UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
October 16, 1973
UNITED STATES of America, Plaintiff,
Harvey Bertram POLLAK, Defendant
Edelstein, Chief Judge.
The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, Chief Judge:
On May 21, 1971, the defendant was indicted for perjury. On May 12, 1972 he moved to dismiss the indictment, charging that the Government had failed to comply with the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases; his motion was denied. The defendant was tried and convicted on May 22, 1972, after his efforts to postpone the trial were unsuccessful. On appeal of this conviction, the Court of Appeals for the Second Circuit remanded to this Court for "further hearing on the motion to dismiss and specific findings on the issue whether there were 'exceptional circumstances' justifying 'periods of delay' within Second Circuit Rule 5(h)."
United States v. Pollak, 474 F.2d 828 (2d Cir. 1973). An evidentiary hearing was held on April 23, 1973. On the basis of evidence produced at that hearing, this Court must deny the defendant's motion to dismiss the indictment.
Neither party argues that this is a case involving such special circumstances as would justify a period of delay under Rule 5(h), and no evidence of special circumstances was presented at the hearing. Rather the issue is whether there were any "periods of delay" or, to rephrase the question, whether the Government was in fact ready on February 1, 1972 as required by Rule 4.
The defendant has raised three arguments in support of his motion to dismiss the indictment. He contends first that despite the filing of its "Notice of Readiness" on November 18, 1971, the Government was not ready for trial on that date. Defendant argues that the statement contained in the "Notice" did not signify actual readiness for trial. A similar argument was made before the Court of Appeals in United States v. Pacelli, 470 F.2d 67 (2d Cir. 1972) and its statement is dispositive of the issue. The Court of Appeals said:
The government filed its notice of readiness on November 12, nine days before the six-month period allowed under the Second Circuit's Rules Regarding Prompt Disposition of Criminal Cases expired, requesting ten days notice of the trial date. The court correctly held that the speedy trial rules were not violated, since the government had timely declared its readiness and the ten-day notice requested by the government was not binding on the court. The court could have called the parties to trial without the ten-day notice. United States v. Pacelli, 470 F.2d 67, 69.
Secondly, the defendant argues that the Government could not be deemed ready for trial within the six month period of Rule 4 because it had not complied with the discovery order of July 30, 1971. This claim must be rejected because the evidence presented at the April 23, 1973 hearing shows that the Government had complied with the order. The court's discovery order, issued pursuant to Fed.R.Cr.P. 16,
required the Government to furnish defendant's attorneys with copies of certain documents. When read in conjunction with Rule 16, which authorizes the court to "order the attorney for the government to permit the defendant to inspect and copy," the pre-trial order required only that the Government make those documents available to defense counsel. The evidence shows that the Government had informed defendant's counsel that the documents in question were available for copying and inspection.
Defendant's counsel, although aware of the availability of the documents, never attempted to make an inspection;
the defendant's efforts to make discovery were confined to a casual conversation with Assistant United States Attorney Updike and to a one-paragraph remainder about the discovery order in a letter to Mr. Updike.
Neither of these efforts constitutes an attempt to make an inspection, and there is no evidence that the Government attempted to frustrate defendant's efforts to make discovery within the scope of the order. Moreover, as the Court of Appeals noted, had the Government failed to comply with the order, Fed.R.Cr.P. 16(g)
provides defendant with a remedy.
Finally, the defendant argues that the Government's failure to provide the bill of particulars required by the July 30, 1971 order prevents the Government from being deemed ready for trial within the six-month period of Rule 4.
This claim must also be rejected. As the Court of Appeals noted, other remedies to compel compliance by the Government were available to the defendant. When confronted with the Government's failure to obey the lawful order of the court, the defense could, for example, have moved for dismissal under Fed.R.Cr.P. 48(b),
for exclusion of evidence as to any matter covered by the ordered bill of particulars,
or for an order to show cause why the Government should not be held in contempt.
The defense did none of these things. Defendant has shown no valid reason to construe Rule 4 so as to provide an additional remedy to facilitate discovery. In light of these considerations, this court cannot say that Rule 4 requires a holding that the Government was unready merely because it did not supply the bill of particulars before the expiration of the six-month period of Rule 4.
Defendant's motion to dismiss the indictment is denied.