U.S. v. New Buffalo Amusement Corp.

Decision Date22 May 1979
Docket NumberNo. 444,D,444
Citation600 F.2d 368
PartiesUNITED STATES of America, Appellee, v. NEW BUFFALO AMUSEMENT CORP., Aquarius Releasing, Inc., and Terry Levene, Appellants. ocket 78-1317.
CourtU.S. Court of Appeals — Second Circuit

Alan M. Dershowitz, Cambridge, Mass., and Jeanne Baker, Cambridge, Mass. (Rosenberg, Baker & Fine, Cambridge, Mass., on brief), for appellants.

Roger P. Williams, Asst. U. S. Atty., Buffalo, N. Y., Richard J. Arcara, U. S. Atty. for the Western District of New York, Buffalo, N. Y., for appellee.

Before MANSFIELD and OAKES, Circuit Judges, and BARTELS, District Judge. *

BARTELS, District Judge:

Appellant Levene owns and operates several corporations which produce, distribute, and exhibit motion pictures. Appellant Aquarius Releasing, Inc. ("Aquarius"), an entertainment corporation of which Levene is sole stockholder and president, acquired and produced the allegedly obscene film involved here entitled "Belinda." The other corporate appellant, New Buffalo Amusement Corp. ("New Buffalo"), is a subsidiary of Loew's Theatres, Inc., and is the operator of the theater in Buffalo, New York, at which the movie in question was shown.

Under the four-count indictment which initiated this action, filed on May 2, 1973, against appellants Levene, Aquarius, New Buffalo, and various other defendants not involved in this appeal, 1 Levene and Aquarius were convicted of knowingly using a common carrier for carriage in interstate commerce of an obscene film, and New Buffalo was convicted of knowingly taking the same film from the common carrier, both offenses in violation of 18 U.S.C. §§ 1462 and 2. 2 The judgments of conviction were entered on July 25, 1978 after a jury trial in the United States District Court for the Western District of New York, Curtin, J. This is an appeal from those judgments.

Appellants have asserted many grounds for reversal, including the claim that they were denied their rights to a speedy trial under the various speedy trial plans of the Western District of New York 3 and under the Sixth Amendment. Since we reverse on the ground of the denial of appellants' Sixth Amendment rights to a speedy trial, we need limit ourselves only to the speedy trial contentions.

While we realize that delay alone is insufficient to constitute a Sixth Amendment violation, a chronological history of the delays in the prosecution of this action, for which the appellants must assume some of the responsibility, reflects an official indifference to the necessity of a speedy trial as required by the applicable Western District Plans and by the Constitution. Although the indictment was filed on May 2, 1973 and appellants moved for dismissal on speedy trial grounds on June 1, 1976, 4 it was not until October 12, 1977 that a jury was finally empanelled, and even then the trial was postponed until November 15, 1977, approximately four and one-half years after the date of indictment. Although various contentions have been made by the government in explanation of this extensive delay, we find no dispute as to the actual facts as reflected by the record or the docket sheet. For the sake of clarity a table summarizing the periods of delay is annexed hereto as an appendix.

Appellants have specified the alleged violations of their speedy trial rights according to the different time periods covered by (1) the applicable Western District Plans Regarding Prompt Disposition of Criminal Cases (April 1, 1973 to July 1, 1976), passed pursuant to Rule 50(b) of the Federal Rules of Criminal Procedure; (2) the Western District's New Plan for Prompt Disposition of Criminal Cases, promulgated pursuant to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 Et seq. (July 1, 1976 to July 1, 1979); and (3) the Sixth Amendment speedy trial clause. Accordingly, the extent and effect of the delay involved can best be presented by a discussion of the lapse of time under each Plan.


Appellants' first contention is predicated upon a violation of Rule 4 of the Western District's Rule 50(b) Plan, effective April 1, 1973. While this Plan was superseded on September 29, 1975 by the Western District's Interim Rule 50(b) Plan, for all purposes relevant here the plans are identical, and the pertinent provision reads as follows:

In all cases the government must be ready for trial within six months from the date of arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried.

The necessary inquiry, therefore, is whether the government was ready for trial within six months after date of indictment, exclusive of any periods of excludable delay. Appellants claim that the government was required to signify its readiness for trial by filing a timely notice of readiness in writing and that it failed to fulfill that obligation in this case.

To determine the effective timetable, we proceed to the excludable periods which extend the six-month deadline beyond the initial expiration date of November 2, 1973 in this case. In his opinion of August 4, 1976 denying appellants' speedy trial motions, Judge Curtin found and the parties concede that the initial fourteen and one-half months from May 2, 1973 to July 15, 1974 were consumed by the hearing and consideration of pretrial motions. Under Rule 5(a) of the Plan, this period, during which motions were Sub judice, must be excluded. 5 From July 16 to November 1, 1974, the government took no action, and, therefore, it must be charged with this three and one-half month delay.

On November 1, 1974, the United States Attorney sent a notice to defense counsel and the court placing the matter on the trial calendar to set a date for trial. If this motion could properly be treated as a notice of readiness, the government should be given the benefit of the November 1 date. However, this procedure was not in accordance with the accepted Western District practice of filing a written notice of readiness. See United States v. Pierro, 478 F.2d 386, 389 n.3 (2d Cir. 1973); Cf. United States v. Lane,561 F.2d 1075, 1076, 1077-78 (2d Cir. 1978). 6 In his opinion of June 23, 1976 denying defendants' motion for dismissal on speedy trial grounds, the trial judge specifically identified August 11, 1975 as the date of the government's announcement of readiness for trial, and the government's July 13, 1976 memorandum in opposition to the speedy trial motion makes the same assumption. 7 The government further claims to have announced in open court on November 11, 1974 its readiness for trial. This claim, however, is unsupported by anything in the record, and Judge Curtin fails to mention it in either his initial consideration or his reconsideration of appellants' speedy trial motion. 8 We find the government chargeable with the period from November 1 through November 20, 1974 when the next excludable period begins, bringing the total non-excludable time from May 2, 1973 to November 20, 1974 to approximately four months and four days.

On November 20, defendants moved to inspect grand jury minutes and to dismiss the indictment for failure of the government to supply the grand jury with sufficient evidence that the films were transported in interstate commerce. Since the motions were Sub judice until June 10, 1975 when the trial court issued a brief decision and order denying both motions, this entire period of over seven months must be excluded under Rule 5(a) of the Plan, although such extended consideration of the motions seems inordinately lengthy. 9

From June 11 to July 7, 1975, so far as is discernible from the record, no action was taken by the government which would toll the readiness period. The delay from July 7 to July 21, 1975, however, must be attributed to defendants since they specifically requested an adjournment to file additional motions. Again, the record indicates no basis for exclusion of the period from July 22 to August 10, 1975, thus bringing to five months and twenty days the total non-excludable time from date of indictment and extending the expiration date of the six-month readiness period to August 20, 1975.

Consistent with the June 23, 1976 opinion of the trial court, we have accepted August 11, 1975 as the date "(t)he Government announced that it was ready for trial," although no written notice was filed. This announcement, made within the six-month notice period, may be deemed an adequate compliance by the government with its obligation under the Western District's Rule 50(b) Plans. 10


On January 3, 1975, the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 Et seq., became effective. This Act set forth certain mandatory timetables and required the various district courts to adopt after study a plan formulated in accord with the Act, 18 U.S.C. §§ 3165-66, pursuant to which the Western District adopted an interim plan ("New Plan") effective from July 1, 1976 to July 1, 1979. Unlike the predecessor Rule 50(b) Plans, this New Plan, as required by the Speedy Trial Act, focuses not on the obligation of the government to file a notice of readiness, but upon the obligation of the court to bring the case to trial within 180 days of the effective date of the Plan, subject to any periods of exclusion set forth in § 3161(h) of the Act. Specifically, Rule 7(a)(1) and Rule 5(a)(1) of the Western District's New Plan require that the government be ready for trial and that the trial commence within 180 days of July 1, 1976. In this case, the jury was not selected until October 12, 1977, 468 days after July 1, 1976, and trial did not actually commence until November 15, 1977, 502 days after July 1, 1976. Of this latter period, approximately 226 days were properly excludable.

On July 1, 1976, appellants' motion to dismiss for lack of a speedy trial was pending and was not finally decided by the court until ...

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