U.S. v. Furey, 467

• Decision Date: 07 April 1975
• Docket Number: D,No. 467,467
• Citation: 514 F.2d 1098
• Parties: UNITED STATES of America, Appellant, v. Andrew FUREY, Appellee. ocket 74-2266.
• Court: U.S. Court of Appeals — Second Circuit

Page 1098

514 F.2d 1098

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

No. 467, Docket 74-2266.

United States Court of Appeals, Second Circuit.

Argued Nov. 22, 1974.

Decided Feb. 25, 1975.

As Amended April 7, 1975.

Edward R. Korman, Chief Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellant.

James M. Furey, Hempstead, N. Y. (Furey & Mooney, Hempstead, N. Y., of counsel), for appellee.

Before SMITH, HAYS and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

The single issue raised by this appeal is the validity of the dismissal-with-prejudice sanction of Rule 4 of the Eastern District Plan for the Prompt Disposition of Criminal Cases (the "Plan"). ¹ The government challenges (1) the power of the Judicial Branch to promulgate a rule requiring such a sanction, and (2) the validity of Rule 50(b), F.R.Cr.P., ² which required the district court to adopt such a plan. It also urges that Rule 50(b) does not authorize the sanction of dismissal with prejudice. Rejecting these arguments, the district court upheld the Rule and dismissed the information in this case on its authority. We affirm.

This is the second time that this case has been before this Court with regard to the application of the Plan. Upon an earlier appeal by defendant Andrew Furey, who had been adjudicated a juvenile delinquent, see 18 U.S.C. § 5031 et seq., we vacated the judgment of conviction originally entered by the Eastern District of New York, holding that under the Plan the information must be dismissed for failure of the government to file a notice of readiness within six months unless the government's neglect to do so was "excusable," which would, under Rule 4, enable the government to avoid dismissal, provided it was ready to proceed to trial within 10 days. We remanded the case to the district court to determine whether the neglect was excusable. United States v. Furey, 500 F.2d 338 (2d Cir. 1974). Upon remand Judge Dooling, after a hearing, concluded that the neglect, while understandable, was not excusable and on August 26, 1974, a judgment was accordingly entered granting Furey's motion to dismiss the information with prejudice for failure to comply with Rule 4, from which the government appeals.

In accordance with the requirements of Rule 50(b) the Eastern District Plan was adopted by the judges of the United States District Court for the Eastern District of New York and approved by the Second Circuit Judicial Council, effective April 1, 1973, as a means of minimizing undue delay and furthering the prompt disposition of criminal cases. Under the Plan these objectives were to be accomplished primarily through the prescription of strict time periods within which criminal cases must be prepared by the government for trial. Like the earlier Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, after which it was modeled, see United States v. Furey, supra, 500 F.2d at 340 n. 1, the Plan did not mandate trial within a certain time period, but instead aimed to achieve its goal by concentrating on "prosecutorial delay as a means of implementing the public interest in disposition of criminal charges with reasonable dispatch," Hilbert v. Dooling, 476 F.2d 355, 357 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973). It was substantially the same as all other such plans adopted by the district courts within the Second Circuit, being almost an exact copy of the Model Plan drafted by the Circuit Council of the Second Circuit. Since the events giving rise to the present appeal all occurred prior to the enactment of the Speedy Trial Act of 1974, P.L.No. 93-619 (Jan. 3, 1975), 1974 U. S. Code Congressional and Administrative News, p. 2407, which is not retroactive, the Plan governs the instant proceeding, cf. 1 U.S.C. § 109; United States v. Fiotto, 454 F.2d 252 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972). We need not consider the effect of the Speedy Trial Act on the continued applicability of the present Plan.

Rule 4 (like Rule 4 of the Second Circuit Model Plan) is the heart of the scheme, requiring the government to "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." If the government should fail to meet this deadline, and if the offenses charged were non-capital, the defendant could obtain a dismissal of "the indictment with prejudice unless the court finds that the government's neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days." The Plan also provides for the exclusion of certain periods from the six-month limit, thus relieving the government of responsibility for delays not within its control. ³

Furey first contends that consideration of the validity of Rule 4 is precluded by the limited terms of our earlier remand and by our earlier decision which, he argues, impliedly upheld the Plan and thus constitutes the law of the case. We disagree. Although we directed the district court to consider and rule on certain issues, United States v. Furey,supra, 500 F.2d at 344, we did not limit it to those questions. The district court on remand and this Court on further appeal are free to consider any issue not clearly foreclosed by our previous opinion especially where, as here, the new issue is one that was not presented and was not necessary to the disposition of the earlier appeal. Our previous decision constitutes the law of the case only as to those issues specifically presented to and decided by the Court on that appeal. See, e. g., Cataphote Corp. v. Hudson, 422 F.2d 1290, 1296 (5th Cir. 1970); Salvoni v. Pilson, 86 U.S.App.D.C. 227, 181 F.2d 615, 619, cert. denied, 399 U.S. 981, 70 S.Ct. 1030, 94 L.Ed. 1385 (1950); Connett v. City of Jerseyville, 110 F.2d 1015, 1018 (7th Cir. 1940). Since the validity of Rule 4 does not fall within that category, we are free now to resolve that issue. ⁴

As the government concedes, the federal courts have long had the power to dismiss indictments for unexcusable delay by the government in prosecution. This authority stems from two independent historical sources and its exercise is governed by different standards, depending upon the origin. The primary source is, of course, the Sixth Amendment which guarantees to all persons a speedy trial. That guarantee is intended to prevent prejudice to the "defendant's ability to present an effective defense," United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). It also protects the accused from the emotional distress that results from "uncertainties in the prospect of facing public trial or of receiving a sentence longer than, or consecutive to, the one he is presently serving uncertainties that a prompt trial removes," Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973). Once there has been a determination, after consideration of the factors prescribed by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), that a defendant's Sixth Amendment right to a speedy trial has been denied, the remedy invariably is dismissal of the charges or indictment with prejudice, e. g., Strunk v. United States, supra, 412 U.S. at 439-40, 93 S.Ct. 2260; United States v. Provoo, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (per curiam), aff'g Petition of Provoo, 17 F.R.D. 183 (D.Md.1955), which bars any further prosecution.

The federal courts also possess the inherent power, derived from the common law, to dismiss a case for want of prosecution, whether or not there has been a Sixth Amendment violation, e. g., Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962); District of Columbia v. Weams, 208 A.2d 617 (D.C.Mun.App.1965); Ex parte Altman, 34 F.Supp. 106 (S.D.Cal.1940); cf. United States v. Cartano, 420 F.2d 362, 363 (1st Cir. 1969), cert. denied,397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671 (1970); Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312, 314-15 (1967). Restated in Rule 48(b), F.R.Cr.P., see Advisory Committee Notes to Rule 48, 8A Moore's Federal Practice P 48.01, this power is independent of Sixth Amendment considerations, being an outgrowth of the court's supervisory authority with respect to its own jurisdiction. Its exercise has traditionally been within the court's discretion, United States v. Aberson, 419 F.2d 820 (2d Cir.), cert. denied,397 U.S. 1066, 90 S.Ct. 1497, 25 L.Ed.2d 687 (1970). It has been used, for instance, to relieve the defendant of hardship occasioned by the government's attempts to marshall its case for prosecution after unforeseen delay, Mann v. United States, supra; District of Columbia v. Weams, supra, and to protect the public interest "in the prosecution of those accused of crime without the procrastination of which the processes of law are sometimes guilty," United States v. Mark II Electronics of Louisiana, Inc., 283 F.Supp. 280, 283 (E.D.La.1968), which a prompt trial facilitates by preserving the proof, maximizing the deterrent effect of the prosecution, and minimizing the risk that pending trial the accused may commit other crimes, flee or threaten witnesses, ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, Approved Draft, 1968, 10-11. Dismissal under this power may be without prejudice, e. g., Cohen v. United States, 366 F.2d 363 (9th Cir. 1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 771, 17 L.Ed.2d 682 (1967); Mann v. United States, supra, or with prejudice, White v. United States, 126 U.S.App.D.C. 309, 377 F.2d 948 (1967); District of Columbia v. Weams, supra; 3 Wright, Federal Practice...