Appeal from a judgment of conviction in the Southern District of New York, Irving Ben Cooper, judge, after a jury trial on charges of conspiracy and transportation of stolen securities in foreign commerce, on the ground that the government failed to retry appellant within 90 days of a previous mistrial in accordance with Rule 6 of the Plan for Prompt Disposition of Criminal Cases of the Southern District of New York. Reversed with directions to dismiss the indictment.
Anderson, Mansfield and Mulligan, Circuit Judges.
MANSFIELD, Circuit Judge:
This case presents a good example of the kind of excessive delay that led Congress to pass the Speedy Trial Act. 18 U.S.C. §§ 3161-3174. Appellant's first trial on charges of conspiracy and transportation of stolen securities in foreign commerce ended on December 3, 1973, with the declaration of a mistrial. His retrial, which resulted in conviction, did not take place until 28 months later, over three years after the filing of the indictment, over one year after our admonitions in United States v. Drummond, 511 F.2d 1049 (2d Cir.), cert. denied, 423 U.S. 844, 46 L. Ed. 2d 65, 96 S. Ct. 81 (1975), and United States v. Roemer, 514 F.2d 1377 (2d Cir. 1975), and almost seven months after promulgation of the Southern District's 1975 Plan for the Prompt Disposition of Criminal Cases, which required retrial within 60 rather than 90 days. No acceptable excuse is offered for most of this delay. We therefore reverse.
On February 16, 1973, an indictment was filed in the Southern District of New York against appellant Didier and his two co-defendants Lombardozzi and Ashdown, charging them with conspiring to transport stolen securities in foreign commerce in violation of 18 U.S.C. §§ 2314 and 2315 and causing stolen securities to be transported in foreign commerce in violation of 18 U.S.C. §§ 2314 and 2. The government filed its notice of readiness for trial on April 19, 1973, and on September 18, 1973, Didier stipulated that the trial would be set for November 26, 1973, thus waiving his right to an earlier trial. Lombardozzi pleaded guilty to one count of the indictment, and Didier and Ashdown proceeded to trial, which ended on December 3, 1973, with the declaration of a mistrial.
The government did not file its notice of readiness for retrial until May 22, 1974, almost six months later. Thereafter, in a letter to the court dated June 10, 1974, the government requested that retrial be postponed until the fall on the grounds that Ashdown had been convicted in Texas on other charges, that the conviction was on appeal to the Fifth Circuit, and that oral argument in that case would not be heard until September. The government indicated that it would prefer to wait and see whether Ashdown's conviction was affirmed; if it was, Ashdown could be severed and given immunity in return for testimony against Didier. The government further noted that otherwise it would probably consider severing Ashdown's case from Didier's anyhow. Without consulting Didier,*fn1 the district court agreed to delay trial until the Fifth Circuit decision. Ashdown's conviction was not affirmed until March 17, 1975. United States v. Ashdown, 509 F.2d 793 (5th Cir.), cert. denied, 423 U.S. 829, 46 L. Ed. 2d 47, 96 S. Ct. 48 (1975).
On February 11, 1975, in United States v. Drummond, 511 F.2d 1049 (2d Cir.), cert. denied, 423 U.S. 844, 46 L. Ed. 2d 65, 96 S. Ct. 81 (1975), we held that Rule 6 of the Eastern District's Plan for Achieving Prompt Disposition of Criminal Cases mandated retrial, not merely government readiness, within 90 days after the final judgment on the first trial and that the exclusionary periods of Rule 5 did not toll the running of the 90 days under Rule 6. In view of the pre-existing confusion on the issue, however, we found the delay there involved to be excusable and thus in effect made our holding prospective. At the same time, we served notice that we would not tolerate such delays in the future. 511 F.2d at 1054. Shortly thereafter we repeated this warning in United States v. Roemer, 514 F.2d 1377, 1382 (2d Cir. 1975).
Following Drummond, the government, upon communicating with the court, was advised that Judge Cooper, to whom the present case had been assigned for retrial, would be sitting outside of the Southern District from February 17, 1975, to March 14, 1975. In a letter dated March 25, the government requested trial "as soon as possible in the convenience of the Court." Judge Cooper responded by letter dated March 27 ordering a pretrial conference on April 2, 1975. Copies of both letters were sent to Robert Talcott, the attorney in California who had represented Didier at the first trial. Unfortunately, Talcott had changed his address without informing either the government or the court, so the letters were returned unopened. When reached at his new offices in Los Angeles Talcott advised that he had long since told Didier that unless Talcott was paid for his services he could no longer represent Didier. Some time later Talcott informed the government that he would not be representing Didier. In late April or early May, Didier advised the government that he had retained Rudolph E. Harper of Los Angeles to represent him at the upcoming retrial. Harper attended the pretrial conference on June 12, 1975, and trial was set for September 2, 1975.
On June 30, 1975, appellant filed his first motion to dismiss for failure of the government to abide by Rule 6 of the Plan for Achieving Prompt Disposition of Criminal Cases*fn2 and for violation of his Sixth Amendment rights. The court denied his motion on July 29, 1975, holding that, although appellant's waiver of his right to a speedy trial was voided and his right to a speedy trial revived by the declaration of a mistrial (a holding with which we agree), the government's tardiness in filing a notice of readiness and the delay thereafter was justified by the confusion as to the effect of Rule 6, which was not settled until Drummond, by the need to wait for the Fifth Circuit's decision, and by appellant's lack of counsel. 401 F. Supp. 4 (S.D.N.Y. 1975).
In the meantime, the government had apparently made no effort to get in touch with Ashdown and offer him immunity in return for testimony against Didier. Ashdown's counsel advised the government on July 17, 1975, that his client's whereabouts were apparently unknown. Fearing that Ashdown had become a fugitive, the government moved for a bench warrant, which was granted July 18. A month later the government advised the court that Ashdown had still not been located and that there was no reason to believe that he would be arrested by the September 2 trial date. The court agreed sua sponte to adjourn the trial sine die until Ashdown could be found. The government then advised appellant's attorney of the adjournment. Appellant did not voice objection to the further delay.
On September 29, 1975, a revised Southern District Plan for Achieving the Prompt Disposition of Criminal Cases went into effect, replacing the old Rule 6 with a new Rule 7 that reduced the allowable period between mistrial and retrial to 60 days and eliminated extensions "for good cause."*fn3 On November 25, 1975, the government discussed with Didier's attorney possible dates for retrial after Judge Cooper would be free of other trials then scheduled and in progress, which other trials ultimately ran from September 2 to January 22, 1976, but they failed to agree on a trial date.
On December 30, 1975, appellant again moved to dismiss for the government's failure to bring the case to trial. The court denied the motion in a decision dated February 19, 1976, noting that Ashdown was still at large and that appellant's counsel had failed to contact the court to object to the adjournment sine die. Relying on United States v. Lasker, 481 F.2d 229 (2d Cir. 1973), cert. denied, 415 U.S. 975, 39 L. Ed. 2d 871, 94 S. Ct. 1560 (1974), the court held that the burden was on appellant to move for a severance and that absent such a motion he could not be heard to complain. In any event, noted the court, appellant could not have been tried during the adjournment sine die because the court was otherwise occupied. Judge Cooper, however, directed that the retrial go forward on March 8, 1976, whether or not the government had apprehended Ashdown by that time. Didier himself requested an adjournment from March 8 until April 12 for business reasons, and the trial finally began on April 12, 1976, 28 months after declaration of the mistrial. At the trial, which lasted six days, the government produced six witnesses. Didier himself was the only witness for the defense. The jury convicted him on both counts.
This case is not one of first impression. Although we have never ordered an indictment dismissed with prejudice for failure to abide by Rule 6 of the Southern District's 1973 Plan for Achieving Prompt Disposition of Criminal Cases (continued with modifications as Rule 7 of the 1975 Plan and Rule 5(b) of the current Plan), we have repeatedly ...