U.S. v. Gurary

• Decision Date: 16 June 1986
• Docket Number: D,No. 1436,1436
• Citation: 793 F.2d 468
• Parties: UNITED STATES of America, Appellee, v. Schnejer Zalman GURARY and Nochum Sternberg, Defendants-Appellants. ocket 86-1209.
• Court: U.S. Court of Appeals — Second Circuit

Page 468

793 F.2d 468

UNITED STATES of America, Appellee, v. Schnejer Zalman GURARY and Nochum Sternberg, Defendants-Appellants.

No. 1436, Docket 86-1209.

United States Court of Appeals Second Circuit.

Argued May 27, 1986.

Decided June 16, 1986.

Nathan Lewin, Washington, D.C. (Stephen L. Braga, Miller, Cassidy, Larroca & Lewin, Washington, D.C., on brief), for defendants-appellants.

Paul E. Summit, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Stuart E. Abrams, Asst. U.S. Atty., New York City, on brief), for appellee.

Before FEINBERG, Chief Judge, and NEWMAN and KEARSE, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

The Speedy Trial Act normally requires return of an indictment within thirty days after a defendant has been arrested, 18 U.S.C. Sec. 3161(b) (1982), but permits a continuance upon a determination that "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial," id. Sec. 3161(h)(8)(A). Rule 5(c) of the Federal Rules of Criminal Procedure requires that a defendant, not in custody, be accorded a preliminary hearing, for a determination of probable cause, within twenty days of his initial appearance but permits a continuance "upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice." Rule 5(c) also provides that a preliminary hearing need not be held if an indictment is returned before the date set for the preliminary hearing. This appeal endeavors to obtain review of an order of the District Court for the Southern District of New York (Kevin Thomas Duffy, Judge), extending the time for indictment for sixty days from April 22, 1986, and extending the time for a preliminary hearing until the extended deadline for return of the indictment. For reasons that follow, we dismiss the appeal and deny without prejudice defendant's motion for a writ of mandamus directing the immediate holding of a preliminary hearing.

Appellants Schnejer Zalman Gurary and Nochum Sternberg have been targets of a grand jury investigation that began before October 1984. The investigation concerns allegations that appellants have used a group of corporations to issue fraudulent invoices for non-existent purchases to enable the "purchasers" to claim income tax deductions and thereby evade taxes. On an earlier appeal, we reversed the quashing of a subpoena requiring production of various records of these corporations. In re Grand Jury Subpoenas Issued to Thirteen Corporations, 775 F.2d 43 (2d Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1459, 89 L.Ed.2d 716 (1986). On April 2, 1986, appellants appeared at the United States Attorney's office, pursuant to a request, and were arrested on a complaint alleging one count of conspiracy to evade taxes in violation of 26 U.S.C. Secs. 7201, 7206(2) and to transfer currency in excess of $10,000 without filing required forms in violation of 31 U.S.C. Secs. 5313, 5322, and three counts of substantive currency violations. Appellants were released by a Magistrate the same day on a bond of $200,000, subject to travel limitations and other conditions. In accordance with Rule 5(c), a preliminary hearing was scheduled for April 22, twenty days after their initial appearance. On April 17, the Government moved for a sixty-day extension of time from April 22 both to return an indictment and to conduct a preliminary hearing. The Government presented two sealed affidavits of an Assistant United States Attorney, one of which was presented to the District Court ex parte. The grounds relied upon were that the defendants presented a serious risk of flight, the grand jury's investigation was complex and continuing, and the defendants were delaying the grand jury's investigation by their dilatory tactics concerning compliance with subpoenas. On April 18, Judge Duffy granted the Government's motion, extending for sixty days from April 22, i.e., until June 21, the time for both return of an indictment and holding a preliminary hearing. ¹ In the terms of the governing statute and rule, he found, without further elaboration, that granting the continuance "best serves the ends of justice and outweighs the best interests of the public and the defendant [sic ]in a speedy trial," 18 U.S.C. Sec. 3161(h)(8)(A), and that " 'extraordinary circumstances' exist and that delay of the preliminary hearing is 'indispensable to the interests of justice,' " Fed.R.Crim.P. 5(c).

Recognizing that interlocutory appeals are "disfavored," especially in criminal cases, United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 1548, 56 L.Ed.2d 18 (1978); Abney v. United States, 431 U.S. 651, 656-57, 97 S.Ct. 2034, 2038-39, 52 L.Ed.2d 651 (1977), appellants contend that a pre-indictment order continuing the time for an indictment and for a preliminary hearing is appealable under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The application of this doctrine in the administration of criminal justice has been extremely limited. Interlocutory appeals have been allowed from bail rulings, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951), and from rulings rejecting motions to dismiss charges on grounds of double jeopardy, Abney v. United States, supra, and the Speech or Debate Clause, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). However, interlocutory appeals have been denied on such important rulings as those disqualifying defense counsel, Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), and rejecting dismissal of charges on Sixth Amendment speedy trial grounds, United States v. MacDonald, supra.

The Government contends that the continuance ruling is not an appealable "collateral order" because it may effectively be reviewed on appeal from a final judgment of conviction, should one ensue. ² Reliance is placed on appeals from final judgments of conviction in which we have reviewed the propriety of delays in returning an indictment, e.g., United States v. Ruggiero, 726 F.2d 913, 925 (2d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984), and in holding a preliminary hearing, United States v. Aiken, 373 F.2d 294, 298 (2d Cir.1966), cert. denied, 389 U.S. 833, 88 S.Ct. 32, 19 L.Ed.2d 93 (1967). Whether these decisions establish that appellants' claim in this case may be "effectively" reviewed on appeal from a final judgment requires careful consideration.

Appellants in this case seek vindication of the right to be free of the restraints upon liberty imposed by the conditions of their pretrial release following their arrest. If the Government does not establish probable cause at a timely preliminary hearing or secure the timely return of an indictment, a defendant is entitled to have the complaint dismissed and to be discharged from all restraints upon his liberty. Fed.R.Crim.P. 5.1(b); 18 U.S.C. Sec. 3162(a)(1).

If an indictment is ultimately returned and the defendants are acquitted at trial, there will be no opportunity to vindicate the impairment of liberty interests accomplished by what is alleged to be an unwarranted continuance of the period in which conditions of pretrial release must be observed. That consequence, however, faces every defendant who loses a motion that, if successful, would have avoided or ended a trial and who thereafter is acquitted. Examples are motions to dismiss an indictment for failure to state an offense or to obtain a directed verdict of acquittal at the end of the prosecution's case. Normally the "effectiveness" of an appeal from a final judgment concerns the adequacy of an appeal from an adverse final judgment. If these defendants are ultimately indicted, tried, and convicted, they will have an opportunity, on appeal from a judgment of conviction, to challenge the lawfulness of the extension of time to indict and to hold a preliminary hearing. It is true that success on appeal does not provide an opportunity to end what may be unlawful continuation of restraint upon liberty as promptly as would a successful appeal from the continuance ruling. However, that consequence faces every convicted defendant against whom a ruling has been entered prolonging the length of criminal proceedings. See United States v. MacDonald, supra.

In one respect the defendants in this case may be more disadvantaged by the lack of an immediate appeal than other defendants who must await appeal from a conviction to challenge rulings that prolong the length of proceedings against them. At least with respect to the extension of time to return an indictment, the defendants can test on appeal from a conviction the lawfulness of that extension per se, since a violation of the Speedy Trial Act is normally remedied by reversal of a conviction and dismissal of an indictment. 18 U.S.C. Sec. 3162(a)(2); see, e.g., United States v. Tunnessen, 763 F.2d 74 (2d Cir.1985). However, with respect to the extension of time to hold a preliminary hearing, a defendant can normally challenge on appeal from a conviction the lawfulness of that extension only by showing that the delay in holding the hearing "improperly affected his ability to defend against the charges," United States v. Aiken, supra, 373 F.2d at 298; see also United States v. Heap, 345 F.2d 170, 171 n. 1 (2d Cir.1965). Of course, this very limitation demonstrates that an order continuing a preliminary hearing is not entirely unrelated to the merits and for that reason is not an appealable "collateral order."

Though the interests sought to be vindicated on this interlocutory appeal may not be fully protected upon appeal from a final judgment of conviction, we conclude that such post-judgment review is not so ineffective as to warrant interlocutory appeal of the two pre-indictment continuances. ³ All continuances, whether pre- or post-trial, prolong the time...