Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
1-23-1995
USA v Hamilton Precedential or Non-Precedential:
Docket 94-7152
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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 94-7152
UNITED STATES OF AMERICA, Appellant v.
ROY HAMILTON
On Appeal from the District Court of the Virgin Islands (D.C. No. 93-cr-00067)
Argued December 5, 1994
Before: SLOVITER, Chief Judge, SCIRICA and COWEN, Circuit Judges
(Filed January 23, 1995)
Azekah E. Jennings (Argued) W. Ronald Jennings United States Attorney Christiansted, St. Croix U.S. Virgin Islands
Attorneys for Appellant
Iver A. Stridiron (Argued) Charlotte Amalie, St. Thomas U.S. Virgin Islands
Attorney for Appellee
OPINION OF THE COURT SLOVITER, Chief Judge.
The government appeals an order of the district court
dismissing an indictment without prejudice in a drug case
pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1988).
We have jurisdiction over the government's appeal
pursuant to 18 U.S.C. § 3731. We exercise plenary review over
the district court's construction and interpretation of the
Speedy Trial Act and its provisions regarding excludable time.
See United States v. Lattany, 982 F.2d 866, 870 (3d Cir. 1992),
cert. denied, 114 S. Ct. 97 (1993). The findings of fact to
which the district court applies the Speedy Trial Act are
reviewed under a clearly erroneous standard. Id.
I.
Background and Procedural History
On March 25, 1993, three alleged drug couriers, Jewel
Rose Hyde, Patricia Gray and Karen Boothe-Waller, were stopped by
Customs Inspectors at the Cyril E. King airport in St. Thomas,
U.S. Virgin Islands. The government alleges that each of the
women had a quantity of cocaine strapped to her body and after
her arrest, stated that appellee Roy Hamilton recruited them to
carry the cocaine to Florida for him.
Hamilton was arrested in Miami, and was returned to the
Virgin Islands to face charges. On April 1, 1993, a four-count
indictment was returned in the District Court of the Virgin Islands charging Hamilton with conspiracy to import cocaine into
the United States in violation of 21 U.S.C. § 963 and possession
with intent to distribute in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. Hamilton was arraigned before the district
court on May 12, 1993. By order of the magistrate judge entered
May 28, 1993, Hamilton was released on bail into the joint
custody of his parents and the Office of Probation and Control.
The three alleged couriers, Hyde, Gray and Boothe-
Waller, also faced criminal charges in a separate criminal
proceeding. The record on appeal, however, does not reflect the
date on which they were indicted. At some point after they were
indicted, the couriers filed suppression motions which delayed
the disposition of their case.
The government's case against Hamilton was originally
set for trial on July 12, 1993. On that day, the government
filed a motion for a continuance of the trial and for an order
excluding all delay incident to such continuance for speedy trial
computation purposes. In support of its motion, the government
stated that "[t]hree material witnesses [the three couriers] are
unable to testify until the court disposes of the pending
motions." See Government's Motion for Continuance and Request
for Entry of Order of Excludable Delay of July 12, 1993. The
government also stated that it "anticipates the motions will be
resolved within one week and the witnesses will be available to
testify at that time." Id. By order entered July 14, 1993, the district court
granted the government's motion for a continuance and an order of
excludable delay. Pursuant to that order, the trial was
continued until August 23, 1993. The district court found that
the ends of justice served by the granting of the motion
outweighed the best interests of the public and the defendant in
a speedy trial because "a July 12, 1993, trial would unreasonably
deny the government the testimony of three material witnesses."
App. at 43.
On August 9, 1993, the government filed another motion
seeking an order continuing the trial date from August 23, 1993,
and excluding all delay incident to such continuance for speedy
trial computation purposes. That motion was never ruled upon by
the district court. The trial, however, did not go forward on
August 23, 1993, although Hamilton allegedly appeared at the
scheduled time.
On October 21, 1993, the district court granted the
couriers' motion to suppress. The government promptly appealed
that decision to this court, where that case was pending during
the remainder of the relevant proceedings in this case.1
On January 4, 1994, the district court set the
government's case against Hamilton for trial during the January
1 . On September 28, 1994, we resolved the appeal in the couriers' case. See United States v. Hyde, 37 F.3d 116 (3d Cir. 1994) (reversing the district court's suppression order and remanding for further proceedings). 31, 1994 trial period. Once again, the government filed a motion
seeking an order continuing the trial indefinitely. In addition,
it requested an order excluding all delay incident to such
continuance from the district court's Speedy Trial Act
computations. In support of this motion, the government asserted
that the couriers were "essential" witnesses within the meaning
of 18 U.S.C. § 3161(h)(3)(A). The government also contended that
the couriers were "unavailable" to testify because the case
against them was still pending, and that exclusion of the
resulting delay was therefore proper under 18 U.S.C. §
3161(h)(3)(A). Finally, the government argued that if a
continuance were not granted pursuant to 18 U.S.C. §
3161(h)(8)(A) the charges against Hamilton would have to be
dismissed, which would result in a miscarriage of justice.
On January 20, 1994, the district court denied the
government's motion without prejudice, stating that it required
additional proof and authority to support the government's
contention that the couriers were "unavailable" for Speedy Trial
Act purposes. In particular, the court stated that it wished "to
be briefed on why these witnesses cannot be made available
through a grant of immunity as provided by law which would still
permit the case against the three witnesses to go forward, if the
government prevails on appeal." App. at 15.
On January 24, 1994, the government filed a motion for
reconsideration of the court's Order of January 20, 1994, in which it argued that the issue of whether the couriers could be
granted immunity was irrelevant to the district court's analysis,
as the decision to grant immunity is solely within the
government's discretion. At a hearing on the motion, the
district court stated that it "agree[d] that it is within the
sole purview of the government in situations like this to grant
immunity or not." Transcript of Proceedings, January 28, 1994 at
5. Nonetheless, the court stated that "the interest of justice"
weighed against granting the continuance. Transcript of
Proceedings, January 28, 1994 at 6-7. The court then set the
trial for February 7, 1994.
By order entered February 4, 1994, the district court
formally denied the government's motion for reconsideration. It
concluded that the ends of justice and the interests of the
public and the defendant would not be served by a continuance.
The court determined that the three couriers were not unavailable
based on (1) the failure of the government to grant use immunity
to the couriers, and (2) the reasons set forth by the court at
the January 28, 1994 hearing. See App. at 48-49.
On February 7, 1994, the government's case against
Hamilton came to trial. The government appeared and declared
that it was not prepared to proceed. Hamilton promptly moved for
a dismissal of the indictment. The district court granted
Hamilton's motion to dismiss without prejudice. It also vacated
all conditions of bail and exonerated all bail posted by Hamilton or his surety. The court's order of dismissal was issued, as
amended, on February 23, 1994.
In its appeal, the government contends that the
district court erred by failing to hold that the three couriers
were both "essential" and "unavailable" for the purposes of the
Speedy Trial Act. It argues that because the district court
erred in failing to exclude a relevant period of delay from its
Speedy Trial Act calculation, the order dismissing the indictment
pursuant to the Speedy Trial Act should be reversed. II.
Discussion
The Sixth Amendment of the United States Constitution
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial . . . ." U.S.
Const. amend. VI. The Speedy Trial Act, 18 U.S.C. §§ 3161-3174,
was designed to give effect to the Sixth Amendment right to a
speedy trial "by setting specified time limits . . . within which
criminal trials must be commenced." United States v. Rivera
Constr. Co., 863 F.2d 293, 295 (3d Cir. 1988); see also H.R. Rep.
No. 93-1508, 93d Cong., 2d Sess. (1974), reprinted in 1974
U.S.C.C.A.N. 7401, 7402. The Act requires that a trial shall
start "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 officer of the court in
which such charge is pending, whichever date last occurs." 18
U.S.C. § 3161(c)(1) (emphasis added). The statute provides,
however, that certain periods of delay "shall be excluded . . .
in computing the time within which the trial . . . must
commence." 18 U.S.C. § 3161(h).
Subsection (h) of 18 U.S.C. § 3161 contains a list of
circumstances which merit the exclusion of time from the seventy-
day limit imposed by the Speedy Trial Act. Pursuant to that
subsection, when a district court makes a Speedy Trial Act time
calculation, it "shall" exclude, among other things: (3)(A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.
(B) For purposes of subparagraph (A) of this paragraph, . . . a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
18 U.S.C. § 3161(h)(3).
In addition, the statute provides that a district court
shall exclude any period of delay resulting from a continuance
granted by the district court judge "on the basis of his findings
that the ends of justice served by taking such action outweigh
the best interests of the public and the defendant in a speedy
trial." 18 U.S.C. § 3161(h)(8)(A).2 A continuance pursuant to
18 U.S.C. § 3161(h)(8)(A), however, may not 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 Government." 18 U.S.C. § 3161(h)(8)(C) (emphasis added).
If the trial does not commence within seventy days, or
within an extended time allowable pursuant to section 3161(h),
"the indictment or information must be dismissed on motion of the
2 . See United States v. Lattany, 982 F.2d 866, 877 (3d Cir. 1992) (noting that a district court may delay articulating its reasons for granting the continuance if the continuance is entered before the seventy-day limit would have expired), cert. denied, 114 S. Ct 97 (1993). defendant, with or without prejudice." Lattany, 982 F.2d at 871;
see also 18 U.S.C. § 3162(a)(2). In general, the defendant bears
the burden of proof of supporting such motion. The government,
however, bears the burden of going forward with evidence with
respect to the exclusion of time for an unavailable essential
witness under 18 U.S.C. § 3161(h)(3). See 18 U.S.C. §
3162(a)(2).
The government's appeal requires us to address, for the
first time, the meaning of the terms "essential witness" and
"unavailability" under 18 U.S.C. § 3161(h)(3)(A).3
A. Were the three couriers "essential" witnesses?
Although we have not yet defined the term "essential"
for Speedy Trial Act purposes, several other courts of appeals
have addressed this issue, and their approaches have differed
somewhat. In United States v. Eagle Hawk, 815 F.2d 1213, 1218
(8th Cir. 1987), cert. denied, 484 U.S. 1012 (1988), the court
held that "[w]here a witness is unquestionably important, and the
government has a good faith belief that it will use that
witness's testimony at trial, that witness may be deemed
3 . We note that the government's arguments focus exclusively on the excludable period due to the unavailability of essential witnesses under 18 U.S.C. § 3161(h)(3). The government has not raised any arguments related to the district court's denial of its motion for an "ends of justice" continuance pursuant to 18 U.S.C. § 3161(h)(8). We therefore express no opinion on propriety of the district court's denial of the motion for a continuance. 'essential' for purposes of the Speedy Trial Act."4 In United
States v. Marrero, 705 F.2d 652, 656 (2d Cir. 1983), the court
appeared to employ a more restrictive interpretation of the word,
stating that the legislative history of the Speedy Trial Act
reveals that the term "essential" was "meant to refer to
witnesses whose testimony would be extremely important to the
proceeding, perhaps providing proof that was not otherwise
attainable." See also United States v. McNeil, 911 F.2d 768,
773-75 (D.C. Cir. 1990) (employing the definitions used in both
Eagle Hawk and Marrero, and also suggesting that in order to be
"essential," a witnesses testimony must be either the
"cornerstone of the Government's case" or "particularly important
to any necessary element of that case").
In this case, the government contends that each of the
couriers will testify (1) that Hamilton recruited her to carry
cocaine to Miami, Florida, (2) that Hamilton financed her trip to
and from Miami, and (3) that Hamilton gave her cocaine. This
testimony, the government contends, renders the couriers'
testimony essential to the prosecution of Hamilton under either
the Marrero or the Eagle Hawk formulation.
4 . In Eagle Hawk, the court also noted that if "the witness's anticipated testimony will be merely cumulative, or substantially irrelevant, that witness should be deemed non-essential." United States v. Eagle Hawk, 815 F.2d 1213, 1218 (8th Cir. 1987), cert. denied, 484 U.S. 1012 (1988). Hamilton urges a narrow construction of the term
"essential." According to Hamilton, a witness should be deemed
"essential" under section 3161(h)(A) only if his or her testimony
constitutes virtually all of the government's evidence in the
case with respect to an element of the offense charged and the
government's case would therefore fail without the witness's
testimony. See Marrero, 705 F.2d at 656 (testimony of the
"essential" witness in that case was "virtually the only evidence
the government had"); see also United States v. Vassar, 916 F.2d
624, 628 (11th Cir. 1990) (testimony of several drug couriers was
"essential" to convicting a defendant on certain drug conspiracy
charges where the couriers' testimony was the only evidence of
specific counts in the indictment), cert. denied, 500 U.S. 907
(1991).
Hamilton argues that in this case the potential
witnesses "were not so vital to the proceedings that to proceed
to trial without them would have been impossible or that absent
their testimony a miscarriage of justice would occur."
Appellee's Brief at 13. He reasons that the government has
additional witnesses who can testify that Hamilton purchased the
tickets to and from Miami and that he was accompanying the women
when they were arrested and the cocaine was discovered.
Therefore, the argument continues, because this evidence could
possibly support a conviction of Hamilton on the counts charged in the indictment, the testimony of the couriers themselves is
not "essential" to the government's case.
We decline to adopt Hamilton's interpretation of the
term "essential." We believe a witness may be deemed "essential"
for the purposes of 18 U.S.C. § 3161(h)(3)(A) even though the
government could possibly obtain a conviction without that
witness's testimony. The Senate Judiciary Committee report
accompanying the Speedy Trial Act defined an "essential witness"
as "a witness so essential to the proceeding that continuation
without the witness would either be impossible or would likely
result in a miscarriage of justice." 1974 S. Rep. No. 93-1021,
93d Cong., 2d Sess. 37 (1974), reprinted in Anthony Partridge,
Legislative History of Title I of the Speedy Trial Act of 1974,
at 123 (1980) (emphasis added). The legislative history of the
Speedy Trial Act therefore suggests that the government need not
demonstrate impossibility of conviction without the witness
before that witness may be deemed "essential." A witness may
also be treated as "essential" if, in the absence of that
witness's testimony, a miscarriage of justice may likely occur.
See United States v. Tedesco, 726 F.2d 1216, 1222 (7th Cir. 1984) (a witness may be deemed "essential" for Speedy Trial Act
purposes "even when the Government could convict without his
testimony").
We therefore join with the Court of Appeals of the
Eighth Circuit in holding that where a witness is unquestionably important to the prosecution's case, and the government has a
good faith belief that it will use that witness's testimony at
trial, the district court may treat that witness as "essential"
for Speedy Trial Act purposes. See Eagle Hawk, 815 F.2d at 1218.
On the other hand, if the witness's testimony will be merely
cumulative or substantially irrelevant, the witness should not be
deemed essential. Id.
In this case, the proposed testimony of the couriers is
clearly crucial to the government's prosecution of Hamilton. The
couriers alone can testify that Hamilton gave them the cocaine.
Thus, the testimony of the couriers is "unquestionably important"
and neither irrelevant nor cumulative. Moreover, there is no
suggestion that the government did not have a good faith belief
that it would be using the testimony of the couriers at trial.
We thus conclude that the couriers were "essential" witnesses for
purposes of 18 U.S.C. § 3161(h)(3)(A).5
B. Were the three couriers "unavailable"?
We part company with the Eagle Hawk court, however, in
its interpretation of when a witness is to be deemed
"unavailable" for Speedy Trial Act purposes. Under the Speedy
Trial Act, an essential witness is deemed "unavailable" if "his
5 . In light of our decision, we need not decide whether the couriers would also satisfy the test of "essentiality" set forth in United States v. Marrero, 705 F.2d 652, 656-57 (2d Cir. 1983) (concluding that the testimony of a defendant's accomplices rendered them "essential" to the government's case in part because such testimony was the "most persuasive evidence" against the defendant). whereabouts are known but his presence for trial cannot be
obtained by due diligence or he resists appearing at or being
returned for trial." 18 U.S.C. § 3161(h)(3)(B). In denying the
government's motion for a continuance, the district court
concluded that it could not find that the couriers were
"unavailable" because the government could grant use immunity to
the couriers, who might otherwise have pled the Fifth Amendment,
which would have allowed them to testify despite their pending
indictment.
The government presented no evidence suggesting that
the couriers were actively resisting efforts to obtain their
appearance at trial. Instead, it contends, apparently as a
matter of law, that the pendency of a related criminal action
against the three couriers rendered them automatically
"unavailable" for Speedy Trial Act purposes. The government
relies on the holding in Eagle Hawk that, "once a witness is
under indictment for the same offense as that to which he is
requested to testify, fifth amendment safeguards render this
witness unavailable for purposes of the Speedy Trial Act." Eagle Hawk, 815 F.2d at 1219. Thus, that court affirmed the grant of a
continuance to the government due to the unavailability of an
essential witness under those circumstances.6
6 . In support of its conclusion regarding the unavailability of a witness, the Eagle Hawk court cited only United States v. Dichne, 612 F.2d 632 (2d Cir. 1979), cert. denied, 445 U.S. 928 (1980). That citation is unpersuasive, however. In Dichne, the Second Circuit declined to address the meaning of the term "unavailability" under section 3161(h)(3)(A) because the sanction Although we are fully appreciative of the concerns
expressed by the Eagle Hawk court regarding the Fifth Amendment,
we decline to adopt that court's broad definition of the term
"unavailable." Obviously, the mere pendency of an indictment
against an essential witness does not automatically render that
witness "unavailable" to testify, because the witness can choose
to waive the Fifth Amendment privilege against self-
incrimination. See, e.g., Maness v. Meyers, 419 U.S. 449, 466
(1975) (privilege can be waived by not asserting it in a timely
fashion). More important, a grant of use immunity will satisfy
the requirements of the Fifth Amendment. See In re Grand Jury
Matter, 673 F.2d 688, 689-90 n.4 (3d Cir.), cert. denied, 459
U.S. 1015 (1982). It follows that the government has the power
to minimize the Fifth Amendment concerns presented by calling
indicted witnesses, and at the same time satisfy the Sixth
Amendment interests that animate the Speedy Trial Act.
The government complains that consideration of the
availability of use immunity in connection with the application
of 18 U.S.C. § 3161(h)(3) improperly restricts its discretion to
(..continued) of dismissal imposed by the Speedy Trial Act did not apply under the facts of the case. Id. at 641. Although the Dichne court suggested that, even if the Speedy Trial Act applied, dismissal would not be mandated, id. at 642, it reached this conclusion by reasoning that the postponement of the trial was granted "in the interest of justice, and involved no serious prejudice of the accused's rights." Thus, the Dichne Court would have excluded the period of delay under 18 U.S.C. § 1361(h)(8)(A), not under section 1361(h)(3)(A). grant use immunity. We agree with the government that a
determination regarding use immunity is a matter of prosecutorial
discretion, a principle enunciated by the Supreme Court, see
United States v. Doe, 465 U.S. 605, 616-17 (1984); Pillsbury Co.
v. Conboy, 459 U.S. 248, 261 (1983), and frequently acknowledged
by this court. See United States v. Adams, 759 F.2d 1099, 1107
(3d Cir.), cert. denied, 474 U.S. 906, cert. denied, 474 U.S. 971
(1985) ("the decision to grant immunity is reserved to the
discretion of the executive branch."); see also Grand Jury
Matter, 673 F.2d at 696 (Sloviter, J., concurring) ("A decision
as to whom to immunize in order to elicit testimony inculpatory
of another has traditionally been considered part of the
prosecutorial, not judicial, function.").
We do not agree, however, that a district court's
consideration of the government's discretion to grant use
immunity in determining the availability of a witness for Speedy
Trial Act purposes improperly interferes with the prosecutor's
function or discretion. The government fails to recognize the
distinction between its broad discretion to grant immunity and
the legal consequences of the exercise of that discretion. The
government's grant of use immunity to a witness always has legal
consequences, i.e. the limitation of its ability to use the
testimony against that witness in a subsequent criminal case.
See 18 U.S.C. § 6002. The fact that its decision not to grant a
witness immunity may have consequences with respect to calculation of excludable time under the Speedy Trial Act no more
limits the government's discretion than does the consequence that
results from its decision to grant use immunity. In both
instances, the decision as to use immunity remains in the
government's hands.
This situation is unlike that presented in Government
of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), where we
stated that the district court had authority in limited
situations to grant judicial immunity to an essential witness to
vindicate the defendant's right to a fair trial. In this case,
the district court did not order the government to grant use
immunity to the couriers. Indeed, it explicitly left that choice
to the discretion of the government.
Thus, we hold that the mere fact that an essential
witness is under indictment for the same or a related offense
does not render that witness "unavailable" for the purposes of 18
U.S.C. § 3161(h)(3) in light of the government's ability to
elicit the witness's testimony by a grant of use immunity. We
are not here presented with a situation where a witness has
refused to testify after a prosecutorial decision to grant use
immunity. See Tedesco, 726 F.2d at 1221-22 (witness deemed
"unavailable" for ten-day period during which he refused to
testify despite immunity); Marrero, 705 F.2d at 654, 657-58
(essential witnesses deemed "unavailable" where they refused to testify after receiving grants of immunity pursuant to 18 U.S.C.
§§ 6002-6003).
Applying this rule to the facts of this case, we find
no error in the district court's conclusion that the couriers
were not unavailable for the purposes of 18 U.S.C. §
1361(h)(3)(A). Because the government declined to exercise its
discretion to grant use immunity to the couriers, there is no
showing that the couriers refused to testify after the grant of
such immunity. The number of nonexcludable days clearly exceeded
the limits of the Speedy Trial Act,7 and we will affirm the order
dismissing the indictment without prejudice.8 7 . The government does not argue that the district court erred in its mathematical calculations under the Speedy Trial Act leading it to the dismissal. Hamilton first appeared before a judicial officer on May 12, 1993. The seventy-day time period established by the Speedy Trial Act therefore began to run on May 13, 1993. See Lattany, 982 F.2d at 871 (date of arraignment is excluded from Speedy Trial Act calculations). By its order entered July 14, 1993, which has not been challenged in this appeal, the district court excluded the period from July 12 through August 23. Thus, as of February 7, 1994, 227 nonexcludable days had expired since Hamilton's first appearance before a judicial officer of the district court. 8 . Hamilton initially requested this court to remand the case to the district court for entry of an order dismissing the indictment with prejudice. He now concedes that a cross-appeal would be required to secure from an appellate court more relief than that granted by the district court. See United States v. American Railway Express Co., 265 U.S. 425, 435 (1924). Moreover, we have previously interpreted 18 U.S.C. § 3731 as precluding a defendant from filing a cross-appeal when an appeal is brought by the government pursuant to that section. See United States v. Coleman, 862 F.2d 455, 457 (3d Cir. 1988), cert. denied, 490 U.S. 1070 (1989); see also United States v. Margiotta, 646 F.2d 729, 734 (2d Cir. 1981). IV.
Conclusion
For the foregoing reasons, we will affirm the district
court's order of dismissal of the indictment in this case.