UNITED STATES of America, Appellant, v. Herbert YAGID, Defendant-Appellee.
No. 265, Docket 75-1288.
United States Court of Appeals, Second Circuit.
January 5, 1976
Argued Oct. 29, 1975.
528 F.2d 962
The Claimant‘s membership in a non-maritime union rather than in a maritime union speaks loudly for a joint labor-management practical and realistic construction of the nature of a pondman‘s work and duties as non-maritime employment.
Accordingly we conclude that the Claimant was not, in connection with his employment by Weyerhaeuser, engaged in maritime employment and is not entitled to LHCA benefits.
The decision of the Board is vacated and the decision of the Law Judge is reinstated. The cause is remanded to the Board for appropriate decision and orders consistent herewith.
Reversed and remanded.
Herbert Yagid, pro se.
Before MULLIGAN, OAKES and MESKILL, Circuit Judges.
MESKILL, Circuit Judge:
On July 7, 1975 the District Court for the Southern District of New York dismissed Indictment 73 Cr. 471 against Herbert Yagid on the ground that he had not been retried, after a successful appeal, within the 90 day period prescribed by Rule 6 of the Southern District‘s Plan for Achieving Prompt Disposition of Criminal Cases (“the Plan“). The government appeals that dismissal. It claims that the district court should not have dismissed the indictment because, at the time of the order of dismissal, the 90 day period had not yet expired. Rule 6 reads as follows:
“Where a new trial has been ordered by the district court or a trial or new trial has been ordered by an appellate court, it shall commence at the earliest practicable time, but in any event not later than 90 days after the finality of such order unless extended for good cause.”
The government contends that this Court‘s order for a new trial did not become final on December 16, 1974, when its mandate was filed, but rather on April 14, 1975, when the Supreme Court denied Yagid‘s co-defendant‘s petition for writ of certiorari. The government argues further that even if the earlier date applies, good cause existed for the extension of the 90 day period. In short, it claims that Rule 6 had not been violated and that, consequently, Judge Brieant‘s dismissal of the indictment should be reversed.
A brief discussion of the facts is necessary to understand the government‘s argument as well as our reasons for affirming the order of the district court.
Herbert Yagid, Jerry Allen, Salvatore Badalamente, Louis Stern and three others originally were charged in a two-count indictment with conspiracy to transport in interstate and foreign commerce forged, altered and counterfeit passbooks and certificates of deposit obtained from various banks in violation of
Our mandate, dated December 12, 1974, was filed in the district court on December 16, 1974. Badalamente petitioned for a writ of certiorari in the Supreme Court on January 17, 1975, 43 U.S.L.W. 3529. Certiorari was denied on April 14, 1975, 421 U.S. 911, 95 S.Ct. 1565, 43 L.Ed.2d 776 (1975). Apparently, no one connected with Yagid‘s case made any efforts to have it assigned for retrial until late February, 1975, when the Assistant United States Attorney addressed telephone inquiries to Judge Carter‘s chambers about reassignment, only to be told that the matter “would be taken care of.” Someone at the District Court Clerk‘s office erroneously told both parties that the case had been reassigned to Judge Harold Tyler. After phone calls to Judge Tyler‘s chambers failed to clarify matters, the government again was informed by the Clerk‘s office that the case had been placed on Judge Tyler‘s docket. In mid-March, the government learned that all of Judge Tyler‘s cases were in the process of being reassigned.1 Unfortunately, at no time did the government seek to communicate in writing with Judge Carter, who had tried the case on its first journey through the judicial system.
In mid-April, the government filed a Notice of Readiness in an attempt to ascertain the whereabouts of the case. After learning that the notice had not been docketed, the government, on April 30, 1975, filed a new Notice of Readiness.2 In response thereto, Judge Carter, on May 23, 1975, sent a memorandum to the District Court Assignment Committee which said:
“I have just received a notice of readiness for trial on or after May 5 [1975] in the above case. . . . [T]he opinion of the Court of Appeals suggests that I not preside at the retrial. Apparently this development had not come to the attention of the Assignment Committee, and the case has not yet been reassigned. I would suggest that the reassignment proceed without delay, and that the Judge who is to preside over the trial be advised that he may have to proceed with the trial of this case promptly.”
By June 4, 1975 the Assignment Committee had reassigned the case to Judge Brieant. Judge Brieant held a pretrial conference on June 20, 1975 where he raised the issue of compliance with Rule 6. He heard oral argument on the point on July 2, 1975 and, on July 7, 1975, filed a memorandum opinion and order dismissing the indictment against Yagid without prejudice because the government had failed to commence the retrial of the case within 90 days, as required by Rule 6 of the Plan.
The memorandum opinion intimated that this Court is without power to effect changes in the district court‘s docket and that “[a]ccordingly, notwithstanding a recommendation of the Court of Appeals that a case ‘should’ be reassigned to another judge, no reassignment should be expected to take place except upon the initiation of the attorney for the Government or defendant, or on the application of the Assigned Judge himself.” Before addressing the issues raised on appeal, we should place in focus this
Court‘s recommendation that a different judge should preside over the new trial and the communication of that observation to the court below.
I. Finality of the Order for Retrial
The government cites United States v. Roemer, 514 F.2d 1377 (2 Cir. 1975), as authority for its position that the court‘s order for a new trial became final, not on December 16, 1974, when the mandate was filed, but on April 14, 1975, when Badalamente‘s petition for certiorari was denied. We find Roemer to be distinguishable from the facts of this case and affirm the dismissal of the indictment.
A superficial reading of Roemer might lead to the conclusion that it should be controlling in the instant case. Closer scrutiny, however, leads us to hold otherwise. Roemer was found guilty as a party to a conspiracy to defraud the United States.7 The challenge to his conviction included a claim that his trial had not begun within the time limit es-
The posture of the instant case is significantly different. What Badalamente, Yagid‘s co-defendant, sought by petitioning for certiorari was principally the new trial already granted Yagid. The government contends, however, that in a supplemental brief which Badalamente filed with the Supreme Court, he sought review on the basis of a new ground, which, if successful, would have benefitted Yagid by dismissal of the indictment.8 That is true. Nevertheless, the instant case is clearly distinguishable from Roemer. Roemer did not prevail when the government appealed the dismissal of his indictment. The Court of Appeals ordered his indictment reinstated. His co-defendants sought certiorari on the very issue on which Roemer lost. Had they prevailed in the Supreme Court, Roemer clearly would have benefitted. Therefore, this Court properly found that the order for Roemer‘s trial did not become final until his co-defendants’ petition for certiorari was denied. In addition, by delaying Roemer‘s trial until the Supreme Court‘s disposition of the petition for certiorari, the criminal justice system also benefitted, since a needless trial might have been avoided. In the instant case, Yagid succeeded in winning a new trial. Badalamente, his co-defendant, did not. Badalamente sought certiorari for the very relief which Yagid had already won, plus dismissal of the indictment on an additional ground, which, if successful, would have benefitted many people under indictment, including Yagid.
In determining the proper limits of the “benefit” test of Roemer, we must consider the purpose of the speedy trial rules adopted by the district court pursuant to
II. “Good Cause” Extension of the 90 day Period
Finally, we address the government‘s claim that “good cause” existed to extend the 90 day period. It argues that such “good cause” existed because it had made diligent efforts to bring the case to trial, because Yagid had done nothing to hasten the setting of a new trial date, and because this Court‘s clarification of Rule 6 in United States v. Drummond, 511 F.2d 1049 (2 Cir. 1975), had been issued two months after a new trial was ordered in the present case. We find these contentions to be without merit. While there may have been no prosecutorial misconduct here, certainly none of the administrative snafus in this case can be charged to the defendant. The issuance of our Drummond opinion still allowed the government one month to begin trial under the 90 day rule. In both Drummond, supra, 511 F.2d at 1054, and Roemer, supra, 514 F.2d at 1382, we found “good cause” for extending the 90 day period but warned that such delays in the future would not be tolerated. That future has arrived. We hold that there was no good cause for extending the time.
Rule 6 does not specify the sanction to be applied in cases of non-compliance. Because we recognize that the public has a dual interest of enforcing the criminal laws and of upholding the Plan, United States v. Flores, supra, 501 F.2d at 1360 n. 4, we believe that the trial court has discretion to decide whether dismissal should be with or without prejudice.10 A “without prejudice” disposition is not an abuse of discretion absent a clear showing of prosecutorial misconduct, inordinate delay causing actual prejudice to the defendant, or other circumstances weighing heavily against reindictment. Since there has been no such showing made in this case, Judge Brieant properly dismissed the indictment without prejudice.
Affirmed.
MULLIGAN, Circuit Judge (dissenting):
I think that United States v. Roemer, 514 F.2d 1377 (2d Cir. 1975) is controlling here. In that case we held that the order directing a trial for Roemer did not become final even though he did not pursue possible appellate reversal because his co-appellees had sought certiorari and he “stood to benefit” from their efforts. 514 F.2d at 1381 n. 4. Here Yagid clearly would be benefited if his co-defendant had succeeded in persuading the Supreme Court to dismiss the indictment. He would not have to stand trial at all—the benefit here obviously would be greater than the new trial sought in Roemer. How then does the majority distinguish Roemer? We are told that the criminal justice system was benefited since a needless trial might have been avoided in that case. Had Badalamente succeeded in the Supreme Court in dismissing the indictment, Yagid‘s retrial would have become perforce
We are also told by the majority that to expand Roemer would not serve the public interest in the prompt adjudication of criminal cases nor the accused‘s interest in a speedy trial. But Judge Smith pointed out in Roemer, 514 F.2d at 1381, that the public also has a concomitant interest “in the punishment and deterrence of criminal behavior.” Moreover, since the dismissal below was without prejudice and Yagid can be reindicted, the question of “speed” is not now an issue. The trial court here also found that Yagid himself in any event had not made any effort to bring the case to trial.
The majority finally warns that to extend Roemer could mean that a defendant, by asserting “spurious” claims “in a petition for certiorari seeking greater relief than his co-defendant has sought and won, could bind his co-defendant insofar as a speedy trial is concerned.” The prospect of a defendant making a spurious claim in order to prevent his co-defendant from enjoying the benefits of a speedy trial is indeed far-fetched. If the majority simply means that irrespective of intent the co-defendant who has taken no appellate steps is therefore deprived of a speedy trial, the position is unrealistic. The prospect of no trial is much more attractive than a speedy retrial to any normal criminal defendant. In any event, there is nothing at all to suggest here that Badalamente‘s petition for a writ of certiorari was spurious. Although the majority notes that United States v. Crispino, 392 F.Supp. 764 (S.D.N.Y.1975) upon which he relied was subsequently reversed in this court, it did represent the considered view of a district court judge. We cannot therefore characterize a writ based on that opinion as spurious. A defendant who is convicted has the untrammelled right to appellate review and we cannot premise a re-trial rule upon the assumption that the ground for the review is flimsy or phony. The co-defendants of Roemer were also unsuccessful in obtaining certiorari but there is no indication in that case that this court made any assessment of the odds of appellate success in formulating its re-trial rule. In this case the ninety-day period for the re-trial under Rule 6 commenced when Badalamente‘s petition for certiorari was denied on April 14, 1975. The Roemer rule thus spares the government and the defendant the burden of an unnecessary trial if appellate review ultimately exonerates the defendant; if review is not successful, the public‘s interest in the punishment and deterrence of criminal behavior will be accommodated by allowing re-trial within 90 days from the time review proves fruitless. It thus seems to me that this case is well within the rationale of Roemer, that it does not represent an expansion of that case, and that the distinctions proffered by the majority are not at all meaningful.
I fully concur with that part of the majority opinion upholding the propriety of the direction that on re-trial the case be assigned to a different district court judge.
CERTIFIED BUILDING PRODUCTS, INC., and Carl Fidler, an Individual, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 74-2777.
United States Court of Appeals, Ninth Circuit.
Jan. 23, 1976.