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 (1st Cir. 1984)
June 27, 1984
SUBSEQUENT HISTORY: Writ of certiorari denied Rush v. United States,
470 U.S. 1004, 105 S. Ct. 1355, 84 L. Ed. 2d 378 (1985)
Post-conviction relief denied at U.S. v. Olsen, 823 F.2d 542 (1st Cir.
Related proceeding at Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008)
PRIOR HISTORY: Appeals from the United States District Court for
the District of Maine, [Hon. Edward T. Gignoux, Senior U.S. District Judge].
Booth v. United States, 456 U.S. 978, 102 S. Ct. 2245, 72 L. Ed. 2d 853
United States v. Middleton, 673 F.2d 31 (1st Cir. 1982)
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
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, [Footnote
*] Senior District Judge.
OPINION BY: BOWNES
[*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 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.
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 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
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,
[Footnote 1] and two more were later found crouched in a hollow a short distance
from the dock. [Footnote 2] Approximately twenty tons of marijuana were seized.
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, [Footnote
3] was arrested.
Twenty-three people were arrested in connection with the October 20 raid and named
in the original indictment returned on October 29, 1980. [Footnote 4] A twenty-fourth
defendant, D. Nissenbaum, was added in a superseding indictment. By the time trial
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. [Footnote 5] Of these, five [*502] were convicted
on both counts, [Footnote 6] one on the first count only, [Footnote 7] nine on the
second count only, [Footnote 8] and one was acquitted on both counts. [Footnote
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 29 indictment. [Footnote
10] 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).
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 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 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. [Footnote 11]
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 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 (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
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 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 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. [Footnote 12] 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
(a) The trial of those defendants who will assert a "First Amendment"
defense shall be severed from the trial of those 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"
(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
. . . .
(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," 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 the severance never came about, nor did the severance contemplated in the March
17 order ever become effective. [Footnote 13]
We do not think that the order can be viewed as providing some sort of temporarily
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,
[Footnote 14] eight had advised that they would not, [Footnote 15] and one remained
undecided. [Footnote 16] By August 11, 1981, three defendants had switched to the
first amendment group. [Footnote 17] By September 21, 1981, three more conventional
defendants had switched to the first amendment group, [Footnote 18] and one had
abandoned that group to become undecided. [Footnote 19] On October 7, 1982, only
one or two remained in the conventional group, and only one remained on October
25. [Footnote 20] 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 after March 17, 1981, as if the severance
motion had been denied at the outset.
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 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 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 [Footnote 21] 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.
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 in a speedy trial. [Footnote 22] 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.
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 (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
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
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 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' 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. [Footnote
23] 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 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.
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 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 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 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
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, 1982, was excludable. [Footnote 24] 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.
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 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.
[Footnote 25] 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 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, [Footnote 26] and subsection (h)(6) provides
an exclusion for any time gap between the two indictments. [Footnote 27] 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 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. [Footnote 28] 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.
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. [Footnote
29] 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 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
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. [Footnote 30]
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 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. 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 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 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 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.
At trial, the sixteen defendants aligned themselves in two groups asserting different
defense theories. One group, known as the "conventional" defendants, [Footnote
31] 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, [Footnote 32] 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; [Footnote 33] 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 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 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 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,
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. [Footnote 34] 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 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.
Appellants' other sundry contentions lack merit. [Footnote 35] There was sufficient
evidence to convict each of the appellants found on or about the Leurs property
on October 20, 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.
[*516] Finally, it is clear that the district court adequately
investigated the possibility of jury taint. The 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.