*1 drugs by tiоn of children, school pro- The judgment of the District Court is scription of within sales the environs of affirmed. schools is a rational of reducing means risk easy availability that can lead to acquisition.
such isNor the statute constitutionally vulner- able because of appellant’s doubt that the penalties
increased will in practice any add incremental deterrence to that arising from already penalties substantial Congress has selling narcotics. Con- America, UNITED STATES of Appellee, gress is entitled to higher penalties add v. hope of providing deterrence, further NIXON, Michael whether or not much success is thereby Defendant-Appellant. Appellant’s achieved. final process due No. Docket 85-1002. challenge alleges 1,000-foot demar- cation line is not sufficiently Court of Appeals, ascertainable by the average person. Second Since the Circuit. statute violated whether or not the seller knows he Argued June within prohibited zone, United States Decided Falu, Dec. supra, argument has no force. And since protected there is no right to sell anywhere,
narcotics there need be no сon- cern for person who removes selling activity a considerable distance from a school in order to avoid the risk of 1,000-foot within the zone.
Agilar also challenges section 845a equal protection grounds on the strained theory statute has a disproportion
ate impact on members of minorities, racial more of live, whom asserted, it is within 1,000 feet of schools than do non-minority
residents, a smaller proportion of whom
live in densely populated urban areas. The argument fails, among reasons, other lack of claim, much showing, less of a discriminatory purpose. Washington See Davis, (1976). L.Ed.2d 597
Finally, appellant challenges his conviction on ground that the District Judge, in discussing evidence, on two
occasions noted a “doubt” concerning the probative force of Ortiz’s identification tes
timony. However, Judge Sweet Agi- found guilty lar and obviously considered the to tality of the evidence dispel sufficient to
any reasonable doubt. His candor in com menting on the evidence is no basis for rejecting his ultimate assessment of it.
BACKGROUND May, Makba, Habib an informer
for the United Drug Enforcement (“DEA”) Pakistan, Administration approached by Haqdad Khan, Pakistani, possibility about the importing two kilo- *3 grams of herоin the United into States. Khan told Makba the heroin was for buyers two in days California and two later prospective identified these buyers Roy- as al Franklin Gasso and Michael Nixon. Khan gave also phone Nixon’s California number and address to Makba. Makba reported this information to DEA agents in agreed Pakistan and carry the heroin to the United States part of an undercover Nooter, H. City, Thomas New York scheme. defendant-appellant. May, Later in Makba received the Rose, two Charles E. Atty., Asst. U.S. E.D. kilograms of heroin (Raymond Dearie, from Khan’s N.Y. J. brother. Atty., U.S. E.D. On June N.Y., he Smith, and, Jane to New Simkin flew York Atty., Asst. U.S. E.D.N.Y., after checking Brooklyn, N.Y., Holiday Inn, into counsel), a appellee. phone several calls by which were recorded agents.
DEA The first call was to Nixon FRIENDLY, Before gave OAKES and who in turn WIN- a number at Makba TER, Judges. Circuit Khan, States, in now the United could be reached. arranged Makba then for Khan WINTER, Judge. Circuit Royal and Gasso to come to New York to pick up the heroin. Michael Nixon appeals from his convic- by tion jury a possess conspiracy Khan and delivery Gasso took heroin, intent to distribute 21 U.S.C. 846 heroin at videotaped a mеeting in Makba’s (1982); aiding abetting and importation hotel They room. subsequently were ar- States, heroin into the United 21 U.S.C. agreed rested and cooperate with the 952(a), 960(a)(1), 2; and §§ 18 U.S.C. § government. Khan, Gasso accompa- and aiding and abetting and possession of her- by nied agents, DEA flew to California via distribute, oin with the intent to 21 U.S.C. in Denver order to conduct a controlled 841(a)(1)and 18 2. Nixon U.S.C. delivery of the heroin to Nixon. Before sentenced to five-year prison concurrent during and trip, Gasso made a series of count, terms on each and concurrent ten- Nixon, calls tо also recorded. Nixon stated year special parole terms on counts two that he had made a plane reservation for and three. name, Gasso in a fictitious and made state- that, argues ments (i) admission,
Nixon on appeal that: own peri- od of time between to indicate arraignment knowledge and concern- “seem[ed] purpose trial was impermissibly long original trip under the Gasso’s Act, 3161-3174; Trial New York.” Brief of Appellant at 6. Af- §§ (ii) prejudiced arriving California, his trial ter in erroneous Gasso and the agents statements arranged witness that to meet Nixon at a local previously (iii) Nixon had jail; been in and restaurant. Nixon came to the restaurant improperly the trial court hearsay admitted but left when he company saw in the Gasso below, evidence. For the reasons stated of others. He was arrested after he left we affirm. the restaurant. the same a different June, ance before Nixon’s between order to accommodate both Gas- his trial case. beginning of arrest and scheduling the court’s of one of and point so’s counsel’s is the focal October Nixon, Khan conflicts, trial was set for the week Gasso Gasso’s appeal. on claims Nixon June 22. Nixon moved October indicted on October July but court of a viola- appeared his indictment because
first dismiss A not by counsel. unrepresented This Speedy Trial Act. motion tion of the only his behalf 23rd, entered on plea parties guilty on the and all was denied coun- appearance with his first delayed until agreed that the trial would be sel. panel Nixon’s jury a new was available. began on October 30. trial pre- on various July 27 conference
At a motions, attorney requested Nixon’s his claim that appeal, Nixon renews government’s in the discovery of evidence arraignment between opposition to expressed *4 possession also statutory right speedy to a trial violated pass- Nixon’s for government demand a two incidents He also raises error trial. attorney was the request, port. At his first in- place at his The that took trial. in a memorandum to submit granted leave on direct statements Makba volved two opportunity subsequent with a opposition, in that Nixon had once been examination papers respond. No to governmеnt for the charges. on heroin-related jail Pakistan however, passport was the filed, were a Telex intro- The other claim relates to August 9. over on voluntarily turned government on cross-examina- duced the witness, which the de- of a defense conference, tion July 27 Nixon’s Also at hear- improperly admitted fense was claims to file a his intention attorney indicated issues say We consider these evidence. deposition. The foreign a motion to take seriatim. out that pointed prosecutor court and time-consuming procedure would be
such a rogatory. of letters the use and involve DISCUSSION intention, in his persisted Speedy Trial Claim 1. The trial, however, and, consequence, the as a requires that a Trial Act August The for had been which scheduled brought to trial with- be criminal defendant postponed. or “the days seventy indictment August 28 another conference a appeared before has date the defendant in- reaffirmed Defense held. counsel officer,” is later. whichever judicial A foreign deposition. to take tention 3161(c)(1). specified The Act lists U.S.C. § then aban- September was date of trial time рeriods in which circumstances later, August days Three doned. running of the excluded from the must be position, stat- counsel reversed “clock.” speedy trial seventy-day planned to longer take he no seventy-day limit 3161(h)(l)-(9). If the imme- He demanded an foreign deposition. required to dis- exceeded, the trial court is however, govern- then, By trial. diate indictment, preju- without with or miss the to getting problem witnesses ment had a 3162(a)(2). court’s discretion. § dice during the week York from Pakistan New September 3. A trial date September Speedy Trial Starting of A. then set. 10 was Clock Sep- Nevertheless, begin did not trial July 6 in court on appeared Nixon first Gasso unex- 10. Co-defendant tember by counsel and represented not but to not go to trial and decided pectedly ap- first plea. He enter a not thus did re- government. This with the cooperate July at which counsel peared with Gasso’s problems. created several versal Appellant ar- pleaded guilty. he time unavailable, per- first due attorney was judi- before “appeared on the gues, based appear- due to his later problems and sonal language cial officer” 3161(c)(1), day counted, first to be United States July appearance speedy started the Simmons, 530 n. 1 trial clock. Cir.1985),the clock July started on began Nixon’s trial on October 30. An examination of the leg relevant Thus, the period relevant computation history islative reveals that the statutory of the seventy-day limit July 14-October begin only intended an after 29, a total of days. must appearance We at therefore guilty which a not plea has periods consider which are excludable from been entered. Congress believed it would the speedy trial clock. require be wasteful begin planning when it was still B. Uneontested Excludable Periods possible that a might plead defendant guilty or nolo contendere. As the House Nixon concedes the excludability of cer stated, Report tain periods. time First, he concedes that the date on pretrial motions arraignment, After a defendant is re- decided, filed and is excludable as a quired brought to be to trial within 60 “delay resulting pretrial from any motion, days place at a within the set district from filing through motion language court. This was substitut- conclusion of on, the hearing or other original ed for that оf the provi- Senate prompt disposition of, such motion.” sion, again request at the of the Justice 3161(h)(1)(F). Nixon also Department. con purpose of the amend- cedes that the September 10- begin ment is to the running of the time *5 14 is During excludable. period this co-de logical point limits from a in the proceed- fendant Gasso’s counsel was unavailable ings. At [arraignment], the defendant is due to an illness in family, delay required plead to charge to the contained attributable to a co-defendant is an information or indictment. The speedy trial time as to all dеfendants. Department pointed out that it would be Piteo, United 50, States v. (2d 726 F.2d 52 a judicial waste of require resources to Cir.1983), denied, cert. 905, 466 U.S. 104 the courts to schedule trials at the time 1682, 80 (1984); L.Ed.2d 156 filing of the United indictment, of an due to the Barton, States 224, v. (2d 229 n. 5 possibility that the may defendant choose Cir.), denied, 857, cert. 454 U.S. 102 S.Ct. plead to either guilty or nolo conten- 307, 70 (1981). L.Ed.2d 152 Finally, dere, Nixon thus making trial unnecessary. also concedes that period from October The Committee believes that provi- this 24-29 properly parties excluded. The sion is more consistent with the goals of agreed to postpone the during trial 3161(a), Section which requires the court time so that a jury panel new would to be set trial for day either a certain or on available. a weekly or other short-term calendar. The scheduling of trials for defendants These periods uncontested total twelve who will ultimately plead guilty only days, reducing the pretrial period relevant serves to make more difficult the sched- to 96 days, virtually all of which is contest- uling of trials for those who will demand ed. We now consider certain periods time them. that are excludable and quantitatively suf- ficient H.R.Rep. dispose to 1508, No. 93d Cong., issue. 2d Sess. reprinted in 1974 Cong. U.S.Code & Ad. July 28-August C. 10 News Moreover, 7423. the statute expressly applies only to cases in which At the pretrial 27 motions pleas of not guilty have been entered. hearing, See government made an oral mo 18 3161(c)(1). It evident, there- tion for surrender of passport. Nixon’s fore, that the July plea 13 started the pretrial Oral motions the record Speedy Trial Act clock in this case. Be- are considered purposes motions for day cause the after the triggering 3161(h)(1)(F). event is Cobb,
131 only period through consider (2d Cir.1982). and we Nixon’s 43 F.2d rеcord, According to grant- September 9. and was this motion opposed counsel delay the order of excludable judge the issue. entered file a brief on permission ed followed, section, the motions filing pursuant schedule Had 3161(h)(1)(F). Although Au- not con- concluded we are have been briefing would pe- expeditious” appropriate most “reasonably that this was the 10. This vinced gust partic- un- been excludable to exclude these then have under which riod would section Simmons, F.2d at 3161(h)(1)(F). ample basis days, we believe there ular der § However, were filed papers excluding no them and the in the record for August passport on 28-August 30 as well. August surrendered Nixon argues that the fact government conference, Nixon’s coun- July 27 At the not alter compliance does voluntary for- to take a announced intention sel July 28-Au- period from excludability of the judge on the eign deposition, and the stated never noti- counsel gust 9 because no that there was that he assumed record change position. of his fied the court of this getting to rush in Bufalino, In United States August 13 was request. The trial date denied, Cir.1982), cert. reg- postponed. Defense counsel then (1983), L.Ed.2d 103 S.Ct. August 28 disagreement. At the no istered during lengthy a held excludable (trial we conference, Nixon’s local counsel responded to a not had defendant de- Japan) reiterated the counsel jury. sequester motion to deposi- foreign intention to fense’s take that, given volume of noted The court stated, “So, judge response, tion. caseload, must defendants criminal [Sep- Tuesday get the trial on we’ll for to the court known positions their make “I responded, tember 4].” The court concluded scheduling purposes. might also so,” that he adding don’t think Bufalinо it be unfair soon up on information to follow want court of notifying the by” without “stand government. be “reap the benefit and then position to make the counsel Nixon’s then directed period counted by having the inaction” taking of the necessary motions *6 Bufalino, speedy trial clock. against the another stated that foreign deposition and case, we be In this F.2d at 645-46. August Friday, on would occur conference unfair, Nix given equally be lieve it would court of his notify the failure to on’s date, reversed Nixon’s counsel that On retro for him to benefit changed position, take a plan to the position, abandoned of voluntary surrender the actively from demanded instead foreign deposition, and the Thus, hold excludable passport. we the de- Although he blamed speedy trial. August and days between thirteen comply failure to government’s lay the found requests, the court discovery tactics. to defense attributable that it was 27-September 9 August D. delay has stated: The court “[T]he re counsel August defense On out in California co-counsel by your caused mo newed, granted, a the trial judge and [Germany] to going he was who insisted discovery mate сompel disclosure tion government attor- deposition.” The take under day This rials. the court informed earlier ney, who had 3161(h)(1)(F). need that he counsel defense and change in trial dates notice of advance conferences Following pretrial travel accom- arranging in problems due rescheduled judge 28 and August witnesses, indicated certain modations an September 10 and entered trial for getting problems have he would Au that days from excluding the eleven order were if trial from Pakistan parties witnesses September 10. 31 to gust 3; September in the to later week moved 10 must be excluded September that agree therefore, the 10th was chosen as the new defendant or an essential witness.” trial date. 3161(h)(3)(A).1 U.S.C. § propriety excluding the period E. October 22-23 August light 28-30 is clear in of the de- fense’s regarding foreign conduct depo- October Nixon moved to sition. Defense counsel had been on dismiss his record indictment because of a for more than Trial planning a month Act to take violation. On October deposition, that argument court heard the trial date Au- on and denied this gust 13 had been postponed motion.2 accordingly. days These two are thus excluda- Had defense counsel ble 3161(h)(1)(F). under reaffirmed the intention to deposition take a foreign at the F. Conclusion August agreed conference and that the imminent trial date was therefore inappro- Appellant contests the excludability of priate, trial would have Sep- commenced on periods, several other particularly the time argues tember 4. Nixon now delays that in September 14 to October light 22. In discovery caused foregoing determinations, however, postponement. cause of the However, consideration of arguments these is unnec- explicitly district court stated that the essary. The excludable time totals 41 September 4 date was abandoned because days, meaning appellant brought of the proposed foreign deposition, and de- to trial at worst days within 67 after the fense counsel himself declared his readi- start speedy of the trial clock. proceed ness to August as of 31. Defense counsel fully aware August 28 that 2. The Pakistani Jail Statement the district court was postponing Sep- Nixon also claims that preju he was tember trial date as a repre- result of his diced an erroneous statement made dur sentations about the foreign depositions. testimony of Habib Makba. With Appellant may not profit now from the the aid of an interpreter, Makba testified district amenability court’s to giving the about his own undercover in involvement prepare time to its case. We be- scheme, the heroin in both Pakistan lieve this stronger to be an even case for Early States. in testimony Mak- excludability than Bufalino, ba said he had Royal heard Gasso and fact delay that the in the instant case was Michael Nixon had been arrested for heroin the consequence of what essentially an smuggling and had met while jail explicit request by defense, whereas testimony Pakistan. This came as a sur merely silence. involved Bufalino prise parties to all and apparently was in
We correct. After believe the objected also cor *7 rect in the excluding admission of period the this testimony, from Septem the ber suggested 1-9. Because of the an unavailability of instruction to disregard, the and Pakistani resulting witnesses from de moved for a fense counsel’s earlier mistrial. The motion for a announced unreadi mistrial was go denied, ness to and to trial instead September 4, the instructed the jury disregard to completely was testimony: the under 3161(h)(3)(A),which excludes delay due gentlemen Ladies and of the jury, you to “the absence or unavailability of the disregard, will your strike from minds According 3161(h)(3)(B), to an wit- essential her to14 October 22 was excludable “in the ness is unavailable "whenever his whereabouts justice.” 3161(h)(8)(A). interests 18 presence are but known for trial cannot be This determination is ineffective in of our diligence obtained ing due appear- or he resists Tunnessen, decision in United v. States 763 F.2d at or returned for trial.” (2d Cir.1985), 74 which hоlds that to be effective findings such contemporaneous must be with 2. denying dismiss, the motion to the court delay. finding entered a that the Septem- from
133 co-defendant; insufficient instruction other witness testimony of this any entirely however, Here, prejudice). prevent to Mr. Nixon. any arrest of respect to to strike disregard and to jury was told your minds from that will strike You any testimony about an their minds never been testimony had though the required thus and were arrest of Nixon presented. gymnastics,” any “mental see engage in to Makba, thereafter, was hav- who Shortly 1006, F.2d 1007 States, 54 v. United Nash re- understanding English, trouble 556, denied, U.S. 52 Cir.), 285 (2d cert. having Nixon about peated the statement (1932), such as 457, L.Ed. 945 76 instructed judge again jail, and been purpose one but considering evidence Nixon appeal, disregard it. to jury readily is distin This case not another. cautionary instructions contends that Puco, 453 v. States guishable from United his convictions that inadequate Nixon Cir.1971), upon (2d 539 F.2d prejudicial of the because be reversed must relies, found the court heavily where also issue sole The statements. those effect probative value that the minimal in- therefore, whether us, before 21-year-oldnar of the defеndant’s evidence any prej- to obviate sufficient struction emphasized conviction, repeatedly cotics Nixon. udice trial, in im throughout the the prosecution have of the trial conduct credibility was so the defendant’s peaching not been these statements had improved effect in prejudicial outweighed by its far might cautionary instruction made, and the that its admis for a similar offense his trial apparent lack have noted well court defendant’s by the trial over sion statements, even for the in fact basis reversal. objection warranted pretrial an such request for though Nixon no that the suggestion Further, is no there Nevertheless, we believe observation. Makba’s aware of even government was in by the protected adequately Nixon it belief, much less that erroneous of instruct practice given. The struction The statement deliberately elicited. testimony disregard improper ing jury to difficulty Mak- attributable primarily established. See necessary and well We understanding English. having ba was 490, 503 Bynum, v. States United instruction court’s that the hold therefore remanded Cir.1973), (2d vacated any prejudice that remedy was sufficient 903, 94 S.Ct. grounds, other may have occurred. F.Supp. 449 modified, 386 41 L.Ed.2d denied, F.2d cert. (1974),aff'd, 513 Containing Telex Introduction 46 L.Ed.2d 952, 96 S.Ct. U.S. Statements Prior Makba’s Burton, F.2d (1975); United States case, part of As Cir.1975); (2d 19-20 Pakistan, agent Bowe, a DEA Cir.1974). Harlan Bell, discrediting Mak- hope of in the called pic was motion like conducted cannot be Trials testimony. Makba had ba’s rerun are scenes productions which ture Bowe, “Michael” description of a one are perfectly, and all mistakes done until “sub- Chaman, employee or an one while cutting room floor. left Makba’s, given a different had source” upon heavily rеlied most cases suggest hoped to thus The defense one. po- to consider instructions involved Nixon after the gone had the DEA jury that pur- one evidence for tentially prejudicial *8 wrong “Michael.” pur- other it for disregarding while pose cross-examination, government States, See, v. United e.g., Bruton poses. suggestion that the to refute 1620, 1622, sought 20 126, 123, 88 S.Ct. U.S. 391 To wrong Michael. pursued the had DEA (1968)(holding unconstitution- 476 L.Ed.2d a telex end, as evidence offered it admitting confession practice of al named agent in Pakistan DEA from a instructing jury to while co-defendant one on infor- was based telex McCarthy. as to incriminating implications disregard 134 mation McCarthy had received from (refusing Makba Oates; to follow admitting IRS and contained Nixon’s address and tele- agent’s report phone call under Rule
phone number.
objected
When the defense
803(5)),
denied,
943, 100
cert.
to the
of this
introduction
as inad-
evidence
1338,
(1980).
ods Kenneth Richard findings un- Hawkins; Matteson; appropriate remand David Duncan Austin; Irwin; Thomas Simmons, E. John James der Brock; Bernard; Gamboa; John Steven Cir.1985). 529, 531-32 Robinson; Dor Trepus; Robert Marvin Joseph Bryant; Lashley; Cal Fred Passero; Hilden; drillo; Robert Walter Domish; Chessler; Steve Frank Arthur Jоhnson; Roaldson; Richard Robert Voth; Mietzner; Lomen Donald John Nelson; Anderson; Harry zo; Thomas Steinforth; Short; Marjorie
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