United States v. New Buffalo Amusement Corp., Aquarius Releasing, Inc., and Terry Levene , 600 F.2d 368 ( 1979 )

BARTELS, District Judge:

Appellant Levene owns and operates several corporations which produce, distribute, and exhibit motion pictures. Appellant Aquarius Releasing, Inc. (“Aquarius”), an entertainment corporation of which Levene is sole stockholder and president, acquired and produced the allegedly obscene film involved here entitled “Belinda.” The other corporate appellant, New Buffalo Amusement Corp. (“New Buffalo”), is a subsidiary of Loew’s Theatres, Inc., and is the operator of the theater in Buffalo, New York, at which the movie in question was shown.

Under the four-count indictment which initiated this action, filed on May 2, 1973, against appellants Levene, Aquarius, New Buffalo, and various other defendants not involved in this appeal,¹ Levene and Aquarius wére convicted of knowingly using a common carrier for carriage in interstate commerce of an obscene film, and New Buffalo was convicted of knowingly taking the same film from the common carrier, both offenses in violation of 18 U.S.C. §§ 1462 and 2.² The judgments of conviction were entered on July 25, 1978 after a jury trial in the United States District Court for the Western District of New York, Curtin, J. This is an appeal from those judgments.

Appellants have asserted many grounds for reversal, including the claim that they were denied their rights to a speedy trial under the various speedy trial plans of the Western District of New York³ and under the Sixth Amendment. Since we reverse on the ground of the denial of appellants’ Sixth Amendment rights to a speedy trial, we need limit ourselves only to the speedy trial contentions.

While we realize that delay alone is insufficient to constitute a Sixth Amendment violation, a chronological history of the delays in the prosecution of this action, for which the appellants must assume some of the responsibility, reflects an official indifference to the necessity of a speedy trial as required by the applicable Western District Plans and by the Constitution. Although the indictment was filed on May 2, 1973 and appellants moved for dismissal on speedy trial grounds on June 1,1976,⁴ it was not until October 12, 1977 that a jury was finally empanelled, and even then the trial was postponed until November 15, 1977, approximately four and one-half years after the date of indictment. Although various contentions have been made by the government in explanation of this extensive delay, we find no dispute as to the actual facts as reflected by the record or the docket sheet. For the sake of clarity a table summarizing the periods of delay is annexed hereto as an appendix.

Appellants have specified the alleged violations of their speedy trial rights according to the different time periods covered by (1) the applicable Western District Plans Regarding Prompt Disposition of Criminal Cases (April 1, 1973 to July 1, 1976), passed pursuant to Rule 50(b) of the Federal Rules of Criminal Procedure; (2) the Western District’s New Plan for Prompt Disposition of Criminal Cases, promulgated pursuant to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq. (July 1,1976 to July 1,1979); and (3) the Sixth Amendment speedy trial clause. Accordingly, the extent and effect of the delay involved can best be presented by a discussion of the lapse of time under each Plan.

I. WESTERN DISTRICT’S RULE 50(b) PLANS

Appellants’ first contention is predicated upon a violation of Rule 4 of the Western District’s Rule 50(b) Plan, effective April 1, 1973. While this Plan was superseded on September 29, 1975 by the Western District’s Interim Rule 50(b) Plan, for all purposes relevant here the plans are identical, and the pertinent provision reads as follows:

In all cases the government must be ready for trial within six months from the date of arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried.

The necessary inquiry, therefore, is whether the government was ready for trial within six months after date of indictment, exclusive of any periods of excludable delay. Appellants claim that the government was required to signify its readiness for trial by filing a timely notice of readiness in writing and that it failed to fulfill that obligation in this case.

To determine the effective timetable, we proceed to the excludable periods which extend the six-month deadline beyond the initial expiration date of November 2, 1973 in this case. In his opinion of August 4, 1976 denying appellants’ speedy trial motions, Judge Curtin found — and the parties concede — that the initial fourteen and one-half months from May 2, 1973 to July 15, 1974 were consumed by the hearing and consideration of pretrial motions. Under Rule 5(a) of the Plan, this period, during which motions were sub judice, must be excluded.⁵ From July 16 to November 1, 1974, the government took no action, and, therefore, it must be charged with this three and one-half month delay.

On November 1, 1974, the United States Attorney sent a notice to defense counsel and the court placing the matter on the trial calendar to set a date for trial. If' this motion could properly be treated as a notice of readiness, the government should be given the benefit of the November 1 date. However, this procedure was not in accordance with the accepted Western District practice of filing a written notice of readiness. See United States v. Pierro, 478 F.2d 386, 389 n.3 (2d Cir. 1973); cf. United States v. Lane, 561 F.2d 1075, 1076, 1077-78 (2d Cir. 1978).⁶ In his opinion of June 23, 1976 denying defendants’ motion for dismissal on speedy trial grounds, the trial judge specifically identified August 11, 1975 as the date of the government’s announcement of readiness for trial, and the government’s July 13, 1976 memorandum in opposition to the speedy trial motion makes the same assumption.⁷ The government further claims to have announced in open court on November 11, 1974 its readiness for trial. This claim, however, is unsupported by anything in the record, and Judge Curtin fails to mention it in either his initial consideration or his reconsideration of appellants’ speedy trial motion.⁸ We find the government chargeable with the period from November 1 through November 20, 1974 when the next excludable period begins, bringing the total non-excludable time from May 2, 1973 to November 20, 1974 to approximately four months and four days.

On November 20, defendants moved to inspect grand jury minutes and to dismiss the indictment for failure of the government to supply the grand jury with sufficient evidence that the films were transported in interstate commerce. Since the motions were sub judice until June 10, 1975 when the trial court issued a brief decision and order denying both motions, this entire period of over seven months must be excluded under Rule 5(a) of the Plan, although such extended consideration of the motions seems inordinately lengthy.⁹

From June 11 to July 7, 1975, so far as is discernible from the record, no action was taken by the government which would toll the readiness period. The delay from July 7 to July 21; 1975, however, must be attributed to defendants since they specifically requested an adjournment to file additional motions. Again, the record indicates no basis for exclusion of the period from July 22 to August 10, 1975, thus bringing to five months and twenty days the total non-ex-cludable time from date of indictment and extending the expiration date of the six-month readiness period to August 20, 1975.

Consistent with the June 23, 1976 opinion of the trial court, we have accepted August 11, 1975 as the date “[t]he Government announced that it was ready for trial,” although no written notice was filed. This announcement, made within the six-month notice period, may be deemed an adequate compliance by the government-with its obligation under the Western District’s Rule 50(b) Plans.¹⁰

II. WESTERN DISTRICT’S NEW PLAN (SPEEDY TRIAL ACT OF 1974)

On January 3, 1975, the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq., became effective. This Act set forth certain mandatory timetables and required the various district courts to adopt after study a plan formulated in accord with the Act, 18 U.S.C. §§ 3165-66, pursuant to which the Western District adopted an interim plan (“New Plan”) effective from July 1, 1976 to July 1, 1979. Unlike the predecessor Rule 50(b) Plans, this New Plan, as required by the Speedy Trial Act, focuses not on the obligation of the government to file a notice of readiness, but upon the obligation of the court to bring the case to trial within 180 days of the effective date of the Plan, subject to any periods of exclusion set forth in § 3161(h) of the Act. Specifically, Rule 7(a)(1) and Rule 5(a)(1) of the Western District’s New Plan require that the government be ready for trial and that the trial commence within 180 days of July 1, 1976. In this case, the jury was not selected until October 12, 1977, 468 days after July 1, 1976, and trial did not actually commence until November 15, 1977, 502 days after July 1, 1976. Of this latter period, approximately 226 days were properly excludable.

On July 1,1976, appellants’ motion to dismiss for lack of a speedy trial was pending and was not finally decided by the court until August 4, 1976. Delay occasioned by pendency subjudice of appellants’ speedy trial motion is not chargeable against appellants because, as observed, in United States v. Didier, 542 F.2d 1182, 1188 (2d Cir. 1977), to do so would “improperly penalize defendants for their invocation of speedy trial rules and run counter to the purposes of those rules.” However, on August 10, appellants appealed the trial court’s denial of their speedy trial motion, which appeal, according to the docket entry on September 24, 1976, was dismissed upon the government’s motion for lack of finality. It would seem tó us that this period must be excluded because it would otherwise “improperly penalize” the government for the ill-advised action of appellants. On December 3, appellants requested an adjournment beginning on December 6 and continuing through January 18, 1977, and, therefore, that 44-day period is also excludable. Thus, of the 202 days from July 1, 1976 through January 18, 1977, 112 days are not excludable.

From January 19 to April 4, 1977, according to the docket sheet, no action was taken by the court or either party justifying exclusion of the period from the mandatory timetable. However, the government asserts in its brief that after December 6, 1976 there was “a whole series of adjournments at the request of the defendants.”¹¹ This conclusory statement is not supported by any indication in the record as to what, if any, periods are properly excludable. Although a docket entry on January 13, 1977 indicates that a meeting was held and that the trial was then adjourned from January 25 to February 15, 1977, no reasons are stated for the postponement and the record does not reflect that appellants agreed to any waiver of their rights. Nor, in the absence of findings by the court, can the exception of § 3161(h)(8)(A) be invoked to serve the “ends of justice.” Judge Mansfield charges appellants’ trial counsel with obvious efforts to postpone an imminent trial by resorting to plea negotiations from January through July 1977 and asserts that the trial court “permitted itself to be lulled by the defendants’ extraordinarily successful delaying tactics.” We have difficulty in believing that the able and experienced trial judge would permit himself to be lulled or that the defense counsel’s conduct can fairly bear the weight of this charge. While it could be argued that time consumed in plea negotiations should be ex-cludable since initiated by defendants, an equally appealing argument can be made that such negotiations are potentially as beneficial to the government as to the defendants. In all events, both the government and the court have an obligation to insure that such negotiations do not interfere with speedy trial requirements of the Western District’s New Plan. In fact, under Rule 5(f)(1) of the New Plan the court has “the sole responsibility for setting cases for trial . .” At minimum, if such periods are to be excluded, it seems to us that the burden is on the government or the court to set forth in the record what are excludable periods or at least what are the operable facts leading to the exclusion. To hold otherwise, as the dissent suggests, by inferring intentional delay by appellants wherever the reason for a delay is unrecorded, would effectively emasculate the Speedy Trial Act and would transfer to a defendant responsibility which has properly been assigned to the court and the government. Recording is essential to effective implementation of the Act and, indeed, is mandated by Rule 10(b) of the New Plan, requiring the docketing of all “information with respect to excludable periods of time . .” In the context of this background, we believe that the 76 days from January 18 to April 4, 1977 are not excluda-ble, although, as appears infra, the exclusion of this period would not preclude a violation.

The period from April 5 to April 12, 1977 is excludable due to defense counsel’s request for an adjournment necessitated by his schedule. In an order dated April 12, Judge Curtin sought to exclude also the period from April 13 to June 27, 1977 as “in the public interest” because of his commitment to the trial of other cases in April, May and early June. Under § 3161(h)(8)(C), however, the court’s discretion to grant continuances upon a finding that “the ends of justice” are served thereby is explicitly qualified by the limitation that “[n]o continuance . . . shall be granted because of general congestion of the court’s calendar . . . .” See United States v. Didier, 542 F.2d at 1188; United States v. Carini, 562 F.2d 144, 149 (2d Cir. 1977); United States v. Roberts, 515 F.2d 642, 644 (2d Cir. 1975). Therefore, this 75-day period cannot be excluded.

The jury was finally empanelled on October 12, 1977. The following periods immediately preceding that date are ex-cludable because of (i) an adjournment from June 27 to July 13, due to illness of defense counsel’s wife; (ii) the finding of the court that the delay from July 13 to September 1 is “in the interest of the defendant and the public”;¹² and (iii) an adjournment from September 15 to October 12, due again to illness of defense counsel’s wife. The period from September 2 through September 14 is not excludable, however, because the delay was purely for the convenience of the court. Although appellants contend that the 33 days from October 13 to November 15, 1977, when the actual trial commenced, are not excludable, Rule 5(e)(2) of the Western District’s New Plan specifically provides that “[a] trial in a jury case shall be deemed to commence at the beginning of voir dire.” Because voir dire occurred on October 12, we conclude that the period thereafter until November 15 is excludable. Thus, the non-excludable delay between July 1, 1976 and the date of trial totals 276 days.

After subtracting the periods of ex-cludable delay in accordance with the above computation, the 180-day limit imposed by the Speedy Trial Act was exceeded in this case by approximately 96 days. Even excluding the additional period of 77 days from January 19 to April 4, 1977 during which appellants’ trial counsel sought to negotiate a plea agreement, the 180-day limit was exceeded by 19 days. As the government suggests in its brief, however, dismissal of the indictment as a sanction for violation of the timetable effective until July 1, 1979 is not mandated under the Act. 18 U.S.C. §§ 3162, 3163(c).¹³ Moreover, this court has previously held that until that date “the violation of the Speedy Trial Act is not, in and of itself, a sufficient reason for dismissing the [indictment] here.” United States v. Carini, 562 F.2d at 148. Such a violation may, however, be considered as a factor to be weighed together with other circumstances in a court’s analysis of a claimed violation of a defendant’s constitutional right to a speedy trial, and, in fact, such a finding may “tip the scales” in defendant’s favor where the balance is close. Id. at 151-52. We proceed, accordingly, to the issues raised by appellants’ constitutional claim.

III. SIXTH AMENDMENT

Appellants contend finally that the 54-month delay between indictment and date of trial violated their rights under the Sixth Amendment to a speedy trial. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Both the court and the government in this case had an affirmative obligation to appellants and to the public generally to bring this matter on for trial promptly, rather than permitting delay — for whatever reason — to drag on for over four and one-half years. United States v. Vispi, 545 F.2d 328, 334 (2d Cir. 1976). Further, where the delay is as substantial as it was in this case, the burden is upon the government to prove that the delay was justified and that appellants’ speedy trial rights were not violated. United States v. Jones, 173 U.S.App.D.C. 280, 524 F.2d 834, 849 (1975); United States v. West, 164 U.S.App.D.C. 184, 187-88, 504 F.2d 253, 256-57 (1974); United States v. Salzman, 417 F.Supp. 1139, 1165 (E.D.N.Y.), aff’d on other grounds, 548 F.2d 395 (2d Cir. 1976); compare 18 U.S.C. § 3162(a)(2). Although this is a close case due to some delay occasioned by the conduct of appellants’ trial counsel, we conclude upon the totality of the circumstances that the government has failed to satisfy its obligation.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is of course the controlling authority. There, the Supreme Court clearly enunciated the essential factors to be considered in determining a denial of the Sixth Amendment right to a speedy trial as follows: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to defendant resulting from the delay. Id. at 531-33, 92 S.Ct. at 2192-93; see also United States v. Vispi, 545 F.2d at 333; United States v. Roberts, 515 F.2d at 645. Though each of these factors is important, other circumstances may be relevant as well. Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193. At the same time, the Court made it clear that the constitutional right to a speedy trial cannot “be quantified into a specified number of days or months.” Id. at 522, 92 S.Ct. at 2188. Instead, the approach should be “a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Id. at 531, 92 S.Ct. at 2192.

The length of the delay in this case — four and one-half years — is unquestionably substantial, and while it may not be conclusive of the constitutional issue, it must weigh heavily in support of appellants’ claim that their rights have been violated. Such delay here is clearly enough to “trigger” the constitutional analysis with respect to the other elements of the Barker test. Id.

The reasons for the delay were varied, as the foregoing analysis indicates, but we believe that the bulk of the delay— approximately 31 months — was chargeable to the government’s inaction, the overcrowded dockets of the Western District of New York, and the trial court’s failure to rule expeditiously on appellants’ motions. While the government may have had little control over the “institutional delays” more appropriately attributable to the court, “the ultimate responsibility for such circumstances must rest with the government rather than the defendant.” Id. at 531, 92 S.Ct. at 2193. This court has previously held that:

[rjegardless of the judge’s inaction or the fact that the delay may have been in part attributable to institutional factors, the government was not entitled to sit back and rely upon its pro forma notice of readiness; it owed the additional duty of monitoring the case and pressing the court for a reasonably prompt trial. We have repeatedly emphasized that affirmative action by the government in bringing cases to trial is mandated and that it cannot escape this duty on the ground that the delay is for institutional reasons.

United States v. Vispi, 545 F.2d at 334. Though a number of adjournments were attributable to requests by appellants, their duration was minimal in comparison to the lengthy and repeated periods of court and government inaction. Moreover, unlike a complex antitrust or fraud action, the nature of this case is not such as would necessitate the 54 months of delay in preparation for trial, and it is notable that the actual trial, once begun, was completed in no more than four days. Barker v. Wingo, 407 U.S. at 531-32, 92 S.Ct. at 2192. Finally, appellants assert — and the record indicates — that plea negotiations were ongoing for at least a year prior to the date of their speedy trial motion. Good faith plea negotiations by a defendant should not be equated to a waiver of speedy trial rights, and, under the circumstances, the government must assume responsibility for the risk of institutional delays where the bargain ultimately is unsuccessful. Compare United States v. Roberts, 515 F.2d at 647; United States v. Carini, 562 F.2d at 149. We find no basis in the record to support Judge Mansfield’s statement that the inference is “inescapable” that appellants engaged in plea negotiations merely as “a delaying maneuver.”

It is true that the appellants did not move for dismissal, based upon speedy trial grounds, until June 1, 1976 — approximately 40 months after the date of indictment — and that this is a consideration which must be weighed in determining a violation of their Sixth Amendment rights. Prior to that time they had been engaged in plea negotiations with the government to avoid the necessity of trial, and it is not unreasonable to assume that they were “lulled into not pressing for trial” during that period. United States v. Carini, 562 F.2d at 149. More important, however, is the fact that after the June 1, 1976 speedy trial motion was made, there was a 16-month delay prior to the commencement of the trial. In Carini this court held that such post-assertion delay was of “especial importance” in that the government and court were then put on notice that they “would be held strictly accountable for the passage of time after the motion to dismiss for want of a speedy trial had been made.” Id. at 150. Though defendants requested several adjournments due to illness of defense counsel’s wife and in order to permit defense counsel in early April 1977 to try another case, such continuances would not have been necessary had the government fulfilled its obligation to press for trial before that time.¹⁴ A rigid application of the demand-waiver rule was rejected in Barker. There, the Supreme Court reiterated the rule that there is no duty upon a defendant to bring himself to trial, but that the duty is upon the state, in the interest of the public, to bring prosecutions to a swift conclusion.¹⁵ We do not read Barker as indicating that the duty of the state to bring a defendant to trial is postponed or minimized by a defendant’s continuing, although unsuccessful, efforts to obtain a favorable plea. We conclude that under such circumstances appellants’ delay in making a prior demand for a speedy trial is not sufficient to vitiate a violation of their Sixth Amendment rights.

The fourth factor under the Barker test — prejudice to appellants — is evident in this case in two respects. First, the extended delay would unavoidably increase the “anxiety and concern” suffered by appellant Levene as a result of the pending criminal indictment. Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193. While not unique to appellant Levene, this kind of prejudice becomes especially significant where prolonged for a period of four and one-half years after date of indictment. Second, and more important, is the possible impairment of appellants’ ability to present a defense which may have been caused by the delay. As stated in Barker, id:

Of these [interests], the most serious is the last, because the inability of a defendant adequately to prepare his case skews to fairness of the entire system. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

Appellant Levene’s uncontradicted affidavit, sworn to in June 1976, describes the difficulties caused by the delay in preparing for trial. The art director and the story editor of “Belinda” could no longer be located, and certain actors and actresses, who previously had agreed to testify, refused to attend trial for fear that they might also be subject to criminal prosecution if a verdict unfavorable to defendants was returned by the jury.¹⁶ Also submitted at that time was a letter written by Charles Winick, Professor of Sociology at the City College of New York, in which he evaluates changes between 1972 and 1976 in public attitudes toward sexually explicit films and concludes that those attitudes had changed in a way detrimental to appellants — specifically, that “attitudes in 1972-73 were far more accepting and liberal than they have been during the last year [1975-76].” The government offered no other experts in this field to dispute his opinion, and in view of his experience and qualifications his opinion can hardly be dismissed as frivolous.¹⁷ Where, as here, a case turns on a morals point of view, it is important that the trial be framed in terms of the community standards existing at the time of the alleged offense, which in this case was 1973. Consequently, it is impossible to say that the moral standards prevailing at the time of the trial over four years later were the same as those existing on the date of indictment. Hence, there was all the more reason for a speedy trial. The government relies on the fact that appellant Levene has been free on bail since 1973 and has failed to demonstrate any adverse effect on his income or reputation as a result of this protracted prosecution. As Barker indicates, however, prejudice takes various forms, and based upon the above analysis, we find that the fourth factor of the Barker test is appropriately weighed in appellants’ favor.¹⁸

Finally, the violation of appellants’ rights under the Western District’s New Plan — occurring in its entirety after appellants’ speedy trial motion — is a factor which supports our conclusion that appellants’ Sixth Amendment rights have been violated. We cannot subscribe to Judge Mansfield’s statement that a Speedy Trial violation is “largely irrelevant” since it has been established in this Circuit that a “violation of the Speedy Trial Act is a proper factor to be weighed in our analysis of whether [a defendant] was denied his constitutional right to a speedy trial.” United States v. Carini, 562 F.2d at 148. The government cites United States v. Lane, supra, as authority in support of its contention that appellants’ speedy trial claims should be denied. As stated in Barker, every case must be approached on an ad hoc basis. 407 U.S. at 503, 92 S.Ct. at 2192. We believe that the facts in Lane differ significantly from the facts in the present case. Notable among other circumstances are the absence in Lane of a violation of the District Court Speedy Trial Act Plan, the failure of defendant to demonstrate any prejudice resulting from the delay, and the absence of continuing plea negotiations which mitigate the importance of the defendant’s delay in asserting his speedy trial right.

After considering all the facts in this case, we believe that, on balance, appellants’ Sixth Amendment rights to a speedy trial have been violated. Accordingly, the judgments of conviction are reversed with instructions to dismiss the indictment.

APPENDIX

1 . Other defendants named in the indictment were Loews Corporation, Loews Theatres, Inc., Frank Arena, and Benjamin Franklin Abrams, Jr. The first count of the indictment — on which appellants Levene and Aquarius Releasing were convicted — charged that all the, defendants did “knowingly, willfully and unlawfully transport in interstate commerce, by means of common carriers, from the State of New Jersey to the City of Buffalo,” an obscene film, in violation of 18 U.S.C. § 1462. The second count — under which New Buffalo Amusement Corp. was convicted — charged that all defendants, except Levene and Aquarius, did “willfully, knowingly and unlawfully cause to be taken from a common carrier” an obscene film, also in violation of 18 U.S.C. § 1462. The third count charged a conspiracy to commit the substantive crimes charged in counts one and two, and the fourth count charged a conspiracy to commit the substantive crime of using the mails for mailing an obscene trailer, in violation of 18 U.S.C. § 1461.

2 . Section 1462 of Title 18 of the United States Code provides, in pertinent part, as follows:

Whoever . . . knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—

(a) any obscene, lewd, lascivious, or filthy motion picture film . . . ; or

Whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful—

Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than 10 years, or both, for each such offense thereafter.

3 . The Western District’s Plan Regarding Prompt Disposition of Criminal Cases, adopted pursuant to Rule 50(b) of the Federal Rules of Criminal Procedure, became effective on April 1, 1973. That Plan remained in effect until September 29, 1975, when it was superseded by the Western District’s Interim Plan, adopted pursuant to Rule 50(b) and “in conformity with the provisions of the Speedy Trial Act of 1974.” Interim Plan, p. 1. This Interim Plan was superseded on July 1, 1976 by the Western District’s New Plan, promulgated pursuant to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq., and this New Plan will remain in effect until July 1, 1979.

4 . The trial judge denied appellants’ motion on June 23, 1976 and again, after reconsideration, on August 4, 1976. The latter denial was immediately appealed, but on September 14, 1976 —before any briefs on the merits were filed— this court dismissed the appeal on the ground that the trial court’s order was not final and, therefore, was non-appealable.

5 . Appellants argue that only part of this fourteen and one-half month period should be ex-cludable, on the grounds (1) that the analogous provision of the Speedy Trial Act — 18 U.S.C. § 3161(h)(1)(G) — was intended to permit exclusion only of time periods actually consumed by pretrial hearings, and (2) that such provision limits the permissible period of advisement to 30 days. Whether or not the drafters of the Act had such a narrow intention regarding the meaning of the term “proceeding,” the language of Rule 5(a) of the Western District’s Rule 50(b) Plan is clear that all periods during which motions are sub judice are excludable. Similarly, Rule 5(a) does not limit the period of time during which motions may be held under advisement. Moreover, appellants fail to indicate specifically what, if any, portions of this initial period from May 2, 1973 to July 15, 1974 were consumed by neither pending motions nor other pretrial proceedings. We, therefore, consider the entire period excludable.

6 . Under the decisions of this Circuit, the government bears the burden of informing the trial judge of its state of readiness in pending cases. United States v. Pierro, 478 F.2d 386, 388 (2d Cir. 1973). This rule has been interpreted in some cases as requiring that the government file a notice of readiness for trial, United States v. Rollins, 475 F.2d 1108, 1111 (2d Cir. 1973); United States v. Favoloro, 493 F.2d 623, 624 (2d Cir. 1974); United States v. Salzman, 417 F.Supp. 1139, 1152-53 (E.D.N.Y.), aff'd on other grounds, 548 F.2d 395 (2d Cir. 1976), and in other cases as requiring only that the government announce its readiness orally in open court, United States v. Masullo, 489 F.2d 217, 224 (2d Cir. 1973); United States v. Johnson, 525 F.2d 999, 1007 (2d Cir. 1975). This issue was considered in some detail in United States v. Pierro, 478 F.2d at 388-89, where this court concluded that, consistent with the essential purpose of the notice requirement to inform the court, the government “must communicate its readiness for trial to the court in some fashion within the six month period . . . .” At the same time, the court emphasized that “the better practice” is to file a written notice of readiness with the clerk of the court for the judge’s attention and to serve a copy on the defendant. Id.

7 . In his August 4, 1976 opinion again denying appellants’ speedy trial motion, Judge Curtin did not treat the government’s motion to set a trial date as equivalent to a notice of readiness, stating that from date of indictment to June 1, 1976, “there was only about four and a half months of delay which could be arguably charged to the Government.”

8 . The government also claims to have satisfied the notice of readiness requirement by reporting this case to the trial court on a monthly basis beginning in November 1974 as awaiting a trial date. Aside from the government’s own reference to such a practice in its Response to the Defendants’ Motion to Dismiss, there is no support in the record suggesting that the government actually did report monthly or, if it did, that anyone received the reports. The trial judge makes no reference to such practice in either of his speedy trial opinions, and the docket sheet does not reflect that any monthly reports were made. Thus, we conclude that the record is insufficient to support the government’s claim.

9 . See note 5 supra.

10 . While several of the decisions cited supra at note 6 support the sufficiency of an oral notice of readiness in open court, persuasive argument can be made that such a procedure should be impermissible where the normal practice has been to file a written notice as, indeed, was apparently the practice in the Western District at the time this action was instituted. This court noted in United States v. Pierro, 478 F.2d at 389 n.3, that “the commendable practice of filing a written notice of readiness is followed ... by the United States Attorney’s Offices for the Southern and Western Districts of New York.” The failure of the United States Attorney to comply in this case with this procedure is unexplained.

11 . Appellee’s Brief, p. 29.

12 . The trial judge states that this period is excludable under 18 U.S.C. § 3161(h)(8)(A), which subsection gives the court authority to grant continuances upon a finding that the “ends of justice” will be served thereby. He did not, however, comply with the further provision of that subsection, which states that “[n]o such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.”

13 . While no dismissal sanction is provided for violation of this Plan, appellants could but did not apply to the court’s discretion under Rule 48(b) of the Federal Rules of Criminal Procedure for a dismissal.

14 . The government in its brief cites a letter, dated September 14, 1977, from Assistant United States Attorney Williams to the court attributing the adjournment of fifteen scheduled trial dates since June 1, 1976 solely to appellants. In the absence of corroboration in the record as required by Rule 10(b) of the New Plan, this assertion must be viewed as a self-serving declaration by the government.

15 . The Court, in Barker v. Wingo, 407 U.S. 514, 528, 92 S.Ct. 2182, 2190 (1972), stated:

A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, . . . society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.

16 . In appellant Levene’s affidavit, it appears that during the pendency of this action an actor was convicted of conspiracy by a federal court in Memphis, Tennessee based on his participation in an allegedly obscene motion picture. Appellants claim that this widely publicized conviction chilled the willingness of several actors and actresses involved in the film here in issue to attend trial, and, as a result, they retracted their agreement to testify on appellants’ behalf.

17 . According to Professor Winick, his evaluation of public attitudes is “based on many years of investigation,” involving studies conducted for the President’s Commission on Marijuana and Drug Abuse and for the Commission on Obscenity and Pornography and service as contributing editor for sex research of Medical Opinion and Review and as co-editor of the Annual Review of Studies in Deviance. A number of his studies have appeared in journals such as Films and Filming, Psychiatry, and American Sociological Review, and he has been the recipient of federal grants over a period of twenty years.

18 . We are not here passing upon the alleged obscenity of the film, but upon the right of appellants to a speedy trial. Consequently, we believe that the 1973 F.B.I. Report annexed to the dissent as an appendix is irrelevant. If it is annexed to show that there could have been no prejudice from delay because a jury using 1973 standards would have to hold exactly the same way as the jury did hold sitting in 1977, we think that this presupposes too much; juries’ verdicts simply cannot be guessed, especially in criminal cases involving the presumption of innocence.