United States v. Lockwood, Cr. 43456.

• Decision Date: 30 September 1974
• Docket Number: No. Cr. 43456.,Cr. 43456.
• Citation: 382 F. Supp. 1111
• Parties: UNITED STATES v. Howard G. LOCKWOOD.
• Court: U.S. District Court — Eastern District of New York

382 F. Supp. 1111

UNITED STATES v. Howard G. LOCKWOOD^*.

No. Cr. 43456.

United States District Court, E. D. New York.

September 30, 1974.

David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., for the United States; Edward R. Korman, Thomas Mahrer, of counsel.

Louis Lusky, New York City, for defendants.

Michael E. Tigar, Williams, Connolly & Califano, Washington, D. C., amicus curiae.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

By its order of September 10, 1974, this court appointed Louis Lusky, Esq. to appear on behalf of fugitive defendants in twenty-six selective service criminal cases and ordered the United States to give notice of this appointment to each defendant at his last known address. The order provided that the court would receive communications from the defendant, his relative, or his next best friend.

The government moves to vacate the order on the ground that this court lacks jurisdiction to take action in a fugitive case unless the defendant first surrenders. Before turning to the important substantive and procedural issues raised by the government's contention, a word needs to be said on the issue of the court's and the United States Attorney's power to control criminal calendars.

COURT CONTROL OF CRIMINAL CALENDARS

Until a few years ago the practice in the Eastern District of New York was for cases to be listed on a general calendar. When a motion was to be heard or the case brought on for trial, it would be placed on the calendar of whichever judge was hearing motions or trying cases. As a result, many judges might decide different aspects of the same case and, to a considerable degree, counsel could determine which judge would hear a motion by waiting until a particular judge was in a motion part. The United States Attorney had considerable control over criminal calendars. By moving a case for trial or asking for adjournments he could indirectly select the judge. Since no one judge had responsibility for any particular case, unless the United States Attorney made a motion, fugitive cases lay dormant.

The judges of this district adopted an individual assignment system so that litigations could be disposed of more efficiently and fairly. A case is now randomly assigned to a judge immediately after indictment and he is personally responsible for its prompt disposition. Rule 2(b) Individual Assignment and Calendar Rules, Eastern District of New York, effective October 1, 1969.

The individual calendar system is part of an integrated program devised during the past few years by the federal courts to ensure "the prompt disposition of criminal cases." Federal Rules of Criminal Procedure, Rule 50(b). Pursuant to Rule 50(b) the judges of the Eastern District of New York adopted a Plan for Achieving Prompt Disposition of Criminal Cases, effective April 1, 1973, "to further the prompt disposition of criminal cases." In United States v. Furey, 500 F.2d 338, at 341 (2d Cir. 1974), the court noted that the policies supporting the Plan included

"the deterrence afforded by prompt disposition, the potential prejudice to any defense arising from delay, as well as the disruption and anxiety created by a criminal charge."

See also United States v. Favaloro, 493 F.2d 623 (2d Cir. 1974); United States v. Bowman, 493 F.2d 594 (2d Cir. 1974); Hilbert v. Dooling, 476 F.2d 355 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973); United States v. Pierro, 478 F. 2d 386 (2d Cir. 1973); United States v. Rollins, 475 F.2d 1108 (2d Cir. 1973).

These rules were adopted pursuant to the inherent power of the courts over their calendars. They reflect a policy change from a passive judicial acceptance of laggard work in the courts to an assumption of responsibility for "fairness ... and the elimination of unjustifiable expense and delay" (Federal Rules of Criminal Procedure, Rule 2) in determining the merits of criminal charges.

In controlling my own calendars one procedure relied upon to guarantee prompt disposition of cases is to periodically call each fugitive case to determine if (1) the government is making reasonable efforts to apprehend the fugitive, (2) the public or defendant is being prejudiced by unnecessary delay, and (3) cases which should be dismissed are carried on the docket, artificially inflating the court's and prosecutor's apparent case load. My own docket illustrates why fugitive cases cannot be ignored. There are now sixty criminal cases assigned to me; two-thirds, or forty, are listed as fugitive cases (including twenty-six selective service cases); five have been assigned trial dates; three are awaiting assignment of trial dates, and twelve are awaiting sentence following a plea or finding of guilt.

All the fugitive cases before me are in the process of being called. Previously, such calls have led to dismissals and action by the government to apprehend defendants. The government has never objected to these calendar calls and the court deems them essential to properly control its calendar.

In the past attorneys for fugitive defendants have not been appointed because there appeared to be no reason to do so. But there is obviously good reason to appoint counsel in the selective service fugitive cases now before the court.

SELECTIVE SERVICE CASES

The twenty-six defendants involved in this motion are covered by the provisions dealing with "draft evaders" in the President's proclamation of September 16, 1974, for they "allegedly unlawfully failed" to meet their obligations under the Military Selective Service Act. That part of the proclamation dealing with these cases reads as follows:

"DRAFT EVADERS — An individual who allegedly unlawfully failed under the Military Selective Service Act or any rule or regulation promulgated thereunder, to register or register on time, to keep the local board informed of his current address, to report for or submit to pre-induction or induction examination, to report for or submit to induction itself, or to report for or submit to, or complete service under Section 6(J) of such act during the period from Aug. 4, 1964, to March 28, 1973, inclusive, and who has not been adjudged guilty in a trial for such offense, will be relieved of prosecution and punishment for such offense if he:

"Presents himself to a United States Attorney before Jan. 31, 1975,

"Executes an agreement acknowledging his allegiance to the United States and the pledging to fulfill a period of alternate service under the auspices of the director of Selective Service.

"Satisfactorily completes such service.

"The alternate service shall promote the national health, safety or interest. No draft evader will be given the privilege of completing a period of alternate service by service in the armed forces.

"However, this program will not apply to an individual who is precluded from reentering the United States under 8 U.S.C. 1182(A)(22) or other law. Additionally, if individuals eligible for this program have other criminal charges outstanding, their participation in the program may be conditioned upon, or postponed until after, final disposition of the other charges have been reached in accordance with law.

"The period of service shall be 24 months, which may be reduced by the Attorney General because of mitigating circumstances."

A release of the Office of the White House Press Secretary summarized the procedures to be followed by persons in the draft evader class:

UNCONVICTED DRAFT EVADER

1. Report to United States Attorney where offense was committed.

2. Acknowledge allegiance to the United States by agreeing with the United States Attorney to perform 24 months alternate service or less based on mitigating circumstances.

3. Perform alternate service under the auspices of the director of Selective Service.

4. Director of Selective Service issues certificate of satisfactory completion of alternate service.

5. Receipt by United States Attorney of certificate of satisfactory completion of alternate service.

6. Dismissal of indictment or dropping of charges."

New York Times, September 17, 1974, p. 24, col. 4.

In effect, a pretrial diversion or deferred prosecution scheme is to be applied in these cases. See e. g., Administrative Office of the United States Courts Annual Report of the Director at VIII-7 (1974). This technique is being considered favorably in a number of other types of cases. It is sometimes called the "Brooklyn Plan," for one form was developed in this court. Before or after indictment, but without trial or plea, the defendant is placed under supervision. If he responds favorably over a fixed period of time — usually one or two years — he is not indicted or, if he had been indicted, the indictment is dismissed.

The saving in time and money and the enhancement of the likelihood of rehabilitation make diversion programs attractive. But they present grave dangers unless they are strictly controlled. A guiltless person may be forced to undergo strict supervision and loss of liberty because he wants to avoid the expense and embarrassment of contesting the government's case. Efficiency rather than fairness may result in the "relaxation of standards of evidence and a presumption of guilt." See, R. W. Balch, Deferred Prosecution: The Juvenilization of the Criminal Justice System, 38 Federal Probation 46, 50 (June 1974). Some judicial procedural check is necessary.

"Without judicial and defense counsel intervention in the diversion decision to safeguard against potential abuses of discretion, there is the danger that the results of pretrial diversion — like those of the juvenile court which itself began as a diversion mechanism — may be found not to justify the risks taken with basic constitutional guarantees."

Note, Pretrial Diversion from the Criminal Process, 83 Yale L.J. 827, 853 (1974).

Some method must be utilized to prevent abuse of plans which divert cases from the normal criminal machinery to ensure that individual rights are...