Briscoe and Wilson. The Court decided to consolidate one of the South Florida indictments with the Independent Counsel case. See United States v. Briscoe, 798 F. Supp. 28 (D.D.C. 1992). The Court concluded, however, that this case was so purely and simply a South Florida case that it should be retransferred to the Southern District of Florida. The Court retransferred the case on May 22, 1992. United States v. Briscoe, 792 F. Supp. 1 (D.D.C. 1992).
This case thus again was docketed in the Southern District of Florida on June 1, 1992. Although the case was no longer in this jurisdiction, meaning that "no case or controversy" was pending here, defendant Briscoe sought a writ of mandamus from the United States Court of Appeals for the District of Columbia Circuit. The undersigned elects not to comment on the merits of the action of the Court of Appeals, but on October 27, 1992, the Court of Appeals granted the petition for a writ of mandamus, and directed the undersigned to ask the Southern District of Florida to return the case here. In re Briscoe, 298 U.S. App. D.C. 121, 976 F.2d 1425 (D.C. Cir. 1992). Such a request was made by letter dated February 16, 1992.
An order was entered in the Southern District of Florida transferring the case back here on March 22, 1993. The Clerk's Office here received the case for the second time on April 7, 1993.
The Speedy Trial Act2
The Speedy Trial Act requires a criminal trial to commence within 70 days of the later of a defendant's indictment or appearance before a judicial officer. 18 U.S.C. § 3161(c)(1). Certain types of pretrial delay are excluded from this 70-day calculation. 18 U.S.C. § 3161(h). "These exclusions are designed to take account of specific and recurring periods of delay which often occur in criminal cases . . . ." Henderson v. United States, 476 U.S. 321, 106 S. Ct. 1871, 1878, 90 L. Ed. 2d 299 (1986) (White, J., dissenting). The Act was not designed, however, with the foresight to fit complex, white-collar criminal cases, such as the instant matter with its three separate indictments obtained by two separate prosecutors in two different jurisdictions. Unfortunately, the Act has become both a trap for over-burdened trial judges around which they must maneuver overwhelming caseloads, and a tool for zealous defense attorneys by means of which they can seek to achieve dismissals of indictments against their clients.
The Court does believe strongly that the present 70-day time period is too restrictive and should be reconsidered. The Court also believes that there needs to be some provision that can allow judges some flexibility to manage multiple, complex prosecutions of white-collar defendants. Nevertheless, the Court is confined by the strict dictates of the current Act, and thus finds itself compelled to dismiss the instant indictment.
As was noted at the outset, the defendants were indicted on July 19, 1991, in the Southern District of Florida, based on information presented to a grand jury by the United States Attorney's Office there. On January 30, 1992, Chief Judge Roettger of the Southern District of Florida granted a motion to transfer the case here. Between the date of arraignment and the date of the order of transfer, roughly 14 speed trial days had passed, due to the pendency of motions. See 18 U.S.C. § 3161(h)(1(F).
On March 17, 1993, approximately a month-and-a-half after the order of transfer was signed, this Court received the case file from the Southern District of Florida. Although the Speedy Trial Act excludes time relating to the transfer of a case, 18 U.S.C. § 3161)h)(1)(G), it is unlikely that the entire 47-day period is legitimately excludable. Moreover, in part due to the Clerk's Office's failure to notify the undersigned that the file had been received from the Southern District of Florida, it must be considered that the speedy trial clock continued to run to a significant extent until the Court received defendant Briscoe's motion to modify his conditions of release on April 15, 1992.
On April 22, 1992, the Government filed a pleading that included a "suggestion for retransfer." This Court ordered that this obviously South Florida case be transferred back to the Southern District of Florida on May 22, 1992. The court in the Southern District of Florida did not take any action in the case. The retransfer issue raised by defendant Briscoe was not resolved until October 27, 1992, when the United States Court of Appeals for the District of Columbia Circuit took the extraordinary step of acting on a case that was not then pending in this jurisdiction and ordered the undersigned to request the case back from the Southern District of Florida.
Between September 30, 1992, and January 5, 1993, defendant Briscoe was in trial in this Court on the charges contained in the Independent Counsel's indictment and the other transferred Southern District of Florida indictment.
This time is excludable pursuant to 18 U.S.C. § 3161(h)(1)(D). On February 16, 1993, as it was directed to do by the Court of Appeals, this Court wrote the Clerk of the Southern District of Florida to request the return of the case.
That court took no further action on this matter for over a month. Finally, on April 7, 1993, this Court again received the case file from the Southern District of Florida. Once again, the Clerk's Office here did not inform the undersigned that the case jacket had arrived. Moreover, because the Court expected to have another three-month criminal trial during the summer and fall, followed by a series of complex criminal trials through the next year, the Court had no available time in which to try this case. Therefore, the Court took steps to obtain another judge to handle the trial before setting a motions and trial schedule. On May 14, 1993, after having received a tentative commitment from a Senior Judge to try the case (which had been projected to last roughly three weeks), this Court held a telephonic status conference to set a motions schedule. (Only one party's counsel -- Briscoe's -- is here. Defendant Gunter's counsel is in Texas; the prosecutor, as would be expected, is in the Southern District of Florida.)
The entire time period between May 14, 1993, and the present is excludable due to the preparation and pendency of motions. See 18 U.S.C. § 3161(h)(1)(F). The Court does not set forth herein the detailed day-by-day analysis that it has made, and it notes that the conclusion it has reached in this case has been reached both with reluctance and after very careful study. However, as of this date, as a consequence of the extraordinary combination of circumstances that have been described, it can be concluded only that considerably more than the allowed 70 speedy trial days have passed. Therefore, the Court is compelled to dismiss the indictment, and the obviously desirable result of having a jury resolve the issues which have been the subject of so much investigative and prosecutorial effort will not be achieved.
The Motion To Withdraw as Counsel of Record
Back on December 7, 1992, while the case for the second time was within the jurisdiction of the Southern District of Florida, defendant Briscoe's Florida counsel of record filed a motion for leave to withdraw, noting in part:
Since March, 1992, the Defendant has completely failed to honor his financial obligations to [Florida counsel], despite receiving written requests for payment monthly . . . .
There is no indication in the jacket that that motion was acted upon. On November 2, 1993, defendant Briscoe's lead counsel throughout all of these convoluted proceeds, the firm of Dickstein, Shapiro & Morin (actually, since individuals rather firms must enter their appearances as counsel in a case, attorneys Barry Wm. Levine, Elaine Metlin, and Charles J. Clark) filed a Motion To Withdraw as Counsel of Record. That motion states that defendant "Briscoe can no longer meet his financial obligation to his counsel." That motion has been consented to by defendant Briscoe, and it is granted.
On the same day on which they filed their motion to withdraw, defendant Briscoe's counsel somewhat anomalously filed what was labelled as a praecipe, accompanied by a copy of their June 8, 1992, Memorandum in Support of Defendant Briscoe's Motion for Reconsideration [of this Court's retransfer of the case to the Southern District of Florida].
The Court acknowledges that there were two inadvertent errors in its Opinion of May 22, 1992, returning the case to Florida. See United States v. Briscoe, 792 F. Supp. at 2 and n.4. In preparing that Opinion, the Court was unaware of the contents of Exhibits C and D (the Independent Counsel and the other Southern District of Florida indictments) to the lengthy motion to transfer submitted on behalf of defendant Briscoe to Chief Judge Roettger on October 18, 1992. That error being acknowledged, the Court feels obliged to state (1) its belief, with all due respect, that it is unlikely that Chief Judge Roettger made an analysis of the three separate indictments charging defendant Briscoe (with a different codefendant in each), or it is confident that he would not have transferred this manifestly South Florida case here, and (2) its continued belief -- as expressed in footnote 5 of the transfer Opinion -- that lead counsel for defendant Briscoe was misleading in his representations to Chief Judge Roettger concerning the original motion for transfer. Id. at 3.
The Status of Defendant Gunter
For reasons that are unknown to this Court, no filing has been made here on behalf of defendant Gunter, although his counsel (in Texas) was a participant in the May 14, 1993, telephone conference during which a motions schedule was agreed upon. Although the Speedy Trial Act provides that an "indictment shall be dismissed on motion of the defendant" in the event of a violation of the Act, 18 U.S.C. § 3162(a)(2), defendant Gunter has not waived his rights and nothing would be accomplished by requiring him to file a motion to dismiss. Accordingly, the indictment is dismissed as to defendant Gunter as well as to defendant Briscoe.
An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: NOV 29 1993
ORDER - November 29, 1993, Filed
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that the Motion To Withdraw as Counsel of Record filed by counsel for defendant Briscoe is granted. It hereby further is
ORDERED, that defendant Briscoe's Motion To Dismiss on Speedy Trial Grounds is granted, and the indictment is dismissed as to defendant Briscoe and his codefendant Gunter.
Stanley S. Harris
United States District Judge
Date: NOV 29 1993