Carroll v. United States

• Decision Date: 12 April 1968
• Docket Number: No. 7040.,7040.
• Citation: 392 F.2d 185
• Parties: Richard Bryers CARROLL, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

392 F.2d 185 (1968)

Richard Bryers CARROLL, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 7040.

United States Court of Appeals First Circuit.

April 12, 1968.

Francis E. Dooley, Jr., Boston, Mass., by appointment of the Court, for appellant.

Albert F. Cullen, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

The basic question raised by this appeal is whether the defendant was denied his Sixth Amendment right to a speedy trial. On June 1, 1966 he was indicted in the District of Massachusetts for knowingly transporting certain forged checks in interstate commerce and was scheduled to be arraigned on August 1, 1966. At that time he was serving a state court sentence in the Mississippi State Penitentiary where he remained confined until March 21, 1967. He was then taken into federal custody and thereafter released on bail. After his Mississippi attorney had informed the United States Attorney's office in Boston on April 17, 1967, that his client was available when wanted, defendant was arraigned on the indictment in Boston on May 22, 1967. He was tried and found guilty on November 17, 1967. On two occasions prior to trial defendant moved to dismiss the indictment for failure of the government to arraign and try him speedily despite the fact that he specifically requested this. The district court denied both motions.¹

It is from the denial of the second motion to dismiss that defendant appeals. He does not complain of any post-arraignment delays. His complaint is that although August 1, 1966, was fixed as the date for his arraignment, he was not arraigned until May 22, 1967, nearly ten months later; that this delay was purposeful and oppressive, violated his Sixth Amendment right to a speedy trial and for that reason the district court erred in not dismissing the indictment.

As we recently held in Fleming v. United States, 378 F.2d 502, 504 (1st Cir. 1967) mere lapse of time is not enough to establish denial of a speedy trial. There we observed that a delay of eleven months was "very short" and hence not unreasonable. It is essential that defendant also show prejudice or that the delay was improperly motivated. See also Schlinsky v. United States, 379 F.2d 735, 737 (1st Cir.), cert. denied, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265 (1967).

Defendant made no showing of prejudice by reason of the delay. He contends, however, that the delay was improperly motivated — that the arraignment was purposely delayed because he would not cooperate with the FBI in the investigation of other matters. In support of this contention defendant's counsel points to his client's testimony that in June 1966 when he was interviewed by an FBI agent at the Mississippi State Penitentiary he requested a speedy arraignment and was informed by the agent that he would be arraigned in Boston on August 1, 1966. Defendant also testified that in a later interview (after August 1) with the same agent, relating to other matters, he asked the agent why he did not get him to court in Boston and the agent replied, "You don't help me — why should I help you."

The FBI agent testified that the only time he interviewed the defendant was on July 20, 1966, at the Mississippi State Penitentiary; that defendant made no request to him for a speedy...