United States v. Bey

• Decision Date: 14 June 1974
• Docket Number: No. 73-1785.,73-1785.
• Citation: 499 F.2d 194
• Parties: UNITED STATES of America, Appellant, v. Tarik Ali BEY a/k/a Warren L. Williams, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

499 F.2d 194 (1974)

UNITED STATES of America, Appellant, v. Tarik Ali BEY a/k/a Warren L. Williams, Appellee.

No. 73-1785.

United States Court of Appeals, Third Circuit.

Argued April 1, 1974.

Decided June 14, 1974.

COPYRIGHT MATERIAL OMITTED

Richard L. Thornburgh, U. S. Atty., James A. Villanova, Kathleen K. Curtin, Samuel J. Orr, III, Asst. U. S. Attys., Pittsburgh, Pa., for appellant.

Herbert Bennett Conner, John Edward Wall, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellee.

Before VAN DUSEN, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

This is an appeal by the government¹ from the District Court's dismissal of an indictment charging violation of 18 U.S.C. §§ 922(h) and 924(a).² The District Court, in dismissing the indictment by its December 4, 1973 order, incorporated therein the provisions of its prior order of August 16, 1973.³ The grounds for the Court's dismissal, therefore, can be summarized as: (1) ineffective assistance of counsel, (2) a denial of a speedy trial, and (3) irreparable prejudice "in defendant's opportunities, for concurrent sentence, access to certain rehabilitation opportunities, and in various other ways." As a consequence, the District Court held that the defendant had been denied both procedural and substantive due process.

I.

Tarik Ali Bey was originally indicted on March 7, 1968, (Criminal No. 68-54) for a violation of 15 U.S.C. § 902(f)⁴ and charged with being a convicted felon who caused a firearm to be transported in interstate commerce. The violation was alleged to have occurred on July 3, 1967.

On March 25, 1971, Bey was re-indicted. A superseding indictment was filed charging him, a convicted felon, with wilfully and knowingly receiving a firearm which had been shipped and transported in interstate commerce in violation of 18 U.S.C. §§ 922(h) and 924(a), (formerly 15 U.S.C. §§ 902(f) and 905(a)).⁵

Until July 1972, Bey's whereabouts were apparently unknown.⁶ In July 1972, however, Bey was arrested by state authorities and was incarcerated in Allegheny County Jail. While in state custody, he was placed under federal detainer. On August 28, 1972, attorney Lawrence Zurawsky⁷ was appointed as his counsel to represent him in the instant proceeding. Within weeks thereafter, pretrial motions, captioned in indictment No. 71-63, were filed including motions for dismissal of the indictment, discovery, bill of particulars, suppression of evidence, speedy trial, pretrial conference and mental examination.

On October 5, 1972, the Court granted defendant's motion for a "general continuation of time" in connection with the filing of his briefs supporting all the pretrial motions and appointed Dr. Henninger, a psychiatrist, to examine the defendant. On August 1, 1973, all pretrial motions were heard by the Court. It was at that hearing, that for the first time, Zurawsky claimed he had received the wrong indictment, referring to the superseded indictment No. 68-54. The August 16, 1973 order dismissing the indictment No. 71-63 followed. (See fn. 3, supra).

Neither the record nor the fragments of testimony taken at the August 1, 1973 argument support defendant Bey's position or the Court's findings and conclusions. We accordingly reverse.

II.

Bey's argument seeking to sustain the dismissal of No. 71-63 essentially proceeds as follows:

(a) Either at or after arraignment (September 14, 1972) Bey\'s trial counsel (Zurawsky) received from the "government" a copy of the old (68-54) or "wrong" indictment; and that

(b) Bey was thereby prejudiced by having his counsel (without notice of the superseding indictment or its substance) prepare "motions and briefs for approximately one year based upon a superseded indictment".⁸

(c) Further, says Bey, because of his attorney\'s extensive work dealing with the superseded indictment, he, Bey, was not brought to trial within a reasonable time.

To evaluate these contentions, we look to the events and their chronology, as they are revealed by the record.

1. As previously noted, the defendant was placed under federal detainer some time in late July or early August 1972 while awaiting trial on State charges.

2. On August 28, 1972, Zurawsky was appointed as his counsel to represent him in proceedings under the instant indictment. Form CJA 20 ("Appointment and Authority to Pay Defense Counsel") described Bey's offense as "possession of a firearm after conviction 18 U.S.C. §§ 922(h) and 924(a)". That form, as well as the local form for notice of appointment of counsel, bore the criminal docket number of the instant indictment. The local form was mailed to the defendant; the CJA 20 form was mailed to Zurawsky.

3. The notice of arraignment bearing the superseding indictment number was mailed by certified mail to Bey at his prison address and to Zurawsky at his office address in Pittsburgh, Pennsylvania.

4. Thereafter, Bey was arraigned on September 14, 1972. The transcript of the arraignment reveals the following:

"MAGISTRATE SENSENICH:

This is the arraignment for Tarik Ali Bey, a/k/a Warren L. Williams, who has been indicted at Criminal No. 71-63 for a violation of 18 United States Code, Sections 922(h) and 924(a). The defendant is present in Court and is represented by his attorney, Mr. Zurawsky, and the government is represented by Mr. Stanton. Mr. Stanton, you may proceed, and I\'ll ask the parties to approach the bench. Would you approach the bench, please.

MR. STANTON:

You are Tarik Ali Bey, a/k/a Warren Williams? And, have you or your counsel received a copy of the indictment returned against you charging you with one count—that on or about July 3, 1967, at Braddock, you having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and wilfully receive a firearm, a .22 Caliber Revolver which had been shipped in interstate commerce from Denver, Colorado, to Braddock. You know what you\'re charged with?

TARIK ALI BEY:

I don\'t understand the terms knowingly and wilfully. Does that mean that I knew that I was breaking the law when I sent for the gun?

MR. STANTON:

That\'s right, yes.

TARIK ALI BEY:

Well, that\'s that\'s incorrect. I did not.

MR. ZURAWSKY:

But, you do understand, Mr. Bey, that the term knowingly means that you did it with knowledge and you did it with intent to break the law wilfully. Whether or not you did it doesn\'t (inaudible).

TARIK ALI BEY:

I understand what the term means.

MR. ZURAWSKY:

OK

MR. STANTON:

So, to this charge then, this count, to this indictment, how do you wish to plead, guilty or not guilty?

TARIK ALI BEY:

Not Guilty.

MR. ZURAWSKI:

Ila Jeanne Sensenich, I apparently didn\'t receive a copy of the indictment although I saw it previous to this hearing. Mr. Bey had a copy. Do you have an extra one for indigent counsel? (emphasis supplied)

MR. STANTON:

I can give it to him."

5. On the reverse side of the original of the indictment 71-63, the defendant Bey's signature appears in the section reserved for his plea. Bey's signature, signifying his "not guilty" plea is written in Arabic. Beneath the script signature the defendant's name Tarik Ali Bey is subscribed. Zurawsky's signature appears next to that of the defendant's.

6. On the defendant's behalf, Zurawski in the latter part of September 1972 filed a group of motions all captioned under Criminal No. 71-63 (the superseding indictment number). With but a minor exception,⁹ the motions filed sought relief and information equally applicable and relevant to both the superseded and the superseding indictments. One of the motions sought a pretrial conference at least ten days prior to trial so that defense counsel could discuss with the Court and the Government the legal and factual issues otherwise "defendant will be deprived of effective assistance of counsel and adequate opportunity to prepare his defense."

7. The defendant's motion for a mental examination was filed in October 1972, some few weeks after the filing of his motion for speedy trial. At the same time, and in the same document, Bey asked for a general continuance of time to file his briefs in connection with the pretrial motions.

8. On October 5, 1972 the Court granted Bey's motion for a general continuance "until further order of the Court."

9. Between that time and the hearing on August 1, 1973 a series of letters were written between Zurawsky and the United States Attorney, and in some instances between Zurawsky and the doctors appointed to examine Bey.¹⁰ That correspondence reveals, among other things, that a Dr. Henninger on October 26, 1972 refused a Court appointment as a psychiatrist. Thereafter, a Dr. Thomas was appointed. On May 25, 1973, Dr.

Thomas wrote to Zurawsky and reported that the defendant had refused to permit Dr. Thomas to examine him on two separate occasions. Dr. Thomas sought Zurawsky's intervention. The text of Zurawsky's response under date of July 17, 1973 follows:

"Dear Dr. Thomas:

May I apologize for the repeated inconveniences caused you in our mutual efforts to assist Mr. Bey. Apparently his earlier ambivalence concerning his desire for further psychiatric evaluation has lately evolved to a determination to resist any further medical or psychiatric treatment or study.

Judge Dumbauld has scheduled a pre-trial hearing for August 2, 1973, at which time we will probably dispose of the several pending pre-trial motions and of the problem of the proper mode of evaluating Mr. Bey\'s legal competence.

Whatever course of action is decided upon at the pre-trial conference, I shall write you promptly either requesting your further professional services, if available, or requesting that you submit your bill for services rendered to date.

May I express my appreciation for your efforts to date in this case, which unfortunately has proved difficult beyond our initial expectations.

Yours very truly Lawrence G. Zurawsky"

10. On July 19, 1973, two days after Zurawsky had written to...