John Stayton appeals from a judgment of the United States District court for the Western District of New York, John T. Elfvin, Judge, alleging violations of his right to a speedy trial. Reversed and remanded with instructions to dismiss the indictment with prejudice to reprosecution of Stayton.
Before: OAKES, KEARSE, and PRATT, Circuit Judges.
Appellant John Stayton was convicted on one count of unlawful importation of the Schedule-II controlled substance phenylacetone, a chemical used in the manufacture of methamphetamine. Voir dire of the jury took place twenty-three months before the jury was sworn and the court proceeded with opening statements and testimony. The United States District Court for the Western District of New York denied Stayton's motion, made on the eve of trial, to dismiss the indictment for violations of his rights under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and the sixth amendment. Since the delay between voir dire and the rest of the trial derogated the spirit and intent of the Speedy Trial Act, we vacate the conviction and remand with an instruction that the indictment be dismissed with prejudice to reprosecution of Stayton. Because the indictment in this case must be dismissed on the basis of the Speedy Trial Act, we need not address Stayton's contention that the delay here also violated his sixth amendment right to a speedy trial, see Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).
In June 1982 Canadian authorities were maintaining surveillance over four drums to phenylacetone, or "P2P", stored in a Toronto warehouse. Even though sale, possession, and use of P2P was not controlled in Canada, the officers watched the drums being transferred in a rented van and observed two men purchasing rubber hosing, hose clamps, a funnel, and other equipment. On June 15, 1982, two men, John Stayton and Carl Jackson, were stopped at the Peace Bridge in Buffalo as they attempted to enter the United States when customs officials, alerted by Canadian authorities, noticed liquid dripping from their van. Upon inspection, officials found two steel tanks welded underneath the van in which 200 kilograms of P2P had been secreted.
Stayton and Jackson were indicted on June 23, 1982, for unlawful possession and importation of phenylacetone and for related conspiracy charges, in violation of 21 U.S.C. §§ 841(a)(1), 952(a), 960(a)(1), and 846, and 18 U.S.C. § 2. After the district judge had excluded twenty days from the speedy trial calculus in the interest of justice, because of confusion caused by the filing and subsequent dismissal due to mistaken identity of a superseding indictment concerning a third coconspirator, voir dire of the jury was conducted on September 14, 1982, within the seventy day limit of the Speedy Trial Act. See 18 U.S.C. § 3161(c)(1). The jury was not, however, sworn at that time. In fact, the jury was not sworn, and the presentation of the case to the jury was not sworn, and the presentation of the case to the jury did not begin, until August 15, 1984, more than twenty-three months after the voir dire. Except for a short period after arrest while bail was being arranged, Stayton was not incarcerated during this time.
In the time between the voir dire and the rest of the trial, the district court addressed several pretrial motions. The most significant of these was made by Stayton's codefendant, Jackson, who moved to suppress certain identification testimony on September 8, 1982. The court heard oral argument on this motion on January 31, 1983, but did not decide it until May 31, 1984, over sixteen months later. During this extensive period, the assistant United States attorneys on the case sent seven reminder letters to the court and went so far as to make a motion for a decision on this and several other pending pretrial motions.
Alleging violations of their rights under both the Speedy Trial Act and the sixth amendment, Stayton and Jackson moved the day before trial, August 14, 1984, pursuant to Fed. R. Crim. P. 48(b), to dismiss the indictment against them. The district court reserved decision until the conclusion of the trial. During the trial the district court dismissed all counts against codefendant Jackson, and all but one against Stayton, intentionally and unlawfully importing phenylacetone into the United States, on which the jury returned a verdict of guilty on August 23, 1984. Eleven months later, by a memorandum and order dated July 26, 1985, the district court finally denied Stayton's motion to dismiss on speedy trial grounds as well as his post-trial motions for acquittal and for a new trial. The judge found no violation of the Speedy Trial Act because "the commencement of jury selection had satisfied the requirements * * * of the Act." This appeal followed.
A. When Trial "Commences".
Under the Speedy Trial Act:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
18 U.S.C. § 3161(c)(1) (emphasis added). The post-voir dire delay at issue here presents the question of what must be done to satisfy the commencement requirement of the act. Several circuits have concluded that under this provision a jury trial commences at the voir dire. See, e.g., United States v. Manfredi, 722 F.2d 519, 524 (9th Cir. 1983); United States v. Howell, 719 F.2d 1258, 1262 (5th Cir. 1983), cert. denied, 467 U.S. 1228, 81 L. Ed. 2d 878, 104 S. Ct. 2683 (1984); United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir.), cert. denied, 456 U.S. 994, 73 L. Ed. 2d 1291, 102 S. Ct. 2279 (1982). In addition, the Plan for Prompt Disposition of Criminal Cases in effect in the Western District of New York, which has been approved by the Second Circuit Judicial Council pursuant to 18 U.S.C. § 3615(c), provides that "[a] trial in a jury case shall be deemed to commence at the beginning of voir dire." Western District of New York, Plan for Prompt Disposition of Criminal Cases § 4(e)(3). In this case, the district court relied on both Gonzalez, 671 F.2d at 443, and the western district plan in ...