Appeal by the United States from an order entered in the Southern District of New York by Lloyd F. MacMahon, District Judge, on August 17, 1973 dismissing an indictment, which had been returned July 3, 1973, "for failure to prosecute and for denial of a speedy trial."
Hays, Feinberg and Timbers, Circuit Judges. Feinberg, Circuit Judge (dissenting).
On this appeal from an order entered in the Southern District of New York by Lloyd F. MacMahon, District Judge, on August 17, 1973 dismissing an indictment, which had been returned July 3, 1973, "for failure to prosecute and for denial of a speedy trial", the sole issue is whether the district judge abused his discretion in ordering the government to proceed to trial the day after the only pretrial conference and in dismissing the indictment two days later when the government was unable to proceed because of the unavailability of its witnesses. We hold on the facts of this case that the judge did abuse his discretion. We reverse and remand for trial.
On July 3, 1973, a two count indictment was returned. It charged defendant Frank Cacciatore with offering a bribe to a Treasury Department agent in violation of 18 U.S.C. § 201(b)(3) (1970). It charged Cacciatore and defendant 1463 Restaurant Corporation (Cacciatore's employer) with illegally refilling liquor bottles in violation of 26 U.S.C. §§ 5301(c)(2) and 5606 (1970).
On July 23, Cacciatore (who had been arrested on March 23 and released on his own recognizance by a United States Magistrate) pleaded not guilty before Judge Ward who allowed ten days for the filing of motions and continued Cacciatore's release on his own recognizance.
In due course the case was assigned on July 31 to Judge MacMahon who notified both sides on August 6 that a pretrial conference would be held on August 14.
Also on August 6, the government served and filed its Notice Of Readiness For Trial, stating that it would be ready for trial "as soon as the matter can be reached by the Court on or after September 1, 1973 subject to receiving five days' advance notice of the actual date for trial." Later, when the government realized that September 1 fell on a Saturday, it informed Judge MacMahon that it would be ready for trial on August 30 or 31.
The pretrial conference was held on Tuesday, August 14, at 3:30 P.M. It was brief. Defendants' counsel first informed Judge MacMahon that the corporate defendant had not yet entered a plea. The judge said that its plea of not guilty could be entered on the morning of the trial. The judge then stated that he would like to proceed with the trial the following morning, August 15. Government counsel reminded the judge that, in accordance with its Notice of Readiness, the government had indicated that it would be ready as of September 1 and requested that the trial be put off until then. Defendants' counsel informed the judge that for personal reasons he would be unable to proceed to trial on August 15 or 16. Judge MacMahon then ordered that the trial begin on Friday, August 17, at 10 A.M.
Immediately after the pretrial conference on August 14, government counsel attempted to locate his witnesses. Of the four witnesses essential to the government's case, three (including a New York City Police Detective) were on annual leave and could not be reached; the fourth, a Treasury Department agent, was scheduled to enter a hospital for urgent kidney surgery on August 19. These facts were communicated to Judge MacMahon orally and later were confirmed by affidavits submitted on August 16. On the same day, in chambers, government counsel again requested that the trial be rescheduled because of the unavailability of the government's witnesses. The judge declined to do so and stated that he would dismiss the indictment if the government did not produce its witnesses the following morning.
On Friday, August 17, at 10 A.M., counsel for both sides appeared before Judge MacMahon. The government filed a written motion for an adjournment of the trial, supported by an affidavit setting forth the essential facts regarding the unavailability of its witnesses. The government made it clear that it would be ready to proceed to trial on August 30 or 31, or as soon thereafter as would be convenient to the court. While defendants' counsel said he was ready, he did not suggest that the indictment should be dismissed until the judge expressly invited such a motion "for failure to grant this defendant a speedy trial." Defendants' counsel then said, "I so move, your Honor." The motion was granted.
Later that day, Judge MacMahon filed a memorandum opinion stating the reasons for his action and concluding that "the government's application for an adjournment is denied, and the defendants' motion to dismiss the indictment for failure to prosecute and for denial of a speedy trial, in accordance with their constitutional rights, is in all respects granted."
The government promptly filed a notice of appeal on August 28, pursuant to 18 U.S.C. § 3731 (1970). On August 31, we ordered an expedited appeal and heard it on October 5.
We reject out of hand the assertion that defendants were denied their Sixth Amendment right to a speedy trial. Upon the uncontroverted facts of the instant case, none of the four factors articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. ...