                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2001

United States v. Oliver
Precedential or Non-Precedential:

Docket 99-6107




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Recommended Citation
"United States v. Oliver" (2001). 2001 Decisions. Paper 12.
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Filed January 24, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Case No: 99-6107

UNITED STATES OF AMERICA

v.

GEROLD OLIVER,

       Appellant

Appeal From The United States District Court
For The District of New Jersey
D.C. No.: 99-cr-00256
District Judge: Honorable Maryanne Trump Barry

Submitted Under Third Circuit LAR 34.1(a)
December 11, 2000

Before: SCIRICA and AMBRO, Circuit Judges,
and POLLAK,* District Judge.

(Opinion Filed: January 24, 2001)

       CHESTER M. KELLER, ESQUIRE
       Office of Federal Public Defender
       972 Broad Street
       Newark, NJ 07102

Counsel for Appellant



_________________________________________________________________
* Honorable Louis H. Pollak, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       ROBERT S. CLEARY, ESQUIRE
       United States Attorney, District of
        New Jersey
       GEORGE S. LEONE, ESQUIRE
       Chief, Appeals Division
       MICHAEL L. MARTINEZ, ESQUIRE
       Assistant United States Attorney
       970 Broad Street, Room 700
       Newark, New Jersey 07102

       Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge.

Appellant Gerold Oliver ("Oliver") appeals from the final
judgment and sentence imposed by the United States
District Court for the District of New Jersey for stealing
Government property with a value in excess of $20,000 in
violation of 18 U.S.C. SS 641- 642. This Court has appellate
jurisdiction under 28 U.S.C S 1291. The question for
decision is this: when a criminal complaint has been
pending for some months and is dismissed, and ther eafter
an indictment issues charging offenses not contained in the
dismissed complaint but arising out of the same criminal
transaction, does the Speedy Trial Act, 18 U.S.C. SS 3161 et
seq., require dismissal of the indictment? We hold that the
answer is no.

The facts are simple and set up well the issue. In 1994,
Oliver worked as a maintenance supervisor for the United
States Postal Service (the "Postal Service") in Newark, New
Jersey. On August 17, 1994, a co-worker threatened his
life, leaving Oliver emotionally distraught and unable to
return to work for the Postal Service. Hefiled for total
disability benefits with the United States Department of
Labor's Office of Workers' Compensation Pr ograms (the
"Department") on August 23, 1994. His application was
approved on October 11, 1994, and he was given notice
that he should notify the Department if he r eturned to any
employment. Over the course of the next six months, Oliver

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completed nine forms to update his disability status with
the Department. On eight of them he responded that
requests for information regar ding whether he was
employed were not applicable; on one he left the question
blank. In fact, however, Oliver was working as a registered
nurse at various area hospitals during the period of time
when he received total disability benefits.

The Department learned of this discrepancy in June of
1995 and discontinued benefits. By that time, Oliver had
received $24,133.80 in total disability benefits. On January
23, 1996, the Government filed a criminal complaint
against Oliver charging that he "knowingly falsified,
concealed, covered up, and made fraudulent statements in
connection with the application for benefits" in violation of
18 U.S.C. SS 1920-1922 and 18 U.S.C. SS 1001-1002. After
a series of continuances, however, the Gover nment moved
to dismiss its own complaint, which a magistrate judge
granted without prejudice on March 8, 1999.

On May 11, 1999, a federal grand jury in Newark
indicted Oliver on a new charge not contained in the
original complaint: one count of embezzling, stealing,
purloining or converting Government pr operty in violation
of 18 U.S.C. SS 641-642. Oliver moved to dismiss the
indictment before trial on the ground that it violated the
Speedy Trial Act, but the District Court denied the motion
on September 7, 1999. A jury trial began on September 13,
1999. Oliver renewed his motion to dismiss the indictment
at the close of the Government's case, and the motion was
denied again. The jury returned a ver dict of guilty on
September 14, 1999. Oliver again renewed his motion to
dismiss the indictment and moved for judgment of acquittal
on the ground that the jury's verdict was against the weight
of the evidence. Both motions were denied. On December
13, 1999, the District Court sentenced Oliver to seven
months imprisonment, three years supervised r elease, and
seven months in a community treatment center . Oliver
appealed.

On appeal,   Oliver raises two issues: (1) whether the
indictment   against him should have been dismissed
because it   violates the time limits imposed by the Speedy
Trial Act,   and (2) whether he should have been acquitted

                                 3
because the jury's verdict is unsupported by sufficient
evidence. We find the second issue quickly resolved. A
violation of S 641 may be established if the defendant
"embezzles, steals, purloins, or knowingly converts to his
use" Government property. 18 U.S.C.S 641. After reviewing
the record and the parties' briefs, we ar e convinced that the
jury had substantial evidence to conclude that Oliver stole
property of the Government by intentionally deceiving it
about his continued employment as a register ed nurse
during the period of time he received total disability
benefits.

Turning to the Speedy Trial Act issue, we conclude that
the District Court did not err when it denied Oliver's
motions to dismiss the indictment. The Speedy T rial Act
requires that the Government file an indictment or
information against a defendant "within thirty days from
the date on which such individual was arrested or served
with a summons in connection with such charges." 18
U.S.C. S 3161(b). If the Government fails to comply with
this time limit, the Act requires the dismissal of charges in
the complaint. 18 U.S.C. S 3162(a)(1) ("If, in the case of any
individual against whom a complaint is filed char ging such
individual with an offense, no indictment or information is
filed within the time limit required . .. , such charge
against the individual contained in such complaint shall be
dismissed or otherwise dropped.").

Oliver argues that the indictment char ging him with
violating 18 U.S.C. SS 641-642 should have been dismissed
as an invalid evasion of the time limits imposed by the
Speedy Trial Act. He asserts that the Gover nment brought
charges under SS 641-642 only because the original charges
against him under 18 U.S.C. SS 1920-1922 and 18 U.S.C.
SS 1001-1002 were time-barred under the Act. He also
argues that the evidence of a run-around is clear because
the charges in the indictment are based on the same
underlying conduct as the initial complaint.

However, our review of decisions by other courts of
appeals reveals a consensus that the Speedy T rial Act
requires the dismissal of only those char ges that were made
in the original complaint that triggered the thirty-day time
period. See United States v. Miller, 23 F .3d 194, 199 (8th

                                4
Cir. 1994) ("A defendant's arrest on one charge does not
necessarily trigger the right to a speedy trial on another
charge filed after his arrest."); United States v. Nabors, 901
F.2d 1351, 1355 (6th Cir. 1990) ("18 U.S.C. S 3162(a)(1)
only requires the dismissal of the of fense charged in the
complaint . . . ."); United States v. Giwa , 831 F.2d 538, 541
(5th Cir. 1987) ("The Act requir es dismissal of only those
charges contained in the original complaint."); United States
v. Napolitano, 761 F.2d 135, 137 (2d Cir . 1985) ("The
statutory language is clear: it requires dismissal only of
`such charge against the individual contained in such
complaint.' "); United States v. Heldt, 745 F.2d 1275, 1280
(9th Cir. 1984) ("Charges not included in the original
complaint are not covered by the Act . . .."); United States
v. Pollock, 726 F.2d 1456, 1462 (9th Cir . 1984) ("We hold
that when the government fails to indict a defendant within
30 days of arrest, section 3162(a)(1) r equires dismissal of
only the offense or offenses char ged in the original
complaint."); United States v. Brooks , 670 F.2d 148, 151
(11th Cir. 1982) ("An arrest triggers the running of
S 3161(b) of the Speedy Trial Act only if the arrest is for the
same offense for which the accused is subsequently
indicted."). Moreover, courts have r ejected the application of
the transactional test suggested by Oliver and point out
that Congress itself considered and r ejected this option.
See, e.g., United States v. Derose , 74 F.3d 1177, 1184 (11th
Cir. 1996) ("Congress consider ed and declined to follow the
suggestion that the Speedy Trial Act's dismissal sanctions
should be applied to a subsequent charge if it arose from
the same criminal transaction or event as those detailed in
the initial complaint or were known or r easonably should
have been known at the time of filing the initial
complaint."); Napolitano, 761 F.2d at 137 ("[T]he legislative
history of the Act clearly indicates that Congr ess considered
and rejected defendant's suggestion that the Act's dismissal
sanction be applied to subsequent charges if they arise
from the same criminal episode as those specified in the
original complaint or were known or reasonably should
have been known at the time of the complaint."). We agree
with and adopt the position of these courts of appeals.
Accordingly, we affirm the District Court's decision not to
dismiss the indictment against Oliver which contained no

                               5
overlapping charges with the original complaint against
him.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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