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United States v. Koger

decided: April 24, 1981.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. GEORGE J. KOGER, DEFENDANT-APPELLANT .


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-Cr-318 -- Harold A. Baker, District Judge .

Before Swygert, Circuit Judge, Skelton, Senior Judge,*fn* and Cudahy, Circuit Judge.

Author: Skelton

Defendant-appellant George J. Koger (Koger) was indicted on June 19, 1979, in a three-count indictment for possession of three checks in the amounts of $1,008.06, $561.80 and $107,460.12, respectively, that had been stolen from the mail in violation of Title 18, U.S.C. § 1708. He was arraigned on June 26, 1979, and, after pleading not guilty, he was tried on October 15, 1979, and convicted by a jury on October 19, 1979, in the United States District Court for the Northern District of Illinois, Eastern Division. He was sentenced on December 7, 1979, to imprisonment for a term of 3 years on Counts One, Two and Three, to run concurrently, with the further provision that he be confined for the first six months and that the remainder of the sentence be suspended and that he be placed on probation. Koger appealed his conviction to this court and has presented the following two issues for review:

I. Whether the trial court properly denied defendant's motion to dismiss the indictment in which motion he alleged a violation of the Speedy Trial Act.

II. Whether the trial court properly allowed into evidence the judgment of conviction and commitment order (Government Exhibit 51), and Notice of Release from incarceration in the Metropolitan Correctional Center (Government Exhibit 52), and evidence of firing from the post office of a woman named Stephanie Green who allegedly delivered the checks charged in the incident to the defendant.

After reviewing the record, considering the briefs, and hearing oral argument, we hold on the first issue that the Speedy Trial Act was violated but sanctions are not appropriate in this case. On the second issue, we hold that the trial court erred in allowing Government Exhibits 51 and 52 into evidence and reverse and remand the case to the district court for a new trial.

THE SPEEDY TRIAL ACT ISSUE

Koger was tried within 118 days of his indictment and within 111 days of his arraignment. The trial judge ruled that 7 days were excludable time. This resulted in 104 days from arraignment to trial. Koger filed a motion to dismiss the indictment the day before his trial on the ground that he had not been tried within 70 days from the date of his arraignment as required by the Speedy Trial Act (The Act), 18 U.S.C. § 3161. He alleged in such motion and contends in this appeal that the failure of the court to comply with the above Section of the Act required the district court to dismiss his indictment because of the provisions of Section 3162 of the Act. The trial judge in the exercise of his discretion denied the motion.

The Judicial Conference of the United States granted a suspension of the final Speedy Trial Act limit of 60 days a limit which would have applied to cases begun after July 1, 1979. The suspension did not purport to affect cases begun under the standard for the previous phase-in year (80 days), 18 U.S.C. § 3161(g) (1974), or the more stringent standard for the previous phase-in year adopted by the local district court plan (70 days). United States District Court for the Northern District of Illinois Plan for Achieving the Prompt Disposition of Criminal Cases During the Period 1 July 1976 through 30 June 1979, Part A, § 5(a)(4) (the "Interim Plan").

Even if the suspension purported to apply to either of the more relevant 80-day or 70-day time limits, the suspension could not be applied to this defendant. Any suspension must comply with the Congressionally enacted requirements of the Speedy Trial Act itself. More specifically, Section 3174(b), under which the suspension with which we are concerned was granted,*fn1 provides that the Judicial Conference may grant a suspension of the time limits of up to one year "for the trial of cases for which indictments are filed during such period (of suspension)." 18 U.S.C. § 3174(b) (1974). In the instant case, the suspension was approved for one year beginning June 20, 1979. The defendant was indicted, however, on June 19, 1979. Since the defendant was indicted before June 20, 1979, i. e., prior to the period designated for the suspension, the suspension of the time limits did not apply to his case. Therefore, the defendant's rights under the Speedy Trial Act were violated because he was not tried within the applicable 70-day arraignment-to-trial time limit.*fn2 Although the government argues that there was sufficient excludable time to reduce the 111-day period from arraignment-to-trial to a period within the 70-day limit, Section 3161(h)(8)(A) requires specific findings by the trial court as to any excludable time. The district court, however, made such findings only with respect to 7 days, leaving an arraignment-to-trial period of 104 days.

But, this does not end the matter because the defendant had no right to invoke the mandatory dismissal sanctions of Section 3162 of the Act; those sanctions applied only to cases commenced after July 1, 1979. See United States v. Watson, 623 F.2d 1198, 1202 n.8 (7th Cir. 1980) (dicta). Here the defendant was indicted on June 19, 1979, and the mandatory dismissal sanctions were not available.*fn3 In the light of this, the only sanction available to the defendant would have been the dismissal of the case at the discretion of the district court. See Fed.R.Crim.P. 48(b). The district court exercised its discretion not to impose any sanction, however, and that decision was not an abuse of the court's discretion.

The Evidence Issue

Appellant Koger complains that during the trial the district court committed error in admitting into evidence certain cross-examination testimony of Koger, and also Government's Exhibits 51 and 52, which are described below. It is necessary to briefly review this evidence in order to dispose of these questions.

Koger took the stand and testified in his own behalf. He admitted that he sometimes used the name of George Reno Evans instead of George J. Koger. He said that he maintained a joint bank account with his wife, Margret A. Koger. He testified that he had worked at the main post office since 1973 as a letter sorting machine operator and had never been convicted of any crime. He said that he had not taken the checks from the post office and that he did not know that they were stolen. He testified that he had obtained the checks from a long time friend named Stephanie Green who brought them to his house. His testimony showed further that all three checks were endorsed when he received them and he wrote the second endorsements of Margret A. Koger on them. He deposited two of the checks himself and had Green deposit the other one. All three checks were paid. He had known Green since she was seven years of age when they were in school together and her mother was their teacher. They both worked together at the post office in 1976 where he saw her daily. She lost her job in 1977 and did not have a place to stay, so he rented her an apartment for $150.00 per month in a building he owned and where he resided with his wife. She moved into the apartment around Thanksgiving, 1977, and lived there approximately nine months. Koger testified that he could not be certain that she was living in the apartment in July and August, 1978, although he thought she moved from the building in November, 1978. He asked her for 6 months back rent in the sum of $600.00 on or about March 30, 1979. A few days later she gave him the check for $1,008.06 (Government's Exhibit 2). She said she did not have a bank account and could not cash it. He deposited it and when it cleared he kept $600.00 for back rent and gave Green $400.00 in cash. On April 23, 1979, Green ...


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