U.S. v. McAfee
| Decision Date | 20 December 1985 |
| Docket Number | No. 85-1355,85-1355 |
| Citation | 780 F.2d 143 |
| Parties | UNITED STATES, Appellee, v. James Crawford McAFEE, Lloyd Cowan Parker, William Bull Pringle, III, Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
Robert F. Muse with whom Ronald Kovner, Washington, D.C., was on brief for appellant Pringle.
Robert W. Ritchie, Amherst, Mass., for appellant Parker.
Herbert S. Moncier, Knoxville, Tenn., for appellant McAfee.
Gary S. Katzmann, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., and Robert W. Meserve, Sp. Asst. to the U.S. Atty., Boston, Mass., were on brief for appellee.
Before COFFIN, Circuit Judge, TIMBERS, * Senior Circuit Judge, BOWNES, Circuit Judge.
We consider here an appeal of a decision of the district court arising out of our remand in United States v. Pringle, 751 F.2d 419 (1st Cir.1984), in which we asked the district court to determine whether a four and one-half-month period of delay in criminal pretrial proceedings was excludable delay under the Speedy Trial Act, 18 U.S.C. Sec. 3161(h)(1)(F) (1982). The district court, 607 F.Supp. 105 (D.Mass.1985), found the delay excludable and defendants have appealed.
For a complete and detailed description of all of the pretrial proceedings, we refer to our previous opinion, Pringle, 751 F.2d at 430-31. Focusing only on the period of delay at issue here, January 10, 1983, to May 23, 1983, we summarize the essential facts. The delay was preceeded by a continuance which postponed the date set for a hearing on dispositive motions and/or trial from November 29, 1982, to January 10, 1983. In the application for the continuance, defense counsel stated that "all defendants in the above-captioned matter waive their rights to a speedy trial." Because the continuance coincided with the implementation of a plan of the District of Massachusetts to expedite the trials of both criminal and civil cases by reassignment of the cases, the district court made the rescheduling of the hearing/trial date for January 10, 1983, subject to the confirmation of the judge to whom the case would be reassigned. The January 10, 1983 hearing/trial date never materialized, however. No further action occurred in the case, other than the government's filing on March 11, 1983, of a memorandum in opposition to the defendant's motion to dismiss and suppress, until the new judge to whom the case had been assigned on December 15, 1982, held a status conference on May 23, 1983.
At the time of the remand, we speculated that two different scenarios might explain this long delay. One was that both the court and government relied upon the waiver by the defendants of their speedy trial rights and did not apply the requirements of the Act to this case. In our previous opinion, we held that while a waiver of this kind could not be permitted to suspend the operation of the Speedy Trial Act, we would not let waiver-induced delay count toward the seventy nonexcludable days required for dismissal of an indictment, 18 U.S.C. Secs. 3161(c)(1), 3162(a)(2), because this was the first time this rule was announced. We reasoned that we should not allow defendants to lull "the court and the prosecution into a false sense of security only to turn around later and used the waiver-induced leisurely pace of the case as grounds for dismissal." Pringle, 751 F.2d at 434. Thus, we directed on remand that if the delay was caused by the waiver, it should be treated as excludable.
There was, however, a second explanation for the delay, which would not result in its exclusion. A major discovery issue in the case at that time was whether the government would release classified information pertaining to how the defendants' yacht had been spotted and put under surveillance. While the government did not actually move for a protective order for the classified information requested by defendants until June of 1983, it had indicated to defendants that it would proceed under the Classified Information Procedures Act as early as January, 1983. Since the motions for suppression and dismissal may have rested upon this classified information, it appeared that the government's long delay in addressing this crucial issue might have been the cause of the delay. We stated in our previous opinion that if the government's procrastination was at the root of this delay, the court also would bear some responsibility for failing to move the case along. Thus, we concluded that "[i]f the delay between January 10, 1983, and May 23, 1983, was due to the government and the court, not the defendants' waiver, then the time is nonexcludable and the indictment must be dismissed." Pringle, 751 F.2d at 435.
Upon remand, the district court below held an evidentiary hearing to determine whether the defendants' waiver "caused or contributed to the delay." Pringle, 751 F.2d at 434. The district court found that the government attorney had in fact relied upon the defendants' waiver and had accordingly slowed down the pace of the case. The effect of the waiver was further strengthened by numerous conversations between the government and defense counsel in which defense counsel indicated their satisfaction with the slow pace of the case because they were all extremely busy and because they recognized that the case was a "loser" and that their clients faced "maximum exposure." The district court found that the "defendants' waiver was the substantial, predominant, and proximate cause of the leisurely pace at which the case proceeded."
During the remand hearing, however, a third explanation for the period of delay surfaced. A transcript of the May 23, 1983, status conference which had not previously been available either to this court or the parties showed that the district court itself was unaware that the case had been reassigned to it until shortly before the status conference:
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