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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2392     <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                  GUILLERMO SCANTLEBERRY-FRANK, <br>                   A/K/A GILLERMO SCANTLEBRURY, <br>                   A/K/A GUILLERMO SCANTLEBURY, <br>                  A/K/A GUILLERMO SCANTLEBERRY, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>         [Hon. Nathaniel M. Gorton, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>Wellford, Senior Circuit Judge, <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>     Tina Schneider, by appointment of the Court, on brief, for <br>appellant. <br>     Antoinette E.M. Leoney, Assistant United States Attorney, with <br>whom Donald K. Stern, United States Attorney, was on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                        October 23, 1998 <br>                       ____________________

          TORRUELLA, Chief Judge. Defendant-appellant, Guillermo <br>Scantleberry-Frank ("Scantleberry"), appeals his conviction of <br>illegal reentry into the United States after deportation, in <br>violation of 8 U.S.C.  1326.  On appeal, Scantleberry argues:  (1) <br>that his rights under the Speedy Trial Act, 18 U.S.C.  3161, were <br>violated; and (2) that there was insufficient evidence to support <br>his conviction.  For the following reasons, we affirm.  <br>                           BACKGROUND  <br>          In November 1979, Scantleberry, a citizen of Panama, <br>illegally entered the United States at New York City.  On June 4, <br>1987, the United States Immigration and Naturalization Service <br>("INS") found Scantleberry at the Massachusetts Correctional <br>Institution at Concord where he was serving a state sentence on <br>unrelated charges.  On November 2, 1992, Scantleberry was deported <br>to Panama after completing his sentence in the Massachusetts prison <br>system. Before Scantleberry boarded the plane to Panama, an INS <br>Deportation Officer fingerprinted his right thumb.  <br>          On January 7, 1997, INS Deportation Officers and <br>Massachusetts State Police Officers found Scantleberry in <br>Worcester, and placed him under arrest for illegally re-entering <br>the country after deportation.  After he was taken into custody, <br>the INS took Scantleberry's fingerprints, for comparison with the <br>right thumbprint taken prior to Scantleberry's deportation to <br>Panama.  Expert testimony submitted at trial determined that the <br>thumbprints were identical. <br>          On January 15, 1997, Scantleberry was indicted for <br>illegal re-entry into the United States after deportation.  On <br>January 17, 1997, he appeared in court for his initial appearance <br>and was arraigned on the indictment.  On January 21, 1997, the <br>magistrate judge issued an order of excludable time pursuant to the <br>Speedy Trial Act commencing on January 17, 1997 -- the date of the <br>defendant's initial appearance and arraignment -- and concluding on <br>February 21, 1997 -- the date by which the government was directed <br>to file its responses to any pretrial discovery motions.  <br>Additionally, the magistrate judge issued a preliminary status <br>report to the district court, stating that, assuming no further <br>allowances for excludable time, this case had to be tried on or <br>before May 2, 1997. <br>          On April 3, 1997, the district court held a <br>pretrial/status conference at which the possibility of a negotiated <br>plea was discussed.  In response to the court's attempt to set a <br>trial date, the government stated that it was unavailable between <br>April 13 and April 27, and on April 29.  Defendant's counsel stated <br>that she was unavailable between April 29 and May 12.  Based on <br>these representations, the district court set the trial date for <br>May 12, 1997. <br>          On May 8, 1997, the defendant filed a motion to dismiss <br>the indictment on the ground that his trial had not commenced <br>within the time required under the Speedy Trial Act, and on May 19, <br>1997, the government filed a motion in opposition.  On May 9, 1997, <br>the defendant's counsel filed a motion for a continuance of the May <br>12 trial date on the ground that she was engaged in trial on <br>another unrelated matter.  On May 22, 1997, the district court <br>issued written findings pursuant to a Speedy Trial Order, and <br>denied the defendant's motion to dismiss the indictment without a <br>hearing.  In its May 22, 1997 Speedy Trial Order the district court <br>reset the trial for June 16, 1997, and excluded the period from <br>April 3, 1997 until May 22, 1997.  On June 16, 1997, the day <br>Scantleberry's trial commenced, the defendant filed a motion for <br>reconsideration of the motion to dismiss and a second motion to <br>dismiss the indictment under the Speedy Trial Act.  The district <br>court orally denied both motions, and entered a further order <br>excluding the time from May 12, 1997, until June 16, 1997.  <br>                             ANALYSIS <br>I.  Speedy Trial Act Claim <br>          The Speedy Trial Act ("STA"), 18 U.S.C.  3161, is <br>designed "to protect a defendant's constitutional right to a speedy <br>. . . trial, and to serve the public interest in bringing prompt <br>criminal proceedings."  United States v. Santiago-Becerril, 130 <br>F.3d 11, 15 (1st Cir. 1997) (quoting United States v. Saltzman, 984 <br>F.2d 1087, 1090 (10th Cir. 1993)).  The STA provides that the <br>government must bring a criminal defendant to trial no more than <br>seventy days after the later of the filing date of the information  <br>or indictment, or the date on which the criminal defendant first <br>appears before a judicial officer of a court in which the charge is <br>pending.  See id.  (citing 18 U.S.C.  3161(c)(1)).  In calculating <br>the seventy days, the STA excludes certain time periods.  See 18 <br>U.S.C.  3161(h)(1)-(9); see also Santiago-Becerril, 130 F.3d at <br>15.  If a criminal indictment is not brought to trial within the <br>seventy-day time limit imposed by  3161(c)(1), as extended by <br>operation of  3161(h)(1)-(9), the penalty provisions of the STA <br>mandate that "the information or indictment shall be dismissed on <br>motion of the defendant."  18 U.S.C.  3162(a)(2). <br>          Scantleberry argues that the district court erred in <br>denying his motion to dismiss the indictment.  He contends that the <br>period between April 3 (the date of the pretrial conference) and <br>May 8 (the date the motion to dismiss was filed) was improperly <br>excluded from the speedy trial calculus.  As a result, the delay in <br>his being brought to trial added up to more than the number of <br>statutorily allowable days.  In response, the government asserts <br>that, at worst, only sixty-five non-excludable days passed before <br>Scantleberry was brought to trial. <br>          We find no error in the district court's refusal to <br>dismiss the superseding indictment.  This Court reviews the <br>disposition of a STA issue for clear error as to factual findings <br>and de novo as to legal rulings.  See Santiago-Becerril, 130 F.3d <br>at 15; United States v. Rodrguez, 63 F.3d 1159, 1162 (1st Cir. <br>1995).  We conclude that fewer than seventy non-excludable days <br>elapsed before Scantleberry was brought to trial. <br>          A.  April 3, 1997 to May 8, 1997 <br>          In holding that the period from April 3 to May 8 was <br>excludable from the speedy trial calculus under  3161(h)(1), the <br>district court stated in its Speedy Trial Order that at the April 3 <br>pretrial/status conference, "counsel for Scantleberry announced on  <br>several occasions that Scantleberry would plead guilty and that a <br>trial would be unnecessary."  As a result, the district court <br>excluded the time period commencing from the date on which <br>Scantleberry allegedly informed the court of his intention to plead <br>guilty -- April 3 -- until the date he indicated that he was not <br>going to plead guilty -- May 8 -- the date on which he filed the <br>motion to dismiss. <br>          Scantleberry argues that the district court erred in <br>excluding that time period from the speedy trial calculus.  He <br>asserts that the transcript of the conference clearly indicates <br>that his counsel's only intention was to discuss the government's <br>offer of a plea bargain.  Scantleberry cites the following exchange <br>between the district court and his counsel: <br> <br>                    THE COURT:    We'll hope that the matter is <br>                                            resolved. If it isn't, we'll <br>                                            see you on the 12th of May. <br>                     <br>                    [COUNSEL FOR SCANTLEBERRY]: <br>                                         We will notify the Court if we <br>                                         reach an agreement. <br>                     <br>                    THE COURT:           Yes.  You can get a date for a <br>                                         Rule 11 Hearing if that's <br>                                         necessary. <br>                     <br>          April 3, 1997 Status Conference, Tr. 6-7.In Scantleberry's view, <br>only the possibility, and not the certainty of a change of plea was <br>presented to the district court. <br>         The government argues that the time was properly excluded <br>by the district court because Scantleberry's counsel created the <br>expectation that there would be a change of plea and that <br>additional time was necessary to complete negotiations.  It cites <br>the following exchange between the district court and counsel: <br> <br>                    [GOVERNMENT]: [T]he government has presented <br>                                            a proposed plea agreement to <br>                                            Miss Thompson [counsel for <br>                                            Scantleberry], and Miss <br>                                            Thompson, I'm sure, can speak <br>                                            on the point.  She is in the <br>                                            process of trying to make <br>                                            arrangements with her client to <br>                                            go over the agreement, and <br>                                            we're hopeful that, as opposed <br>                                            to a trial date, that we'll <br>                                            actually be looking for a Rule <br>                                            11 hearing date. <br>                     <br>                    THE COURT:              All right. Miss Thompson. <br>                     <br>                    MS. THOMPSON:           Yes. I do think that's <br>                                            accurate, Judge, that we <br>                                            probably are looking for a Rule <br>                                            11 hearing date. <br>                     <br>          April 3, 1997 Status Conference, Tr. 1-2. <br> <br>         Secondly, the government argues that the trial date was <br>set for May 12, 1997, largely in order to accommodate defense <br>counsel who also had other trial dates.  It argues that at the <br>April 3 status conference, the government told the court that it <br>was unavailable between April 13 and April 29, while defense <br>counsel stated that she was unavailable between April 29 and <br>May 12.  The transcript of that discussion reads as follows: <br>                     <br>                    [GOVERNMENT]:           I don't see more than a day or <br>                                            two for trial days. <br>                                            Unfortunately, though, there <br>                                            are two weeks in the end of <br>                                            April where I have to be in <br>                                            Washington, the   beginning on <br>                                            the 13th through the 27th of <br>                                            April.  And on the 29th I'm in <br>                                            court in Boston. <br>                     <br>                    THE COURT: On the 29th? <br>                     <br>                    [GOVERNMENT]:           Yes, of April. <br>                     <br>                    THE COURT:              But just for that day? . . . <br>                                            What about the first week of <br>                                            May? <br>                     <br>                    [GOVERNMENT]:           First week of May I look pretty <br>                                            good. <br>                     <br>                    [THE COURT]:            Miss Thompson. <br>                     <br>                    MISS THOMPSON:          I start   I know you've heard <br>                                            this from me before, Judge, the <br>                                            last time I was here.  I have a <br>                                            murder trial starting May 5th.  <br>                                            I'm sure that it's going to go.  <br>                                            I know that this trial is going <br>                                            to happen . . . . I'm expecting <br>                                            to be tied up that week [the <br>                                            week of May 5th].  And the <br>                                            following week, however, the <br>                                            week of May 12th, I think that <br>                                            I have a pretty open calendar <br>                                            that week.  The week preceding <br>                                            the first week in May, I have a <br>                                            rape trial starting on <br>                                            April 29th that I expect <br>                                            probably will take two or three  <br>                                            days to try. <br>                     <br>                    THE COURT:              What about May 12th, Monday, <br>                                            May 12th? <br>                     <br>                    MS. THOMPSON:           May 12th, assuming that my <br>                                            trial ends as I anticipate, <br>                                            would be fine. <br>           <br>April 3, 1997 Status Conference, Tr. 3-4. <br>         The government contends that since defense counsel <br>informed the court that she would not be available between April 29 <br>and May 12, those days between April 29 and May 12 should be <br>excluded from the  speedy trial calculus.  It asserts that even if <br>the court accepts the defendant's argument that no plea <br>negotiations were underway, this calculation would leave the total <br>of non-excludable days at sixty-five, which is within the total <br>number of days permitted by the STA. <br>         We need not and do not reach the issue of the STA status  <br>of a period of plea negotiations.  Assuming the period of plea <br>negotiations is within the running of the STA clock, there is still <br>no STA violation.  Both the court and the government were prepared <br>to go to trial by April 30th, at day 65 of the 70 day period, but <br>the defense counsel was not, due to her own scheduling conflicts.  <br>A continuance was granted to accommodate her schedule. <br>         In United States v. Pringle, 751 F.2d 419, 432 (1st Cir. <br>1984), this Court held that scheduling conflicts constitute <br>legitimate grounds for granting a continuance under  3161(h)(8).  <br>One of the factors to be considered by the court in granting a <br>continuance is "[w]hether the failure to grant such a continuance <br>. . . would unreasonably deny the defendant or the Government <br>continuity of counsel . . . ."  18 U.S.C.  3161(h)(8)(B)(iv). <br>         Because the continuance was granted to aid defense <br>counsel, and maintain continuity of counsel, the period between <br>April 29, 1997, and May 8, 1997, is excludable.  Cf. Santiago- <br>Becerril, 130 F.3d at 17 ("By notifying the court of his <br>availability for trial, defense counsel may be said to have <br>impliedly moved for a new trial date.  The court acted on the <br>implied motion . . . by setting a new trial date . . . . Motions <br>that do not require a hearing may toll the seventy-day time limit <br>for up to thirty days.").   <br>         To hold otherwise would be to subvert the purpose of the <br>STA, and allow defense counsel to "sandbag" the district court.  <br>Under the appellant's line of argument, a defense counsel could <br>cooperate with the district court in setting a trial date without <br>informing the court that by granting certain continuances, the STA <br>would be violated.  Defense counsel cannot have it both ways.  <br>Either she must agree that the continuance granted for her benefit <br>be excluded from STA consideration, or she must object to the <br>continuance.  To permit defense counsel to have both the <br>continuance and the time included in the STA calculus is <br>impermissible.  Cf. Ortiz v. United States, 23 F.3d 21, 28 (1st <br>Cir. 1994) (finding no Speedy Trial Act violation where defense <br>counsel raised no objection to trial continuance). <br>II.  Sufficiency of the Evidence <br>         Scantleberry contends that the evidence presented at <br>trial was insufficient to prove that he did not have the express <br>consent of the Attorney General to reapply for admission to the <br>United States. <br>         We review the sufficiency of the evidence as a whole, in <br>a light most favorable to the verdict, taking into consideration <br>all reasonable inferences.  We do not reweigh the credibility of <br>the witnesses.  Rather, we resolve all credibility issues in favor <br>of the verdict.  See United States v. Hahn, 17 F.3d 302 (1st Cir. <br>1994), cited in United States v. Reyes-Medina, No. 94-1923, 1995 WL <br>247343 (1st Cir. April 25, 1995).  "The evidence may be entirely <br>circumstantial, and need not exclude every hypothesis of innocence; <br>that is, the factfinder may decide among reasonable interpretations <br>of the evidence."  Id. (quoting United States v. Batista-Polanco, <br>927 F.2d 14, 17 (1st Cir. 1991) <br>         Sections 1326(a) and (b)(2) provide in relevant part <br>that:  1) any alien; 2) whose deportation was subsequent to a <br>conviction for commission of an aggravated felony; 3) who enters or <br>attempts to enter, or is at any time found in, the United States; <br>4) without the express consent of the Attorney General for such <br>entry; 5) shall be fined and/or imprisoned.  See 8 U.S.C.  1326.  <br>Scantleberry challenges only the sufficiency of the evidence on the <br>fourth element: reentry without the express consent of the Attorney <br>General for such entry. <br>         He argues that in its case-in-chief, the government <br>presented a Certificate of Nonexistence of Record, which stated <br>that no record was found of any application for permission to <br>reenter made by "Guillermo Scantleberry, also known as Guillermo <br>Scantleperry-Frank and Guillermo A. Scantleberry."  The original <br>warrant authorizing the deportation of the defendant in 1992 <br>referred to the defendant as "Scantleberry, Guillermo F., aka: <br>Scantleberry-Frank, Guillermo."  The defendant was subsequently <br>indicted as "Guillermo Scantleberry-Frank, a/k/a Gillermo <br>Scantlebrury, a/k/a Guillermo Scantlebury, a/k/a Guillermo <br>Scantleberry."  Scantleberry argues that because the government did <br>not examine its records under the right name, he was entitled to a <br>judgment of acquittal.  In sum, his claim is that a reversal is <br>warranted in this case because the evidence presented at trial <br>failed to show that the INS ever examined its records for an <br>application from Guillermo F. Scantleberry or Guillermo <br>Scantleberry-Frank, the names under which the defendant had been <br>previously deported.  <br>         At trial, the government introduced into evidence a <br>certified INS Certificate of Nonexistence of Record, signed by the <br>Acting Chief of the Records Services Branch for INS, to demonstrate <br>that the defendant had never applied for or received permission <br>from the Attorney General of the United States to reenter the <br>country after he had been deported in November 1992.  The <br>Certificate of Nonexistence stated that a diligent search had been  <br>conducted of the INS's automated and nonautomated records systems <br>under the names "Guillermo Scantleberry," as well as "Guillermo <br>Scantleperry-Frank," and "Guillermo A. Scantleberry." <br>     In addition, the government submitted evidence relating <br>to Scantleberry's INS Alien File Number ("A-File Number"), A28 926 <br>749, on the certification attached to the Certificate of <br>Nonexistence.  An INS A-File identifies an individual by name, <br>aliases, date of birth, and citizenship, and all records and <br>documents related to the alien are maintained in that file.  <br>Testimony elicited at trial revealed that a government agent had <br>provided the defendant's A-File number, aliases, date of birth, <br>country of birth, and date, time, and place of deportation, when he <br>made the request to have the INS's records searched for information <br>concerning whether the defendant had ever applied for permission to <br>reenter the country.  The jury could have reasonably inferred that <br>the defendant's unusual surname combined with key information <br>provided by the government agent allowed the INS to conduct a <br>thorough search of its records, and that any application made by <br>the defendant seeking permission to reenter the country under any <br>of his aliases would have been discovered. <br>     Finally, the defendant signed "Guillermo Scantleberry" on <br>the September 23, 1992, warrant of deportation, when he placed his <br>right thumbprint on the warrant.  In addition, evidence submitted <br>at trial showed that the defendant used the name "Guillermo <br>Scantlebery" when he signed his name on the ten-print fingerprint <br>card during his arrest for illegal reentry on January 7, 1997. Both <br>of the names used by the defendant were searched in the INS <br>records, which showed no consent to reenter had been given. <br>     Given the defendant's conduct and the thorough search <br>conducted by the INS using the defendant's surname and the A-File <br>Number, the government's evidence was sufficient for the jury to <br>find beyond a reasonable doubt that Scantleberry had not obtained <br>the express consent of the Attorney General to reapply for <br>admission to the United States after his deportation, nor had the <br>prerequisite permission been granted. <br>                            CONCLUSION <br>     For the reasons stated in this opinion, we affirm the <br>judgment of the district court.</pre>

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