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January 11, 1977


The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

 The question presented by this case is whether a defendant who is indicted before his twenty-sixth birthday, but pleads guilty after his twenty-sixth birthday, can be sentenced under the provisions of the Federal Youth Corrections Act (the Act), Title 18 U.S.C. §§ 4216 and 5005 et seq., when the delay was caused both by circumstances beyond his control and by the vigorous assertion of defendant's constitutional rights.

 Rivera was arrested on April 16, 1974 and arraigned before the magistrate the following day. Since defendant was without funds to employ counsel, Larry S. Greenberg of the Federal Defender Services was assigned to represent him at his arraignment on April 17, 1974. A formal indictment was not lodged against Rivera and three co-defendants until July 8, 1974.

 Rivera was specifically charged with conspiracy to distribute and the actual distribution of a controlled substance, Lysergic Acid Diethylamide (LSD), under Title 21, U.S.C. §§ 812, 841 and 846. He pleaded not guilty on July 22 to conspiracy.

 A hearing was held on defendant's motion to suppress certain statements made by him after his arrest on September 13, 1974. The issue was whether Rivera's right to counsel was properly waived prior to his admissions. The motion was denied. The court then allowed defense counsel to submit a brief on the different question whether the delay in arraignment after the arrest on April 16 constituted grounds to suppress these statements. A trial date of December 4 was also set at this time.

 On November 13 defense counsel was notified by the court that the trial date had been adjourned for three months -- to March 10, 1975 -- at the request of one of Rivera's co-defendants. Meanwhile, on December 24, 20 days after the originally scheduled trial date, Rivera turned twenty-six years of age and thus became "ineligible" for sentencing under the provisions of the Act.

 In February of 1975, and before the next scheduled trial date of March 10, 1975, Mr. Greenberg left the Federal Defenders Service. He was subsequently replaced by Rivera's second Federal Defenders office attorney, Mr. Daniel Steinbock. As a result of this change in defense attorneys, the trial was again adjourned to July 21, 1975 to give that lawyer an opportunity to prepare and present new motions. A third adjournment was then necessitated by the fact that Mr. Steinbock's wife had accepted a brief three month period of employment as a law clerk to this judge. At the time of such employment, the court was not aware of the possible conflict. The trial was then set for October 28, 1975. The trial was again adjourned since this court was involved on October 28, 1975 in a lengthy multi-defendant trial which took eight weeks of trial time.

 Meanwhile, Mr. Steinbock had made two pretrial motions: the first was the question (on which the court had requested briefs) whether the delay between the arrest and the arraignment vitiated the defendant's waiver of his right to remain silent and his right to counsel. The second motion, which was made for the first time, sought suppression on the ground that certain statements were the fruit of an illegal arrest.

 This second motion was granted at a suppression hearing on December 12, 1975 and was appealed by the Government. The Court of Appeals reversed this court's decision four months later on April 16, 1976. As a result of this appellate decision, a hearing on the arraignment delay motion was scheduled for May 26, 1976, but this hearing had to be adjourned until June 10, because Mr. Steinbock had left the Federal Defender's office to be replaced by Rivera's third assigned counsel, Mr. Edward T. Chase. This hearing was then held on June 10 and again on June 18 after the Government moved to reopen the hearing. Pending decision, the Government consented to the suppression of the statement on July 1, 1976.

 On September 14, 1976 Rivera pleaded guilty to the conspiracy count of the indictment. The sentencing was scheduled for October 18, 1976. The sentence hearing was adjourned by the court so that both counsel could read the presentence report and the parties could submit briefs on the question whether Rivera could be sentenced under the Act. Although it had long been the policy of this judge to permit both defendant and defense counsel to read the presentence report in chambers at counsel's convenience, this had not been done in this case. Defense counsel advised the court that since it had suspended the sentences of all 3 co-defendants, such a suspension would be automatic in this case. Therefore, he did not bother to read the presentence report. This court's liberal policy with respect to presentence reports predated by many years any requirement to this effect.

 The Federal Youth Corrections Act *fn1" provides that the sentencing judge may sentence a person under the age of twenty-six years at the time of conviction, *fn2" if the court finds that defendant can benefit from the liberal sentencing provisions of this Act. The most salient feature of this sentencing alternative is the provision for setting aside the conviction if a defendant placed on probation pursuant thereto successfully completes that probationary period and is discharged from probation before its expiration. *fn3" After review of the presentence report, this court was of the view that defendant could benefit from the rehabilitative features of the Act. However, at time of sentence this defendant had passed his 26th birthday. After considering briefs submitted by both sides, this court concludes that, under the circumstances of this case, defendant should be treated as a Young Adult Offender, despite the fact he had passed his 26th birthday at time of sentence. The reasons therefor are the following.

 The thirty months which elapsed between the initial arrest on April 16, 1974 and the guilty plea of September 14, 1976 could not be attributed to the defendant. The trial was originally scheduled for December 4, 1974. It was adjourned at the request of Rivera's co-defendant. Although Rivera did not object to this extension, he had no duty to make such an objection. It is the court's responsibility to assure that criminal trials proceed expeditiously. Defendant need not press for a quick adjudication of his case. Speedy trial is a right to which a defendant is entitled as a matter of law. Speedy Trial Act of 1974, 18 U.S.C. §§ 3161, 3174; Plan for Prompt Disposition of Criminal Cases of the Southern District of New York; United States v. Roberts, 515 F.2d 642, 647 (2d Cir. 1975); United States v. Didier, 542 F.2d 1182 (2d Cir. 1976). Accord, United States v. Vispi, 545 F.2d 328 (2d Cir. 1976).

 The second and third postponements of the trial were due to unscheduled change in assignment of defense attorneys and the fact that this judge had hired Mr. Steinbock's wife for a special emergency. These delays were also not attributable to Rivera.

 The final period of delay, from December 12, 1975 to September 14, 1976 was due to the motion practice on the part of Rivera. In December, this court found that Rivera's statement to an Assistant United States Attorney was the product of an illegal arrest. The Court of Appeals did not reverse until April 16, 1976. A second set of suppression hearings was held in June of 1976. The Government finally ...

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