Defendant Louis Tedesco and fourteen other persons were named in a seventy-nine count indictment charging them with conspiracy to distribute cocaine and other drug related offenses. The indictment was filed December 3, 1980, but numerous delays postponed Tedesco's trial until December 16, 1982. Defendant was convicted and sentenced to two years incarceration and four years probation. The sole issue on appeal is whether the delays violated defendant's rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161 et seq.

FACTS

The Speedy Trial Act requires the Government to bring a defendant to trial within seventy days of defendant's indictment or his initial appearance before a judicial officer, whichever occurs last. The Act provides for the exclusion of time from the seventy-day period in a number of circumstances. Defendant here concedes that only two days had run under the Act as of July 10, 1982.¹

The Government's evidence included tape recordings of conversations between the various defendants. Tedesco filed a motion seeking exclusion of these tapes under United States v. Santiago, 582 F.2d 1128 (7th Cir.1978). The court denied this motion on July 20, 1982, ending an uncontested period of exclusion under the Act. Defendant does contest the exclusion of subsequent delays, and we will concern ourselves solely with events occurring after July 20, 1982.

On July 20, 1982, co-defendant Browning filed a motion to dismiss alleging that the prosecution constituted double jeopardy as he had previously been prosecuted for his role in the conspiracy. The court denied the motion on July 28, the same day co-defendant Bounos filed a similar motion to dismiss. Browning renewed his double jeopardy motion on August 2. The court conducted a hearing on these motions on August 3. Trial of the five defendants who had not pled guilty or fled was set to begin the next day. The court expressed concern over the delays caused by Browning and Bounos and indicated that it would attempt to secure an expedited appeal of denial of the motions should Browning and Bounos seek interlocutory review. Counsel for Tedesco requested that her client be severed from Browning and Bounos and be tried with co-defendants Husted and Wagner. After some debate over the amount of time that would be required for separate trials, the court denied Tedesco's motion and reset the trial for November 8. The court then set a schedule for written defense motions to avoid any further delay.

Bounos filed a motion to delete prejudicial material on August 18. On August 22 the court denied the double jeopardy motions. Bounos and Browning filed an interlocutory appeal on September 1, which was denied ultimately by this court on November 3. In the meantime, on September 8 Tedesco filed a motion to exclude the tapes because they were unintelligible.

On November 4, 1982, the parties convened before the court. Defendant presented several pages of objections to the Government's transcripts of the recorded conversations. Browning announced that he intended to argue at trial that the conspiracy was a continuation of the previous conspiracy for which he had already been prosecuted, a defense aligned with the Government's contention that a conspiracy existed and antagonistic to the position of the other defendants. Browning also filed a second interlocutory appeal, which was dismissed on November 17. On November 10 Tedesco moved to dismiss the indictment because the delays had violated his rights under the Speedy Trial Act, and moved for severance and a separate trial because of Browning's hostile position. During a discussion on the severance claim counsel disputed the Government's trial estimates, but the court did not rule on the motion. On November 15 Bounos changed his plea to guilty. On November 18 the Government joined in Tedesco's severance motion, and the court severed Browning from Tedesco and Wagner, the two remaining defendants. The court reset the trial to December 6, 1982. Tedesco moved to delete racial slurs from the tape recordings and renewed his Santiago motion. On November 30 the court ruled on the admissibility of the tapes.

On December 6 the Government announced its intention of calling Bounos as an immunized witness. Obtaining Bounos' cooperation, however, took several days, and the court reset the trial date to December 16. On December 16, 1982, Tedesco's trial began.

EXCLUSION OF TIME UNDER THE SPEEDY TRIAL ACT

The Speedy Trial Act provides that a defendant must be brought to trial within seventy days from the date of indictment or the date of defendant's initial appearance before a judicial officer, whichever occurs last. 18 U.S.C. Sec. 3161(c)(1). However, subsection (h) provides that:

The following periods of delay shall be excluded in computing ... the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to--

* * *

* * *

(E) delay resulting from any interlocutory appeal;

(F) 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;

(3)(A) Any period of delay resulting from the absence or unavailability of the defendant or an essential witness.

* * *

* * *

(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.

(8)(A) Any period of delay resulting from a continuance granted by any judge ... 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.

The district court concluded that these exclusions covered most of the delays in bringing defendant to trial. Defendant here renews his claim that these exclusions, when properly applied, do not cover the delays. We will examine each major delay in turn.

The trial court concluded that periods during which pretrial motions and interlocutory appeals by Browning and Bounos were pending were properly excludable under Section 3161(h)(7) as reasonable periods 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." Defendant does not contest that reasonable delay caused by codefendants' motions and interlocutory appeals stops the clock for all defendants, United States v. Campbell, 706 F.2d 1138, 1141 (11th Cir.1983), nor does he claim that Browning's and Bounos' pretrial maneuverings did not stop the clock as to them. Rather, Tedesco claims that (h)(7) is inapplicable because he should have been granted a severance on August 3 and an immediate trial on August 4.

Rule 14 of the Federal Rules of Criminal Procedure grants the district court the discretion to order a severance if "it appears that a defendant ... is prejudiced by a joinder of ... defendants." Denial of a motion for severance will only be reversed for an abuse of discretion, which requires a showing of compelling prejudice. United States v. Butera, 677 F.2d 1376 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); United States v. Hedman, 630 F.2d 1184 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981); United States v. Crouch, 528 F.2d 625 (7th Cir.1976), cert. denied, 429 U.S. 900, 97 S.Ct. 266, 50 L.Ed.2d 184. In exercising its discretion the court should balance the interests of the defendant against the needs of judicial economy. United States v. Zicree, 605 F.2d 1381 (5th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

Defendant claims that the court was incapable of properly exercising its discretion because the Government misrepresented the amount of time separate trials of the various defendants would require. Tedesco claims that the Government informed the court that the separate trials would be quite lengthy, while privately informing his counsel that a trial of Tedesco alone would only take three days. This claim is unsupported by the record. During the discussion concerning Tedesco's August severance motion his counsel requested that he be tried with Husted and Wagner, not alone. Consequently, whatever the Government told Tedesco's counsel in November about the amount of time required to try defendant alone, and under different circumstances than those existing in August, is irrelevant. The differences between the Government's estimate in August and the estimates given on subsequent dates do not reflect intentional misrepresentations but rather the changing nature of the case as it dwindled from three defendants and many counts to only one defendant and three counts.

Defendant also claims that the delays caused by Bounos and Browning were not properly excludable under (h)(7) because their motions and interlocutory appeals were unreasonable, and the district court was therefore required to grant Tedesco a severance. We do not agree that the court was required to grant a severance in this situation. The Speedy Trial Act did not alter a trial court's function in ruling on a severance motion; the court must still balance the needs of each defendant against the needs of judicial economy. United States v. Varella, 692 F.2d 1352, 1359 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3542, 77 L.Ed.2d 1392 (1983). In this case the court could not prevent Browning and Bounos from presenting their double jeopardy motion as they did, but was limited to expediting the process as much as possible, which the court did. Under defendant's analysis the court, presented with this situation, would be required to grant a severance regardless of the amount of time that would be wasted by conducting separate, repetitive trials for each defendant, and regardless of how little prejudice the defendant would suffer from not obtaining a severance. We do not believe that the Speedy Trial Act hobbles multidefendant prosecutions in this manner.

Turning to the facts of this case, as viewed by the district court in August, we find no abuse of discretion in the court's denial of Tedesco's first severance motion. The only prejudice to defendant was that the subsequent delays caused by his codefendants were excludable under the Act, and the Government therefore did not have to bring Tedesco to trial immediately. Defendant has not demonstrated that the mere passage of time while the double jeopardy claims were litigated improperly prejudiced his case. Balanced against this is the large amount of time that would have been wasted had the Government been forced to present essentially the same evidence in two trials. In this situation the court properly refused to grant a severance.

Defendant does not claim that the district court or this court spent an unreasonable amount of time disposing of the double jeopardy claims, nor could he on the facts of this case. Accordingly, we find that the period during which Tedesco's codefendants' pre-trial motions and interlocutory appeals were pending was properly excluded under the Speedy Trial Act.

Section 3161(h)(1)(F) provides for the exclusion of "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." Defendant filed several pretrial motions after the initial interlocutory appeal was denied, including a motion to dismiss the indictment for violation of the Speedy Trial Act and a motion to sever because of Browning's antagonistic defense.

Defendant argues that the time spent with these motions should not be excluded because to do so would penalize him for asserting his rights under the Act. Whatever merit this argument may have as applied to the motion to dismiss, it has no merit when applied to the severance motion, which was premised on the antagonistic nature of Browning's defense.

Turning to defendant's motion to dismiss for violation of the Speedy Trial Act, which was pending longer than the severance motion, we believe that the weight of authority favors exclusion of this time. We recognize that the Second Circuit held that:

Delay occasioned by pendency sub judice of appellants' speedy trial motion is not chargeable against appellants because, as observed, in United States v. Didier, 542 F.2d 1182, 1188 (2d Cir.1977), to do so would "improperly penalize defendants for their invocation of speedy trial rules and run counter to the purpose of those rules."

United States v. New Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir.1979). In Didier the court refused to exclude a delay caused by a speedy trial motion under Rule 6 of the Southern District of New York's Plan for Achieving Prompt Disposition of Criminal Cases. While New Buffalo Amusement Corp. unhesitatingly applied Didier to the Speedy Trial Act, the Second Circuit appears to have reconsidered this position. In United States v. Bolden, 700 F.2d 102 (2d Cir.1983), the court held that Section 3161(h)(1)(F) excludes delay caused by "any" pretrial motion, and that "the delay resulting from a speedy trial motion is no different from that resulting from any other pretrial motion." 700 F.2d at 103. In so holding, the Second Circuit joined the Ninth and Eleventh Circuits in reading Section 3161(h)(1)(F) as it is written. As the court observed in United States v. Stafford, 697 F.2d 1368, 1372 (11th Cir.1983), "we need look no further than the explicit language of Section 3161(h)(1)(F), which excludes the period during the pendency of 'any motion.' A motion to dismiss--regardless of the grounds upon which it is based--is a motion like any other motion, and thus falls within the express exclusion of (F)." See also United States v. Arkus, 675 F.2d 245 (9th Cir.1982); Furlow v. United States, 644 F.2d 764 (9th Cir.1981), cert. denied, 454 U.S. 871, 102 S.Ct. 340, 70 L.Ed.2d 175. We agree with the court in Stafford that the strongest reason for rejecting defendant's policy argument is that: "Policy choices are for Congress to make. In the case of this issue, Congress has already made them." 697 F.2d at 1373. The district court correctly held that defendant's motion to dismiss stopped the running of the clock under the Act.

The final delay in bringing Tedesco to trial occurred because Bounos was unwilling initially to testify despite immunity from prosecution. Convincing Bounos to testify took ten days and delayed Tedesco's trial until December 16. The court found that this period was excludable under Section 3161(h)(8)(A), which allows exclusion of delay caused by 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." Defendant argues that the court's conclusion that the ten day delay served the ends of justice was erroneous because the delay gave the Government an improper tactical advantage by obtaining Bounos' testimony.

We have previously observed that the decision to grant a continuance under the Speedy Trial Act, and accompanying decision to exclude the delay under (h)(8)(A), is addressed to the discretion of the trial court. To obtain a reversal of the court's decision a defendant must show actual prejudice. United States v. Aviles, 623 F.2d 1192, 1196 (7th Cir.1980). A continuance granted to allow the Government to obtain a witness does not cause a defendant "prejudice" in the manner meant by the term in this context. Obviously Bounos' appearance worked to the disadvantage of Tedesco, but so did the introduction of other incriminating evidence. "Prejudice" is not caused by allowing the Government properly to strengthen its case, but rather by delays intended to hamper defendant's ability to present his defense. United States v. Dennis, 625 F.2d 782, 794 (8th Cir.1980); United States v. Johnson, 579 F.2d 122, 123-24 (1st Cir.1978). A defendant is not entitled to, and justice is ill-served by, a trial during which the Government is not able to present relevant evidence.

The Speedy Trial Act specifically excludes delays caused by the unavailability of an essential witness. 18 U.S.C. Sec. 3161(h)(3)(A). A recalcitrant accomplice such as Bounos is properly considered "unavailable" under the Act, and "essential" even when the Government could convict without his testimony. United States v. Marrero, 705 F.2d 652, 658 (2d Cir.1983). Although we see no reason why the delay could not have been excluded under Section 3161(h)(3)(A), we also see no reason why the court could not exclude the delay under (h)(8)(A). See United States v. Fielding, 645 F.2d 719 (9th Cir.1981) (continuance granted to obtain witness may be excluded under either (h)(3)(A) or (h)(8)(A)). Accordingly, we find no abuse of discretion in the court's grant of a continuance from December 6 to December 16.

CONCLUSION

We find that the periods of delay were properly excluded by the trial court in determining whether defendant's right to a speedy trial had been violated. Although over two years passed between defendant's indictment and his eventual trial, far fewer than seventy days elapsed under the Act. Defendant's conviction is therefore AFFIRMED.

[I]n evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it. 588 F.2d at 378 fn. 6 citing Hampton, 425 U.S. at 495-96 fn. 7, 96 S.Ct. at 1653 n. 7.

Applying that reasoning, the court in Twigg noted:

Hampton was concerned with the sale of an illegal drug, a much more fleeting and elusive crime to detect than the operation of an illicit drug laboratory. In such a situation the practicalities of combating drug distribution may require more extreme methods of investigation, including the supply of ingredients which the drug ring needs. 588 F.2d at 378 [Footnote deleted].

This case involves the sale of drugs and while Vanacora was an active participant we find his conduct neither extreme nor outrageous.

An additional argument of the appellants is that the dismissal/reindictment procedure utilized by the government in this case violated the Speedy Trial Act, 18 U.S.C. Sec. 3161, et seq. Subsection (h) of Sec. 3161 lists certain periods of delay which are to be excluded in computing the speedy trial deadlines, and subsection (h)(6) provides:

(6) If the information or indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.

Appellants contend that this subsection excludes the time period between a dismissal and reindictment only when the government has a good faith basis for the dismissal. The statutory language does not support this construction and no court has required such a showing from the government.¹ Rather, the courts have applied the provision as it is written with the only limitation being the omnipresent constitutional speedy trial considerations, see United States v. Hicks, 693 F.2d 32 (5th Cir.), cert. den., --- U.S. ----, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983); United States v. Rodriguez-Restrepo, 680 F.2d 920 (2d Cir.1982); United States v. Abernathy, 688 F.2d 576 (8th Cir.1982). The appellants have demonstrated no prejudice from the delay between the dismissal and the reindictment. They briefly suggest that the reindictment was motivated by the government's intention to retaliate against them for resisting conviction in a related case. However, the record provides no support for this contention, nor does it relate to any prejudice caused by the delay between dismissal and reindictment. They also note the pendency of a civil forfeiture proceeding relating to the money seized in this case, but again that allegation does not relate to speedy trial considerations.

Appellant Upton presents two additional arguments. He contends that the dismissal/reindictment procedure authorized by Sec. 3161(h)(6) violates his constitutional right to speedy trial as enunciated in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In that case, the Court addressed the constitutionality of a state procedure whereby the prosecutor could, by filing a nolle prosequi "with leave", indefinitely postpone prosecution of a defendant despite the objection of the accused. The Klopfer opinion stands for two major principles. The first is that the Speedy Trial provision of the Sixth Amendment applies to the states through the Fourteenth Amendment. The second aspect of the holding is that the nolle prosequi "with leave" violated the Speedy Trial provision of the Sixth Amendment. The first proposition is obviously unrelated to this case. The numerous distinctions between the dismissal/reindictment procedure and the nolle prosequi "with leave" renders the second proposition irrelevant. Under the North Carolina procedure discussed in Klopfer, once the petition for nolle prosequi "with leave" was granted the decision whether to proceed to trial was solely a matter in the prosecutor's discretion. There were no means by which the accused could compel the state to try him. Furthermore, the statute of limitations was tolled, thus creating the potential for a truly indefinite postponement of trial. The result was, as noted in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 1506, 71 L.Ed.2d 696 (1982), that the charges were never really dismissed. However, under the dismissal/reindictment procedure authorized by Sec. 3161(h)(6), the accused is protected by the Speedy Trial Act provisions, which apply to the new indictment, and the constitutional speedy trial considerations discussed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Therefore, we cannot conclude that the principles of Klopfer prohibit the procedure used in this case.

Upton's second contention is that the Speedy Trial Act represents an unconstitutional invasion upon the autonomy of the Judiciary by the legislative authority in derogation of the doctrine of the separation of powers.² While it is certainly refreshing to have a criminal defendant eager to defend the autonomy of the Judiciary, we conclude that we need not reach this argument. If we were to hold the Act unconstitutional, our analysis in this case would revert to the application of the constitutional speedy trial principles enunciated in Barker v. Wingo, supra and its progeny. However, we have already concluded that the appellants have failed to demonstrate that, under the facts of this case, the dismissal/reindictment procedure violated their constitutional rights to a speedy trial. Therefore, it would be superfluous for us to address the contention that the Speedy Trial Act unconstitutionally impairs the autonomy of the Judiciary.

For the reasons discussed above, the judgments of the district court are affirmed.

APPENDIX
      IN THE UNITED STATES DISTRICT COURT
         NORTHERN DISTRICT OF ILLINOIS
              EASTERN DIVISION
UNITED STATES OF AMERICA    )
                            )
            v.              )   

No. 80 CR 490
                            )
JOHN MAX BROWNING,          )     Honorable
JEFFREY DWIGHT UPTON,       )  Nicholas J. Bua,
AUGUST CARMAN MANNA, and    )     Presiding
MICHAEL ANASTACIOUS BOUNOS  )

John Browning, Jeffrey Upton, August Manna, and Michael Bounos (hereinafter referred to as defendants), have been charged by indictment of conspiring to possess with intent to distribute a Schedule II Controlled Substance, Cocaine, in violation of Title 21, United States Code, Secs. 841(a)(1) and (b). In addition, defendant Browning has been charged with the unlawful possession of a firearm during the commission of a felony in violation of Title 18, United States Code, Sec. 924(c)(2). This cause was tried to the Court sitting as the trier of fact on June 1, and 2, 1982. The Court accordingly makes the following findings of facts and conclusions of law.

FINDINGS OF FACT

1. On April 1, 1980, a meeting was conducted between Drug Enforcement Administration Agent Joseph Vanacora (hereinafter "Agent Vanacora") and Defendant Bounos. At this meeting, Agent Vanacora represented himself to be a distributor of cocaine. Defendant Bounos represented himself to be an interested prospective buyer. The subject of this meeting was the purchase of cocaine by Defendant Bounos from Agent Vanacora. In the course of this meeting, Defendant Bounos questioned Agent Vanacora concerning the price, purity, and quality of cocaine which could be purchased. Agent Vanacora expressed an interest in selling, and Defendant Bounos an interest in purchasing, approximately 10 kilos of cocaine at a price of $50,000 per kilo. This meeting took place at Bennigan's Restaurant in Oak Brook, Illinois (hereinafter referred to as Bennigan's). Defendant Bounos invited Agent Vanacora to meet again at Bennigan's on April 4, 1980.

2. On April 4, 1980, a meeting was conducted between Agent Vanacora and Defendants Bounos and Manna at Bennigan's. Defendant Bounos reiterated his interest in purchasing a large quantity of cocaine, but stated that he would have to first raise the money. Defendant Manna stated that "probably in time they might be able to arrange the financing." Defendant Bounos then inquired about purchasing smaller amounts of cocaine, and/or purchasing the cocaine at its source, in order to reduce the total cost. Agent Vanacora indicated that he would be interested in selling quantities of cocaine in smaller amounts and that it could be arranged to be transferred at its source, however, he insisted that he see the purchase money (hereinafter referred to as a "flash roll") in Chicago. Agent Vanacora obtained Bounos' and Manna's telephone numbers at this time.

3. Between April 4, 1980 and June 4, 1980, Agent Vanacora attempted to contact Defendants Bounos and Manna by telephone on numerous occasions. Many of these attempts to contact the defendants were unsuccessful. Agent Vanacora did, however, meet with Defendants Bounos and Manna three or four times during this period. Defendants were unable to produce the "flash roll" as requested by Agent Vanacora. In late May, 1980, the investigation was closed because of the limited activity that had taken place. An additional meeting was arranged to take place, however, on June 4, 1980 between Agent Vanacora and Defendants Bounos and Manna.

4. On June 4, 1980, Defendants Bounos and Manna met with Agent Vanacora at a Poppin Fresh Restaurant in Villa Park, Illinois. Further discussions were had concerning the sale and purchase of cocaine. Defendant Bounos informed Agent Vanacora that he had acquired enough money to purchase one kilo of cocaine. Agent Vanacora informed Defendant Bounos that the price would be $60,000 per kilo if purchased in a quantity of less than ten kilos, and Defendant Bounos replied that he would have the money in a few days. Subsequent to this meeting, several telephonic communications took place between Agent Vanacora and Defendant Bounos. During a June 30th conversation, Defendant Bounos stated that it was important that he meet with Agent Vanacora immediately.

5. On July 1, 1980, Agent Vanacora met with Defendant at his residence in Bloomingdale, Illinois. At this meeting, Defendant Bounos informed Agent Vanacora that he had $40,000 available for the purchase of cocaine and inquired if he could purchase less than one kilo. Agent Vanacora responded that he would not sell a quantity less than one kilo and suggested that Defendant Bounos obtain backers or other interested purchasers to complete the transaction.

6. On July 11, 1980, another meeting was arranged and conducted at Defendant Bounos' residence. The subject of this meeting was whether Agent Vanacora would be willing to meet some individuals who would be interested in financing the purchase of cocaine. Agent Vanacora agreed to meet with these individuals whenever Bounos and Manna arranged a meeting.

7. On July 21, 1980, Agent Vanacora again met with Defendant Bounos at his apartment. At this meeting, Defendant Bounos assured Agent Vanacora that his financial backers were trustworthy and that they would be interested in purchasing three kilograms of cocaine.

8. On July 24, 1980, Agent Vanacora met with Defendants Bounos and Manna at Hobo's Restaurant in Oakbrook Terrace, Illinois. Defendant Browning also participated in this meeting and represented that he was interested in purchasing cocaine and that he could purchase ten kilograms per order. A discussion followed concerning the quality and appearance of the cocaine, and Agent Vanacora again insisted that he be shown the "flash roll" prior to delivery. Browning stated that he wanted to purchase three kilos if he could obtain a reduction in price. Agent Vanacora and Defendant Browning agreed to make further arrangements and meetings through Defendants Bounos and Manna.

9. On August 14, 1980, Agent Vanacora met with Defendants Manna, Browning, and Upton at Mr. Hobo's Restaurant. Browning introduced Upton as his partner. Upton acquiesced in this description. The meeting continued in Defendant Manna's vehicle. At this time, Browning asked the price of three kilos of cocaine, and Agent Vanacora stated that the price would be $59,000 per kilo. Vanacora also added that Defendants Bounos and Manna were to each receive $10,000 for setting up the transaction. Defendant Browning objected to this, it was finally agreed by Defendants Manna, Browning and Upton that Manna and Bounos would receive three ounces of cocaine. The price per kilo was then reduced to $54,500. Browning stated that he would have the money in four or five days. Additional discussion was had over where the exchange would take place.

10. On August 19, 1980 at 5:00 P.M., Manna met Agent Vanacora at Bennigan's. Manna informed Agent Vanacora that Browning and Upton were waiting at a pre-arranged location. Vanacora and Manna discussed Upton and Browning's business relations, and Manna stated that to his knowledge they were only partners in the cocaine "business." Upon their arrival, Upton exited a parked vehicle carrying two suitcases. Subsequently, Browning entered this vehicle, removed an object, and placed it in his waistband. All entered Agent Vanacora's vehicle and Agent Vanacora then drove in the general vicinity. Browning informed Agent Vanacora that he had $86,000 with him. Agent Vanacora and Browning had a discussion about the amount of cocaine to be purchased. Browning then placed an attache case upon his lap and Upton assisted him in displaying the "flash roll." This case was then passed to the front seat to enable Manna to show Agent Vanacora the contents. Further discussion was had concerning the amount of cocaine to be purchased. Defendants then agreed to complete the transaction the following Friday at 7:00 A.M. Agent Vanacora then drove to the original meeting place and gave a pre-arranged arrest signal. Vanacora arrested Browning, retrieved a Colt .45 from Browning's waistband, and turned Defendant Browning over to the surveillance agents. Agent Magrames arrested Defendant Manna, and Agents Tucci and Lopez arrested Defendant Upton.

11. The Court finds that the transactions described were simple in nature and that Agent Vanacora's ability to recall the events was excellent.

12. The Court finds that Agent Vanacora's conduct in pursuing this investigation was not so outrageous as to shock the Court's sense of fairness. In addition, the Court finds that all of the defendants, based upon their willingness to participate in this scheme, were predisposed to engage in an agreement to purchase a controlled substance.

13. The Court finds that the defendants, each of them, had entered an agreement to purchase a controlled substance, cocaine.

14. The Court finds that defendants intended to purchase the quantities of cocaine desired for distribution.

CONCLUSIONS OF LAW

1. In order to establish violations of Title 21, U.S.C. Sec. 846, the government must prove beyond a reasonable doubt that an agreement exists between two or more persons to commit offenses under the Controlled Substances Act.

2. In order to establish violations of Title 21, U.S.C. Sec. 846 which prohibits conspiracies to violate the act, the government need not prove an overt act in the furtherance of the conspiracy. U.S. v. Cartwright [Cortwright ], 528 F.2d 168, 172 (7th Cir.1975).

3. The fundamental element of a conspiracy is an agreement between two or more persons. The government need not prove the formalities of the agreement and the existence of the agreement and the conspiracy may be proven by circumstantial evidence. U.S. v. Page, 580 F.2d 916 (7th Cir.1978); Young v. U.S., 444 U.S. 994 [100 S.Ct. 530, 62 L.Ed.2d 425] (1979).

4. In addition, where there is an overall agreement among the parties to perform different functions in order to carry out the objectives of the conspiracy, the agreement of the parties constitutes a single conspiracy. U.S. v. Varelli, 407 F.2d 735 (7th Cir.1969).

5. The Court finds that the government has proven beyond a reasonable doubt that each of the defendants was involved in a conspiracy to knowingly and intentionally possess with intent to distribute cocaine, a Schedule II Controlled Substance in violation of Title 21, U.S.C. Sec. 841(a)(1).

6. The Court finds that the clandestine nature of the activities of defendants, and the amount of money involved in the agreement to purchase, supports the inference beyond a reasonable doubt that defendants were conspiring to purchase a controlled substance. In addition, the Court finds that, as a matter of law, defendants' impossibility defense is inapplicable. U.S. v. Ouijada [Quijada], 588 F.2d 1253 (9th Cir.1979). See also: U.S. v. Wornock, 595 F.2d 1121 (7th Cir.1979); U.S. v. Tramonti [Tramunti], 513 F.2d 1087 (2nd Cir.1975).

7. The Court finds that as a matter of law Agent Vanacora's activities in connection with this investigation do not violate our due process notions of fundamental fairness, nor do they shock our sense of justice. U.S. v. Russell, 41 U.S. 423 [93 S.Ct. 1637, 36 L.Ed.2d 366] (1973).

8. The Court finds that all of the defendants were predisposed to commit the offense charged, that Agent Vanacora merely afforded defendants the opportunity to commit the offense, and that therefore the defense of entrapment fails as a matter of law. See generally: U.S. v. Guevara, 598 F.2d 1094 (7th Cir.1979).

9. The Court denies Defendant Browning's motion for arrest of judgment on grounds of alleged violations of the Speedy Trial Act for the reasons previously set forth in the Court's pre-trial disposition of this argument.

10. The Court finds that in addition to establishing the existence of an agreement between all defendants, the government has established numerous acts in the furtherance of this agreement in the form of meetings and the production of money to facilitate defendants' conspiratorial objectives.

11. The Court finds that the government has proven beyond a reasonable doubt Defendant Browning's violation of Title 18, U.S.C. Sec. 924(c)(2) in that he unlawfully carried a firearm during the commission of a felony.

12. For the foregoing reasons, the Court finds that the defendants are guilty of the offenses charged in the indictment and accordingly enters a judgment of guilty.

IT IS SO ORDERED.

/s/ Nicholas J. Bua

Nicholas J. Bua

Judge, United States District Court

Dated: July 28, 1982.