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August 16, 1977


The opinion of the court was delivered by: DUFFY



 By notice of motion filed July 21, 1977, defendant has moved to dismiss the indictment for denial of his speedy trial rights under the Sixth Amendment to the Constitution, the Speedy Trial Act, 18 U.S.C. ยง 3161, et seq., the Southern District Plan for Achieving Prompt Disposition of Criminal Cases, and the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases.

 Irving Goldman was indicted on April 1, 1975 for conspiracy and mail fraud. At a pre-trial conference before me on May 29, 1975 I granted his request, over the government's objection, to defer his time to file motions challenging the indictment until a date ten days after determination by the New York State Supreme Court of motions addressed to prior state indictments covering supposedly the same subject matter as the federal one. Defendant represented at that time that this extension would not be invoked by him with regard to the mandate of Rule 4 of the Plan for Achieving Prompt Disposition of Criminal Cases, the then-governing speedy trial plan for the Southern District of New York. Notwithstanding this representation, the government repeatedly urged the setting of a fixed schedule for filing motions, and announced its readiness for trial by letter dated June 16, 1975.

 At a pre-trial conference on September 23, 1975, four months after the granting of defendant's request for the extension, I allowed him one month within which to file his motions, over defendant's protestations that I continue to await rendition of a decision on the state court motions. After obtaining yet another extension, defendant submitted motion papers on November 3, 1975 in support of a motion to dismiss the federal indictment. Also contained in these papers were various discovery requests and a request to stay prosecution of this action pending the outcome of the state proceedings. Because of the voluminous nature of this motion, the government was granted an extension of time to respond, and it did so on December 5, 1975.

 On December 29, 1975 the parties appeared for another pre-trial conference at which defendant requested, and was granted, a three-week period within which to inspect certain documents and submit reply papers. The following day, December 30, 1975, the government filed a second notice of readiness for trial. Defendant's reply brief was submitted on January 21, 1976; the government responded on January 28, 1976. According to defendant, the motion was not fully submitted until February 9, 1977.

 In March or April 1976 Goldman underwent surgery for a triple coronary bypass. At a conference on September 16, 1976, when I learned that no medical examination had yet been conducted to determine Goldman's medical condition and fitness to stand trial, I directed the parties to have defendant examined, adding that if the parties could not agree on a doctor, I would appoint one. By January 1977 the parties could not so agree; consequently, by order dated January 13, 1977 I appointed two doctors to examine Goldman and report to the court. A medical hearing with respect to Goldman's condition was then held, which concluded on April 29, 1977. This hearing resulted in a determination that day that Goldman was fit to stand trial and the trial was set down for May 9, 1977. Defendant strenuously objected to this trial date. A further conference was then held on May 3, 1977 and the trial date was deferred.

 On June 23, 1977 I held another conference to ascertain defendant's readiness to proceed to trial and was informed of defendant's intention to move to dismiss the indictment on speedy trial grounds should an unfavorable ruling on the motion to dismiss be obtained. Despite defendant's assertions to the contrary, the motion to dismiss, it is emphasized, contained a request to stay this prosecution pending final determination of the two state prosecutions; and, I note, it was not until May 12, 1977 that defense counsel informed my chambers that the second state indictment had just been dismissed.

 On June 27, 1977 I issued a 34-page opinion and order denying the motion to dismiss and ruling on the various additional requests. A trial date of August 23, 1977 was set.

 On July 21, 1977 defendant filed the instant motion to dismiss the indictment on speedy trial grounds, notwithstanding his history of requests for a stay of the prosecution, the conducting of a medical examination and hearing, and his persistent opposition to the setting of a trial date while his various motions were sub judice. For the reasons enumerated hereinafter, the instant motion is denied.

 The challenge to the indictment based on the applicable local rules is palpably insubstantial. From April 1, 1973 until September 29, 1975 this district was governed by the Plan for Achieving Prompt Disposition of Criminal Cases; thereafter until July 1, 1976 when procedures pursuant to the Speedy Trial Act of 1974 went into effect, this district was governed by the Interim Plan pursuant to that Act. Under Rules 4 and 5, respectively, of the pre-July 1976 plans, the government was required to be ready for trial within six months of the filing of this indictment.

 That requirement was clearly satisfied in this case. The government's first notice of readiness was filed on June 16, 1975, just two and one-half months following the April 1, 1975 return of the instant indictment. The second notice of readiness was filed on December 30, 1975. Disregarding for the moment the first notice of readiness, but bearing in mind that defendant was granted a stay from May 29, 1975 to at least September 23, 1975 (no less November 3, 1975 when the first set of motion papers were filed) during which time the strictures of Rule 4 were concededly suspended, the second notice of readiness was well within the six-month limitation.

 Defendant urges that the government's notices of readiness must be disregarded because of the open discovery items. See United States v. Pollak, 474 F.2d 828 (2d Cir. 1973) (remanded for findings on whether failure to comply with an outstanding discovery order rendered the notice of readiness meaningless). However, there is no reason to doubt the sincerity of the government's December 30, 1975 notice of readiness despite the fact that it was aware of open discovery issues when the notice was filed, for substantially all the material subsequently ordered produced had already been made available to defendant. The material subsequently ordered produced under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), consisted of an arrest record of one Harold Rosedale, which defendant claims is not even Brady material. The fact that defendant asserts that the government is withholding Brady material does not make it so. If defendant's claim be true, appropriate action will be taken at the time of trial when such a showing is made.

 Moreover, the government was not the party dragging its feet in this case; it was the defendant who sought stays, deferrals, and extensions. Although Goldman was indicted on April 1, 1975, it was not until some seven months later that defendant filed his discovery requests and sought a bill of particulars; and from that moment through May 1977 defendant opposed all attempts to speed this case to trial. Cf. United States v. Armedo-Sarmiento, 545 F.2d 785, 791 (2d Cir. 1976). It was clearly the defendant who was the instigator of a shoddy attempt to delay whatever justice might be found at trial. ...

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