United States v. Scafo, 868

• Decision Date: 08 June 1973
• Docket Number: No. 868,Docket 73-1163.,868
• Citation: 480 F.2d 1312
• Parties: UNITED STATES of America, Appellee, v. Joseph SCAFO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

480 F.2d 1312 (1973)

UNITED STATES of America, Appellee, v. Joseph SCAFO, Appellant.

No. 868, Docket 73-1163.

United States Court of Appeals, Second Circuit.

Argued May 7, 1973.

Decided June 8, 1973.

Conrad F. Ferrigno, New York City (David M. Markowitz, New York City, on the brief), for appellant.

Thomas R. Pattison, Asst. U. S. Atty., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., L. Kevin Sheridan and Raymond J. Dearie, Asst. U. S. Attys., Brooklyn, N. Y., on the brief), for appellee.

Before SMITH, MULLIGAN and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

This is another in a series of recent cases in our Court involving application of the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. 28 U.S.C.A. App. (Supp.1973).¹

The narrow issue on this appeal is whether, in computing the six-month period within which the government must be ready for trial pursuant to Rule 4 of the Prompt Disposition Rules, such period begins on the date of arrest or on the date of promulgation of the Prompt Disposition Rules. We hold, in accordance with the plain language of Rule 4 itself, that the six-month period begins with the date of arrest.

Joseph Scafo appeals from (1) a judgment of conviction after jury trial entered January 29, 1973 in the Eastern District of New York, John F. Dooling, District Judge, on one count of stealing goods which were part of a foreign shipment, in violation of 18 U.S.C. § 659 (1970), and from (2) an order entered January 19, 1973 by Orrin G. Judd, District Judge, denying appellant's motion to dismiss the indictment because of the government's failure to comply with the Prompt Disposition Rules.

Both the judgment and order now appealed from were entered following remand by this Court on a prior appeal, United States v. Scafo, 470 F.2d 748 (2 Cir. 1972), when we vacated the original judgment of conviction and ordered the district court to make findings more specific than it had made in denying a previous motion to dismiss for failure to comply with the Prompt Disposition Rules.

Upon remand, Judge Judd did make specific findings of fact on the motion to dismiss, and again denied the motion. Also in accordance with our remand, Judge Dooling thereafter entered a new judgment of conviction. It is from Judge Judd's second order denying the motion to dismiss and from the new judgment of conviction that the instant appeal has been taken.

For the reasons below, we reverse the order denying the motion to dismiss the indictment, and we remand the case to the district court with instructions to vacate the judgment of conviction and to dismiss the indictment.

I.

A brief summary of prior proceedings in this case is necessary to an understanding of our decision.

On August 10, 1969, two cartons—one containing watches from Italy, the other pearls from Japan—were stolen from a locked wire mesh cage for high value shipments in the American Airlines Cargo Terminal at John F. Kennedy International Airport, Queens, New York.

On August 18, 1969, appellant Scafo and one Leonard Turano, both employees of American Airlines, were arrested and charged with the theft of the two cartons. They were arraigned before a United States Commissioner, waived preliminary hearing, and were released on their own recognizances.

For a period of nearly two years, the case remained dormant—until July 28, 1971 when Scafo was indicted.

On August 12, 1971, Scafo was presented for plea before Judge Judd. He pleaded not guilty. On that date in an oral motion, and on the following day in a written motion, he moved to dismiss the indictment because of the failure of the government to comply with the Prompt Disposition Rules. A hearing was held before Judge Judd on August 20, at which time the motion was denied in open court.

Following a pretrial conference before Judge Dooling on November 22, 1971, Scafo was tried before Judge Dooling and a jury beginning January 21, 1972. After a three day trial, the jury returned a verdict of guilty as charged. On March 24, 1972, he was sentenced to a three year prison term, all but four months of which was suspended, and was ordered on probation for three years. He has been enlarged on his own recognizance pending appeal.²

On the first appeal, the principal issue was the propriety of Judge Judd's denial of Scafo's motion to dismiss the indictment for failure to comply with the Prompt Disposition Rules.³ In an opinion filed December 20, 1972, we vacated the judgment of conviction and remanded for a hearing and further findings on the motion to dismiss. 470 F.2d at 751. After noting that the government had argued that a number of "exceptional circumstances" justified a period of delay within the meaning of Rule 5(h) of the Prompt Disposition Rules, and that Judge Judd apparently had concluded that the government had satisfied its burden under the Rules, we concluded that "the details of the `exceptional circumstances' were not developed at the hearing, and Judge Judd made no findings of fact as to what actually occurred and the delay or delays excused thereby." 470 F.2d at 750.

Upon remand, in accordance with our directions, Judge Judd promptly held a further hearing on January 4, 1973. Additional evidence was taken, including testimony by counsel for Scafo and counsel for the government. In a memorandum opinion filed January 19, 1973, Judge Judd, after summarizing the prior proceedings, the evidence and the applicable law, made the following findings of fact:

"1. That the charges against defendant Joseph Scafo and Leonard Turano were reassigned to Assistant United States Attorney Pattison on about March 17, 1971.

2. That the delay of a little more than two months after January 5, 1971 the date on which the Prompt Disposition Rules were announced in making the reassignment was caused by exceptional circumstances, namely, the impact of the new Rules and the resignation of the Assistant who previously had the case, and that this period should be excluded from the six-months computation.

3. That a reasonable period to explore the possibility of a guilty plea by defendant Scafo should be excluded from the six-months computation; and in this case, that a period of one month should be allowed for that purpose.

4. That a reasonable period to prepare the government\'s case should also be excluded, particularly in view of (a) the importance of Leonard Turano\'s testimony for the government, (b) his assertion of fears which deterred him from cooperating, and (c) the necessity of reaching a judgment as to whether it was sound policy to let him plead guilty to a misdemeanor; and that a period of at least sixty days should be allowed for this purpose.

5. That all the periods mentioned should be treated as excusable delay, occasioned by exceptional circumstances, outside the six-months period.

6. That the delays in prosecution did not prejudice the defendant."⁴

Judge Judd concluded that these various periods of excusable delay brought the government within the six-months period permitted by the Prompt Disposition Rules. He held that there had been no violation of those Rules. He denied the motion to dismiss the indictment.

Pursuant to our instructions,⁵ Judge Judd referred the case to Judge Dooling for resentencing. On January 29, 1973, Judge Dooling resentenced Scafo, imposing the same sentence as originally imposed on March 24, 1972, and entered a new judgment of conviction.

The instant appeal is from Judge Judd's order of January 19, 1973 denying the motion to dismiss the indictment and from the new judgment of conviction entered January 29, 1973. On this appeal, appellant has focused on whether the district court erred in finding that the reasons for the delay asserted by the government satisfied the "exceptional circumstances" provision of Rule 5(h). We find it unnecessary to determine the sufficiency under the Rules of each of the reasons asserted. We hold that, regardless of those reasons, the government failed to comply with the Rules, and the indictment must be dismissed.

II.

The Second Circuit Rules Regarding Prompt Disposition of Criminal Cases were promulgated on January 5, 1971, to take effect on July 5, 1971.⁶ The essential construction problem before us on this appeal is whether, when the Circuit Council noted in its Statement accompanying the Rules that "the rules are designed to apply equally to all cases now pending as well as to all cases commenced in the future", it meant that on July 5, 1971 all cases six months or older would be subject to the full effect of the Rules, or rather that on July 5, 1971 all cases pending as of January 5, 1971 would be deemed to have had their first relevant prosecutorial act⁷ on January 5. The result in this case turns on which of these alternative interpretations is correct: if the former, the relevant period of delay would be computed from August 18, 1969 (date of arrest); if the latter, the period of delay would be computed from January 5, 1971 (date of promulgation of Rules).

During the short life of the Rules, there has been a paucity of reported decisions dealing with pre-1971 cases. This suggests that the offices of the United States Attorneys in the Circuit made good use of the six-month grace period before the effective date to prepare certain of their cases for prompt trial, and otherwise to dispose of those cases considered less worthy of the limited resources of personnel, money and time available to the offices. What is important to remember is that this was exactly the purpose of the delay in implementing the Rules⁸—and not, as the assumption below seems to have been, to provide for a blanket commencement of the six-month period specified in Rule 4 to begin January 5. Indeed, it may be surmised that it was no more than coincidence that both Rule 4 and the post-announcement buffer specified identical periods of six months.⁹ The key appears to lie in the language of the Circuit Council's Statement quoted...