UNITED STATES оf America, Appellee, v. James Seeley CYPHERS and James W. Ferro, Appellants.
Nos. 328, 329, Dockets 76-1131, 76-1160.
United States Court of Appeals, Second Circuit.
Argued Oct. 18, 1976. Decided Feb. 8, 1977.
Rehearing En Banc Denied April 18 and June 29, 1977.
Certiorari Denied June 13, 1977. See 97 S.Ct. 2937.
The following events convince us that the district court was not clearly wrong in its finding. Despite persistent inquiries by the plaintiff, her doctors gave inconclusive answers when she asked whethеr the pills might have caused her first hemorrhage: they were not sure, but they doubted that there was a connection. She was told to stop taking the pills simply as a precaution. Appellant‘s reliance on an isolated fragment from one doctor‘s report is unpersuasive. Although the fragment seems to suggest a causal link, the doctor‘s notes begin and end with statements that are inconsistent with such a suggestion. In any event, the physician never passed his suspicions on to the plaintiff. After the inconсlusive responses of her doctors, it is not reasonable to expect the plaintiff to seek out a technical reference volume in the hope of second-guessing their advice. On these facts, we see no need to reverse the district court‘s ruling.
Affirmed.
Thomas W. Evans, New York City (P. Jay Wilker and Lance Gotthoffer, New York City, of counsel), for Cyphers.
Douglas J. Kramer, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., for the Eastern District of New York, Bernard J. Fried, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before SMITH, OAKES and TIMBERS, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This is an appeal by James Cyphers and James Ferro from judgments of conviction on three counts, based on two indictments, of violating
I.
Cyphers and Ferro were found guilty by a jury on three counts of using the mail to defraud airline companies by means of altered credit cards and identifications, in violation of
Relying on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), Cyphers and Ferro claim that the evidence was insufficient to establish any violation of
In United States v. Finkelstein, 526 F.2d 517, 526-27 (2d Cir. 1975), cert. denied, Scardino v. United States, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976), we set out the elements involved in a violation of
Dr. Simon, a dentist, testified that he frequently traveled to Florida from Long Island and was told by George Nagin, a friend, that airline tickets for Florida could be obtained at a discount. Dr. Simon called Nagin and had him order round-trip tickets for a February 8, 1973 flight from John F. Kennedy Airport (“JFK“) to West Palm Beach. After he paid Nagin, Dr. Simon received the tickets in the mail on or about February 3, 1973. This transaction was the basis of Count I of indictment 74 CR 322. Again in February, 1973 Dr. Simon needed tickets to Florida; since Nagin was in Florida, Dr. Simon went to Nagin‘s Manhattan office to pick up the tickets ordered through Nagin‘s business associate. At Nagin‘s office Dr. Simon met a man who gave him the tickets he had ordered; at the same time Dr. Simon ordered tickets for his partner, Dr. Sylvan. Dr. Sylvan testified that he received these tickets in the mail on or about February 14, 1973; this transaction was the basis of Count II of indictment 74 CR 322. At the end of February, 1973 Dr. Simon again purchased airline tickets through Nagin for a flight between JFK and Florida, and he received these tickets through the mail. This transaction was the basis of Count I of indictment 75 CR 259.
George Nagin testified that he had been told by Cyphers about the availability of cheap airline tickets and that he had purchased tickets from Cyphers, at a discount, for his own use. Nagin also testified that either Cyphers or Ferro, Cyphers’ nephew, picked up the money when Dr. Simon had ordered tickets. Cyphers had given Nagin a telephone number, 832-1211, in order that he could be reached for orders, and Nagin had given this number to Dr. Simon. This telephone number was proven to have been installed, together with an answering device, in Cyphers’ apartment.
On March 19, 1973 an arrest warrant for Cyphers and Ferro was issued pursuant to a complaint of a Postal Inspector, and the warrant was executed against Cyphers and Fеrro at Cyphers’ apartment on March 20, 1973. Consent to search the apartment was obtained from Cyphers, and various drivers’ licenses, credit cards, a credit card validator, and various credit card company bulletins reporting stolen credit cards were found in Cyphers’ briefcase and in his apartment.
One of the seized credit cards bore the name of Richard Redstrom. Richard Rooney, manager of commercial credit for United Airlines, testified that a credit card bearing the aсcount number found on the Redstrom credit card was issued by United Airlines to Richard Hedstrom and that the credit card had been altered to read Richard Redstrom. Richard Hedstrom testified he lost his credit card on February 23, 1973. Rooney testified that numerous airline tickets had been purchased on February 26, 1973 at Boston on the Hedstrom/Redstrom credit card and that the airline had received no payment for these tickets. The signatures on the Hedstrom/Redstrom charge slips were identified as Ferro‘s. The airline tickets purchased on February 26 included the one received by Dr. Simon at the end of February and others for flights leaving from Newark, Chicago, Cleveland, and Los Angeles.
It was stipulated that a Fred Preston Staff credit card had been reported lost and that three airline ticket charge slips were incurred with the use of the credit card after its reported loss. There was evidence from which the jury could believe that Cyphers had signed these airline tickets charge slips. One of these charge sliрs involved an airline ticket purchased in Newark for a flight scheduled to depart from Los Angeles.
While there is no direct evidence that either Cyphers or Ferro purchased either the tickets received by Dr. Simon on February 3 or the tickets received by Dr. Sylvan, the jury could find from the evidence summarized above and other evidence
While Cyphers and Ferro might have delivered the tickets to Dr. Simon and Dr. Sylvan in person, they were mailed and the jury could find that these mailings were part of the general scheme to mail airline tickets to people in New York, Chicago, Cleveland, and Los Angeles. The jury could also find that the fraudulent scheme depended on repeat business from satisfied customers of Cyphers and Ferro and that the delivery of the tickets was an essential part of the scheme. Under the standards set out in Finkelstein the evidence was sufficient to support the conviction of both Cyphers and Ferro on all three counts.
II.
Cyphers was represented by an attorney during the trial. Relying on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), Cyphers claims he has a sixth amendment right to make his own summation.
This reliance is misplaced. Herring does say that “a defendant who has exercised the right to conduct his own defense has, of course, the same right to make a closing argument.” 422 U.S. 864, n. 18, 95 S.Ct. 2556. But neither Faretta nor Herring deals with a defendant who is represented by counsel and wishes to participate as co-counsel. In United States v. Wolfish, 525 F.2d 457, 462-63 (2d Cir., 1975) (per curiam), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976), which was decided after Faretta and Herring, we held that a defendant who is represented by counsel has no sixth amendment right to participate as co-counsel. We reaffirm that holding.
III.
On July 19, 1973 Ferro, who was on bail, surrendered to Ohio authorities to begin serving his prison term for a previous unrelated offense. On September 20, 1973 a writ of habeas corpus ad prosequendum was servеd, and on October 12, 1973 he appeared in the United States District Court for the Eastern District of New York and entered a plea of not guilty. He was then returned to the custody of Ohio authorities. On November 12, 1973 the United States lodged a detainer in Ohio against Ferro, and on January 25, 1974 the government served another writ of habeas corpus ad prosequendum. In the spring of 1974 Ferro appeared several times in the United States District Court for the Eastern District of New York, and on June 26, 1974 Judge Travia ordered Ferro “tо be returned from whence he came.” The records of the Bureau of Prisons indicate that he was returned to Ohio State Reformatory, Mansfield, Ohio. He was tried in January, 1976.
Ferro claims that his 1974 transfer to Ohio violates Article IV(e) of the Interstate Agreement on Detainers (“the Agreement“),
While the policies underlying
Article IX of the Agreement says “[t]his agreement shall be liberally construed so as to effectuate its purposes.” While the government initially argued on appeal (Supplemental Brief at 3, n. 2) that there was nothing in the record indicating that a detainer had been lodged against Ferro, the record now before us indicates that a detainer was lodged against Ferro. There is no showing that Ferro knew, prior to trial, that the detainer had been lodged against him. In such a situation we hold that Ferro may invoke Article IV(e) for the first time on appeal to this court.
We therefore order indictment 74 CR 322, which was filed on April 23, 1974, dismissed with prejudice as to Ferro. United States v. Mauro, 544 F.2d 588 (2d Cir., 1976). Indictment 75 CR 259 involving a separate transaction was filed on April 1, 1975 after Ferro had been returned to Ohio. Prosecution under it did not violate the Agreement and it will not be dismissed.
IV.
Based on a complaint by Postal Inspector Robert McDowall, an arrest warrant was issued for Cyphers and Ferro on March 19, 1973 and they were both arrested on March 20, 1973. On September 18, 1973 a 43-count indictment, 73 CR 848, was filed аgainst Cyphers and Ferro; 40 counts involved the mailing of credit invoices and three counts (counts 20, 21 and 22) involved the mailing of airline tickets to individual purchasers. On September 19, 1973 a notice of readiness was filed. Cyphers entered a plea of not guilty on September 20, 1973, and Ferro entered a plea of not guilty on October 12, 1973.
Following the Supreme Court‘s decision in Maze in January, 1974, appellants moved on February 19, 1974 to dismiss the original indictment. The motion was granted on April 5, 1974, and on April 23, 1974 a new indictment, 74 CR 322, was filed, charging Cyphers and Ferro with two counts of mailing of airline tickets. Count I of 74 CR 322 was derived from Count 20 of the original indictment. The government filed its new notice of readiness on May 13, 1974.
On April 1, 1975 the government filed another indictment, 75 CR 259, charging Cyphers and Ferro with one count of mailing an airline ticket. The government filed its notice of readiness on this indictment on June 6, 1975.
Trial on indictments 74 CR 322 and 75 CR 259 began on January 5, 1976. Cyphers and Ferro claim that the long delay between their arrest and the government‘s readiness for trial violates Rule 4 of the Eastern District Plan for the Prompt Disposition of Criminal Cases (“the Plan“). Ferro also claims that the 33-month delay between his arrest and the trial violates his sixth amendment right to a speedy trial.
In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme
In Barker the delay was over five years; here it was less than three years. Part of the delay is attributаble to the illness of a key government witness (Dr. Sylvan), the change in legal theory necessitated by the Supreme Court‘s decision in Maze, and a shift in defense counsel. On April 9, 1975 Ferro moved to dismiss the indictments on the ground that his sixth amendment right was violated. Ferro does not claim that the delay prejudiced his defense. He claims (Brief for Appellant Ferro at 31-32) that he was prejudiced because his incarceration in New York during the spring of 1974 prevented a timely consideration of his parole by Ohio authorities аnd interfered with the rehabilitative possibilities of being incarcerated in Ohio; he also claims he was prejudiced by not being able to receive a federal sentence partly concurrent with his Ohio sentence. These types of prejudice, to the extent they are included in the holding of Barker, are less serious than the prejudice of an impaired defense. Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182. Engaging “in a difficult and sensitive balancing process,” Barker, 407 U.S. 533, 92 S.Ct. 2193, we hold that Ferro‘s sixth amendment right to a speedy trial was not violated.3
Rule 4 of the Plan provides that “in all cases the government must be ready for trial within six months from the date of the arrest . . . or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest.”4 Rule 5 of the Plan gives various provisions for tolling the six-month period.5
On December 18, 1974 Judge Platt denied appellants’ motion to dismiss indictment 74 CR 322, and on April 18, 1975 he denied their motion to dismiss indictment 75 CR 259. In his first ruling he relied on Postal Inspector McDowall‘s affidavit that the investigation and preparation of this complex case extended beyond the date on which appellants were arrested, and Judge Platt ruled that Rule 5(c)(ii) of the Plan therefore tolled the six-month period. Judge Platt did not, however, make a finding as to when the government‘s investigation and preparation of the case was completed. Judge Platt‘s April 18, 1975 ruling does not fully articulate his reasons for denying appellants’ motion.
For purposes of computing the six-month period of Rule 4 of thе Plan, the time begins when Ferro and Cyphers were arrested on March 20, 1973. In this case the period initially stops when the government filed its notice of readiness on September 19, 1973.6 Since Ferro was continuously incarcerated in New York and Cyphers was continuously on bail, the six-month period resumes when indictment 73 CR 848 was dismissed on April 5, 1974 and ends (1) on indictment 74 CR 322 when the government filed its notice of readiness on May 13, 1974 and (2) on indictment 75 CR 259 when the government filed its notice of readiness on June 6, 1975. Without taking account of any of thе tolling provisions of the Plan, the period under Rule 4 of the Plan is, therefore, 7 months and 7 days for indictment 74
Reversed and dismissed with prejudice as to indictment 74 CR 322 as to Ferro and remanded for further consideration in light of this opinion.
TIMBERS, Circuit Judge, concurring in part and dissenting in part:
I concur in the judgment and opinion of the Court in all respects with the exception of Part III, as to which I respectfully dissent, since I believe that Ferro‘s failure to raise his claim under Article IV(e) of the Interstate Agreement on Detainers (the Agreement) until his supplemental brief on appeal—never in the district court—constituted a waiver under
A claim founded on a violation of Article IV(e) of the Agreement stems from the government‘s administrative treatment of the defendant after indictment and before trial. As such, it is a defense “based on defects in the institution of the prosecution” within the meaning of
I disagree with the majority‘s construction of the Agreement so as to render an Article IV(e) claim not subject to waiver. Such construction is not required by the Agreement or by any decision of the Supreme Court of which I am aware. On the contrary, the orderly administration of criminаl justice, in my view, requires that Rule 12 and the Agreement be accommodated. The manifest purpose of Article IV(e) is deterrence. It bespeaks a judgment that only the ultimate sanction of dismissal of the indictment will insure the government‘s compliance with the Agreement‘s purpose of securing the expeditious disposition of charges which require the lodging of detainers. Since the government hardly can rely on defendants to fail to raise Article IV(e) claims in pre-trial motions,2 no material interference with the
deterrent purpоse of Article IV(e) would result from the application of
Finally, the majority‘s holding that Ferro may invoke Article IV(e) for the first time on appeal on the ground that “[t]here is no showing that Ferro knew, prior to trial, that the detainer had been lodged against him“, ante 635, strikes me as blinking at the hard facts. Whatever may have been the state of Ferro‘s knowledge of the detainer, he obviously knew of his own transfer to New York at the end of January 1974 and his return to Ohio prior to trial pursuant to Judge Travia‘s order of Junе 26, 1974. Under these circumstances, Ferro clearly had knowledge of facts sufficient to put him on notice of the existence of the claim which he waived under
I therefore dissent from the dismissal of indictment 74 Cr. 322 as to Ferro and would include his two count conviction under that indictment in the remand for determination as to the applicability of the Eastern District Plan for the Prompt Disposition of Criminal Cases. Ferro himself, in his brief before us, suggested such a rеmand with respect to both indictments.
Notes
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the рerson to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
Even if the pre-trial motion requirement ofApril 5, 1974-May 13, 1974: 1 month, 8 days
Total time: 7 months, 7 days
April 5, 1974-June 6, 1975: 14 months, 1 day
Total time: 20 months