Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 CR 458 -- John F. Grady, Judge .
Before Sprecher, Bauer and Wood, Circuit Judges.
Robert Nick Regilio, Guillermo Saint Blancard, and Clayton Cluchey were charged in a two-count indictment with violating the federal narcotics laws. Count one charged Saint Blancard with knowingly and intentionally distributing cocaine on May 19, 1980, in violation of 21 U.S.C. § 841(a)(1). Count two charged all three defendants with knowingly and intentionally distributing cocaine on June 12, 1980, in violation of 21 U.S.C. § 841(a)(1). On December 15, 1980, Saint Blancard was convicted on both counts after a stipulated bench trial. On that same day the jury trial of defendant Regilio commenced. The jury was unable to reach a verdict, and the court declared a mistrial. Regilio was retried, and the second jury found him guilty.*fn1 Regilio and Saint Blancard appeal. For the reasons stated in this opinion, we affirm.
Saint Blancard raises one issue in his appeal. He claims that the district court erred in denying his pretrial motion to dismiss the indictment with prejudice. Saint Blancard contends that the case was not brought to trial within seventy days of his arraignment, as required by the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and that dismissal with prejudice was the appropriate remedy. 18 U.S.C. § 3162.
Saint Blancard was arraigned on August 15, 1980. The case was set for trial on September 15, 1980, but defense counsel and the Government requested a continuance, and the trial was then set for October 14, 1980. On August 27, 1980, defendant filed five pretrial discovery motions. On September 22, 1980, the case was reassigned to a different judge, the Honorable John F. Grady, who set the trial for October 27, 1980. On that date, however, the trial was continued on a day-to-day basis. On November 12, 1980, the Government advised the court that Saint Blancard's pretrial motions were still pending. The court indicated that it had dictated a ruling on those motions on September 22, but apparently the order was never prepared. The court set trial for November 24, 1980. The order denying the pretrial discovery motions was issued on November 17, 1980. On November 24 trial was reset for December 1. On December 1 the trial was set over for December 15 because the court was otherwise engaged. On December 3 codefendant Cluchey's counsel advised the court that Cluchey would be unavailable for trial and that his whereabouts were unknown. On December 15, 1980, Saint Blancard moved to dismiss the indictment. The district court denied the motion and proceeded to trial.
The Speedy Trial Act requires the Government to proceed to trial within seventy days of arraignment or the indictment must be dismissed. 18 U.S.C. §§ 3161(c)(1), 3162(a)(2). In computing whether the seventy day deadline has been met, the statute provides that certain periods of delay may be excluded. 18 U.S.C. § 3161(h). Absent any such excludable time, Saint Blancard's trial should have commenced by October 24, 1980. The trial, however, did not commence until December 15, 121 days after arraignment. The district court found that the overlapping periods from August 15 through September 8, August 27 through November 17, September 15 through October 14, and December 3 through December 14 were excludable, thus making the computable time from arraignment to trial fifteen days. Saint Blancard claims that the court erred in computing the excludable periods and that a proper computation indicates that his trial commenced ninety-three days after arraignment.
The district court excluded the eighty-one days from August 27, when Saint Blancard filed his pretrial motions, through November 17, when the order denying the motions was issued, on two separate grounds. The first sixty days were excluded pursuant to 18 U.S.C. § 3161(h)(1)(F) which provides that delay resulting from the filing of any pretrial motion to its prompt disposition is excludable time. The remaining twenty-one days were excluded pursuant to 18 U.S.C. § 3161(h)(8)(A) which provides that delays resulting from continuances granted in the interest of justice are excludable. Saint Blancard contends that only thirty days, not sixty, should be excluded pursuant to § 3161(h)(1) (F) because thirty days is a reasonable time in which to rule on routine pretrial discovery motions. He further argues that the remaining fifty-one days should not be excluded because administrative errors should not be charged against the defendant.
Section 3161(h)(1)(F) does not specify the number of days excludable for prompt disposition of pretrial motions. In fact, Congress specifically rejected a proposal that § 3161(h)(1)(F) have a thirty-day maximum time limit. See 1974 U.S. Code Cong. & Admin. News 7401 at 7425-26. Under some circumstances, eighty-one days may be necessary to dispose of pending pretrial motions that are numerous or complex. See United States v. Brim, 630 F.2d 1307, 1312-13 (8th Cir. 1980) (fifty-seven days properly excludable pursuant to § 3161(h)(1)(F)). We need not decide in this case, however, whether the entire eighty-one days was excludable for disposition of pretrial motions, for we agree with the district court that some of the time was properly excluded pursuant to this provision and the remaining amount was excludable in the interest of justice. 18 U.S.C. § 3161(h)(8)(A).
In reaching its decision, the district court balanced several factors and concluded that the interest of justice would be served by excluding the remaining time. The court noted:
So the Court has to weigh the interests of the public in a speedy trial, the interests of the public in the prosecution of criminal offenses for the protection of society; any possible prejudice to the defendant from the delay, any activity on the part of the defendant designed to evidence dissatisfaction with the delay or the fact that he was experiencing any prejudice; and also to consider the clerical mishap which is the occasion for the delay.
We agree. Saint Blancard has failed to indicate that he was prejudiced by the delay. He knew the pretrial motions were pending and did nothing to bring this matter to the district court's attention. Instead, he stood silent until the Government requested a ruling on the motions. See United States v. Carreon, 626 F.2d 528, 533-34 (7th Cir. 1980). Moreover, the crimes with which Saint Blancard was charged are serious. Without a doubt, the public has a strong interest in prosecuting narcotics dealers. Under these circumstances, we find that the district court did not err in excluding the entire eighty-one days from computation of the time between arraignment and trial. Excluding this period, Saint Blancard's trial was commenced within forty days.*fn2 We find that the Speedy Trial Act was not violated, and thus the district court did not err in denying Saint Blancard's motion to dismiss the indictment.
Defendant Regilio challenges his conviction on four grounds. He claims (1) that the district court erred in admitting certain hearsay statements pursuant to the co-conspirator hearsay exception; (2) that the court erred in admitting evidence at the second trial that it had suppressed at the first trial; (3) that the court erred in giving an instruction that defined "reasonable doubt" and in failing to give Regilio's tendered co-conspirator hearsay instruction; and (4) that the evidence is insufficient to support the verdict.
The drug transaction which gave rise to this prosecution occurred on June 12, 1980. On that day, Saint Blancard made arrangements to sell Special Agent Gary Slowik four ounces of cocaine. They agreed during a phone conversation to meet at 8:45 p. m. in the parking lot of JoJo's Restaurant, Hillside, Illinois. Saint Blancard assured ...