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.
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.
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 July 31 date for excluding time from the calculation, the government's position is that the order was effective to extend the speedy trial time to September 28. The Court, therefore, must first determine which of these three dates is the correct one to commence the speedy trial calculation.
18 U.S.C. § 3161(e) provides:
(e) If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order of such judge for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final. If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final, except that the court retrying the case may extend the period for retrial not to exceed one hundred and eighty days from the date the action occasioning the retrial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within seventy days impractical. The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section. The sanctions of section 3162 apply to this subsection.
The task here is to determine the meaning of the words, "the date the action occasioning the retrial becomes final" in the statute.
Initially, it is evident that the date of issuance of the Court of Appeals' decision is not the date contemplated by the statute. The action of the Court of Appeals is not "final" as of this date, for it is subject to change until a formal mandate is issued. The Court of Appeals retains jurisdiction over a case until it has issued a mandate to implement its decision. United States v. Cook, 592 F.2d 877, 880 (5th Cir.), cert. denied, 442 U.S. 921, 61 L. Ed. 2d 289, 99 S. Ct. 2847 (1979); United States v. Ross, 654 F.2d 612 (9th Cir. 1981), cert. denied, 455 U.S. 926, 102 S. Ct. 1290, 71 L. Ed. 2d 470 (1982). Rule 41 of the Federal Rules of Appellate Procedure controls the timing of the issuance of the mandate, and provides that the mandate may be stayed by the filing of a petition for rehearing. Because the statute clearly requires finality of the action occasioning the retrial, the speedy trial time cannot be calculated from the date an opinion or a decision is issued.
The more difficult question involves the choice between the remaining two dates: the date the mandate is issued, or the date the mandate is received and filed in the district court. In support of its position that the latter date is the correct one, the government cites the Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended, written by the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. These guidelines, circulated to judges and judicial personnel by the Administrative Office of the United States Courts, state at page 18, in explanation of § 3161(e):
Under the first clause of the second sentence, a seventy-day retrial period is also applicable: