The opinion of the court was delivered by: LORD, III
Defendant Robert Jones was found guilty April 7, 1970, by jury verdict on all counts of a four-count indictment charging illegal sales of narcotic drugs. He seeks a judgment of acquittal as to the two counts relating to an alleged sale of heroin July 11, 1968, and a new trial on the two counts relating to an alleged July 2, 1968, sale.
The defendant was indicted on these four counts December 17, 1968, more than five months after the alleged sales. The alleged sales had been made to an undercover police agent, Paul F. Ricks, who broke cover at the end of August or beginning of September, 1968. Jones was arrested September 27, pursuant to a warrant charging him only with an unlawful sale on July 2. It was not until he received a copy of the indictment by mail sometime after December 17 that Jones knew he was being charged with a sale on July 11 as well.
This case came before us following Jones' first trial before the Honorable Charles R. Weiner. At the close of testimony in that trial, the defendant had changed his plea to guilty. At the time of sentencing, however, he was allowed to withdraw that plea and a new trial was ordered. When defendant first appeared before us, his previous counsel was permitted to withdraw and the Defender Association was appointed February 9, 1970, to represent him at trial. The case was continued to allow counsel time to prepare adequately.
The Defender Association assigned this case to defendant's present attorney, an Assistant Defender in that office, approximately ten days before Jones' April 6 trial. Less than a week before trial, counsel moved for dismissal of counts III and IV of the indictment relating to the July 11, 1968, sale. We denied this motion pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure on the grounds that it was not filed within a "reasonable time" after the defendant's plea. At the subsequent trial, the defendant was convicted on all four counts.
Decision in this case depends on the resolution of three separate issues: (1) Is the defendant entitled to a reconsideration now of his allegation that he was denied due process? (2) Was the defendant denied due process of law by the government's delay in informing him of the charges against him? (3) Did this court's failure to dismiss counts III and IV prior to trial so prejudice the defendant as to counts I and II that a new trial should be ordered as to these counts?
Defendant's pretrial motion to dismiss counts III and IV of the indictment was treated by us, without challenge, as a motion under Rule 12(b), Fed. R. Crim. P. When defendant's motion was filed more than 50 days after his plea and appointment of new counsel, we felt this was another in a series of dilatory tactics with which defendant had burdened the federal courts and thus we denied the motion under Rule 12(b)(3), which states: "The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter." The defendant charges that this ruling was an abuse of discretion and that we must meet his motion on its merits. We disagree.
However, reexamination of the record has persuaded us that the defendant had not been attempting to delay the proceedings against him and that the late presentation of his constitutional claim was due not to intentional irresponsibility but to bureaucratic bungling on the part of the Defender Association. Defendant's motion was made nearly a week before trial, early enough for the prosecution to have an answer prepared by trial.
If we do not hear the motion now, the defendant will have what we believe is a valid constitutional defense on the merits to counts III and IV; yet he will be left without a remedy for the government's violation of his constitutional rights.
Nonetheless, we do not believe a motion for a judgment of acquittal is the proper way to raise the delay issue again. The defendant is not challenging the sufficiency of the evidence, which is the sole ground set out in Fed. R. Crim. P. 29 for a judgment of acquittal.
However, we do believe reconsideration of defendant's motion is proper, pursuant to the inherent power of this court "to do justice." See United States v. Dooling, 406 F.2d 192 (C.A. 2, 1969); United States v. Apex Distributing Co., 270 F.2d 747, 756 (C.A. 9, 1959); cf. Burns v. Massachusetts Institute of Technology, 394 F.2d 416, 418 (C.A. 1, 1968). Rule 2, Fed. R. Crim. P., emphasizes this notion:
"These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."
In the interest of justice, therefore, we will consider defendant's motion to dismiss as though ...