U.S. v. Furey

• Decision Date: 02 July 1974
• Docket Number: No. 1098,D,1098
• Citation: 500 F.2d 338
• Parties: UNITED STATES of America, Appellee, v. Andrew FUREY, Appellant. ocket 74-1410.
• Court: U.S. Court of Appeals — Second Circuit

Page 338

500 F.2d 338

UNITED STATES of America, Appellee, v. Andrew FUREY, Appellant.

No. 1098, Docket 74-1410.

United States Court of Appeals, Second Circuit.

Argued June 5, 1974.

Decided July 2, 1974.

Paul B. Bergman, Asst. U.S. Atty. (David G. Trager, U.S. Atty., E.D.N.Y., Raymond J. Dearie, David A. DePetris, Asst. U.S. Attys., of counsel), for appellee.

James M. Furey, Hempstead, N.Y. (Furey & Mooney, Hempstead, N.Y., on the brief), for appellant.

Before KAUFMAN, Chief Judge, MANSFIELD and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

Andrew Furey appeals from a judgment entered in the United States District Court for the Eastern District of New York on March 8, 1974, following a non-jury trial before Hon. John F. Dooling, Jr., finding appellant to be a juvenile delinquent in violation of 18 U.S.C. 5031 and committing him in accordance with 18 U.S.C. 5034 to the custody of the Attorney General until he reaches the age of 21. The judgment is based upon an information charging that Furey possessed with intent to distribute about 1 1/4 pounds of opium in violation of 21 U.S.C. 841(a)(1).

During a routine examination of incoming overseas mail, inspectors discovered the presence of opium on a 1 1/4 pound package which was addressed to the appellant Andrew Furey. On December 19, 1972, the package was duly delivered to Furey's home under controlled conditions by a regular letter carrier of the U.S. Postal Service. Shortly thereafter, while two of the surveilling agents were entering appellant's home through the front door, a third agent observed someone throwing a parcel from a back window of an upstairs bedroom, the same room in which the appellant was apprehended by the other agents. The parcel consisted of one slab of opium and another of hashish, wrapped in plastic.

Furey does not complain on this appeal about the seizure of these drugs, but rather contends that the district court erred in failing to suppress certain letters taken from a bureau in his bedroom. The argument is frivolous in view of the substantial evidence to support the district court's findings that the agents reasonably believed that the drugs thrown from the window did not comprise all the drugs which had been delivered to Furey's home and that the search of his bureau did not take place until after the agents had procured a warrant and had further obtained the consent of Furey's mother to search the premises.

Furey's other argument on appeal, however, is more substantial. Furey urges that the district court erred in denying his motion to dismiss, which was based on the ground that the Government was not ready for trial within the time prescribed by the Eastern District's Plan for Achieving Prompt Disposition of Criminal Cases (the Plan). ¹ Under Rule 4 ² of the Plan 'the government must be ready for trial within six months from the date of the 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.' Rule 4 further provides that if the Government is not ready within the six-month period, the indictment shall be dismissed with prejudice, unless the period has been tolled under one or more of the exceptions listed in Rule 5 or the Government's neglect is found to have been excusable.

Furey was arraigned on the afternoon of his arrest, December 19, 1972, before Magistrate Brisach on a complaint, signed by a special agent of the United States Bureau of Customs, charging that Furey had possessed with intent to distribute 1 1/4 pounds of opium in violation of 21 U.S.C. 841(a)(1). He was released from custody a few days later upon the giving of a $5,000 surety bond.

It soon became clear that Furey, who was born on April 23, 1955, had not yet become 18 years of age and was therefore a juvenile within the meaning of 18 U.S.C. 5031. Because of his juvenile status, there were two ways in which the case against Furey could have proceeded: (1) as an adult offender, which would have required an express direction by the Attorney General; or (2) as a juvenile delinquent, which required the appellant's consent. 18 U.S.C. 5032. The determination of the alternative to be followed here was submitted to the Attorney General, although it is not clear when this was done. In any event, sometime in February or early March, 1973, the determination was made that the Attorney General would not direct criminal proceedings against Furey if he would consent to the juvenile delinquency procedure.

In March and April, 1973, there was apparently some discussion between counsel from which the prosecutor got the impression that Furey would not only consent to delinquency proceedings, but also would not contest the adjudication. Little else, however, transpired until June 18, 1973, when the Assistant United States Attorney sent a letter to defense counsel informing him that, in accordance with 18 U.S.C. 5033, the matter would be heard to obtain consent to proceed against the defendant as a juvenile delinquent on June 21, 1973, before Hon. Orrin G. Judd, United States District Judge for the Eastern District. The hearing took place as scheduled and the information charging juvenile delinquency was filed with the defendant's consent appended to it. Although under the Eastern District's Local Rules, Judge Judd, having supervised the taking of the consent, would normally have been assigned the case, it was, for some unexplained reason, randomly assigned to Judge Dooling. The precise assignment date is not known but it was sometime before September 1, 1973.

Nothing further took place until October, 1973 at which time the Assistant made inquiry of Judge Dooling as to the status of the matter and an initial conference was scheduled for December 13th. At that conference defense counsel announced his intention to move for dismissal on the ground that the Government had not complied with Rule 4 of the Eastern District's Plan. The Assistant advised that the Government was ready to go to trial, although a formal notice of readiness was not filed until December 21, 1973. On the day following the conference, the defendant filed his motion to dismiss, which Judge Dooling, after a hearing, denied in a memorandum and order dated December 27, 1973. Despite the fact that almost a year had elapsed between the defendant's arrest and the Government's expression of readiness for trial, Judge Dooling found no violation of Rule 4 of the Plan:

No purposive delay by the Government has occurred. Inadvertence and administrative confusion compounded by clerical omissions on the parts of the Assistant United States Attorney, the undersigned and the Clerk's office have caused the delay . . ..

The case is one in which, if it is within Rule 4 of the Plan, falls into the class of cases in which the six months limitation period would be extended because the delay has been occasioned by exceptional circumstances within the idea of Rule 5(h).

However, June 21st, 1973, is the base-line date for this case. On that date for the first time the defendant was charged as a juvenile delinquent. The notice of readiness was filed on December 21, 1973, and on December 13, 1973, the Government unequivocally advised defendant and the Court that it was ready and willing and anxious to proceed . . . The case will, therefore, be heard on January 2, 1974, on the basis that the Government was ready within six months of June 21, 1973 . . ..

Judge Dooling did not consider the issue of whether the Government's conduct here, assuming it constituted 'neglect,' should be characterized as 'excusable neglect.'

On January 2, 1974, the date set for the juvenile delinquency hearing, Furey petitioned this court for a writ of mandamus and moved for a stay of prosecution. Circuit Judge Henry J. Friendly denied the motion for the stay and accordingly dismissed the petition for mandamus as moot. Furey v. Dooling, Docket No. 74-1004 (2d Cir. Jan. 2, 1974).

As a matter of policy we see no reason why juvenile delinquency proceedings should be excluded from the coverage of the Plan. The same policies which precipitated the enactment of rules providing for the prompt disposition of criminal proceedings are applicable whether the person charged is an adult or a juvenile. Thus, the deterrence afforded by prompt disposition, ³ the potential prejudice to any defense arising from delay as well as the disruption and anxiety created by a criminal charge, ⁴ are present whether the accused be a juvenile or an adult.

It is, of course, true that the Plan is directed toward the 'Prompt Disposition of Criminal Cases,' and we have recently observed that 'proceedings under the (Federal Juvenile Delinquency) Act are plainly different from the ordinary criminal prosecution,' United States v. Torres, 500 F.2d 944, at 948 (2d Cir. June 14, 1974). It has also been recognized, however, that delinquency proceedings are not devoid of criminal aspects and the courts have carefully shunned the approach of determining the rights of juveniles by characterizing delinquency proceedings as either 'criminal' or 'civil.' See McKeiver v. Pennsylvania, 403 U.S. 528, 541, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) (plurality opinion). In view of the salutary purposes of the Plan, which are in no way inhibitory of the goals of the juvenile court but are rather compatible with its protective and paternalistic procedure (McKeiver v. Pennsylvania, supra, 403 U.S. at 545, 91 S.Ct. 1976 at 1986), we are persuaded that juvenile delinquency adjudications were not intended to be beyond the scope of the Plan. See also In re Gault, 387 U.S. 1, 17-18 & n. 23, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Having concluded that the Plan is applicable here, we cannot agree that the baseline is June 21, 1973, the date the information and appellant's consent were filed. Rule 4 of the Plan expressly provides that the six-month period runs 'from the date...