Petition — Kubiak v. United States

IN THE

Supreme Court of the United States

October Term, 1983

TERRENCE KUBIAK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

FREDERICK W. LEONHARDT

and

JOHN J. UPCHURCH

(Counsel of Record)

213 Silver Beach Avenue

Daytona Beach, Florida 32015

Telephone: (904) 257-1100

Attorneys for Petitioner

— —— ——_—__—————— —-C_C000€”_CI»*“_.>"""_)E___——_—_——————————

THE CASILLAS PRESS. INC - 1717 K Street NW — Washington D.C -— 223-1220

(i)

QUESTION PRESENTED

I. Whether the initial custodial detention of an in-

dividual by federal agents constitutes an “arrest” for pur-

poses of 18 U.S.C. § 3161(b) which requires the filing of

an indictment within thirty days of arrest.

LIST OF PARTIES IN COURT OF APPEALS

Appellants

Theodore Burton

Terrence Kubiak (Petitioner)

David Parks

(iii)

TABLE OF CONTENTS

Page

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LIST OF PARTIES IN COURT OF APPEALS ................. i

OPINION BELOW ........... esa ke heed ob som Taverne 1

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CONSTITUTIONAL PROVISIONS AND

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REASONS FOR GRANTING THE WRIT ..................... 4

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APPENDIX A:

Opinion of the Court of Appeals ©. 00.000. cee la

APPENDIX B:

Judgment of the Court of Appeals 2.0000... ec eee 20a

APPENDIX C:

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APPENDIX D:

Sixth Amendment to United States Constitution ............. 32a

APPENDIX E:

Excerpi, Report on Speedy Trial Amendments Act of

1979, Committee on the Judiciary of the U.S. House

of Representatives, 96th Congress, Ist Session .............. 33a

(iv)

Cases:

Dillingham v, United States,

I SS es tae ls Ga eu ae a dle Nis GONG 8 om 6

United States v. Avalos,

ee es oe wed ke bee bese wead 6

United States v. LaCruz,

ee COM ROOTS i soc ci vceneenvesetsectoess 6

United States v. Marion,

Ta a an. un Ge eke ae) sen twain bed 6

United States v. Solomon,

ee cance ehwebbeebeweeceens 5

Constitutional Provisions

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Statutes:

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es eins abun at ce ehh kee ee te mes 2,4, 5

Be en PRUE herve rss cacececen AAR RO ec 4 2

i OL al Ghats bdo s tse de dushna aces 6 CREO 2

i re ee Taw es hts baked ike dn Clie e Sree as cake 4

Treatises:

Frase, Speedy Trial Act of 1974,

Re OR OO ers MA RT 5

Partridge, Legis/ative History of Title | of the

Speedy Trial Act of 1974

Rf eee eer Freee eer re ere 5

IN THE

Supreme Court of the United States

October Term, 1983

No.

TERRENCE KUBIAK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Eleventh Circuit, No. 81-6007, entered in the above-

entitled case on July 13, 1983.

OPINION BELOW

The opinion of the Court of Appeals, sub. nom. United

States v. Kubiak is as yet unpublished; however, an ad-

vance copy published by West Publishing Company is re-

printed in Appendix A.

2

JURISDICTION

The judgment of conviction of the United States

District Court for the Middle District of Florida

was affirmed by judgment of the United States Court

of Appeals for the Eleventh Circuit dated May 20,

1983, and entered July 13, 1983. A Petition for

Rehearing on behalf of a co-defendant, David Parks,

was denied by the Court of Appeals on August 3,

1983. The jurisdiction of the Court is imoked

umer 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND COURT RULES INVOLVED

This case involves 18 U.S.C. §§3161 and 3162, reprinted

in Appendix C to this petition.

STATEMENT OF THE CASE

References to the Record will be designated as(R- ), to

the transcript of preliminary hearings as (TP- ) and to

the trial transcript as (T- ).

Petitioner was convicted of violations of 21 U.S.C.

§841(a)(1) and 21 U.S.C. §955c. The United States District

Court for the Middle District of Florida had jurisdiction

of this case.

At about 3:38 p.m. on February 5, 1981, Terrence

Kubiak and a companion, Theodore Burton, while aboard

the Shannon Brown II, were stopped by Coast Guard of-

ficials responding to an anonymous caller reporting a “pot

transaction” allegedly occurring several miles offshore of

the Ponce Inlet. The Coast Guard terminated the Shannon

Brown II’s voyage for lack of proper safety devices and

escorted the vessel to the Coast Guard station on shore in

New Smyrna Beach. A warrantless search of the Shannon

Brown II was conducted by Coast Guard officials absent

consent of Kubiak or Burton. As a result of the search,

Kubiak and Burton were arrested by the United States

Coast Guard at 6:10 p.m. for violation of federal laws

against smuggling marijuana into the United States.

(TP-318). Defendants were advised of their rights and

frisked by a Coast Guard official. Subsequently, officers

from the United States Customs Department arrived on

the scene and re-arrested defendants. (T-414). Defendants

were thereafter placed in the custody of New Smyrna

Beach police officers who re-arrested, handcuffed and

transported them to the County Jail that evening.

(TP-392). Petitioner was charged by information with

violation of State laws against trafficking marijuana.

(TP-449).

At the direction of the United States Attorney’s office

State prosecution was initiated against defendants.

(TP-425). Defendants began preparing their defense by

subpoenaing several witnesses for deposition. On April 23,

1981, while the first of the depositions was in progress,

defendants received notice that the charges against them

had been nolle prossed by the state. (TP-450). Apparently

State prosecutors realized they faced a jurisdiction pro-

blem and requested federal prosecution of the case.

(TP-456).

Shortly thereafter defendants learned they were the sub-

ject of a federal grand jury investigation. (TP-406). On

June 10, 1981, a grand jury indictment was issued charg-

ing defendants with violation of federal laws against

smuggling marijuana into the United States. (TP-496).

Defendants voluntarily surrendered at the federal court-

house and were released on bond.

Motions to Dismiss and Suppress were filed on behalf of

defendants and subsequently denied by the United States

4

District Court. On August 20, 1981 defendants were tried

before the United States District Court for the Middle

District of Florida and subsequently convicted. An appeal

was filed on behalf of Petitioner on October 1, 1981,

asserting that Petitioner’s motion to dismiss had been im-

properly denied by the District Court. The United States

Court of Appeals for the Eleventh Circuit affirmed Peti-

tioner’s conviction on May 20, 1983. No petition for re-

hearing was filed on behalf of Appellant. A petition for

rehearing on behalf of a co-defendant, David Parks, re-

mains pending before the Court of Appeals.

REASONS FOR GRANTING THE WRIT

1. THE SPEEDY TRIAL ACT, 18 U.S.C. §3161, ET. SEQ.

IS TRIGGERED BY FEDERAL ARREST, REGARD-

LESS OF WHETHER FORMAL CHARGES ARE

BROUGHT SUBSEQUENT TO ARREST.

The issue presented in this case is one of statutory inter-

pretation of Title I of the Speedy Trial Act of 1974, 18

U.S.C. §316i, ef seqg., (hereinafter referred to as “the

Act”) which is reprinted in full in Appendix C. It is unclear

whether the Act is triggered by the initial arrest, or whe-

ther the trigger mechanism is the filing of a formal charge

following arrest. Consequently, the law is developing

unevenly and ambiguously. It is imperative for the Court

to exercise its supervision in this area in order to assure

consistent application of the law.

The Court of Appeals held that the sanction provision

of the Act, §3162(a)(1), did not apply to an individual who

had not been formally charged with an offense following

arrest, agreeing with the Government’s contention that

“arrest” in the Act .efers to that point at which a defen-

dant is first charged with a crime. They held, in effect, that

the detendant had not been “arrested” within the meaning

of the Act when the defendant’s sea voyage was terminated

and he was taken into custody.

On the contrary, the Act’s legislative history reveals no

such intent. The Committee on the Judiciary of the U.S.

House of Representatives, 96th Congress, Ist session, in

its report on the Speedy Trial Amendments Act of 1979

(Report #9b-390), stated (on page 3, paragraph 1):

The Act provides that, after July Ist, 1979, ac-

cused persons must be indicted within 30 days of

arrest, arraigned within 10 days of indictment,

and tried within 60 days of arraignment. Failure

to meet the time line of 30 days from arrest to in-

dictment calls for a dismissal of the charges . . .

(Reprinted in pertinent part, Appendix E) (Em-

phasis added)

The Eighth Court of Appeals has recognized the

“gap in... [the] . . . remedial provisions” of 18 U.S.C.

§3162(a)(1) when applied to those cases in which only an

arrest has occurred and no charges have been filed. United

States v. Solomon, 679 F.2d 1246 (8th Cir. 1982). Legal

scholars have been critical. See Frase, The Speedy Trial

Act of 1974, 43 U.Chi.L.Rev. 667 (1976), where the au-

thor observes, “there are major difficulties in defining ex-

cludable time periods, interim provisions and allowable

sanctions.” id., at 676.

The Speedy Trial Act of 1974 was instituted with a two-

part objective. First, it sought to reduce crime and the

danger of recidivism; second, it aimed at giving real mean-

ing to the sixth amendment speedy trial protection by

establishing time limits within which an accused must be

brought to trial. See, A. Partridge, 1974 House Commit-

tec Report: Legislative History of Title I of the Speedy

6

Trial Act of 1974 (Fed. Judicial Center 1980).

It is apparent that the Act and the sixth amendment

have consistent goals, i.e., to protect accused individuals

from lengthy, unnecessary prosecutorial delays. There-

fore, the action triggering speedy trial protection under the

sixth amendment, namely arrest, should be no less signifi-

cant merely because a defendant is proceeding under a

Statutory right rather than a constitutional right.

There is a clear conflict between this Court’s definition

of “arrest” under the sixth amendment and the Court of

Appeal’s definition of “arrest” under the Act in the instant

case. In sixth amendment cases, this Court has held that

physical confinement constitutes an arrest. See United

States v. Marion, 404 U.S. 307 (1971), Dillingham vy.

United States, 423 U.S. 65 (1975), and United States v.

Avalos, 541 F.2d 1100 (Sth Cir. 1976). The Court of Ap-

peals in the instant case requires physical confinement plus

the filing of charges against the accused. This conflict re-

quires attention by this Court to resolve a seemingly incon-

sistent development in the law. There should be no distinc-

tion in the definition of “arrest” for statutory as opposed

to constitutional purposes.

Additionally, there is an apparent confict between the

Court of Appeals holding in Kubiak and United States v.

LaCruz, 441 F.Supp. 1261 (S.D.N.Y. 1977), affirmed

without opinion at 676 F.2d 688 (3rd Cir. 1982).

In LaCruz, the defendant was indicted six months after

his arrest by federal agents. In the interim, the case had

been recommended for state prosecution, turned down,

and inadvertently misplaced. The District Court held that

the prosecutor's delay was not an “excusable” one under 18

U.S.C. §3161(h), and, therefore, dismissed defendant’s in-

dictment with prejudice.

-

There was similar prosecutorial inadvertence in Kudiak.

The record reflects that state prosecutors should have

realized their jurisdiction problems in ample time to for-

ward the case to federal prosecutors and assure com-

pliance with 18 U.S.C. §3161(b). However, state pro-

secutors maintained their pretrial investigation for two

months under the more liberal state discovery rules while

prosecuting a case over which the state clearly had no

jurisdiction. The record amply demonstrates that the ar-

rest was beyond the State’s territorial jurisdiction and that

federal prosecution was the only option open to the ar-

resting agents.

CONCLUSION

As the courts below are in need of a clearly articulated

standard to apply to such cases in order to determine what

is an arrest for purposes of the Speedy Trial Act, this peti-

tion for a writ of certiorari should be granted.

Respectfully submitted,

FREDERICK W. LEONHARDT

JOHN J. UPCHURCH

(Counsel of Record)

213 Silver Beach Avenue

Daytona Beach, Florida 32015

Telephone: (904) 257-1100

Attorneys for Petitioner

la

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

V.

Terrence A. KUBIAK, David Parks,

Theodore Burton, IV,

Defendants-Appellants.

No. 81-6007

United States Court of Appeals,

Eleventh Circuit.

May 20, 1983.

Appeals from the United States District Court for the

Middle District of Florida.

Before FAY and VANCE, Circuit Judges, and

ALLGOOD,® District Judge.

PER CURIAM:

Defendants were convicted in the United States District

Court for the Middle District of Florida, John A. Reed,

Jr., J., of conspiracy to possess with intent to distribute

marijuana, and possession with intent to distribute mari-

juana, and they appealed. The Court of Appeals held that:

(1) Coast Guard’s initial stop and boarding of vessel was

constitutional; (2) motions of defendants to dismiss indict-

*Honorable Clarence W. Allgood, U.S. District Judge for the

Northern District of Alabama, sitting by designation.

2a

ments for Speedy Trial Act violations were properly

denied; (3) evidence was sufficient to support defendant’s

conviction on conspiracy counts; and (4) failure of pro-

secution to provide defendant, in timely manner, with an

exculpatory statement made by a_ jointly indicted co-

conspirator did not violate Brady.

Affirmed.

1. Shipping — 9

Where vessel was stopped five or six miles from Florida

coastline, it was in customs waters and subject to opera-

tion of federal law, which gives Coast Guard plenary

power to stop and board any American vessel anywhere on

high seas in complete absence of suspicion of criminal ac-

tivity; therefore, initial stops and boarding of vessel was

not unconstitutional. U.S.C.A. Const.Amend. 4; 14

U.S.CA. — 89(a).

2. Criminal Law — 577.16(1)

Defendants were initially arrested by federal authorities,

but were never taken before federal magistrate, nor were

federal charges ever lodged against them in a complaint;

rather, defendants were charged by an information filed in

State circuit court, and then federal prosecuting authorities

were encouraged to take over prosecution of offense;

therefore, motions of defendants to dismiss indictment for

Speedy Trial Act violations were properly denied. 18

U.S.C.A. §§ 3161 et seq., 3162(a)(1).

3. Conspiracy — 47(12)

Evidence was sufficient to support defendant’s convic-

tion of conspiracy to possess with intent to distribute mari-

juana. Comprehensive Drug Abuse Prevention and Con-

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

3a

4. Criminal Law — 627.8(2)

Failure of prosecution to provide defendant in timely

manner, with an exculpatory statement made by a jointly

indicted co-conspirator did not violate rule announced in

United States Supreme Court decision providing that pro-

secution may not suppress evidence requested by defen-

dant which is favorable to defendant and material to his

guilt or punishment; statement of defendant’s co-cons-

pirator was discovered and presented at trial, and conse-

quently, defendant’s claim involved mere delay in

transmittal of information or materials to defense and not

outright omission that remained undiscovered until after

trial.

5. Criminal Law — 627.8(6)

Failure of prosecution to provide defense with copy of

relevant lab report prior to trial did not compel trial court

to strike testimony of Government chemist; defense never

asked for recess or continuance or for inspection or testing

of contraband, and therefore made no showing of preju-

dice but merely asserted that Government’s untimely

disclosure denied defendant right to effectively challenge

report or pursue further discovery concerning evidence or

Government witness. Fed.RulesCr.Proc.Rule 16(d)(2), 18

U.S.C.A.

6. Criminal Law — 404(4)

Sample of marijuana taken by Government witness

from boat used in criminal activity was not improperly ad-

mitted into evidence; question of whether Government

failed to introduce evidence connecting marijuana to

defendant, or failed to establish chain of custody of mari-

juana sample affected not admissibility, but only weight

of such evidence.

da

Appeals from the United States District Court

for the Middle District of Florida

Before FAY and VANCE, Circuit Judges, and ALL-

GOOD’, District Judge.

PER CURIAM:

Appellants Terence Kubiak, Theodore Burton, and

David Parks were found guilty of conspiracy to possess

with intent to distribute marijuana and possession with the

intent to distribute marijuana, in violation of 21 U.S.C.

Sections 841(a)(1) and 95Sc.' The three men were tried to-

gether in the district court, and each has appealed. Upon

review, we affirm each conviction.

BACKGROUND

At approximately 3:00 p.m. on February 5, 1981, a

communications employee of the United States Coast

Guard received an anonymous phone call from a man who

stated that a large transfer of marijuana was to take place

off the Ponce de Leon Inlet in the Atlantic Ocean. No

other information was given. The information was relayed

immediately to Chief Boatswain Mate David Creed of the

Coast Guard. Chief Creed promptly ordered a boat crew

to check the area in the Atlantic Ocean east of the Inlet

and to remain in radio contact with the Coast Guard sta-

tion.

*Honorable Clarence W. Algood, U.S. District Judge for the Nor-

thern District of Alabama, sitting by designation.

Appellant Parks was found guilty only of conspiracy to possess

with the intent to distribute marijuana. A motion for a directed ver-

dict of acquittal on behalf of appellant Parks was granted as to the

substantive possession charge.

Sa

The crew left the station in a 40-foot Coast Guard vessel

under the command of Randy Miller, Boatswain Mate Se-

cond Class. The Coast Guard vessel encountered a 31-foot

Chris Craft Sport Fisherman named the Shannon Brown

Il about five to six miles east of the shoreline of New

Smyrna Beach. When first sighted by the Coast Guard, the

Shannon Brown was lying dead in the water, and no other

boats were in the immediate vicinity. As the Coast Guard

vessel came within one-half mile of the Shannon Brown,

her engines started and she moved at a high rate of speed

on a northeasterly course away from the approaching

Coast Guard vessel. The Shannon Brown continued on

this for a minute or two and then turned toward the Coast

Guard vessel and proceeded at a slow rate of speed. At this

point Randy Miller radioed the Shannon Brown and stated

his intention to board the boat and conduct a documents

and safety inspection.

As the two vessels neared, Randy Miller noticed that the

bow of the Shannon Brown was riding low in the water

and that the registration numbers displayed on her bow in-

dicated that the boat was registered in Delaware whereas

the port of call painted on the transom was New Smyrna

Beach.

Randy Miller sent a two-man boarding party to the

Shannon Brown. The boarding party found two people on

board the vessel — appellants Burton and Kubiak. The

boarding party was advised that the cabin was locked and

neither occupant had a key. No registration papers were

produced and the boarding party noticed that there were

no floatation devices visible above decks. They also notic-

ed that the doors to the cabin of the boat were locked, all

port holes were covered with a tinting material and

draped, and the window in the door of the cabin was

tinted but not draped.

6a

The Shannon Brown was escorted back to the Coast

Guard station at Ponce Inlet for the purpose of finishing

the safety and document search that was commenced on

the high seas, but frustrated by the boarding party’s in-

ability to enter the cabin.

When the Shannon Brown approached the dock at the

Coast Guard station, the Coast Guard’s dock crew noticed

that the boat was riding low in the water. After the Shan-

non Brown docked, appellant Burton was asked if the

boat was taking on water. He responded that she was tak-

ing on a lot of water. The dock crew was concerned that

the Shannon Brown might sink at dock side.

Several members of the dock crew looked through the

tinted window of the vessel’s cabin door and saw what ap-

peared to be bales of marijuana. They a'so smelled mari-

juana. The Coast Guard broke the cabin door open and

discovered square packages wrapped in burlap and plastic,

containing marijuana.

The Coast Guard placed appellants Burton and Kubiak

under arrest and then contacted numerous federal, state,

and local law enforcement agencies; thereafter, law en-

forcement officers arrived from the New Smyrna Beach

Police Department, the U.S. Customs Service, the Volusia

County Narcotics Task force, and the federal Drug En-

forcement Administration.

Federal authorities declined federal prosecution in favor

of stave prosecution, even though the initial arrest was

made by the U.S. Coast Guard. Consequently, after ap-

pellants Burton and Kubiak were arrested by the Coast

Guard, they were rearrested on February 5, 1981, by

Florida state and local law enforcement officers. The ap-

pellants were charged by an intormation filed in the

Fionda Circun Court for the Seventh Judicial Circuit.

7a

The state prosecuting authorities became concerned that

the state court might lack jurisdiction over the appellants

because the Shannon Brown was apprehended beyond the

three-mile limit. Federal prosecuting authorities were en-

couraged to take over the prosecution of the offense. On

April 9, 1981, a federal grand jury investigation was com-

menced, and on June 10,1981, an indictment was returned

against appellants Burton, Kubiak, and several other per-

sons for violation of the federal laws relating to controlled

substances. Appellants Burton and Kubiak voluntarily

surrendered themselves to the United States Attorney for

the Middle District of Florida. No federal complaint was

ever filed, nor was any federal arrest warrant obtained for

the arrest of Burton or Kubiak.

Appellants Burton and Kubiak

[1] On appeal appellants Burton and Kubiak argue that

the district court committed reversible error in denying

their motions to suppress the physical evidence seized

from the Shannon Brown, since the initial stop and board-

ing of the vessel was unconstitutional. We find this argu-

ment unavailing. The Shannon Brown as stopped five or

six miles from the Florida coastline. She was therefore in

customs waters and subject to the operation of federal

law. Where a vessel is subject to the operation of federal

law, Section 8%a), 14 U.S.C. Section 89a) (1976), “gives

the Coast Guard plenary power to stop and board [the

vessel or] any American Flag vessel anywhere on the high

seas in the complete absence of suspicion of criminal ac-

tivity.”? United States v. Williams, 617 F.2d 1063, 1075

Section 8% a) provides the following:

The Coast Guard may make inquiries, examinations, in-

spections, searches, seizures, and arrests upon the high

seas and water over which the United States has jurisdic-

1075 (Sth Cir.1980) (en banc); United States v. Warren,

578 F.2d 1058, 1064 (Sth Cir. 1979) (en banc). Once board-

ed it was readily apparent that the vessel was in non-

compliance as to the proper documents and safety equip-

ment. The observations made thereafter provided an am-

ple basis for the action taken by the Coast Guard.

{2} Appellants Burton and Kubiak also contend that the

trial court committed reversible error in denying their mo-

tions to dismiss the indictment for an alleged violation of

the Speedy Trial Act of 1974, 18 U.S.C. Sections 3161, er

seq., (1976) (the “Act”). The appellants sought a dismissal

of the indictment with prejudice pursuant to Section

3162(a)(1), which reads as follows:

tion, for the prevention, detection and suppression of

violations of laws of the United States.

For such purposes, commissioned, warrant and petty of-

ficers may at any time go on board of any vessel subject to

the jurisdiction, or to the operation of any law, of the

United States, address inquiries to those on board, ex-

amine the ship’s documents and papers, and examine, in-

spect and search the vessel and use all necessary force to

compel compliance. When from such inquiries, examina-

tion, inspection or search it appears that a breach of the

laws of the United States rendering a person liable to arrest

is being, or has oeen committed, by any person, such per-

son shall be arrested . or other lawful and appropriate

action shall be taken; or if it shall appear that a breach of

the laws of the United States has been committed so as to

render such vessel, or the merchandise, or any part there-

ot, on board, such vessel, liable to forfeiture, or so as

to render such vessel hable to a fine or penalty, such vessel

or such merchandise, or both shall be siezed.

This statute has been held constitutional. Ui/iams, at 1078.

9a

(a)(1) If, in the case of any individual against

whom a complaint is filed charging such indi-

vidual with an offense, no indictment or infor-

mation is filed within the time limit required by

section 3161(b) . . . such charge against that in-

dividual contained in such complaint shall be dis-

missed or otherwise dropped. . .

In United States v. Sayers, 698 F.2d 1128 (11th Cir.1983),

a panel of this court recently observed that “[t]his provi-

sion establishes that Congress intended the provisions of

the Act to apply only if an individual was formally charg-

ed with an offense.” At 1131. The record in this case

reveals that although the appellants were initially arrested

by federal authorities, they were never taken before a

federal magistrate; nor were federal charges ever lodged

against the appellants in a complaint.’ For this reason, the

‘In fact, the federal law enforcement authorities declined prosecu-

tion in favor of the state law enforcement agency. Only after jurisdic-

tional problems arose in the state prosecution did the federal

authorities become involved in the investigation. Federal involvement

culminated in the return of a federal indictment. Consequently, ap-

pellants Burton and Kubiak were not held to answer in federal court

until they were indicted.

We briefly note that in Sayers the government admitted that the

defendant was seized, temporarily taken into custody, photographed

and fingerprinted before being released. And, the defendant in that

case believed himself to be under arrest at that time. Nevertheless, the

court agreed with the government’s contention that “ ‘arrest’ in the

Speedy Trial Act refers to that point at which a defendant is first

charged with a crime. Since no complaint or formal charge was issued

against [the defendfant on the date of his original arrest] . . . he was

not ‘arrested’ within the meaning of that Act.” At 1130.

10a

motions of appellants to dismiss the indictment for Speedy

Trial Act violations were properly denied by the trial

court.

We affirm the convictions of appellants Burton and

Kubiak.

Appellant Parks

{3} Appellant Parks initially contends that the evidence

was insufficient to support his conviction on the con-

spiracy count. The applicable standard of review for a suf-

ficiency challenge recently was enunciated in United States

v. Bell, 678 F.2d 547 (Sth Cir. Unit B) (en banc), cert.

granted, ____ U.S. ____, 103 S.Ct. 444, 74 L.Ed.2d 600

(1982);

It is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of

guilt, provided a reasonable trier of fact could

find that the evidence establishes guilt beyond a

reasonable doubt. A jury is free to choose among

reasonable constructions of the evidence.

678 F.2d at 549 (footnote omitted). Viewing the evidence

presented in this case and the inferences that may be

drawn from it in the light most favorable to the govern-

ment, see, e.g., Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we conclude that a

reasonable jury could find appellant Parks guilty of the

conspiracy count.

‘Applying the test set forth in Barker v. Wingo, 407 U.S. $14, 92

S.Ct. 2182, 33 L.Ed.2d 101 (1972), we hold that the delay between the

appellants’ arrest and their indictment also does not violate their con-

Stitutional right to a speedy trial.

On February 5 in the early morning hours, Parks was

observed at the Riverside Marina with Burton, Brown,

Walker, Kubiak and a number of other people. He left the

marina in a 262 Chris Craft. At least two other boats left

at the same time. Several hours later Parks returned to the

marina in the same boat, refueled and left. As he was

departing, Parks told several marina employees that Bur-

ton was having trouble out in the ocean and he was return-

ing to assist him. Parks were observed returning again to

the marina in the late afternoon in the same 262 Chris

Craft. Observers described the boat as then riding “bow

heaving.” The next morning employees of the marina

noticed the 262 Chris Craft was missing. A day or so later

Parks ordered two employees to where it was located.

These men found the boat sitting on the bottom in 3 or 4

feet of water with marijuana residue floating in it. They

pumped it out and returned it to Riveside Marina. One of

these men, Stires, gathered up some marijuana residue

from the boat and took it home. Stires testified that he

later gave the same marijuana to a DEA agent. Stires also

testified that Parks had told him that he (Parks) was to

receive $25,000 for his part in the deal. Such evidence is

sufficient to sustain Parks’ conviction.

[4] Appellant Parks also contends that his conviction

should be reversed because certain exculpatory evidence

was withheld from him by the prosecution. Relying on

Brady v. Maryland,’ 373 U.S. 83, 83 S.Ct. 1194, 10

‘The Brady doctrine holds that “suppression . . . of evidence

favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the

good faith or the bad faith of the prosecution.” 373 U.S. at 87, 83

S.Ct. at 1196. In United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct.

2392. 49 L..Ed.2d 342 (1976), the Supreme Court discussed three situa-

tions in which Brady violations may occur in a given case. In the first,

the prosecution knows or should know that the undisclosed informa-

12a

L.Ed.2d 215 (1963), the appellant maintains that due pro-

cess was violated by the prosecution’s failure to provide

him, in a timely manner, an exculpatory statement made

by a jointly-indicted co-conspirator.

Although we find the untimely disclosure troubling, we

have concluded that the rule of Brady v. Maryland was not

violated by the prosecution’s failure to provide the defense

with the co-conspirator’s statement in a timely manner.

We first note that “the circumstances at the trial below did

not resemble the typical situation giving rise to a Brady

claim. As the Supreme Court observed in United States v.

Agurs, the context in which Brady claims are generally

raised ‘involves the discovery, after trial, of information

which had been known t the prosecution but unknown to

the defense.’ 427 U.S. at 103, 96 S.Ct. at 2397.” United

States v. Kopituk, 690 F.2d 1289, 1339 (11th Cir.1982). In

this case, the record reveals that the statement of the ap-

pellant’s co-conspirator was discovered and presented at

trial. Consequently, appellant Parks’ Brady claim involves

mere delay in the transmittal of information or materials

to the defense and not outright omission that remained un.

discovered until after trial.

tion indicates that the prosecution’s case will include perjured

testimony. In the second, the defense specifically requests the

disclosure of evidence that was withheld. In the third, no request or

only a general request for all exculpatory material is made, and certain

exculpatory material is not tendered. 96 S.Ct. at 2397-99. In Garrison

v. Maggio, $40 F.2d 1271 (Sth Cir.1976), cert. denied, 431 U.S. 940,

978.Ct. 2685, §3 L.Ed.2d 258 (1977), as we stated in United States v.

Inderson, §74 F.2d 1347, 1383 (Sth Cir.1978), this court “defined a

fourth type of situation in which the Brady doctrine applies: the pro-

secutor tails to disclose purely impeaching evidence not concerning a

Substantive issue, in the absence of a specific detense request.” Vary-

ing degrees of materiality are assigned depending upon the context ot

the alleged violation

l3a

“In considering whether the government's nondisclosure

of exculpatory information operated to deny a federal

defendant his right to due process of law guaranteed by

the [flifth [aJmendment, the focus is not upon the fact of

nondisclosure, but upon the impact of the nondisclosure

on the jury’s verdit.” Kopituk, at 1339. “As was stated in

United States v. Agurs, supra, no denial of due process oc-

curs ‘unless the omission deprived the defendant of a fair

trial. ...’ " J/d., at 1540, citing, 427 U.S. at 108, 96 S.Ct.

at 2399. In the instant case, any possible prejudice re-

sulting from the untimely disclosure could have been easily

cured during trial.

Prior to trial, the prosecution properly informed the

defense that it had taken the statement of co-conspirator

Steve Brown and that the statement contained evidence

favorable to the defense. The defense took no action to

obtain the evidence. Although during trial the defense ex-

pressed general concern over the government's failure to

supply Brady materials, it never moved the trial to compel

the government to turn over the co-conspirator’s state-

ment. Indeed, the defense took no affirmative steps to

secure the information, even though co-conspirator

Brown was present in the courtroom on the first day ot

trial. On the third day of trial, in an effort to insure that

appellant Parks had the benefit of any materials which

could conceivably aid him in his defense, the trial court,

sua sponte, ordered the government to turn over the co-

conspirator’s statement. After receiving the information,

the defense simply renewed its request for a mistrial. This

request was denied.

Claiming that the trial court erred in denying its mo-

tion for a mistrial, the appellant now argues that the

belated discovery prejudiced the preparation of his case;

the appellant maintained that had he known of Steve

l4a

Brown’s statement he could have fully exploited its ex-

culpatory possibilities. The evidence of record clearly in-

dicates that the defense knew before trial and was remind-

ed during trial that the government had in its possession

evidence favorable to the defense. Not once did the

defense make a meaningful attempt to obtain this infor-

mation. Even after receiving the co-conspirator’s state-

ment on the third day of trial the defense did not move for

a continuance or request a recess. Further, the defense

never introduced co-conspirator’s Brown's statement into

evidence, nor did it attempt to call Steve Brown as a

witness. These failures undercut any arguments of pre-

judice the appellant attempts to make at this time. Gorham

v. Wainwright, 588 F.2d 178, 180 (Sth Cir.1979).

The difficulty with appellant Parks’ Brady claim can be

seen from another perspective. Brady is implicated only

when the evidence withheld is “material.’’® It is noteworthy

*The trial transcript provides in relevant part:

MR. GARLOVSKY [defense counsel]: Well, | feel we're

entitled — this is again my problem on the discovery. I fee!

Mr. Brown's statement, which looked like it was about a

hundred or 200 pages, may contain Brady material.

MR. URBANIAK [government's counsel]: It does con-

tain some Brady material in small respects that ! have in-

formed Mr. Garlovsky of, that I'll pick out the pieces, |

told him what is Brady in that, just as | told him about Mr,

Stiers’ statement. Mr. Stiers may or may not have an ex-

planation for not telling the Grand Jury.

| sent a letter out where | said you might want to look at

this, This witness a couple times appeared before the

Grand Jury and didn’t tell everything he knew the first time

and later turned the evidence in. So, be aware of it. There

is some Brady material in Mr. Brown's statements.

MR. URBANIAK: Yes, sir. He has previously been in-

formed, Judge, for the record, and he can disagree with it,

that there was certain Brady material. And, | have intorm-

ed what it Was, as to whether =— at whose instance the

lSa

in this connection that the appellant’s basic argument is

that the belated discovery hampered his trial preparation

and affected his trial strategy. But the Supreme Court has

specifically rejected the proposition that the applicable

standard of materiality should focus on the defendant's

ability to prepare for trial. United States v. Agurs, 427

U.S. at 112 n. 20, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342.

Rather, the inquiry is whether presentation of the evidence

would create a “reasonable doubt of guilt that would not

otherwise exist.”’ /d. at 112, 96 S.Ct. at 2402.

The government offered as circumstantial evidence

against the accused his statement to a government witness

that the witness may find himself shot if he talked. In its

closing argument, the prosecution argued that the appel-

lant’s threatening of a government witness indicated a con-

sciousness of guilt. On appeal, the appellant maintains

that Steve Brown’s statement would have refuted the gov-

ernment’s assertion that he was attempting to protect

himself by making threatening statements to a government

witness; the appellant further argues that the statement

would have shown that he was merely expresing his own

fears to the witness when he uttered the threatening-like

boats: were taken from the | marina, Now, | have told him

that,

MR. GARLOVSKY: | don’t think he told me,. your

Honor, that this was Steve Brown's Brady material. He has

never sent me a letter to that effect or gave me any specific

Statements that Brown gave a two-hundred-page state-

ment,

(R.Vol. 18 of 16, pp. 567-569),

‘The Brady mandate “commands the disclosure of exculpatory

evidence, a requirement that invites review of the record for materiali-

ty.” United States v. Beasley, 876 F.2d 626, 630 (Sth Cir.1978), In-

deed, “[t}he judicial emphasis consistently has been placed on the

determination of materiality.” United Stetes v. Anderson, $74 F.2d

1347, 1383 (Sth Cir. 1978); United States v. Mesa, 660 F.2d 1070, 1076

(Sth Cir, Unit B 1981).

l6a

statement.* Viewing the record as a whole, we are uncon-

vinced that co-conspirator Brown’s statement, if timely

disclosed and admitted into evidence, would have altered

he jury’s verdict.®

On cross-examination, a government witness testified

that he had overheard the appellant talking to Steve

Brown, that the appellant told Brown that he should be

careful of what he says or else he could end up shot. The

witness specifically testified that he believed the appellant

.o be expressing his own fears and not making a threat.

*This is the standard of materiality that applies when the defense

tas made, as in this case, a general request for Brady material. See

igurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

*The relevant part of co-conspirator Brown's statement reads as

lows:

Q. Okay. You said, Dave, that boat's got to be on the

trailer?

A. Yes, sir.

Q. And what did he say?

A. He didn’t want to do it. He didn’t want to, but I told

him that I didn’t have any choice and that they'd threaten-

ed my family and threatened me, and they knew who |

was, And I — | guess | kind of begged him.

Q. Okay,

\. And I = at the time, | guess, truthfully, our biggest

concern was trying to preserve the marina because he, you

know, he was really concerned about that

QM. Dave was?

\. Yes, sir

(. Did he say anything — what else did he say, now?

A. These people wanted their stuff, you know, And he

said he didn’t want to be involved,

And | said, vou know, that 1 didn’t have any chore and

that's reaus all we discussed,

(). What else did he sav?

\. He just said that | could use that truck, and he said not

to vet caught with a

17a

Brief of Appellant Parks, at 35. This evidence did exactly

what the appellant claims the statement of co-conspirator

Brown would have done; it rebutted the government’s

argument that the appellant was attempting to protect

himself by threatening a government witness, and tended

to show that the appellant was merely expressing a well-

founded fear on his part to the witness. Consequently,

Brady provides no relief for the appellant since the in-

troduction of co-conspirator Brown’s statement would

have been cumulative at best. The overwhelming evidence

of guilt in this case belies any notion that the discovery

material might have created a reasonable doubt. See

Agurs. We concluded that appellant Parks suffered no

deprivation of his right to a fair trial because of the

belated discovery of his co-conspirator’s statement.

[5] Appellant Parks also contends that the district court

erred when it failed to strike the testimony of a govern-

ment chemist; he argues that the testimony should have

been stricken as a discovery sanction against the govern-

ment for its failure to provide the defense with a copy of a

relevant lab report prior to trial. Fed.R.Crim.P. 16(d)(2)

makes it clear that the choice of remedy for a violation of

discovery requirements is committed to the sound discre-

tion of the trial court:

If... it is brought to the attention of the court

that a party has failed to comply with this rule,

the court may order such party to permit the

discovery or inspection, grant a continuance, or

prohibit the party from introducing evidence not

disclosed, or it may enter such other order as it

deems just under the circumstances.

“To support a claim for reversal of the exercise of that

discretion, the accused must show prejudice to substantial

18a

rights.” United States v. Kidding, 560 F.2d 1303, 1313 (Sth

Cir.1977). The appellant has made no such showing here.

The appellant simply asserts that the government’s untime-

ly disclosure of the lab report denied him his right to effec-

tively challenge the report or pursue further discovery con-

cerning the evidence or the government witness. Brief of

Appellant Parks, at 24. We note, however, that the only

step taken by the defense to relieve itself from the predica-

ment it now complains of, was its request that the

chemist’s testimony be stricken from the record. The

defense never asked for a recess, let alone a continuance,

to give it an opportunity to review the report. No request

had been made for inspection or testing of the seized con-

traband. There had been no issue concerning identity of

the substance. The defense simply acquiesced in the con-

tinuation of the trial. See United States v. James, 495 F.2d

434, 436-37 (Sth Cir. 1974); see also United States v. Avila,

443 F.2d 792, 795 (Sth Cir.1971). To put it simply, the pre-

judice now complained of by the appellant “could perfect-

ly well have been rectified by a recess. Absent such a re-

quest the court cannot be faulted for having denied the re-

quest to preclude the [glovernment from alluding to the

[report] in question.” United States v. Pineros, 532 F.2d

868, 872 (2nd Cir.1976). Although we don’t condone the

government’s actions, we hold that in the particular cir-

cumstances of this case, the government’s failure to comp-

ly well have been rectified by a recess. Absent such a re-

amount to reversible error.

[6] Appellant Parks’ remaining claims have less merit.

The appellant contends that the sample of marijuana

taken by a government witness from one of the boats used

in the criminal activity was improperly admitted into

evidence over objection. He claims the government failed

to introduce evidence connecting the marijuana to him. “It

19a

is clear that connection of physical evidence with a defen-

dant may be shown by circumstantial evidence.” United

States v. Soto, 591 F.2d 1091, 1099 (Sth Cir.1979); United

States v. White, 569 F.2d 263, 266 (Sth Cir.1978). Further,

we have consistently held that “proof of the connection

goes to the weight of the physical evidence rather than its

admissibility.” Soto, at 1091-92; United States v. Stewart,

579 F.2d 356, 359 (Sth Cir.1978); United States v. Hughes,

658 F.2d 317, 320 (Sth Cir., Unit B 1981); United States v.

Poe, 462 F.2d 195 (Sth Cir.1972). Stires testified the mari-

juana he gave to the government came from the 262 Chris

Craft. Other witnesses testified as to the chain of custody

from that point forward. The questions concerning how

and where the substance was kept by Stires were proper

for the Jury as was the credibility of all the witnesses. Ap-

pellant Parks’ insistence that the government’s failure to

establish a chain of custody of the marijuana sample

prevents the admission of such evidence is equally

meritless, “as evidence regarding a chain of custody does

not affect admissibility, only the weight of the evidence.”

United States v. Morgan, 559 F.2d 397, 399 (Sth Cir.

1979); United States v. Hughes, at 320; United States v.

Colatriano, 624 F.2d 686 (Sth Cir.1980); United States v.

Henderson, 588 F.2d 157 (Sth Cir.), cert. denied, 440 U.S.

975, 99 S.Ct. 1544, 59 L.Ed.2d 794 (1979).

We affirm the conviction of appellant Parks.

CONCLUSION

We have examined thoroughly all of the appellants’ con-

tentions raised on appeal, including those not worthy of

discussion, and find them to be without merit. The appel-

lants’ convictions are AFFIRMED.

20a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-6007

D.C. Docket No. 81-39-ORI-CR-R

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRENCE A. KUBIAK, DAVID PARKS,

THEODORE BURTON, IV.

Defendants-Appellants.

Appeals from the United States District Court for the

Middle District of Florida

Before FAY and VANCE, Circuit Judges, and

ALLGOOD*, District Judge.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Mid-

dle District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment of

conviction of the said District Court in this cause be and

the same is hereby AFFIRMED.

May 20, 1983

*Honorable Clarence W. Allgood, U.S. District Judge for the

Northern District of Alabama, sitting by designation.

SSUED AS MANDATE: JUL 13 1983 (AS TO APPELLANTS

TERRENCE A. KUBIAK AND THEODORE BURTON IV, ONLY)

2la

APPENDIX C

Title 18, United States Code

§ 3161. Time limits and exclusions

(a) In any case involving a defendant charged with an

offense, the appropriate judicial officer, at the earliest

practicable time, shall, after consultation with the counsel

for the defendant and the attorney for the Government,

set the case for trial on a day certain, or list it for trial on a

weekly or other short-term trial calendar at a place within

the judicial district, so as to assure a speedy trial.

(b) Any information or indictment charging an in-

dividual with the commission of an offense shall be filed

within thirty days from the date on which such individual

was arrested or served with a summons in connection with

such charges. If an individual has been charged with a

felony in a district in which no grand jury has been in ses-

sion during such thirty-day period, the period of time for

filing of the indictment shall be extended an additional

thirty days.

(c)(1) In any case in which a plea of not guilty is

entered, the trial of a defendant charged in an information

or indictment with the commission of an offense shall

commence within seventy days from the filing date (and

making public) of the information or indictment, or from

the date the defendant has appeared before a judicial of-

ficer of the court in which such charge is pending,

whichever date last occurs. If a defendant consents in

writing to be tried before a magistrate on a complaint, the

trial shall commence within seventy days from the date of

Such consent.

(2) Unless the defendant consents in writing to the con-

22a

trary, the trial shall not commence less than thirty days

from the date on which the defendant first appears

through counsel or expressly waives counsel and elects to

proceed pro se.

(d)(1) If any indictment of information is dismissed

upon motion of the defendant, or any charge contained in

a complaint filed against an individual is dismissed or

otherwise dropped, and thereafter a complaint is filed

against such defendant or individual charging him with the

same offense or an offense based on the same conduct or

arising from the same criminal episode, or an information

or indictment is filed charging such defendant with the

same offense or an offense based on the same conduct or

arising from the same criminal episode, the provisions

subsections (b) and (c) of this section shall be applicable

with respect to such subsequent complaint, indictment, or

information, as the case may be.

(2) If the defendant is to be tried upon an indictment or

information dismissed by a trial court and reinstated fol-

lowing an appeal, the trial shall commence within seventy

days from the date the action occasioning the trial

becomes final, except that the court retrying the case may

extend the period for trial not to exceed one hundred and

eighty days from the date the action occasioning the trial

becomes final if the unavailability of witnesses or other

factors resulting from the passage of time shall make trial

within seventy days impractical. The periods of delay enu-

merated in section 3161(h) are excluded in computing the

time limitations specified in this section. The sanctions of

section 3162 apply to this subsection.

(e) If the defendant is to be tried again following a

declaration by the trial judge of a mistrial or following an

order of such judge for a new trial, the trial shall com-

23a

mence within seventy days from the date the action occa-

sioning the retrial becomes final. If the defendant is to be

tried again following an appeal or a collateral attack, the

trial shall commence within seventy days from the date the

action occasioning the retrial becornes final, except that

the court retrying the case may extend the period for

retrial not to exceed one hundred and eighty days trom the

date the action occasioning the retrial becomes final if

unavailability of witnesses or other factors resulting from

passage of time shall make trial within seventy days im-

practical. The periods of delay enumerated in section

3161(h) are excluded in computing the time limitations

specified in this section. The sanctions of section 3162 ap-

ply to this subsection.

(f) Notwithstanding the provisions of subsection (b) of

this section, for the first twelve-calendar-month period

following the effective date of this section as set forth in

section 3163(a) of this chapter the time limit imposed with

respect to the period between arrest and indictment by

subsection (b) of this section shall be sixty days, for the se-

cond such twelve-month period such time limit shall be

forty-five days and for the third such period such time

limit shall be thirty-five days.

(g) Notwithstanding the provisions of subsection (c) of

this section, for the first twelve-calendar-month period

following the effective date of this section as set forth in

section 3163(b) of this chapter, the time limit with respect

to the period between arraignment and trial imposed by

subsection (c) of this section shall be one hundred and

eights days, for the second such twelve-month period such

time limit shall be one hundred and twenty days, and for

the third such period such time limit with respect to the

period between arraignment and trial shall be eighty days.

24a

(h) The following periods of delay shall be excluded in

computing the time within which an information or an in-

dictment must be filed, or in computing the time within

which the trial of any such offense must commence:

(1) Any period of delay resulting from other pro-

ceedings concerning the defendant, including but not

limited to -

(A) delay resulting from any proceeding, in-

cluding any examinations, to determine the mental

competency or physical capacity of the defendant;

(B) delay resulting from any proceeding, in-

cluding any examination of the defendant, pur-

suant to section 2902 of title 28, United States

Coce;

(C) delay resulting from deferral of prosecution

pursuant to section 2902 of title 28, United States

Code;

(D) delay resulting from trial with respect to

other charges against the defendant;

(E) delay resulting from any interlocutory ap-

peal;

(F) delay resulting from any pretrial motion,

from the filing of the motion through the conclu-

sion of the hearing on, or other prompt disposition

of, such motion;

(CG delay resulting from any proceeding relating

to the transfer of a case or the removal of any

defendant from another district under the Federal

Rules of Criminal Procedure;

(H) delay resulting from transportation of any

defendant trom another district, or to and from

25a

places of examination or hospitalization, except

that any time consumed in excess of ten days from

the date an order of removal or an order directing

such transportation, and the defendant’s arrival at

the destination shall be presumed to be unrea-

sonable;

(1) delay resulting from consideration by the

court of a proposed plea agreement to be entered

into by the defendant and the attorney for the

Government; and

(J) delay reasonably attributable to any period,

not to exceed thirty days, during which any pro-

ceeding concerning the defendant is actually under

advisement by the court.

(2) Any period of delay during which prosecution

is deferred by the attorney for the Government pur-

suant to written agreement with the defendant, with

the approval of the court, for the purpose of allowing

the defendant to demonstrate his good conduct.

(3)(A) Any period of delay resulting from the

absence or unavailability of the defendant or an

essential witness.

(2) For purposes of subparagraph (A) of this

paragraph, a defendant or an essential witness shall

be considered absent when his whereabouts are

unknown and, in addition, he is attempting to

avoid apprehension or prosecution or his

whereabouts cannot be determined by due

diligence. For purposes of such subparagraph, a

defendant or an essential witness shall »e con-

sidered unavailable whenever his whereabouts are

known but his presence for trial cannot be ob.ained

26a

by due diligence or he resists appearing at or being

returned for trial.

(4) Any period of delay resulting from the fact that

the defendant is mentally incompetent or physically

unable to stand trial.

(5) Any period of delay resulting from the treat-

ment of the defendant pursuant to section 2902 of ti-

tle 28, United States Code.

(6) If the information or indictment is dismissed

upon motion of the attorney for the Government and

thereafter a charge is filed against the defendant for

the same offense, or any offense required to be joined

with that offense, any period of delay from the date

the charge was dismissed to the date the time limita-

tion would commence to run as to the subsequent

charge had there been no previous charge.

(7)(A) A reasonable period of delay when the

defendant is joined for trial with a codefendant as to

whom the time for trial has not run and no motion for

severance has been granted.

(8)(A) Any period of delay resulting from a conti-

nuance granted by any judge on his own motion or at

the request of the defendant or his counsel or at the

request of the attorney for the Government, if the

judge granted such continuance on the basis of his

findings that the ends of justice served by taking such

action outweigh the best interest of the public and the

defendant in a speedy trial. No such period of delay

resulting from a continuance granted by the court in

accordance with this paragraph shall be excludable

under this subsection unless the court sets forth, in

the record of the case, either orally or in writing, its

27a

reasons for finding that the ends of justice served by

the granting of such continuance outweigh the best in-

terests of the public and the defendant in a speedy

trial.

(B) The factors, among others, which a judge

shall consider in determining whether to grant a

continuance under subparagraph (A) of this

paragraph in any case are as follows:

(i) Whether the failure to grant such a conti-

nuance in the proceeding would be likely to make

a continuation of such proceeding impossible, or

result in a miscarriage of justice.

(ii) Whether the case is so unusual or so com-

plex, due to the number of defendants, the

nature of the prosecution, or the existence of

novel questions of fact or law, that it is

unreasonable to expect adequate preparation for

pretrial proceedings or for the trial itself within

the time limits established by this section.

(iii) Whether, in a case in which arrest

precedes indictment, delay in the filing of the in-

dictment is caused because the arrest occurs at a

time such that it is unreasonable to expect return

and filing of the indictment within the period

specified in section 3161(b), or because the facts

upon which the grand jury must base its deter-

mination are unusual or complex.

(iv) Whether the failure to grant such a conti-

nuance in a case which, taken as a whole, is not

so unusual or so complex as to fall within clause

(ii), would deny the defendant reasonable time to

obtain counsel, would unreasonably deny the

defendant or the Government continuity of

28a

counsel, or would deny counsel for the defendant:

or the attorney for the Government the reason-

able time necessary for effective preparation,

taking into account the exercise of due diligence.

(C) No continuance under paragraph (8)(A) of

this subsection shal! be granted because of general

congestion of the court’s calendar, or lack of

diligent preparation or failure to obtain available

witnesses on the part of the attorney for the Gov-

ernment.

(i) If trial did not commence within the time limita-

tion specified in section 3161 because the defendant

had entered a plea of guilty or nolo cotendere subse-

quently withdrawn to any or all charges in an indict-

ment or information, the defendant shall be deemed

indicted with respect to all charges therein contained

within the meaning of section 3161, on the day the

order permitting withdrawal of the plea becomes

final.

(j)(1) If the attorney for the Government knows

that a person charged with an offense is serving a

term of imprisonment in any penal institution, he

shall promptly —

(A) undertake to obtain the presence of the

prisoner for trial; or

(B) cause a detainer to be filed with the person

having custody of the prisoner and request him to

SO advise the prisoner and to advise the prisoner of

his right to demand trial.

(2) If the person having custody of such prisoner

receives a detainer, he shall promptly advise the

prisoner of the charge and of the prisoner's right to

29a

demand trial. If at any time thereafter the prisoner

informs the person having custody that he does de-

mand trial, such person shall cause notice to that

effect to be sent promptly to the attorney for the

Government who caused the detainer to be filed.

(3) Upon receipt of such notice the attorney for

the Government shall promptly seek to obtain the

presence of the prisoner for trial.

(4) When the person having custody of the pri-

soner receives from the attorney for the Govern-

ment a properly supported request for temporary

custody of such prisoner for trial, the prisoner shall

be made available to that attorney for the Govern-

ment (subject, in cases of interjurisdictional

transfer, to any right.of the prisoner to contest the

legality of his delivery).

§ 3162. Sanctions

(a)(1) If, in the case of any individual against whom a

complaint is filed charging such individual with an of-

fense, no indictment or information is filed within the time

limit required by section 3161(b) as extended by section

3161(h) of this chapter, such charge against that individual

contained in such complaint shall be dismissed or other-

wise dropped. In determining whether to dismiss the case

with or without prejudice, the court shall consider, among

others, each of the following factors: the seriousness of

the offense; the facts and circumstances of the case which

led to the dismissal; and the impact of a reprosecution on

the administration of this chapter and on the administra-

tion of justice.

(2) If a defendant is not brought to trial within the

30a

time limit required by section 3161(c) as extended by

section 3161(h), the information or indictment shall

be dismissed on motion of the defendant. The defen-

dant shall have the burden of proof of supporting

such motion but the Government shall have the

burden of going forward with the evidence in connec-

tion with any exclusion of time under subparagraph

3161(h)(3). In determining whether to dismiss the case

with or without prejudice, the court shall consider,

among others, each of the following factors: the

seriousness of the offense; the facts and cir-

cumstances of the case which led to the dismissal; and

the impact of a reprosecution on the administration

of this chapter and on the administration of justice.

Failure of the defendant to move for dismissal prior

to trial or entry of a plea of guilty or nolo contendere

shall constitute a waiver of the right to dismissal

under this section.

(b) In any case in which counsel for the defendant or

the attorney for the Government (1) knowingly allows the

case to be set for trial without disclosing the fact that a

necessary witness would be unavailable for trial; (2) files a

motion solely for the purpose of delay which he knows is

totally frivolous and without merit; (3) makes a statement

for the purpose of obtaining a continuance which he

knows to be false and which is material to the granting of a

continuance; or (4) otherwise willfully fails to proceed to

trial without justification consistent with section 3161 of

this chapter, the court may punish any such counsel or at-

torney, as follows:

(A) in the case of an appointed defense counsel,

by reducing the amount of compensation that

otherwise would have been paid to such counsel

pursuant to section 3006A of this title in an amount

not to exceed 25 per centum thereof;

3la

(B) in the case of a counsel retained in connec-

tion with the defense of a defendant, by imposing

on such counsel a fine of not to exceed 25 per cen-

tum of the compensation to which he is entitled in

connection with his defense of such defendant;

(C) by imposing on any attorney for the Govern-

ment a fine of not to exceed $250;

(D) by denying any such counsel or attorney for

the Government the right to practice before the

court considering such case for a period of not to

exceed ninety days; or

(E) by filing a report with an appropriate

disciplinary committee.

The authority to punish provided for by this subsection

shall be in addition to any other authority or power

available to such court.

(c) The court shall follow procedures established in the

Federal Rules of Criminal Procedure in punishing any

counsel or attorney for the Government pursuant to this

section.

32a

APPENDIX D

AMENDMENT VI.

|» all criminal prosecutions, the accused shal! enjoy the

rig) { 10 a Speedy and public trial, by an impartial jury of

ine otate and district wherein the crime shall have been

-or muted, whicii district shall have been previously ascer-

tain_d by law, and to be informed of the nature and cause

ot he accusation; to be confronted with the witnesses

aga ist him, to have compulsory process for obtaining

witnesses in his tavor, and to have the assistance of

counsel for his defence.

33a

APPENDIX E

SPEEDY TRIAL ACT

P.L. 96-43

SPEEDY TRIAL ACT AMENDMENTS ACT OF 1979

P.L. 96-43, see page 93 Stat. 327.

Senate Report (Judiciary Committee) No. 96-212,

June 13, 1979 [To accompany S. 961]

House Report (Judiciary Committee) No. 96-390,

July 26, 1979 [To accompany S. 961]

Cong. Record Vol. 125 (1979)

DATES OF CONSIDERATION AND PASSAGE

Senate June 19, July 31, 1979

House July 31, 1979

The House Report is set out.

HOUSE REPORT NO. 96-390

[page 1]

The Committee on the Judiciary, to whom was referred

the bill (S. 961) to amend the Speedy Trial Act of 1974,

having considered the same, report favorably thereon with

an amendment and recommend that the bill as amended

do pass.

PURPOSE

The bill reported by the committee, (S. 961) with an

amendment in the nature of a substitute, was passed by the

Senate on June 19, 1979, and sent to the House. The pur-

pose of the bill, as hereby reported, is to amend title | of

the Speedy Trial Act of 1974 (18 U.S.C. 3161-3174) in the

following manner:

34a

1. By suspending, until July 1, 1980, the sanction of

dismissal for failure to meet the time limits of section

3161(b) and (c). Provision is made for earlier reinstitution

of the dismissal sanction in districts prepared to do so;

2. Merging the 10-day indictment-to-arraignment and

the 60-day arraignment-to-trial time limits contained in

section 316l(c) into a single 70-day indictment-to-trial

period;

3. Requiring, in the absence of a waiver by the defen-

dant, a minimum of 30 days time between the defendant’s

first appearance with counsel and trial;

4. Requiring that, if a defendant is to be tried on an in-

dictment or information dismissed by a trial judge and

reinstated on appeal, trial shall commence within 70 days,

with provision for extension of this time limit to 180 days

if trial within 70 days is impractical;

5. By clarifying certain periods of exclusion from the

time limits of section 3161 (b) and (c), and clarifying pro-

visions relating to authority for courts to order conti-

nuances when required to meet “the ends of justice”;

6. In the case of persons in custody or designated as

“high risk” defendants, making permanent the interim

limit of 90 days from commencement of custody or

designation as a high risk defendant to beginning of trial,

with provision for release from custody or review of the

high risk designation if this limit is ex-

ceeded;

7. By requiring all districts except those which elect to

reimpose the dismissal sanction prior to July 1, 1980 to file

on additional speedy trial plan; provisions of section 3166

relating to the contents of such plans are amended to re-

35a

quire inclusion of certain information relating to the civil

docket in the district, and by permitting inclusion of cir-

cuit council guidelines to be used in the implementation of

the act;

8. By amending section 3167, relating to reports to

Congress, to require additional information to be included

in the next report to the Congress to be submitted by the

Administrative Office of U.S. Courts, and by requiring a

one-time report by the Department of Justice, to be sub-

mitted to the Congress not later than December 31, 1979,

detailing the experience of the U.S. Attorneys in im-

plementing the act;

9. Amending section 3168 to require that the member-

ship of each district planning group include an attorney in

private practice with substantial expeience in civil litiga-

tion;

10. By making the data collection requirements of sec-

tion 3170 permanent;

11. By amending the provisions of section 3174,

relating to extension of time limits due to judicial

emergency, to provide for final approval of such exten-

sions by the circuit councils, and by modifying the provi-

sions for the granting of additional extensions of time

limits beyond the initial extension; and

12. By authorizing the chief judge of each district to

suspend the time limits of section 3161 for a period of thir-

ty days, when the need for such a suspension is found by

the chief judge to be of great urgency.

36a

BACKGROUND OF THE SPEEDY TRIAL ACT

The Speedy Trial Act of 1974 was enacted following,

and at least partially in response to the decision of the

Supreme Court in Barker v. Wingo, 4707 U.S. §14 (1972)!

in which the Court expressed reluctance to “engage in

legislative or rulemaking activity” by declining to hold

“that the speedy trial right can be quantified into a

specified number of days or months.” /d. 523. A year

earlier, in U.S. v. Marion, 404 U.S. 307,? the Court had

held that the speedy trial provisions of the Sixth Amend-

ment do not apply to pre-indictment delays.

Further evidence of the need for the Speedy Trial Act of

1974 came from a variety of sources, including the ap-

parent weakness of Rule SO(b) of the Federal Rules of

Criminal Procedure (the court-prescribed rule for the

establishment of speedy trial guidelines in each judicial

district), the favorable experience of the Second Circuit

under restrictive time-to-trial guidelines of their own,

studies which indicated that defendants held for trial

longer than 60 days were much more likely to commit ad-

ditional crimes while on bail, and the ABA’s 1968 Stan-

dards Relating to Speedy Trial. In response to this need,

Congress enacted a statute which, for the first time, both

gave effect to a Federal defendant's right to speedy trial

under the Sixth Amendment and acknowledged the danger

to society represented by accused persons on bail for pro-

longed periods of time.

The act provides that, after July 1, 1979, accused per-

sons must be indicted within 30 days of arrest, arraigned

92. S.Ct. 2102, 33 L.kd.2d 101,

92S.C1t. 488, 30 1. d.2d 468

37a

within 10 days of indictment, and tried within 60 days of

arraignment. Failure to meet the time line of 30 days from

arrest to indictment calls for a dismissal of the charges; the

statute makes no mention of a requirement that the defen-

dant move for such a dismissal, but, as a practical matter,

such a motion will be necessary to bring the matter to the

attention of the court in the pre-indictment phase of the

proceedings. Failure to meet the 60-day arraignment to

trial requirement calls for dismissal of the charges on the

motion of the defendant. The statute is silent on the sub-

ject of dismissal for failure to meet the 10-day indictment

to arraignment requirement, and no sanction provided.

Numerous flexible exclusions of time provided for in the

act can be taken into account to extend these time limits,

and the act provides broad authority for courts to grant

continuances which are found to be “in the ends of jus-

tice.” The court may, in its discretion, grant the dismissal

either with or without prejudice, stating in writing its

reasons therefor, after taking into account the seriousness

of the offense, the facts and circumstances leading to

dismissal and the impact of reprosecution on the act and

the administration of justice. If the dismissal is without

prejudice, the Government can recharge the defendant;

the act provides for a period of from 60 to 180 days for

retrial. In addition, the court may impose sanctions in the

form of fines, reduced compensation and/or denial of the

right to practice before the court, against prosecution and

defense counsel who knowingly delay a case without justi-

fication.

Final implementation is the culmination of a 4-year

phase-in process, for which the act made very detailed pro-

vision. Each district was to convene a speedy trial planning

group by August 30, 1975, for the purpose of drafting and

38a

filing implementation plans for each of the phase-in years.

These periods were as follows:

September 29, 1975.— Implementation of plan for trial

of detainees and “high risk” defendants within 90 days of

arrest, to remain in effect. (Section 3164)

June 30, 1976.— Submission of plans for trial of cases

during July 1, 1977-June 30, 1979.

July 1, 1976-June 30, 1977. — First phase-in year of time

limits: 60 days, arrest-indictment; 10 days, indictment-

arraignment; 180 days arraignment-trial (60/10/180); no

sanctions for failure to meet.

July 1, 1978-June 30, 1979. — Third, and final phase-in

year: 35/10/80; no sanction.

July 1, 1979.— Final plans, time limits (30/10/60) and

sanctions take effect.

LEGISLATIVE HISTORY

P.L. 96-43

[page 4]

The Director of the Administration Office of the U.S.

Courts was required to submit detailed implementation

reports to the Congress on September 30, 1976-77-78.

Each planning group was required to consider all relevant

factors which might affect phase-in and final implementa-

tion of the act. Clerks in each district were required to col-

lect and assemble all required information and disseminate

it to appropriate parties (section 3170). The reports of the

planning groups and the Director were required to specify

the “rule changes, statutory amendments, and appropria-

tions needed” to help implement the act and “further im-

39a

prove ® @ ® the administration of justice in (each) district”

(sections 3166(f), 3167(b)).

Finally, the act specifies that it does not derogate any

Sixth Amendment rights (i.e., right to representation by

competent counsel) (section 3173) and it provides for

declarations of “judicial emergency,” whereby district

court chief judges can apply to the circuit council for a

suspension of the time limits. If the Judicial conference

approves the circuit’s application, time from arraignment

to trial can be enlarged up to 180 days for cases for which

indictments are filed during that period. The time limits

can be suspended up to one year. Sanctions for failure to

meet the time limits for detained defendants may not be

suspended. (Section 3174)