United States of America, Appellee, v. Patrick Mcdonough, Appellant, 504 F.2d 67 (2d Cir. 1974)

Before our recent United States v. Flores, 501 F.2d 1356 (2d Cir. 1974), at 1360 (per curiam), Judge Neaher without hearing denied a motion to dismiss for failure to comply with Rule 4 of the Plan for the United States District Court for the Eastern District of New York for Achieving Prompt Disposition of Criminal Cases (Plan).¹  Here the Government did not file its notice of readiness until five days²  after the six month period had expired. The Government agrees that there should be a remand for an evidentiary hearing on whether any period of time was 'excludable' under Rule 5 of the Plan. Thus, the result is easy enough: We remand.

We would add, however, a few words that may be helpful to Judge Neaher upon the remand. First, as we read Flores, at 1360, there is no de minimis time period under the six months' rule; the Government 'must be ready for trial within six months . . .,' not six months and three days, four days, five days or nine days.³  This has to be the case since we are dealing with a clear line of time-- much like a statute of limitations-- marked for prophylactic purposes, not to be analogized to the equitable doctrine of laches. There are any number of 'excluded periods' under Rule 5 of the Plan on which the Government may base a claim to toll the period, but the period itself is fixed, clearly, sharply and without qualification, at six months.

Nor by the appellant's waiving his right to a preliminary hearing before the magistrate under Fed. R. Crim. P. 5 does the Government become entitled to any extra time under the Plan; the critical time for commencement of the readiness period is 'the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest.' All that waiver of a preliminary hearing does is relieve the Government from establishing probable cause; it has no bearing on the operation of the Plan.

All of this is not to say, of course, that the Government may not be able to find and prove at the hearing other operative facts entitling it to an 'excluded period' under the Plan: a period during which appellant was cooperating with Government officials, United States v. Valot, 481 F.2d 22 (2d Cir. 1973); a period between the date of mailing the notice of arraignment (November 5, 1973) and the date of arraignment (November 14, 1973), unless 'a period of delay' under Rule 5(d) to the prosecutors did not result from the defendant's unavailability, United States v. Flores, supra, slip op. at 1360, or unless the defendant's unavailability occurred through the fault of the Government; or some other period as set forth in the Plan. Id. at 1360 n. 4.

Judgment reversed and remanded.