Appeal from an order entered in the United States District Court for the Southern District of New York, Charles L. Brieant, District Judge, quashing indictment against appellee for failure of Government to comply with the Southern District Plan for Achieving Prompt Disposition of Criminal Cases. Reversed.
Before Moore, Mulligan and Oakes, Circuit Judges.
The Southern District Plan for Achieving Prompt Disposition of Criminal Cases (Plan), adopted pursuant to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq., requires that a defendant be indicted within thirty-five days of arrest and that the Government be ready for trial within six months of arrest. Plan §§ 3(a) & (b), 7(a). The issue in this case is whether appellee Edgar Leonard's arrest on June 22, 1979, by cooperating federal and state narcotics agents, is properly characterized as "federal" rather than "state" for purposes of triggering the provisions of the Plan. The United States District Court for the Southern District of New York, Hon. Charles L. Brieant, held that the arrest was federal, thereby starting the limitations period. The indictment against appellee was dismissed as untimely. We reverse and order the indictment reinstated.
A one count federal indictment, filed on November 14, 1979, alleged that on March 1, 1979 appellee distributed and possessed with intent to distribute approximately one ounce of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). A superseding indictment filed on January 3, 1980 retained this count and also charged that appellee conspired between January 1, 1979 and October 15, 1979 to distribute heroin, as prohibited by 21 U.S.C. § 846.
The charges stemmed from an investigation of appellee conducted by agents of the New York Drug Enforcement Task Force (Task Force), an organization of federal, state, and city law enforcement officials acting in cooperation to uncover and apprehend federal and state narcotics law offenders. The Government asserts the evidence at trial will show that on March 1, 1979 appellee sold approximately one ounce of heroin to a Task Force informant. Largely as a result of that sale, the Task Force agents on March 20, 1979 obtained from a United States Magistrate for the Southern District of New York an order for the installation of a pen register on appellee's telephone. The informant was murdered on May 8, 1979. Thereafter a New York County Assistant District Attorney applied for and received approval from a justice of the Supreme Court of the State of New York for a wiretap on appellee's phone from May 29 through June 27, 1979. The same Assistant District Attorney, from the latter part of May through appellee's arrest on June 22, supervised the Task Force investigation and the wiretap interceptions.
On June 22, on the basis of monitored conversations and observations of appellee's movements during that day, the Task Force agents believed that he was transporting narcotics in his car. The agents stopped the car and Leonard threw a paper bag into the street. The bag contained no narcotics but $10,000 in cash was found in it. On the basis of the agents' knowledge of the March 1 sale and of Leonard's subsequent conversations and movements, there is no question as to the legality of that arrest. Leonard was taken to the Drug Enforcement Agency headquarters in New York City. The state prosecutor who was supervising the investigation, upon learning of the arrest, sought and received from a New York State Supreme Court Justice a warrant to search Leonard's apartment. When that search turned up no evidence of narcotics trafficking, the state prosecutor advised Leonard that he was not charged with any crime at that point and told him that he was free to leave. He also returned to Leonard the $10,000 which was in the paper bag retrieved by the agents. The state wiretap on Leonard's telephone was terminated on June 27, 1979.
After a two month hiatus, the Task Force requested the Office of the United States Attorney for the Southern District of New York to apply for a federal complaint and arrest warrant for narcotics possession and sale. A United States Magistrate for that district issued the complaint and the warrant on September 21, 1979, and appellee was arrested, again by Task Force agents, on October 16, 1979. Appellee was arraigned on the original November 14 indictment on November 21, 1979.
On Leonard's arraignment Judge Brieant on his own motion raised the speedy trial issue. Leonard then moved to dismiss the indictment, contending that the original June 22 arrest was a federal arrest which triggered the Speedy Trial Plan and required the Government to announce its readiness for trial no later than December 22, 1979. The District Court agreed, and, finding that the Government was not ready for trial before January 4, 1980, dismissed the indictment as untimely in an opinion and order filed on March 12, 1980. In an order filed on June 4, 1980, the district court granted reargument but adhered to its original decision. This appeal followed.
The crucial issue on this appeal is whether or not the June 22, 1979 arrest was properly characterized as federal by the District Court. It is conceded that a state arrest could not commence the running of the time limitations of the Southern District Plan. The Speedy Trial Act of 1974 on its face provides that its application is limited to those charged with "any Federal criminal offense which is in violation of any Act of Congress...." 18 U.S.C. § 3161(a), 1372(2). The Southern District Plan, as set forth in the margin,*fn1 clearly provides that its time limitations are applicable only if the individual is arrested for an offense to be prosecuted in the Southern District. On June 22, Leonard was not formally arrested for a federal offense. Under those circumstances Section 3(b) of the Plan deems the arrest to be made at such time as the person arrested is held in custody solely for the purpose of responding to a federal charge, is delivered to the custody of a federal official in connection with a federal charge, or appears before a judicial officer in connection with a federal charge. None of these circumstances occurred when Leonard was arrested on June 22.
Judge Brieant reasoned that there was a substantial federal presence in all the Task Force operations. A United States Magistrate had authorized a "pen register" on March 20, 1979, and of course federal agents were members of the Task Force. This latter factor, however, clearly does not make the arrest "federal" per se. See United States v. Mejias, 552 F.2d 435, 440, 442 (2d Cir. 1977), cert. denied sub nom. Padilla-Martinez v. United States, 434 U.S. 847, 98 S. Ct. 154, 54 L. Ed. 2d 115 (1977). Since there was no formal agreement entered into between cooperating state and federal officials indicating whether the prosecution was to be for state or federal narcotics offenses, we must look to the record to make the proper characterization.*fn2 The basis for the arrest on June 22 was the wiretap interceptions which had been authorized by a justice of the Supreme Court of New York on the application of a New York County Assistant District Attorney. That state prosecutor from late May until the arrest had supervised the investigation and the wiretap interceptions. He obtained the search warrant for Leonard's apartment after his arrest from a justice of the Supreme Court of New York. It was that state prosecutor who determined that there was no basis to hold Leonard for criminal prosecution, who returned the $10,000 cash to Leonard, and who authorized his release. None of the incidents set forth in Section 3(b) of the Plan ever occurred. The arrest, examination and release of Leonard were all supervised by a state prosecutor, which under these circumstances convincingly demonstrates that his arrest was for a state and not a federal offense. The earlier authorization by a federal magistrate of the "pen register" becomes insignificant in light of the further substantial involvement of the state prosecutor and the judicial intervention of state justices.
Judge Brieant pointed out that Leonard was later federally indicted for the same offenses that served as the basis for his initial arrest on June 22. He announced, therefore, that the "proper rule ... is to regard the arrest which ultimately eventuates in a federal prosecution, as a federal arrest ab initio ... and to extend to that arrest all rights and privileges arising under federal statutes or rules." While the Government contests this finding, we need not address the issue.*fn3 In United States v. Lai Ming Tanu, 589 F.2d 82 (2d Cir. 1978), this court, following United States v. Mejias, supra, held that even though a subsequent federal indictment is based on the same evidence and the same offense upon which an earlier state arrest was made, the time limitations of the Plan were not triggered by the prior state arrest. "(T)o force immediate federal indictments and trials of state arrestees in joint jurisdiction cases (would crowd) the federal court calendar in contravention of the purpose of the local district plan." 589 F.2d at 88, quoting United States v. Mejias, supra, 552 F.2d at 441.*fn4
We therefore conclude that the federal indictment and statement of readiness for trial ...