United States v. Santiago-Becerril

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1937

UNITED STATES,

Appellee,

v.

BENIGNO SANTIAGO-BECERRIL, a/k/a BENNY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lagueux,* Chief District Judge.

Jorge L. Arroyo-Alejandro with whom Rachel Brill were on brief

for appellant.
W. Stephen Muldrow, Assistant United States Attorney, with whom

Nelson Perez-Sosa, Assistant United States Attorney, and Jose A.

Quiles-Espinosa, Senior Litigation Counsel, were on brief for the

United States.

November 20, 1997

*Of the District of Rhode Island, sitting by designation.

CAMPBELL, Senior Circuit Judge. Defendant-

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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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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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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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

The Speedy Trial Act ("STA"), 18 U.S.C. 3161 et

seq. (1985), is designed "to protect a defendant's

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.

1993) (citing United States v. Noone, 913 F.2d 20, 28 (1st

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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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).

In calculating the seventy days the STA excludes certain time

periods. See 18 U.S.C. 3161(h)(1)-(9) (1985); see also

United States v. Sposito, 106 F.3d 1042, 1043 (1st Cir.

1997); United States v. Thurlow, 710 F. Supp. 380, 381 (D.

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

1043; Thurlow, 710 F. Supp. at 381.

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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findings and de novo as to legal rulings. See United States

v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir. 1995). We

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

motion for a continuance of trial)

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

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).

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

Santiago's arraignment and detention hearing on that day.

See 18 U.S.C. 3161(h)(1) (1985).

Santiago contends that the period from November 10,

1994 up to and including November 21, 1994 is non-excludable.

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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

agree that December 2, 1994 was excludable, a pretrial

conference being held on that day. See 18 U.S.C.

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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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,

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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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-

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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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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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

government's motion for a continuance of

trial)

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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excludable days yields a new total of twenty-four non-

excludable days.

c) March 14, 1995 to October 18, 1995

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.

See United States v. Spring, 80 F.3d 1450, 1457-58 (10th Cir.

1996); United States v. Jones, 56 F.3d 581, 585-86 & n.10

(5th Cir. 1995); United States v. Lattany, 982 F.2d 866, 868

(3d Cir. 1992); Rush, 738 F.2d at 508. But see United States

v. Jordan, 915 F.2d 563, 565-66 (9th Cir. 1990) ("The Speedy

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

open-ended continuance may, therefore, bring to bear a factor

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of "reasonableness." See Lattany, 982 F.2d at 868 ("[O]pen-

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

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

2. Many of the records relating to the transfer proceedings
do not appear in the record before us.

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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.

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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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

(Esquilin's motion for a change of plea)

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.

Rojas-Contreras, 474 U.S. 231, 240 (1985) (Blackmun, J.,

concurring); United States v. Karsseboom, 881 F.2d 604, 606-

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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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

v. Ortiz, 23 F.3d 21, 27-28 (1st Cir. 1994); Torres Lopez,

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

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

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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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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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

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

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

Santiago, dealt with a motion that did not require a hearing,

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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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

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

sets forth a better reasoned view than the one we take.

Citing to 3161(h)(8)(C), the Thurlow court ruled that a

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

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),

which is more in harmony with the intent behind the STA.

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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

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.

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,

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

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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.

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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,

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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

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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."

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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.

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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.

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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)).

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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.

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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.

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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

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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

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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.

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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

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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).

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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."

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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

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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

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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.

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39