2154!

the drugs, then the government has achieved a ‘‘full

circle’ transaction that violates a defendant's due pro-

cess rights. The facts of this case, however, do not sug-

gest a full-circle transaction. The defendants stipulated

at trial that no DEA agent supplied marijuana to Fiori

or to the Mers. There also was no evidence that Fiori

supplied the marijuana.

(16] Fourthly, Herman and Lester Mers argue that

their due process rights under Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) were vio-

lated by the government's refusal to disclose Fiori’s arrest

record and withholding of material relating to the exis-

tence of any remunerative agreement between Fiori and

the government. Defendants offered no theory ot how

such material could have been relevant, admissible evi-

dence. Because Fiori was not called as a witness, appel-

lants’ arguments based on Federal Rules of Evidence 608.

609 and 404. b) are inapposite.

AFFIRMED.

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