U.S. v. Strand
| Citation | 566 F.2d 530 |
| Decision Date | 19 January 1978 |
| Docket Number | 77-5207,Nos. 77-5133,s. 77-5133 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas STRAND, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary WILLIAMS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Melvyn Kessler, Miami, Fla., for defendants-appellants.
Robert W. Rust, U. S. Atty., Miami, Fla., Atlee W. Wampler, III, Atty.-in-Charge, Criminal Division, OC&R Section, Washington, D. C., Alan J. Sobol, Sidney M. Glazer, Appellate Sect., Criminal Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before TUTTLE, CLARK and RONEY, Circuit Judges.
Strand and Williams appeal from their conviction for conspiring to violate the federal drug laws. They contend that the charges against them should have been dismissed because of the delays in bringing them to trial. We have examined the provisions of the Speedy Trial Act of 1974 and the provisions of all relevant plans for expediting criminal trials. The delays in the proceedings against Strand and Williams violated neither the Act nor the plans. Strand and Williams also allege that the indictment was vague and insufficient. That allegation is without merit. We affirm.
Strand and Williams were among six people named in a sealed indictment that was returned on December 8, 1975, by the federal grand jury for the Eastern District of New York. Strand and Williams were named in only the first, or conspiracy, count of the three-count indictment. The indictment was unsealed in the Eastern District of New York on January 14, 1976; trial for all defendants was set for March 15. Strand was arrested in Florida on January 15; he appeared before a magistrate in the Southern District of Florida and waived a removal hearing. He was released on a personal recognizance bond. On January 28, the magistrate issued an order of removal directing Strand to appear in the district court for the Eastern District of New York when ordered to do so. Williams, also a resident of Florida, surrendered to the court for the Eastern District of New York on February 20. At that time he was arraigned and pled not guilty. He, too, was released on his personal recognizance.
In March the New York court granted Williams' motion to sever count 1 and set a new trial date in April. In April the New York court ordered all parties to respond to Williams' motion for a change of venue for count 1. The government opposed the change. On April 19 the New York court ordered the trial transferred to the Southern District of Florida. Strand was not arraigned in New York and never participated in any proceedings in that district.
When it received the transferred papers on April 27, the Southern District notified Strand that arraignment would occur within ten days. On May 7, Strand moved to continue the arraignment until his counsel returned from Europe. That motion was granted and Strand was arraigned on May 20. He pled not guilty; the court set September 7 as the trial date.
On June 21, Strand moved to dismiss the indictment because he had not been arraigned within ten days of the publication of the indictment as required by the Speedy Trial Act. See 18 U.S.C. § 3161(c). The district court properly denied that motion because the provisions of § 3161(c) did not become effective until July 1, 1976. See 18 U.S.C. § 3163(b).
Three weeks before the trial, scheduled for September 7, Strand moved for a 21-day continuance. In a response filed on August 25, the government opposed the continuance and indicated its readiness for trial. The court granted the motion and rescheduled the trial for the two-week calendar beginning October 4. The trial was not held during that period. On November 2 the government requested a continuance because a key witness had been hospitalized. Again the court rescheduled the hearing and again it was not held as scheduled.
On January 3, 1977, Strand filed a second motion to dismiss because the delay between arraignment and trial had exceeded the 180-day maximum established by the Speedy Trial Act. See 18 U.S.C. §§ 3161(c), 3161(g). The court denied the motion.
On January 10, Strand allowed the court to adjudge him guilty on the basis of stipulated testimony to enable him to raise his speedy trial claims on appeal. On the same day Williams changed his plea to guilty. In February, Williams withdrew his guilty plea and was similarly adjudged guilty so that he might raise the same claims.
Strand and Williams contend that their rights under various speedy trial plans were violated because (1) more than ten days elapsed between indictment and arraignment; (2) they were not tried within 180 days of arraignment or July 1, 1976; and (3) they were not tried within 180 days of the date of indictment. Counsel for both parties have demonstrated a lack of familiarity with the plans that govern the disposition of criminal trials. Appellants have not realized that each plan permits certain time periods to be excluded from computations; the government has failed to distinguish among the plans. One set of plans was adopted under Rule 50(b) of the Federal Rules of Criminal Procedure. Added to the Rules in 1972, Rule 50(b) required all district courts to adopt a plan "for the prompt disposition of criminal cases." See also 1972 Advisory Committee Note to Rule 50, reprinted in 8B Moore's Federal Practice P 50.01(3). To comply with that directive, the Eastern District of New York adopted its Rule 50(b) Plan which was effective April 1, 1973; the Rule 50(b) Plan for the Southern District of Florida became effective on February 28, 1973. Congress was not satisfied with the Rule 50(b) plans, especially because of their lack of uniformity. See H.R.Rep.No. 93-1508, 93d Cong.2d Sess., reprinted in (1974) U.S.Code Cong. & Admin.News, pp. 7401, 7406. As a result of that dissatisfaction, Congress enacted the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174. The Act set uniform time limits for all phases of the criminal process and directed all district courts to adopt Transitional Plans for gradually implementing the Act over a three-year period. The Act also directed the district courts to adopt Interim Plans for persons in custody and persons labeled as high-risk prisoners. The Interim Plans for the Eastern District of New York and for the Southern District of Florida became effective on September 29, 1975; the Transitional Plans became effective on July 1, 1976. Those plans, and the Speedy...
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