The opinion of the court was delivered by: CURTIN
This matter is before the court on a motion of the defendant filed pro se on September 20, 1973, for an order to dismiss the indictment in CR-1971-135 for failure to afford the defendant a speedy trial.
This motion came upon my calendar in February of 1974 after the death of Chief Judge John O. Henderson. By that time the government had responded to the motion of the defendant. In order to familiarize myself with the history of the proceedings, I directed the United States Attorney to file a supplementary response to the motion to dismiss. After considering the original response filed on April 15, 1974, I directed the United States Attorney to file an additional affidavit, which was done on June 19, 1974. Following the receipt of this affidavit, the defendant's attorney responded with a letter and affidavit of his own on June 21, 1974.
The indictment in this case, CR-1971-135, which was filed on September 8, 1971, charged the defendant with distributing hashish in violation of 21 U.S.C. § 841(a)(1). The defendant was originally arrested on this charge on June 29, 1971. Under the Second Cir-Rules Regarding Prompt Disposition of Criminal Cases, 28 U.S.C.A. App. (Supp. 1973) [Rules], and its offspring, the current Western District of New York Plan For Achieving Prompt Disposition of Criminal Cases [Plan], the government is required to be ready for trial within six months of the time of arrest, excluding certain enumerated time periods [United States v. Scafo, 480 F.2d 1312 (2d Cir. 1973); United States v. McDonough, 2d Cir., 504 F.2d 67].
Before analyzing the question of whether or not the United States Attorney complied with the applicable standards in this case, however, it is necessary to explain in some detail other charges pending against the defendant at the time of his arrest on this charge, and indictments filed against him subsequent to his arrest.
On June 29, 1971 when the defendant was arrested by federal agents on the hashish charge, eventually CR-1971-135, he was awaiting trial in the Erie County Court of New York State on a 1969 indictment charging him with assault, burglary, attempted robbery, and other crimes. Represented there by attorney William B. Mahoney, the defendant was tried on these state charges from September 10, 1971 until September 27, 1971, when the jury reported in disagreement. The second trial on the state court charges, in which he was represented by attorney Harold J. Boreanaz, began on November 22, 1972 and continued until December 5, 1972, when the jury returned a verdict of guilty of burglary, first degree, and grand larceny, third degree. On January 8, 1973 the state court imposed sentences on these charges, the longest of which was twenty-five years. On April 12, 1974 the Appellate Division of New York State Supreme Court reversed the state court convictions and that case is awaiting retrial in the state court.
On September 8, 1971 the defendant was indicted in federal court on the hashish charge, CR-1971-135. He was represented by attorney William B. Mahoney at arraignment and throughout the pretrial proceedings. No trial was held on this charge and it is the subject of the present motion to dismiss.
On December 9, 1971 the defendant was indicted in this court on a counterfeiting charge, CR-1971-219. Represented by attorney Harold J. Boreanaz, he was tried on that charge from June 1 through June 14, 1972, when the jury returned a verdict of guilty. After a presentence report was received, Judge Henderson sentenced the defendant for a period of study pursuant to 18 U.S.C. § 4208(b) on July 31, 1972. On August 19, 1972 he was transported to a federal penitentiary for study and was returned to the district on October 30, 1972. Upon his return, the defendant appeared initially for sentencing on November 20, 1972 but sentencing was delayed until December 11, 1972, at which time Judge Henderson imposed a sentence of five years. On August 17, 1973 an appeal on the counterfeiting charge, CR-1971-219, was dismissed for failure to prosecute. However, in October of 1973, upon application of the defendant, the appeal was reinstated and it is now pending on the Appellate docket.
On January 10, 1973 the defendant was indicted again in federal court on an obstruction of justice charge, CR-1973-28, which arose out of the murder of a witness in the counterfeiting case, CR-1971-219. On January 15, 1973 Mr. Reingold appeared for arraignment on the obstruction charge before me, represented by attorney Harold J. Boreanaz who advised that he was appearing to expedite the arraignment and to arrange for his own withdrawal from the case. He also assisted the defendant in petitioning for assignment of another attorney and represented to the court that the defendant was indigent. After examining all of the circumstances, I determined that Reingold was indigent under the applicable standards and entitled to assignment of counsel. On the following day I assigned attorney George P. Doyle to represent the defendant, but he withdrew because of a conflict and was replaced by attorney Carl H. Dobozin. After extensive pretrial proceedings, the obstruction charge was dismissed on motion of the government on May 24, 1974.
Having reviewed the defendant's procedural history, we can now turn to the speedy trial question. The government has not offered an explanation of why there was a delay in the proceedings from the date of arrest, June 29, 1971, until September 8, 1971 when Reingold was indicted on the hashish charge, CR-1971-135. Therefore, the 73 days which elapsed from the date of arrest until the eve of trial in the state court, which began on September 10, 1971, must be charged to the government.
The period from September 10, 1971 until September 30, 1971 should be excluded because the defendant was involved in the state court trial and Mr. Mahoney, his attorney, made arrangements to delay the arraignment before Judge Henderson until September 30. The period from September 30 until October 18, 1971 is excludable because a delay to file pretrial motions was granted at the request of the defendant's counsel. On October 18, 1971 Mr. Mahoney filed a motion for inspection of grand jury minutes. The pendency of this defense motion excuses the government from proceeding to trial under Section 5(a) of the Rules.
In spite of the pending motion, on the following day, October 19, 1971, the United States filed a notice of readiness. While the act of filing a notice comports with the procedure approved in United States v. Pierro, 478 F.2d 386 (2d Cir. 1973), the filing of such a notice alone, however, is not dispositive regarding any future delays. The government opposed the defendant's motion for inspection of the grand jury minutes and this motion was not granted by Judge Henderson until January 11, 1972. Under the circumstances, it appears that the notice of readiness filed on October 19, 1971 was meaningless. See United States v. Pollak, 474 F.2d 828 (2d Cir. 1973), and the same case on remand, 364 F. Supp. 1047 (S.D.N.Y.1973).
From January 12, 1972, after Judge Henderson had filed his order granting inspection of the grand jury minutes, until March 30, 1972, 78 days elapsed in which no activity was evident on the part of the government. On March 30, 1972 the government sent a letter to the defendant's attorney, which can be considered as the operative notice of readiness. This second notice advised Mr. Mahoney that the government would seek a trial date in the hashish case on April 3, 1972 before Judge Henderson.
Adding the period of delay from January 12, 1972 until March 30, 1972 to the prior period tolled from June 29, 1971 until September 10, 1971 results in a total lapse ...