United States v. Richard Sayers, 698 F.2d 1128, 11th Cir. (1983)
United States v. Richard Sayers, 698 F.2d 1128, 11th Cir. (1983)
United States v. Richard Sayers, 698 F.2d 1128, 11th Cir. (1983)
2d 1128
Richard Sayers appeals his conviction for conspiracy to possess with intent to
distribute marijuana. Appellant contends that his conviction was erroneous
because there was entrapment as a matter of law or, in the alternative, the
conduct of the government agents was so outrageous that due process was
violated. Appellant additionally argues that the district court erred in refusing to
dismiss his indictment because the indictment was not timely under the Speedy
Trial Act.
Following the phone call, Bauer, Pottlitzer, and appellant met and discussed the
After a failed attempt to carry out one major transaction, appellant and Bauer
began discussing the proposed purchase and distribution of 1,500 pounds of
marijuana at a meeting of February 4, 1981. Wood joined the others to discuss
financing the transaction by putting up his two condominiums as collateral.
After these discussions, Bauer placed a call to undercover agent Velazco, who
spoke to appellant and Wood. During the call, negotiations were completed for
the 1,500-pound transaction. Bauer later contacted Agent Velazco to arrange a
meeting with appellant and Wood to look at the condominiums, receive the
"front money," and check out the marijuana.
On the night of February 4, 1981, Agents Velazco and Perry, who represented
himself to be the owner of the marijuana, met with Bauer, Wood, and appellant.
The sale price of $200 per pound was set. The exchange of the condominiums
for the marijuana was discussed and $12,000 in front money to be paid to
Velazco and Perry was agreed upon. Wood hired Velazco to transport the
marijuana to Chicago. During the meeting, appellant went outside with Bauer
and Agent Velazco to look at the bale of marijuana hidden in the undercover
vehicle.
The following morning, Agents Perry and Velazco met with Bauer, Wood, and
appellant at the condominiums on Pine Island. The condominiums were
inspected; Wood obtained the $12,000 front money, the quit-claim deed to the
condominiums was prepared, and Bauer departed for Chicago. Appellant and
Agent Velazco traveled in appellant's car to the warehouse where agents had
stored the marijuana for inspection. Appellant tried to contact Wood by
telephone, as previously agreed upon, but was unable to reach him. At that
point, appellant was placed under arrest. Appellant was taken into custody and
put through the general booking procedure which included fingerprinting and
photographs.
During the course of the investigation, the United States Attorney's Office for
the Middle District of Florida was apprised of the developments in the case.
After consultation with that office following appellant's arrest, appellant was
released without formal charges to prevent the immediate compromising of
Bauer. Appellant was not taken before a magistrate and no complaint was filed.
On March 19, 1981, 42 days after the initial arrest, an indictment against
appellant was filed, based on the same conduct which led to the initial arrest,
and a summons ordering appellant to appear before the court was issued.
Appellant was convicted of conspiracy to possess with intent to distribute
marijuana in violation of 21 U.S.C. sections 841(a)(1) and 846. The court
sentenced appellant to three years incarceration.
Appellant argues that his conviction was erroneous because there was
entrapment or, in the alternative, the conduct of the government agents was so
outrageous that due process was violated. An assessment of whether there was
entrapment focuses on the predisposition of the defendant. United States v.
Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The jury was
instructed on the issue of entrapment. In reviewing appellant's conviction in
light of the jury's finding that appellant was not entrapped, the evidence of
predisposition must be viewed in the light most favorable to the government.
The evidence of appellant's predisposition to commit the offense was more than
sufficient. Appellant willingly attended several meetings with informant Bauer
and made additional contacts by phone in order to arrange the transaction.
Furthermore, appellant contacted others in an attempt to have them invest in the
marijuana. Appellant participated willingly at all stages of the conspiracy.
10
11
Appellant's second challenge to his conviction, that the 42-day period between
his initial arrest and the issuance of his indictment violated the Speedy Trial
Act, requires this court to define "arrest" for the purposes of the Act. The
government admits that appellant was seized, temporarily taken into custody,
photographed and fingerprinted before being released. There is no suggestion
that appellant did not believe himself to be under arrest at that time. The
government contends, however, that "arrest" in the Speedy Trial Act refers to
that point at which a defendant is first charged with a crime. Since no
complaint or formal charge was issued against appellant on February 5, 1981,
the government argues that he was not "arrested" within the meaning of that
Act.
13
The Speedy Trial Act was enacted primarily to ensure that defendants would
receive the speedy trial guaranteed to them by the sixth amendment.
Nevertheless, the rights of defendants under the Speedy Trial Act are not
limited to those guaranteed by the Constitution. United States v. Gonzalez, 671
F.2d 441 (11th Cir.1982), cert. denied, --- U.S. ----, 102 S.Ct. 2279, 73 L.Ed.2d
1291 (1982). Thus, defining "arrest" for the purposes of the Speedy Trial Act
presents a question of statutory interpretation.
14
18 U.S.C.A. sec. 3161(b) (1982). The initial reading of the language of section
3161(b) suggests that "arrest" entails some accusation, and the intent of
19
The district court logically concluded that until an individual is being held,
either physically or legally, to answer to a charge, there is no circumstance
upon which the purpose of the Act could work. The court explained:
20 notion of the Speedy Trial Act is, that once the Government has made a
[T]he
charge and has placed a restraint upon a defendant, either physically or legally, by
releasing him on bail or by filing a formal complaint, that it then takes on an
obligation to proceed expeditiously to either process that charge or have it dismissed,
and that when that hasn't occurred--that is to say, when there has been no release on
bail or no formal complaint--then there is nothing which the Act would logically
have an interest in speeding along.
21
Record, Volume 2 at 15. This conclusion comports with the rest of the Speedy
Trial Act. For example, if charges are dismissed and later reinstated, the time
between the dismissal and the reinstatement is not included in computing the
time within which the trial must commence. 18 U.S.C. sections 3161(d) and
3161(h)(6).
22
23
Having found that the statutory scheme establishes Congressional intent that
the time period for the Speedy Trial Act should begin to run only after an
individual is "accused," either by an arrest and charge or by an indictment, we