U.S. v. Wedalowski, 532

Decision Date06 March 1978
Docket NumberNo. 532,D,532
Citation572 F.2d 69
PartiesUNITED STATES of America, Appellant, v. James F. WEDALOWSKI, Appellee. ocket 77-1406.
CourtU.S. Court of Appeals — Second Circuit

Richard J. Arcara, U. S. Atty. for the Western District of New York, Buffalo, N. Y. (James A. Fronk, Asst. U. S. Atty., Buffalo, N. Y., of counsel), for appellant.

Salten Rodenberg, Buffalo, N. Y., for appellee.

Before FEINBERG and OAKES, Circuit Judges, and WYATT, Senior District Judge. *

WYATT, District Judge:

On this appeal, the question is whether the district judge (Elfvin, J.) was correct in determining, after careful consideration, that the government was not ready for trial within the time required by the rules then applicable in the Western District of New York. On the basis of that determination, the indictment was dismissed by oral order in open court on July 27, 1977. A written judgment of dismissal was filed on August 11, 1977. The government took this appeal from the July 27, 1977 order (18 U.S.C. § 3731).

We find that the determination of the District Court was not correct; we must therefore reverse and direct that the indictment be reinstated.

1.

In the early hours of Monday, June 2, 1975, a bank in Niagara, New York (a town near Buffalo) was broken into by a person or persons evidently intent on burglary. The entry, or activity after entry, set off an alarm which alerted the police who broadcast by radio the location of the threatened bank. Whoever was in the bank must have been scared off by a ringing alarm. A police officer arrived quickly at the bank, heard an alarm ringing, and found that a rear door of the bank had been pried open, but no one was there. Inside the bank building, in the night deposit room, the officer found (among other things) a red welding tank (acetylene), a green welding tank, a welding torch tip, a welder's glove, and a green garden hose. There was a great deal of water on the floor in front of the safe in the night deposit room. There was a hole in the corner of the safe. It is a reasonable inference that when the alarm went off, the burglars fled the scene, leaving behind some of the equipment with which they had hoped to open the safe.

Within half an hour from the first alarm, defendant Wedalowski was seen by another officer walking south on a road about 500 to 600 feet north of the bank. It was the same road on which the bank was located. Defendant was stopped; he identified himself. His boots were wet; his pants legs were soaked with water up to the knees; his belt buckle seemed to have red paint on it similar to that on the red welding tank left in the night deposit room at the bank; there were burn marks on his jacket.

Later, but still very early in that morning, an officer saw an automobile parked about half a block south of the bank. The license number was checked with the Department of Motor Vehicles; it was registered to defendant.

Defendant was arrested on June 2, 1975; at what time on that day and under what circumstances he was arrested do not appear in the record.

2.

The provisions which required the government to be ready for trial within a fixed period are found in the "Plan for Achieving Prompt Disposition of Criminal Cases" adopted by the judges in the Western District of New York, effective April 1, 1973. These provisions, in relevant part, are as follows:

4. . . .

"In all cases the government must be ready for trial within six months from the date of the arrest. . . . If the government is not ready for trial within such time, and if the defendant is charged only with noncapital offenses, the defendant may move in writing, on at least ten days' notice to the government, for dismissal of the indictment. Any such motion shall be decided with utmost promptness. If it should appear that sufficient grounds existed for tolling any portion of the six-months period under one or more of the exceptions in Rule 5, the motion shall be denied, whether or not the government has previously requested a continuance. Otherwise the court shall enter an order dismissing 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.

5. Excluded Periods.

In computing the time within which the government should be ready for trial under Rules 3 and 4, the following periods should be excluded:

(a) The period of delay during which proceedings concerning the defendant are pending, including but not limited to proceedings for the determination of competency and the period during which he is incompetent to stand trial, pre-trial motions, interlocutory appeals, trial on other charges, and the period during which such matters are sub judice.

(b) Periods of delay resulting from a continuance granted by the District Court at the request of, or with the consent of, the defendant or his counsel, in writing or stated upon the record. . . .

(c) The period of time during which:

(ii) the prosecuting attorney is actively preparing the government's case for trial and additional time is justified by exceptional circumstances of the case.

(h) Other period of delay occasioned by exceptional circumstances."

There was a new Plan adopted in the Western District effective July 1, 1976. It is undisputed, however, that neither this new Plan nor the Speedy Trial Act (18 U.S.C. §§ 3161 and following) is applicable or relevant to the case at bar.

3.

On June 2, 1975, a complaint was duly filed charging defendant with a violation of 18 U.S.C. § 2113(b). Defendant retained as his counsel Salten Rodenberg, Esq., who has represented him at all relevant times. On the same day June 2, 1975 defendant was arraigned before a magistrate and released on a $5000 unsecured bond.

On June 10, there was a preliminary examination. Probable cause was found and defendant was held on the same bond to answer in the district court.

On November 12, a grand jury returned a one count indictment charging defendant with entering the bank with intent to commit a felony or larceny therein (18 U.S.C. § 2113(a)).

On the same day, a notice of arraignment for November 18, was mailed to defense counsel. This notice is on an official printed district court form (App. 7) which calls for the notice to be signed in the name of the Clerk of the District Court by a Deputy Clerk. The form in this instance was signed for the Clerk by an Assistant United States Attorney.

On the next day November 13 a second notice of arraignment was mailed, fixing the date of arraignment as November 25, a postponement of seven days. The second notice carries a notation: "Confirming telephone conversation this notice supersedes previous notice". The second notice was also signed in the name of the Clerk by an Assistant United States Attorney and was addressed to Mr. Rodenberg, who had evidently asked the Assistant United States Attorney for a week's extension.

On November 18, a notation was made in the criminal docket that the arraignment had been adjourned to November 25 at the request of defense counsel.

On November 25, defendant was arraigned on the indictment before a magistrate. His plea was not guilty. The magistrate made a written order that motions must be filed by December 8, that the government must respond by December 12, and that argument on motions was to take place on December 16. It was stated in the order that if no motions were filed by December 8, discovery would then be deemed complete.

No motions for defendant were filed by December 8.

Under date of December 9, 1975, the Assistant United States Attorney wrote to defense counsel, sending to him a copy of a motion by the government which had been filed in the Clerk's Office, and in which the government announced its readiness for trial and moved the indictment for trial.

The Clerk's docket shows that the notice of readiness for trial and the motion for trial were filed on December 10, 1975. The parties have properly taken this as establishing the date on which the government was ready for trial, within the meaning of the then Western District Plan.

4.

On January 19, 1976, a motion was filed for defendant to suppress as evidence material seized from defendant's automobile in the execution of a search warrant. The return day of the motion was January 26, 1976.

Under date of January 27, 1976, the Clerk of the Court mailed a calendar adjournment notice to counsel on both sides. This notice stated that the indictment was set for calendar call on February 9 on the motion of defendant to suppress evidence and to set a date for trial, the adjournment from the January 26 return being at the request of defendant, approved by the Court (App. 12).

On February 9, 1976, the motion of defendant to suppress was argued and decision was reserved. No date for trial was set.

Under date of June 16, the Assistant United States Attorney wrote to defense counsel asking for hair samples of defendant for analysis and stating that "a trial date may be near."

Under date of September 24, the Assistant United States Attorney wrote to defense counsel sending a laboratory report on hair sample analysis, referring to four earlier laboratory reports turned over to defense counsel, and advising that "the Government is ready for trial".

Under date of October 4, the Assistant United States Attorney wrote to defense counsel, reminding that no trial date had been set, and asking about any possible alibi defense.

Under date of January 19, 1977, the Assistant United States Attorney wrote to defense counsel asking, among other things, if defendant was available for trial so that the government could move Judge Elfvin for a trial since "the government remains ready for trial".

Under date of April 11, 1977, the Assistant United States Attorney wrote to defense counsel asking about the physical condition of defendant and stating: "We remain...

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