818 F2d 276 United States of America v. John Lofranco

818 F.2d 276

UNITED STATES of America, Appellee,
John LoFRANCO, Defendant-Appellant.

No. 975, Docket 86-1183.

United States Court of Appeals,
Second Circuit.

Submitted April 13, 1987.
Decided May 6, 1987.

Gary L. Sharpe, Asst. U.S. Atty., Binghamton, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., of counsel), for appellee.

Joseph M. Flak, Boston, Mass., for defendant-appellant.

Before VAN GRAAFEILAND, PRATT, and MINER, Circuit Judges.


view counter

John LoFranco appeals from a judgment of conviction entered following his guilty plea to three counts of a six count indictment. He claims violations of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., and, by virtue of a court-ordered amendment to his indictment, of his fifth amendment right to indictment by a grand jury. Finding no merit in either contention, we affirm.


First, we agree with the eleventh and fifth circuits, which have held that "violations of the defendant's rights to a speedy trial" are nonjurisdictional and therefore waived by a guilty plea that does not include a court-approved reservation of the issue. Tiemens v. United States, 724 F.2d 928, 929 (11th Cir.), cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (1984); see United States v. Jackson, 659 F.2d 73, 74 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1637, 71 L.Ed.2d 870 (1982).


In holding that LoFranco's guilty plea waived any Speedy Trial Act objections he might have had, we do not imply that there was a violation of the act. We do note, however, that Chief Judge Munson's order of September 26, 1985, excluding from computation under the act all time from that date until trial pursuant to Sec. 3161(h)(8), could be interpreted as allowing virtually unlimited delays. We assume that this order was made in anticipation of a particular trial date, thus limiting what might otherwise be a boundless exclusion of time that could undermine the purposes of the Speedy Trial Act. We remind district judges that the length of an exclusion under Sec. 3161(h)(8) for a "complex" case, 18 U.S.C. Sec. 3161(h)(8)(B)(ii), should reasonably be related to the actual needs of the case, and should not be used either as a calendar control device or as a means of circumventing the requirements of the Speedy Trial Act.


LoFranco also contends that the indictment against him was impermissibly amended when the district court granted the government's motion to amend the indictment by substituting "Schedule II" for "Schedule III" where it appeared in connection with the charges that LoFranco had dealt in methamphetamines. As a mere error in citation which worked no prejudice on LoFranco, this amendment was permissible under Fed.R.Crim.P. 7(c)(3).