United States v. Pringle, Crim. No. 82-249-C.

• Decision Date: 22 March 1985
• Docket Number: Crim. No. 82-249-C.
• Citation: 607 F. Supp. 105
• Parties: UNITED STATES of America, Plaintiff, v. William Bull PRINGLE, III, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

607 F. Supp. 105

UNITED STATES of America, Plaintiff, v. William Bull PRINGLE, III, et al., Defendants.

Crim. No. 82-249-C.

United States District Court, D. Massachusetts.

March 22, 1985.

John C. Doherty, U.S. Atty., Boston, Mass., for U.S.

Joseph Oteri, James W. Lawson, Oteri, Weinberg & Lawson, Boston, Mass., Herbert S. Moncier, Knoxville, Tenn., for defendant MacAfee.

Robert W. Ritchie, John E. Eldridge, Knoxville, Tenn., for defendant Parker.

Michael A. Laurano, Robert Muse, Boston, Mass., for defendant Pringle.

CAFFREY, Chief Judge.

This case is before the Court on remand from the Court of Appeals for the First Circuit. The defendants appealed their convictions for conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to import it into the United States. The Court of Appeals vacated this Court's order denying defendant's motion to dismiss for violation of the Speedy Trial Act, 18 U.S.C. § 3161, and remanded the case for redetermination of that motion. United States v. Pringle, et al., 751 F.2d 419 at 436 (1984). The Court of Appeals identified sixty-two non-excludable days in the case exclusive of the period from January 10, 1983 to May 23, 1983 and directed this Court to examine whether any or all of that period was excludable. The Court of Appeals ruled that if any more than eight non-excludable days were found, the case must be dismissed for violation of the seventy day Speedy Trial Act limit.

The circumstances surrounding the delay of this trial are somewhat complex. In November 1982 the case was on the docket of a three-judge panel, chaired by Judge Garrity, but was scheduled for reassignment to a single judge in December of 1982. On November 17, 1982 the defendants moved for a continuance of the hearing on dispositive motions then scheduled for November 29 and a continuance of the trial which was scheduled for December 6, 1982. In support of that motion for continuance, counsel for all three defendants filed affidavits reciting extensive commitments before other courts and tribunals as distant as Tennessee, Oregon, and Florida. These other matters in other courts included two capital cases, a disciplinary proceeding against a member of the bar of the State of Tennessee, a criminal case involving seven co-defendants and hearings before the Merit Systems Protection Board.

Defendant's motion to dismiss also contained the following statement: "6. ... all defendants in the above-captioned matter waive their rights to a speedy trial."

Judge Garrity allowed the motion and tentatively rescheduled the trial for January 10, 1983 "subject to confirmation by judge to whom case is reassigned." There was, however, no hearing on any other proceeding on the case until May 23, 1983. During the interim, the matter was redrawn to the undersigned but did not come to the Court's attention until mid-May, at which time the May 23 status conference was promptly scheduled.

The Court of Appeals has made it clear that because of the public interest in speedy trials a defendant may not waive his interest in a speedy trial. Therefore, the purported waiver found in defense counsel's motion for continuance was ruled ineffective. Id. at 33. However, speaking for the Court of Appeals, Judge Bownes observed "Where a waiver creates delay, such delay will be excludable. defense counsel, as officers of the Court have a responsibility to keep in mind the two-fold purpose of the Speedy Trial Act ... defense counsel may not simultaneously use the Act as a sword and shield. We think it unethical and dishonest for defense counsel to waive the Act in the trial court and then disclaim such waiver upon appeal." Judge Bownes also observed (at p. 31) "It is not clear, however, whether the period of delay following the waiver should be considered nonexcludable. This depends on whether or not the waiver caused or contributed to the delay."

Subsequent to the remand, an evidentiary hearing was held to resolve the question of whether or not the above-quoted waiver caused or contributed to the delay from January 10 to May 23, 1983.

At the hearing, the government called former Assistant United States Attorney John L. Doherty as a witness and affidavits were submitted by Attorney Doherty, who was trial counsel for the United States and by Attorneys Herbert S. Moncier, counsel for MacAfee and Attorney Robert W. Ritchie, counsel for defenda...