United States v. Rogelio Modera Lara

six weeks for the Among Reed, Washington, (ap- D. C. Roark M. things the order directed that on or be-' Court) appellee, for by Bay- this pointed February fore 1973 the United States lor. inspection provide, by for the defendants Palmer, Washington, D. Allan M. C. counsel, and their the transcript of all Court) for appellees, (appointed jury proceedings grand relating to the Smith, and Turner. McQueen, indictment; an оrder February 21, issued Kovner, Washington, D. (ap- C. Ronald provision amended this provide Court) appellee, for by this Sax- pointed transcripts be furnished on. April on or before Burton, Jr., Washington, D. Melvin M. On motion for the government C., appellee, the brief Jones. District Court dismissed the first indict- Miami, Javits, Fla., David B. was on ment, 1971-72, criminal No. on February appellee, Cartaya. the brief 1973. On March govern- 1973 the Nicholas, Miami, Fla., entered George orally ment indictment, moved to dismiss the second appellee, Roque. appearance an 99-73, criminal No. returned January 1973. As reasons for the ROBINSON, Before ROBB and WIL- (1) advanced Y, Judges. Circuit KE “grave deterioration in the health of a ROBB, Judge: key Circuit witness” who probably to appear “be able in Court at the time appeal by government, is an scheduled for trial” (2) the discovery to 18 pursuant U.S.C. from an § impor- another the District Court dismissing order of an tant witness was unreliable. The court indictment. dismissed as to granted the motion and dismissed the the defendants on eight ground indictment. they had been denied their trial, January On held defend- filed a “Motion for might ants Clarification” of March jurisdiction, order in some other but not in dismissing superseding indictment. The District of Columbia. motion thе court to specify asked that the dis- understanding An of the issues re- prejudice. missal was with In response quires chronological tracing of the tor- court, in an order entered February path prosecution. taken tuous part: stated in grand 1972 a jury On October The case was not dismissed with returned an in- prejudice. The Government informed charging twelve in- the Court the case would not be rein- aрpellees, of our cluding six with con- stituted in this District. The Court violate spiracy to various narcotic laws. impression was of the the possi- The indictment a conspiracy exis- bility proceeding in Florida or else- September 1, tent from about 1967 to where still existed but not on an iden- 30, 1971; it also charged about tical indictment. of the defendants number with substan- tive violations District Court. perseding 73, naming criminal case No. 1971—72 indictment, criminal the twelve Attorney procured On narcotic laws. This original 1973 the No. 99— defend- a su- speedy to any cutorial efforts. No prejudice asserted. defendant is now trial or want This was not a dismissal for lack ^[******] diligent prose- On defendant, ants and one additional December our nine Turner. dismissal of appellee the District of Co- case, government proсured prosecutor Washington a the in the Southern District by multiple gun-shot third indictment caused wounds ‍​‌​​‌‌​‌​​​‌​‌​‌‌‌‌‌​​​‌​​​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌​‌‍were six of Florida. Indicted the de- which the witness suffered before the been named in both fendants second District of Colum- original District Columbia indict- Notwithstanding bia indictment. shooting, ment returned and in present decision to the second indict- for reindictment in Florida was made ment of Also immediately indicted after the dismissal of the Turner, a defendant was second second indictment and the witness was District Columbia indictment. To testify this available to in the Florida case. Saxon, defendants list added The record also disclosed that six of the Cartaya. defendants, The Florida indictment al- including ten alleged those substantially the same leged offenses principals to be in the conspiracy, resided in the two District of Columbia Columbia, in or near the District of All ten Florida indictments. defendants that most of the overt in acts in appellees the case now before us. conspiracy furtherance of the were com- mitted in the District of Columbia. The Florida case was set for trial at Finally, appeared it that the 13, 1974; beginning May Miami how- pleading filed Washington had ever, the defendants filed motions to opposed part of Judge pre- Gesell’s the proceeding transfer to the District of required trial order that Columbia, pursuant 21(b), to Rule Fed.R. divulge substantially in advance of Crim.P., and motions to dismiss for lack trial the names of its witnesses and to speedy of a provide the defense with transcripts of On Judge Chief Fulton grand jury testimony of these wit- Southern Florida held nesses. Dismissal the indictment hearing and hеard testimony argu- came before the prosecutor complied special on the motions. A agent ment direction, with this and of course made Drug Enforcement Administration, compliance unnecessary. agent”, as the “case identified theOn evidence adduced at the hear- charge been in case for approxi- ing Judge Chief Fulton found: mately years, was called as a wit- ness. He testified that when the indict- seeking that in the indictment of these was returned in the ment District of Co- defendants in the Southern District of investigation his agency Florida the was “Court complete, “everything agency] [the Shopping.” It quite became evident presented had was Jury Grand from the evidence that the agency in time”, agency that opposed question brought this matter to the tо the dismissal of the case. As the Jury Grand Florida, Southern be- agent put gone it should have for- “[w]e lieving counsel and According to ward.” him the case the Court would be more favorable to to the presented in Florida government’s cause than in the essentially the same as the case District of Columbia. to the presented prosecutor in the Dis- Judge Chief Fulton concluded that Columbia and trict of the same informa- case should be transferred to the District given to the in the Dis- in view of the residence presented of Columbia was trict to the the location of the wit- grand jury in Florida. The case was nesses, and the situs of most of the al- brought agent, said the be- leged Accordingly judge overt acts. States Attorney cause the United case, along transferred the with the mo- Washington “did nоt feel that he could dismiss, suggestion tions proceed”. assigned if the ease were to appeared It that the judge “deterioration in who dismissed the second District the health” of the witness mentioned of Columbia case “he should be better not and can- they will but persist, any other to resolve than qualified here. not be pending.” issue which is trial challenges these rul- returned to the District After Judgе Gesell. ings by motions to dismiss for came on trial for hear- want of Supreme Court has de before ing of a scribed held He Gesell. “amorphous” “slippery”, Barker v. justify- its burden of not sustained Wingo, 407 U.S. 92 S.Ct. of nineteen ing a trial (1972); L.Ed.2d “is necessarily original since months returned; depends . . upon . and cir relative cumstances”, delay had been “un- Haubert, Beavers v. prejudice and that conscionable” 25 S.Ct. 49 L.Ed. He wаs obvious. added (1905). In other words 950 whether a the second District of he dismissed when trial has been denied in any case indictment, 99-73, criminal No. Columbia upon particular the depends circumstanc definitely preju- with “the case. In Barker v. Wingo, es of that the the reinstitu- any possibility of as to dice Court identified four Supreme factors here”, that he was as- which should be considered in assessing by prosеcutor any the sured (1) the length the circumstances: ‍​‌​​‌‌​‌​​​‌​‌​‌‌‌‌‌​​​‌​​​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌​‌‍elsewhere, it being would proceedings (2) the reason for delay; delay; (3) the indicated that it clearly “further assertion of right; defendant’s and case or on the same not be the (4) defendant. prejudice Barker is apparently now the evidence—as at Wingo, 407 U.S. 92 v. S.Ct. 2182. of these Because considerations case.” appliеd by test has the Florida indictment with he dismissed Parish, v. 152 States U.S.App. Lara, Mayari, as to defendants prejudice (1972), 468 F.2d 1129 cert. de D.C. Smith, Jones, McQueen, Baylor, Turner 93 nied 410 U.S. S.Ct. 35 the As for and Saxon. (1973), 690 and United L.Ed.2d Jones, States v. and the court observed: Roque U.S.App.D.C. 154 475 F.2d defendants, recently added to These (1972), among other cases. really no the list trial motion basis for clear and, indeed, government concedes that in this they believe I don’t made the defendants asserted their case may one of them motions—or such to a jurisdiction. the Florida have—in Turning to the reason delay However, each of these defendants re- insists in Florida. sides by beyond circumstances the con- caused has indicated to this Counsel Court and that trol of willing try quite one is diligence due used bring- while anywhere, the other has case to trial. We are ing the told that try the case in Flori- strong reasons the second Columbia indict- just da, does not inter- and Court dismissed because one ment was witness order of Chief Fulton pret the shot and another found to be the transfer of this case if requiring delay months, of nine unreliable. are the two de- only defendants case was reviewed while the the Mi- recently added. fendants was, prosecutor, says govern- ami ment, Accordingly, should the “a short one”. The delay of five proceed that it wishes still to notes that months be- conclude 27, as far as December when the Cartaya, tween as to so, indictment was may concerned it do but Florida returned and when the case was entitled to a trial in sched- they are tried, part was in jurisdiction if uled to be caused some other оr in dictment, avoid date attempt their defendants’ indictment, of the Florida December to Florida. removal 1973; eleven passed between We have said “[w]henever the second the date of District of Colum- stage any action at Government’s indictment, bia faith, neglect, indicates bad proceeding Florida indictment. The delay secure itself or purpose or a Lara, Jones, Mayari, appellees, McQueen, advantage, procedural the re some Baylor Smith defendants in all justified.” sulting delay is appellee three indictments. The Turner Bishton, U.S.App.D.C. 51, States was named second District of Co- (1972). We F.2d cannot 54, 463 Florida in- unnecessary long and delay tolerate the case alleged dictment. Since in all deliberate act of the by caused three indictments was same the seeking supposed ad justify a delay that Provoo, vantage. Petition of See began filing to run of the Dis- (D.Md.1955), per curiam, aff’d F.R.D. trict of indictments. We hold S.Ct. L.Ed. 761 government’s attempt justifi- said also that We have cases in has failed. cation six months volving delay more than are subject inquiry and a properly need impressed by We conten- United States v. Ran justification. tion that cir- caused som, 465 F.2d prosecutor’s beyond the cumstances con- (1972). Finally, we observe that Although prosecutor the represent- trol. 2-7(d) of the United States District Rule second ed that the pro for the Columbia should be dismissed indictment because “All indictments vides: returned shall be of one witness of the illness unreliability and the days from within 180 return of in another, of there is substan- bond, if the defendant is dictment the recоrd for Judge tial basis in Chief days be tried within 90 shall from return finding that Fulton’s dismissal was the jail if of defendant in indictment sought because believed to for failure make solely bond for the the court “would be Florida more favor- . . offense. . The indicted government’s cause able to the than [the may, or the defendant for good States in the District of Columbia.” The court] case shown, petition the to whom cause set had for trial June assigned to case is extend the time of Columbia and in the District the case applicable particular period case.” agency, Drug agent Enforce- rule, and the sense of urgency Administration, believed it was ment connotes, underscore the importance of and should be ready for trial tried when trials, of in interest both prompt prosecutor The rеsisting was scheduled. public. and the accused See Barker v. order Judge Gesell’s at Wingo, S.Ct. 2182. testimony and the names of witnesses be trial. The this case we a of before ad- In nine- disclosed reasons months between vanced for teen insubstan- District unreliability the first of Columbia in- tial. The discovered of one when returned, difficulty a not May 16, was was witness uncommon prosecutions certainly when the Flоrida indictment in criminal Judge to Gesell. There not a reason abandon entire case. dismissed witness been shot injured of sixteen months between The had before an interim 31, 1973, January the date when second Dis- of second indictment, of indictment was re- and the trict of Columbia District Calculating he not ‍​‌​​‌‌​‌​​​‌​‌​‌‌‌‌‌​​​‌​​​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌​‌‍delays Had recovered suffi- dismissal. on a turned. appear ciently we find at trial on June different basis somewhat elapsed the court no doubt would have en- months between the fil- 1973 fourteen motion a reasonable con- the first District of Columbia in- tertained ing of “some answers that of choose did not prosecutor The tinuance. recently as occurred as course, immediately the events but this follow persuaded by ago.” We years on March the dismissal considering all argument, the wit incapacity of of spite and in prej of this case we think proceed circumstances the decision ness, made he from, presumed be or neces must udice Florida. Consider with in, long delay agree sarily we with Chief inherent which facts ing these Provoo, supra, See Petition conclusion that when the occurred. Fulton’s States, 203; Hedgepeth v. Florida shuttled 364 F.2d supposed deliberately seeking it was States, v. United (1966); Hinton U.S. favorable treatment advantage of more 392, 424 F.2d can prosecutor App.D.C. jurisdiction.1 experienced one the trial say maneu No hardly be heard cases, able as was the district within his control. criminal a matter was not ver any reach other conclusion. judge, could moved its When it case to what it disposes ap- we have said Whаt the more considered salubrious climate Lara, Jones, McQueen, Mayari, peals charged of Florida Baylor and Turner. The Smith, judg- notice that substantial period dismissing the as ments required time would be for the Miami affirmed. be them will case; to review the now concedes that nine Saxon, cases of Roque and Carta “short” time for that re on a ya stand footing. different They we hold that viеw. Since the decision to were named the first dismiss Columbia and Florida time indictment of Decem anew in begin the case Florida was dic Noting ber tated tactics necessity the “recently added to the with these list of defendants” District Court ob short, nine months of In “really served that no clear laboring making the matter speedy a basis for trial motion”. In this computations time, reference we сorrect, the District for the hold that as to defendants who were speedy right to a trial does accrue to in the District of named Columbia indict until he defendant has been accused. unnecessary ments there was and uncon Marion, v. 307, 404 U.S. 92 for delay govern scionable which the 455, 30 (1971); L.Ed.2d 468 S.Ct. Nickens responsible. ment was States, U.S.App.D.C. 116 338, v. United (1963), denied, The F.2d 808 323 cert. asserts that “the 379 198, 85 prejudice to the S.Ct. 13 slight”. U.S. L.Ed.2d defendants 178 (1964). The Although nineteen five months elapsed be- be tween the of the tween the the Florida date first District of indict Judge Gesell’s ruling indictment ment and on May and the dismissal did not 1974 violate the on points defendants’ trial; that nine nor during peri- out months of could validly were not defendants claim that their rights od defendants under indict- violated during the would be because discovery ment and other ten months and proceedings for their benefit they Conceding might were free bond. have cause further they the “defendants States v. Ewell, no recall about 383 U.S. 86 S.Ct. have events that oc- (1966); during period L.Ed.2d Blunt curred of time that the States, indictment covered” —the period from (1968), denied, F.2d cert. September 1972— grand jury testimony discovery trial disclosure of and order entered in 1. We note that pre- require names of witnessеs. 1974 did not Florida who were named in L.Ed.2d 221 defendants 89 S.Ct. U.S. (1969); States, v. United indictments there Hinton U.S. unnecessary and 388, 392, 424 F.2d 880 was unconscionable App.D.C. delay for which responsible. Saxon situation the defendant The Government apparently as that The same defendants resolved is the He was case in Cartaya. bring jurisdiction added another and to to Roque sought the Florida from Judge of defendants in- at time list Gesell prejudice without of December case dismissal indict- dictment date, prosecutors as of that new case the ment. twice was a to grand juries to him should the case presented not have token, in the By of Columbia were presumably as District been dismissed. seen, case; Roque thoroughly the cases of familiar with the we have new, special named and there was no bа- have been Cartaya could assistants General, holding Attorney as a matter of law that sent to sis for presented be tried in the District of to a they could Accordingly, judgment jury that District grand within Columbia. dismissing Later, thorough preparation the Saxon case is after reversed week. S. Attorneys reinstate indict- Assistant U. with directions ment, local could prosecuted for trial the District of Colum- at trial. Thеre was no for a bia, prejudice a motion whatsoever nine-month delay without under need 21(b) to in Florida to pro- prosecutors transfer the for Fed.R.Crim.P. familiarize jurisdiction. with the facts ceeding to another of this themselves diffi- complicated case. cases of remand- cult and the District of trial in ed for say in every is not prejudice to motions also the first indictment is the date trаnsfer. measuring point initial trial could, example, There purposes. So ordered. fide dismissal followed aby a bona rein- WILKEY, Circuit Judge (concurring): discovery important I evidence, concur result reached as to in which all event I new in the opinion of the time for think would not Ias understand it. For prece- date of the first charge. run from dential value this case may have in the here indiсtments seem But all to be future, I do wish to state my linked, nothing under- except new addi- standing holding of the court in so it is not tional unfair to regard the six defendants who were should the Government have hold contin- indicted both in Florida and interruption previously without once it began. ued in the District Columbia. the opinion If of this court holds that The critical reason the court finds that unjustified prosecution in “court рrosecution these defendants do agree I shopping,” with this por- dismissed for denial of speedy opinion. trial is the unconscionable delay between knew the Government intended to bring the dismissal indictment here and a case in another similar jurisdiction, and indictment in new Florida: it improper. did not think To me ‍​‌​​‌‌​‌​​​‌​‌​‌‌‌‌‌​​​‌​​​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌​‌‍it was entirely responsible we hold wise Since act decision to dis- Government, faced miss the District of Columbia “deterio- rating health” one of its begin principal the case anew in Florida wit- because of multiple nesses gunshot dictated tactics and not necessi- wounds, move this ty must be more climate of salubrious nine Florida. with these And, In short, “unreliable witness” may laboring matter become more reliable once making removed reference to computa- frоm these time, Before and environs. we hold tions that as to time of there were other cases these indictments of Columbia which a

in the protected had to be of witnesses

number assassination, one or two unsuccess- from judges some were likewise af-

fully, and protection. prosecu- If the armed

forded their witnesses could be

tion felt in Florida better or at least

protected intimidated once away feel ‍​‌​​‌‌​‌​​​‌​‌​‌‌‌‌‌​​​‌​​​‌​‌‌​​​‌‌‌​​‌​‌‌‌‌‌​‌‍less I the District think it

from interest for public prose- the case there. to move

cution fault, my judgment, lies

Government’s fact that

solely in the did not move enough once the decision

swiftly

reached. al., Appellants, E. et

Jackie UTZ

Honorable Maurice CULLINANE.

No. 72-1116. Court of Appeals, District of Columbia Circuit. June

Argued 1975.

Decided Oct.

Case Details

Case Name: United States v. Rogelio Modera Lara

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 2, 1975

Citation: 520 F.2d 460

Docket Number: 74-1657

Court Abbreviation: D.C. Cir.