MANSFIELD, Circuit Judge.
This case presents a good example of the kind of excessive delay that led Congress to pass the Speedy Trial Act. 18 U.S.C. §§ 3161-3174. Appellant's first trial on charges of conspiracy and transportation of stolen securities in foreign commerce ended on December 3, 1973, with the declaration of a mistrial. His retrial, which resulted in conviction, did not take place until 28 months later, over three years after the
On February 16, 1973, an indictment was filed in the Southern District of New York against appellant Didier and his two co-defendants Lombardozzi and Ashdown, charging them with conspiring to transport stolen securities in foreign commerce in violation of 18 U.S.C. §§ 2314 and 2315 and causing stolen securities to be transported in foreign commerce in violation of 18 U.S.C. §§ 2314 and 2. The government filed its notice of readiness for trial on April 19, 1973, and on September 18, 1973, Didier stipulated that the trial would be set for November 26, 1973, thus waiving his right to an earlier trial. Lombardozzi pleaded guilty to one count of the indictment, and Didier and Ashdown proceeded to trial, which ended on December 3, 1973, with the declaration of a mistrial.
The government did not file its notice of readiness for retrial until May 22, 1974, almost six months later. Thereafter, in a letter to the court dated June 10, 1974, the government requested that retrial be postponed until the fall on the grounds that Ashdown had been convicted in Texas on other charges, that the conviction was on appeal to the Fifth Circuit, and that oral argument in that case would not be heard until September. The government indicated that it would prefer to wait and see whether Ashdown's conviction was affirmed; if it was, Ashdown could be severed and given immunity in return for testimony against Didier. The government further noted that otherwise it would probably consider severing Ashdown's case from Didier's anyhow. Without consulting Didier,
On February 11, 1975, in United States v. Drummond, 511 F.2d 1049 (2d Cir.), cert. denied, 423 U.S. 844, 96 S.Ct. 81, 46 L.Ed.2d 65 (1975), we held that Rule 6 of the Eastern District's Plan for Achieving Prompt Disposition of Criminal Cases mandated retrial, not merely government readiness, within 90 days after the final judgment on the first trial and that the exclusionary periods of Rule 5 did not toll the running of the 90 days under Rule 6. In view of the pre-existing confusion on the issue, however, we found the delay there involved to be excusable and thus in effect made our holding prospective. At the same time, we served notice that we would not tolerate such delays in the future. 511 F.2d at 1054. Shortly thereafter we repeated this warning in United States v. Roemer, 514 F.2d 1377, 1382 (2d Cir. 1975).
Following Drummond, the government, upon communicating with the court, was advised that Judge Cooper, to whom the present case had been assigned for retrial, would be sitting outside of the Southern District from February 17, 1975, to March 14, 1975. In a letter dated March 25, the government requested trial "as soon as possible in the convenience of the Court." Judge Cooper responded by letter dated March 27 ordering a pretrial conference on April 2, 1975. Copies of both letters were sent to Robert Talcott, the attorney in California who had represented Didier at the first trial. Unfortunately, Talcott had changed his address without informing either the government or the court, so the letters were returned unopened. When reached at his new offices in Los Angeles
On June 30, 1975, appellant filed his first motion to dismiss for failure of the government to abide by Rule 6 of the Plan for Achieving Prompt Disposition of Criminal Cases
In the meantime, the government had apparently made no effort to get in touch with Ashdown and offer him immunity in return for testimony against Didier. Ashdown's counsel advised the government on July 17, 1975, that his client's whereabouts were apparently unknown. Fearing that Ashdown had become a fugitive, the government moved for a bench warrant, which was granted July 18. A month later the government advised the court that Ashdown had still not been located and that there was no reason to believe that he would be arrested by the September 2 trial date. The court agreed sua sponte to adjourn the trial sine die until Ashdown could be found. The government then advised appellant's attorney of the adjournment. Appellant did not voice objection to the further delay.
On September 29, 1975, a revised Southern District Plan for Achieving the Prompt Disposition of Criminal Cases went into effect, replacing the old Rule 6 with a new Rule 7 that reduced the allowable period between mistrial and retrial to 60 days and eliminated extensions "for good cause."
On December 30, 1975, appellant again moved to dismiss for the government's failure to bring the case to trial. The court denied the motion in a decision dated February 19, 1976, noting that Ashdown was still at large and that appellant's counsel had failed to contact the court to object to the adjournment sine die. Relying on United
This case is not one of first impression. Although we have never ordered an indictment dismissed with prejudice for failure to abide by Rule 6 of the Southern District's 1973 Plan for Achieving Prompt Disposition of Criminal Cases (continued with modifications as Rule 7 of the 1975 Plan and Rule 5(b) of the current Plan), we have repeatedly warned that future delays in retrying a defendant once tried might lead to such dismissal.
In United States v. Drummond, 511 F.2d 1049 (2d Cir. 1975), our first case under Rule 6, the government was ready for retrial immediately following reversal and remand but trial did not take place for almost a year due to institutional delays. We held that Rule 6 required retrial, not merely government readiness for trial, within 90 days, and that Rule 5, which excluded certain periods of delay, did not apply to or modify Rule 6. Although most of the delay was attributable to the retrial judge's long engagement on the trial of another case, we stated that the Drummond case should have been transferred by the court sua sponte to another judge as soon as the prospect of such delay became apparent. Id. at 1051-53. Because of the confusion that had existed as to whether Rule 6 of the Eastern District's Plan or the Second Circuit Rules previously promulgated governed retrials, the delay was deemed excusable for good cause. However, we gave the following clear warning:
In United States v. Roemer, 514 F.2d 1377 (2d Cir. 1975), we reiterated this warning:
Finally, in United States v. Yagid, 528 F.2d 962 (2d Cir. 1976), we upheld the district court's dismissal of an indictment without prejudice because the defendant had not been retried within the 90-day period specified by Rule 6, following our order
Turning to the present case, the delay attributable to the government's pre-Drummond confusion as to which set of rules (the Second Circuit Rules or the Southern District's Plan) governed retrial was for the most part excusable. The government filed its notice of readiness for retrial 12 days before the running of the six-month period specified by the Second Circuit Rules Regarding Prompt Disposition,
Whatever the merits of the reasons asserted by the government for delay prior to Drummond, however, appellant was not retried until more than a year after that decision was filed. Having been put on notice by that decision that responsibility for speedy trial enforcement rests primarily on the district courts and on the government, not on the defendant, the government should have attempted to obtain either a retrial within 90 days of the Drummond decision (handed down on February 11, 1975) or an explicit waiver of that 90-day period from appellant Didier. Instead it made only a half-hearted attempt to retry appellant within the 90 days, requesting
As it turned out, of course, Didier was without counsel. Assuming that Didier's failure to secure counsel constituted "good cause" entitling the court, upon request by Didier to fix a trial date after the expiration of the 90-day period,
Although some of the delay prior to September 2, 1975, was thus excusable on the ground that Didier lacked counsel, any delay thereafter was unwarranted. The inexcusable delay already resulting from the government's desire for tactical reasons to await the results of Ashdown's Fifth Circuit appeal should not have been compounded because of his flight. Neither was the court's crowded calendar sufficient reason for delay. See Drummond, supra, 511 F.2d at 1053. Nor was the period specified by Rule 6 tolled by the pendency sub judice of appellant's motion to dismiss; to so construe Rule 6 would improperly penalize defendants for their invocation of speedy trial rules and run counter to the purposes of those rules. It is also questionable whether the short delay granted for appellant's business purposes was granted "for good cause." Defendants are not the only parties who have an interest in speedy justice; the public interest is at least as great. See Hilbert v. Dooling, 476 F.2d 355, 357-58 (2d Cir. 1973) (en banc).
Further delay was also prohibited by the promulgation of the revised Southern District Plan for the Prompt Disposition of Criminal Cases, which became effective September 29, 1975. This Plan eliminated extensions "for good cause" in retrials after mistrial and reduced the period for retrial to 60 days. See footnote 3. Here the retrial did not take place for more than 180 days after the revised Plan went into effect.
The suggestion that Didier waived his right to object to the violation of his rights under the Southern District's Plan by failing to demand a speedy trial after the court in August, 1975, acceded to the government's request for an adjournment sine die must also be rejected. The
The burden of objecting to further delay could not so easily be shifted to the defendant. In order to protect the public's interest in a speedy retrial, if the government wanted to retry Didier at a time later than that specified in the Southern District's applicable plan, it was first obligated to seek an explicit waiver from the defendant
This is not a case in which a defendant asked for substantial continuances or attempted to delay trial, but rather one in which the government sought much of the delay for tactical purposes and the district court failed to insist that deadlines be met, even after Drummond placed the handwriting in bold letters on the wall and Congress passed the Speedy Trial Act with its harsh strictures. Indeed, effective July 1, 1976, each of the district courts of this Circuit has adopted a new set of time limits within which criminal cases must be tried, which will be progressively shortened until, effective
Accordingly we reverse the conviction and remand the case for dismissal of the indictment.
"Where a new trial has been ordered by the district court . . ., it shall commence at the earliest practicable time, but in any event not later than 90 days after the finality of such order unless extended for good cause."
Rule 5(b) of the current Southern District Plan, promulgated July 1, 1976, provides:
Rule 6 of the Southern District's 1973 Plan provided: