480 F.2d 726 (2nd Cir. 1973), 725, United States v. Fernandez

Docket Nº:725, 72-2299.
Citation:480 F.2d 726
Party Name:UNITED STATES of America, Appellee, v. Fred FERNANDEZ, Appellant.
Case Date:May 23, 1973
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 726

480 F.2d 726 (2nd Cir. 1973)

UNITED STATES of America, Appellee,

v.

Fred FERNANDEZ, Appellant.

No. 725, 72-2299.

United States Court of Appeals, Second Circuit.

May 23, 1973

Argued March 29, 1973.

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L. Kevin Sheridan, Asst. U.S. Atty. (Robert A. Morse, U.S. Atty., E. D. N. Y., and Howard J. Stechel, Asst. U.S. Atty., of counsel), for appellee.

Eleanor Jackson Piel, New York City, for appellant.

Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN, [*] District Judge.

FRIENDLY, Chief Judge:

Fred Fernandez has been tried before three juries in the District Court for the Eastern District of New York for the armed robbery of the First Federal Savings & Loan Association on the afternoon of December 24, 1970. At all three trials the Government's case rested almost entirely on identification testimony,

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there being no other significant evidence to connect Fernandez with the crime. At the first trial, before Judge Bruchhausen, the jury disagreed. On the second trial, before Judge Costantino, there was a guilty verdict, but we reversed the conviction because of "the combined effect of the error in admitting the [impermissibly suggestive] photographic identification testimony, in failing to give a cautionary instruction on the danger of misidentification and in requiring defense counsel to make her objections to the charge in the presence of the jury . . ." in clear violation of F.R.Cr.P. 30, United States v. Fernandez, 456 F.2d 638, 642 (2 Cir. 1972); familiarity with that opinion is assumed. The third trial took place before Judge Travia, and the jury again brought in a guilty verdict. Although the evidence was ample to justify this, we are reluctantly constrained to reverse because of what we think some jurors could well have considered partisan conduct by the judge on the core issue in the case.

I. Speedy Trial Rules

Before taking up other matters we must deal with one contention of the defendant which, if correct, would invalidate not only the trial leading to the conviction under review but, in all likelihood, a subsequent one. This is that the government was not ready for retrial within the period stipulated by the Second Circuit Rules regarding Prompt Disposition of Criminal Cases. While Rules 3 and 6 require that, in cases where a defendant is detained, as Fernandez was, the government must be ready within 90 days "from the date when the order occasioning the retrial becomes final," in this instance March 17, 1972, defense counsel took the position, as she still does, that it was enough that the government be ready within six months. Since Rule 3 provides simply for discharge of a defendant held in custody when the government is not ready within 90 days, and Rule 4 alone provides for dismissal of the charges against a defendant when the government is not ready within 6 months, rights based on the 90-day period were clearly waived. Rule 8. It further appears that during at least some of this time defendant was detained in state prison on an entirely separate offense, in which case the detention provisions of Rule 3 by their own terms do not apply.

The government announced its readiness for trial no later than July 7, 1972, less than four months after the order for retrial had become final. More than a month of this delay was excludable because of pretrial motions under Rule 5(a); indeed two such motions were heard on the very day when the government announced its readiness. While defendant argues that the government cannot claim it was "ready" when it had not complied with orders to turn over evidence, we have no reason to doubt that if in July the court had set the case for early trial, the government would have complied. Although the trial did not begin until November 8, 1 we thus find no violation of the Second Circuit Rules. We add, however, that there should be no such long interval between the filing of our order of remand and the fourth trial we are directing.

II. Place of Trial

Another matter deserves discussion before we proceed to the point that we deem to require reversal. The District Court for the Eastern District of New York is authorized to sit not only at its headquarters in Brooklyn, but also in Mineola and Westbury, Long Island. 28 U.S.C. § 112(c). Judge Travia and Senior Judge Zavatt have sat regularly at Westbury. 2 The Individual Assignment

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and Calendar Rules for the Eastern District provide that cases shall be assigned to all judges on a random basis, with the result that the judges sitting at Westbury may be initially assigned a case where trial in Brooklyn would be more convenient. Under Rule 1.1(b), a criminal case may be designated as a "Westbury case" if the crime is alleged to have been committed in whole or in substantial part in Nassau or Suffolk counties or "if the interests of justice so require"; however, Rule 1.1(d) provides that "[t]he assigned judge shall have discretion to designate a case as a 'Westbury case' whether or not any of the parties desire such designation," and that such designation or the lack of it "does not require that judge to conduct proceedings in the case in whole or [in] part at any particular place."

The instant case having been assigned to Judge Travia in Westbury, defendant moved on March 28, 1972 for its reassignment to Brooklyn since the crime was committed in Queens County. We perceive no sound reason for the denial of the motion. There is not the slightest indication why "the interests of justice" required trial at a point 26 miles away from the headquarters of the court and the United States Attorney, and nearly that much further away from the office of defense counsel in Manhattan. According to Fernandez' affidavit on the transfer motion-not contradicted by the government in this respect-none of the principal witnesses lived in Nassau County or in a place to which Westbury, without public transportation, was easily accessible. So far as the record shows, the only person convenienced by trial at Westbury was the judge. Denial of the motion to reassign the case seems to have violated the second sentence of F.R.Cr.P. 18, 3 and we might well have reversed on this ground alone if defendant had been able to show any prejudice. While he made no attempt to do this except on the matter of jury selection, that and other claims relating to trial at Westbury should be discussed since they may create problems in future cases unless corrective measures are taken.

There is no merit in Fernandez' most extreme argument, namely, that by having been tried in Westbury rather than Brooklyn, he was deprived of rights under Article III, Section 2 and the Sixth Amendment of the Constitution, and under the first sentence of F.R.Crim.P. 18. Both the Sixth Amendment and the first sentence of Rule 18 speak of a right to trial in the district where the crime occurred; since the theft of which Fernandez was convicted occurred in Queens, in the Eastern District of New York, trial in Westbury, in Nassau County, a county adjacent to Queens and within the District, rather than in Brooklyn, the headquarters of the Eastern District, does not offend the terms of these venue requirements. Indeed, Rule 18 was amended in 1966 to eliminate an earlier requirement that the trial take place in the district and division where the crime occurred. The Advisory Committee suggesting the change relied on dictum in Supreme Court opinions indicating that trial within the district but not within the division was constitutionally permissible, see United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946), on which lower federal courts have also relied, see Lafoon v. United States, 250 F.2d 958 (5th Cir. 1958); United States v. Partin, 320 F.Supp. 275 (E.D.La.1970). It follows a fortiori that when a district is not separated into divisions, like the Eastern District of New York, trial at any place within the district is allowable under the Sixth Amendment and the first sentence of F.R.Cr.P. 18.

However, satisfaction of this rather simple requirement need not preclude

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further inquiry into the propriety of what was done here. In its most extensive discussion of the venue requirements of the Sixth Amendment, United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236 (1944), the Supreme Court has suggested a number of principles and policies embodied therein. 4 Two of these-that the provision avoids "the unfairness and hardship to which trial in an environment alien to the accused exposes him," United States v. Johnson, supra, 323 U.S. at 275, 65 S.Ct. at 250; see also United States v. Cores, 356 U.S. 405, 407, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958), and prohibits "prosecution remote from home and from appropriate facilities for defense," United States v. Johnson, supra, 323 U.S. at 275, 65 S.Ct. at 250; are somewhat undercut by clear holdings, compelled by the constitutional text, that trial must be in the district where the crime is committed rather than in a different one where the defendant resides. Platt v. Minnesota Min. & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); United States v. Bithoney, 472 F.2d 16, 22 (2 Cir. 1973). 5 However, a third policy enunciated in Johnson-that too great leeway in the selection of a situs for trial "leads to the appearance of abuses, if not to abuses, in the selection of what may be deemed a tribunal favorable to the prosecution," 323 U.S. at 275, 65 S.Ct. at 250, is pertinent to the trial at issue here, particularly since, this being a federal trial, we are not limited to the confines of the Sixth Amendment but can exercise our supervisory power, see Ballard v. United States, 329 U.S. 187, 192, 67 S.Ct. 261, 91 L.Ed. 181 (1946). The holding of a...

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