U.S. v. Lara, 74-1657

• Decision Date: 02 October 1975
• Docket Number: No. 74-1657,74-1657
• Citation: 172 U.S. App. D.C. 60,520 F.2d 460
• Parties: UNITED STATES of America, Appellant, v. Rogelio Modera LARA et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 460

520 F.2d 460

172 U.S.App.D.C. 60

UNITED STATES of America, Appellant, v. Rogelio Modera LARA et al.

No. 74-1657.

United States Court of Appeals District of Columbia Circuit.

Argued Aug. 19, 1975.

Decided Oct. 2, 1975.

Charles L. Jaffee, Atty., Dept. of Justice with whom Earl J. Silbert, U. S. Atty., was on the brief for appellant.

Roark M. Reed, Washington, D. C. (appointed by this Court) for appellee, Baylor.

Allan M. Palmer, Washington, D. C. (appointed by this Court) for appellees, McQueen, Smith, and Turner.

Ronald Kovner, Washington, D. C. (appointed by this Court) for appellee, Saxon.

Melvin M. Burton, Jr., Washington, D. C., was on the brief for appellee, Jones.

David B. Javits, Miami, Fla., was on the brief for appellee, Cartaya.

George Nicholas, Miami, Fla., entered an appearance for appellee, Roque.

Before ROBINSON, ROBB and WILKEY, Circuit Judges.

ROBB, Circuit Judge:

This is an appeal by the government, pursuant to 18 U.S.C. § 3731, from an order of the District Court dismissing an indictment. The court dismissed as to eight of the defendants on the ground that they had been denied their right to a speedy trial, and held that the defendants Roque and Cartaya might be tried in some other jurisdiction, but not in the District of Columbia.

An understanding of the issues requires a chronological tracing of the tortuous path taken by this prosecution.

On October 26, 1972 a grand jury in the District of Columbia returned an indictment charging twelve defendants, including six of our appellees, with conspiracy to violate various narcotic laws. The indictment alleged a conspiracy existent from about September 1, 1967 to about April 30, 1971; it also charged a number of the defendants with substantive violations of the narcotic laws. This was criminal case No. 1971-72 in the District Court. On January 31, 1973 the United States Attorney procured a superseding indictment, criminal No. 99-73, naming the twelve original defendants and one additional defendant, our appellee Turner.

On January 5, 1973 District Judge Gesell entered a pretrial order setting the case for trial June 11, 1973 and reserving six weeks for the trial. Among other things the order directed that on or before February 20, 1973 the United States provide, for inspection by the defendants and their counsel, the transcript of all grand jury proceedings relating to the indictment; an order issued February 21, 1973 amended this provision to provide that grand jury transcripts be furnished on or before April 16, 1973.

On motion for the government the District Court dismissed the first indictment, criminal No. 1971-72, on February 26, 1973. On March 29, 1973 the government orally moved to dismiss the second indictment, criminal No. 99-73, returned January 31, 1973. As reasons for the dismissal the prosecutor advanced (1) "grave deterioration in the health of a key witness" who would probably not "be able to appear in Court at the time scheduled for trial" and (2) the discovery by the government that another important witness was unreliable. The court granted the motion and dismissed the indictment.

On January 31, 1974 two defendants filed a "Motion for Clarification" of the order of March 29, 1973 dismissing the superseding indictment. The motion asked the court to specify that the dismissal was with prejudice. In response the court, in an order entered February 14, 1974, stated in part:

The case was not dismissed with prejudice. The Government informed the Court the case would not be rein- stituted in this District. The Court was of the impression that the possibility of proceeding in Florida or elsewhere still existed but not on an identical indictment.

This was not a dismissal for lack of speedy trial or want of diligent prosecutorial efforts. No prejudice to any defendant is now asserted.

On December 27, 1973, nine months after the dismissal of the District of Columbia case, the government procured a third indictment in the Southern District of Florida. Indicted were six of the defendants who had been named in both the original District of Columbia indictment returned October 26, 1972 and in the second District of Columbia indictment of January 31, 1973. Also indicted was Turner, a defendant in the second District of Columbia indictment. To this list were added defendants Saxon, Roque and Cartaya. The Florida indictment alleged substantially the same offenses charged in the two District of Columbia indictments. All ten Florida defendants are appellees in the case now before us.

The Florida case was set for trial at Miami beginning May 13, 1974; however, the defendants filed motions to transfer the proceeding to the District of Columbia, pursuant to Rule 21(b), Fed.R.Crim.P., and motions to dismiss for lack of a speedy trial.

On April 25, 1974 Chief Judge Fulton of the Southern District of Florida held a hearing and heard testimony and argument on the motions. A special agent of the Drug Enforcement Administration, identified as the "case agent", who had been in charge of the case for approximately two years, was called as a witness. He testified that when the indictment was returned in the District of Columbia the investigation by his agency was complete, "everything (the agency) had was presented to the Grand Jury at that time", and the agency was opposed to the dismissal of the case. As the agent put it "(w)e should have gone forward." According to him the case presented to the prosecutor in Florida was essentially the same as the case presented to the prosecutor in the District of Columbia and the same information given to the grand jury in the District of Columbia was presented to the grand jury in Florida. The case was brought to Florida, said the agent, because the United States Attorney in Washington "did not feel that he could proceed".

It appeared that the "deterioration in the health" of the witness mentioned by the prosecutor in Washington had been caused by multiple gun-shot wounds which the witness suffered before the return of the second District of Columbia indictment. Notwithstanding the shooting, the decision to present the case for reindictment in Florida was made immediately after the dismissal of the second indictment and the witness was available to testify in the Florida case. The record also disclosed that six of the ten defendants, including those alleged to be principals in the conspiracy, resided in or near the District of Columbia, and that most of the alleged overt acts in furtherance of the conspiracy were committed in the District of Columbia. Finally, it appeared that the government in a pleading filed in Washington had opposed the part of Judge Gesell's pretrial order that required the government to divulge substantially in advance of trial the names of its witnesses and to provide the defense with transcripts of the grand jury testimony of these witnesses. Dismissal of the indictment came before the prosecutor complied with this direction, and of course made compliance unnecessary.

On the evidence adduced at the hearing Chief Judge Fulton found:

that in seeking the indictment of these defendants in the Southern District of Florida the government was "Court Shopping." It became quite evident from the evidence that the agency in question brought this matter to the Grand Jury in Southern Florida, believing that government counsel and the Court would be more favorable to the government's cause than in the District of Columbia.

Chief Judge Fulton concluded that the case should be transferred to the District of Columbia, in view of the residence of the defendants, the location of the witnesses, and the situs of most of the alleged overt acts. Accordingly the judge transferred the case, along with the motions to dismiss, with the suggestion that if the case were assigned to the same judge who dismissed the second District of Columbia case "he should be better qualified than any other judge to resolve the speedy trial issue which is pending."

After the case returned to the District of Columbia the motions to dismiss for want of a speedy trial came on for hearing May 16, 1974, before District Judge Gesell. He held that the government had not sustained its burden of justifying a trial after the delay of nineteen months since the original indictment was returned; that the delay had been "unconscionable" and that prejudice to the defendants was obvious. He added that when he dismissed the second District of Columbia indictment, criminal No. 99-73, "the dismissal was definitely with prejudice as to any possibility of the reinstitution of the case here", that he was assured by the prosecutor that any further proceedings would be elsewhere, it being "further clearly indicated that it would not be the same case or on the same evidence as apparently is now the case." Because of these considerations he dismissed the Florida indictment with prejudice as to defendants Lara, Mayari, Jones, McQueen, Smith, Baylor, Turner and Saxon. As for the defendants Roque and Cartaya the court observed:

These defendants, recently added to the list of defendants, have really no clear basis for a speedy trial motion and, indeed, I don't believe they made such motions or one of them may have in the Florida jurisdiction. However, each of these defendants resides in Florida.

Counsel has indicated to this Court that one is quite willing to try the case anywhere, while the other has strong reasons to try the case in Florida, and the Court just does not interpret the order of Chief Judge Fulton as requiring the transfer of this case if the only defendants are the two defendants recently added.

Accordingly, should the government conclude that it wishes still to proceed as to Roque and Cartaya, as far as this Court is concerned it may do so, but they are entitled to a trial in Florida, or in some other jurisdiction if they persist, but they will not and they cannot be tried here.

The government challenges these...