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UNITED STATES v. BEBERFELD

February 5, 1976

The UNITED STATES of America,
v.
Carole BEBERFELD, Defendant



The opinion of the court was delivered by: OWEN

MEMORANDUM AND ORDER

 OWEN, District Judge.

 Defendant Carole Beberfeld moves to dismiss this narcotics indictment on the ground that the government has failed to comply with the six month rule *fn1" set forth in the Plan For Achieving Prompt Disposition of Criminal Cases. *fn2" The principal questions raised by this motion are whether a certain written waiver of speedy prosecution signed by the defendant tolled the operation of the six month rule, and whether the government was entitled to rely on the waiver having that effect.

 I held a hearing herein at which the defendant and Special Agent James Greenan, of the Drug Enforcement Administration (DEA), testified. *fn3" From their testimony and the submitted affidavits, I find the following facts: The defendant was arrested on November 7, 1974 in her apartment by agents of the DEA. They informed her of her rights, searched her apartment, and confiscated some items including her address book and certain "marked" funds the agents had used in a narcotics transaction earlier that day. She was taken to DEA headquarters. There she was again informed of her rights, and questioned for approximately three hours. She signed a waiver of her rights to remain silent and to counsel, and thereafter wrote a statement acknowledging and describing her role in the crimes for which she is here charged, and agreed to cooperate with the government. *fn4" She was then driven home, and told to appear the next morning in the office of Assistant United States Attorney Michael Carey.

 The next morning the defendant did go to Carey's office where she was questioned, and thereafter Carey prepared a typed instrument entitled, "Waiver of Arraignment and Speedy Trial" which waived the right to immediate arraignment, to counsel, and to a probable cause hearing. In addition, the said statement purported to waive the Rules Regarding the Prompt Disposition of Criminal Cases. *fn5" Carey read the statement to the defendant several times, and asked her whether she understood it. She responded affirmatively, initialled each page and signed it. The purpose of the waiver and the consequent non-arraignment, one can reasonably assume, was to provide a favorable climate for the expected cooperation from which both the government and the defendant hoped to receive benefits. *fn6"

 For the next three or four days thereafter, agents from DEA communicated on a daily basis with the defendant. In response to her assertion that she could not cooperate without the phone numbers contained in her confiscated address book, she was furnished with the numbers she claimed to need. About a week after her arrest, she first retained a lawyer who advised her about the mechanics of the Plan, and the government's obligation to prosecute within six months. Whether because of lack of desire or lack of knowledge, she was not a useful informant, and within two months of her arrest, she had a final conversation with Agent Greenan in which she unequivocally refused to cooperate. *fn7" Thereafter, there was no communication between the defendant and DEA; Assistant United States Attorney Carey was apparently not informed of the defendant's refusal to cooperate until the spring or summer of 1975, some months later. On August 29, 1975, the defendant, along with three codefendants, was indicted for violations of the narcotics laws. She entered a not guilty plea on September 8, and this matter is sub judice, the government has not filed a notice of readiness. In sum, after some three to seven weeks of "cooperation," defendant, to the government's knowledge, was "uncooperative" for another eight months before indictment.

 At the outset, the defendant contends that her waiver was neither knowing nor voluntary. Taking into account her college education, Agent Greenan's testimony that the statement was read and explained to her, the facts that she initialled every page, that she was not in custody, and that there was the passage of almost a day between the time of arrest and the signing of the waiver, I reject her contention, and find that her waiver was knowing and intentional. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). I find further support for this conclusion in the fact that after discussing the mechanics of the Plan with her lawyer one week after arrest, the defendant chose not to revoke her waiver.

 The troublesome question that remains, however, is whether a knowing and voluntary waiver of "all rights" under the Plan can in and of itself toll operation of the six month rule. *fn8" The government argues that since the defendant can waive her constitutional rights, a fortiori she can waive her less fundamental rights under the Plan. However, rephrasing the question in terms of the underlying issue, does the rule bestow upon the defendant a personal right which is hers to waive, or is the rule intended to further a public interest which extends beyond a concern for the rights of a defendant, and hence is not subject to waiver? From an examination of the Plan, its overall scheme and purpose, and the case law interpreting it, I reach the latter conclusion.

 In a statement accompanying the Second Circuit Rules, *fn9" the Circuit Council noted that:

 
The public interest requires disposition of criminal charges with all reasonable dispatch. The deterrence of crime by prompt prosecution of charges is frustrated whenever there is a delay in the disposition of a case which is not required for some good reason. The general observance of law rests largely upon a respect for the process of law enforcement. When the process is slowed down by repeated delays in the disposition of charges for which there is no good reason, public confidence is seriously eroded.

 This emphasis upon the public interest in the prompt disposition of criminal cases has been a constant theme in the case law interpreting the Second Circuit Rules and the Southern District Plan. *fn10"

 The Plan serves the public interest in ways extending beyond society's interest in the protection of the rights of the accused. Its framers recognized that swift punishment is essential to effective deterrence, *fn11" that there is a danger that defendants awaiting trial may commit other crimes, intimidate witnesses or flee, *fn12" and that "[when] the process is slowed down by repeated delays in the disposition of charges for which there is no good reason, public confidence is seriously eroded." *fn13" As the Second Circuit has stated: "[the] Plan was not established primarily to safeguard defendants' rights. Rather the Plan, and the Second Circuit Rules before it, were to serve the public interest in the prompt adjudication of criminal cases." United States v. Flores, 501 F.2d 1356, 1360 n. 4 (2nd Cir. 1974).

 Underlying the government position is the premise that the public, the defendant and the prosecutor all have the same interest in prompt disposition, and thus the public interest is adequately represented when the defendant and the prosecutor agree to a waiver. But if such were the case, there would have been no need to enact the Plan. The court in promulgating the Plan -- and Congress in enacting the Speedy Trial Act *fn14" -- has determined that the immediate participants cannot be relied upon to further the public interest in prompt disposition. In its report on the Speedy Trial Act, the Senate Committee on the Judiciary noted that "[only] very rarely is it in the defendant's interest to seek speedy trial, for in most cases it is the last thing he wants." *fn15" Similarly, prosecutors, defense attorneys and even courts "depend on delay in order to cope with their heavy caseloads . . . . To them there is little incentive to move quickly in what they see as an unending series of cases." *fn16" Taking into account the lack of incentive prosecutors have to achieve prompt disposition, the Plan is designed to focus "primarily on prevention of prosecutorial delay as a means of implementing the public interest in disposition of criminal charges with reasonable dispatch." Hilbert v. Dooling, 476 F.2d 355, 357 (2nd Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S. Ct. 56, 38 L. Ed. 2d 123 (1973). It would be antithetical to this entire design if the parties were permitted to free themselves from the constraints imposed by the Plan through the simple expedient of the willing defendant signing a waiver. As the Advisory Committee to Rule 50(b) noted, "there is need to try to expedite criminal cases even when both prosecution and defense may be willing to agree to a continuance . . . ."

 Because the public interest is involved, the court must assume ultimate responsibility for prompt disposition. United States v. Lasker, 481 F.2d 229, 234 (2nd Cir. 1973), cert. denied, 415 U.S. 975, 94 S. Ct. 1560, 39 L. Ed. 2d 871 (1974). In its Statement accompanying the Second Circuit Rules, the Circuit Council recognized that "the interest of the public and the rights of defendants can best be protected through a firm control of criminal prosecutions by the district courts." The Plan specifies that "[the] court has sole responsibility for setting and calling cases for trial . . . . Each judge will schedule criminal trials at such times as may be necessary to assure the prompt disposition of criminal cases." 9(a). *fn17" Waiver ...


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