Appeal from a judgment of conviction before a jury of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, for violation of 21 U.S.C. §§ 952(a), 960(a) (1), and 963 on the basis that the Plan for Achieving Prompt Disposition of Criminal Cases was not followed. Remanded.
Kaufman, Chief Judge, Hays and Oakes, Circuit Judges.
On February 8, 1974, appellant was convicted of importing 2.2 kilograms of cocaine and of conspiracy to do the same in violation of 21 U.S.C. §§ 952 (a), 960 (a) (1), and 963. He appeals from that conviction on the basis that the district court improperly refused to dismiss his indictment pursuant to Rule 4 of the Plan for the United States District Court for the Eastern District of New York for Achieving Prompt Disposition of Criminal Cases (Plan).*fn1 For the reasons which follow, we remand for further proceedings consistent with this opinion.
Most important to this case, and others of its ilk, is the chronology of events. On September 28, 1972, one Raimundo Canas was arrested upon arriving at Kennedy Airport from Chile in the possession of over two kilograms of cocaine. Informing the agents that he was to deliver the cocaine to his "contact" in the airport, he was allowed to enter the lobby. There appellant, who was with a companion, appeared to recognize Canas, but then spotted the surveilling agents and attempted to leave. He and his companion were arrested. On September 29 the three were arraigned, and appellant, who was unable to make the $150,000 bail, was held over. October 10 was set as the date of the preliminary hearing. Prior to October 10 it was determined by the office of the United States Attorney for the Eastern District of New York that, due to Canas' refusal to testify against appellant, there was insufficient evidence to indict him at that time. On October 10, in light of this, the office agreed to a reduction of appellant's bail to a $20,000 personal recognizance bond, which allowed appellant to get back on the street. Between this time and sometime in January, 1973, one agent was involved in making credit checks, telephone checks, and other investigative efforts in appellant's case, but it was not until January, over three months from the initial and only interview of Canas, that the agent again contacted him. Recently sentenced to eight years for his part in the conspiracy, Canas still refused to cooperate. Finally, on February 23, 1973, four months and 27 days after appellant's arrest, four months and 14 days after the office of the United States Attorney had determined there was insufficient evidence with which to go to the grand jury, and over a month after the last attempt to get Canas' cooperation, the United States Attorney had the complaint dismissed.
The "investigation," however, did not end. In April the agent talked again twice to Canas. By May 4, 1973, Canas' cooperation was such that the Assistant United States Attorney handling the case wrote to Canas' sentencing judge in support of Canas' motion for a reduction of sentence, "in light of the fact that Mr. Canas has recently cooperated with the United States . . . ." It was not until June 19, however, that Canas actually appeared before the grand jury and an indictment against appellant was returned. A bench warrant was issued for appellant's arrest, which was executed on June 28, 1973. While the Government claims it was ready to try appellant on three days' notice thereafter, it did not get around to filing its Notice of Readiness until July 25, 1973 -- which is the crucial date. See United States v. Pierro, 478 F.2d 386 (2d Cir. 1973).
Rule 4 of the Plan provides that the Government must be ready for trial six months "from the date of arrest, service of summons, detention or the filing of a complaint or a formal charge . . ., whichever is earliest." See note 1 supra. Here appellant was first arrested for this crime on September 28, 1972, but the Government did not file a Notice of Readiness until July 25, 1973 -- almost ten months later. It was thus incumbent upon the Government to demonstrate that one of the tolling periods provided in Rule 5 of the Plan*fn2 was applicable.*fn3
The Government contends, and we accept, that for the period after the dismissal of the complaint against appellant and prior to appellant's indictment the clock should not run against it. During this period appellant was not subject to any of the disabilities associated with being under arrest, the subject of a complaint or indictment, or in the midst of a criminal prosecution. He was under no more jeopardy than any other citizen, and the fact that he might have been under investigation has no more effect after the dismissal on the running of the six-month period than it would have had before his arrest, that is, none. Even after elimination of this period from February 24, 1973, to June 18, 1973, after the dismissal but before the indictment, however, the Government is still faced with a period adding up to over six months during which it was not ready for trial.
The Government claims that because Canas refused to cooperate during a several month period, this time should be tolled according to Rule 5(c) (i), see note 2 supra, which provides for tolling during the period "evidence material to the government's case is unavailable . . . ." We do not believe that the "unavailability" of evidence referred to applies to the present situation and thus this exemption is not applicable. In United States v. Rollins, 487 F.2d 409 (2d Cir. 1973), we disapproved a district court's finding that a witness was unavailable because the Government could not produce him without prejudicing an on going investigation. In reaffirming the application of the common sense meaning of the term "unavailable," we analogized whether the witness would be considered "available" for purposes of drawing negative inferences. Id. at 412. See generally Wigmore, Evidence §§ 1401-18 (3d ed. 1940). Here, as in Rollins, we feel certain Canas was "available" in this sense. In short, Canas was not "unavailable" to the Government; rather, he was simply not willing to tell the grand jury what the Government wanted him to tell. If a witness's unwillingness to testify in and of itself were a ground for tolling the six-month period of the Plan, the Plan would be a dead letter.
The Government also suggests that Canas' refusal to cooperate somehow constitutes "exceptional circumstances" under Rule 5(h) of the Plan. The Government points to nothing exceptional about a convicted drug dealer refusing to cooperate with Government prosecutors, however, so that on these facts the claim is frivolous.
We are left then with an argument not made before us, namely that during the period June 19 to June 28, appellant may have been a fugitive whose absence or unavailability in a recognizable sense resulted in a delay which would toll the period pursuant to Rule 5(d). See note 2 supra. The record before us is not clear whether appellant was indeed absent (that is, according to the rule, whether his location was unknown) or unavailable (that is, his location was known but his presence could not be obtained by due diligence) so as to be a fugitive. It is, moreover, even less clear whether the nine day period between appellant's indictment and second arrest resulted in any delay to the Government in the time it should have been "ready for trial." If indeed appellant were absent or unavailable during that period, and if indeed the Government's readiness to go to trial was delayed thereby, then that nine day period would be exempted from the period within which the Government had to be ready, putting the total period at just under six months. If, however, these conditions are not met, then the district court should dismiss the indictment against appellant with prejudice.*fn4