The opinion of the court was delivered by: BRIEANT
Defendant, Stanley Jervey, by a motion filed November 4, 1985 seeks an order dismissing this indictment pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 and the Sixth Amendment to the United States Constitution. Defendant contends that an unreasonable delay occurred between the time he entered into federal custody (from state custody on an unrelated matter) and the date that the grand jury indicted him. The Government does not dispute the relevant dates, but contends that most, if not all of the delay was within the statutory exclusions.
On March 20, 1984 a complaint was filed in this District against Mr. Jervey, charging him with stealing from the mail a check made payable to Ms. Clara Littman and Ms. Muriel Fishbein and depositing that check into his own bank account. Affidavit of Henry J. Picariello, Ex. A, Nov. 20, 1985. An arrest warrant issued thereon. Mr. Jervey was not arrested immediately, apparently because his whereabouts were unknown to federal authorities. However, on March 23, 1985 he completed serving a sentence in the Los Angeles County Jail, which was imposed for disturbing the peace and forgery. From that date until June 20, 1985 he remained in California state custody pending extradition to New York to answer unrelated charges in this State. The State of New York, however, failed to complete any effort to extradite Mr. Jervey within the 90 day period provided by the California Penal Law.
On June 20, 1985, and pursuant to the March 20, 1984 complaint and warrant, U.S. Marshals arrested Mr. Jervey and removed him to federal custody. On June 24, 1985 he was arraigned before a United States Magistrate in the Central District of California. The magistrate continued the matter until July 30, 1985 so that the Government and defense counsel could discuss the possibility of a plea in that district pursuant to Rule 20, F.R.Crim.P. These discussions bore no fruit, and after Mr. Jervey waived his right to a removal hearing, the Magistrate on July 31, 1985 issued a Warrant of Removal to this district.
Mr. Jervey completed his transcontinental journey on August 20, 1985 and appeared before Magistrate Gershon in this District on August 27, 1985. The grand jury returned its indictment on September 6, 1985.
The four count indictment charges Mr. Jervey with violations of 18 U.S.C. § 1708. Each count refers to checks that Mr. Jervey allegedly stole from the mail and deposited in his own bank account. Only Count One, however, refers to the check which was also the basis for the complaint filed in March of 1984.
The Speedy Trial Act provides that, "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from date on which the individual was arrested or served with a summons in connection with such charges." 18 U.S.C. § 3161(b). Other subsections of the Act provide for exclusions of time for certain delays regarded as reasonable by Congress.
One such subsection permits the exclusion of any "delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure." 18 U.S.C. § 3161(h)(1)(G). The Government contends that the time from June 24, 1985 to August 20, 1985 falls within this exclusion. This contention is partially correct. The period during which the California Magistrate continued the matter so that the attorneys might consider a disposition pursuant to Rule 20, F.R.Crim.P. does fall within this exclusion. Once defendant waived his right to removal proceedings and the Magistrate issued the Removal Warrant, the "Speedy Trial Clock" began again to accrue the days.
Section 3161(h)(1)(H) of the Act provides for the exclusion of "delay resulting from transportation of any defendant from another district . . . except that any time consumed in excess of ten days from the date an order of removal is signed . . . and the defendant's arrival at the destination shall be presumed to be unreasonable." (Emphasis added).
This Court recognizes the reality of federal prisoner transportation. Under existing conditions, three weeks for this trip is neither unusual nor unexpected. The prison bus, which usually takes a circuitous route like that of a tramp steamer, need not run through the night. Security requirements affect when and where a day's journey must end. Congress did not intend that prisoners and their custodians travel on the regularly scheduled airlines as a customary means of travel. The statute is explicit, however, that a reasonable time for a prisoner's removal is presumed by Congress to be no more than ten days.
This presumption, as part of a Congressional mandate, applies here unless some extraordinary event occurred in the case to make compliance with the directions of Congress unfeasible. Here, the Government has simply asserted, correctly, that no bad faith existed, and that it is common for defendants' transcontinental transportation to endure for more than ten days. Such ordinary institutionalized delay is not an excuse. When this Act was passed Congress knew all about the customs and practices of the prison bus. Congress remains capable of providing the Department of Justice the necessary funds to assure reasonable compliance with its direction, barring unusual circumstances, regardless of the distance between prisons.
The time between arrest and indictment in this case, after making the exclusions permitted under subsections (G) and (H), amounts to 32 days. This determination includes the following calculations: (1) Four days between June 20 (arrest) and June 24 (hearing in California); (2) Eleven of the twenty one days between July 31 (Removal Warrant signed) and August 20 (arrival in this district); and (3) Seventeen days between August 20 and to September 6 (indictment filed).
The Government's failure to indict defendant within the permissible amount of time (30 days) requires dismissal of Count One of the current indictment, ...