APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 71-63).
Van Dusen, Weis and Garth, Circuit Judges.
This is an appeal by the government*fn1 from the District Court's dismissal of an indictment charging violation of 18 U.S.C. §§ 922(h) and 924(a).*fn2 The District Court, in dismissing the indictment by its December 4, 1973 order, incorporated therein the provisions of its prior order of August 16, 1973.*fn3 The grounds for the Court's dismissal, therefore, can be summarized as: (1) ineffective assistance of counsel, (2) a denial of a speedy trial, and (3) irreparable prejudice "in [defendant's] opportunities, for concurrent sentence, access to certain rehabilitation opportunities, and in various other ways." As a consequence, the District Court held that the defendant had been denied both procedural and substantive due process.
Tarik Ali Bey was originally indicted on March 7, 1968, (Criminal No. 68-54) for a violation of 15 U.S.C. § 902(f)*fn4 and charged with being a convicted felon who caused a firearm to be transported in interstate commerce. The violation was alleged to have occurred on July 3, 1967.
On March 25, 1971, Bey was re-indicted. A superseding indictment was filed charging him, a convicted felon, with wilfully and knowingly receiving a firearm which had been shipped and transported in interstate commerce in violation of 18 U.S.C. §§ 922(h) and 924(a), (formerly 15 U.S.C. §§ 902(f) and 905(a)).*fn5
Until July 1972, Bey's whereabouts were apparently unknown.*fn6 In July 1972, however, Bey was arrested by state authorities and was incarcerated in Allegheny County Jail. While in state custody, he was placed under federal detainer. On August 28, 1972, attorney Lawrence Zurawsky*fn7 was appointed as his counsel to represent him in the instant proceeding. Within weeks thereafter, pretrial motions, captioned in indictment No. 71-63, were filed including motions for dismissal of the indictment, discovery, bill of particulars, suppression of evidence, speedy trial, pretrial conference and mental examination.
On October 5, 1972, the Court granted defendant's motion for a "general continuation of time" in connection with the filing of his briefs supporting all the pretrial motions and appointed Dr. Henninger, a psychiatrist, to examine the defendant. On August 1, 1973, all pretrial motions were heard by the Court. It was at that hearing, that for the first time, Zurawsky claimed he had received the wrong indictment, referring to the superseded indictment No. 68-54. The August 16, 1973 order dismissing the indictment No. 71-63 followed. (See fn. 3, supra).
Neither the record nor the fragments of testimony taken at the August 1, 1973 argument support defendant Bey's position or the Court's findings and conclusions. We accordingly reverse.
Bey's argument seeking to sustain the dismissal of No. 71-63 essentially proceeds as follows:
(a) Either at or after arraignment (September 14, 1972) Bey's trial counsel (Zurawsky) received from the "government" a copy of the old (68-54) or "wrong" indictment; and that
(b) Bey was thereby prejudiced by having his counsel (without notice of the superseding indictment or its substance) prepare "motions and briefs for approximately one year based upon a superseded indictment".*fn8
(c) Further, says Bey, because of his attorney's extensive work dealing with the superseded indictment, he, Bey, was not brought to trial within a reasonable time.
To evaluate these contentions, we look to the events and their chronology, as they are revealed by the record.
1. As previously noted, the defendant was placed under federal detainer some time in late July or early August 1972 while awaiting trial on State charges.
2. On August 28, 1972, Zurawsky was appointed as his counsel to represent him in proceedings under the instant indictment. Form CJA 20 ("Appointment and Authority to Pay Defense Counsel") described Bey's offense as "possession of a firearm after conviction 18 U.S.C. §§ 922(h) and 924(a)". That form, as well as the local form for notice of appointment of counsel, bore the criminal docket number of the instant indictment. The local form was mailed to the defendant; the CJA 20 form was mailed to Zurawsky.
3. The notice of arraignment bearing the superseding indictment number was mailed by certified mail to Bey at his prison address and to Zurawsky at his office address in Pittsburgh, Pennsylvania.
4. Thereafter, Bey was arraigned on September 14, 1972. The transcript of the arraignment reveals the following:
This is the arraignment for Tarik Ali Bey, a/k/a Warren L. Williams, who has been indicted at Criminal No. 71-63 for a violation of 18 United States Code, Sections 922(h) and 924(a). The defendant is present in Court and is represented by his attorney, Mr. Zurawsky, and the government is represented by Mr. Stanton. Mr. Stanton, you may proceed, and I'll ask the parties to approach the bench. Would you approach the bench, please.
You are Tarik Ali Bey, a/k/a Warren Williams? And, have you or your counsel received a copy of the indictment returned against you charging you with one count -- that on or about July 3, 1967, at Braddock, you having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and wilfully receive a firearm, a.22 Caliber Revolver which had been shipped in interstate commerce from Denver, Colorado, to Braddock. You know what you're charged with?
I don't understand the terms knowingly and wilfully. Does that mean that I knew that I was breaking the ...