ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Adams and Garth, Circuit Judges, and Gerry, District Judge*fn*
In these appeals, Alphonso Brooks and Charles Reed, the appellants, challenge their convictions for participating in a conspiracy to manufacture and distribute controlled substances. They raise two primary contentions: that their rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were violated by the district court's sua sponte decision to grant a continuance, and that there was a fatal variance between the conspiracy charged in the indictment and that proved at trial. After considering these issues, and the appellants' other contentions, we conclude that all their claims are without merit and that the convictions should be upheld.
The indictment in this case charges that a number of persons engaged in a single conspiracy to manufacture and distribute methamphetamine, a non-narcotic controlled substance, in violation of 21 U.S.C. § 846. One member of the group, Robert Barron, became a government witness and the other nine were indicted. Barron appears to have been the chief distributor. He received the drugs from two sources: from Reed, one of the appellants here, and from Rick Jones. Brooks, the other appellant, worked with Jones as a chemist, helping to manufacture the drugs and to obtain the needed supplies. The other defendants were distributors of the drugs; none of them has appealed.*fn1
On August 5, 1981, the appellants and their seven co-defendants were indicted. The appellants were charged in the conspiracy count only. Five days after the indictment was filed, the defendants were arraigned. On September 8, counsel for Reed moved to extend the time for filing pre-trial motions. This motion was granted on September 29. On October 1, the court sua sponte ordered a further continuance, concluding that the "ends of justice" served by granting the continuance outweighed the interest of the defendants and the public in a speedy trial because of the complicated nature of the case and the fact that one of the defendants had not yet obtained counsel. A trial date of February 16, 1982 was eventually set.*fn2 Prior to trial, counsel for both Brooks and Reed moved to have the case dismissed for violation of the Speedy Trial Act. These motions were denied by the district court, and the case proceeded to trial before a jury. Both Brooks and Reed were found guilty.
Brooks and Reed each raise several challenges to his conviction. Although we have considered all of their claims, only two will be discussed in detail. They first argue that the court's sua sponte continuance deprived them of their rights under the Speedy Trial Act. Second, they allege that the proof adduced at trial did not establish that Reed was part of the same conspiracy as Brooks and Jones; rather, appellants claim that they were two separate and competing drug manufacturers. Inasmuch as the indictment charged a single, unified conspiracy, Brooks and Reed assert that this was a prejudicial variance which warrants setting aside their convictions.
Since the defendants were arraigned on August 10, 1981, if no time were excluded between that date and the date of trial, the Speedy Trial Act would have required trial to commence no later than October 19, 1981 -- seventy days from the date of the arraignment. See 18 U.S.C. § 3161(c). On October 1, 1981, the district court granted the continuance that is at issue here, and the trial did not begin until February 16, 1982 -- 190 days after the defendants' first appearance in court. Brooks and Reed argue that the delay time caused by the continuance is not excludible under the Act, because the district court did not properly set forth its reasons for granting the continuance. Even if the court's statements explaining the delay do satisfy the statute's procedural requirements, the appellants further contend that the reasons set forth by the trial court are substantively insufficient to justify a continuance. If they are correct, the statute would make it necessary to dismiss the indictment against them. We reject both of their arguments, however, and hold that the delay caused by the continuance is properly excluded under the Act, and that the reasons given by the district court are sufficient.
Congress enacted the Speedy Trial Act to "give effect to the Sixth Amendment right to a speedy trial" by setting specified time limits after arraignment or indictment within which criminal trials must be commenced.*fn3 H.R. Rep. No. 1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S. Code Cong., & Ad. News 7401, 7402. A defendant must be brought to trial within seventy days following his indictment or first appearance before the court, whichever occurs later. 18 U.S.C. § 3161(c).*fn4 If this deadline is not met, the Act requires the district court to dismiss the indictment, either with or without prejudice. 18 U.S.C. § 3162(a) (2). Certain periods of delay are excluded from the calculation of the seventy-day time limit, including "any period of delay resulting from a continuance . . . 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). The Act provides that the district court may grant such a continuance sua sponte. Id.
The district court is required to set out its reasons for granting an "ends of justice" continuance on the record, either orally or in writing. 18 U.S.C. § 3161(h) (8) (A). If this is not done, the time is not excludible. See United States v. Carrasquillo, 667 F.2d 382, 385-88 (3d Cir. 1981); United States v. New Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir. 1979). The Act lists some of the factors the court is mandated to consider when deciding whether such a continuance should be granted:
(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, ...