United States v. Thomas

¶4ERVIN, Circuit Judge:

¶5Kenneth Ward Thomas and John David Curtis were convicted on substantive charges of possession and importation of marijuana, and on related conspiracy and aiding and abetting counts, in violation of *71021 U.S.C. §§ 841(a)(1), 846, 952(a), 960, and 963, and 18 U.S.C. § 2. They originally were arrested by the Coast Guard while aboard the trawler GULF PRINCESS II off Hilton Head, South Carolina. Thomas was the master of the vessel and Curtis, along with one Kenneth Gorman, comprised the crew. When the vessel was stopped, there were indications that the trawler had not been engaged in fishing: there was neither catch nor ice to preserve a catch. A small quantity of a substance later identified positively as marijuana was found scattered on the deck, on the rails, along the gunnels, and on the bumpers. The stop and arrest were made pursuant to information obtained by the Drug Enforcement Administration that the GULF PRINCESS II was engaged in smuggling drugs from South America to South Carolina.

¶6Pursuant to a grant of immunity, Gorman testified to a federal grand jury that prior to its seizure, the trawler had sailed to South America and picked up a load of marijuana, which it brought back to South Carolina waters where the marijuana was off-loaded. A commercial fisherman named Gordon Hastings told the grand jury that he encountered the GULF PRINCESS II off the coast of Columbia twenty days before its seizure by the Coast Guard, and that it had not appeared to him to be engaged in fishing or shrimping.

¶7When neither Gorman nor Hastings could be found to testify at the trial of Thomas and Curtis, the district court permitted their grand jury testimony to be introduced. The jury found Thomas and Curtis guilty of all charges in the bills of indictment. On appeal, Thomas and Curtis maintain that their convictions were secured in contravention of the Speedy Trial Act, 18 U.S.C. § 3161et seq. (1982), the confrontation clause of the sixth amendment, the federal hearsay rule, and the due process clause of the fifth amendment. We find no reversible error, and affirm.

¶8I.

¶9Thomas and Curtis were arrested on August 30, 1980. The Speedy Trial Act of 1974, as amended in 1979 (“the Act”), required the government, therefore, to secure an indictment by the end of September. See 18 U.S.C. § 3161(b) (indictment must be filed within thirty days of arrest). The Government failed to do this and instead moved for additional time on October 1, after the expiry of the statutory time period. The additional time granted the government pursuant to this motion also ran out on November 12 without an indictment being returned. On November 13, the government once again sought, and secured, a grant of additional time after the period in which it was required to act had elapsed. On December 2, a federal grand jury indicted Thomas and Curtis, who promptly moved to dismiss the indictment on speedy trial grounds. This motion was granted by the district court without prejudice, and on the same day, February 4, Thomas and Curtis were reindicted.

¶10On appeal, the government apparently challenges the propriety of the dismissal of the original indictment.1 We need not reach this issue in light of our conclusion that the subsequent indictment was timely, notwithstanding the claim by Thomas and Curtis that the dismissal of the first indictment precluded their reindictment by another grand jury. The Act requires dismissal of untimely indictments, but leaves to the district court’s discretion the decision whether to dismiss with or without prejudice. 18 U.S.C. § 3162(a)(1). We think that this statutory authority to dismiss an untimely indictment without prejudice necessarily rebuts appellants’ argument that the timeliness of any subsequent indictment *711is to be measured by reference to the original arrest leading to the first, dismissed indictment. This argument leads inexorably to the conclusion that any subsequent reindictment would be untimely, and thereby renders all dismissals prejudicial in effect. Our reading of the Act is supported by the Guidelines to the Administration of the Speedy Trial Act prepared by the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. The Committee’s view is that a new prosecution is not “subject to dismissal on the basis of any failure to comply with the time limits imposed upon the original prosecution.” Guidelines 68 (as amended August, 1981). See also United States v. Rabb, 680 F.2d 294, 297 (3d Cir.1982), cert. denied, -U.S.-, 103 S.Ct. 162, 74 L.Ed.2d 135 (1982) (subsequent timeliness of indictment not measured from date of first arrest or charge); United States v. Borum, 544 F.Supp. 170, 172 (D.D.C.1982) (dismissal of complaint tolls Speedy Trial Act thirty day requirement for indictments).2 We agree.

¶11II.

¶12The government’s case against Thomas and Curtis rested largely on the testimony of the two men, Gorman and Hastings, who testified before the grand jury but not at trial, but whose grand jury testimony was read into the record before the jury. Neither Gorman nor Hastings could be located at the time of the trial. Thomas and Curtis claim that the government’s attempts to locate these key witnesses were perfunctory and insincere and that the grand jury testimony should have been excluded, with the consequent collapse of the government’s ease. They maintain that its admission violated the rule against hearsay and denied them their sixth amendment right to confront the government’s witnesses.

¶13Both the appellants and the government agree that United States v. West, 574 F.2d 1131 (4th Cir.1978), governs this issue. In West, this court sustained the admission of the grand jury testimony of a witness who was murdered before the trial. The testimony was admitted pursuant to Federal Rule of Evidence 804(b)(5), which permits the introduction of hearsay if the declarant is unavailable as a witness and the court determines that the hearsay has “circumstantial guarantees of trustworthiness” equivalent to those present in Rule 804’s specific exceptions to the prohibition on hearsay (former testimony subject to cross examination, dying declarations, statements against interest, and statements of family history). In West, the court foimd that the temporal proximity of the witness’s testimony to the events he saw and the corroboration of his testimony by that of others constituted the necessary “circumstantial guarantees of trustworthiness.” In a companion case, United States v. Garner, 574 F.2d 1141 (4th Cir.1978), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978), we upheld a conviction based in part on the grand jury testimony of an alleged co-conspirator who refused to testify as a prosecution witness at trial despite an offer of use immunity. We went on in both cases to hold that the evidence thus admissible under the evidentiary rule was also admissible under the sixth amendment.

¶14It is clear from West and Garner that the grand jury testimony of an unavailable witness may be introduced under certain condi*712tions without violating the Constitution or the Federal Rules of Evidence. Thomas and Curtis maintain, however, that the government’s efforts to secure the live testimony of Gorman and Hastings were so perfunctory that the latter cannot fairly be described as unavailable. Rule 804 defines “unavailability as a witness” to include situations where the witness “is absent from the hearing and the proponent of his statement has been unable to procure his attendance. .. by process or other reasonable means.” Fed.R.Evid. 804(a)(5). The question, therefore is whether the government used “reasonable means” to procure the attendance at trial of Gorman and Hastings.

¶15The government maintained direct contact with Hastings, and contact through his lawyer with Gorman, for a considerable part of the period between their testimony before the grand jury and the trial. Hastings assured the Assistant U.S. Attorney that he would keep in touch, while Gorman’s lawyer, who had agreed to ensure his availability for the trial, testified that he had no indication Gorman would disappear. After the two men vanished, the government attempted in vain to locate them by service of process. While these attempts were unavailing, they were not unreasonable. We conclude therefore that the grand jury testimony of Hastings and Gorman was admissible under West and Garner.3

¶16III.

¶17The additional claims of Thomas and Curtis are without merit. The judgment of the district court is

¶18AFFIRMED.