U.S. v. McGrath

• Decision Date: 19 May 1980
• Docket Number: 879,Nos. 878,D,s. 878
• Citation: 622 F.2d 36
• Parties: UNITED STATES of America, Appellee, v. James W. McGRATH, Jon N. English and Raymond D. Masciarelli, Appellants. ocket 77-1491.
• Court: U.S. Court of Appeals — Second Circuit

Page 36

622 F.2d 36

UNITED STATES of America, Appellee, v. James W. McGRATH, Jon N. English and Raymond D. Masciarelli Appellants.

Nos. 878, 879, Docket 77-1491.

United States Court of Appeals Second Circuit.

Argued March 20, 1980.

Decided May 19, 1980.

Gustave J. DiBianco, Asst. U. S. Atty., Syracuse, N. Y. (George H. Lowe, U. S. Atty. for the Northern District of New York, Syracuse, N. Y., of counsel), for appellee.

James P. Shanahan, Syracuse, N. Y., for appellant McGrath.

Charles W. Avery, Auburn, N. Y., for appellant English.

Dante M. Scaccia, Syracuse, N. Y., for appellant Masciarelli.

Before LUMBARD, MULLIGAN and OAKES, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from judgments of the United States District Court for the Northern District of New York (Munson, J.). The three appellants are among a number of defendants who were charged with conducting an illegal gambling operation in a multicount indictment filed on November 18, 1974. ¹ Appellants Jon N. English and Raymond D. Masciarelli entered guilty pleas on June 22, 1977 pursuant to a stipulation preserving their right to appeal from pretrial rulings. Appellant James W. McGrath was convicted on May 24, 1977 after a jury trial.

The appellants appeal the denial of several pretrial motions: first, motions to dismiss the indictment on the ground that appellants' right to a speedy trial was violated; second, a motion to suppress evidence on the ground that it was seized pursuant to a faulty search warrant; and third, a motion to suppress wiretap evidence due to excessive sealing delay in violation of 18 U.S.C. § 2518(8)(a). Appellant McGrath also appeals from a ruling at trial permitting the Government to play before the jury a composite tape of recorded conversations. For the reasons given below, we affirm.

I

In considering appellants' speedy trial claim, it is necessary to begin with a brief description of the various delays which vexed the course of the proceedings below.

Appellants were indicted on November 18, 1974 and arraigned on December 10, 1974. On December 16, the Government filed a Notice of Readiness for Trial, but soon thereafter various defense discovery motions were filed. District Judge Port ordered the Government to prepare a discovery order, but owing to the illness of the Assistant United States Attorney working on the case, this was not done.

On March 13, 1975 an order was filed by Judge Port granting, inter alia, defendants' request for the names of the witnesses the Government intended to call. Two weeks later the Government filed a motion to vacate that portion of Judge Port's order, which was denied. On May 8, the Government filed a notice of appeal. This court ultimately reversed Judge Port's disclosure order. United States v. Cannone, 528 F.2d 296 (2d Cir. 1975). The appellate process, including the government's petition for rehearing, was not complete until the filing of the order of Judge Port pursuant to the mandate of this court on March 24, 1976. On May 7, 1976, the Government filed materials in response to the modified discovery order. On May 13 a defense motion to suppress wiretap evidence was filed, which was denied on June 29. Appellants concede that the Government was ready for trial as of June 30, 1976.

On November 29, 1976 the jury was called for the trial of Masciarelli and English. The next day a mistrial was declared because members of the jury panel had apparently seen a newspaper article relating to the case. Additional defense suppression motions were made on December 6, 1976 and denied on April 27, 1977. The trial of appellant McGrath had been scheduled for April 27, and the retrial of Masciarelli and English was scheduled to follow on May 11. As a result of a mistrial in the McGrath case, however, his trial did not begin until May 11. McGrath was convicted on May 24, 1977. The retrial of Masciarelli and English began on June 21, 1977 and guilty pleas were entered on June 22.

Appellants' speedy trial claim has three parts. First, appellants contend that the Government failed to retry Masciarelli and English after their November 30, 1976 mistrial within the time limits prescribed by the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., and the Northern District Plan for Prompt Disposition of Criminal Cases. ² Second, appellants argue that the Government failed to be "ready for trial" within the time limits prescribed by the two previous Northern District Plans. Third, appellants urge that the delays in bringing them to trial violated their constitutional right to a speedy trial under the Sixth Amendment.

Appellants cannot prevail on their retrial argument because neither the Act nor the applicable Plan impose dismissal sanctions for violations of the prescribed time limits. It is therefore unnecessary to consider whether, taking into account the various provisions for exclusion of delay from the retrial calculations, the Government actually transgressed the applicable time limits. See United States v. DiFrancesco, 604 F.2d 769, 776 (2d Cir. 1979), cert. granted, --- U.S. ----, 100 S.Ct. 1012, 62 L.Ed.2d 751 (1980). The section of the Act which specifies the sanctions for failure to abide by the time limit provisions, 18 U.S.C. § 3162, is explicitly made applicable only to indictments filed on or after July 1, 1980. 18 U.S.C. § 3163(c) (as amended, August 2, 1979). Similarly, Rule 11(e) of the Plan provides, with certain exceptions not relevant here, that "failure to comply with the time limits prescribed herein shall not require dismissal of the prosecution."

The provisions of the Act and of Plan III which delay the imposition of sanctions were designed to afford the Government and the courts time in which to make the institutional changes necessary to facilitate compliance with the statutory requirements. See H.R.Rep. No. 1508, 93d Cong. 2d Sess., 32. This court has uniformly declined to apply sanctions during this phase-in period. United States v. Dichne, 612 F.2d 632, 641-42 (2d Cir. 1979); United States v. DiFrancesco, supra; United States v. New Buffalo Amusement Corp., 600 F.2d 368, 376-77 (2d Cir. 1979); United States v. Carini, 562 F.2d 144, 148 (2d Cir. 1977).

Appellants' contentions with respect to the Government's readiness for trial stand on a somewhat different footing. These contentions exclusively involve the period before July 1, 1976, and thus are not at all covered by the Speedy Trial Act or by Plan III. Rather, these contentions are governed by Rule 4 of Plan I and Rule 5 of Plan II, which both provide that "(i)n all cases the government must be ready for trial within six months from the date of . . . the filing . . . of a formal charge upon which the defendant is to be tried. . . ." Both Plans provide for dismissal of the indictment "(i)f the government is not ready for trial within such time." Although Plan III is not applicable to these claims here, it contains similar provisions in Rules 7 and 11(c). See, e. g., United States v. New Buffalo Amusement Corp., supra at 372-74; United States v. Armedo-Sarmiento, 545 F.2d 785, 790-91 (2d Cir. 1976); United States v. Pierro, 478 F.2d 386, 388-89 (2d Cir. 1973).

The court below denied appellants' motion to dismiss on the ground that it was not timely. We need not consider the question of timeliness, because we find that the Government complied with the readiness rule. The Government filed a Notice of Readiness on December 16, 1974, less than one month after the indictment was filed. We disagree with appellants' contention that the Notice was "meaningless" under United States v. Pollak, 474 F.2d 828 (2d Cir. 1973). Appellants provide no evidence that the Government was not in fact ready at the time the Notice was filed. Unlike Pollak, there was no discovery motion outstanding at the time the Notice was filed. See United States v. Armedo-Sarmiento, supra at 791.

Even assuming arguendo that the Government was not in fact "ready" when it filed the Notice, less that 180 days of non-excludable delay ³ elapsed from the indictment on November 18, 1974 to June 30, 1976, the point at which appellants concede the Government was ready for trial.

Appellants argue that 248 days ⁴ of the period between November 18, 1974 and June 30, 1976 are non-excludable. This assertion is based on mischaracterizations of the status of several important portions of the total delay. First, appellants' contention that the entire period from January 14, 1975 to May 15, 1975 is non-excludable ignores the fact that on March 28, 1975 the Government filed notice of a motion to vacate a portion of Judge Port's discovery order. This motion was pending or under advisement until April 21, 1975. The 24 days involved are therefore excludable under Rule 5(a) of Plan I, providing for the exclusion of periods during which pretrial motions concerning the defendant are pending or sub judice. In addition, the exclusion for the Government's interlocutory appeal of Judge Port's order, the validity of which is conceded by appellants, should date from May 8, 1975, the date the Government filed its notice of appeal, not May 15, 1975, as the appellants assert. This brings the total number of excludable days within the January 14, 1975 May 15, 1975 period to 31.

Second, appellants argue that the entire period from March 24, 1976 to June 30, 1976 is non-excludable. Appellants only state in their table that 68 days during that period are non-excludable, but do not classify as either excludable or non-excludable, the 30 additional days included in the period. We have assumed that appellants meant to argue that these 30 days were non-excludable as well in arriving at the figure of 248 non-excludable days through June 30, 1976. On May 13, 1976, however, a defense motion to suppress wiretap evidence was filed, which motion was pending or sub judice until its denial on June 29, 1976. The 47 days involved are therefore excludable under Rule 6(a) of Plan II, the...