U.S. v. Yagid, 265

• Decision Date: 05 January 1976
• Docket Number: D,No. 265,265
• Citation: 528 F.2d 962
• Parties: UNITED STATES of America, Appellant, v. Herbert YAGID, Defendant-Appellee. ocket 75--1288.
• Court: U.S. Court of Appeals — Second Circuit

Page 962

528 F.2d 962

UNITED STATES of America, Appellant, v. Herbert YAGID, Defendant-Appellee.

No. 265, Docket 75--1288.

United States Court of Appeals Second Circuit.

Argued Oct. 29, 1975.

Decided Jan. 5, 1976.

Michael C. Eberhardt, Sp. Atty. for the U.S. Dept. of Justice (Paul J. Curran, U.S. Atty., S.D.N.Y., John D. Gordan, III, Asst. U.S. Atty., of counsel), for appellant.

Herbert Yagid, pro se.

Before MULLIGAN, OAKES and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

On July 7, 1975 the District Court for the Southern District of New York dismissed Indictment 73 Cr. 471 against Herbert Yagid on the ground that he had not been retried, after a successful appeal, within the 90 day period prescribed by Rule 6 of the Southern District's Plan for Achieving Prompt Disposition of Criminal Cases ('the Plan'). The government appeals that dismissal. It claims that the district court should not have dismissed the indictment because, at the time of the order of dismissal, the 90 day period had not yet expired. Rule 6 reads as follows:

'Where a new trial has been ordered by the district court or a trial or new trial has been ordered by an appellate court, it shall commence at the earliest practicable time, but in any event not later than 90 days after the finality of such order unless extended for good cause.'

The government contends that this Court's order for a new trial did not become final on December 16, 1974, when its mandate was filed, but rather on April 14, 1975, when the Supreme Court denied Yagid's co-defendant's petition for writ of certiorari. The government argues further that even if the earlier date applies, good cause existed for the extension of the 90 day period. In short, it claims that Rule 6 had not been violated and that, consequently, Judge Brieant's dismissal of the indictment should be reversed.

A brief discussion of the facts is necessary to understand the government's argument as well as our reasons for affirming the order of the district court.

Herbert Yagid, Jerry Allen, Salvatore Badalamente, Louis Stern and three others originally were charged in a two-count indictment with conspiracy to transport in interstate and foreign commerce forged, altered and counterfeit passbooks and certificates of deposit obtained from various banks in violation of 18 U.S.C. § 371, and with the substantive crime of interstate transportation of such passbooks and certificates of deposit in violation of 18 U.S.C. §§ 2314 and 2. Allen and two other co-defendants pleaded guilty. The substantive count was dismissed as to Badalamente, but he was tried before a jury on the conspiracy count along with Yagid and Stern, who were also tried on the substantive count. Allen testified as a government witness and all were found guilty on all charges. Yagid and Badalamente appealed, advancing numerous contentions why their convictions should be reversed. This Court concluded that the government's suppression of material having substantial relevance to Allen's credibility required a new trial for Yagid. Because Allen's testimony did not implicate Badalamente in any manner, however, Badalamente could not win a new trial on this ground. United States v. Badalamente, 507 F.2d 12, 18 (2 Cir. 1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1565, 43 L.Ed.2d 776 (1975). In the opinion on that appeal, this Court observed that another district judge should preside at the new trial since Judge Carter, the presiding judge in the first trial, might be required to testify about certain aspects of the suppression. 507 F.2d at 15.

Our mandate, dated December 12, 1974, was filed in the district court on December 16, 1974. Badalamente petitioned for a writ of certiorari in the Supreme Court on January 17, 1975, 43 U.S.L.W. 3529. Certiorari was denied on April 14, 1975, 421 U.S. 911, 95 S.Ct. 1565, 43 L.Ed.2d 776 (1975). Apparently, no one connected with Yagid's case made any efforts to have it assigned for retrial until late February, 1975, when the Assistant United States Attorney addressed telephone inquiries to Judge Carter's chambers about reassignment, only to be told that the matter 'would be taken care of.' Someone at the District Court Clerk's office erroneously told both parties that the case had been reassigned to Judge Harold Tyler. After phone calls to Judge Tyler's chambers failed to clarify matters, the government again was informed by the Clerk's office that the case had been placed on Judge Tyler's docket. In mid-March, the government learned that all of Judge Tyler's cases were in the process of being reassigned. ¹ Unfortunately, at no time did the government seek to communicate in writing with Judge Carter, who had tried the case on its first journey through the judicial system.

In mid-April, the government filed a Notice of Readiness in an attempt to ascertain the whereabouts of the case. After learning that the notice had not been docketed, the government, on April 30, 1975, filed a new Notice of Readiness. ² In response thereto, Judge Carter, on May 23, 1975, sent a memorandum to the District Court Assignment Committee which said:

'I have just received a notice of readiness for trial on or after May 5 (1975) in the above case. . . . (T)he opinion of the Court of Appeals suggests that I not preside at the retrial. Apparently this development had not come to the attention of the Assignment Committee, and the case has not yet been reassigned. I would suggest that the reassignment proceed without delay, and that the Judge who is to preside over the trial be advised that he may have to proceed with the trial of this case promptly.'

By June 4, 1975 the Assignment Committee had reassigned the case to Judge Brieant. Judge Brieant held a pretrial conference on June 20, 1975 where he raised the issue of compliance with Rule 6. He heard oral argument on the point on July 2, 1975 and, on July 7, 1975, filed a memorandum opinion and order dismissing the indictment against Yagid without prejudice because the government had failed to commence the retrial of the case within 90 days, as required by Rule 6 of the Plan.

The memorandum opinion intimated that this Court is without power to effect changes in the district court's docket and that '(a)ccordingly, notwithstanding a recommendation of the Court of Appeals that a case 'should' be reassigned to another judge, no reassignment should be expected to take place except upon the initiation of the attorney for the Government or defendant, or on the application of the Assigned Judge himself.' Before addressing the issues raised on appeal, we should place in focus this Court's recommendation that a different judge should preside over the new trial and the communication of that observation to the court below.

The district court's apprehension that this Court is injecting itself into the assignment process of the district courts is unwarranted. We did not suggest who should preside over the retrial. We suggested who should not preside. ³ When we believe that there is an inherent problem in a particular remand, we have the power, indeed the duty, to frame our opinion to provide for 'further proceedings . . . (which are) just under the circumstances.' 28 U.S.C. § 2106. ⁴ The fact that Judge Carter might be called as a witness at retrial warrants assigning the retrial to a different judge. Such suggestions contained in appellate opinions should not be deemed merely precatory because they are not 'ordered,' especially when a retrial is mandated. ⁵ Rule 41(a) of the Federal Rules of Appellate Procedure specifically provides that '(a) certified copy of the judgment and a copy of the opinion of the court . . . shall constitute the mandate . . ..' ⁶ We emphatically reject the district court's notion that '(s)uch a provision in an appellate opinion . . . does not, nor should it, effect, without more, an automatic reassignment of the case.' (emphasis added) We now turn to the issues raised on appeal.

I. Finality of the Order for Retrial

The government cites United States v. Roemer, 514 F.2d 1377 (2 Cir. 1975), as authority for its position that the court's order for a new trial became final, not on December 16, 1974, when the mandate was filed, but on April 14, 1975, when Badalamente's petition for certiorari was denied. We find Roemer to be distinguishable from the facts of this case and affirm the dismissal of the indictment.

A superficial reading of Roemer might lead to the conclusion that it should be controlling in the instant case. Closer scrutiny, however, leads us to hold otherwise. Roemer was found guilty as a party to a conspiracy to defraud the United States. ⁷ The challenge to his conviction included a claim that his trial had not begun within the time limit established by Rule 6 of the Plan. In affirming the judgment of conviction, this Court held that the time limit for Roemer's trial did not begin to run until his co-defendants' petition for certiorari had been denied. The court found that even though Roemer had not petitioned for certiorari, he 'plainly stood to benefit from his co-appellees' efforts in this regard. The order directing a trial for Roemer did not therefore become final until his co-appellees' attempt to overturn . . . (the appellate decision) came to rest with the Supreme Court's denial of certiorari.' 514 F.2d at 1381 n. 4.

The posture of the instant case is significantly different. What Badalamente, Yagid's co-defendant, sought by petitioning for certiorari was principally the new trial already granted Yagid. The government contends, however, that in a supplemental brief which Badalamente filed with the Supreme Court, he sought review on the basis of a new ground, which, if successful, would have benefitted Yagid by dismissal of the indictment. ⁸ That is true. Nevertheless, the instant case is clearly distinguishable from Roemer. Roemer did not prevail when the government appealed the dismissal of his indictment. The Court of Appeals ordered...