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UNITED STATES v. RUSSO

November 22, 1982

UNITED STATES OF AMERICA, Plaintiff,
v.
PATRICK RUSSO, JR., Defendant



The opinion of the court was delivered by: SAROKIN

 INTRODUCTION

 The Speedy Trial Act was enacted primarily to prevent the accused from languishing in prison for extended periods of time awaiting trial. Congress recognized that the accused and the public had an interest in the swift disposition of criminal charges, and the right to a speedy trial was extended to all defendants charged with federal crimes.

 In this matter, the court is confronted with the following situation. A defendant, through his counsel, requested an adjournment of the trial date and another judge of this court acceded to that request. Defendant waited until he believed the required time for trial under the statute had expired and then moved for dismissal. In other words, the court, having granted the adjournment requested by a defendant, is now being asked to dismiss the indictment against that defendant because of action taken by the court at defendant's request.

 Congress, in its wisdom, has determined that the time limits fixed by the statute cannot be waived by the accused, because the public has an interest in the speedy disposition of criminal matters, which is independent of the interests of the accused. It is inconceivable to this court that it is in the public interest to dismiss an indictment against an individual where the grounds for such dismissal are procured by his own acts. Rather than build confidence in the fairness of our criminal justice system, such a result would be a mockery of it and would justify the citizenry in rising up to destroy the temples of justice.

 Although it would be an inappropriate consideration for the court in deciding this motion, the case is unique in that the defendant has been tried and found guilty of the crimes charged. *fn1" Therefore, to grant defendant's motion would free a person who has been found guilty by a jury of his peers solely because he requested an adjournment and received it. If that is the law of the land, then the land, indeed, is in trouble. If the public interest is a valid concern, as it should be, it will not be served by such a perversion of justice.

 FACTUAL BACKGROUND

 On April 23, 1981, a jury found Patrick Russo guilty of conspiracy and embezzlement in violation of federal law. An appeal was taken and on April 6, 1982, the United States Court of Appeals for the Third Circuit issued its decision, reversing the defendant's conviction because of a defect in the jury instructions. That court issued a judgment in lieu of a formal mandate on May 21, 1982, which was received and filed in the Clerk's office of this court on May 25, 1982. The provision of the Speedy Trial Act governing retrial after appeal of a conviction requires that defendant's retrial commence "within seventy days from the date the action occasioning the retrial becomes final." 18 U.S.C. § 3161(e) (Supp. 1982).

 On July 12, defense counsel requested a continuance of the retrial to "a date in September", pursuant to a provision of the Speedy Trial Act which permits the granting of continuances when justice would be served thereby. 18 U.S.C. § 3161(h) (8) (Supp. 1982). Defendant's counsel, by affirmation, put forth as reasons justifying the continuance, his involvement in two other cases in July which precluded any preparation for Mr. Russo's trial until the month of August, and his scheduled vacation for two weeks beginning August 16. The United States Attorney did not object to the defendant's request for a continuance.

 On July 13, a judge of this court granted the requested continuance ". . . for the reason that defendant's counsel is presently engaged in the trial of other federal criminal matters . . .", and that ". . . in the interest of justice defendant should be represented at trial by the attorney of his choice who defended him also at the original trial. . . ." The court further found that ". . . the ends of justice served by the granting of this continuance outweigh the best interest of the public and of the defendant in a speedy trial." The court adjourned the trial until September 28, 1982. It further ordered that the period from July 31, 1982 to September 28, 1982, be excludable in calculating the speedy trial time.

 Upon the assignment of the case for retrial it was placed on this court's calendar to commence on September 29. On that morning defendant moved, on papers filed September 23, to dismiss the indictment because the retrial had not commenced within the time required by the Speedy Trial Act. The motion was heard and decision was reserved. The trial commenced and later resulted in a conviction.

 DISCUSSION OF THE LAW

 Defendant's motion raises the question of when the speedy trial time commences to run after reversal of a conviction on appeal. There are three possible dates to start the time running: the date the Court of Appeals issues its opinion or decision, the date the Court of Appeals issues its mandate, or the date that the mandate is received and filed in the district court. Defendant urges that the calculation be made from either the date of the opinion or the date of the issuance of the mandate, while the United States Attorney urges that the calculation be made from the date of receipt of the mandate by the district court. If the time is calculated as urged by defendant, the speedy trial seventy-day period expired at the latest on July 30. This date falls before the July 31 date, the date upon which the excluded time began in the order granting the continuance. Defendant's position is that this order was ineffective to extend the speedy trial period. The United States Attorney's position is that May 25 is the correct date to begin the calculation, making the initial seventy days expire on August 3. Because this date occurs after the ...


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