USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1937
UNITED STATES,
Appellee,
v.
BENIGNO SANTIAGO-BECERRIL, a/k/a BENNY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lagueux,* Chief District Judge.
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Jorge L. Arroyo-Alejandro with whom Rachel Brill were on brief
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for appellant.
W. Stephen Muldrow, Assistant United States Attorney, with whom
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Nelson Perez-Sosa, Assistant United States Attorney, and Jose A.
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Quiles-Espinosa, Senior Litigation Counsel, were on brief for the
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United States.
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November 20, 1997
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*Of the District of Rhode Island, sitting by designation.
CAMPBELL, Senior Circuit Judge. Defendant-
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appellant Benigno Santiago-Becerril ("Santiago") appeals from
convictions for the wrongful taking of a motor vehicle by
force and violence, with a resulting death, see 18 U.S.C.
___
2119(3) (Supp. 1997), 2 (1969), and for the knowing use of a
firearm in relation to a crime of violence, see 18 U.S.C.
___
924(c)(1) & (3) (Supp. 1997), 2 (1969). He argues on appeal
that the district court violated his statutory and
constitutional rights to a speedy trial, as well as his
constitutional right to present witnesses in his own defense.
I.
I.
Santiago was arrested on October 20, 1994 pursuant
to a warrant issued after a criminal complaint had been filed
against him on the previous day. He has since been
incarcerated.
Criminal complaints and arrest warrants were also
issued on October 20, 1994 against two minors, Antonio Jose
Esquilin-Garcia ("Esquilin") and Pedro Antonio Ramos-Rosa
("Ramos"), alleged to have participated in the same offense
as Santiago. Both were arrested on November 11, 1994.
Because Esquilin and Ramos were minors, only
Santiago was charged in an indictment returned on November 2,
1994. At his arraignment on November 9, 1994, Santiago pled
not guilty to both counts of the indictment.
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2
On November 22, 1994, Santiago filed a motion to
continue his trial, which had been scheduled for January 12,
1995. As a reason for the continuance, Santiago's counsel
stated that he (counsel) would be on trial at the time in
another case. The district court granted the continuance on
December 1, 1994, finding that Santiago's interest in being
represented by competent counsel outweighed his interests in
a speedy trial and ordering counsel for Santiago to notify
the court when the other trial had ended.
On February 2, 1995, Santiago's counsel notified
the district court that his other trial was over, allowing
the setting of a new trial date. On March 1, 1995, the
district court ordered a pretrial conference on March 6,
1995, and set Santiago's trial for March 13, 1995.
On March 10, 1995, the government requested a
continuance of the March 13 trial date, stating that Esquilin
and Ramos were both awaiting a hearing on a motion to
transfer to adult status. If the transfers were allowed, the
government proposed to try them along with Santiago. Without
objection, the district court allowed the continuance on
March 13, 1995. The court found the ends of justice were
served by continuing the trial, and that the ability to try
together all persons implicated in this case outweighed the
interests in a speedy trial.
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3
On October 10, 1995, the district court ordered
that both Esquilin and Ramos be transferred to adult status.
On October 18, 1995, the grand jury returned a superseding
indictment, charging the two transferred minors and Santiago
with the same offenses charged in the original indictment
against Santiago alone.
On December 4, 1995, Ramos entered a plea of guilty
as to counts one and two of the superseding indictment
pursuant to a Plea and Cooperation Agreement. On January 22,
1996, Esquilin did the same in respect to count one of the
superseding indictment. Santiago's trial was set for January
23, 1996.
On January 18, 1996, Santiago filed a motion to
dismiss the superseding indictment for violation of his
constitutional and statutory rights to a speedy trial. Five
days later, following argument, the district court ruled to
deny Santiago's motion to dismiss.
Trial began, as scheduled, on January 23, 1995. On
the fifth day of trial, the defense called Wanda Caceres
("Caceres"), Santiago's stepmother, to the witness stand.
Before she could testify, the court required the defense to
make a proffer of her expected testimony. Counsel
represented that Caceres would testify about her post-offense
conversations with the defendants and about her efforts to
purchase airline tickets for them to travel to the mainland.
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4
After the proffer, the district court warned Caceres about
her right to refuse to testify, because of the possibility
that she might incriminate herself. The court also appointed
an attorney to advise Caceres, who was unrepresented to that
point.
After Caceres s lawyer explained "her rights and
the possible or probable consequences of testifying," Caceres
decided not to testify. Later that same day, the jury
returned a verdict, finding Santiago guilty on counts one and
two of the superseding indictment.
On May 23, 1996, the district court sentenced
Santiago to life imprisonment on count one and,
consecutively, to sixty months' imprisonment on count two.
Santiago appealed.
II.
II.
A. Santiago's Statutory and Constitutional Rights to a
Santiago's Statutory and Constitutional Rights to a
Speedy Trial
Speedy Trial
1. The Statutory Right
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The Speedy Trial Act ("STA"), 18 U.S.C. 3161 et
__
seq. (1985), is designed "to protect a defendant's
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constitutional right to a speedy . . . trial, and to serve
the public interest in bringing prompt criminal proceedings."
United States v. Saltzman, 984 F.2d 1087, 1090 (10th Cir.
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1993) (citing United States v. Noone, 913 F.2d 20, 28 (1st
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Cir. 1990)). The STA provides that the government must bring
a criminal defendant to trial no more than seventy days after
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5
the later of the filing date of the information or indictment
or the date on which the criminal defendant first appears
before a judicial officer of the court in which the charge is
pending. 18 U.S.C. 3161(c)(1) (1985); see also United
___ ____ ______
States v. Torres Lopez, 851 F.2d 520, 525 (1st Cir. 1988).
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In calculating the seventy days the STA excludes certain time
periods. See 18 U.S.C. 3161(h)(1)-(9) (1985); see also
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United States v. Sposito, 106 F.3d 1042, 1043 (1st Cir.
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1997); United States v. Thurlow, 710 F. Supp. 380, 381 (D.
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Me. 1989). If a criminal defendant is not brought to trial
within the seventy-day time limit required by 3161(c)(1),
as extended by operation of 3161(h)(1)-(9), the penalty
provisions of the STA mandate that "the information or
indictment shall be dismissed on motion of the defendant."
18 U.S.C. 3162(a)(2) (1985); see also Sposito, 106 F.3d at
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1043; Thurlow, 710 F. Supp. at 381.
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Santiago argues that the district court erred in
denying his motion to dismiss the superseding indictment. He
says that the delay in his being brought to trial added up to
twice the number of statutorily allowable days. In response,
the government asserts that only forty-nine non-excludable
days passed before Santiago was brought to trial.
We find no error in the district court's refusal to
dismiss the superseding indictment. This court reviews the
disposition of a STA issue for clear error as to factual
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6
findings and de novo as to legal rulings. See United States
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v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir. 1995). We
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conclude that fewer than seventy non-excludable days went by
before Santiago was brought to trial.
a) November 4, 1994 to March 1, 1995 (Santiago's
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motion for a continuance of trial)
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The original indictment was returned on November 2,
1994. Santiago first appeared before a judicial officer of
the district court on November 4, 1994. STA calculation
begins with the latter of these two dates. See 18 U.S.C.
___
3161(c)(1) (1985).
November 4, 1994 is itself excludable because
Santiago appeared before the district court on that day. See
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18 U.S.C. 3161(h)(1) (1985) ("proceedings concerning the
defendant"). That day is also excludable for another reason,
to wit, the government's motion to detain Santiago without
bail pending the detention hearing, which the court granted
that same day. See 18 U.S.C. 3161(h)(1)(F) (1985).
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Section 3161(h)(1)(F) excludes any "delay resulting from any
pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of,
such motion." Id. November 9, 1994 is excludable because of
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Santiago's arraignment and detention hearing on that day.
See 18 U.S.C. 3161(h)(1) (1985).
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Santiago contends that the period from November 10,
1994 up to and including November 21, 1994 is non-excludable.
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7
The government agrees. We therefore find a total of sixteen
non-excludable days up to this point.
On November 22, 1994, Santiago filed a motion
notifying the district court of his counsel's unavailability
on January 12, 1995, the scheduled trial date, because of
another trial. Santiago requested an indefinite continuance
of the trial as set for January 12, 1995. The court granted
this motion ten days later, on December 1, 1994, ordering
counsel to notify the court when the other trial was over.
The parties agree that the ten days the court took to decide
the motion were excludable from the STA's seventy-day time
limit. See 18 U.S.C. 3161(h)(1)(F) (1985). They likewise
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agree that December 2, 1994 was excludable, a pretrial
conference being held on that day. See 18 U.S.C.
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3161(h)(1) (1985).
Santiago asserts that the six days from December 3,
1994 to December 8, 1994 are non-excludable. The government
contends that the indefinite continuance of the trial,
granted at defendant's request on December 1, 1994, makes
these days excludable.
The STA excludes any period of delay resulting from
the court's granting of a continuance if the continuance was
granted on the basis of findings that the ends of justice
served outweigh the speedy trial interest. See 18 U.S.C.
___
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8
3161(h)(8)(A) (1985).1 An ends of justice continuance was
granted here. Santiago contends, however, that the
excludable time attributable to the continuance must be
limited to the period of time between January 12, 1995, the
original trial date, and February 2, 1995, the date defense
counsel notified the court of his availability for trial.
The government maintains that the entire three month period
of time starting on December 1, 1994, the date the court
continued the original trial date, and ending on March 1,
1995, the day the court set a new trial date, is excludable
from the STA's seventy-day time limit.
We agree with the government. The "period of
delay" resulting from the continuance began on December 1,
1994, when the January 12, 1995, trial date was canceled and
the trial put on hold until further order. The period of
delay remained in effect from then through March 1, 1995,
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1. Section 3161(h)(8)(A) provides, in pertinent part, as
follows:
(h) The following periods of delay shall be
excluded in computing the time . . . within which the
trial . . . must commence:
(8)(A) Any period of delay resulting from a
continuance granted by any judge on his own motion or at
the request of the defendant or his counsel or at the
request of the attorney for the Government, if the judge
granted such continuance on the basis of his findings
that the ends of justice served by taking such action
outweigh the best interest of the public and the
defendant in a speedy trial.
18 U.S.C. 3161(h)(8)(A) (1985).
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9
when, after having been earlier advised of counsel's
availability, the court set a new trial date.
There is no way to regard the period from the court's
December 1 ruling to the original January 12 trial date as if
no continuance were then in effect. The continuance ruled
out all possibility of a trial while it lasted, relieving the
parties of the need to prepare for trial on January 12, as
previously scheduled, or at any time from December 1 until a
new trial date was set.
Contending that a continuance of trial ends when
the reason for it ends, Santiago argues that the twenty-seven
day period beginning on February 2, 1995 and ending on March
1, 1995, during which the court was aware of defense
counsel's availability but had not yet set a new trial date,
cannot be excludable. To exclude that period, Santiago
asserts, citing to United States v. Rush, 738 F.2d 497, 505-
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06 (1st Cir. 1984), would give rise to an automatic
additional period of exclusion after every "ends of justice"
continuance between the notice that the event triggering the
continuance of trial has ended and the court's order setting
a new trial date. Santiago argues that his counsel's
February 2, 1995 notice of availability left nothing for the
district court to do but set a new trial date, a routine act.
We do not accept Santiago's argument. The "period
of delay" caused by the ends of justice continuance included
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10
the time, following counsel's notice of readiness, that the
judge reasonably required to schedule a new trial date. The
mere announcement of counsel's availability did not
automatically terminate the continuance of the trial.
Setting a new date required consideration of the court's
calendar; an available window had to be found. The court may
not have been able to determine as soon as counsel s
availability was known when its other obligations would allow
the scheduling of a trial. The court took less than a month
to schedule a new trial date, which was not an unreasonable
delay.
We add that the twenty-seven days that elapsed
before a new trial date was set can be viewed as separately
excludable under the provisions of 3161(h)(1)(F), which
excludes the time pending disposition of a motion. By
notifying the court of his availability for trial, defense
counsel may be said to have impliedly moved for a new trial
date. The court acted on the implied motion on March 1, 1995
by setting a new trial date of March 13, 1995. Motions that
do not require a hearing may toll the seventy-day time limit
for up to thirty days. See Henderson v. United States, 476
___ _________ _____________
U.S. 321, 29 (1986) (noting that the phrase "prompt
disposition" in 3161(h)(1)(F) so limits the amount of time
that can be excluded). As already noted, the twenty-seven
days taken by the court to determine a new date was
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11
reasonable enough. We conclude that the entire period from
December 1, 1994 through March 1, 1995 was excludable for
purposes of the STA, leaving us still with a total of sixteen
non-excludable days at this point in time.
b) March 2, 1995 to October 18, 1995 (The
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government's motion for a continuance of
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trial)
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The new March 13 trial date did not stand for long.
On March 10, 1995, the government moved to continue
Santiago's trial in order to allow it to obtain permission to
try the two juveniles, Ramos and Esquilin, as adults, in
which event they would be eligible to be tried jointly with
Santiago. Finding that the "ends of justice" would be served
by continuing the trial pending resolution of Ramos's and
Esquilin's adult status, the district court allowed the
government's motion on March 13, 1995. The parties agree
that the period of time from March 2, 1995, the day after the
district court set the March 13 trial date, until March 9,
1995, the day before the government filed its motion to
continue the new trial date, was non-excludable. They also
agree that the days between March 10, 1995, the day the
government filed its motion to continue the trial, and March
13, 1995, the day the district court granted the government's
motion to continue the trial, were excludable. See 18 U.S.C.
___
3161(h)(1)(F) (1985). The addition of the eight non-
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12
excludable days yields a new total of twenty-four non-
excludable days.
c) March 14, 1995 to October 18, 1995
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The parties disagree sharply over exclusion of the
219-day period beginning on March 14, 1995, the day after the
district court granted the government's motion to continue
the trial, until October 18, 1995, the day a superseding
indictment against all three defendants was returned. The
March 13 continuance was open-ended, although as Santiago
acknowledges, that, in and of itself, did not make it
invalid. Open-ended continuances are not prohibited per se.
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See United States v. Spring, 80 F.3d 1450, 1457-58 (10th Cir.
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1996); United States v. Jones, 56 F.3d 581, 585-86 & n.10
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(5th Cir. 1995); United States v. Lattany, 982 F.2d 866, 868
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(3d Cir. 1992); Rush, 738 F.2d at 508. But see United States
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v. Jordan, 915 F.2d 563, 565-66 (9th Cir. 1990) ("The Speedy
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Trial Act . . . requires that an 'ends of justice'
continuance be specifically limited in time . . . ."). This
court has said, "it is generally preferable to limit a
continuance to a definite period for the sake of clarity and
certainty; but at the same time it is inevitable that in some
cases . . . a court is forced to order an (h)(8) continuance
without knowing exactly how long the reasons supporting the
continuance will remain valid." Rush, 738 F.2d at 508. An
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open-ended continuance may, therefore, bring to bear a factor
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13
of "reasonableness." See Lattany, 982 F.2d at 868 ("[O]pen-
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ended continuances to serve the ends of justice are not
prohibited if they are reasonable in length."); Rush, 738
____
F.2d at 508 ("It may well be that some sort of reasonableness
limitation is appropriate to prevent continuances from
delaying trials unfairly and circumventing the dismissal
sanctions in the Speedy Trial Act . . . .").
Santiago argues that, when viewed in the totality
of the circumstances, including the previous delays, the 219
day delay was clearly unreasonable. Much of that delay, he
contends, was attributable to government foot-dragging and,
therefore, lacked an element of defendant s involvement that
has led us to exclude open-ended continuances in the past.
See Lattany, 982 F.2d at 883 (holding that the length of a
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continuance was not unreasonable because of defendant's part
in extending the delay). Santiago maintains that the docket
entries for the transfer proceedings2 are suggestive of
governmental bad faith and needless delay. He points to the
postponement of a March 21, 1995 evidentiary hearing for
Ramos after the government said that it had not received
notice of it. Santiago contends that this delay, in addition
to other questionable delays, indicate that the government
was not acting expeditiously in spite of knowing that he was
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2. Many of the records relating to the transfer proceedings
do not appear in the record before us.
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14
still awaiting trial. And, finally, Santiago says he was
misled into believing that the transfer proceedings would end
momentarily.
We find little support for Santiago's charge that
the transfer proceedings were protracted by governmental
indifference and impropriety. Their duration does not seem
extreme in the circumstances, and the continuance of
Santiago s trial until it could be determined whether to try
the minor codefendants with Santiago was reasonable,
especially where Santiago raised no objection at the time.
Cf. United States v. Parker, 404 F.2d 1193, 1196 (9th Cir.
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1968) (noting the substantial public interest in joint
trials).
The two juveniles' natural resistance to being
tried as adults affords an obvious explanation for the time
consumed by the transfer proceedings. The seriousness of the
charges provided good reason for them to do everything
possible to retain their juvenile status. That the adult
classification issue was not simple is suggested by the fact
that, although the district judge ultimately transferred both
minors to adult status, the magistrate judge presiding over
the transfer proceedings recommended the transfer of only one
of them. The limited record that we have reflects delays
arising from, among other things, difficulties in arranging
for psychological evaluations of the two juveniles. At no
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15
time within this period did Santiago seek either to terminate
the continuance of his trial or to expedite the transfer
proceedings.
We conclude that the continuance for the transfer
proceedings was not unreasonable or excessively long.
Accordingly, we exclude the period between March 14 and
October 18, 1995, pursuant to 3161(h)(8)(A). This
exclusion keeps the STA count at twenty-four non-excludable
days at this point in the calculations.
c) October 19, 1995 to January 23, 1996
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(Esquilin's motion for a change of plea)
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The October 18, 1995 superseding indictment, which
included Ramos and Esquilin as defendants along with
Santiago, did not restart Santiago's STA's clock because it
was based on the original charges. See United States v.
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Rojas-Contreras, 474 U.S. 231, 240 (1985) (Blackmun, J.,
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concurring); United States v. Karsseboom, 881 F.2d 604, 606-
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07 (9th Cir. 1989).
The parties agree that, with the exception of
October 25, 1995, the days between October 19, 1995, the day
after the filing of the superseding indictment, and November
13, 1995, the day before the filing of the government's
motion as to Ramos to seal documents, were non-excludable.
October 25, 1995 was excludable because it was the day that
Santiago was arraigned under the superseding indictment.
See 18 U.S.C. 3161(h)(1) (1985). Adding these twenty-five
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16
non-excludable days gives a new total of forty-nine non-
excludable days.
Because the superseding indictment pertained to all
three, any defendant's motion resulting in excludable time
tolled the STA clock for his codefendants. See United States
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v. Ortiz, 23 F.3d 21, 27-28 (1st Cir. 1994); Torres Lopez,
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851 F.2d at 526 ("A pretrial motion resulting in excludable
time for one defendant also stops the Speedy Trial clock for
all codefendants." (citations omitted)); Rush, 738 F.2d at
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503 ("Every circuit court that has considered [ 3161(h)(7)]
has held in essence that 'an exclusion applicable to one
defendant applies to all codefendants.'" (citations
omitted)).3 Accordingly, November 14, 1995, the date the
government filed its motion to seal documents as to Ramos;
November 15, 1995, the date Ramos filed his motion for a
change of plea; and November 16, 1995, the date the court
granted the motion to seal as to Ramos and scheduled his
change of plea hearing, are all excludable from Santiago's
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3. Section 3161(h)(7) states, in relevant part, as follows:
(h) The following periods of delay shall be
excluded in computing the time . . . within which the
trial . . . must commence:
(7) A reasonable period of delay when the
defendant is joined for trial with a codefendant as
to whom the time for trial has not run and no
motion for severance has been granted."
18 U.S.C. 3161(h)(7) (1985).
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17
STA computation. See 18 U.S.C. 3161(h)(1)(F), (h)(7)
___
(1985).
Santiago argues that, with the exception of
November 27, 1995, the period of time from November 17, 1995,
the day after the court acted on the two motions, until
December 3, 1995, the day before Ramos's change of plea
hearing, is non-excludable. He concedes that November 27,
1995 is excludable because of the arraignment and detention
hearings of Esquilin and Ramos on that date. See 18 U.S.C.
___
3161(h)(1)(F), (h)(7) (1985). The government, however, would
exclude the entire period from November 17 through December
4, arguing that Ramos's change of plea motion was
continuously under advisement until allowed at a hearing on
December 4, 1995. We agree with the government, as discussed
below, and exclude that period of time from the STA's
seventy-day time limit.
Santiago also disputes any exclusion of the period
of time from December 5, 1995, the day after Ramos's change
of plea hearing, through January 17, 1996, the day before the
filing of Santiago's motion to dismiss the superseding
indictment. Santiago contends that Esquilin's motion for
change of plea, filed on December 1, 1995, was not excludable
until at least December 26, 1995, when the court set January
19, 1996 as the date for Esquilin's change of plea hearing.
This is so, he says, because Esquilin's motion required "no
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18
disposition" until December 26, (apparently because it was
not yet scheduled for hearing), and because a contrary ruling
would allow district judges to toll the STA clock by
intentionally delaying their orders scheduling change of plea
hearings. The short answer to this argument is that the
exclusion provided by 3161(h)(1)(F) applies without
qualification "from the filing of the motion through the
conclusion of the hearing on . . . such motion," 18 U.S.C.
3161(h)(1)(F) (1985); see United States v. Jenkins, 92 F.3d
___ _____________ _______
430, 440 (6th Cir. 1996); United States v. Mentz, 840 F.2d
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315, 327 n.25 (6th Cir. 1988).4
Santiago also questions the excludability of the
post-December 26 period during which Esquilin's change of
plea motion continued under advisement. As in the case of
Ramos's similar motion, Santiago would have us deny
excludability on the ground that Jenkins does not stand for
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the proposition that the entire period from the filing of a
motion for a change of plea until the change of plea hearing
is excludable. The holding in Jenkins, according to
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Santiago, dealt with a motion that did not require a hearing,
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4. Santiago points out that the district court also
excluded the period of time starting on October 18, 1995, the
filing date of the superseding indictment, and ending on
December 12, 1995, because of "ongoing plea negotiations."
According to Santiago, this exclusion of time is contrary to
both the relevant facts and the applicable law. We need not,
however, consider the appropriateness of this theory, as we
do not make use of it in our STA calculation and instead rely
on other grounds for excluding most of this period of time.
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19
to wit, a motion to use a jury questionnaire.5 Santiago
contends that the hearing referred to in both 3161(h)(1)(F)
and the Jenkins case is one that is necessary to decide the
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merits of the motion, and that such was not the case here.
We agree with the government that all of the days
between the date a codefendant files a motion for a change of
plea and the date of the change of plea hearing itself are
excludable from the STA's seventy-day time limit. See 18
___
U.S.C. 3161(h)(1)(F), (h)(7) (1985); accord Jenkins, 92
______ _______
F.3d at 440; see also Henderson, 476 U.S. at 326-27; Sposito,
___ ____ _________ _______
106 F.3d at 1044.
A change of plea hearing is essential to establish
the knowing and voluntary nature of the defendant's guilty
plea, and to determine the sufficiency of its factual basis.
Until these factors are established, the court may not rule
definitively on whether or not to accept the motion for
change of plea.
Santiago argues that the district court in Thurlow
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sets forth a better reasoned view than the one we take.
Citing to 3161(h)(8)(C), the Thurlow court ruled that a
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5. At oral argument, Santiago's attorney acknowledged that
there is what he called "a brief, passing comment" in the
Jenkins opinion that goes into the question of whether a
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change of plea notice is "a motion requiring a hearing" under
the STA. Still, he dismissed it as being "bad law" and as
not having in consideration the rationale of cases like
United States v. Thurlow, 710 F. Supp. 380 (D. Me. 1989),
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which is more in harmony with the intent behind the STA.
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20
delay caused by the "general congestion of the courts" is not
a sufficient basis for the exclusion of time from the STA's
seventy-day time limit. Thurlow, 710 F. Supp. at 383. The
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court thus concluded that an exclusion of time under the STA
could not be granted for the period of time starting with the
defendant's notice and ending with the court's hearing,
because the delay was due solely to the court's scheduling
requirements. See id.
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We remain unpersuaded. A defendant's request to
change his plea clearly constitutes a pretrial motion, a
motion which automatically triggers an exclusion of time.
See 18 U.S.C. 3161(h)(1)(F) (1985). The weight of
___
authority is to this effect. In Sposito, Jenkins, Henderson,
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and other cases, courts have agreed that the entire time
between the filing of a pretrial motion and the hearing on
that motion is excludable from the STA's seventy-day time
limit. See, e.g., Henderson, 476 U.S. at 326-27; Sposito,
_________ _________ _______
106 F.3d at 1044; Jenkins, 92 F.3d at 440. Hence, the days
_______
between December 1, 1995, the date Esquilin filed his motion
for change of plea, and January 22, 1996, the date of
Esquilin's actual change of plea hearing, are all excludable.
On January 18, 1996, Santiago filed his motion to
dismiss the superseding indictment for lack of a speedy
-21-
21
trial. The district court denied the motion on January 23,
1996.6 Both parties agree that these six days are
excludable. See 18 U.S.C. 3161(h)(1)(F) (1985). January
___
23, 1996 was the first day of jury trial, bringing the STA
clock to a stop in the instant case. See 18 U.S.C.
___
3161(c)(1) (1985).
We conclude that only forty-nine non-excludable
days ran off the STA clock before the commencement of trial
and that, therefore, no violation of Santiago's statutory
right to a speedy trial occurred.
2. The Constitutional Right
________________________
Santiago insists that the delay in his being
brought to trial violated his constitutional right to a
speedy trial. We find no merit in this contention.
The Sixth Amendment to the United States
Constitution provides, in pertinent part, that "[i]n all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial." U.S. Const. amend. VI (emphasis
______
added). This right attaches upon arrest or indictment,
whichever occurs first. See United States v. MacDonald, 456
___ _____________ _________
U.S. 1, 6-7 (1981); United States v. Mala, 7 F.3d 1058, 1061
_____________ ____
____________________
6. During trial, the district court ruled that Santiago's
motion to dismiss had been "untimely", since it had been
filed just prior to trial. We accept Santiago's argument
that untimeliness would not, on this record, constitute a
valid independent ground for denying the motion to dismiss.
-22-
22
(1st Cir. 1993); United States v. Colombo, 852 F.2d 19, 23
_____________ _______
(1st Cir. 1988). For Sixth Amendment purposes, Santiago is
entitled to a computation of time from October 20, 1994, the
date of his arrest.
That there was no violation of the STA in this case
would not necessarily preclude a court from finding a
violation of Santiago's Sixth Amendment right to a speedy
trial. See United States v. Koller, 956 F.2d 1408, 1413 (7th
___ _____________ ______
Cir. 1992). Section 3173 of the STA states that "[n]o
provision of this chapter shall be interpreted as a bar to
any claim of denial of speedy trial as required by amendment
VI of the Constitution." 18 U.S.C. 3173 (1985); see also
___ ____
United States v. Mitchell, 723 F.2d 1040, 1049 (1st Cir.
______________ ________
1983). "It would be, however, 'an unusual case in which the
time limits of the [STA] have been met but the [S]ixth
[A]mendment right to speedy trial has been violated.'"
Mitchell, 723 F.2d at 1049 (quoting United States v. Nance,
________ _____________ _____
666 F.2d 353, 360 (9th Cir. 1982)). This court reviews a
district court's speedy trial determination under the Sixth
Amendment for abuse of discretion. See Colombo, 852 F.2d at
___ _______
21.
In Barker v. Wingo, 407 U.S. 514, 530-33 (1972),
______ _____
the Supreme Court established a four-part balancing test to
be used in determining whether a defendant's Sixth Amendment
right to a speedy trial has been violated. See, e.g., Mala,
_________ ____
-23-
23
7 F.3d at 1061. A court should consider: (1) the length of
the delay; (2) the reason(s) for the delay; (3) the
defendant's assertion of his speedy trial right; and (4) the
prejudice to the defendant caused by the delay. See, e.g.,
_________
id. (citing to Barker, 407 U.S. at 530). "None of these
___ ______
factors is 'either a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial.
Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.'"
United States v. Henson, 945 F.2d 430, 437 (1st Cir. 1991)
_____________ ______
(quoting Barker, 407 U.S. at 533).
______
The first factor, the length of the delay, was
identified by the Supreme Court as:
to some extent a triggering mechanism.
Until there is some delay which is
presumptively prejudicial, there is no
necessity for inquiry into the other
factors that go into the balance.
Nevertheless, because of the imprecision
of the right to speedy trial, the length
of delay that will provoke such an
inquiry is necessarily dependent upon the
peculiar circumstances of the case. For
example, the delay that can be tolerated
for an ordinary street crime is less than
for a serious, complex conspiracy charge.
Barker, 407 U.S. at 530-31; see also Koller, 956 F.2d at
______ ___ ____ ______
1413. The Supreme Court has said that "the lower courts have
generally found postaccusation delay 'presumptively
prejudicial' at least as it approaches one year." Doggett v.
_______
United States, 505 U.S. 647, 652 n.1 (1992) (citations
______________
-24-
24
omitted); see also United States v. King, 909 F. Supp. 369,
___ ____ _____________ ____
372 (E.D. Va. 1995). We shall assume, under the foregoing,
that the fifteen month delay in this case was "presumptively
prejudicial" so as to trigger further inquiry as to Santiago,
see, e.g., Koller, 956 F.2d at 1414 (holding that an eight
_________ ______
and one-half month delay was enough to warrant further
inquiry); Colombo, 852 F.2d at 24 (holding that a twenty-four
_______
month period was long enough to be presumptively
prejudicial); King, 909 F. Supp. at 372 (holding that a
____
thirty-one month delay was sufficient to trigger the Barker
______
test). Still, we hold that the cumulative effect of the
pretrial delay, viewed under all the factors set forth in
Barker, falls far short of establishing a Sixth Amendment
______
violation.
As noted, the length of the delay is both the
trigger for the Barker analysis and one of the factors in
______
that analysis. See Colombo, 852 F.2d at 24. Once an
___ _______
examination of the Sixth Amendment claim is triggered, the
weight given in the analysis to the length of the delay
depends upon the extent to which the delay exceeds the bare
minimum considered presumptively prejudicial. See Doggett,
___ _______
505 U.S. at 652; King, 909 F. Supp. at 373. Santiago waited
____
over fifteen months for the commencement of trial in this
case, a case more complicated than "an ordinary street crime"
but less so than "a serious, complex conspiracy charge."
-25-
25
Barker, 407 U.S. at 531. Arguably, therefore, the period of
______
the delay was long enough to tip the scales slightly in favor
of Santiago's instant claim.
The second factor, the reason(s) for the delay, has
been called, "the focal inquiry." United States v. Sears,
_____________ ______
Roebuck & Co., 877 F.2d 734, 739 (9th Cir. 1989) (citation
______________
omitted). As with the first factor, "[h]ere, too, different
weights should be assigned to different reasons." Barker,
______
407 U.S. at 531. Santiago argues that the chief contributor
to the delay was the government's lack of diligence in
advancing the transfer proceedings, and that the government
used this period of time to further its case by debriefing
minors Esquilin and Ramos, both of whom were eventually
called to provide testimony against him. We find in the
record below, however, scant indication that the length of
the transfer proceedings was attributable to the government's
misconduct or negligence. See Henson, 945 F.2d at 437 n.7;
___ ______
Colombo, 852 F.2d at 25. The rest of the delay in trying
_______
Santiago resulted mainly from his own motion for a
continuance of the trial and his codefendants' motions for
changes of pleas. Santiago never sought relief from delays
occasioned by his codefendants by requesting a severance. We
conclude that the various delays were each justified by "a
valid reason." Barker, 407 U.S. at 531.
______
-26-
26
The third factor, the defendant's assertion of his
speedy trial right, "is entitled to strong evidentiary weight
in determining whether the defendant is being deprived of the
right." Barker, 407 U.S. at 531-32; see also Colombo, 852
______ ___ ____ _______
F.2d at 26. The failure to assert the right, the Barker
______
Court noted, "will make it difficult for a defendant to prove
that he was denied a speedy trial." Barker, 407 U.S. at 532;
______
see also Colombo 852 F.2d at 26. A defendant should give
___ ____ _______
some indication, prior to his assertion of a speedy trial
violation, that he wishes to proceed to trial. See Henson,
___ ______
945 F.2d at 438-39; Sears, Roebuck & Co., 877 F.2d at 740;
_____________________
Colombo, 852 F.2d at 26.
_______
Santiago did not demand a speedy trial at any time
prior to his motion to dismiss, which he filed immediately
prior to the commencement of his trial. See United States v.
___ _____________
Vachon, 869 F.2d 653, 657 (1st Cir. 1989) (finding no
______
violation of any constitutional right in a case where the
defendant did not raise the constitutional speedy trial issue
until two days before trial). The record in this case
suggests that Santiago only got around to demanding his
speedy trial right when "it 'became a possible means by which
to obtain dismissal of the charges against [him].'" Henson,
______
945 F.2d at 439 (quoting Colombo, 852 F.2d at 26). Hence in
_______
respect to the third factor, Santiago's failure to request a
speedy trial earlier than he did weighs against him.
-27-
27
The fourth, and final, factor -- the prejudice to
the defendant caused by the delay -- "should be assessed in
the light of the interests of defendants which the speedy
trial right was designed to protect. Th[e] Court has
identified three such interests: (i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern
of the accused; and (iii) to limit the possibility that the
defense will be impaired." Barker, 407 U.S. at 532 (footnote
______
omitted); see also Koller, 956 F.2d at 1414. The Barker
___ ____ ______ ______
Court went on to discuss the disadvantages of lengthy
pretrial incarceration for the accused who cannot obtain his
release. See Barker, 407 U.S. at 532-33. We shall assume
___ ______
that many of those disadvantages were experienced by
Santiago, who was subjected to over fifteen months of
pretrial imprisonment without bail. However, the fifteen
months of pretrial incarceration by itself was insufficient
to establish a constitutional level of prejudice. Cf.
__
Barker, 407 U.S. at 534 (finding that the prejudice was
______
minimal in a case in which the defendant spent ten months in
jail before trial); Koller, 956 F.2d at 1414 ("Koller did
______
spend the entire eight and one-half months of delay in jail,
but in Barker the Court found that ten months of
______
incarceration prior to trial was not sufficient to raise to
the level of prejudice." (citation omitted)).
-28-
28
In respect to Santiago's anxiety and concern in
awaiting trial, we do not weigh this heavily, especially
where Santiago took no early action to expedite his trial,
either by demanding an earlier trial or by seeking a
severance from the minor codefendants. "While 'this type of
prejudice is not to be brushed off lightly,' considerable
anxiety normally attends the initiation and pendency of
criminal charges; hence only 'undue pressures' are
considered." Henson, 945 F.2d at 438 (citing Colombo, 852
______ _______
F.2d at 25 (stressing that "the standard here is
minimization, not necessarily elimination of the natural
consequences of an indictment")).
"Among the three interests safeguarded by the right
to speedy trial as guaranteed under the [S]ixth [A]mendment,
'the most serious is [protection against impairment of the
defense] because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.'"
Barker, 407 U.S. at 532 (citations omitted). There is no
______
indication here that the period of pretrial delay interfered
in any way with Santiago's ability to present evidence or
obtain the testimony of witnesses, or that it had any impact
on the fairness of his trial. See Colombo, 852 F.2d at 25-
___ _______
26. Accordingly, this paramount interest in no way favors
Santiago's claim of constitutional impairment.
-29-
29
We conclude, applying Barker's balancing test, that
______
Santiago's constitutional right to a speedy trial was not
violated.
B. Santiago's Due Process Right to Present Witnesses in His
Santiago's Due Process Right to Present Witnesses in His
Own Defense
Own Defense
Finally, Santiago contends that the district
judge's strongly worded advice to defense witness Wanda
Caceres concerning her right not to incriminate herself
exerted such influence on her so as to prevent her from
freely choosing whether to testify or not, in violation of
Santiago's due process right to present witnesses in his own
defense. See Washington v. Texas, 388 U.S. 14, 19 (1967)
___ __________ _____
("Just as an accused has the right to confront the
prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to
establish a defense. This right is a fundamental element of
due process of law.").
On January 30, 1996, Santiago called his stepmother
Wanda Caceres to the witness stand. Before she could take
the stand, however, the district court warned her of her
right to refuse to testify because of the possibility that
she might incriminate herself. The court stated, inter alia:
-- Caceres, I want to advise you -- and
listen to me carefully because this may
have serious -- I would say severe
consequences for you. Listen to this,
what I'm going to tell you.
-30-
30
If you're going to testify what Mr.
Arroyo said you would, then I have to
warn you that you will be incriminating
yourself and you will be violating two
statutes: One will be accessory after the
fact, and I'm going to read to you. It
says: Whoever, knowing that an offense
against the U.S. has been committed,
receives, relieves, comforts or assists
the offender in order to hinder or
prevent his apprehension, trial or
punishment is an accessory after the
fact.
And listen to this carefully, listen
to the penalty. I'm going to read to you
the pertinent provision. In this case
the maximum possible penalty is life for
the defendant, life imprisonment, and the
. . . statute says that whoever is an
accessory after the fact exposes himself
or herself as follows: If the principal
is punishable by life imprisonment or
death, the accessory -- that means you --
shall be imprisoned not more than 15
years.
. . . .
So that's one of the offenses that
you will be committing if you testify --
if -- I mean that can be charged against
you by incriminating yourself.
Second, there's another offense. A
mis -- there's -- there's a misprision of
a felony, and I'm going to read it to
you. Whoever, having knowledge of the
actual commission of a felony, conceals
and does not as soon as possible make
known the same to some judge or other
person in civil or military authority
under the United States, shall be fine
[sic] under this title or imprisoned not
more than three years or both. It seems
to me that it is my duty as a judicial
officer to advise you, to warn you, that
if you testify pursuant to what Mr.
Arroyo said -- and that's your decision -
- you will be incriminating yourself
-31-
31
under oath in a record, and you may be
exposed to 15 years in prison up to the
maximum and also three years but [sic]
misprision of a felony which might be
served concurrently. But with your
testimony on the record, that will be
enough to take it to a grand jury to
obtain an indictment against you, and you
will be a defendant in this court. And
under the sentencing guidelines you will
most probably have to do time, serve time
in jail. And there is no parole, no
probation.
. . . .
So I want to warn you again for the
last time so that if you do this you will
do this knowingly and willfully and after
having been advised about your -- your
right not to be incriminated [sic]
against yourself, but of course that is
your decision. My duty is to advise you,
to forewarn you about it. If you want to
talk to your lawyer, I will give you an
opportunity to talk to him."
. . . .
But -- let me put on the record
again it is your own decision. I'm not
coercing you into not testifying. I'm
telling you may [sic] testify if you
wish. If you wish to testify that's
fine. You just go ahead and testify.
I'm simply telling you the consequences
that might ensue, and I underline the
word "might," not that they "shall."
After giving this warning, the court appointed an
assistant federal public defender to advise Caceres regarding
her right not to incriminate herself. Caceres consulted with
this lawyer and then decided not to testify for Santiago.
Santiago insists that, although the court had wide
discretion to warn a witness of the constitutional right not
-32-
32
to testify, it went too far in this instance. See United
___ ______
States v. Arthur, 949 F.2d 211, 215-16 (6th Cir. 1991). ("An
______ ______
abuse of that discretion can occur, however, when the
district court actively encourages a witness not to testify
or badgers a witness into remaining silent.")
Santiago argues that Caceres's testimony would have
supported the defense theory that he was not a knowing and
willing participant in the criminal venture, but rather was
"merely present" at the scene of the crime. The witness,
according to Santiago, was privy to post-offense
conversations between the codefendants, and was entrusted
with the purchase of airline tickets for them to leave the
island. Caceres's testimony, Santiago says, would have shown
that both Esquilin and Ramos had admitted that they had
participated in the offense, and had indicated that Santiago
was not a participant.
In Webb v. Texas, 409 U.S. 95, 98 (1972) (per
____ _____
curiam), the Supreme Court said, respecting a judge's warning
to a witness not to perjure himself, that:
in light of the great disparity between
the posture of the presiding judge and
that of a witness in these circumstances,
the unnecessarily strong terms used by
the judge could well have exerted such
duress on the witness' mind as to
preclude him from making a free and
voluntary choice whether or not to
testify.
-33-
33
Santiago likens the judge's comments here to those
in Webb, pointing to the fact that Caceres had come to court
____
to testify on the defendant's behalf, and declined to do so
only after the judge's lengthy and allegedly intimidating
warning. The district court, Santiago concludes, should have
put the more immediate interests of the defendant on trial
and those of the general public in the fullest disclosure of
the relevant evidence before the protection of the
volunteering witness in this case.
It is true that the court's admonition to the
witness here was relatively detailed and strongly stated.
However, the court was careful to emphasize that the witness
could testify if she wished, and we do not believe that what
was said came even close to exerting "such duress on the
witness's mind as to preclude [her] from making a free and
voluntary choice whether or not to testify." Id.
___
In Webb, the trial judge apparently suspected that
____
a prison inmate called as defendant's sole witness was bent
on perjury. The judge admonished him that if he lied, the
court would "personally see that your case goes to the grand
jury and you will be indicted for perjury and the likelihood
[sic] is that you would get convicted of perjury and that it
-34-
34
would be stacked on to what you already got."7 Id. at 95-96.
___
No such threat, or threat of any type, was made here.
Rather the court sought to advise this uncounseled
witness of her constitutional right to avoid self-
incrimination, having learned from defense counsel that she
proposed to give testimony of an obviously incriminating
nature. A further difference between this case and Webb is
____
that, here, the court ultimately provided the witness with
counsel with whom she conferred privately before making her
____________________
7. The trial judge admonished the defense witness as
follows:
Now you have been called down as a witness in this
case by the Defendant. It is the Court's duty to
admonish you that you don't have to testify, that
anything you say can and will be used against you.
If you take the witness stand and lie under oath,
the Court will personally see that your case goes
to the grand jury and you will be indicted for
perjury and the likelihood [sic] is that you would
get convicted of perjury and that it would be
stacked onto what you have already got, so that is
the matter you have got to make up your mind on.
If you get on the witness stand and lied, it is
probably going to mean several years and at least
more time that you are going to have to serve. It
will also be held against yo in the penitentiary
when you're up for parole and the Court wants you
to thoroughly understand the chances you're taking
by getting on that witness stand under oath. You
may tell the truth and if yo do, that is all right,
but if you lie you can get into real trouble. The
court wants you to know that. You don't owe
anybody anything to testify and it must be done
freely and voluntarily and with the thorough
understanding that you know the hazard you are
taking.
Webb, 409 U.S. at 95-96 (internal quotation marks omitted).
____
-35-
35
decision whether to testify. The provision of counsel helped
assure that Caceres's decision was made voluntarily, in her
own interest, rather than being the product of judicial
coercion.8 The court took pains here to emphasize that
Caceres could testify if she wished. The Webb judge's sparse
____
comments along similar lines were weakly stated and were
overshadowed by the court's threats to proceed against the
witness for perjury if he took the stand.
Santiago also relies upon the Sixth Circuit's
Arthur decision. Unlike Webb, Arthur involved a judicial
______ ____ ______
warning to a witness about Fifth Amendment rights. The
____________________
8. After Caceres received advise from Assistant Federal
Public Defender Carlos Vazquez, the following exchange took
place:
"MR. VAZQUEZ: Your Honor, we have talked both with Mr.
Arroyo and the witness in this case. We have once again
explained to her her rights and the possible or probable
consequences of testifying or not testifying. And after
this discussion this witness has opted not to continue
testifying in this case.
THE COURT: She will not testify? She hasn't testified
at all.
MR. VAZQUEZ: Then she will not testify.
THE COURT: Very well. Let me ask you, did you heard
[sic] counsel, what he said?
WANDA CACERES: Yes.
THE COURT: And what is your decision?
WANDA CACERES: Not to testify.
THE COURT: Very well. You're excused. You may step
down."
-36-
36
witness, however, had his own attorney and stated to the
district court, after being advised of his rights, that he
wanted to testify in order to clear the defendant. Arthur,
______
949 F.2d at 214-15. Instead of acquiescing, the court
continued to warn the witness of the adverse consequences of
testifying, finally saying, "I think it's not in your best
interest to testify because anything you say may be held
against you in another prosecution against you for bank
robbery, could and would be used against you." Id. After
___
that, the witness changed his mind about testifying.
The Sixth Circuit, citing Webb, held that it was an
____
abuse of discretion for a judge to repeatedly inform the
counseled witness, after the witness had stated that he
wanted to testify following an initial warning, of his right
to remain silent and that to testify was against his
interest. Id. at 216.
___
In the present case, there was no repetition of
warnings after an informed announcement of an intent to
testify, nor did the court keep insisting on a decision not
to testify, as was done in Arthur. To the contrary, the
______
district judge made the following statement:
But I -- let me put on the record
again it is your own decision. I'm not
coercing you into not testifying. I'm
telling you may testify if you wish. If
you wish to testify that's fine. You
just go ahead and testify. I'm simply
telling you the consequences that might
-37-
37
ensure, and I underline the word 'might,'
not that they 'shall.'
We conclude that Caceres was not "badgered" by the
court into declining to testify. Rather, the district
judge's warnings were meant to strengthen rather than to
weaken the voluntariness of Caceres's choice by informing her
of the risks inherent in her proposed testimony and of her
constitutional right not to testify.
In doing this, the judge might understandably be
concerned lest the uncounseled Caceres be manipulated
unfairly by defendant, to her own great disadvantage.
Providing Caceres with access to a public defender before she
took the stand further assured that her decision whether or
not to testify would be an informed and voluntary one. A
judge is entitled to make sure a witness understands her
Fifth Amendment rights. While different trial judges might
handle the matter differently, we see no impropriety in the
court's conduct, and no duress precluding a free and
voluntary choice. To the contrary, the court sought to
facilitate the ability of the witness to make an informed
choice free from coercion by the defendant or anyone else.
We conclude there was no error in the character of
the warnings given to Caceres by the district court in this
case. While the judge's language was forceful, he made it
clear that she was free to testify and we may presume that
her provided counsel confirmed that right. We conclude that
-38-
38
Santiago's due process right to present witnesses in his own
defense was not compromised by Caceres's voluntary decision
not to take the stand, and that the court's handling of the
matter was within its discretion.
Affirmed.
________
-39-
39
