Opinion
No. 18420.
Argued September 14, 1964.
Decided April 30, 1965.
Mr. H. Edward Chozick (appointed by this court), Washington, D.C., for appellant.
Mr. John A. Terry, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U.S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.
On appeal from convictions for narcotics offenses, appellant claims that he was denied a speedy trial, and that he was improperly refused a mental examination. The Government commendably conceded the latter claim, which would require a new trial if, after mental examination, appellant were judicially determined to be competent. We withheld action on this concession to await the outcome of a remand we ordered to develop further the speedy trial claim, which could entail dismissal of the indictment. After extensive hearings on remand, the trial judge concluded that appellant was "deprived of his constitutional right to a speedy trial" by the Government's failure to make a diligent effort to apprehend a co-defendant whose testimony could provide the only possible corroboration for his defense of mistaken identity. Within our review authority, we find no basis for disturbing the judge's conclusion. It follows that the case must be reversed and remanded with instructions to dismiss the indictment.
Brown v. United States, 118 U.S.App. D.C. 76, 331 F.2d 822 (1964).
Although the co-defendant eventually testified against Ward, the trial judge made no findings on remand that Ward acted in bad faith in refusing to be tried in his absence; nor does the record necessarily compel such a finding.
So ordered.