Appeal from judgment of conviction for conspiracy to possess and distribute heroin, in violation of 21 U.S.C. §§ 841(a), 846, entered after jury trial before Thomas C. Platt, J., in the United States District Court for the Eastern District of New York. Affirmed.
Kaufman, Chief Judge, Feinberg and Mansfield, Circuit Judges.
Dennis Drummond appeals from a judgment of the United States District Court for the Eastern District of New York, Thomas C. Platt, J., convicting appellant of conspiracy to distribute heroin. 21 U.S.C. §§ 841(a), 846. Judge Platt sentenced appellant, under 18 U.S.C. § 4208(a)(2), to five years in prison followed by a special parole term of five years. This was the same sentence appellant had received from another judge after an earlier trial for the same offense. That conviction was reversed by us in United States v. Drummond, 481 F.2d 62 (2nd Cir. 1973).*fn1 On his second appeal to this court, appellant again does not challenge the sufficiency of the evidence against him. Rather, he argues that the delay in his retrial violated the Eastern District's speedy trial rules and the United States Constitution. Appellant also complains of an evidentiary ruling. We affirm the judgment of conviction.
Our prior opinion ordering a new trial was handed down on July 5, 1973. For some reason not disclosed in the record, the mandate of this court did not issue until September 14, 1973, and was not received in the Eastern District until September 19. In accordance with procedures then in effect a different judge -- Judge Travia -- was that day randomly selected for the retrial. On October 1, Judge Travia began intensive proceedings in a criminal trial that eventually lasted nine months, until July 5, 1974.*fn2 No further steps were taken in appellant's case until April 12, 1974, when it was called before Judge Travia and adjourned for three weeks. A few days later, appellant moved to dismiss the indictment for failure to commence the retrial within the time period required by the Eastern District's speedy trial rules. Early in May, Judge Travia denied the motion and, still engaged in the long criminal trial, reassigned the case to Judge Platt, who was soon to be sworn in as a district judge. A mandamus petition in this court seeking to prevent the trial was denied, without prejudice to consideration of the issue on appeal, on May 21, 1974.*fn3 Appellant renewed the motion to dismiss before Judge Platt and for the first time also raised his constitutional right to a speedy trial. Judge Platt denied this motion, and trial commenced on July 11, 1974.
Appellant's principal claim is based upon Rule 6 of the Eastern District's Plan for Achieving Prompt Disposition of Criminal Cases (the Plan). That Rule reads, in pertinent part:
Where a new trial has been ordered . . . by an appellate court, it shall commence at the earliest practicable time, but in any event not later than 90 days after the finality of such order unless extended for good cause.
Appellant's argument is simple. The retrial here did not begin within 90 days "after the finality of" our order requiring a new trial*fn4 and there was no "good cause" for the delay. Therefore, the indictment should have been dismissed. The Government responds that a rigid reading of Rule 6 as inflexibly directing dismissal if a retrial is not actually held within 90 days is impractical and unnecessary. The Government argues that the Rule is part of an integrated speedy trial plan, which has as its goal the elimination of prosecutorial delay. Since the United States Attorney was at all times ready to try this case, Judge Platt correctly refused to dismiss the indictment.
The difficulty with the Government's position is that the language of Rule 6 is squarely against it. Rule 6 does not say, as do other Rules in the Plan, that the Government must be ready for trial within 90 days;*fn5 it says that the new trial "shall commence" by the specified time limit. Furthermore, Rule 5 of the Plan, dealing with excluded periods of delay, provides:
In computing the time within which the government should be ready for trial under Rules 3 and 4, the following periods should be excluded . . . . [Emphasis added.]*fn6
No mention is made of Rule 6. It is true, as the Government points out, that its construction of Rule 6 was embodied in the Rule's predecessor, which was part of the Second Circuit Rules Regarding the Prompt Disposition of Criminal Cases, adopted January 5, 1971 (Second Circuit Rules). The provision governing retrials in the Second Circuit Rules merely defined the starting date of the six-month period during which "the time [for retrial] shall run" and did not deviate from the general scheme of requiring only that the Government be ready for trial within defined time periods.*fn7 After promulgation of the Second Circuit Rules, however, the Federal Rules of Criminal Procedure were amended to require the federal district courts to adopt plans for the prompt disposition of criminal cases, subject to approval by the judicial council of the circuit. Fed. R. Crim. P. 50(b). See Hilbert v. Dooling, 476 F.2d 355, 356 n.2 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 38 L. Ed. 2d 123, 94 S. Ct. 56 (1973). Rule 6 of the Eastern District Plan tracks ...