United States v. Mann

• Decision Date: 09 October 1968
• Docket Number: No. C 158-189.,C 158-189.
• Citation: 291 F. Supp. 268
• Parties: UNITED STATES of America v. Theodore MANN, Defendant.
• Court: U.S. District Court — Southern District of New York

291 F. Supp. 268

UNITED STATES of America v. Theodore MANN, Defendant.

No. C 158-189.

United States District Court S. D. New York.

October 9, 1968.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for the United States, Frank M. Tuerkheimer, Asst. U. S. Atty., of counsel.

Louis Bender, New York City, for defendant, Charles A. Stillman, New York City, of counsel.

OPINION

FRANKEL, District Judge.

On March 13, 1959, the defendant, then 67 years old, was charged in a five-count indictment with willful attempts to evade taxes owed by himself and his wife on their income for each of the calendar years 1952 through 1956. The first steps following the indictment were accomplished with "admirable promptness," Klopfer v. State of North Carolina, 386 U.S. 213, 217, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); within two months defendant had entered a plea of not guilty, moved for a bill of particulars, and received the particulars ordered by the court in its partial granting of the motion. Some nine years and three months later, on August 14, 1968, the Government moved the case for assignment to a trial part.

The case was set for trial to begin October 14, 1968, subject to the motion defendant has made under the Sixth Amendment¹ and Fed.R.Crim.P. 48(b)² for dismissal of the indictment on the ground that he has been deprived of his right to a speedy trial or, in the words of the Rule, a trial without "unnecessary delay."

The motion is one which requires particularized attention to the specific facts of the case. See Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). The protection invoked guards "only against unreasonable and unnecessary delay, and those characteristics call for an evaluation of all the circumstances." United States v. Simmons, 338 F.2d 804, 806 (2d Cir. 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965). Specifically, we have been instructed to consider four factors: "the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant * * *." Id., 338 F.2d at 807, quoting from United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963). We proceed, then, to consider these factors in the order stated.

The length of delay

A delay of 9½ years is patently shocking on its face. This first factor need not detain us. The Government, conceding as much, urges that "the other factors serve to direct the Court's discretion in favor of a denial of the motion."

Asserted reasons for the delay

The case for the prosecution does not brighten measurably under this heading. Seven Assistant United States Attorneys, successively charged with the case over the years, have filed affidavits. Three of these report that at one time or another defense counsel said something about `'`documents" which would establish his client's innocence. More specifically, this series of affiants reports as follows:

(1) The Assistant who had the case until November 6, 1959, says nothing about documents.

(2) The Assistant assigned from November 18, 1959, to June 21, 1961, says defense counsel "promised repeatedly to show me documentary evidence which he said would prove that the machinery sales on which the unreported commissions were alleged to have been paid were never consumated sic." He adds that counsel "never produced such documents nor did he state he could not produce them."

(3) The Assistant in charge for the relatively brief period from July 3 to September 12, 1961, never spoke to defense counsel at all and does not indicate that he did anything whatever about an indictment already well over two years old.

(4) The Assistant handling the case from September 13, 1961, to September 4, 1964, almost exactly three years, says he spoke to defense counsel "a number of times" and that the latter "promised to come and speak to me about the case and repeated that promise on numerous occasions, as he had information which would show that his client was not guilty of any crime." On August 25, 1964, when this Assistant was known to be leaving the United States Attorney's Office, he goes on to state, defense counsel said "he was willing to show the prosecution documentary evidence that his client never received the allegedly unreported commission but that such commissions were tagged on to the cost of the machinery and given to other people." Although he then left the office a scant week or so later, this Assistant adds (correctly) that defense counsel "never produced such documents."

(5) The next Assistant had the case from November 18, 1964 to March 18, 1966, for the sixteen months rounding out the sixth and seventh years following return of the indictment. In a six-line affidavit, this affiant says he does not recall ever speaking to defense counsel or defendant about the case. He does not indicate that he did anything to move forward with a prosecution already so remarkably ancient.

(6) The next affidavit is that of an Assistant who had the case from March 23, 1966, to December 1, 1967. During these 20 months, he says, he saw references in the files to alleged "documents," spoke to defense counsel about them, and was told by the latter that he would have to "reacquaint himself with the case" before he could say anything. Defense counsel never fulfilled his promise to "get in touch," says this affidavit, and beyond that the affiant sayeth not about why the case lay dormant for his tenure of over a year and a half.

(7) The present Assistant tells of inheriting the case in December 1967; calling defense counsel about the file references to "documents;" being told of the latter's lack of current familiarity with the case; granting postponements for counsel to refresh his recollection; and placing the case on the calendar in the late spring of this year when no further progress seemed likely through informal consultations.

In view of the disposition to be reached herein, it may be appropriate to say that the management of the case by the successor now in charge of it appears to have been wholly beyond reproach. This, in turn, is not meant to imply personal criticism of any particular individual whose docket may once have carried the case. What must be said, however, is that the affidavits serve, by the transparency of the purported explanations, to reveal a total lack of justification for the passage of over nine years between indictment and proposed trial.

It is not even necessary for this conclusion to rest upon, or weigh, the reply affidavit of defense counsel, who says he identified or produced certain "documents," never claimed to have any others, but did (and does) believe there were "leads" to exculpatory records which ought properly to be pursued by government investigators. Cf. Holland v. United States, 348 U.S. 121, 135-136, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Putting this to one side, the suggested "reason" for the delay is no reason at all. It is unlikely that any competent law student would consider it possible to fend off for years the prosecution of an elderly defendant by vague, shifting, and unfulfilled promises of "documents."³ Whatever law students might imagine, nobody could sit for more than a few hours in the criminal calendar part of this Court, listening to the knowledgeable and relentless pressure of vigorous prosecutors upon reluctant defense counsel, without recognizing the silliness of any such illusion. And, of course, the public is entitled to no less than such steady efforts to see that criminal justice should be as swift and certain as may be consistent with the demands of fair and orderly procedure.

Summarizing on the first two of our four relevant factors, the case is one of atrociously long delay wholly without any semblance of justification.

Asserted prejudice to defendant

Where delay is as long and as groundless as that revealed here, prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363, 366-367 (1965); Frankel v. Woodrough, 7 F.2d 796, 798-799 (8th Cir. 1925); Petition of Provoo, 17 F.R.D. 183, 196-200 (D.Md.), aff'd per curiam, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955). But defendant has more than this generalized kind of inference to support his motion.

It is agreed that the indictment centers upon alleged sums received by defendant as commission income, but not reported in his returns for the years in question, from three companies: Milwaukee Crane and Service Co., Victor Machinery Co., and Simmons Machine Tool Corp. As reported in the Government's opposing papers, the alleged sums and payors were as follows:

                                         Simmons            Victor        Milwaukee
                   1952— $ 12,938.00     $  11,988.00     $   950.00
                   1953—   27,251.80        16,000.00      11,251.80
                   1954—   60,000.00        37,500.00                    $22,500.00
                   1955—   42,500.00        10,000.00                     32,500.00
                   1956—   32,100.00        32,100.00
                   __________________     ___________     __________     __________
                   Totals $174,789.80     $107,588.00     $12,201.80     $55,000.00
                

It is undisputed that defendant did business with these companies during the pertinent years and that, apart from all the memories and records that may be lost during intervals of from twelve to sixteen years, people who presumably knew many pertinent facts have died. Thus, as to the Simmons Corp., it is asserted by the defense that defendant "dealt primarily with Mr. Charles Simmons, Sr., and to some extent with his son, Charles Simmons, Jr." At various times in 1957, while defendant's tax liability was under investigation, Simmons, Sr., is said to have assured defendant and his accountant (who makes an...