US v. Hastings, Crim. A. No. 86-0419-F.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 667 F. Supp. 888
• Decision Date: 22 July 1987
• Parties: UNITED STATES of America v. Kenneth HASTINGS.
• Docket Number: Crim. A. No. 86-0419-F.

667 F. Supp. 888

UNITED STATES of America
v.
Kenneth HASTINGS.

Crim. A. No. 86-0419-F.

United States District Court, D. Massachusetts.

March 10, 1987.

Memorandum and Order on Reconsideration July 22, 1987.

Henry Rigali, Asst. U.S. Atty., U.S. Atty's Office, Springfield, Mass., for plaintiff.

Myles Jacobson, Linda Thompson, Thompson, Thompson, Nagel, & Jacobson, Springfield, Mass., for defendant.

MEMORANDUM

FREEDMAN, Chief Judge.

Before the Court is defendant's motion to dismiss the indictment because of an alleged violation of the Speedy Trial Act of 1974, as amended, 18 U.S.C. §§ 3161 et seq. ("the Act"). On March 6, 1987 the Court entered an Order allowing the motion and dismissing the indictment without prejudice.

I.

The Act's basic rule, applicable to the circumstances of this case, is as follows:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an Information or Indictment with the commission of an offense shall commence within seventy (70) days from the filing date (and making public) of the

667 F. Supp. 889

Information or Indictment or from the date the defendant has appeared before a judicial officer of the Court in which such charge is pending, whichever date last occurs.

18 U.S.C. § 3161(c)(1).

The defendant was arrested on November 20, 1986 and a complaint issued the same day charging him with various federal drug offenses. Also on November 20, the government moved for pretrial detention. Defendant was temporarily detained pending a detention hearing held by the Magistrate on November 25. Following the hearing, the Magistrate ordered defendant detained but permitted the defendant to attend an "inpatient" detoxification treatment program at Spectrum House. On December 17, 1986 the Grand Jury returned the instant indictment. The same day, the defendant was arraigned and, after a further hearing, again ordered detained pending trial. Assuming no exclusions of time, defendant was required to be tried by February 25, 1987.

As the First Circuit has instructed, in ruling on a motion to dismiss under the Act, "the district court must review the course of events from the indictment up to the filing of the motion to dismiss, tracking each motion and proceeding which occurred during that period and evaluating the resultant delay under the Act." United States v. Pringle, 751 F.2d 419, 429 (1st Cir.1984). In light of this command, the Court will attempt to sort through what occurred between December 17, 1986 and March 6, 1987, the date of the Order dismissing the indictment.

II.

At defendant's arraignment the Magistrate established a routine pretrial schedule calling for automatic discovery to be provided by December 24, 1986; defense motions due by January 14, 1987; responses from the government due by January 21, 1987; a motions hearing before the Magistrate on January 26, 1987; and trial on February 23, 1987. The government sent automatic discovery material to defendant's former attorney on December 19, 1986. On January 8, 1987 defendant's current attorney, Miles Jacobson, filed his appearance.

On January 12, 1987 the government received a telephone call from Attorney Terry Nagle, Mr. Jacobson's associate, requesting a ten-day extension of the January 14, 1987 deadline for filing defense motion. Assistant United States Attorney Henry Rigali assented with the proviso that an appropriate disappearance be filed by former counsel and that the government have a parallel extension for the government's response. In an affidavit, Mr. Rigali states:

I was not aware that Attorney Nagle then had a similar conversation with the Deputy Clerk of Court. Based upon my information and belief, the Deputy Clerk of Court, who obviously had a similar conversation with Attorney Nagle (see Nagle Affidavit), immediately rescheduled the January 26, 1987 hearing (copy attached). On January 13, 1987, the government received written notice that the hearing date for contested motions, then scheduled for January 26, 1987, had been continued for twelve (12) days and rescheduled to occur on February 6, 1987. In Attorney Nagle's Affidavit, he states that on the day following our telephone conversation (January 13, 1987), he called the United States Attorney's Office and left a message to the effect that Mr. Jacobson did not intend to file pretrial motions. I do not dispute this fact, however, I was not personally informed of it. However, based on information and belief, the scheduling order change had already gone into effect prior to Attorney Nagle's second call to the Clerk of Courts stating that it was the defendant's intention not to file pretrial motions and therefore, that he was withdrawing his request for a ten-day extension. On information and belief, the twelve-day extension of time would not have occurred but for the request of counsel.

Rigali Affidavit at 2-3.

After having spoken to the Magistrate's Deputy Clerk, the Court has determined

667 F. Supp. 890

that Mr. Nagle never informed the Court of any request for an extension of time. The rescheduling of the contested motion hearing was not, as reasonably assumed by Mr. Rigali, caused by defendant's request for an extension of time, but was actually initiated by the Magistrate who cancelled all hearings for January 26, 1987.¹

On January 15, 1987 Mr. Rigali and Mr. Jacobson conferred by telephone about, among other things, the possibility of the defendant changing his plea. According to Mr. Rigali, Mr. Jacobson agreed that the evidence against the defendant appeared to be "insurmountable," and that a plea was likely. Rigali Affidavit at 3. Mr. Jacobson disputes this. He denies he agreed that the evidence appeared insurmountable or that a plea was likely. According to Mr. Jacobson, he indicated that the government did have a strong prima facie case and thought it appropriate to begin plea negotiations. Jacobson Second Affidavit at 1.²

In Mr. Jacobson's First Affidavit he states that he learned, in a conversation with the Deputy Clerk, that the trial date of February 23, 1987 would have to be changed because of the Court's absence that week. Jacobson's First Affidavit at 1. Mr. Rigali states in his affidavit that he "had no knowledge of this information. Specifically, I was never informed by the Court or anyone else that trial was not to occur February 23, 1987, until late in the day, Friday, February 20, 1987, after I had prepared the government's motion to continue the trial." Rigali Affidavit at 4.

Contrary to Mr. Rigali's stated ignorance, on February 2, 1987 (exactly three weeks prior to the scheduled trial date!), during the course of an unrelated criminal trial, United States v. Michael Abeid, Cr. Nos. 86-281 & 86-352, the Court personally informed Mr. Rigali of its scheduled absence during the week of February 23, 1987.³

On February 18, 1987 Mr. Rigali met with Mr. Jacobson and had further discussions related to a plea agreement. The meeting did not resolve the discussions; it was left that Mr. Rigali would be in touch with Mr. Jacobson in the next few days.

On February 20, 1987, Mr. Rigali wrote to Mr. Jacobson and set forth the government's final position regarding a plea. Mr. Rigali attempted to telephone Mr. Jacobson to communicate the content of his letter, but Mr. Jacobson was not in his office that day.

Also on February 20, 1987 Mr. Rigali prepared and filed a motion for a two-week continuance. As grounds for the continuance the motion stated that "Counsel for the Government and Defendant are presently discussing means to resolve of sic this matter by means other than trial." According to Mr. Rigali, just prior to the filing of the motion did he learn that the Court would be unavailable the week of February 23.

On February 23, 1987 Mr. Rigali and Mr. Jacobson again conferred by telephone. Mr. Rigali informed Mr. Jacobson of his motion for a continuance. There were also further discussions about a plea agreement. Mr. Rigali states that based on Mr. Jacobson's "representations," it was his opinion that the defendant intended to plead guilty to the indictment and that he had no objection to the continuance. According to Mr. Rigali, "Attorney Jacobson, at no time, expressed any disagreement, opposition or reservation about the government's Motion to Continue. In my opinion, he appreciated the government filing the motion on his behalf because his client would be the primary beneficiary of an

667 F. Supp. 891

extension of the trial date." Rigali Affidavit at 7

On February 26, 1987 defendant filed his opposition to the motion for a continuance. Defendant stated that he did not join in or agree to the government's motion. Mr. Jacobson also denies that he implicitly consented to the motion during his conversation with Mr. Rigali.

On February 26, 1987, the Deputy Clerk advised Mr. Jacobson and Mr. Rigali that the trial had been rescheduled for March 4, 1987.

After he received defendant's opposition and had his conversation with the Deputy Clerk, Mr. Rigali, on February 26, 1987, filed a response and a motion to exclude time based on the interests of justice. See 18 U.S.C. § 3161(h)(8)(A). The same date, Mr. Rigali had a further conversation with one of Mr. Jacobson's associates who professed continued interest in plea negotiation. As late as 1:10 p.m. on this date, Mr. Rigali and Mr. Jacobson were still having discussions about the possibility of a plea agreement.

On March 3, 1987 defendant filed an opposition to the government's motion to exclude time and a motion to strike statements made by defense counsel made during plea negotiations pursuant to Fed.R. Crim.P. 11(e)(6)(D).⁴ On February 25, 1987 defendant filed the instant motion to dismiss for Speedy Trial Act violations.

III.

Having thus recounted what proceeded between the indictment and the filing of the instant motion, the Court must now determine what period of time, if any, must be excluded from the seventy-day limit.

The government...