733 F.

2d 837
15 Fed. R. Evid. Serv. 1319

UNITED STATES of America, Plaintiff-Appellee,

v.
Madeline RUBIN, Defendant-Appellant.
No. 83-5104.

United States Court of Appeals,

Eleventh Circuit.
June 4, 1984.

Mark King Leban, Miami, Fla., for defendant-appellant.

Gregory Weiss, Norman Moskowitz, Sonia Escobio O'Donnell, Nancy
Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before GODBOLD, Chief Judge, and TJOFLAT and HENDERSON,
Circuit Judges.
ALBERT J. HENDERSON, Circuit Judge:

Madeline Rubin appeals her convictions on charges of conspiracy to import into

the United States approximately 2,748 grams of cocaine and of possession with
intent to distribute that cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 21
U.S.C. Secs. 952(a) and 953. She assigns error (1) to the district court's refusal
to dismiss the indictment with prejudice under the terms of the Speedy Trial
Act, and (2) to the limitation of her attorney's cross-examination of a
government witness, and the restriction of the direct examination of a defense
witness. After a thorough examination of the record and relevant case law, we
find no error by the district court and affirm.

The facts of this case are not in dispute. In early September, 1981, Rubin and
her co-defendant, Jorge Lago, arranged for Janine Ann Buhler, an acquaintance

of Rubin, to accompany them on a trip to Peru for the purpose of bringing

cocaine back into the United States. They remained in Peru for eleven days.
During their stay, Lago acquired the cocaine, after which all three used some of
the drug.
3

On September 27, 1981, Lago, Rubin and Buhler flew from Peru to Miami
International Airport. Once there, Lago and Rubin passed through customs
without incident. When Buhler reached the customs checkpoint, she was
searched and five pounds of cocaine was discovered strapped to her body. She
was arrested and charged with importation of cocaine and possession of cocaine
with intent to distribute.

Buhler subsequently entered into a plea bargain with the government whereby
she agreed to plead guilty to Count One of the indictment if the government
would dismiss Count Two. Buhler also consented to testify before the grand
jury and at the trial of Rubin and Lago. No agreement was reached with respect
to the type or length of sentence.

Buhler initially testified before the grand jury on December 21, 1981. Largely
in reliance on that testimony, an indictment was returned against Rubin and
Lago on January 18, 1982. Rubin was arraigned on January 28, 1982. On
March 1, 1982, the assistant United States Attorney assigned to the case
learned that Buhler had lied to the grand jury concerning her motive in going to
Peru. Eight days later, the assistant United States Attorney informed the court
of Buhler's perjury. Twenty-five days later, he furnished the same information
to Rubin's counsel. On March 25, 1982, Rubin filed a motion to dismiss the
indictment because of this perjured testimony. The motion was granted on June
7, 1982.

On June 21, 1982, Buhler appeared once again before the grand jury, admitted
her perjury during her first appearance, and told the "true" reason for her trip to
Lima. On that date, the grand jury returned a second indictment charging Rubin
and Lago with the identical offenses set forth in the first indictment.

On August 3, 1982, Rubin filed a motion to dismiss the second indictment,

claiming that the government had failed to bring her to trial within 70 days of
her arraignment in violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et
seq. She alleged that the 70-day period commenced to run with her arraignment
under the first indictment. Her counsel pointed out that 189 days had elapsed
since her initial appearance on the first indictment on January 28, 1982.1 The
district court agreed and held that the Speedy Trial Act's 70-day period for the

commencement of Rubin's trial began to run on January 28, 1982. The court
then addressed whether the second indictment should be dismissed with or
without prejudice. After reviewing the factors outlined in 18 U.S.C. Sec.
3162(a)(2),2 the court dismissed the second indictment without prejudice. A
written order to that effect was entered on August 12, 1982.
8

On August 23, 1983, the grand jury returned a third indictment charging the
identical acts contained in the first two indictments. Rubin attempted three
times to have this indictment dismissed for violation of the Speedy Trial Act,
but was unsuccessful each time.

On November 24, 1982, both Rubin and Lago were placed on trial. The jury
found the defendants guilty on both counts. Rubin was sentenced to two seven
year concurrent prison terms.

I.
10

Rubin's first assignment of error focuses on whether the district court abused its
discretion in dismissing the second indictment without prejudice. The district
court specifically considered the factors enumerated in 18 U.S.C. Sec. 3162(a)
(2) in reaching the decision to dismiss the indictment without prejudice.

11

First, the court found the offenses charged to be serious. The evidence shows
that Rubin played an active and major role in the crimes. She made the initial
contact with the carrier Buhler, she traveled to the source country to help
arrange the transfer of cocaine, and she was present on the carrier's return flight
to the United States. Hence, the serious nature of the crime and her significant
participation in its commission certainly weighs heavily in favor of dismissal
without prejudice.

12

The court next considered the circumstances which led to the dismissal of the
indictment. From our reading of the transcript of the dismissal hearing, it is
evident that the district court mistakenly assumed that the 70-day time limit for
the second indictment began running from the date of Rubin's arraignment on
the first indictment--January 28, 1982. Counsel for the appellants urged that the
interval between January 28, 1982, and the date of the dismissal of the first
indictment should have been counted along with the time running from the date
of return of the second indictment. According to Rubin, 189 days had elapsed
from the date of her first court appearance in January, 1982. The district court
agreed with this computation.

13

Counsel and the district court overlooked the fact that the first indictment had

13

Counsel and the district court overlooked the fact that the first indictment had
been dismissed on the motion of the defendant, thereby triggering the
commencement of a new 70-day time limitation.3 Where an indictment is
dismissed on the motion of the defendant, or for reasons other than the motion
or request of the government, the 70-day time period begins to run anew with
the return of a superseding indictment. See, e.g., United States v. Dennis, 625
F.2d 782, 793 (8th Cir.1980); United States v. Sebastian, 428 F.Supp. 967, 973
(W.D.N.Y.), aff'd, 562 F.2d 211 (2d Cir.1977), aff'd without opinion, 578 F.2d
1372 (1978).

14

Here, after the first indictment was dismissed at the instance of the defendant,
the second indictment was returned on June 21, 1982, and Rubin was arraigned
on that indictment on July 9, 1982. The July 9, 1982, arraignment was the
beginning of the critical period for purposes of determining whether or not to
grant the defendant's motion to dismiss the second indictment. Had this date
been used in calculating the speedy trial restrictions on the second indictment, it
could not have been dismissed, because there were only 24 non-excludable days
between the date of arraignment on the second indictment and the dismissal of
that indictment.4

15

There was honest confusion as to the correct starting point for counting the
non-excludable days for speedy trial purposes. Because of this error, the second
indictment was unnecessarily and improperly dismissed. This circumstance
preponderates heavily in favor of the government and against dismissal with
prejudice of the second indictment.

16

The last statutory factor gives emphasis to the impact of reprosecution on the
administration of the Speedy Trial Act and on the administration of justice.
Rubin claims that the prosecutor's conduct in waiting for twenty-five days to
inform her of Buhler's perjury demonstrated a disregard for the stated purposes
of the Speedy Trial Act and, in turn, for her rights to an expedited trial. The
policy considerations behind the Speedy Trial Act are protection of the rights of
defendants and promotion of the interest of society in the prompt disposition of
criminal cases. For these reasons alone, we believe that the integrity of this
legislative mandate must be guarded with zealous attention. Although these
objectives are paramount, we feel that the reprosecution of Rubin had little
impact either on the Speedy Trial Act or on the administration of justice. The
delay in bringing Rubin to trial was minimal, and no prejudice resulted
therefrom. Moreover, since Rubin's crime was undoubtedly serious, it would
not have been in the interest of justice to dismiss the indictment with prejudice
where there was no showing that Rubin suffered more harm than accrued to her
by virtue of having been originally charged with the crime.

II.
17

Rubin complains that the district court improperly restricted her crossexamination of Buhler and impaired any meaningful attack on Buhler's
credibility through a defense character witness.

18

Where the credibility of a witness is placed in issue, the district court has broad
discretion in determining the extent to which cross-examination may exceed the
scope of direct examination. United States v. Thetford, 676 F.2d 170, 183 (5th
Cir.1982) (en banc), cert. denied, 459 U.S. 1148, 103 S.Ct. 790, 74 L.Ed.2d
996 (1983).5 A trial court's decision on cross-examination will not be disturbed
on appeal absent an abuse of discretion. United States v. Tolliver, 665 F.2d
1005, 1008 (11th Cir.), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d
455 (1982).

19

The limitations imposed on the cross-examination of Buhler concerned matters

about which she had previously testified: her perjury before the grand jury; her
plea agreement with the government; her lies to customs officials, agents of the
Drug Enforcement Agency and the prosecutor; her prior drug use; and her
sentence. Further evidence along these lines would have been merely
cumulative so there was no abuse of discretion in the restriction of the
repetitious questions. United States v. Diecidue, 603 F.2d 535, 552 (5th
Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980);
accord, United States v. Goodman, 605 F.2d 870, 880 (5th Cir.1979) (no abuse
of discretion in limitation of cross-examination where the substance of the
desired impeaching information had already been given to the jury).

20

The trial court also acted correctly in sustaining objections to defense counsel's
argumentative, redundant and sometimes speculative questions. The court's
exercise of control over such interrogation is wholly contemplated and
sanctioned by Federal Rules of Evidence.

21

During the direct examination of Victoria Avrutis, a defense witness, Rubin

sought to introduce into evidence certain letters containing references to
Buhler's past "fantasies." Rubin also sought to elicit testimony about a drug
overdose by Buhler unrelated in time to the criminal incident at issue in this
case. The district court precluded this evidence pursuant to Rule 608(b) of the
Federal Rules of Evidence which provides:

22 Specific instances of conduct. Specific instances of the conduct of a witness, for

(b)
the purpose of attacking or supporting his credibility, other than conviction of crime

as provided in rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness, be inquired into
on cross-examination of the witness (1) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being crossexamined has testified.
23

Both the letters and the testimony of drug overdose constitute specific instances
of conduct unrelated to truthfulness and were thus properly excluded by the
court.

24

Avrutis was called to testify solely as to Buhler's bad character. The court
permitted the "character" testimony, but did not permit questions about specific
instances of Buhler's conduct--the "fantasy" letters and a drug overdose. The
court's application of Rule 608(b) did not unduly restrict the testimony of the
witness.

25

We AFFIRM the judgment of conviction.

18 U.S.C. Sec. 3161(c)(1) provides in pertinent part:

(c)(1) In any case in which a plea of not guilty is entered, the trial of a
defendant charged in an information or indictment with the commission of an
offense shall commence within seventy days from the filing date (and making
public) of the information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such charge is pending,
whichever date last occurs.

18 U.S.C. Sec. 3162(a)(2) provides in pertinent part:

If a defendant is not brought to trial within the time limit required by section
3161(c) as extended by section 3161(h), the information or indictment shall be
dismissed on motion of the defendant. The defendant shall have the burden of
proof of supporting such motion but the Government shall have the burden of
going forward with the evidence in connection with any exclusion of time under
subparagraph 3161(h)(3). In determining whether to dismiss the case with or
without prejudice, the court shall consider, among others, each of the following
factors: the seriousness of the offense; the facts and circumstances of the case
which led to the dismissal; and the impact of a reprosecution on the
administration of this chapter and on the administration of justice. Failure of the
defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to dismissal under this section.

18 U.S.C. Sec. 3161(d)(1) provides in pertinent part:

If any indictment or information is dismissed upon motion of the defendant, or
any charge contained in a complaint filed against an individual is dismissed or
otherwise dropped, and thereafter a complaint is filed against such defendant or
individual charging him with the same offense or an offense based on the same
conduct or arising from the same criminal episode, or an information or
indictment is filed charging such defendant with the same offense or an offense
based on the same conduct or arising from the same criminal episode, the
provisions of subsections (b) and (c) of this section shall be applicable, as the
case may be.

The government inaccurately recites the date of Rubin's arraignment and the
number of days between that arraignment and the filing of Rubin's motion to
dismiss on Speedy Trial Act grounds. According to the record on appeal, the
controlling events are:
June 21, 1982 Second Indictment Returned
July 9, 1982 Arraignment
August 3, 1982 Motion to Dismiss Filed
August 8, 1982 Hearing on Motion to Dismiss
August 12, 1982 Indictment Dismissed Without
Prejudice
Under 18 U.S.C. Sec. 3161(h)(1)(F), the period of delay resulting from the
filing of the motion to dismiss on August 3, 1982, is excluded in computing the
time within which the trial must commence. Therefore, the period from July 9,
1982, to August 3, 1982--24 days--is the relevant time here.

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc ), the
Eleventh Circuit Court of Appeals adopted as precedent the decisions of the
former Fifth Circuit issued before October 1, 1981