505 F.2d 1037 (1st Cir. 1974), 74-1235, United States v. Fay

Docket Nº:74-1235.
Citation:505 F.2d 1037
Party Name:UNITED STATES of America, Appellee, v. Peter FAY, Defendant-Appellant.
Case Date:November 11, 1974
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1037

505 F.2d 1037 (1st Cir. 1974)

UNITED STATES of America, Appellee,


Peter FAY, Defendant-Appellant.

No. 74-1235.

United States Court of Appeals, First Circuit

November 11, 1974

Heard Oct. 7, 1974.

Thomas Christian DeCourcy, Boston, Mass., for defendant-appellant.

Charles E. Chase, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This case is the latest in a series where a defendant, convicted in a criminal case, has sought to void his conviction because of an alleged violation to his Sixth Amendment right to a speedy trial. 1 This is the first case in which our view of all the relevant factors requires a reversal.

Appellant was indicted on February 12, 1973 for conspiring to distribute cocaine in violation of 21 U.S.C. 846. A month later, on March 13, appellant's retained counsel filed a number of motions including a motion for speedy trial. Arraignment was held the following day without action having been taken on the motions. Trial was set for April 25. During April and May co-defendants of appellant filed motions for continuance, for appointment of counsel, for discovery, date, May 23, was passed without trial. date, May 23, was passed without trial. On June 24, 1973, the government filed a motion for trial, pointing out that the 180 day period prescribed in the Massachusetts District Court's Plan for Achieving Prompt Disposition of Criminal Cases which was adopted pursuant to rule 50(b) of Fed.R.Crim.Proc., was to expire on August 27. August 21 was then set as the date for trial. When

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that date came, the court disposed of severance and discovery motions, including a motion by appellant for severance, but the case was passed, the appellant being put on a 24 hour notice for trial.

On October 17, 1973, appellant filed a motion for judgment of acquittal and for oral argument. Subsequent to this activity, the case lay quiescent for some six months until the parties received notice that the case had been transferred to a visiting judge and was assigned for trial on June 3, 1974. On May 21, 1974 appellant filed a motion to dismiss based on denied of his right to a speedy trial. Hearing was held; the motion was denied; and the trial, which took place on June 4, resulted in a guilty verdict. Appellant was sentenced to a one year term, the sentence being suspended and appellant being put on probation for three years with the special parole term provided by law. 21 U.S.C. 841(b).

On June 3, 1974, immediately before trial, a hearing was held on appellant's speedy trial claim at which the court thoroughly explored both the reasons for delay and the possibility of prejudice. The court identified the appropriate period for explanation as the nine month period beginning on August 21, 1973, the third date set for trial, and June 4, 1974, the date of trial. It recognized that the defendant was under no obligation to take affirmative action. It inquired as to the source of responsibility. The Assistant United States Attorney had asked for trial shortly before the 180 day period had elapsed. He had talked to the clerk of the judge to whom the case had been assigned. The fact remained that nothing happened from August 21, 1973 until April, 1974, when the parties were notified that the case had been assigned for trial before a visiting judge on June 3, 1974. At one point the court exhibited its frustration by saying that there seemed to be a lack of system for coordination among the offices of the United States Attorney, the clerk, and the judge-- a 'Tinker to Evers to Chance' situation-- without, we add, the effectiveness characterizing that three-some or the appellant having an...

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