U.S. v. Fay, No. 74-1235

• Decision Date: 07 October 1974
• Docket Number: No. 74-1235
• Parties: UNITED STATES of America, Appellee, v. Peter FAY, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1037

505 F.2d 1037

UNITED STATES of America, Appellee, v. Peter FAY, Defendant-Appellant.

No. 74-1235.

United States Court of Appeals, First Circuit.

Heard Oct. 7, 1974.

Decided Nov. 11, 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 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 opportunity to hit a pitched ball.

The alleged specific prejudice lay in the fact that in May, 1973, one Isherwood, who had been with appellant in his apartment at the time of arrest, visited appellant's counsel and related to him a version of events leading up to the arrest to which he was willing to testify. The putative testimony conflicted with that of the prosecution concerning events shortly before and at the time of appellant's arrest on January 19, 1973. The government agents' version was that appellant was seen entering his apartment building, carrying a white paper bag; that subsequently one Owens, who had gone in the building shortly before appellant, was seen leaving the building carrying a white paper bag. Owens placed the bag in the trunk of appellant's automobile, drove off, and was later arrested as he tried to sell a pound of cocaine to a government agent. The agents then entered appellant's apartment, and arrested both appellant and Isherwood. On appellant's person the agents found $1500 of identifiable money. Appellant said that the money had been given him by his grandmother for college tuition. It is alleged that Isherwood's testimony would have differed from this in two respects. According to appellant's counsel's notes, he would have testified that he was in the apartment both when Owens and appellant entered, ² appellant at no time gave anything to Owens, and Owens was not carrying anything when he left appellant's apartment. He would also have said that appellant explained that he possessed the money because Owens, fearful of being robbed, had asked him to hold it while he did an errand.

Counsel for appellant had apparently not made any effort to keep in touch with Isherwood until shortly before the June 3 trial date. At that time, he unsuccessfully tried to contact Isherwood. His efforts included contacting Isherwood's mother and visiting places Isherwood was known to have frequented. No reference was made to any prior efforts to locate Isherwood. The court, while stating at one point that it agreed with counsel that appellant had been prejudiced, apparently felt that any 'substantial prejudice' would be eliminated by allowing appellant to introduce a statement as to what Isherwood would have testified-- 'in explanation of the fact that he is unavailable'. It also barred the prosecution from introducing any evidence of 'overt act 9', which alleged that Owens and appellant, on January 19, 1973, packaged a pound of cocaine at appellant's apartment.

The district court applied, as do we, the 'difficult and sensitive balancing process' required by Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It found no difficulty in applying three of the four factors identified in Barker. It obviously felt that a delay of nine months following the third trial date, August 21, 1973, was enough to trigger inquiry into the reasons for delay. While it did not deem a very early request for speedy trial helpful to appellant, the court recognized that appellant had no affirmative duty to bring his case on for trial and, by implication, that appellant could not be said to have waived his right to speedy trial. And the court was quite articulate in its conclusion that no satisfactory explanation for the delay on the part of the government had been forthcoming

With the scales tipping in favor of appellant, the court then faced a specific claim of prejudice. Counsel presented his notes of an early interview with a potential witness who had disappeared from sight-- a witness whose presence at a critical time was corroborated by prosecution witnesses. The court's concern about the relevance of the missing witness' testimony is shown by its joint requirement that the prosecution not introduce any evidence of the alleged ninth overt act and that appellant's counsel be allowed to read Isherwood's statement into evidence. ³ The court was apparently influenced by the fact that there had been no showing that either appellant or his counsel had, from May of 1973 until May of 1974, made any effort to keep in touch with what they lately claimed to be a critical defense witness.

We can understand the skepticism of the court. It is all too easy, through wishful thinking or post hoc reconstruction, to conjure up what someone long since vanished from the scene might have said. Were the scales as to the other factors more in balance (particularly, were a defendant to have participated in the delay), or were there less corroboration of the criticality and existence of the witness, or were the missing testimony a matter only of speculation, we would be able to reach a different conclusion....