UNITED STATES OF AMERICA, Appellee, v. DONALD NIXON RUSH,
LARRY JOSEPH LANCELOTTI, GREGORY LEE LANCELOTTI, HARRY J.
SHNURMAN, ROBERT MICHAEL COHEN, THOMAS G. CONVERSE, DAVID
EARL JOHNSON, IRVING F. IMOBERSTAG, CARL ERIC OLSEN, JACOB
SHNURMAN, RANDALL COLLINS, JEFFREY ALLEN BROWN, and DAVID
NISSENBAUM, Defendants, Appellants; UNITED STATES OF
AMERICA, Appellee, v. MICHAEL LEE RISOLVATO, Defendant,
Appellant; UNITED STATES OF AMERICA, Appellee, v. CHARLES
LEATON, Defendant, Appellant
Nos. 83-1177, 83-1391, 83-1463
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
738 F.2d 497; 1984 U.S. App. LEXIS 21026
June 27, 1984
PRIOR HISTORY: [**1]
Appeals from the United States District Court for the District of Maine, [Hon.
Edward T. Gignoux, Senior U.S. District Judge].
COUNSEL:
James R. Cook, Cook & Waters Law Firm, and William Kutmus, for Appellants.
James L. Sultan, by appointment of the Court, for Jacob Shnurman.
James D. Poliquin, by appointment of the Court, and Norman & Hanson for
Thomas G. Converse.
Irving F. Imoberstag, Pro Se.
Carl Eric Olsen, Pro Se.
Jeffrey Allen Brown, Pro Se.
Margaret D. McGaughey, Assistant United States Attorney, Richard S. Cohen,
United States Attorney and Jay P. McCloskey, Assistant United States Attorney,
for Appellee.
JUDGES:
Coffin and Bownes, Circuit Judges, and Pettine, * Senior District Judge.
* Of the District of Rhode Island, sitting by designation.
OPINIONBY:
BOWNES
OPINION:
[*500] BOWNES, Circuit Judge.
These appeals are taken by fifteen men convicted after a jury trial of one or
both counts under a two-count indictment charging them with (a) conspiracy to
possess marijuana with intent to distribute, 21 U.S.C. §§ 846 & 841(b)(6), and
(b) possession of marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1) &
841(b)(6). Appellants' principal claims are that [**2] their speedy trial
rights were violated, that some of them were denied the opportunity to raise
[*501] the free exercise clause of the first amendment as a legally sufficient
defense, and that motions for severance were improperly denied. We affirm the
convictions.
I. BACKGROUND
The evidence may be summarized as follows. On May 20, 1980, an isolated
piece of property in Stockton Springs, Maine, was purchased by appellant D.
Nissenbaum under the alias Arkin. The so-called Arkin property included several
buildings with storage facilities. Five days later, an isolated shorefront
property on Deer Isle, Maine, equipped with a deepwater dock and four buildings,
was purchased with a $100,000 down payment in the name of a Paula Leurs.
Suspecting that the two properties might be used for illegal drug trafficking,
law enforcement agents established surveillance of both properties in August,
1980.
On the evening of October 19, 1980, a pickup truck was observed leaving the
Arkin property loaded with material; it arrived at the Leurs property around
9:30 p.m. Shortly after 9:00 p.m., a dozen people were observed on the Leurs
property carrying large objects, later identified [**3] as Zodiac rubber boats,
down to the dock. Just after midnight the JUBILEE, a large, oceangoing vessel,
was observed approaching from the open sea. It followed the shoreline towards
the Leurs property without navigational lights, dropped anchor and cut its
engines approximately one-tenth of a mile from the Leurs dock. Over a three-hour
period, three rubber boats holding two people each made numerous trips between
the dock area and the JUBILEE, transporting bales of what was later identified
as marijuana from the JUBILEE to shore. The bales, after having been brought
ashore, were loaded into pickup trucks and transported further inland.
The unloading of the marijuana bales continued for roughly three hours. At
3:05 on the morning of October 20, federal and state law enforcement officers
entered the Leurs property in police cars with blue lights flashing. As the
officers emerged from the cars and approached the dock area on foot, the people
gathered there began to run away into the woods. The officers fanned out in
pursuit. Ten of the appellants were apprehended at the time of the raid in the
shore area and in the woods nearby, n1 and two more were later found crouched in
a hollow [**4] a short distance from the dock. n2 Approximately twenty tons of
marijuana were seized.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 D. Rush, L. Lancelotti, G. Lancelotti, Leaton, H. Shnurman, Risolvato,
Cohen, Converse, Johnson and J. Shnurman.
n2 Imoberstag and Olsen.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
When the raid began, the JUBILEE cut anchor and proceeded out to sea, pursued
by a police patrol boat, a coast guard search-and-rescue boat, and then a coast
guard cutter. The JUBILEE was finally intercepted and boarded after a
protracted chase by the cutter, and the four-man crew, including two of the
present appellants, n3 was arrested.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Collins and Brown.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Twenty-three people were arrested in connection with the October 20 raid and
named in the original indictment returned on October 29, 1980. n4 A
twenty-fourth defendant, D. Nissenbaum, was added in a superseding indictment.
By the time trial [**5] commenced in December, 1982, however, two defendants
had become fugitives, another two had pleaded nolo contendere, and charges had
been dismissed as to four others, leaving a total of sixteen defendants facing
trial on the conspiracy and possession with intent charges. n5 Of these, five
[*502] were convicted on both counts, n6 one on the first count only, n7 nine
on the second count only, n8 and one was acquitted on both counts. n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Middleton, D. Rush, L. Lancelotti, G. Lancelotti, Leaton, H. Shnurman,
Risolvato, Cohen, Converse, Johnson, Booth, Hanson, Imoberstag, Olsen, J.
Shnurman, J. Tranmer, C. Nissenbaum, D. Woodward, B. Rush, O'Hara, Collins,
Brown and Lawler.
n5 D. Rush, L. Lancelotti, G. Lancelotti, Leaton, H. Shnurman, Risolvato,
Cohen, Converse, Johnson, Hanson, Imoberstag, Olsen, J. Shnurman, Collins, Brown
and D. Nissenbaum.
n6 D. Rush, L. Lancelotti, Cohen, Collins and Brown.
n7 D. Nissenbaum's motion for a judgment of acquittal at the conclusion of
the evidence was granted with respect to the second count; his case went to the
jury only on the conspiracy count. [**6]
n8 G. Lancelotti, Leaton, H. Shnurman, Risolvato, Converse, Johnson,
Imoberstag, Olsen and J. Shnurman.
n9 Hanson.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
II. SPEEDY TRIAL ACT
The Speedy Trial Act of 1974, as amended, 18 U.S.C. §§ 3161 et seq., requires
that trial commence within a specified time limit:
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 officer of the court in
which such charge is pending, whichever date last occurs.
18 U.S.C. § 3161(c)(1). The same section, however, also provides that certain
"periods of delay shall be excluded . . . in computing the time within which the
trial . . . must commence." Id., § 3161(h). In the absence of excludable delay
under (h), the starting point for computing the seventy-day limit under (c) in
this case would be October 30, 1980, the day after the original October [**7]
29 indictment. n10 See Fed. R. Crim. P. 45(a); Committee on the Administration
of the Criminal Law, Judicial Conference of the United States, Guidelines to the
Administration of the Speedy Trial Act of 1974, as Amended [hereinafter
Guidelines] at 22-23; United States v. Mers, 701 F.2d 1321, 1332 n.6 (11th
Cir.), cert. denied, 464 U.S. 991, 78 L. Ed. 2d 679, 104 S. Ct. 482 (1982).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 All of the twenty-four defendants except for D. Nissenbaum were named in
the original October 29 indictment.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Among the time exclusions for "other proceedings concerning the defendant"
are periods of "delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt disposition of,
such motion." 18 U.S.C. § 3161(h)(1)(F). The exclusion for pretrial motions is
automatic; a showing of actual delay is not required. United States v. Novak,
715 F.2d 810, 813 (3d Cir. 1983), cert. denied sub nom. Ware v. United States,
465 U.S. 1030, 104 [**8] S. Ct. 1293, 79 L. Ed. 2d 694 (1984); United States v.
Brim, 630 F.2d 1307 (8th Cir. 1980), cert. denied, 452 U.S. 966, 69 L. Ed. 2d
980, 101 S. Ct. 3121 (1981). The length of time excludable under (h)(1)(F) is
limited to "such delay as is reasonably necessary from the time of filing a
pretrial motion to the time of conducting a hearing on it or completing
submission of the matter to the court for decision." United States v. Mitchell,
723 F.2d 1040, 1047 (1st Cir. 1983).
The defendants' first pretrial motion was a motion to preserve evidence,
filed on November 7, 1980, by Booth and joined by other defendants. A hearing
on that motion was held on November 25, 1980, and it was agreed at that time
that no court action was required. The time from November 7 through November 25
was clearly excludable under (h)(1)(F), and the district court so found. The
government, however, points out that a government pretrial motion for an "order
permitting destruction of seized marijuana" had been filed on October 24, 1980,
before the speedy trial clock was even set. A hearing on this motion was held
on November 25, and it was granted in an order dated December 18. The
government's [**9] motion thus overlapped the defendants', and we find that the
time from October 30 until the [*503] filing of the defendants' motion on
November 7 was excludable. n11
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 The (h)(1)(F) exclusion applies whether the pretrial motion is filed
before or after indictment. See S. Rep. No. 93-1021, 93d Cong., 2d Sess. 32-33
(1974), reprinted in A. Partridge, Legislative History of Title I of the Speedy
Trial Act of 1974 94 (Fed. Judicial Center 1980).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
While the government's and the defendants' motions were still pending,
defendants Booth and Middleton filed numerous additional pretrial motions in
which other defendants joined, which independently gave rise to (h)(1)(F)
exclusions. For purposes of speedy trial computations, the relevant motions are
two suppression motions, both filed on November 21, 1980. The government filed
an opposition on February 4, 1981, an evidentiary hearing was held on February
23-26, and oral argument took place on March 17, 1981. The record before us
leaves no doubt that [**10] the time from November 21, 1980, through March 17,
1981, was "reasonably necessary" under the standard adopted in Mitchell, 723
F.2d at 1047. On the facts in this case, we must reject the argument to the
contrary. See United States v. Gonsalves, 735 F.2d 638, slip op. at 6 (1st Cir.
1984); United States v. Regilio, 669 F.2d 1169, 1172 (7th Cir. 1981), cert.
denied, 457 U.S. 1133, 73 L. Ed. 2d 1350, 102 S. Ct. 2959 (1982). We agree with
the district court that this entire period was excludable under (h)(1)(F).
The (h)(1)(F) exclusion applies not only to the particular defendants who
file or join in pretrial motions, but also to codefendants whose trials have not
been severed and whose speedy trial time has not otherwise run out. Section
(h)(7) provides an exclusion for "[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." Every circuit court
that has considered this provision has held in essence that "an exclusion
applicable to one defendant applies to all codefendants." United States v.
Edwards, 201 U.S. App. D.C. 1, 627 F.2d 460, 461 [**11] (D.C. Cir.), cert.
denied, 449 U.S. 872, 66 L. Ed. 2d 92, 101 S. Ct. 211 (1980); see United States
v. Tedesco, 726 F.2d 1216, 1219 (7th Cir. 1984); United States v. Campbell, 706
F.2d 1138, 1141 (11th Cir. 1983); United States v. Fogarty, 692 F.2d 542, 546
(8th Cir. 1982), cert. denied, 460 U.S. 1040, 103 S. Ct. 1434, 75 L. Ed. 2d 792
(1983); United States v. McGrath, 613 F.2d 361, 366 (2d Cir. 1979), cert. denied
sub nom. Buckle v. United States, 446 U.S. 967, 64 L. Ed. 2d 827, 100 S. Ct.
2946 (1980); see also Novak, 715 F.2d at 814 (qualified by "reasonableness
limitation").
We note that the Guidelines adopt a different interpretation of (h) (7).
Under the Guidelines approach, an (h)(7) exclusion would be available only when
a particular defendant's seventy days had already run and additional time was
necessary to permit a joint trial with an unsevered codefendant as to whom the
seventy days had not yet run. See Guidelines at 52-53. The Guidelines approach
represents a plausible application of the statutory text. It accurately
allocates exclusions to defendants on an individual basis, thus minimizing the
burden on individual defendants [**12] resulting from joint trials and
affording each defendant the fullest possible benefit of the Speedy Trial Act.
At the same time, however, the Guidelines approach considerably reduces the
amount of excludable time in joint trials and puts pressure on trial courts to
sever defendants or grant "ends of justice" continuances routinely as soon as a
single defendant's seventy days expire, in order to avoid having even a single
nonexcludable day elapse thereafter. Moreover, the Guidelines approach calls
for individual speedy trial computations which could easily become unmanageable
in a multidefendant case such as the present one. We cannot square such an
interpretation with the congressional intent of avoiding waste of resources on
unnecessary severances and separate trials. See Novak, 715 F.2d at 814-15; S.
Rep. No. 93-1021, 93d Cong., 1st Sess. 38 (1974) and S. Rep. No. 96-212, 96th
Cong., 1st Sess. 24-25, reprinted in A. Partridge, Legislative History of Title
I of the Speedy Trial Act of 1974 135-36 (Fed. Judicial Center 1980). The
Guidelines, [*504] of course, are not binding, and we find the reasons
advanced by the Eleventh Circuit in Campbell compelling [**13] on this point.
See 706 F.2d at 1141-43. Therefore, although we have not previously been
directly confronted by the issue, see United States v. Brown, 736 F.2d 807, slip
op. at 5 (1st Cir. 1984), we now join the Second, Third, Seventh, Eighth,
Eleventh, and District of Columbia Circuits and hold that (h)(7) "stops the
[speedy trial] clock for one defendant in the same manner and for the same
amount of time as for all co-defendants." Campbell, 706 F.2d at 1141.
Because of the (h)(7) exclusion, the (h)(1)(F) exclusions for the overlapping
pretrial motions applied to all twenty-four defendants. n12 Up to March 17,
1981, therefore, none of the seventy days had run on the speedy trial clock. On
March 17, the same day on which the suppression motions were argued, the
district court issued an order scheduling trial for May 18, 1981. At the same
time, the court granted motions to sever the trials of the three female
defendants (J. Tranmer, C. Nissenbaum and D. Woodward) and denied the severance
motions of the remaining defendants "except as follows":
(a) The trial of those defendants who will assert a "First Amendment"
defense shall be severed from the trial of those [**14] defendants
who will not be asserting a "First Amendment" defense;
(b) Each defendant shall advise the Court and the United States
Attorney by Wednesday, April 15, 1981, as to whether or not he will be
asserting a "First Amendment" defense;
(c) Counsel for those defendants who will be asserting a "First
Amendment" defense shall file with the Court and serve upon the United
States Attorney by Wednesday, April 15, a joint memorandum of law in
support of said defense; the Government shall similarly file with the
Court and serve upon defendants' counsel by Monday, May 4, its
responsive memorandum;
(d) The trial of those defendants who will not be asserting "First
Amendment" defense shall commence on Monday, May 18, at 10:00 a.m.
(estimated one to two weeks trial time);
. . . .
(e) If upon the basis of counsel's written memoranda and any oral
argument, the Court determines that the "First Amendment" defense is
not viable, all defendants shall be prepared to proceed to trial on
Monday, May 18. . . .
(Emphasis in original.) Because (h) (7) carries exclusions applicable to one
defendant over only to codefendants "as to whom . . . no motion for severance
has been granted," [**15] our computation of speedy trial time for the period
after March 17, 1981, depends on a correct determination of the effect of the
March 17 order. The three female defendants whose trials were unconditionally
severed are eliminated from our calculations at this point, for the charges
against them were subsequently dropped and they are not involved in this appeal.
As for the two groups of defendants -- those "who will assert a 'First Amendment
' defense," whom we shall call the "first amendment" defendants, and those "who
will not be asserting a 'First Amendment' defense," or the "conventional"
defendants -- the severance was only conditional. The court expressly stated
that all defendants would be tried together if the court ruled that the first
amendment defense were not viable. As it happened, the court did eventually
make just that ruling, on November 23, 1982, and ordered all of the remaining
defendants tried jointly. Thus, although it was contemplated for a protracted
period that the [*505] trial of the first amendment defendants would take
place after that of the conventional defendants in the event the first amendment
defense were found valid, the precondition for [**16] the severance never came
about, nor did the severance contemplated in the March 17 order ever become
effective. n13
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 This and subsequent exclusions apply to D. Nissenbaum on the same basis
as to the other defendants. Although D. Nissenbaum was first named in the
superseding indictment returned on February 4, 1981, the speedy trial
computations with respect to him under the seventy-day time limit are the same
as for the defendants named in the original indictment because no nonexcludable
time had yet run as to the others before February 4. The superseding
indictment, of course, made no difference in the speedy trial computations for
the defendants named in the original indictment. See Mitchell, 723 F.2d at 1045;
Novak, 715 F.2d at 817-18.
n13 The question whether the denial of severance was an abuse of discretion
under Federal Rule of Criminal Procedure 14 is analytically distinct; it is
discussed in Part IV.
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We do not think that the order can be viewed as providing some sort of
temporarily [**17] operative severance for speedy trial purposes, because it is
virtually impossible to ascertain the composition of the two groups referred to
in the order. The record shows that as of July 17, 1981, twelve of the
twenty-one defendants remaining at that time had advised the court that they
would rely on a first amendment defense, n14 eight had advised that they would
not, n15 and one remained undecided. n16 By August 11, 1981, three defendants
had switched to the first amendment group. n17 By September 21, 1981, three more
conventional defendants had switched to the first amendment group, n18 and one
had abandoned that group to become undecided. n19 On October 7, 1982, only one
or two remained in the conventional group, and only one remained on October 25.
n20 To compute individual speedy trial time exclusions under (h)(7) in these
circumstances would give gamesmanship priority over the practicalities of trial
management. We do not construe the Speedy Trial Act to require anything of the
sort. We hold that the March 17 order did not effectively sever the trials of
the first amendment and conventional groups, and compute speedy trial time
exclusions under (h)(7) with respect to proceedings [**18] after March 17,
1981, as if the severance motion had been denied at the outset.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n14 D. Rush, H. Shnurman, Cohen, Johnson, Hanson, Imoberstag, J. Shnurman,
Collins, Brown, Lawler, B. Rush and O'Hara.
n15 Middleton, L. Lancelotti, G. Lancelotti, Leaton, Risolvato, Converse, D.
Nissenbaum and Booth.
n16 Olsen.
n17 L. Lancelotti, Converse and Olsen.
n18 Middleton, Risolvato and Booth.
n19 Imoberstag.
n20 Leaton.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Between March 17, 1981, when the district court took the suppression motions
under advisement, and June 24, 1981, when it issued a detailed memorandum and
order denying the motions, well over thirty days elapsed. An automatic
exclusion is provided in (h)(1)(J) for "delay reasonably attributable to any
period, not to exceed thirty days, during which any proceeding concerning the
defendant is actually under advisement by the court." Unlike the pretrial motion
exclusion in (h)(1)(F), the advisement exclusion in (h)(1)(J) is expressly
limited to thirty days, and cannot [**19] be extended without resort to another
source of excludable time such as an "ends of justice" continuance under (h)(8).
United States v. Cobb, 697 F.2d 38, 43 (2d Cir. 1982); see also Mitchell, 723
F.2d at 1047 n.6; United States v. Janik, 723 F.2d 537, 544 (7th Cir. 1983). Of
the ninety-eight days that elapsed between oral argument and ruling on the
suppression motions, therefore, only thirty are excludable under (h)(1)(J),
namely the period from March 18 through April 16, 1981.
The government argues that an independent, overlapping exclusion arose under
(h)(1)(F) on March 9, 1981, when H. Shnurman filed a memorandum and proffer with
respect to the first amendment defense. We reject this argument because, in our
view, an offer of proof is not a pretrial motion within the meaning of
(h)(1)(F). Instead, it is a submission of evidence which need not be admitted
or excluded until trial; indeed, it is commonly carried over until trial. If
such submissions were held to be pretrial motions or "other proceedings
concerning the defendant" triggering automatic [*506] exclusions under (h)
(1), the Speedy Trial Act could easily be circumvented by filing offers of proof
at [**20] an early stage and then failing to press for prompt disposition.
This was not the intent of Congress under (h)(1)(F), see Brown, slip op. at 6;
Mitchell, 723 F.2d at 1046, or (h)(1) generally. The district court did not
exclude the proffered evidence until October 25, 1982, more than two and
one-half years after the proffer was filed, and did so then only indirectly, in
ruling on a government motion to limit the defense evidence. The district court
did not treat the proffer as a pretrial motion for purposes of (h)(1)(F), and we
see no reason to do so.
When the thirty-day exclusion under (h)(1)(J) expired on April 16, 1981, the
speedy trial clock finally began to run. After eleven nonexcludable days, it
stopped once more because ten of the defendants n21 were being tried on similar
charges in the United States District Court for the Southern District of
Florida. Under (h)(1)(D), "delay resulting from trial with respect to other
charges against the defendant" is automatically excludable. Appellants concede
that the time from the commencement of the Florida trial on April 28 through its
conclusion on June 19, 1981, was excludable.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n21 Middleton, L. Lancelotti, G. Lancelotti, Booth, Imoberstag, J. Shnurman,
B. Rush, Collins, Brown and Lawler.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**21]
The Florida trial disrupted the trial schedule in the present case, which had
initially been set for May 18, 1981. The fallback date of June 1, 1981, was
likewise precluded by the Florida trial. On June 4, 1981, stating that it had
"been advised that the Florida trial has not concluded and that counsel would
need additional time to prepare for trial" beyond the second fallback date of
July 6, 1981, the district court entered the following order:
IT IS ORDERED that, pursuant to Title 18 U.S.C., § 3161(h)(8), the
ends of justice served by the further continuance of the trial would
serve the ends of justice and outweigh the best interest of the public
in the speedy trial. Accordingly, the trial in this action stands
continued until further order of the Court and that the time from May
18, 1981 until the time of the commencement of this trial be excluded
from computation under the Speedy Trial Act.
Under (h)(8), delay resulting from a continuance is excludable if the trial
judge grants the continuance on the basis of findings set out in the record that
the ends of justice served by granting the continuance outweigh the best
interests of the public and the defendant [**22] in a speedy trial. n22
Appellants [*507] challenge the validity of the June 4 order on three grounds:
that retroactive continuances are not permissible; that the findings were
inadequate; and that the speedy trial exclusion was improperly open-ended.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n22 Section (h)(8) provides an exclusion for:
(A) Any period of delay resulting from a continuance 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 reasons for finding that the ends of
justice served by the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy trial.
(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 continuance 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 complex, 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.
. . . .
(iv) Whether the failure to grant such a continuance in a case which,
taken as a whole, is not so unusual or so complex as to fall within
clause (ii), would deny the defendant reasonable time to obtain
counsel, would unreasonably deny the defendant or the Government
continuity of counsel, or would deny counsel for the defendant or the
attorney for the Government the reasonable time necessary for
effective preparation, taking into account the exercise of due
diligence.
(C) No continuance under paragraph (8)(A) of this subsection shall
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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**23]
Other courts have held that (h)(8) continuances may not be given retroactive
effect -- that the order granting a continuance must be made at the outset of
the excludable period. Janik, 723 F.2d at 545; United States v. Brooks, 697
F.2d 517, 522 (3d Cir. 1982), cert. denied sub nom. Reed v. United States, 460
U.S. 1071, 103 S. Ct. 1526, 75 L. Ed. 2d 949 (1983); but see United States v.
Cameron, 510 F. Supp. 645, 649-50 (D. Md. 1981). This court has not addressed
the question, United States v. Jodoin, 672 F.2d 232, 237 (1st Cir. 1982), and
need not do so now. Appellants concede that the entire period from May 18 to
June 4 is excludable under (h)(1)(D) without regard to (h)(8).
As to the adequacy of the district court's findings, we note that, although
the reasons for an (h)(8) continuance must be "reasonably explicit," United
States v. Perez-Reveles, 715 F.2d 1348, 1352 (9th Cir. 1983) (conclusory
statements insufficient), they need not be given at the time the continuance is
granted. United States v. Bryant, 726 F.2d 510, 511 (9th Cir. 1984); Janik, 723
F.2d at 544-45; Brooks, 697 F.2d at 522; United States v. Clifford, 664 F.2d
1090, 1095 [**24] (8th Cir. 1981); Edwards, 627 F.2d at 461, cited in Mitchell,
723 F.2d at 1043-44. The purpose of the requirement that reasons be stated is to
insure careful consideration of the relevant factors by the trial court and to
provide a reviewable record on appeal. Both purposes are served if the text of
the order, taken together with more detailed subsequent statements, adequately
explains the factual basis for the continuance under the relevant criteria.
Brooks, 697 F.2d at 520-22. Indeed, although the trial court may not merely
incorporate reasons by reference, Janik, 723 F.2d at 545, it is not necessary
for the court to articulate the basic facts where they are obvious and set forth
in a motion for a continuance. Mitchell, 723 F.2d at 1044 (motion and court
ruling read as complementary documents). In the present case, the court
mentioned the Florida trial and counsel's expressed need for additional
preparation time as reasons for granting an "ends of justice" continuance; these
are in themselves sufficient grounds under (h)(8)(B)(i) & (iv). Moreover,
reviewing the protracted history of the case during the November 23, 1982
hearing on defendants' speedy trial [**25] motion to dismiss, the court
elaborated on the basis of its June 4, 1981 order.
That order was entered, as the record will reflect, by agreement,
indeed at the request of defense counsel, because of the Florida trial
and other complications, and no defense counsel has even remotely
suggested that they wished a Court order setting a trial date.
The court also attributed any unnecessary delay to the defendants:
Whatever delays have resulted in this case have been entirely . . .
the result of dilatory tactics and various appeals and motions, and so
forth, filed by the defendants, and indeed counsel have on numerous
occasions when the Court has raised the problem of speedy trial time
running, counsel . . . have expressly consented, agreed, and requested
continuances.
The district court's findings leave us with no doubt that the June 4
continuance was properly grounded in relevant criteria under (h)(8)(B). The
trial could not have gone forward without the continuance, and the delay was
requested by defense counsel to enable them to prepare following the Florida
trial. Moreover, we think that on its face the record shows that this case was
sufficiently [**26] complex to justify a continuance under (h)(8)(B)(ii)
because of the number of defendants, the [*508] plethora of motions, the
potentially intricate questions raised by the first amendment defense, and the
procedural tangle resulting from various defendants' changes in position. Cf.
United States v. Guerrero, 667 F.2d 862, 866 (10th Cir.), cert. denied, 456 U.S.
964, 72 L. Ed. 2d 490, 102 S. Ct. 2044 (1982) (court need not articulate
self-evident facts supporting (h)(8)(A) continuance). We also note in passing
that, although defendants do not bear the primary responsibility for alerting
the court to speedy trial deadlines, this does not mean that they may
deliberately obtain an (h)(8) continuance for their own convenience in the face
of speedy trial concerns articulated by the trial court and then later claim
that the court abused its discretion in granting the requested continuance. See
Jodoin, 672 F.2d at 238; cf. United States v. Bufalino, 683 F.2d 639, 646 (2d
Cir. 1982), cert. denied, 459 U.S. 1104, 74 L. Ed. 2d 952, 103 S. Ct. 727 (1983)
(defendant may not claim Speedy Trial Act violation caused by own failure to
respond to government motion).
Appellants' [**27] third objection to the June 4 continuance is not
frivolous. They argue that the district court should have set a specific ending
date for the continuance. See United States v. Pollock, 726 F.2d 1456, 1461 (9th
Cir. 1984) ((h)(8) continuance "proper only if ordered for a specific period of
time"). Doubtless it is generally preferable to limit a continuance to a
definite period for the sake of clarity and certainty; but at the same time it
is inevitable that in some cases, like the present one, a court is forced to
order an (h)(8) continuance without knowing exactly how long the reasons
supporting the continuance will remain valid. n23 In this case, an alternative
trial date of July 6, 1981, was rejected by defense counsel on June 4, 1981,
because it was anticipated that additional preparation time would be necessary
after the conclusion of the Florida trial, at whatever time that might occur.
The purpose of (h)(8) continuance is to make the Speedy Trial Act "flexible
enough to accommodate the practicalities of our adversary system." Mitchell, 723
F.2d at 1044. We do not think a rule barring open-ended continuances altogether
serves this purpose. Moreover, Pollock [**28] appears to be the first and, so
far, only case to adopt such a rule; it was decided nearly three years after the
continuance was granted in this case, and we decline to apply it here. It may
well be that some sort of reasonableness limitation is appropriate to prevent
continuances from delaying trials unfairly and circumventing the dismissal
sanctions in the Speedy Trial Act; but we need not decide at what point, if any,
such a limitation might have been exceeded in this case, for even if the June 4
continuance is construed to last for only thirty days from the end of the
Florida trial, i.e., through July 19, 1981 (two weeks from the alternative July
6 trial date rejected by defendants), there is no Speedy Trial Act violation.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n23 This appears to be the concern underlying section 6(d)(3) of the Speedy
Trial Plan adopted by the District of Maine, which provides:
The court may grant a continuance under 18 U.S.C. § 3161(h)(8) for
either a specific period of time or a period to be determined by
reference to an event (such as recovery from illness) not within the
control of the government. . . .
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**29]
On July 14, 1981, Booth and Middleton filed motions to dismiss on double
jeopardy grounds, claiming that their convictions in the Florida proceedings
barred further prosecution in this case. A hearing was scheduled for August 11,
1981, but on that date both defendants filed amendments to their motions;
accordingly, the hearing was postponed until September 11. Three days later, on
September 14, 1981, the district court ruled on both motions, denying Booth's
(in which the eight other defendants convicted in the Florida trial had joined)
and granting Middleton's. Appeals were taken by the nine defendants whose
motion was denied and by the government respectively on September 17 and 22,
1981. The time from the filing of the motions on July 14 through the September
11 hearing and September 14 rulings was excludable with respect to all
twenty-one [*509] defendants (aside from the three severed female defendants)
under (h)(1)(F) & (J) and (h)(7). An independent exclusion then took effect
under (h)(1)(E), which automatically excludes "delay resulting from any
interlocutory appeal," on the date the defendants filed their appeal. United
States v. McGrath, 622 F.2d 36, 40 (2d [**30] Cir. 1980). We announced our
decisions affirming both orders in companion cases on March 19, 1982. United
States v. Booth, 673 F.2d 27 (1st Cir.), cert. denied, 456 U.S. 978, 72 L. Ed.
2d 853, 102 S. Ct. 2245 (1982); United States v. Middleton, 673 F.2d 31 (1st
Cir.), reh'g denied (1st Cir. Aug. 10, 1982).
Courts which have considered the question of when an appeal ends and the
clock begins to run again for speedy trial purposes have generally held that the
applicable date is the date on which the appellate court issues its mandate.
United States v. Mack, 669 F.2d 28, 33 (1st Cir. 1982); United States v. Ross,
654 F.2d 612, 616 (9th Cir. 1981), cert. denied, 455 U.S. 926, 71 L. Ed. 2d 470,
102 S. Ct. 1290 (1982); United States v. Cook, 592 F.2d 877, 880 (5th Cir.),
cert. denied, 442 U.S. 921, 61 L. Ed. 2d 289, 99 S. Ct. 2847 (1979); cf. United
States v. Gilliss, 645 F.2d 1269, 1276 (8th Cir. 1981) (noting Guidelines use of
date district court receives appellate court's mandate). Although these cases
relate to subsection (e) (time limits for retrial following appeal) rather than
to (h)(1)(E), we see no reason to apply a different ending [**31] date to
interlocutory appeals under the latter section. In both situations it is the
date on which the mandate is issued which determines when the district court
reacquires jurisdiction for further proceedings. See Ross, 654 F.2d at 616.
Moreover, where various charges being tried together are appealed separately and
the records with respect to both appeals are retained at the defendant's request
as a single unit to facilitate review, the speedy trial clock does not begin to
run again in the district court until final disposition of both charges. See
United States v. Lyon, 588 F.2d 581, 582 (8th Cir. 1978), cert. denied, 441 U.S.
910, 60 L. Ed. 2d 381, 99 S. Ct. 2005 (1979).
In this case, the records in Booth and Middleton were kept together in this
court until the latter appeal was finally decided. Although this was not at the
defendants' express request, it was, at least, with their implied consent. No
inquiries, let alone requests, as to the record in Booth were made between the
time our mandate issued in that case on April 9, 1981, and the issuance of our
mandate in Middleton on August 17, 1982. We need not address any speedy trial
claims which [**32] might be raised if Middleton had not been pending before
this court during that interval, however, because Middleton by itself was
sufficient to stop the speedy trial clock with respect to all defendants through
August 17 under (h)(1)(E) and (h)(7). Until that date, Middleton did not cease
to be "a codefendant as to whom the time for trial had not yet run and no motion
for severance had been granted."
From August 18 through September 20, 1982, we assume, without deciding, that
no speedy trial exclusion was in effect and that these thirty-four days ran on
the seventy-day clock. On September 21, 1982, a pretrial conference was held "at
which an effort was made by the [district court] to set down trials of the two
different groups of defendants which kept moving around back and forth and back
and forth. . . . At that time it was agreed by all counsel . . . that the
speedy trial clock would stop and [speedy trial claims] would not be asserted."
Appellants concede that this statement by the district court reflects an
accurate account of the September 21 waiver, and they do not dispute that the
time from September 21, 1982, until the impanelling of the jury on December 7,
[**33] 1982, was excludable. n24 See Guidelines at 9. We find [*510] that a
total of, at most, forty-seven nonexcludable days elapsed between indictment and
trial: eleven days from April 17 through April 27, 1981; possibly two days
between the September 14, 1981 order and the interlocutory appeal on September
17; and possibly thirty-four days between the issuance of the mandate in
Middleton on August 17, 1982, and the speedy trial waiver in open court on
September 21. Thus, we conclude that the seventy-day limit was not exceeded.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n24 Leaton apparently withdrew his waiver of speedy trial claims as of
October 25, 1982. By that time, however, the government's October 12 motion
concerning the first amendment defense was pending. The government's motion,
along with H. Shnurman's November 2 speedy trial motion, was finally decided on
November 23, 1982. An appeal from the latter ruling was filed on November 30.
In no event can Leaton allege sufficient nonexcludable time between October 25
and trial to show a Speedy Trial Act violation.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**34]
A separate Speedy Trial Act violation is asserted by Converse, Imoberstag, H.
Shnurman and J. Shnurman, who argue -- paradoxically, it might be thought --
that trial took place too soon after their arraignment, depriving them of
adequate preparation time. They cite section 3161(c)(2) of the Act, which
provides:
Unless the defendant consents in writing to the contrary, 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.
The record shows that all four appellants were arraigned on the superseding
indictment on December 6, 1982, the day before trial. The record also shows,
however, that at the time the superseding indictment was returned the original
indictment, identical in all respects except for the addition of D. Nissenbaum
as a defendant, was still outstanding, and that all four appellants had been
arraigned on the original indictment on October 29 and November 7, 1980. The
issue before us, therefore, is whether (c)(2) applies to the superseding
indictment at all. We think not.
The Speedy Trial Plan adopted by the District of Maine [**35] provides that
the thirty-day minimum time limit begins to run at the same time as the
seventy-day maximum limit when a superseding indictment is returned before the
original indictment is dismissed. n25 This rule, which avoids conflicting time
requirements under (c)(1) and (c)(2), has been adopted by the Seventh Circuit,
at least for the situation where the charges in the original and superseding
indictments are identical and there is no time gap between the two indictments.
United States v. Horton, 676 F.2d 1165, 1170 (7th Cir. 1982), cert. denied, 459
U.S. 1201, 103 S. Ct. 1184, 75 L. Ed. 2d 431 (1983); accord, Guidelines at 14.
The Ninth Circuit, on the other hand, has held that the Speedy Trial Act
requires that the thirty-day time limit begin to run again when a defendant is
reindicted, regardless whether the original indictment has been dismissed by the
time the superseding indictment is returned, at least where the superseding
indictment necessitates a change in defense strategy. United States v. Harris,
724 F.2d 1452, 1454-55 (9th Cir. 1984); cf. United States v. Arkus, 675 F.2d
245, 248 (9th Cir. 1982) (district court Speedy Trial Plan to the contrary
[**36] notwithstanding, statute requires [*511] that new thirty-day period
apply where original indictment dismissed before superseding indictment
returned). Both views reflect the underlying congressional purpose of insuring
that defendants be afforded reasonable trial preparation time. Harris, 724 F.2d
at 1455, citing United States v. Daly, 716 F.2d 1499, 1504-05 (9th Cir. 1983),
cert. dismissed, 465 U.S. 1075, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984); Horton
, 676 F.2d at 1170. The statute does not explicitly provide for a new thirty-day
period when the indictments overlap. Section 3161(d)(1) makes both the
seventy-day and thirty-day time limits in (c) applicable if a superseding
indictment is returned after the original indictment is dismissed on the
defendant's motion, n26 and subsection (h)(6) provides an exclusion for any time
gap between the two indictments. n27 The case before us, however, is not
governed by (d)(1) or (h)(6). We think it fully consistent with the
congressional purpose of (c)(2) to apply the thirty-day limit on the same basis
as the seventy-day limit in (c)(1), unless in a specific case this would deprive
a defendant of adequate opportunity [**37] to prepare his defense. On the facts
of the present case, we conclude without hesitation that all four appellants had
ample time for preparation. Indeed, the district court offered them a one-week
continuance on December 6, 1982, which the court thought sufficient to cure any
possible prejudice flowing from the last-minute arraignments and changes of
counsel. The court's proposal was rejected. We note in addition that the
appellants appear to be entirely responsible for the delay in their arraignment,
which was granted at their request solely in order to save the effort and
expense of superfluous pretrial appearances by counsel. Similarly, the
potential conflicts which made changes of counsel necessary were apparent long
before trial, and the district court acted well within its discretion in denying
a longer continuance. n28 All defendants, therefore, having been promptly
arraigned on the original indictment in 1980, were properly tried in December,
1982, and (c)(2) was not violated with respect to any of them.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n25 Under section 4(d) of the Speedy Trial Plan, a superseding indictment
such as the one in this case does not trigger a new seventy-day time limit:
Superseding Charges. If, after an indictment or information has been
filed, a complaint, indictment, or information is filed which charges
the defendant with the same offense . . ., the time limit applicable
to the subsequent charge will be determined as follows:
. . . .
(2) If the original indictment or information is pending at the time
the subsequent charge is filed, the trial shall commence within the
time limit for commencement of trial on the original indictment or
information.
Section 7 of the Plan provides:
Minimum Period for Defense Preparation. Unless the defendant consents
in writing to the contrary, the trial shall not commence earlier than
30 days from the date on which the indictment or information is filed,
or, if later, from the date on which counsel first enters an
appearance or on which the defendant expressly waives counsel and
elects to proceed pro se. In circumstances in which the 70-day time
limit for commencing trial on a charge in an indictment or information
is determined by reference to an earlier indictment or information
pursuant to section 4(d), the 30-day minimum shall also be determined
by reference to the earlier indictment or information. . . .
[**38]
n26
If any indictment or 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 of subsections (b) and (c) of this section
shall be applicable with respect to such subsequent complaint,
indictment, or information, as the case may be.
18 U.S.C. § 3161(d)(1).
n27 Section (h)(6) provides the following exclusion:
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 limitation would commence to run as
to the subsequent charge had there been no previous charge.
[**39]
n28 We find no merit in J. Shnurman's contention that the denial of a
thirty-day continuance, quite aside from Speedy Trial Act requirements, violated
his sixth amendment right to effective assistance of counsel. Not only was this
appellant responsible for delaying his arraignment and foreseeable change of
counsel until the last minute, but, through counsel, he rejected the seven-day
continuance proposed by the district court as a reasonable accommodation. He
neither explains why the seven-day continuance would have been insufficient nor
suggests how a thirty-day continuance would have met his needs. The record,
moreover, reveals a thoroughly competent and active performance by his
court-appointed attorney.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
III. FREE EXERCISE CLAUSE AND EQUAL PROTECTION
Appellants claim that they were denied the opportunity to assert a valid,
legally sufficient defense based on the free exercise clause of the first
amendment. n29 For purposes of this case the government stipulated to the
following facts, which we assume, without deciding, are true:
[*512] 1) that the Ethiopian Zion [**40] Coptic Church is a
religion embracing beliefs which are protected by the First Amendment;
2) that the use of marijuana is an integral part of the religious
practice of the Church; and 3) that [all of the defendants] are
members of the Church and sincerely embrace the beliefs of the Church.
On November 23, 1982, the district court ruled as a matter of law that the first
amendment did not protect the possession of marijuana with intent to distribute
by the defendants, and further ordered that the defendants be precluded from
introducing at trial any evidence concerning the Ethiopian Zion Coptic Church
and the use of marijuana by its members, insofar as such evidence related to
their alleged first amendment defense. n30
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n29 "Congress shall make no law . . . prohibiting the free exercise [of
religion]. . . ." U.S. Const. amend. I.
n30 The ruling was carefully tailored to exclude evidence only in relation to
the first amendment defense; at trial, two defense witnesses were permitted to
testify as to the quantity and methods of marijuana consumption by Church
members in support of the Swiderski defense discussed in part IV.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**41]
It is well established that the absolute constitutional protection afforded
freedom of religious belief does not extend without qualification to religious
conduct. Braunfeld v. Brown, 366 U.S. 599, 603, 6 L. Ed. 2d 563, 81 S. Ct. 1144
(1961); Cantwell v. Connecticut, 310 U.S. 296, 303-04, 84 L. Ed. 1213, 60 S. Ct.
900 (1940). When a law is challenged as interfering with religious conduct, the
constitutional inquiry involves three questions: (a) whether the challenged law
interferes with free exercise of a religion; (b) whether the challenged law is
essential to accomplish an overriding governmental objective; and (c) whether
accommodating the religious practice would unduly interfere with fulfillment of
the governmental interest. See United States v. Lee, 455 U.S. 252, 256-59, 71
L. Ed. 2d 127, 102 S. Ct. 1051 (1982).
In light of the government's stipulations, the first limb of the Lee standard
is clearly met; there is no question that marijuana use is an integral part of
the religious doctrine and practice of the Ethiopian Zion Coptic Church, and
that appellants are sincere practicing members of that Church. The conflict with
the criminal sanctions against possession [**42] of marijuana with intent to
distribute is self-evident.
The question whether the government has an overriding interest in controlling
the use and distribution of marijuana by private citizens is a topic of
continuing political controversy. Much evidence has been adduced from which it
might rationally be inferred that marijuana constitutes a health hazard and a
threat to social welfare; on the other hand, proponents of free marijuana use
have attempted to demonstrate that it is quite harmless. See Randall v. Wyrick,
441 F. Supp. 312, 315-16 (W.D.Mo. 1977); United States v. Kuch, 288 F. Supp.
439, 446 & 448 (D.D.C. 1968). In enacting substantial criminal penalties for
possession with intent to distribute, Congress has weighed the evidence and
reached a conclusion which it is not this court's task to review de novo. Every
federal court that has considered the matter, so far as we are aware, has
accepted the congressional determination that marijuana in fact poses a real
threat to individual health and social welfare, and has upheld the criminal
sanctions for possession and distribution of marijuana even where such sanctions
infringe on the free exercise of religion. [**43] United States v. Middleton,
690 F.2d 820, 825 (11th Cir. 1982), cert. denied, 460 U.S. 1051, 103 S. Ct.
1497, 75 L. Ed. 2d 929 (1983); United States v. Spears, 443 F.2d 895 (5th Cir.
1971), cert. denied, 404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 693 (1972);
Leary v. United States, 383 F.2d 851, 859-61 (5th Cir. 1967), rev'd on other
grounds, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969); Randall, 441 F.
Supp. at 316 & n.2; Kuch, 288 F. Supp. at 448. Only last year, the Eleventh
Circuit rejected identical claims raised by some of the very appellants before
us in this case, see Middleton, 690 F.2d 820, and the United States Supreme
Court denied review. We decline to second-guess the unanimous [*513]
precedent establishing an overriding governmental interest in regulating
marijuana.
Finally, it has been recognized since Leary that accommodation of religious
freedom is practically impossible with respect to the marijuana laws:
Congress has demonstrated beyond doubt that it believes marihuana is
an evil in American society and a serious threat to its people. It
would be difficult to imagine the harm which would result if the
[**44] criminal statutes against marihuana were nullified as to those
who claim the right to possess and traffic in this drug for religious
purposes. For all practical purposes the anti-marihuana laws would be
meaningless, and enforcement impossible.
Leary, 383 F.2d at 861, quoted in Middleton, 690 F.2d at 825; see also Kuch,
288 F. Supp. at 447. Although a narrow administrative exception has been carved
out from the Schedule I classification of peyote for the benefit of the Native
American Church, see 21 C.F.R. § 1307.31, we think this exemption is properly
viewed as a government "effort toward accommodation" for a "readily
identifiable," "narrow category" which has minimal impact on the enforcement of
the laws in question. Lee, 455 U.S. at 260 n.11 & 261. No broad religious
exemption from the marijuana laws is constitutionally required. We therefore
affirm the district court's ruling rejecting appellants' first amendment defense
as a matter of law.
We reject as well appellants' claim that members of the Ethiopian Zion Coptic
Church are entitled as a matter of equal protection to a religious exemption
from the marijuana laws on the same terms as the peyote [**45] exemption
granted the Native American Church. Marijuana is not covered by the peyote
exemption; this in itself distinguishes this case from Kennedy v. Bureau of
Narcotics and Dangerous Drugs, 459 F.2d 415 (9th Cir. 1972), cert. denied, 409
U.S. 1115, 34 L. Ed. 2d 699, 93 S. Ct. 901 (1973). Moreover, the peyote
exemption is uniquely supported by the legislative history and congressional
findings underlying the American Indian Religious Freedom Act, which declares a
federal policy of "protect[ing] and preserv[ing] for American Indians their
inherent right of freedom to believe, express and exercise the[ir] traditional
religions . . ., including but not limited to access to sites, use and
possession of sacred objects, and the freedom to worship through ceremonials and
traditional rites." 42 U.S.C. § 1996. The legislative history of the Act "is
clear in finding that religion is an integral part of Indian culture and that
the use of such items as peyote are necessary to the survival of Indian religion
and culture." Peyote Way Church of God, Inc. v. Smith, 556 F. Supp. 632, 637
(N.D. Tex. 1983). In light of the sui generis legal status of American Indians,
see Cherokee [**46] Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-17, 8 L. Ed. 25
(1831) (Marshall, C.J.), and the express policy of the American Indian Religious
Freedom Act (which was passed after Kennedy was decided), we think the Ethiopian
Zion Coptic Church cannot be deemed similarly situated to the Native American
Church for equal protection purposes.
IV. SEVERANCE
At trial, the sixteen defendants aligned themselves in two groups asserting
different defense theories. One group, known as the "conventional" defendants,
n31 decided to put the government to its proof, alleging that there was
insufficient evidence to convict them of conspiracy or possession with intent to
distribute. The other group, known as the "Swiderski" defendants, n32 contended
that they could be convicted of no crime more serious than simple possession
because, they alleged, they had acquired joint and simultaneous possession of
the marijuana and intended to share it only among themselves rather than
distribute [*514] it to third persons. See United States v. Swiderski, 548
F.2d 445, 450-51 (2d Cir. 1977). Numerous motions were made for separate trials
of the two groups under the applicable federal rule; [**47] n33 the district
court, however, found that the positions of the two groups were "not so
irreconcilable or so antagonistic as to require a severance" and that severance
was not "justified."
A motion for severance is addressed to the discretion of the trial
court, and to prevail defendant must make a strong showing of
prejudice. . . . We review a trial court's denial of a severance
motion for abuse of discretion and reverse only if denial deprived
defendant of a fair trial, resulting in a miscarriage of justice.
United States v. Arruda, 715 F.2d 671, 679 (1st Cir. 1983) (citations omitted).
At the outset, we express considerable skepticism concerning the
applicability of a Swiderski defense to the facts of this case. Although the
Swiderski court held that "where two individuals simultaneously and jointly
acquire possession of a drug for their own use, intending only to share it
together, their only crime is personal drug abuse -- simple joint possession,
without any intent to distribute the drug further," 548 F.2d at 450, the court
also made it unmistakably clear that its holding was "limited to the passing of
a drug between joint possessors who simultaneously [**48] acquired possession
at the outset for their own use." Id. at 450-51. The Swiderski holding appears
fully justified on the facts of that case, but we hesitate to approve its casual
extension to situations where more than a couple of defendants and a small
quantity of drugs are involved, for, as the Swiderski court pointed out,
joint possession of a drug does not preclude a finding of possession
with intent to distribute to a third person in violation of § 841(a).
Whether such an inference may be drawn depends upon the surrounding
circumstances, including the nature of the relationship (whether it is
commercial rather than personal), the quantity of the drug (whether it
is too large for personal use only), the number of people involved,
and statements or conduct on the part of the defendants.
Id. at 450; see United States v. Taylor, 683 F.2d 18, 21 (1st Cir.), cert.
denied, 459 U.S. 945, 74 L. Ed. 2d 203, 103 S. Ct. 261 (1982) (Swiderski
inapplicable to complex operation, a large quantity of marijuana); United States
v. Wright, 593 F.2d 105, 108 (9th Cir. 1979) (Swiderski not applicable where
drug not simultaneously and jointly [**49] acquired). In the unusual
circumstances of the present case, the district court left to the jury the
factual question whether appellants' religious practices could account for their
possession of almost one ton of marijuana per defendant and thus negate an
inference of intent to distribute to third persons. This may have been an
overabundance of caution on the court's part, but it does not affect our
analysis of the severance issue. The Swiderski defendants were entitled to
pursue whatever factual defense they could support, however implausible it might
seem to a finder of fact; in this case, they may have had no colorable
alternative.
In denying the severance motions, the district court relied on our decision
in United States v. Talavera, 668 F.2d 625 (1st Cir.), cert. denied sub nom.
Pena v. United States, 456 U.S. 978, 72 L. Ed. 2d 853, 102 S. Ct. 2245 (1982).
In Talavera, we stated:
Severance is required only where the conflict is so prejudicial and
the defenses are so irreconcilable that the jury will unjustifiably
infer that this conflict alone demonstrates that both are guilty.
Id. at 630. Applying this standard, the district court [**50] reasoned:
The jury in this case could find both groups of defendants guilty or
not guilty [*515] without making any logical error. Just, for
example, it is clear in the view of this Court that the finding by the
jury that the [Swiderski defendants] possessed marijuana without
intending to distribute it beyond themselves or other individuals also
on or in the vicinity of the Leurs property, in no way would compel a
finding that any other defendant was on the Leurs property or near the
Leurs property at that time or that any other defendant also possessed
marijuana, either actively or constructively, or that any other
defendant intended to distribute it in any way.
We find this reasoning persuasive, and conclude that Talavera is controlling in
this case. As in Talavera, one defense to the charge of possession with intent
to distribute contests both elements of possession and intent, while the other
contests only the element of intent. The defenses would become irreconcilable
only if the conventional defendants were allowed to allege as part of their
defense that the Swiderski defendants intended to distribute the marijuana.
Talavera [**51] , 668 F.2d at 630. This was not done.
A related contention concerning the denial of severance is that the testimony
presented by the Swiderski defendants concerning the quantity and methods of
marijuana consumption by Ethiopian Zion Coptic Church members had a prejudicial
"spillover effect" on the conventional defendants. n34 See Arruda, 715 F.2d at
679. We note, however, that the district court repeatedly instructed the jury
during the trial and in the final charge to "consider the evidence as to each
count separately and separately with respect to each defendant." The court also
specifically cautioned the jury that mere association with a group of defendants
who might be members of the same church was not sufficient evidence to establish
the existence of a conspiracy. These instructions were properly given to cure
any potential spillover effect. The jury must have heeded the instructions, for
its verdicts were clearly not reached on an arbitrary or undifferentiated basis.
Of the eight conventional defendants, five were acquitted on count one and
convicted on count two, one was convicted on both counts, one was convicted on
the first count only, and one was acquitted on [**52] both counts; of the eight
Swiderski defendants, four were convicted on both counts and four on the second
count only. We find that appellants failed to meet their heavy burden of
showing that the denial of severance motions made their trial unfair.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n34 Although Thomas Reilly, a witness called by the Swiderski group to
testify as to marijuana consumption within the Ethiopian Zion Coptic Church,
stated that he "recognized" all of the defendants as fellow adherents of the
Church, his testimony concerning specific individuals concerned only members of
the Swiderski group. Reilly did not -- indeed, he could not -- testify as to
the presence of any conventional defendant on the Leurs property on October 20,
1980, or any defendant's possession of marijuana or intent to distribute it to
third persons at that time.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
V. CONCLUSION
Appellants' other sundry contentions lack merit. n35 There was sufficient
evidence to convict each of the appellants found on or about the Leurs property
on October 20, [**53] 1980. The convictions cannot have been based on mere
presence, but reflect the surrounding circumstances as well: there was a common
association, false names were given to the arresting officers, flight was
attempted, large amounts of marijuana were found nearby in plain view, and
convincing alternative explanations were lacking. This is a far cry from the
situation in United States v. Francomano, 554 F.2d 483 (1st Cir. 1977), where
the defendants had no prior association, the amounts of marijuana were small and
readily concealed, and their presence aboard ship was apparently unrelated to
the contraband cargo.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n35 Appellants' motions for a judgment of acquittal or a new trial were
denied from the bench by the district court on February 18, 1983. Appellant J.
Shnurman is correct in attributing the court clerk's handwritten notation
"granted" on two of those motions to clerical error.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*516] Finally, it is clear that the district court adequately investigated
the possibility of jury taint. The [**54] single juror who indicated the
slightest ground for concern was promptly excused, and the remaining jurors were
regularly questioned as to whether they had been exposed to media reports
inadvertently or otherwise. Although one defense attorney apparently
contravened a court order in attempting to ferret out rumors of additional jury
taint, the rumors he brought to the court's attention were never substantiated
by affidavit or presented in a post-trial motion as the court suggested. We see
no basis for challenging the convictions on this ground.
We conclude, therefore, that appellants have failed to prove reversible error
or prejudicial unfairness in the conduct of the trial.
The convictions are affirmed.