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June 7, 1967

Edward McINTYRE, Defendant

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

 On October 14, 1965, this Court heard oral argument on defendant's motion to dismiss the instant indictment on the ground that he had been denied his right to a speedy trial as guaranteed by the sixth amendment. Said motion was denied since no prejudice was shown and the case proceeded to trial on that same day before this Court sitting without a jury. The defendant was found guilty and, pursuant to the judgment of conviction, he was given the minimum mandatory sentence of ten years for second narcotics offenders with this Court recommending that such sentence be served concurrently with a State court sentence under which he was then incarcerated. The recommendation was followed by the Attorney General, and Clinton State Prison was designated as the place for service of defendant's Federal sentence.

 Defendant appealed from the judgment of conviction, principally alleging that the pre-trial delay had the effect of increasing his Federal sentence by diminishing the period of concurrence. The Court of Appeals, commenting on the insufficiency of the record before it, remanded the case to the district court for a hearing to develop the issues raised by defendant's motion. Such hearing was to encompass the following:

"What events transpired from October 1964 to October 1965, including whether appellant [defendant] was represented by counsel, waived the right to a speedy trial, and was brought by the Government to the Southern District for the purpose of testifying before a Grand Jury in another matter; what the reasons for delay were in this period and whether defendant acquiesced therein, including the Government's role, if any, in preparing the calendar of cases to be tried in the summer months; and when appellant's state sentence expired." United States v. McIntyre, 375 F.2d 127, 128 (2d Cir. 1967) (per curiam).

 Accordingly, this Court conducted a hearing on May 4-5, 1967. The hearing was adjourned sine die on May 5, pending the recovery from illness of Philip Segal, Esq. Counsel informed this Court that said Philip Segal died on May 7, 1967, and a stipulation was signed by counsel and the Court terminating the hearing.

 The following facts were adduced at the hearing: The instant indictment was filed June 25, 1964, some ten months after the date of the offense charged. *fn1" A bench warrant for defendant's arrest was issued the same day and, on July 1, 1964, was lodged as a detainer at Clinton Prison, Dannemora, New York, where defendant was serving a two and one-half to three year sentence imposed on December 2, 1963 in the New York State Supreme Court for New York County. On July 4, 1964, defendant wrote to the clerk of the district court seeking information about the nature of the Federal charge. On July 22, 1964, the Government applied for a writ of habeas corpus ad prosequendum and, on August 4, 1964, defendant appeared for pleading in the Criminal Calendar Part of the Court (hereinafter referred to as "courtroom 318"). On that date, Judge MacMahon of this Court adjourned the matter to August 10, 1964, to enable defendant to obtain counsel. Defendant appeared in courtroom 318 on August 10, 1964 and requested a further adjournment of "a couple of weeks" as he had been unable to obtain counsel. Judge Herlands put the matter over to August 25, 1964, on which date defendant indicated that he had obtained counsel who failed to appear. On the following day, August 26, 1964, Philip Segal, Esq. appeared before Judge Murphy, informed the Court that his brother, Samuel Segal, Esq., was appearing for defendant, and immediately requested a three-week adjournment. Judge Murphy denied the request, defendant entered a plea of not guilty, and September 14, 1964 was designated as the return date for motions. Samuel Segal was hospitalized from September 3-10, 1964.

 On September 14, 1964, the matter was adjourned by consent until October 14, 1964. The record is unclear as to who appeared for defendant on that day but the testimony adduced at the hearing indicates that Philip Segal was present. As appears from the diary maintained by Samuel Segal's office, he was fully informed of all the proceedings carried on in his absence. Without objection from defendant, the writ pursuant to which he had been brought down from Clinton Prison was satisfied, with defendant being returned to Clinton Prison.

 McIntyre was not returned to the Southern District on October 14, 1964. On that date, the case was adjourned to October 29, then to November 30, then to December 16 and, finally, to December 17, 1964. All the adjournments were granted at the request of the Government and, if Samuel Segal did not consent to them, it is undisputed that his office was aware of them. On December 17, 1964, the Assistant United States Attorney noted that the defendant had not appeared in court on the previous day or on that day, that he had received no communication from Samuel Segal, and he therefore sought a bench warrant and bail forfeiture, failing to recall that defendant was confined in State prison. The error was discovered on the same day by the clerk of the criminal division, who so advised the Assistant United States Attorney and was, in turn, told "that he would eventually correct" it.

 No mention of McIntyre appears in any Government record until March 29, 1965 when the outgoing Assistant United States Attorney, in his reassignment memorandum, stated, "The remaining defendant in this case, Edward McIntyre is incarcerated in state jail and should be brought here for prosecution by way of writ of habeas corpus." The incoming Assistant testified that the pending McIntyre case was assigned to him at about that time.

 On April 23, 1965, the Government applied for a writ of habeas corpus ad testificandum seeking production of defendant in connection with an unrelated grand jury investigation. The defendant was brought back to the Southern District from Clinton Prison, and an attempt was made with the consent of Philip Segal to induce him to cooperate with the investigation. On May 11, 1965, after attempts at persuasion failed, the ad testificandum writ was satisfied, a writ of habeas corpus ad prosequendum was issued and the case was restored to the 318 calendar for May 18, 1965. However, on May 17, 1965, defendant moved pro se for a speedy trial, setting forth the events as hereinbefore described (with some slight discrepancies).

 On May 18, 1965, defendant appeared in courtroom 318 with Samuel Segal. At that time, an Assistant United States Attorney who appeared for the Government pointed out that no notice of appearance was in the file. Segal explained that no notice had indeed been filed and that he wished to withdraw as counsel to McIntyre without filing any notice of appearance. Segal contended that "I just went in to inquire and see what I could do for him by way of bail." However, Segal knew that defendant was incarcerated at Clinton Prison at the time he was asked to see him and from the record it appears that Segal (or his brother Philip) adequately represented defendant at the time a plea was entered, took part in fixing a return date for motions and for sending the case out to a trial part and either sought or consented to adjournments. It is thus apparent that Segal did more than simply inquire about bail. Judge Croake consented to Segal's withdrawal and asked the Legal Aid Society to represent McIntyre. Defendant objected to the assignment of Legal Aid, requesting an "outside lawyer", and Judge Croake stated that he would study the matter further.

 On May 20, 1965, Anthony Atlas, Esq. was assigned to represent defendant. On May 25, 1965, defendant again appeared in courtroom 318 before Judge Croake. At this time, Mr. Atlas appeared for defendant and requested a "late summer trial." *fn2" The Assistant United States Attorney stated his readiness to try the case immediately. Judge Croake informed Atlas of defendant's speedy trial motion and that a memorandum had been handed down thereon on the previous day. Judge Croake's memorandum stated in pertinent part:

Since the court is of the opinion that the rights of the defendant will be better protected if counsel is given an opportunity to bring this or any other motion which may appear to him to be advisable, and for the reason that orderly practice would seem to warrant the entertaining of motions submitted on behalf of the defendant by counsel, now that an attorney has been assigned, signature of the within order shall be withheld at this time pending a determination by counsel of whether he wishes to bring this motion.

 In any event, the McIntyre matter was adjourned until June 3, 1966, at which time Atlas agreed to have the case placed on the summer calendar. *fn3" Sixty-four cases were placed on the summer calendar which was called on June 17, 1965. Twenty-seven cases were set down for trial during the summer; defendant's case and thirty-six others which were not reached were sent back to the regular courtroom 318 calendar. There it was carried briefly on the calendar in the event that a summer criminal trial part would become available. When it became apparent that the case would not be reached, it was adjourned with consent to September 21, 1965, and defendant was returned to Clinton Prison. On September 21, 1965, the case was sent out for trial on the first day of the October term - October 4, 1965 - but on that day the trial was postponed ten days because of the trial judge's illness. However, on October 4, 1965, defendant handed up to the 318 judge a pro se motion to dismiss the indictment on the ground that he had been denied a speedy trial alleging with reasonable accuracy the events set forth herein and claiming prejudice in that certain witnesses were no longer in the jurisdiction and that other witnesses would be unable to recall the events because of the delay. The motion was referred to this Court and argument was heard thereon on October 14, 1965, immediately prior to the commencement of trial. The outcome of both the motion and the trial have been set forth supra: the motion was denied, the case proceeded to trial and defendant was found guilty and sentenced to ten years' imprisonment with a recommendation of concurrency, which recommendation was accepted by the Attorney General. Defendant was paroled from Clinton Prison on May 19, 1966, and was sent to the United States Penitentiary in Lewisburg, Pennsylvania, to serve the balance of his federal sentence.

 Trial of Criminal Matters During the Summer Months.

 The months designated as the "summer months" in this district are July, August and September. During these months, there is usually one regular criminal trial part open with the district judges each presiding for a one-week period. The cases are assigned by the courtroom 318 judge from week to week with the socalled "jail cases" taking priority over all other matters. A jail case is defined as a case in which a defendant is incarcerated prior to trial because of his failure to make bail. *fn4" An additional limitation on the type of case arises from the inherent nature of the schedule itself, that is, since each judge presides for only one week, only cases of short duration will be tried.

 In addition to this regular trial part, a special summer calendar is prepared for Judge Murphy of this court who customarily presides in a criminal part for the summer months or a substantial portion thereof and who has requested such special calendar for the purpose of fixing definite dates on which trial of cases will begin before him. Cases appear on the summer calendar by virtue of a determination by the Assistant United States Attorney in charge of the matter and defense counsel that such case would be an appropriate one to try during the summer months, and then such determination is approved or disapproved by the courtroom 318 judge. It must be stressed that the 318 judge is not bound by the decision of the Assistant and defense counsel, and in all situations it is the judge who makes the final ruling. Often, the 318 judge will overrule a request to place a particular matter ...

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