United States v. Masko, 76-CR-15.

• Decision Date: 25 June 1976
• Docket Number: No. 76-CR-15.,76-CR-15.
• Citation: 415 F. Supp. 1317
• Parties: UNITED STATES of America, Plaintiff, v. Jerome Lawrence MASKO and William Gary Cutting, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

415 F. Supp. 1317

UNITED STATES of America, Plaintiff, v. Jerome Lawrence MASKO and William Gary Cutting, Defendants.

No. 76-CR-15.

United States District Court, W. D. Wisconsin.

June 25, 1976.

Warren W. Wood, First Asst. U. S. Atty., Madison, Wis., for plaintiff.

William M. Coffey, Milwaukee, Wis., for William Gary Cutting.

Charles W. Giesen, Madison, Wis., for Jerome Lawrence Masko.

OPINION AND ORDER

DOYLE, District Judge.

Facts

An indictment was returned against the above-named defendants in this case on February 20, 1976, charging them with the substantive offense of armed bank robbery under 18 U.S.C. § 2113(a), involving a robbery of the Poplar Branch of the National Bank of Commerce of Superior, Wisconsin, on or about January 29, 1976. On May 27, 1976, an indictment was returned against the above-named defendants in this case; it charges them in one count with conspiring to engage in five armed bank robberies, including the robbery of the Poplar Branch of the National Bank of Commerce on or about January 29, 1976; it charges them in each of four additional counts with the substantive offense of armed robbery of each of four banks on certain dates; and it also charges them in a sixth count with aiding and abetting the substantive offense of the armed robbery of the Poplar Branch of the National Bank of Commerce on or about January 29, 1976.

Prior to the return of the first indictment on February 20, 1976, warrants for the arrest of each of the above-named defendants had been issued by a United States Magistrate on February 6, 1976 on the basis of a complaint that they had engaged in the armed robbery of the Poplar Branch of the National Bank of Commerce on or about January 29, 1976.

On February 11, 1976, defendant Cutting was arrested on the said Magistrate's warrant. Defendant Cutting remained confined until February 24, 1976 when he made bail and he has been free on bail continuously since that time. On February 20, 1976, defendant Cutting entered a plea of not guilty to the single-count indictment which had been returned against him and defendant Masko on that day, and on the same day a pretrial order was entered embodying a schedule for pretrial motions and setting trial for the week of April 5, 1976 or as soon thereafter as the court calendar would permit. On April 13, 1976, the court ordered and notice was given by the clerk that the trial of defendant Cutting on the single-count indictment returned February 20, 1976 would commence at Superior, Wisconsin with the selection of a jury on June 7, 1976. On April 22, 1976 a substitution of counsel for defendant Cutting was filed. Thereafter, defendant Cutting moved for a change of the place of trial, and on May 7, 1976 the court ordered that his trial would be held at Madison, Wisconsin, commencing June 14, 1976. On June 1, 1976, the United States Attorney called to the court's attention that the sixth count of the May 27, 1976 indictment was considered by the United States Attorney to supersede the single-count indictment which had been returned February 20, 1976, and he requested a delay in the trial of defendant Cutting, then set for June 14, 1976, stating that the subject matter of the May 27, 1976 indictment was "significantly more complex" than that of the February 20, 1976 indictment and that:

"Investigation leading to the return of the May indictment has been laborious, exhaustive, and naturally time-consuming, which accounts for the delay between the two indictments."

With respect to defendant Masko, the arrest warrant issued by the Magistrate on February 6, 1976 was returned by the Marshal on February 23, 1976 as unexecuted because it had been superseded by a warrant on the February 20, 1976 indictment. Such a warrant for defendant Masko's arrest on the February 20, 1976 indictment had been issued by the clerk on February 23, 1976. Defendant Masko was not apprehended at any time in this case until he surrendered himself to the Federal Bureau of Investigation on April 27, 1976 at Milwaukee, Wisconsin. He has remained in custody continuously since that date because of his inability to make bail as set by the court. On June 2, 1976, and again on June 4, 1976 the court denied defendant Masko's motions for a reduction of bail, for reasons stated and recorded on those dates. There is no reasonable possibility that defendant Masko will be able to make bail, as presently set, in the foreseeable future. Unless there is a significant change in defendant Masko's circumstances not foreseen at the time of the June 4 hearing, I do not intend to modify the terms of the bail order. The ninetieth day following the beginning of his detention is July 26, 1976. On April 29, 1976, defendant Masko entered a plea of not guilty to the single-count indictment returned on February 20, 1976, and on the same day a pretrial order was entered embodying a schedule for pretrial motions and setting trial for the week of June 21, 1976 or as soon thereafter as the court calendar would permit.

On June 2, 1976, the defendant Cutting and the defendant Masko each entered a plea of not guilty to each of the six counts of the indictment returned against them on May 27, 1976. At that hearing the court cancelled the June 14, 1976 trial of defendant Cutting on the single-count February 20, 1976 indictment, and entered pretrial orders embodying a schedule for pretrial motions by both defendants in response to the May 27, 1976 indictment (under which each defendant is granted 30 days from June 2, 1976, within which to file most pretrial motions) and setting trial on the May 27, 1976 indictment for the week of July 26, 1976.

On June 11, 1976 defendant Cutting filed a motion for a change in the date of trial from the week of July 26, 1976, to any date following August 16, 1976. The basis for the motion is a conflict for defendant's counsel with a trial scheduled for the week of July 26, 1976 in the United States District Court for the Eastern District of Wisconsin. This motion has not yet been acted upon.

On June 4, 1976, on my own motion, the parties were directed to show cause:

". . . why this Court should not hold for the purposes of this case that any period of delay defined in 18 U.S.C. § 3161(h) shall be excluded when computing any time interval which might be applicable to defendant Jerome Lawrence Masko under 18 U.S.C. § 3164; and whether the Court should on its own motion delay the trial of this case by granting a continuance under 18 U.S.C. § 3161(h)(8)."

In the course of hearing on April 29, 1976, and June 4, 1976, with respect to defendant Masko's bail order, it has been represented to the court by the United States Attorney, and not disputed in those hearings by defendant Masko or by his attorney, that defendant Masko has given law enforcement officers statements concerning his participation in certain bank robberies during the period covered by the indictment returned on May 27, 1976. As of the date of entry of this opinion and order, neither party has moved for severance for trial.

On July 24, 1975, I submitted to the chief judge of the circuit proposed amendments to the then operative plan for this district under Rule 50(b) of the Federal Rules of Criminal Procedure. These proposed amendments were intended principally to bring the district's Rule 50(b) plan into compliance with the requirements of the Speedy Trial Act (18 U.S.C. § 3161 et seq., esp. § 3164) as to persons being held in detention solely because they are awaiting trial (and also as to released "high risk" persons). On October 22, 1975, I was notified by the chief judge of the circuit that the proposed amendments, with certain changes not presently relevant, had been approved. The said amended Rule 50(b) plan was made effective November 17, 1975, and it has remained in effect and will remain in effect continuously, so far as presently relevant, through June 30, 1976, and beyond.¹ With respect to computing the time by which trial must commence in the case of a person being held in detention solely because he or she is awaiting trial, the said amended Rule 50(b) plan provides for the exclusion of those periods of delay defined in § 3161(h).

On April 30, 1976, I submitted to the chief judge of the circuit a proposed "plan for prompt disposition of criminal cases" for this district under the Speedy Trial Act for the period commencing July 1, 1976, and ending June 30, 1979. With reservations not presently relevant, the chief judge of the circuit has notified me that said plan has been approved and it will become effective July 1, 1976. With respect to computing the time by which trial must commence in the case of a person being held in detention solely because he or she is awaiting trial, the said 1976-1979 plan provides for the exclusion of those periods of delay defined in § 3161(h).

Opinion

The central question addressed in this opinion concerns a certain section, namely, 18 U.S.C. § 3164, of the Speedy Trial Act of 1974 (18 U.S.C. §§ 3161 through 3174). Putting aside § 3164 for a moment, that Act establishes certain time periods within which informations or indictments must be filed, and arraignments and trials must be held, in criminal cases in federal courts. These time periods apply to persons who are arrested or served with summonses on and after July 1, 1976, and to offenses charged in informations and indictments filed on and after July 1, 1976. § 3163. During a transitional phase ending June 30, 1979, progressively short sets of time periods are imposed, culminating in the most severe set of time periods which are to become effective July 1, 1979, and to remain effective thereafter. § 3161(f) and (g).² Provision is made that during the transitional phase and also following July 1, 1979, certain periods of delay may be excluded in computing the deadlines. § 3161(h). "Sanctions" in the form of dismissals of complaints, informations, and indictments, with or without prejudice, are...