United States v. James Favaloro
493 F.2d 623
2d Cir.
1974
Check Treatment

*2 I. City, Brill, York for New Maurice Pierro, supra, we pellant Soluri. held “the must commu- that Government City Horlick, Jay Gregory New York its for trial court nicate readiness to the C., Horlick, Cooper New (Zerin, P. & (cid:127) the in some fashion within six-month City, for York . .” F.2d at . 389. We Moschitta. that fact that reasoned the Gov- “[t]he MANS- Before HAYS ready for will ernment knows it is Judges. FIELD, Circuit significance if be of little to the court given that information.” Id. at is not requirement de- this the judgments of appeal from is an This in each case would for dis- fendant for conviction peri- at the end of the six-month missal commerce, the hold an od and court would to Ap- 659, 2313, and 2315. 18 U.S.C. §§ evidentiary hearing to determine retro- argue they were denied that government actively whether the speedy the Second Circuit trial under ready for trial within six months. Regarding Prompt Disposition of that We concluded agree with Cases.1 not intended such a “wasteful rules had reverse defendants and therefore to two procedure.” Id. dismiss orders to their conviction with government argues The Pierro that against af- them. We apply instant should not to the defend- of the third the conviction firm where relevant facts occurred before ant. the decision Pierro. that contends Appellants arrested on were “legislative,” supplying 26, 1969, not requirement additional which July 16, 1973. On until March explicitly require. rules did not dis-We moved agree. him because of dictment Scafo, 480 United States bringing government’s to him 1973), im comply trial and its failure apply plied Pierro should retroac Rules, Disposition Rule and with tively. explicitly hold We now government 48(b), The F.R.Cr.P.2 merely Pierro does. enunciated what its until not file notice of readiness begin from the have been clear should to es- 1971. On face seems ning. government Because the re- tablish violation give below was forced notice court government quires the be proce precisely “wasteful resort trial within six But arrest. in Pierro feared. dure” which the court seeks to the de- sustain give ex notice cannot be failure The by nial of the motion court district cused, especially read the notice of since grounds holding on the in Unit- adopted by the procedure had been iness Pierro, ed F.2d 386 Attorney for East of the U.S. office applied not retro- be prior York New ern District actively and that conditions in Unit- Prompt Disposition date of the effective ed States the East- Rules. 1. The made A to dismiss was Rules have been similar motion superseded mo- Both his on March Circuit Plan Favaloro Achieving earlier tion Soluri’s governed The Cases. case is denied to trial. instant old rules. (1973 App. II. C.A. Supp.). Indeed, it through prod intended the rules to government argues alternatively to take what- in the office of the Unit- steps necessary ever dispose ed Eastern Dis- rapidly. criminal cases It cannot have “excep- trict of New York constituted intended exempt sub silentio to tional circumstances” within the mean- *3 Eastern District from the rules at the ing 5(h).3 disagree. of Rule very promulgated moment that them. 1969 the United 5(h) “was intended to cover,ex- Attorney States Eastern traordinary occasions that left office. His successor did not take envision,” could not office until October Rollins, (2d Cir. hiatus number of Assistant United 1973), not situations of which the draft- Attorneys dropped States in the ers were well aware. backlog sharply pending of cases The Circuit Council did make certain correspondingly. increased As condi- provisions to ease the introduction of tions in the office returned to normal the new rules. Specifically, provided prosecutor devoted his attentions to that the rules would not take “jail effect until (cases in cases” which defendants promulgation. six months after It stat- incarcerated) and cases older than purpose ed the of period the six-month the instant case. This case was as- as follows: signed during years the first two of its pendency to two period different Assistant “[T]he six-month Attorneys. operative Neither at- rules become provide tempted procure indictments sufficient time for the United States bring much less to it to trial. to determine which cases April, assigned 1971 the case was should be a reached for trial and which assistant, new who obtained cases should be discontinued, since the on June 1971 and filed already a notice of need for such action has July 22, 1971, days readiness on six aft- to their attention on numer- appellants’ er motion to dismiss. ous occasions.” Statement the Cir- Council, supra, cuit at 68. See also Pollak, In United States v. 474 F.2d Scafo, States 480 F.2d suggested that, 1973). 1316 n. 8 “perhaps, extraordinary situation in prosecutor” the office of the could con If the United States did not exceptional stitute an circumstance. 474 notify intend to the district court of its categorically F.2d at 830. re prescribed period, readiness within the jecting suggestion we find that the it should have discontinued the case. facts “exceptional here do not amount to Finally, delay we note circumstances.” between arrest and readiness for trial the six-month limit not a exceeded Council Sec The Circuit months, or even a few few weeks the conditions within knew ond Circuit years. twenty nearly More than two adopted the when it circuit delay new occurred January 5, Rules on after Attorney had taken office States At United the United States It had consulted precise District. in the Eastern torneys in the circuit. See Statement of delay, ly with the Accompany kind of inordinate Sec Council Circuit resulting public confidence erosion Regarding ond Circuit process en- of law Cases, 3. Rule 5 reads as follows: ..... delay computing (h) periods “In Other time which the occasioned within exceptional circumstances.” should be trial un- following periods der rules 3 and should be excluded: Attorneys and forcement, the Circuit Council Assistant United States Judge Rosling (de- Dis- hoped the law clerk of overcome with ceased) giving . After careful considera- position Rules. See Statement of supra, exceptional Council, To hold at 67. tion to the circumstances backlogs justify heavy or which existed caseloads proceeding years tion in the United Of- District, the intolerable back to fice in the us Eastern thrust would tels found that circum- which existed meaning such adoption the rules. We within the of Rule stances” cases, holding. 5(h) existed. He listed the 41 all exceptions, minor criminal with III. Sep- Judge Rosling had tried between dif- appellant Moschitta preference As April 1973, tember 1971 and counsel His exists. situation being given jail ferent eases. and older-date *4 16, join failed different Three (Rule 7 of Rule 8 1971. Under in office rules) a defendant “failure resignations of Assistants tion. Mass discharge prior Restaffing required substan- resulted. rights of such waiver constitute Changes shall periods of time. of counsel tial Rules].” delays. [under caused for the defendants short, my opinion, not for is Accordingly, Moschitta must appellate court, an isolated from the rely the sixth amend under on claims practical problems prosecutor’s of the 48(b) of the Federal and ment office, to substitute views for those Both Procedure. Rules Judge who heard witnesses timely as he did not fail because claims local was familiar with the situa- rights thereunder and because sert his tion. delay. prejudice from the no he suffered Judge I would affirm Bartels. 514, Wingo, 92 407 U.S. S.Ct. v. Barker (1972); 2182, 101 United L.Ed.2d Rehearing Petition for On 522, Infanti, F.2d 527-529 Single 1973); By opinion dated March ton, appellants Fav- this Court reversed as to denied, S.Ct. cert. judgments aloro and entered Soluri (1973). L.Ed.2d 180 the United States District Court appellant Moschitta. as to Affirmed convicting Eastern District of New York appellants Favaloro Reversed as to appellants of violation of 18 U.S.C. §§ vacate instructions and to judgment of conviction from com- the indictments. merce. affirmed as to ground he Moschitta on the Judge (dissenting): join in the motion other summarily rejects the majority court below to dis- Judge findings and conclusions miss for failure tels, defendants afforded who comply with the Second Circuit transcript) pages lengthy (159 evi- Regarding Prompt Disposition of Crim- support dentiary hearing their claim inal Cases. By jury ver- speedy trial. denial of a rehearing petition it has been deter- have been defendants dict join Moschitta shown that guilty. prejudice No mined to have grant therefore motion. We delay which been shown has original as petition, vacate might deprived of a fair them and reverse Moschitta trial. judgment court with of the district Bartels, indictment hearing structions before On the called, former him. three four witnesses