U.S. v. Avalos

• Decision Date: 04 November 1976
• Docket Number: No. 74-4171,74-4171
• Citation: U.S. v. Avalos, 541 F.2d 1100 (5th Cir. 1976)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose AVALOS and Rudolfo Castrillon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1100

541 F.2d 1100

UNITED STATES of America, Plaintiff-Appellee, v. Jose AVALOS and Rudolfo Castrillon, Defendants-Appellants.

No. 74-4171.

United States Court of Appeals Fifth Circuit.

Nov. 4, 1976.

Louis Jepeway, Jr., Miami, Fla. (Court-appointed), for Avalos.

Edgar Miller, David A. Russell, Miami, Fla., for Castrillon.

Robert W. Rust, U. S. Atty., Miami, Fla., Charles L. Jaffee, Narcotic and Dangerous Drug Sec., Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case we delve into the calculus by which the length and breadth of a criminal defendant's right to speedy trial is measured. Our exploration traces the path of the appellants and their prosecutors through two jurisdictions a journey that contributed to the government's delay in bringing the defendants to trial. While the tickets for the journey and the post-arrival events bear a patina of spuriousness, this does not guarantee a constitutional sanctuary at journey's end for the defendants.

We must engage in the calculus of delay, balancing the competing interests of the government and the defendants. We must examine the attitudes and the conduct of government prosecutors and agents during the journey, through its unscheduled stops, and upon its end at the trial destination.

In our contemporary world, we measure the speed of light and sound by mathematical formulae. But the more mundane concept of speedy trial is not susceptible to formula or table. It is, rather, a composite of objective and subjective factors that defies the mathematicians and confounds the philosophers hence the necessity of the tome of doubts, resolved, we trust, as the law commands and fairness dictates.

Were we convinced that the government's unhurried and petty pace impeded the protection of constitutional principle, we would not hesitate to reverse. On the other hand, because we rule on a speedy trial challenge, however strong our distaste for the government's misconduct we must focus equally on the length of delay and the prejudice caused thereby. We affirm.

The appellants, Rudolfo Castrillon and Jose Avalos, were arrested for conspiring to violate federal narcotics laws under an arrest warrant issued in the District of Columbia on October 26, 1972. The arrest warrants were subsequently dismissed. On August 16, 1973, the appellants were indicted along with six others in the Southern District of Florida for conspiring to violate 26 U.S.C. § 4705(a), 7237(b) and 21 U.S.C. § 174. The charges arose from the same conspiracy for which they had previously been arrested in the District of Columbia. The appellants' trial in the Southern District began on January 22, 1974. A jury found them guilty on January 28, 1974. The appellants filed a motion for a new trial, which was granted on May 7, 1974. ¹ On August 27, 1974, the appellants' second trial began. Three days later the jury returned a guilty verdict against both defendants. Castrillon and Avalos bring this appeal.

The appellants argue, inter alia, that each has been denied his sixth amendment right to a speedy trial. One fact is plain. A warrant issued for the appellants' arrest in October 1972, fully fifteen months before their first trial for the offenses alleged in the warrant. The story of those fifteen months is a tale of two cities, Miami and Washington, and of two prosecutions. The narrative appears as twisted and difficult to decipher as the motives of its principals.

I. Facts

In September 1972, the Bureau of Narcotics and Dangerous Drugs ² received tips from informants implicating the appellants in a conspiracy. The investigation of the appellants was part of a general investigation of Cuban-Americans allegedly engaged in the illegal sale of narcotics in the District of Columbia. Agent Albert Puglia conducted the investigation, which identified about fifty possible defendants. The United States Attorney's Office in the District of Columbia divided the investigation into two conspiracy prosecutions, each with different defendants. With this bifurcation our story branches; it is necessary to follow each branch to its conclusion.

On October 26, 1972, a grand jury in the District of Columbia returned an indictment charging twelve defendants with conspiracy to violate narcotics laws. ³ Neither Avalos nor Castrillon was among the suspects indicted. On March 29, 1973, the government moved to dismiss the indictment. The prosecutor stated that he took this action because the health of one key witness had deteriorated, jeopardizing the appearance of the witness at the June trial, and because the government had discovered that another important witness, Jose Zayas, was unreliable. Nine months later the government obtained another indictment, this time in the Southern District of Florida. The case was set for trial in May 1974. On motions to transfer the proceeding back to the District of Columbia pursuant to Fed.R.Crim.P. 21(b) and to dismiss for lack of a speedy trial, Chief Judge Fulton of the Southern District found that "in seeking the indictment of these defendants in the Southern District of Florida the government was 'Court Shopping.' " He observed that the majority of the defendants resided in or near the District of Columbia, that most of the overt acts allegedly took place there, and that in the District of Columbia prosecution the government had opposed Judge Gesell's pre-trial order requiring the prosecution to divulge substantially in advance of trial the names of its witnesses and their grand jury testimony. Chief Judge Fulton concluded that the Bureau brought the case to Florida "believing that government counsel and the Court would be more favorable to the government's cause (there) than in the District of Columbia." United States v. Lara, 172 U.S.App.D.C. 60, 520 F.2d 460, 462 (1975) (quoting Chief Judge Fulton). He ordered the case returned to the District of Columbia.

On May 16, 1974, in the District of Columbia, Judge Gesell granted the motion to dismiss for want of speedy trial as to those defendants named in the earlier indictment. The Court of Appeals affirmed, agreeing that "when the government shuttled the case to Florida it was deliberately seeking the supposed advantage of more favorable treatment in that jurisdiction." United States v. Lara, supra, 520 F.2d at 465 (1975). The court held that because "the decision to dismiss in the District of Columbia and begin the case anew in Florida was dictated by tactics and not by necessity the government must be charged with these nine months of delay." Id. at 465.

On the same day it obtained the ill-fated indictment that led to Lara, the government obtained arrest warrants for several other suspects. Included in this latter group were Castrillon, Avalos, and their future co-defendants in the Southern District. The warrants followed a complaint filed on October 25, 1972, by Agent Puglia in the United States District Court for the District of Columbia, charging the appellants with violations of 26 U.S.C. § 4705(a), 7237(b). Avalos was arrested and jailed in Puerto Rico. He was shortly removed to the District of Columbia, where he was again incarcerated. Castrillon was apparently never brought to the District of Columbia to face charges. ⁴ Neither was ever indicted in the District of Columbia.

At a preliminary hearing for one of the appellants' future co-defendants, the presiding magistrate found that there was not probable cause to hold the accused. The government subsequently elected not to seek immediate indictments against all those, including the appellants, who had been arrested but not yet indicted. Avalos was released after being imprisoned in the District of Columbia for one week. Prosecutors took no action against Castrillon, who apparently had remained in Florida.

The government did not dismiss the arrest warrants, however, until April 1973. The government contends that from November 1972 through March 1973, the United States Attorney's Office in Washington and Agent Puglia continued to interview witnesses, concentrating on the case involving those suspects who had been indicted.

Agent Puglia was, by all accounts, a busy man during the spring of 1973, conducting his own brand of shuttle diplomacy between the District of Columbia United States Attorney's Office and two trial attorneys of the Department of Justice in Florida. Upon dismissing pending charges against the indicted defendants on March 29, 1973, the government decided to bring the entire investigation to the more salubrious climate of the Southern District of Florida. Pursuant to its southern strategy, the government finally dismissed the District of Columbia arrest warrants against the appellants in April.

On August 16, 1973, a grand jury returned an indictment in the Southern District of Florida against the appellants and six others. An October trial date was scheduled. By October, however, Jose Avalos and two co-defendants had not yet been located. The government requested a thirty to sixty day continuance. The trial was rescheduled for January 1974. During the January trial, at which the appellants were convicted, Jose Zayas testified against them. The appellants moved for a new trial, claiming that the District of Columbia prosecutor's statement repudiating Zayas' testimony should have been turned over to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court granted the appellants' motion for a new trial. The second trial resulted in the convictions now before this Court.

The appellants contend principally that the fifteen month delay between their arrest and trial violates the sixth amendment's guarantee of speedy trial. They allege that the sole reason for this delay was that cited in United States v. Lara, supra the...