Appeal from a judgment of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, entered after a jury trial convicting appellants of violation of 18 U.S.C. §§ 659, 2313 and 2315 by possession and sale of goods stolen from interstate commerce.
Moore, Hays and Mansfield, Circuit Judges. Moore, Circuit Judge (dissenting).
This is an appeal from judgments of conviction for possession and sale of goods stolen from interstate commerce, 18 U.S.C. §§ 659, 2313, and 2315. Appellants argue that they were denied a speedy trial under the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases.*fn1 We agree with respect to two defendants and therefore reverse their conviction with orders to dismiss the indictments against them. We affirm the conviction of the third defendant.
Appellants were arrested on February 25 and 26, 1969, but not brought to trial until March 19, 1973. On July 16, 1971 appellant Soluri moved to dismiss the indictment against him because of the government's delay in bringing him to trial and its failure to comply with the Prompt Disposition Rules, and with Rule 48(b), F.R. Cr. P.*fn2 The government did not file its notice of readiness until July 22, 1971. On its face this seems to establish a violation of Rule 4, which requires the government to be ready for trial within six months of arrest. But the government seeks to sustain the denial of the motion by the district court on the grounds that our holding in United States v. Pierro, 478 F.2d 386 (2d Cir. 1973), should not be applied retroactively and that conditions in the United States Attorney's office for the Eastern District of New York constituted "exceptional circumstances" under Rule 5(h). We reject both contentions.
In United States v. Pierro, supra, we held that "the Government must communicate its readiness for trial to the court in some fashion within the six-month period . . ." 478 F.2d at 389. We reasoned that "the fact that the Government knows it is ready for trial will be of little significance to the court if it is not given that information." Id. at 388. Without this requirement the defendant in each case would move for dismissal at the end of the six-month period and the court would have to hold an evidentiary hearing to determine retroactively whether the government had been ready for trial within six months. We concluded that the drafters of the rules had not intended such a "wasteful procedure." Id.
The government argues that Pierro should not apply to the instant case, where the relevant facts occurred before the decision in Pierro. It contends that the decision was "legislative," supplying an additional requirement which the rules did not explicitly require. We disagree.
In United States v. Scafo, 480 F.2d 1312, 1318 (2d Cir. 1973), we implied that Pierro should apply retroactively. We now hold explicitly that it does. Pierro merely enunciated what should have been clear from the beginning. Because the government failed to give notice the court below was forced to resort to precisely the "wasteful procedure" which the court in Pierro feared. The failure to give notice cannot be excused, especially since the notice of readiness procedure had been adopted by the office of the U.S. Attorney for the Eastern District of New York prior to the effective date of the Prompt Disposition Rules.
The government argues alternatively that conditions in the office of the United States Attorney for the Eastern District of New York constituted "exceptional circumstances" within the meaning of Rule 5(h).*fn3 We disagree.
On February 13, 1969 the United States Attorney for the Eastern District left office. His successor did not take office until October 15, 1969. In the hiatus the number of Assistant United States Attorneys in the office dropped sharply and the backlog of pending cases increased correspondingly. As conditions in the office returned to normal the prosecutor devoted his attentions to "jail cases" (cases in which defendants were incarcerated) and cases older than the instant case. This case was assigned during the first two years of its pendency to two different Assistant United States Attorneys. Neither attempted to procure indictments in the case, much less to bring it to trial. In April, 1971 the case was assigned to a new assistant, who obtained indictments on June 19, 1971 and filed a notice of readiness on July 22, 1971, six days after appellants' motion to dismiss.
In United States v. Pollak, 474 F.2d 828 (2d Cir. 1973), we suggested that, "perhaps, an extraordinary situation in the office of the prosecutor" could constitute an exceptional circumstance. 474 F.2d at 830. Without categorically rejecting that suggestion we find that the facts here do not amount to "exceptional circumstances."
The Circuit Council of the Second Circuit knew the conditions within the circuit when it adopted the Prompt Disposition Rules on January 5, 1971. It had consulted the United States Attorneys in the circuit. See Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, 28 U.S.C.A. App. 67 (1973 Supp.). Indeed, it intended through the rules to prod the United States Attorneys to take whatever steps were necessary to dispose of criminal cases rapidly. It cannot have intended sub silentio to exempt the Eastern District from the rules at the very moment that it promulgated them. Rule 5(h) "was intended to cover ...