Appeal from the United States District Court for the Southern District of West Virginia, at Bluesfield. Elizabeth V. Hallanan, District Judge. CR-1:85-80.
Russell, Widener, and Hall, Circuit Judges.
Grover C. Jones, Jr. appeals from his conviction on five counts of mail fraud in violation of 18 U.S.C. §§ 1341, 2. He challenges his conviction on several grounds. After a thorough review of the record, we find those grounds without merit and affirm.
Jones was arrested on charges of mail fraud on October 17, 1984. The same day he was committed by a magistrate to the Federal Correctional Institution in Butner, North Carolina for an evaluation to determine his mental competency. On November 20, 1984, he was indicted with three other individuals on five counts of mail fraud. A superseding indictment was returned on December 14, 1984 in the same charges against the same individuals, including Jones. Jones remained at Butner until December 21, 1984, when he was released on bond.
He subsequently moved to dismiss the indictment. The district court granted the motion to dismiss finding that Jones' rights under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., had been violated. The court found that only thirty of the sixty-six days Jones spent at Butner for psychiatric evaluation were excludable under section 3161(h)(1)(A) of the Act.*fn1 Consequently, the original trial date of February 20, 1985 exceeded the seventy day limit of the Act by twenty-six days. Although the district court granted the motion to dismiss, its dismissal of the indictment was without prejudice.
The government appealed from the court's dismissal order, but on June 25, 1985, a grand jury returned a new indictment against Jones, charging the same offenses as those charged in the two previous indictments and the government withdrew its appeal.*fn2 Jones moved to dismiss the 1985 indictment on various grounds including error in dismissing the previous indictment without prejudice. The district court denied the motion and the case proceeded to trial.
The charges which led to Jones' indictment stemmed from a fire that occurred in Matoaka, West Virginia on October 29, 1981. The government presented evidence at trial that Jones, Richard Lewis, John Whitlow, and his son, Joseph Whitlow, devised a scheme to defraud Aetna Casualty and Surety Company, the insurer of a building owned by Lewis, by burning the building and submitting a false claim to the insurance company for the resulting damage. The scheme began in the fall of 1981 when Jones approached Lewis, who was having business and financial problems, and suggested burning the building to collect the insurance proceeds. Lewis agreed and agreed to pay Jones $10,000 from the insurance funds. Jones arranged for the Whitlows to burn the building. He paid them $1,500 to commit the arson. The Whitlows were arrested as they were leaving the burning building and were tried on arson charges in West Virginia state court. Lewis filed a claim with the insurance company for damage to the building due to the fire. The company retained counsel to investigate the fire and the claim was eventually denied. The facts surrounding the charges against Jones came to light when the Whitlows agreed to cooperate with authorities during the course of the state prosecution. The correspondence between Lewis and the insurance company formed the basis for the mail fraud charges.*fn3
A jury convicted Jones on all five counts of mail fraud. He was sentenced to consecutive terms of five years imprisonment on each of the first three counts and concurrent suspended terms of five years on counts four and five. He was also fined $5,000 and placed on five years probation. Jones appeals.
The appellant's principal contention on appeal is that the district court failed to comply with the Speedy Trial Act when it dismissed the December 1984 indictment without prejudice. The Act provides that in determining whether to dismiss a 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.
18 U.S.C. § 3162(a)(2). The district court in this case addressed the "facts and circumstances" leading to the dismissal in its original order but did not address the "seriousness of the offense" or the "impact of a reprosecution." In a subsequent order, however, entered after the appellant moved to dismiss the 1985 indictment on the ground that the court failed to address all three statutory factors in its dismissal order, the same court stated that it "did mentally consider" all the factors outlined in 18 U.S.C. § 3162(a)(2) during the process of dismissing the ...