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UNITED STATES v. GONZALEZ

February 19, 1975

UNITED STATES OF AMERICA
v.
LEOPOLDO GONZALEZ , et al., Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM DECISION

 February 18, 1975

 PLATT, J.

 On December 7, 1972 the defendant GONZALEZ was arrested and charged with a violation of the laws of the United States regulating the sale and distribution of narcotic drugs. The following day, December 8, 1972, he was arraigned with his co-defendants, Antonio Ramirez, Marco Martinez and Alberto Morin, before Magistrate Brisach in the Westbury Branch of the United States District Court, Eastern District of New York. Over the objection of the United States Attorney, bail was set at $500.00 cash for Gonzalez, Ramirez and Martinez and $200.00 cash for Morin. On January 4, 1973 defendants Gonzalez and Martinez were indicted on the underlying indictment, 73 CR 4. Gonzalez was arraigned on this indictment before Judge Rosling on January 19, 1973 but co-defendant Martinez failed to appear and a bench warrant was issued.

 A superseding indictment, 73 CR 102, was filed on January 26, 1973 against both Gonzalez and Martinez naming the other defendants as well. On February 9, 1973, defendant Gonzalez was arraigned on the superseding indictment with additional bench warrants being issued for the other three defendants who failed to appear.

 The government filed a notice of readiness for trial on February 13, 1973.

 On January 26, 1973, defendant Gonzalez filed an "omnibus motion" requesting a dismissal of the indictment, discovery and a bill of particulars. At the February 9, 1973 arraignment defendant Gonzalez requested and received permission to renew his "omnibus motion" against the superseding indictment.

 Judge Rosling called the case on March 2, 1973 for argument. However, the March 2 date had been adjourned to March 16, 1973 by stipulation between the parties. On that date Judge Rosling reserved decision and adjourned the matter to March 30, 1973 for the court's decision. On March 30 the discovery controversy was resolved and the government requested and was granted a severance for the defendant Gonzalez.

 On April 9, 1973 the government responded to the defendant Gonzalez's request for discovery and particulars as to both the underlying and superseding indictments.

 Judge Rosling died on April 16, 1973. All of Judge Rosling's cases were reassigned by the Clerk of the Court on a random selection basis with the instant matter apparently being assigned to Judge Travia some time in the Spring of 1973. At no time during Judge Travia's control over the case was it placed on his calendar and no activity is reflected until November 8, 1974 when the case appeared on Judge Platt's calendar after being reassigned upon Judge Travia's resignation from the bench.

 For at least nine months of this period of inactivity, Judge Travia was engaged in a protracted criminal trial. However, during this period, November 1973 to July 9, 1974, a number of other matters appeared on Fridays on his calendar for conference.

 In December of 1973, Drug Enforcement Agents informed the Assistant United States Attorney, Joan O'Brien, who has been in charge of the case from its inception, that the fugitive defendant Martinez had been apprehended in Mexico and was being detained there for the crime of possession of cocaine. A Department of Justice official could give no estimate to Miss O'Brien as to the likelihood or amount of time necessary to extradite Martinez. A new and more detailed bench warrant was obtained on December 19, 1973 and extradition proceedings begun on January 22, 1974. At no time was the original February 1973 bench warrant vacated. As of the date of this decision, the defendant Martinez is still in custody in Mexico.

 Defendant Gonzalez now moves for an order dismissing the indictment upon the following grounds:

 
(a) Defendant's right to a speedy trial as guaranteed by the Sixth Amendment of the United States ...

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