                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-1995

USA v Hamilton
Precedential or Non-Precedential:

Docket 94-7152




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 94-7152



                    UNITED STATES OF AMERICA,
                                                   Appellant
                                  v.

                             ROY HAMILTON



     On Appeal from the District Court of the Virgin Islands
                      (D.C. No. 93-cr-00067)



                    Argued December 5, 1994

          Before:   SLOVITER, Chief Judge, SCIRICA and
                      COWEN, Circuit Judges

                    (Filed     January 23, 1995)



Azekah E. Jennings (Argued)
W. Ronald Jennings
United States Attorney
Christiansted, St. Croix
U.S. Virgin Islands

          Attorneys for Appellant

Iver A. Stridiron (Argued)
Charlotte Amalie, St. Thomas
U.S. Virgin Islands

          Attorney for Appellee



                      OPINION OF THE COURT
 SLOVITER, Chief Judge.


          The government appeals an order of the district court

dismissing an indictment without prejudice in a drug case

pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1988).

          We have jurisdiction over the government's appeal

pursuant to 18 U.S.C. § 3731.   We exercise plenary review over

the district court's construction and interpretation of the

Speedy Trial Act and its provisions regarding excludable time.

See United States v. Lattany, 982 F.2d 866, 870 (3d Cir. 1992),

cert. denied, 114 S. Ct. 97 (1993).    The findings of fact to

which the district court applies the Speedy Trial Act are

reviewed under a clearly erroneous standard.    Id.


                                  I.

                Background and Procedural History

          On March 25, 1993, three alleged drug couriers, Jewel

Rose Hyde, Patricia Gray and Karen Boothe-Waller, were stopped by

Customs Inspectors at the Cyril E. King airport in St. Thomas,

U.S. Virgin Islands.   The government alleges that each of the

women had a quantity of cocaine strapped to her body and after

her arrest, stated that appellee Roy Hamilton recruited them to

carry the cocaine to Florida for him.

          Hamilton was arrested in Miami, and was returned to the

Virgin Islands to face charges.    On April 1, 1993, a four-count

indictment was returned in the District Court of the Virgin
Islands charging Hamilton with conspiracy to import cocaine into

the United States in violation of 21 U.S.C. § 963 and possession

with intent to distribute in violation of 21 U.S.C. § 841(a)(1)

and 18 U.S.C. § 2.   Hamilton was arraigned before the district

court on May 12, 1993.   By order of the magistrate judge entered

May 28, 1993, Hamilton was released on bail into the joint

custody of his parents and the Office of Probation and Control.

            The three alleged couriers, Hyde, Gray and Boothe-

Waller, also faced criminal charges in a separate criminal

proceeding.   The record on appeal, however, does not reflect the

date on which they were indicted.   At some point after they were

indicted, the couriers filed suppression motions which delayed

the disposition of their case.

            The government's case against Hamilton was originally

set for trial on July 12, 1993.   On that day, the government

filed a motion for a continuance of the trial and for an order

excluding all delay incident to such continuance for speedy trial

computation purposes.    In support of its motion, the government

stated that "[t]hree material witnesses [the three couriers] are

unable to testify until the court disposes of the pending

motions."   See Government's Motion for Continuance and Request

for Entry of Order of Excludable Delay of July 12, 1993.    The

government also stated that it "anticipates the motions will be

resolved within one week and the witnesses will be available to

testify at that time."    Id.
          By order entered July 14, 1993, the district court

granted the government's motion for a continuance and an order of

excludable delay.   Pursuant to that order, the trial was

continued until August 23, 1993.   The district court found that

the ends of justice served by the granting of the motion

outweighed the best interests of the public and the defendant in

a speedy trial because "a July 12, 1993, trial would unreasonably

deny the government the testimony of three material witnesses."

App. at 43.

          On August 9, 1993, the government filed another motion

seeking an order continuing the trial date from August 23, 1993,

and excluding all delay incident to such continuance for speedy

trial computation purposes.   That motion was never ruled upon by

the district court.   The trial, however, did not go forward on

August 23, 1993, although Hamilton allegedly appeared at the

scheduled time.

          On October 21, 1993, the district court granted the

couriers' motion to suppress.   The government promptly appealed

that decision to this court, where that case was pending during

the remainder of the relevant proceedings in this case.1

          On January 4, 1994, the district court set the

government's case against Hamilton for trial during the January


1
 . On September 28, 1994, we resolved the appeal in the
couriers' case. See United States v. Hyde, 37 F.3d 116 (3d Cir.
1994) (reversing the district court's suppression order and
remanding for further proceedings).
31, 1994 trial period.    Once again, the government filed a motion

seeking an order continuing the trial indefinitely.    In addition,

it requested an order excluding all delay incident to such

continuance from the district court's Speedy Trial Act

computations.    In support of this motion, the government asserted

that the couriers were "essential" witnesses within the meaning

of 18 U.S.C. § 3161(h)(3)(A).   The government also contended that

the couriers were "unavailable" to testify because the case

against them was still pending, and that exclusion of the

resulting delay was therefore proper under 18 U.S.C. §

3161(h)(3)(A).   Finally, the government argued that if a

continuance were not granted pursuant to 18 U.S.C. §

3161(h)(8)(A) the charges against Hamilton would have to be

dismissed, which would result in a miscarriage of justice.

          On January 20, 1994, the district court denied the

government's motion without prejudice, stating that it required

additional proof and authority to support the government's

contention that the couriers were "unavailable" for Speedy Trial

Act purposes.    In particular, the court stated that it wished "to

be briefed on why these witnesses cannot be made available

through a grant of immunity as provided by law which would still

permit the case against the three witnesses to go forward, if the

government prevails on appeal."   App. at 15.

          On January 24, 1994, the government filed a motion for

reconsideration of the court's Order of January 20, 1994, in
which it argued that the issue of whether the couriers could be

granted immunity was irrelevant to the district court's analysis,

as the decision to grant immunity is solely within the

government's discretion.    At a hearing on the motion, the

district court stated that it "agree[d] that it is within the

sole purview of the government in situations like this to grant

immunity or not."   Transcript of Proceedings, January 28, 1994 at

5.   Nonetheless, the court stated that "the interest of justice"

weighed against granting the continuance.    Transcript of

Proceedings, January 28, 1994 at 6-7.    The court then set the

trial for February 7, 1994.

           By order entered February 4, 1994, the district court

formally denied the government's motion for reconsideration.      It

concluded that the ends of justice and the interests of the

public and the defendant would not be served by a continuance.

The court determined that the three couriers were not unavailable

based on (1) the failure of the government to grant use immunity

to the couriers, and (2) the reasons set forth by the court at

the January 28, 1994 hearing.    See App. at 48-49.

           On February 7, 1994, the government's case against

Hamilton came to trial.    The government appeared and declared

that it was not prepared to proceed.    Hamilton promptly moved for

a dismissal of the indictment.    The district court granted

Hamilton's motion to dismiss without prejudice.       It also vacated

all conditions of bail and exonerated all bail posted by Hamilton
or his surety.   The court's order of dismissal was issued, as

amended, on February 23, 1994.

          In its appeal, the government contends that the

district court erred by failing to hold that the three couriers

were both "essential" and "unavailable" for the purposes of the

Speedy Trial Act.   It argues that because the district court

erred in failing to exclude a relevant period of delay from its

Speedy Trial Act calculation, the order dismissing the indictment

pursuant to the Speedy Trial Act should be reversed.
                                 II.

                              Discussion

          The Sixth Amendment of the United States Constitution

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial . . . ."     U.S.

Const. amend. VI.    The Speedy Trial Act, 18 U.S.C. §§ 3161-3174,

was designed to give effect to the Sixth Amendment right to a

speedy trial "by setting specified time limits . . . within which

criminal trials must be commenced."    United States v. Rivera

Constr. Co., 863 F.2d 293, 295 (3d Cir. 1988); see also H.R. Rep.

No. 93-1508, 93d Cong., 2d Sess. (1974), reprinted in 1974

U.S.C.C.A.N. 7401, 7402.    The Act requires that a trial shall

start "within seventy days from the filing date (and making

public) of the information or indictment, or from the date the

defendant has appeared before a judicial officer of the court in

which such charge is pending, whichever date last occurs." 18

U.S.C. § 3161(c)(1) (emphasis added).      The statute provides,

however, that certain periods of delay "shall be excluded . . .

in computing the time within which the trial . . . must

commence."    18 U.S.C. § 3161(h).

             Subsection (h) of 18 U.S.C. § 3161 contains a list of

circumstances which merit the exclusion of time from the seventy-

day limit imposed by the Speedy Trial Act.      Pursuant to that

subsection, when a district court makes a Speedy Trial Act time

calculation, it "shall" exclude, among other things:
           (3)(A) Any period of delay resulting from the
           absence or unavailability of the defendant or
           an essential witness.

           (B) For purposes of subparagraph (A) of this
           paragraph, . . . a defendant or an essential
           witness shall be considered unavailable
           whenever his whereabouts are known but his
           presence for trial cannot be obtained by due
           diligence or he resists appearing at or being
           returned for trial.

18 U.S.C. § 3161(h)(3).


           In addition, the statute provides that a district court

shall exclude any period of delay resulting from a continuance

granted by the district court judge "on the basis of his findings

that the ends of justice served by taking such action outweigh

the best interests of the public and the defendant in a speedy

trial."   18 U.S.C. § 3161(h)(8)(A).2   A continuance pursuant to

18 U.S.C. § 3161(h)(8)(A), however, may not be granted because of

"general congestion of the court's calendar, or lack of diligent

preparation or failure to obtain available witnesses on the part

of the attorney for the Government."    18 U.S.C. § 3161(h)(8)(C)
(emphasis added).

           If the trial does not commence within seventy days, or

within an extended time allowable pursuant to section 3161(h),

"the indictment or information must be dismissed on motion of the


2
 . See United States v. Lattany, 982 F.2d 866, 877 (3d Cir.
1992) (noting that a district court may delay articulating its
reasons for granting the continuance if the continuance is
entered before the seventy-day limit would have expired), cert.
denied, 114 S. Ct 97 (1993).
defendant, with or without prejudice."    Lattany, 982 F.2d at 871;

see also 18 U.S.C. § 3162(a)(2).    In general, the defendant bears

the burden of proof of supporting such motion.    The government,

however, bears the burden of going forward with evidence with

respect to the exclusion of time for an unavailable essential

witness under 18 U.S.C. § 3161(h)(3).    See 18 U.S.C. §

3162(a)(2).

            The government's appeal requires us to address, for the

first time, the meaning of the terms "essential witness" and

"unavailability" under 18 U.S.C. § 3161(h)(3)(A).3

            A.   Were the three couriers "essential" witnesses?

            Although we have not yet defined the term "essential"

for Speedy Trial Act purposes, several other courts of appeals

have addressed this issue, and their approaches have differed

somewhat.    In United States v. Eagle Hawk, 815 F.2d 1213, 1218

(8th Cir. 1987), cert. denied, 484 U.S. 1012 (1988), the court

held that "[w]here a witness is unquestionably important, and the

government has a good faith belief that it will use that

witness's testimony at trial, that witness may be deemed




3
 . We note that the government's arguments focus exclusively on
the excludable period due to the unavailability of essential
witnesses under 18 U.S.C. § 3161(h)(3). The government has not
raised any arguments related to the district court's denial of
its motion for an "ends of justice" continuance pursuant to 18
U.S.C. § 3161(h)(8). We therefore express no opinion on
propriety of the district court's denial of the motion for a
continuance.
'essential' for purposes of the Speedy Trial Act."4   In United

States v. Marrero, 705 F.2d 652, 656 (2d Cir. 1983), the court

appeared to employ a more restrictive interpretation of the word,

stating that the legislative history of the Speedy Trial Act

reveals that the term "essential" was "meant to refer to

witnesses whose testimony would be extremely important to the

proceeding, perhaps providing proof that was not otherwise

attainable."   See also United States v. McNeil, 911 F.2d 768,

773-75 (D.C. Cir. 1990) (employing the definitions used in both

Eagle Hawk and Marrero, and also suggesting that in order to be

"essential," a witnesses testimony must be either the

"cornerstone of the Government's case" or "particularly important

to any necessary element of that case").

          In this case, the government contends that each of the

couriers will testify (1) that Hamilton recruited her to carry

cocaine to Miami, Florida, (2) that Hamilton financed her trip to

and from Miami, and (3) that Hamilton gave her cocaine.    This

testimony, the government contends, renders the couriers'

testimony essential to the prosecution of Hamilton under either

the Marrero or the Eagle Hawk formulation.




4
 . In Eagle Hawk, the court also noted that if "the witness's
anticipated testimony will be merely cumulative, or substantially
irrelevant, that witness should be deemed non-essential." United
States v. Eagle Hawk, 815 F.2d 1213, 1218 (8th Cir. 1987), cert.
denied, 484 U.S. 1012 (1988).
          Hamilton urges a narrow construction of the term

"essential."   According to Hamilton, a witness should be deemed

"essential" under section 3161(h)(A) only if his or her testimony

constitutes virtually all of the government's evidence in the

case with respect to an element of the offense charged and the

government's case would therefore fail without the witness's

testimony.   See Marrero, 705 F.2d at 656 (testimony of the

"essential" witness in that case was "virtually the only evidence

the government had"); see also United States v. Vassar, 916 F.2d

624, 628 (11th Cir. 1990) (testimony of several drug couriers was

"essential" to convicting a defendant on certain drug conspiracy

charges where the couriers' testimony was the only evidence of

specific counts in the indictment), cert. denied, 500 U.S. 907

(1991).

          Hamilton argues that in this case the potential

witnesses "were not so vital to the proceedings that to proceed

to trial without them would have been impossible or that absent

their testimony a miscarriage of justice would occur."

Appellee's Brief at 13.   He reasons that the government has

additional witnesses who can testify that Hamilton purchased the

tickets to and from Miami and that he was accompanying the women

when they were arrested and the cocaine was discovered.

Therefore, the argument continues, because this evidence could

possibly support a conviction of Hamilton on the counts charged
in the indictment, the testimony of the couriers themselves is

not "essential" to the government's case.

          We decline to adopt Hamilton's interpretation of the

term "essential."   We believe a witness may be deemed "essential"

for the purposes of 18 U.S.C. § 3161(h)(3)(A) even though the

government could possibly obtain a conviction without that

witness's testimony.   The Senate Judiciary Committee report

accompanying the Speedy Trial Act defined an "essential witness"

as "a witness so essential to the proceeding that continuation

without the witness would either be impossible or would likely

result in a miscarriage of justice." 1974 S. Rep. No. 93-1021,

93d Cong., 2d Sess. 37 (1974), reprinted in Anthony Partridge,

Legislative History of Title I of the Speedy Trial Act of 1974,

at 123 (1980) (emphasis added).   The legislative history of the

Speedy Trial Act therefore suggests that the government need not

demonstrate impossibility of conviction without the witness

before that witness may be deemed "essential."   A witness may

also be treated as "essential" if, in the absence of that

witness's testimony, a miscarriage of justice may likely occur.

See United States v. Tedesco, 726 F.2d 1216, 1222 (7th Cir. 1984)
(a witness may be deemed "essential" for Speedy Trial Act

purposes "even when the Government could convict without his

testimony").

          We therefore join with the Court of Appeals of the

Eighth Circuit in holding that where a witness is unquestionably
important to the prosecution's case, and the government has a

good faith belief that it will use that witness's testimony at

trial, the district court may treat that witness as "essential"

for Speedy Trial Act purposes.   See Eagle Hawk, 815 F.2d at 1218.

On the other hand, if the witness's testimony will be merely

cumulative or substantially irrelevant, the witness should not be

deemed essential.   Id.

          In this case, the proposed testimony of the couriers is

clearly crucial to the government's prosecution of Hamilton.      The

couriers alone can testify that Hamilton gave them the cocaine.

Thus, the testimony of the couriers is "unquestionably important"

and neither irrelevant nor cumulative.    Moreover, there is no

suggestion that the government did not have a good faith belief

that it would be using the testimony of the couriers at trial.

We thus conclude that the couriers were "essential" witnesses for

purposes of 18 U.S.C. § 3161(h)(3)(A).5

          B.   Were the three couriers "unavailable"?

          We part company with the Eagle Hawk court, however, in

its interpretation of when a witness is to be deemed

"unavailable" for Speedy Trial Act purposes.   Under the Speedy

Trial Act, an essential witness is deemed "unavailable" if "his

5
 . In light of our decision, we need not decide whether the
couriers would also satisfy the test of "essentiality" set forth
in United States v. Marrero, 705 F.2d 652, 656-57 (2d Cir. 1983)
(concluding that the testimony of a defendant's accomplices
rendered them "essential" to the government's case in part
because such testimony was the "most persuasive evidence" against
the defendant).
whereabouts are known but his presence for trial cannot be

obtained by due diligence or he resists appearing at or being

returned for trial."   18 U.S.C. § 3161(h)(3)(B).   In denying the

government's motion for a continuance, the district court

concluded that it could not find that the couriers were

"unavailable" because the government could grant use immunity to

the couriers, who might otherwise have pled the Fifth Amendment,

which would have allowed them to testify despite their pending

indictment.

          The government presented no evidence suggesting that

the couriers were actively resisting efforts to obtain their

appearance at trial.   Instead, it contends, apparently as a

matter of law, that the pendency of a related criminal action

against the three couriers rendered them automatically

"unavailable" for Speedy Trial Act purposes.    The government

relies on the holding in Eagle Hawk that, "once a witness is

under indictment for the same offense as that to which he is

requested to testify, fifth amendment safeguards render this

witness unavailable for purposes of the Speedy Trial Act."     Eagle
Hawk, 815 F.2d at 1219.   Thus, that court affirmed the grant of a

continuance to the government due to the unavailability of an

essential witness under those circumstances.6

6
 . In support of its conclusion regarding the unavailability of
a witness, the Eagle Hawk court cited only United States v.
Dichne, 612 F.2d 632 (2d Cir. 1979), cert. denied, 445 U.S. 928
(1980). That citation is unpersuasive, however. In Dichne, the
Second Circuit declined to address the meaning of the term
"unavailability" under section 3161(h)(3)(A) because the sanction
            Although we are fully appreciative of the concerns

expressed by the Eagle Hawk court regarding the Fifth Amendment,

we decline to adopt that court's broad definition of the term

"unavailable."   Obviously, the mere pendency of an indictment

against an essential witness does not automatically render that

witness "unavailable" to testify, because the witness can choose

to waive the Fifth Amendment privilege against self-

incrimination.   See, e.g., Maness v. Meyers, 419 U.S. 449, 466

(1975) (privilege can be waived by not asserting it in a timely

fashion).    More important, a grant of use immunity will satisfy

the requirements of the Fifth Amendment.   See In re Grand Jury

Matter, 673 F.2d 688, 689-90 n.4 (3d Cir.), cert. denied, 459

U.S. 1015 (1982).    It follows that the government has the power

to minimize the Fifth Amendment concerns presented by calling

indicted witnesses, and at the same time satisfy the Sixth

Amendment interests that animate the Speedy Trial Act.

            The government complains that consideration of the

availability of use immunity in connection with the application

of 18 U.S.C. § 3161(h)(3) improperly restricts its discretion to

(..continued)
of dismissal imposed by the Speedy Trial Act did not apply under
the facts of the case. Id. at 641. Although the Dichne court
suggested that, even if the Speedy Trial Act applied, dismissal
would not be mandated, id. at 642, it reached this conclusion by
reasoning that the postponement of the trial was granted "in the
interest of justice, and involved no serious prejudice of the
accused's rights." Thus, the Dichne Court would have excluded
the period of delay under 18 U.S.C. § 1361(h)(8)(A), not under
section 1361(h)(3)(A).
grant use immunity.   We agree with the government that a

determination regarding use immunity is a matter of prosecutorial

discretion, a principle enunciated by the Supreme Court, see

United States v. Doe, 465 U.S. 605, 616-17 (1984); Pillsbury Co.

v. Conboy, 459 U.S. 248, 261 (1983), and frequently acknowledged

by this court.   See United States v. Adams, 759 F.2d 1099, 1107

(3d Cir.), cert. denied, 474 U.S. 906, cert. denied, 474 U.S. 971

(1985) ("the decision to grant immunity is reserved to the

discretion of the executive branch."); see also Grand Jury

Matter, 673 F.2d at 696 (Sloviter, J., concurring) ("A decision

as to whom to immunize in order to elicit testimony inculpatory

of another has traditionally been considered part of the

prosecutorial, not judicial, function.").

          We do not agree, however, that a district court's

consideration of the government's discretion to grant use

immunity in determining the availability of a witness for Speedy

Trial Act purposes improperly interferes with the prosecutor's

function or discretion.    The government fails to recognize the

distinction between its broad discretion to grant immunity and

the legal consequences of the exercise of that discretion.     The

government's grant of use immunity to a witness always has legal

consequences, i.e. the limitation of its ability to use the

testimony against that witness in a subsequent criminal case.

See 18 U.S.C. § 6002.     The fact that its decision not to grant a

witness immunity may have consequences with respect to
calculation of excludable time under the Speedy Trial Act no more

limits the government's discretion than does the consequence that

results from its decision to grant use immunity.   In both

instances, the decision as to use immunity remains in the

government's hands.

            This situation is unlike that presented in Government

of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), where we

stated that the district court had authority in limited

situations to grant judicial immunity to an essential witness to

vindicate the defendant's right to a fair trial.    In this case,

the district court did not order the government to grant use

immunity to the couriers.    Indeed, it explicitly left that choice

to the discretion of the government.

            Thus, we hold that the mere fact that an essential

witness is under indictment for the same or a related offense

does not render that witness "unavailable" for the purposes of 18

U.S.C. § 3161(h)(3) in light of the government's ability to

elicit the witness's testimony by a grant of use immunity.     We

are not here presented with a situation where a witness has

refused to testify after a prosecutorial decision to grant use

immunity.   See Tedesco, 726 F.2d at 1221-22 (witness deemed

"unavailable" for ten-day period during which he refused to

testify despite immunity); Marrero, 705 F.2d at 654, 657-58

(essential witnesses deemed "unavailable" where they refused to
testify after receiving grants of immunity pursuant to 18 U.S.C.

§§ 6002-6003).

          Applying this rule to the facts of this case, we find

no error in the district court's conclusion that the couriers

were not unavailable for the purposes of 18 U.S.C. §

1361(h)(3)(A).   Because the government declined to exercise its

discretion to grant use immunity to the couriers, there is no

showing that the couriers refused to testify after the grant of

such immunity.   The number of nonexcludable days clearly exceeded

the limits of the Speedy Trial Act,7 and we will affirm the order

dismissing the indictment without prejudice.8
7
 . The government does not argue that the district court erred
in its mathematical calculations under the Speedy Trial Act
leading it to the dismissal. Hamilton first appeared before a
judicial officer on May 12, 1993. The seventy-day time period
established by the Speedy Trial Act therefore began to run on May
13, 1993. See Lattany, 982 F.2d at 871 (date of arraignment is
excluded from Speedy Trial Act calculations). By its order
entered July 14, 1993, which has not been challenged in this
appeal, the district court excluded the period from July 12
through August 23. Thus, as of February 7, 1994, 227
nonexcludable days had expired since Hamilton's first appearance
before a judicial officer of the district court.
8
 . Hamilton initially requested this court to remand the case to
the district court for entry of an order dismissing the
indictment with prejudice. He now concedes that a cross-appeal
would be required to secure from an appellate court more relief
than that granted by the district court. See United States v.
American Railway Express Co., 265 U.S. 425, 435 (1924).
Moreover, we have previously interpreted 18 U.S.C. § 3731 as
precluding a defendant from filing a cross-appeal when an appeal
is brought by the government pursuant to that section. See
United States v. Coleman, 862 F.2d 455, 457 (3d Cir. 1988), cert.
denied, 490 U.S. 1070 (1989); see also United States v.
Margiotta, 646 F.2d 729, 734 (2d Cir. 1981).
                              IV.

                           Conclusion

          For the foregoing reasons, we will affirm the district

court's order of dismissal of the indictment in this case.
