United States v. Pierro, 917

Decision Date09 May 1973
Docket NumberNo. 917,Docket 73-1494.,917
Citation478 F.2d 386
PartiesUNITED STATES of America, Appellant, v. Joseph A. PIERRO, Appellee.
CourtU.S. Court of Appeals — Second Circuit

L. Kevin Sheridan, Stephen M. Behar, Asst. U. S. Attys., Brooklyn, New York (Robert A. Morse, U. S. Atty., for the E.D.N.Y., on the brief), for appellant.

Jerome Lewis, New York City, for appellee.

Before BREITENSTEIN,* KAUFMAN and MANSFIELD, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

We are called upon to interpret a portion of Rule 4 of the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (Rules), now superseded by the Circuit's Plan for Prompt Disposition of Criminal Cases under Rule 50 (b), F.R.Crim.P., which took effect on April 1, 1973. Rule 4 states:

In all criminal cases the government must be ready for trial within six months from the date of arrest, service of summons, detention, 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. If the government is not ready for trial within such time, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.

Judge Costantino, in the district court, held that on the facts of this case the Government had failed to comply with the mandate of Rule 4. Accordingly, upon application of the defendant, Joseph Pierro, he dismissed the indictment. For the reasons given below, we reverse.

The facts relevant to this appeal are quite simple. On December 29, 1971, Pierro was arrested by Special Agents of the Federal Bureau of Investigation and charged with possession of goods stolen from interstate commerce. Pierro was released on bond and waived a preliminary hearing. Subsequently, on May 9, 1972 he was formally indicted for knowing possession of 171 cases of cigarettes stolen from a trailer moving in interstate commerce, in violation of 18 U.S.C. § 659. Pierro was arraigned on May 23, 1972, before Judge Costantino, and pleaded not guilty. According to Stephen M. Behar, the Assistant United States Attorney in charge of the prosecution, a notice of readiness for trial was prepared by the Assistant and his secretary on the same date, May 23, 1972. Mr. Behar also advised the district judge that one copy remained in the Government's case file, a second copy was filed with the Administrative office of the United States Attorney for the Eastern District of New York and the original, (which subsequently was found in Judge Costantino's chambers), bore an affidavit stating that a copy of the notice had been mailed to Pierro's counsel, Jerome Lewis, Esq.

Although the Government's records indicate that a notice of readiness had been filed on May 23, 1972—approximately five months subsequent to Pierro's arrest and, thus, within the six-month period provided by Rule 4—the prosecution remained in limbo for some ten months. The parties did not appear in court again until March 16, 1973, when Judge Costantino, on his own initiative and after being informed that the matter had been pending in excess of six months, placed the case on the calendar. On that day, it was learned during discussion in open court that neither Pierro nor his counsel had received a copy of the Government's notice of readiness, and that apparently no such notice had been filed with the Clerk's office for the United States District Court for the Eastern District. Accordingly, Pierro's counsel moved for dismissal of the indictment for failure of the Government to file a notice of readiness.

On March 23, 1973, when the parties reappeared before Judge Costantino, the judge advised Mr. Lewis and Mr. Behar that a search of chambers had been conducted and the original notice of readiness, dated May 23, 1972, and an attached affidavit of mailing dated the same day, had been found in his files. The docket sheet of the Court, however, did not indicate that a notice of readiness had been filed in the Clerk's office and Mr. Lewis asserted under oath that he had not received a copy of the notice of readiness.

In its findings of fact, the court concluded that neither Pierro nor his counsel had been informed of the Government's readiness for trial. Moreover, although Judge Costantino noted that the original notice of readiness, dated May 23, 1972, had been found in his files (with no determination as to how it got there), he decided that the notice had never been filed with the court clerk. The court also observed that it had not seen a copy of the monthly reports filed by the United States Attorney with the Chief Judge listing cases pending in excess of six months from the date of arrest. Since the delay between date of arrest and "receipt by the defendant of notice that the government was ready for trial was approximately 15 months," and since the delay was not excused by any "exceptional circumstances," see Rule 5(h), Judge Costantino dismissed the indictment under Rule 4.1 This appeal followed.

The Government advances a two-pronged argument. It is first suggested that nothing in Rule 4, or in any other provision of the Rules Regarding Prompt Disposition of Criminal Cases, explicitly requires the United States Attorney to indicate its readiness for trial. All that Rule 4 compels, we are told, is that "in all cases the government must be ready for trial within six months. . . ." (emphasis supplied). Although the Government's assertion as to the literal language of Rule 4 is true enough, we reject the invitation to adopt its wooden construction of the Rules. It would be inconsistent with the intent of the Circuit Council which drafted the Rules, and with sound public policy, to free the Government from the responsibility of communicating its readiness for trial to the court. The purpose of the Rules, as announced in the Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, is to protect "the interest of the public and the rights of defendants . . ., through a firm control of criminal prosecutions by the district courts. . . ." (emphasis supplied).

As the Government notes in its brief, under the Individual Assignment and Calendar Rules of the Eastern District, it is the responsibility of the district court to manage the court's calendar. If the judge is to exercise effective control of his cases, he must be informed of the Government's readiness to proceed. The fact that the Government knows it is ready for trial will be of little significance to the court if it is not given that information. Rule 4 intimates as much in providing that "upon application of the defendant or upon motion of the district court, . . . the charge shall be dismissed," if the Government is not ready for trial (emphasis supplied). A judge will best be able to exercise his authority under the Rule if the Government bears the...

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25 cases
  • U.S. v. New Buffalo Amusement Corp.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 22, 1979
    ...was not in accordance with the accepted Western District practice of filing a written notice of readiness. See United States v. Pierro, 478 F.2d 386, 389 n.3 (2d Cir. 1973); Cf. United States v. Lane,561 F.2d 1075, 1076, 1077-78 (2d Cir. 1978). 6 In his opinion of June 23, 1976 denying defe......
  • United States v. Salzmann
    • United States
    • U.S. District Court — Eastern District of New York
    • July 16, 1976
    ...that readiness by issuing a written notice of readiness. This practice was made mandatory by the Second Circuit in United States v. Pierro, 478 F.2d 386 (2d Cir. 1973). The court in Pierro stated it would inconsistent with the intent of the Circuit Council . . . and with sound public policy......
  • United States v. Masullo
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 26, 1973
    ...its readiness in some fashion, we have held that the rules do not require any formal notification procedure. United States v. Pierro, 478 F.2d 386, 389 (2 Cir. 1973). Here that readiness was made known in October 1972, well within the mandated time frame, and realistically the second supers......
  • United States v. Cangiano
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 11, 1974
    ...is no basis for dismissing the indictment, particularly since no prejudice is attributed to the delay encountered. United States v. Pierro, 478 F.2d 386, 389 (2d Cir. 1973). II. SPECIFIC INTENT Where the crime charged is conspiracy, a conviction cannot be sustained unless the Government est......
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