United States v. Clendening

• Decision Date: 25 February 1976
• Docket Number: No. 74-4103.,74-4103.
• Citation: 526 F.2d 842
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William B. CLENDENING, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 842

UNITED STATES of America, Plaintiff-Appellant, v. William B. CLENDENING, Defendant-Appellee.

No. 74-4103.

United States Court of Appeals, Fifth Circuit.

February 4, 1976.

Rehearing Denied February 25, 1976.

Anthony J. P. Farris, U.S. Atty., Jack O'Donnell, Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellant.

T. D. Smith, William E. Heitkamp, Houston, Tex., for defendant-appellee.

Before GOLDBERG and AINSWORTH, Circuit Judges, and NICHOLS,^* Associate Judge.

AINSWORTH, Circuit Judge:

The United States appeals from dismissal by the District Court of an indictment charging William B. Clendening with three counts of attempted evasion of income taxes in violation of 26 U.S.C. § 7201. The Government contends that the trial court erred in predicating its dismissal with prejudice on alleged noncompliance with the District Court's Rule 50(b) Plan for Achieving Prompt Disposition of Criminal Cases of the Southern District of Texas.¹ The Plan establishes time limits within which procedures prior to trial, the trial itself, and sentencing must take place, in the absence of justifiable delays. Although these time limits were exceeded in the prosecution of the present case, the delays involved did not warrant dismissal under the Plan, and we therefore reverse.

The time limitation applicable in Clendening's case is the requirement that trial commence within 90 days after a plea of not guilty if the defendant is not in custody. Where time limits such as this 90-day period are not complied with, the Plan vests discretion in the District Court to take such action as it deems appropriate, including, but not limited to, dismissal of the action for unnecessary delay as provided in Rule 48 of the Federal Rules of Criminal Procedure.² While the Plan contemplates that this discretion be exercised in a manner which will expedite the administration of criminal justice, it also recognizes that the practical realities of criminal litigation do not allow a mechanical application of the prescribed time limits. Thus, the Plan provides that any time period prescribed under its rules may be extended by the Court before or after the particular period to be extended, and lists a number of reasons for granting such extensions.³ The enumerated reasons which are most pertinent here involve periods of delay resulting from continuances granted on the basis of reasonable requests made by or with the consent of the defendant or his counsel and continuances granted on the basis of delays "occasioned by exceptional circumstances." The Plan further provides that a court shall grant such continuances

"only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt disposition of criminal charges and the interest of the defendant in a speedy trial."

Clendening was indicted by a federal grand jury in Houston, Texas on March 22, 1972, and was arrested and released on bond five days later. After his arraignment on May 5, his case was set for trial on June 6, 1972. At that time, the defendant moved for a continuance because the defense attorney wished to employ a C.P.A. to analyze the Government's data. Despite Government objection, Judge Noel granted a continuance until September 11, 1972. When that date arrived, the defendant filed a second motion for continuance which was also granted. More than a year had elapsed before the case was again set for trial on October 15, 1973. The Southern District's Rule 50(b) Plan came into effect during this period, on March 9, 1973. Two weeks prior to the October 15, 1973 trial date, defense counsel again moved for a continuance to enable him to go to Japan, apparently for business purposes. The motion was granted and trial was continued until November 26, 1973. Prior to that date, the case was reset by order of the Court to January 7, 1974. On January 7 and 8, the Court conducted a hearing on the defendant's motion to suppress evidence. Briefs were to have been filed shortly thereafter, but because of a misunderstanding as to whose brief was due first, together with a changeover in the personnel handling the case in the office of the United States Attorney, the Government's brief on the suppression motion was not filed until June 24, 1974, and the defendant's final response to that brief was not filed until September 3, 1974. On October 7, 1974, the case was transferred from Judge Noel to Judge Seals, who promptly denied the motion to suppress and set the case for trial on November 4, 1974. On October 15, the defendant moved to dismiss, claiming lack of speedy trial and noncompliance with the Rule 50(b) Plan. Following a hearing on this motion, held October 31, 1974, Judge Seals dismissed the indictment, relying on our decision in another case from the Southern District of Texas, United States v. Rodriquez, 5 Cir., 1974, 497 F.2d 172, and pointing to the fact that the delays there were substantially shorter than those in Clendening's case.

In his findings of fact and conclusions of law, Judge Seals noted the delay of two years and seven months between Clendening's indictment and the scheduled November 4, 1974 trial date, and concluded, "this Court is convinced that it's compelled to dismiss this case by the reasoning of Judge Charles Clark in United States v. Rodriquez." In reaching this conclusion, Judge Seals stated,

"This Court is aware, of course, of the local plan and this Court is aware also of the proposed pending legislation in Congress now that will compel the Government to try everybody within sixty days of an indictment. I really don't see how that's going to be achieved, having served as a former United States Attorney and knowing of the problems of bringing cases to trial. I also fail to see how, with the present number of judges assigned to this district, how the Court will be able to try all criminal cases unless we just stop trying civil cases and devote all our attention to criminal matters. But this plan was promulgated in good faith in response to a mandate of Congress and we have to do the best we can. I am happy that this is not a case of a person charged with armed robbery. But if it was, I would have no alternative under the facts that have been presented to me in this Record."

It is quite apparent from the tenor of these remarks that Judge Seals felt that Rodriquez left him no discretion in the matter and compelled dismissal of the indictment. A careful reading of Rodriquez, however, does not support this interpretation.

In Rodriquez, we held that the Rule 50(b) Plan did not require dismissal of an indictment charging possession of marihuana with intent to distribute, where the delay in reaching trial was due to an exceptionally crowded criminal docket. As Judge Seals correctly noted, we emphasized in that case that "the principal focus in Rule 50(b) is on the public interest in the quick, efficient functioning of the criminal justice process." 497 F.2d at 175 (emphasis in original). We also noted that the demands of the plan are stricter in many respects than the demands of the speedy trial clause of the Sixth Amendment. Thus, the factors that must be assessed in evaluating a constitutional speedy trial claim under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972),

are only a beginning in determining whether non-compliance with the Plan's time limits requires dismissal of an indictment. Their relationship to the public interest which the Plan was intended to emphasize is, at most, attenuated. The Plan itself provides that lack of prejudice "shall not justify non-compliance." It likewise clearly states that the Plan is "applicable to all criminal actions without any necessity for demand by the defendant." The uniqueness of these plans is that they place an affirmative duty on the government to bring the accused to trial. In judging plan compliance, consideration of lack of prejudice to the defendant or demand for trial by the defendant could serve to transpose a part of this burden to the accused. It is the duty of the prosecutor and the court to make these plans work.

497 F.2d at 175. While our opinion in Rodriquez thus made it apparent that the requirements of the Plan extend beyond the demands of the constitutional right to a speedy trial, and that we do not condone unjustifiable delay beyond the prescribed time limits under the Plan,⁴ our holding clearly indicated that dismissal is not necessary where extenuating circumstances justifying delay are present. In Rodriquez, we emphasized the fact that

the Plan does not require dismissal for delays which are necessary, i. e., beyond the control of the court or prosecution. It is intended to expedite the processing of criminal cases — not to lay a snare for an overburdened court system. The numerous "safety valves" which have been written into the Plan make it plain that it is not intended to impose arbitrary or impractical penalties on the system of criminal justice it seeks to expedite. On the other hand, delays caused by prosecutorial or judicial inefficiency or neglect, i. e., correctible faults, are within the aim of the Plan.

497 F.2d at 176 (emphasis added).

In support of its contention that Judge Seals erred in dismissing Clendening's indictment with prejudice, the Government has argued that the Plan is not applicable to this case, since the indictment was returned a year before the Plan came into effect. It is well settled, however, that so long as a procedural innovation does not operate to the detriment of a defendant, it is applicable to pending cases even though some or all of the circumstances giving rise to a particular case occurred prior to the effective date of the new rule. Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925).⁵ Clendening's case is thus subject to the Southern District's Rule 50(b) Plan.

Resolution of the issue of the Plan's applicability, however, does not...