United States v. Howard

• Decision Date: 07 November 1977
• Docket Number: No. Y-77-0387.,Y-77-0387.
• Parties: UNITED STATES of America v. James E. HOWARD et al.
• Court: U.S. District Court — District of Maryland

440 F. Supp. 1106

UNITED STATES of America v. James E. HOWARD et al.

No. Y-77-0387.

United States District Court, D. Maryland.

November 7, 1977.

Robert P. Trout and Gale Rasin, Asst. U. S. Attys., Baltimore, Md., for plaintiff.

Leslie L. Gladstone, Baltimore, Md., for James E. Howard.

Aaron Kadish, Baltimore, Md., for Berry Lee Palmer.

Luther C. West, Baltimore, Md., for Carla Palmer.

John A. Hayes, Jr., Baltimore, Md., for Theodore Hartzog.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

Defendants James E. Howard and Theodore Hartzog have moved to dismiss the indictment, or in the alternative for release from custody pending trial. The basis for their motions is that the date of their trial, now scheduled for November 14, 1977, is not within the time limits of the Federal Speedy Trial Act, 18 U.S.C. § 3161, et seq., or the local court rules for the District of Maryland. The defendants are among eight co-defendants charged with conspiring to distribute, and possession with intent to distribute heroin in violation of 21 U.S.C. § 846. Howard is also alleged in Count II of the indictment to have conducted a continuing criminal enterprise in violation of 21 U.S.C. § 848.

Howard and Hartzog, along with their co-defendants, were arrested on August 11, 1977. Hartzog was arraigned on August 19, 1977, but Howard, because of a hospitalization and at the request of his counsel, was not arraigned until August 26, 1977. Hartzog's bail was initially set at $30,000. On September 9, 1977, the Magistrate conducted a Bail Review Hearing and denied the reduction sought by Hartzog. Hartzog remains in custody in the Baltimore City Jail.

Bail for Howard, allegedly the principal conspirator, was set at $400,000. The Magistrate, on August 26, 1977, refused to reduce bail, noting in his memorandum and order that Howard "poses a substantial risk of flight . . .". Subsequently, on September 2, 1977, this Court refused to modify the Magistrate's ruling, similarly finding that bail of $400,000 was not excessive in view of the guidelines to be considered. Accordingly, Howard also remains in custody.

The Congress through the Speedy Trial Act, 18 U.S.C. 3161, et seq., has seen fit to impose on the federal district courts time limits within which criminal defendants must be processed and tried. Under § 3161 a defendant must be indicted within 30 days of the arrest, arraigned within 10 days of the indictment, and brought to trial within 60 days of the arraignment. Section 3163, however, provides for a gradual phase-in for these standards which do not become effective until July, 1979. For the period from July 1, 1977 until June 30, 1978 a defendant must be indicted within 45 days of his arrest, arraigned within 10 days of the indictment, and brought to trial within 120 days of the arraignment. If the defendant is not tried within the applicable time limit, the court must dismiss the indictment. 18 U.S.C. § 3162(a)(2). During the transition period a set of "interim limits" controls. 18 U.S.C. § 3164. These require, inter alia, a defendant in custody to be tried within 90 days of his arrest. A failure to comply with this directive requires the defendant's release pending trial. 18 U.S.C. § 3164(c). Under § 3161(h) certain periods are excludable from the computation of time. Sections 3165 and 3166 instruct the district courts to effect plans in accordance with the dictates of the Act.

Defendants Howard and Hartzog have moved for a dismissal of their indictment under § 3161 and, in the alternative, for their release pending trial pursuant to § 3164. The motion for dismissal under the Act can be summarily disposed of. The presently effective phase-in provisions of § 3163 require only that a trial commence within 120 days of the arraignment. The trial in this case will start long before this period runs.

Nor does § 3164 dictate that the defendants be released pending trial. Under § 3161(h)(4) "any periods of delay resulting from the fact that the defendant is .. . physically unable to stand trial," should be excluded from the time within which the trial of any such defendant must commence. In United States v. Tirasso, 532 F.2d 1298 (9th Cir. 1976), the Ninth Circuit held that the excludable time periods of § 3161(h) do not apply to the 90-day provision for defendants in custody under § 3164. However, several courts have disagreed. See United States v. Corley, 179 U.S.App.D.C. 88, 548 F.2d 1043 (1976); United States v. Masko, 415 F.Supp. 1317 (W.D.Wisc.1976); United States v. Mejias, 417 F.Supp. 579 (S.D.N.Y.), aff'd on other grounds sub nom. United States v. Martinez, 538 F.2d 921 (2d Cir. 1976). The better view, and the one adopted here, is that the excludable periods of § 3161(h) modify the limits of § 3164. See, R. S. Frase, "The Speedy Trial Act of 1974," 43 U.Chic.L.Rev. 667, 712-715 (1976).

After his arrest the defendant Howard spent 10 days (August 12-22) in the hospital, unavailable for trial. Since this time is excluded in computing the 90-day deadline, the trial which is to commence on November 14 is timely.

Even if the provisions of § 3161(h) do not apply to the § 3164 interim timetable, § 3164(c) mandates a release only if the failure to commence trial is "through no fault of the accused or his counsel." If the delay is occasioned by the accused's counsel, the defendant's release is not compelled. United States v. Martinez, 538 F.2d 921 (2d Cir. 1976).

In this case the trial could not begin within 90 days in part because several of the defendants' lawyers were not available. After this case was transferred to this Court on September 1, defendant Howard's attorney requested by letter that the trial not begin before November 10. The unavailability of counsel for a co-defendant made even more impracticable a trial in late October. Accordingly, at the September 23 scheduling conference the Court faced the following alternatives: (1) replace these two counsel with others only one month before trial, or (2) schedule the trial for the earliest available date — November 14. Desiring to insure the defendants effective representation, the Court chose the latter alternative.

"Fault" in the context of § 3164(c) has no perjorative connotation. The term refers to a causal nexus between the delay in commencing trial and the actions of the defendants and their counsel. Accordingly, since the delay of less than one week beyond the existing guidelines was permitted to accommodate counsel for Howard and a co-defendant together with a concern for the defendants' rights to effective representation, the failure to commence the trial within 90 days of their arrests was not without the "fault" of the accused and his counsel.

Neither Hartzog nor his counsel played any role in the delay of the trial date. Nor was Hartzog unavailable for trial. Nevertheless, the Act should not be read to require that the Court treat Hartzog differently. An exclusion provision under § 3161(h) enables the Court to toll the running of a time period by granting a continuance on its own motion if the "ends of justice served by taking such action outweigh the best interests of the public and the defendant in a speedy trial." See, R. S. Frase, 43 Chic.L.Rev. at 698-704.

A major aim of the Speedy Trial Act is to bring about an increase in the efficiency of the courts. See, H. R. Rep. 1508 (Judiciary Committee), 93rd Cong., 2d Sess. (1974); U. S. Code Cong. & Admin. News 1974, p. 7401.

A failure to toll the Act as to the defendant Hartzog would require the Court to sever his trial from that of the other defendants in order to avoid releasing him without adequate assurance that he would appear at trial. Such a severance would unduly hamper the presentation of evidence and would unnecessarily double the trial time of this prosecution. For reasons such as these, a joint trial is especially appropriate in a conspiracy case. United States v. Edwards, 488 F.2d 1154 (5th Cir. 1974). Clearly, the benefits derived from an earlier trial of Hartzog do not outweigh the colossal inefficiency of a double prosecution. Nor would his release pending trial on November 14 be appropriate, as was determined when bail was set and again when the Magistrate reviewed the conditions of his release on September 12. Accordingly, the "ends of justice" dictate that a continuance be granted in the case of Hartzog, thus extending the 90-day limit of § 3164 to and including November 14.

Regardless of the proper construction of the Speedy Trial Act, its commands cannot be given effect because they are an unconstitutional legislative encroachment on the judiciary. The constitutional principle of the separation of powers is implicit in the basic structure of the Constitution. The doctrine has been recognized from the earliest days of our constitutional history. Five of the Federalist Papers, No. 47-51, are devoted to an exploration of this doctrine. In one, Federalist No. 48, Madison wrote:

It is agreed on all sides that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.

The separation was not intended, nor has it proven to be, complete. A system of checks and balances prevents one branch from predominating. See Federalist Paper No. 51. The checks, however, have never included an interference with the internal functions of one branch by another.

Courts have occasionally acquiesced in legislative action over procedural rule-making. But there must be a line beyond which legislative action directed to the administration of judicial procedures becomes legislative control, and, as such, an unwarranted intrusion into the judicial system. Commentators Levin and Amsterdam identify this judicial sanctuary as follows:

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