Court: Court of Appeals for the Second Circuit; March 16, 2001; Federal Appellate Court
Christopher T. Breen was convicted in the United States District Court for the Western District of New York on multiple charges related to drug trafficking, including one count of conspiracy to possess and distribute cocaine and marijuana, six counts of possession with intent to distribute and distribute marijuana, and two counts for cocaine, all under various provisions of 21 U.S.C. The jury acquitted Breen on a related firearms charge. He received a sentence of 240 months in prison followed by five years of supervised release.
Breen's primary argument for appeal centered on the claim that the district court did not adhere to the Speedy Trial Act, 18 U.S.C. 3161 et seq. The case chronology reveals that Breen was arrested in February 1992 but not charged until August 1993. After a lengthy delay, a conference with all defendants occurred in May 1999. The government asserted that only four days of non-excludable time had elapsed on the speedy trial clock by that date, a calculation Breen contested, despite having previously accepted it in district court. The appellate court ultimately affirmed all of Breen's convictions.
The May 25 conference aimed to set a trial date and address pending discovery issues. The district court emphasized the urgency of the case, scheduling the trial for August 2, 1999, despite two other civil trials, stating that this case took precedence. Co-defendant Leon's counsel, Henry DePippo, objected due to his recent involvement and the case's complexity, requesting more time to prepare. He indicated willingness to waive speedy trial rights for additional preparation time. The court queried the impact on the other defendants' rights under the Speedy Trial Act, and Breen's stand-by counsel expressed that the August date was inconvenient, proposing a new trial date of November 1, which was accepted by all parties, including Breen. The trial was later postponed to November 8, 1999.
Prior to trial, Breen filed a pro se motion to dismiss the indictment, claiming a violation of the Speedy Trial Act due to insufficient justification for excluding time since the May 25 conference, asserting that more than 66 days of non-excludable time had elapsed. The district court denied this motion, explaining that the time was excluded under the "ends-of-justice" provision of the Speedy Trial Act.
During the trial, evidence was presented showing Breen's involvement in drug trafficking and possession of a firearm related to these activities. The jury found Breen guilty on all nine drug counts but acquitted him of the firearm charge. The district court sentenced Breen to 240 months imprisonment based on findings regarding the quantities of drugs involved and the use of a handgun. Breen subsequently appealed, primarily arguing violations of the Speedy Trial Act and citing other alleged errors warranting reversal of his convictions.
The Speedy Trial Act mandates that a defendant's trial must commence within seventy days from the date of their initial appearance before a judicial officer, as outlined in 18 U.S.C. § 3161(b). If the trial does not begin within this timeframe, the indictment must be dismissed, according to 18 U.S.C. § 3162(a)(2). The Act aims to protect defendants from undue delays and to ensure prompt resolutions of criminal cases. Recognizing the practical challenges in bringing cases to trial, Congress included specific exclusions from the 70-day calculation, such as the "ends-of-justice" exclusion, which allows judges to extend the timeline if they determine that the benefits of doing so outweigh the interests in a speedy trial (18 U.S.C. § 3161(h)(8)(A)). For this exclusion to be valid, the court must articulate its reasoning on the record.
In the current case, Breen argues that the district court's findings during a May 25, 1999 conference did not meet the statutory requirements for the ends-of-justice exclusion, suggesting that the time from that conference to the November trial start should not be excluded. Although the district court later performed an ends-of-justice analysis in response to Breen's motion to dismiss on November 4, 1999, Breen contends that retroactive findings are not permissible, citing precedent from United States v. Tunnessen and United States v. Kelly. In Tunnessen, it was noted that unless a specific order could be considered an ends-of-justice continuance, the trial must occur within the prescribed 70-day period.
The defendants filed a motion to dismiss the indictment on speedy trial grounds after a trial date was postponed to early October. The district court denied this motion on October 12, asserting that it had made an "ends-of-justice" determination on July 6 when setting the trial date. However, the appellate court reversed this decision, emphasizing that such determinations must be prospective and made at the beginning of the excludable period, rather than retroactively. The court noted that the July 6 determination did not include any ends-of-justice findings, nor had any party requested a continuance based on that reasoning at that time. The prior May 29 order only addressed time already spent in preparation and did not suggest a need for additional time thereafter. This left defense counsel unable to adequately respond to the court's later findings regarding the need for more time.
Despite the reversal, the appellate court clarified that the specific reasons for granting a continuance do not need to be recorded at the time it is granted, as long as they are articulated later. The court referenced a precedent where a trial date was set outside the Speedy Trial Act's limits, noting that the judge's initial findings lacked any reference to speedy trial concerns and were solely about scheduling.
The examination of a May 25 conference indicated that the judge was indeed considering the Speedy Trial Act factors when granting a continuance until early November. While the defendant did not explicitly agree to a November trial date, he was not required to take steps to ensure timely trial proceedings. It was evident that all parties understood the context of the discussion regarding the exclusion of time, with specific references made to the exclusion from the speedy trial clock prior to the elapsed time.
Breen contends that the district judge erred during the May 25 conference by not using the term "ends of justice" and failing to explicitly balance the interests of a continuance against the need for a speedy trial, as required by 18 U.S.C. 3161(h)(8)(A). He argues this case is similar to Tunnessen and Kelly, but the court finds that the judge adequately addressed speedy trial considerations during the trial date colloquy, indicating an understanding of the balance needed between various interests. While it is emphasized that the district court should ideally make required findings at the time of granting a continuance to aid appellate review, the absence of the specific phrase "ends-of-justice" is not deemed fatal. The court concludes that the trial court appropriately considered the relevant factors and will not overturn the time exclusion.
Breen raises two claims of juror misconduct. The first involves comments from juror Harris and alternate juror Slayton, who questioned the court clerk about the possibility of immediate custody upon conviction. After consulting with counsel, the district judge questioned both jurors in open court, receiving assurances from them that they had not prejudged the case. The judge found them to be candid and impartial, leading to the denial of Breen's motion for mistrial or dismissal of the jurors. The court's review of this denial is for abuse of discretion, requiring evidence of bias or prejudice against the defendant, which it did not find.
Breen's second allegation concerns the dismissal of another juror without defense counsel's consent. This juror disclosed that he had been contacted regarding an ongoing criminal investigation, prompting the district judge to hold an ex parte meeting with the United States Attorney's Office to address the matter.
A judge questioned a juror about his truthfulness during voir dire after an ex parte meeting, without disclosing details of that meeting. The juror admitted to lying and stated he had not discussed his issues with other jurors. Consequently, the judge dismissed him and substituted an alternate, sealing the information from the United States Attorney's Office. Breen argued that the court abused its discretion by dismissing the juror without defense counsel's consent, referencing Remmer v. United States, where a juror's potentially prejudicial contact was not disclosed to the defense. However, the circumstances differed, as Breen and his counsel were present during the juror’s admission. Precedent supports the court's authority to replace a juror for reasonable cause without counsel's consent.
Breen also contended that the judge erred by meeting privately with the prosecutor and not disclosing information regarding an ongoing criminal investigation. Yet, given the juror's admission in front of counsel, the judge did not abuse his discretion.
Regarding sentencing, Breen claimed his Fifth and Sixth Amendment rights were violated when the district court enhanced his prison term based on drug quantity and firearm possession, arguing that such findings should be made by a jury beyond a reasonable doubt as per Apprendi v. New Jersey. However, the court clarified that the lowest statutory maximum for Breen's conviction under 18 U.S.C. § 841(a)(1) was 20 years, which he received post-enhancement. The court rejected Breen's assertion that the "maximum" sentence referred to the top of the guidelines range, affirming that this interpretation was inconsistent with the statutory maximum defined by the Supreme Court.
Breen contends that the district court made several errors warranting the reversal of his convictions. These include: 1) the refusal to dismiss a firearm charge from which he was acquitted; 2) denial of a motion to suppress evidence; 3) denial of funds for an expert witness; 4) refusal to hold a hearing on potential Fourth Amendment violations from government surveillance; and 5) allowing witnesses with cooperation agreements to testify. Each of these claims was evaluated and deemed without merit, leading to the affirmation of all Breen's convictions. Notably, Breen's arguments regarding the Speedy Trial Act and the handling of jurors were also considered, but the court found no grounds for reversal. The Chief Judge, Alfred V. Covello, emphasized the lack of merit in Breen's assertions and upheld the decisions made by the district court. The document also references statutory guidelines regarding the complexities of trial continuances under 18 U.S.C. 3161(h)(8)(B) and the potential penalties under 18 U.S.C. 841(a)(1) for drug-related offenses.
