The opinion of the court was delivered by: MOTLEY
Decision on Motion to Dismiss Indictment
Defendant was charged in a two-count indictment (August 7, 1961) with transporting stolen goods in interstate commerce in March and April 1958. The first count charged that defendant, three co-defendants, and others who were unknown, unlawfully conspired to transport from Pennsauken, New Jersey through New York City to the Boroughs of Queens and Brooklyn, New York, furs valued at more than $5,000, knowing them to have been stolen. It was alleged that the conspiracy commenced on or about March 19, 1958 and continued with the commission of several overt acts until the filing of the indictment.
The second count charged this defendant and two other defendants with transporting $5,000 worth of furs from Pennsauken, New Jersey to New York City, knowing them to have been stolen.
On August 30, 1961, petitioner pleaded not guilty and went to trial on January 26, 1962 with two other defendants, the fourth having pled guilty.
At the close of the Government's case, a judgment of acquittal was entered as to one co-defendant. On February 2, 1962 the jury returned a verdict of not guilty as to the other co-defendant. It was unable to reach a verdict with regard to this defendant who was continued on parole. This jury was dismissed.
Almost immediately after the jury disagreed, defendant was sentenced on February 13, 1962, in the United States District Court, Eastern District of New York, to imprisonment in a Federal penitentiary for two years and nine months for the interstate transportation of a stolen motor vehicle. He remained in Federal custody until March 20, 1964.
After commencing service of this Federal term, defendant was sentenced on April 26, 1962, in the State of New Jersey, to imprisonment for three to five years. This sentence was to be consecutive with the sentence received in the Eastern District of New York. The New Jersey sentence was imposed following conviction on the charge of breaking and entering resulting from the burglary of Mike's Factory Outlet in West Long Branch, New Jersey, on March 22, 1961.
On completion of service of his Federal sentence, the United States Government gave custody of defendant to the State of New Jersey to begin service of his sentence there. The New Jersey sentence, which the petitioner is now serving and which terminates on June 12, 1967, is unrelated to the instant indictment.
No steps were taken by either defendant or the Government with regard to a retrial of defendant in this court after the abortive trial in February 1962 until July 13, 1966. Then a writ of habeas corpus ad prosequendum issued from this court. Defendant was brought before the court on August 22, 1966. On September 14, 1966 defendant filed a motion to dismiss the indictment. From his affidavit and brief were distilled three grounds:
1) Defendant's Sixth Amendment rights to a "speedy trial" have been denied by the Government's failure to speedily retry defendant after the first trial;
2) There has been unnecessary delay in bringing defendant to trial resulting in severe prejudice which, if defendant is forced to go to trial four and a half years after the first trial and eight and a half years after the alleged crimes, will prove irreparably injurious to defendant.
3) The Government previously waived jurisdiction over defendant when it surrendered him to New Jersey authorities to serve a state prison term after serving a Federal prison term.
With respect to the instant motion to dismiss, defendant is represented by the same attorney who represented him on the original trial. The motion is in the form of an affidavit by this counsel. An opposing affidavit has been filed on behalf of the United States. The foregoing facts are contained in one or the other of these affidavits. The parties agreed that the court decide this motion on the papers submitted without hearing or argument.
I. Defendant's contention that the Government waived jurisdiction over him when it surrendered him to New Jersey authorities is wholly without merit; and because it challenges the jurisdiction of this court is disposed of first. The rule is that, "If the prisoner has violated the law of both sovereigns, he is subject to prosecution by both and he may not complain of or choose the manner or order in which each sovereign proceeds against him." Hayward v. Looney, 246 F.2d 56, 57 (10th Cir. 1957); Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S. Ct. 309, 66 L. Ed. ...