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United States

decided: November 17, 1978.

UNITED STATES OF AMERICA, APPELLANT, LAI MING TANU, APPELLEE.


Appeal from an order of the United States District Court for the Eastern District of New York, Hon. Jack B. Weinstein, Judge, dismissing an indictment after two mistrials in federal court on a charge that had formed the basis for an earlier lengthy and inconclusive state proceeding. The Court of Appeals held that the District Judge lacked any inherent discretion to dismiss an indictment, which is legally sufficient, "in the interests of justice." The court also held that the dismissal could not be sustained on speedy trial or due process grounds. Reversed.

Before Oakes, Gurfein and Meskill, Circuit Judges.

Author: Gurfein

This appeal raises questions concerning Delay in bringing a defendant to trial in the federal court after dismissal of state charges arising out of the same transaction. There is no problem of double jeopardy, United States v. Lanza, 260 U.S. 377, 43 S. Ct. 141, 67 L. Ed. 314 (1922); Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), and there would be no doubt that the federal indictment was properly brought if the question of delay were not involved.

The District Court for the Eastern District of New York (Hon. Jack B. Weinstein, Judge) dismissed an indictment against Mrs. Lai Ming Tanu for drug offenses on July 11, 1978. The conspiracy to distribute heroin charged in the indictment allegedly occurred from May 29 to May 30, 1974 more than four years earlier, but within the period of the statute of limitations. The substantive counts charged that the defendant possessed the heroin with intent to distribute On May 30, 1974. The charges thus arose from a single transaction over a two-day period, and the first trial in the federal District Court began more than four years after the state arrest.

After two mistrials, the District Court dismissed the indictment "pursuant to the Sixth Amendment, the Eighth Amendment, the inherent power of th(e) court to control its own procedures under Article III of the Constitution and the policy of the United States as reflected in Rule 50(b), in the Speedy Trial Act, and in the various plans adopted pursuant to the authority of those provisions."*fn1 The court added that the dismissal was not "for failure of proof" nor "for reasons of double jeopardy"*fn2 and suggested that the Government should appeal "to determine whether (the court) has any residual powers in this area." The United States appeals, pursuant to 18 U.S.C. § 3731. It contends that the District Court erred in dismissing the indictment. To understand the questions of law raised by the Government, it is necessary to review in some detail the proceedings, both state and federal, that led to the order of dismissal.

The defendant Lai Ming Tanu was arrested by New York City Police (accompanied by federal agents) on May 30, 1974, for allegedly participating in the sale of heroin to undercover police officers with two others, Yeo Chin Nee and Lee Swee Lye. The undercover police officers were part of a joint federal-state Task Force; federal agents of the Drug Enforcement Administration (DEA) participated with New York City Police in the arrests. United States Government money was used to purchase the heroin, and the heroin was taken into custody by the DEA, not the City Police.

The federal government, at that point, had all the evidence it needed for a successful prosecution. The joint task force decided, however, to prosecute the three defendants in the state court, which imposes heavier statutory sentences.*fn3 Accordingly, on the next day, May 31, 1974, Mrs. Tanu and the others were arraigned on state charges in the New York County Criminal Court. On June 21, 1974, they were indicted by a New York County Grand Jury on three felony counts: criminal sale of a controlled substance (about two pounds of heroin) in the first degree and criminal possession of a controlled substance in the first and third degrees. Lee Swee Lye and Yeo Chin Nee, who actually made the sale, entered pleas of guilty on February 3, 1976, in the Supreme Court, New York County, and were sentenced to imprisonment in March 1976.

After Mrs. Tanu appeared on sixty-four occasions in the state Supreme Court, where she continually requested a speedy trial, that court, in September 1976, dismissed the by-then 27 month old indictment against Mrs. Tanu (with prejudice), on the ground that the defendant had been denied her right to a speedy trial under the Sixth Amendment and under New York Criminal Procedure Law § 30.20 (McKinney 1971 & 1978 Supp). The state Special Narcotic Prosecutor elected not to appeal.

The DEA agent who was acting as liaison on the case, John Gartland, knew of the state's decision not to press the matter further but took no action at the time. Nothing was done by the United States to charge Mrs. Tanu from September 1976 to May 15, 1978 when the instant federal indictment was filed about twenty months later.

The renewed federal interest in Tanu came about through an accident. The Government's brief recites the following chronology of events. In February 1977, Special Agent Robert Allen of the DEA who was not a Task Force member received an inquiry from Singapore concerning the status of the arrest involving Lee Swee Lye. Allen did not attend to the matter until April 1977. When he finally received the Lee Swee Lye file, he noticed that Mrs. Tanu had not been convicted in the state prosecution. Shortly thereafter, Margaret and Ernest Rossi, who had been arrested for the sale of heroin, told DEA agents that their source of supply was one "Anna Chu" which was believed to be another name for Lai Ming Tanu. The United States Attorney's Office negotiated with the Rossis in an effort to get them to testify against Tanu, but their efforts failed, and in October 1977, the Rossis elected to stand trial. Agent Allen then referred the matter of Tanu to the United States Attorney's Office, which opened a file on her in November 1977. On December 20, 1977, the United States Attorney requested approval to prosecute from the Department of Justice, apparently because the Department guidelines require permission from the Attorney General for a federal prosecution after a state prosecution for the same offense. See Petite v. United States, 361 U.S. 529, 80 S. Ct. 450, 4 L. Ed. 2d 490 (1960). The United States Attorney received approval to prosecute in early February 1978.*fn4

Three months later, on May 15, 1978, Mrs. Tanu was indicted by the federal grand jury for the same transaction that was the subject of the state indictment. The federal indictment also included a charge of possession of heroin found at the Pan American Motor Inn (see below), on which the county grand jury had refused to indict, together with a charge of conspiracy covering possession on May 30, 1974, the same date as alleged in the state indictment. By now, the act of possession which constituted the gravamen of both the state and federal charges (as is not uncommon in narcotics cases) had occurred four years earlier, and the state prosecution had already been dismissed twenty months before on Sixth Amendment grounds.

Judge Weinstein held initially that there was neither a Sixth Amendment nor a speedy trial ground for dismissing the federal indictment, despite the surface anomaly that the state court had already dismissed its indictment on speedy trial grounds. He accordingly ordered the case to trial, denying the Government's motion to postpone the trial because of the defendant's obviously pregnant condition, which the prosecution feared might elicit sympathy from the jury.

The first trial began on June 30, 1978. The Government's case indicated that at 7:00 P.M. on May 30, 1974, two police officers, acting in an undercover capacity, paid $52,000 in pre-marked official Government funds to Yeo Chin Nee and Lee Swee Lye in Room 26 of the Queens Motel. The defendant Tanu was sitting at the time in a telephone booth located in the lobby near Room 26. She was holding the receiver to her ear but did not appear to be talking. Lee Swee Lye left Room 26 carrying the money paid by the police officers, whereupon Tanu hung up the phone, left the booth, and accompanied Lee Swee Lye upstairs to Room 55. While waiting for Lee Swee Lye and Tanu to emerge, Detective Wright and Agent Gartland heard talking in Chinese and the sound of money being counted. When the door was opened, Tanu and Lee Swee Lye were arrested. In Mrs. Tanu's handbag, the officers found $37,000 of the pre-marked money, a key and a payment receipt in the name of "Tanu" for Room 504, Pan American Motor Inn, Queens (which was less than a mile from the Queens Motel), and keys to Tanu's safe deposit box at the China Safe Deposit Box Company. Pursuant to a search warrant obtained from a state judge, Room 504 of the Pan American Motor Inn was searched early the next morning. A cosmetic case found in that room contained 652 grams of heroin wrapped in a Chinese language newspaper. On June 19, 1974, a consent search of the safe deposit box turned up $10,600 in cash.

Lee Swee Lye, though attempts were made by the Government to sway him to the contrary, testified for the defense. He swore that Tanu was his "girlfriend" on May 30, 1974 and that she had no knowledge of the sale of heroin to the police; that he had asked her to join him at the Queens Motel only for companionship; and that he had asked her to carry the money found in her pocketbook, telling her he had won it on a horse race. He also swore that the heroin found in Room 504 of the Pan American Motor Inn was his, and that Tanu did not know that the package contained heroin.

With the issue of guilt or innocence thus clearly posed, the prosecution, in rebuttal, called Margaret Rossi (who by now had been convicted in her own case). She testified that when she was a heroin addict between 1970 and 1972 she purchased heroin more than twenty times from the defendant, whom she knew as "Anna Chu." To counter this damaging testimony, the defendant called her husband, Jack Tanu, who testified that he met the defendant in Hong Kong in 1969 and married her there in 1972; that the defendant then lived with her father in Hong Kong; and that the father died in October 1975. Mr. Tanu further testified that the defendant had never been in the United States before May 1973, and her immigration papers and passport showed that she apparently first entered the United States on that date.

The first trial resulted in a mistrial, based upon the jury's inability to agree on a verdict, on July 5, 1978. The court refused to dismiss the indictment and the second trial began the next day, July 6, 1978. This time the defendant did not offer any evidence. Again the jury was unable to reach a verdict, and on the defendant's motion a second mistrial was declared. The judge then dismissed the indictment for the reasons noted above.

Opposing the dismissal, the Government moved for an adjournment until after the defendant had given birth to her baby, and represented that if there should be a jury deadlock on the third trial there would be no further prosecution. The court noted that the defendant was not due to have her child until November, that at least another four months would go by before any possible retrial, and that it "is cruel to place a pregnant woman under that burden facing another trial. . . . I really ...


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