The opinion of the court was delivered by: COOPER
IRVING BEN COOPER, District Judge.
Defendant Didier moves to dismiss the indictment on the ground that he was deprived of his right to a speedy trial, secured by both the Southern District Plan for Achieving Prompt Disposition of Criminal Cases ("Southern District Plan") and the Sixth Amendment to the Constitution.
On February 16, 1973 Indictment 73 Cr. 169 was filed charging defendants Didier, Ashdown and Lombardozzi with conspiracy (Count One), additionally Didier and Lombardozzi with the substantive crime of interstate transportation of stolen securities (Count Two), in violation of 18 U.S.C. §§ 371 and 2314, respectively.
On November 26, 1973 defendants Didier and Ashdown commenced a jury trial before us.
The jury began their deliberations on December 3, 1973. Upon learning that the jury was hopelessly deadlocked, we declared a mistrial.
On May 22, 1974 the Government filed its Notice of Readiness to proceed with the retrial of Didier and Ashdown on or after May 23, 1974. In a letter dated June 10, 1974 the Government requested that the retrial be set down for the fall of 1974 in order to allow sufficient time for the United States Court of Appeals for the Fifth Circuit to decide Ashdown's appeal from his mail fraud conviction in the Western District of Texas. We recognized as meritorious the Government's position and so by letter dated June 17, 1974 we scheduled the trial of these two defendants for the fall of 1974. Ashdown's conviction was affirmed by the Fifth Circuit on March 17, 1975. United States v. Ashdown, 509 F.2d 793 (1975).
On March 25, 1975 the Government promptly and properly requested the immediate retrial of the defendants. On March 27 by letter we scheduled April 2, 1975 for a conference of all parties concerned. Copies of both letters were sent to Didier's attorney, Robert Talcott, Esq., a resident of California. However, he had changed his address without notifying either the Court or the Government and the letters were returned unopened.
At the end of April 1975, Mr. Talcott informed the Government he would not represent Didier at the retrial of this case because Didier had refused to pay him for legal services rendered at his first trial, and that Rudolf Harper, Esq., another California attorney, would replace him. Mr. Harper confirmed Mr. Talcott's representation at a conference called by the Court on June 12, 1975 at which we fixed September 2, 1975 as the definite date for retrial. (On July 16, 1975, the present whereabouts of co-defendant Ashdown being unknown, we issued a bench warrant for his arrest.)
In his present motion Didier claims he was denied his right to a speedy trial under the Southern District Plan and the Sixth Amendment. For the reasons that follow we reject his contentions and deny his motion in its entirety.
I. Didier's Claim under Rule 6 of the Southern District Plan
Didier's principal contention is that the Government violated Rule 6 of the Southern District Plan.
Rule 6 of the Southern District Plan provides:
Where a new trial has been ordered by the district court or a trial or 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.
Didier claims his right to a speedy trial was violated here since a second trial was not commenced within 90 days of our declaration of a mistrial on December 3, 1973.
In opposition, the Government raises two arguments: first, that Didier waived his right to a speedy trial under the Southern District Plan by a signed stipulation, and second, since it misunderstood the changes effected by the Southern District Plan, the 90 ...