United States v. Philip H. Garrett, United States of America v. Timothy M. McNamara

720 F.2d 705, 232 U.S. App. D.C. 58, 1983 U.S. App. LEXIS 15557
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 4, 1983
Docket82-1812, 82-1849
StatusPublished
Cited by59 cases

This text of 720 F.2d 705 (United States v. Philip H. Garrett, United States of America v. Timothy M. McNamara) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Philip H. Garrett, United States of America v. Timothy M. McNamara, 720 F.2d 705, 232 U.S. App. D.C. 58, 1983 U.S. App. LEXIS 15557 (D.C. Cir. 1983).

Opinion

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

In these consolidated appeals we first consider whether the district court should have dismissed the indictment against appellant McNamara under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1976), because it was filed thirty-one days after he was arrested. Second, we must decide whether there was sufficient evidence to support appellant Garrett’s conviction for aiding and abetting the interstate transportation of a minor for the purpose of commercial and sexual exploitation in violation of 18 U.S.C. §§ 2 and 2423 (1976). We affirm both convictions.

I.

Timothy M. McNamara was arrested on March 14, 1982 for unlawful interstate *707 transportation of a minor for purposes of prohibited sexual conduct for commercial exploitation. See 18 U.S.C. § 2423 (1976). The appropriate papers were delivered to the United States Attorney the next day, March 15, 1982, and the complaint was filed. Also on March 15, 1982, a warrant was issued for Philip H. Garrett and he was arrested. McNamara was brought before a magistrate and released on his own recognizance. A preliminary hearing was held on March 29, 1982, and the magistrate found probable cause to bind McNamara over to the grand jury. The magistrate continued McNamara’s release on his own recognizance, with the additional condition that he stay away from three locations, including the Naples Cafe.

On April 1, 1982, the FBI was informed that McNamara had been seen in the Naples Cafe. Four days later, a “reliable confidential source” reported to the FBI that McNamara had again been in the Naples Cafe. Government Appendix (“G.A.”) at G4. At that time, McNamara was overheard telling patrons that his bond would be revoked if he were caught in the cafe but that because the local police were unaware of the conditions of the bond, he need only be on the lookout for the FBI. Id. On the strength of the informant’s affidavit, the FBI sought and obtained a bench warrant for McNamara’s arrest. The warrant was issued on April 6, 1982 and executed on April 8,1982. On April 8,1982, a bail hearing was held by the magistrate, McNamara’s personal recognizance bond was revoked, and he was committed to jail with bail set at $10,000. The district court found that “at least one day, and probably two days ... [were] taken up by the[se] efforts of the United States Attorney ....” Id. at G5.

Evidence in these cases was presented to a special grand jury on three separate days. The grand jury returned an indictment on April 14, 1982. One count charged McNamara with the substantive offense for which he had been arrested; a second count charged Garrett with aiding and abetting the same offense.

The Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1976), establishes time limits for both pre-indictment and post-indictment phases of a criminal proceeding. Section 3161(b) — which applies to pre-indictment delay — states that an indictment “shall be filed within thirty days from the date on which [the defendant] was arrested or served with a summons ....’’ If that deadline is not met, the charge contained in the complaint “shall be dismissed or otherwise dropped.” 18 U.S.C. § 3162(a)(1). Dismissal is mandatory. United States v. Bittle, 699 F.2d 1201, 1203 (D.C.Cir.1983). There are, however, several statutory “exclusions” which toll the filing period. See 18 U.S.C. § 3161(h).

McNamara moved to dismiss the indictment on April 23, 1982, because it was not returned within the thirty-day period. He argued that, after excluding from the computation, pursuant to Federal Rule of Criminal Procedure 45(a), the day on which he was arrested, and beginning the thirty-day count on March 15, 1982, the indictment was returned thirty-one days following his arrest. The district court denied the motion and ruled the indictment timely by excluding certain periods from the computation of the filing period under 18 U.S.C. § 3161(h)(3) or § 3161(h)(7). G.A. at G5. McNamara was subsequently convicted.

We believe that the district court properly excluded a day from the time period but did so on an inapplicable ground. Section 3161(h)(3), one of the provisions relied upon, requires that “[a]ny period of delay resulting from the absence or unavailability of the defendant” be excluded from the relevant computation. “[A]bsence” and “unavailability” are expressly defined by the statute. An exclusion under this section is proper (1) when the defendant’s “whereabouts are unknown, and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence,” or (2) when the defendant’s 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. *708 § 3161(h)(3)(B). The lower court found that, when McNamara violated the conditions of his bond, his whereabouts “could be considered to be uncertain because [he] knew he was violating the [magistrate’s] order and took necessary steps to avoid apprehension by the FBI.” G.A. at G5. Accordingly, “at least one day, and probably two days are excludable since that time was taken up by the efforts of the United States Attorney and the FBI agent to secure a Bench Warrant for the defendant’s arrest, to apprehend him, to bring him before the Magistrate, and [to] secure his appearance for future proceedings.” Id.

Reliance on section 3161(h)(3) to exclude the delay was misplaced. At no time during the pre-indictment period were McNamara’s whereabouts unknown. While his visits to the Naples Cafe constituted a serious breach of the magistrate’s order, we cannot equate “unavailability” with the intentional violation of a judicial decree. Absent some specific indication of congressional intent to the contrary, the statutory text controls. See generally Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 580-81, 102 S.Ct. 1235, 1237-38, 71 L.Ed.2d 432 (1982); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Smocks
District of Columbia, 2021
Michael Molock v. Whole Foods Market, Inc.
952 F.3d 293 (D.C. Circuit, 2020)
United States v. Sandford
293 F. Supp. 3d 370 (W.D. New York, 2018)
United States v. Apodaca
275 F. Supp. 3d 123 (District of Columbia, 2017)
Olga Hernandez v. Penny Pritzker
741 F.3d 129 (D.C. Circuit, 2013)
United States v. Ali Ali
718 F.3d 929 (D.C. Circuit, 2013)
United States v. George
658 F.3d 706 (Seventh Circuit, 2011)
United States v. Stubblefield
643 F.3d 291 (D.C. Circuit, 2011)
United States v. Ashton
555 F.3d 1015 (D.C. Circuit, 2009)
United States v. Kelly
552 F.3d 824 (D.C. Circuit, 2009)
United States v. Van Smith
530 F.3d 967 (D.C. Circuit, 2008)
Noble v. Sombrotto
525 F.3d 1230 (D.C. Circuit, 2008)
United States v. Powell
451 F.3d 862 (D.C. Circuit, 2006)
United States v. Powell, Ronald
483 F.3d 836 (D.C. Circuit, 2006)
United States v. Buttrick
432 F.3d 373 (First Circuit, 2005)
United States v. Lawson, Willie
410 F.3d 735 (D.C. Circuit, 2005)
United States v. Hylton, Roland
294 F.3d 130 (D.C. Circuit, 2002)
United States v. Richards
56 M.J. 282 (Court of Appeals for the Armed Forces, 2002)
United States v. Hill, William D.
131 F.3d 1056 (D.C. Circuit, 1997)
United States v. Robert Salerno
108 F.3d 730 (Seventh Circuit, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
720 F.2d 705, 232 U.S. App. D.C. 58, 1983 U.S. App. LEXIS 15557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-philip-h-garrett-united-states-of-america-v-timothy-m-cadc-1983.