Hanrahan v. United States, 18038

• Decision Date: 24 June 1965
• Docket Number: 18040,No. 18038,18041.,18038
• Citation: 121 US App. DC 134,348 F.2d 363
• Parties: Gene Z. HANRAHAN, Appellant, v. UNITED STATES of America, Appellee. William T. P. SHEA, Appellant, v. UNITED STATES of America, Appellee. John W. TYNAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 134, 348 F.2d 363 (1965)

Gene Z. HANRAHAN, Appellant, v. UNITED STATES of America, Appellee.

William T. P. SHEA, Appellant, v. UNITED STATES of America, Appellee.

John W. TYNAN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18038, 18040, 18041.

United States Court of Appeals District of Columbia Circuit.

Argued January 12, 1965.

Decided June 24, 1965.

Mr. Monroe H. Freedman, Washington, D. C. (appointed by this court), for appellants in Nos. 18,038 and 18,040, argued for all appellants. Mr. Charles W. Halleck, Washington, D. C. (appointed by in this court), was on the brief for appellant in No. 18,041.

Mr. Donald S. Smith, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, John A. Terry and Miss Barbara A. Lindemann, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and WASHINGTON and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge:

On July 22, 1959, in Puerto Rico, three District of Columbia residents were indicted for fraudulent use of the mail.¹ The indictment alleged sixty-five mailings, all to Puerto Rican citizens, pursuant to a fraudulent scheme whose operations centered in the District of Columbia and whose alleged victims resided in several parts of the United States. On arraignment in Puerto Rico on July 29, 1959, appellants Hanrahan and Shea moved unsuccessfully for a speedy trial. The trial was eventually set for November 16, 1959. On October 28, 1959, however, appellants moved for a change of venue on grounds that prejudicial pretrial publicity against them in Puerto Rico made it impossible for them to obtain a fair trial in that jurisdiction² and that a trial in Puerto Rico would place appellants at a serious disadvantage in defending themselves.³

The change of venue was granted on May 24, 1960. On August 5, 1960, appellants were arraigned in the United States District Court for the District of Columbia. At that time the Government requested a delay in trial until January, 1961. In view of appellants' urging their constitutional rights to a speedy trial, however, the court set the trial for October 10, 1960. On September 14, 1960, the Government again requested a trial delay, and counsel for appellants once again pressed for a speedy trial. In continuing the case to November 1, 1960, the court stated:

"This will give the government a month and a half to prepare and I certainly feel that the preparation which was done in Puerto Rico before the indictment was returned should not be wasted.

* * * * * *

"I feel that I must do this. They are requiring and demanding a speedy trial and they are entitled to that under the Constitution and I am fearful that if I do not grant it, there would be perhaps something said about it in the Court of Appeals, which would not be favorable to the government."

In spite of the court's expressed concern for the appellants' right to a speedy trial, the Government, on October 7, 1960, before a different judge, requested a further continuance on the representation of the Government that "the Government intends to dismiss the present indictment" and "to re-present the matter to a Grand Jury" in about six weeks. Appellants opposed the motion for a continuance and reasserted their right to a speedy trial. The Government's motion for a continuance without date was granted, however, and seventy-six weeks thereafter, on March 26, 1962, a new indictment, presenting the same mail fraud scheme during the same time but with different mailings, was returned by the grand jury in the District of Columbia. On April 27, 1962, appellants moved unsuccessfully for dismissal of the indictment for lack of a speedy trial.

During the trial of the case itself, which finally began on January 14, 1963, the appellants formally renewed their motion for dismissal for lack of a speedy trial. It was apparent during the trial that so much time had elapsed since the events in suit that some of the witnesses were unable to recall them or to produce records concerning them. One witness testified: "It has been so long I can hardly remember." Another witness, on a single page of transcript, testified: "* * * to the best of my recollection * * * I believe it was * * * if I recall * * * I don't recall." Defense records were lost or destroyed, and the Government on several occasions during the trial obliquely suggested to the jury that the appellants themselves had lost or destroyed them. Co-defendant Burke suffered a breakdown late in the trial, requiring a mistrial as to him. The indictment as to Burke was later dismissed for delay in the prosecution, the trial judge noting that Burke's breakdown had occurred during "the strain of a protracted trial after a prolonged delay since first being indicted." United States v. Burke, D.D.C., 224 F.Supp. 41, 47 (1963).

In sum, appellants were finally convicted on April 19, 1963, five years after commencement of the crime of which they were accused and almost four years after they were first charged with the offense — this delay in spite of repeated and persistent attempts to obtain a speedy trial and dismissal of the prosecution for want thereof.

The Government makes no real effort to justify the delay caused by bringing the first indictment in Puerto Rico. It would have this court ignore that delay and consider only the time which elapsed from the return of the second indictment to trial in determining the issue of speedy trial.⁴ The District Court, in denying appellants' motion for dismissal, acknowledged that "there would appear to be support" for appellants' motion to dismiss if the second indictment had charged the same offense as the first, but held that "the fact is that the second indictment in this case, while alleging substantially the same scheme to defraud, charges in its various counts violations of law entirely different from those charged in the first indictment."⁵ We find that this action of the District Court exalts form over substance.

Rule 48(b), FED.R.CRIM.P., if not the Sixth Amendment, in terms requires the prosecutor to proceed without "unnecessary delay." The prosecutor's responsibilities under these provisions begin, not when the indictment is returned, but when the prosecution is begun.⁶ Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963), cert. denied, 379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178 (1964), does not hold otherwise, if indeed it could in the face of the language of Rule 48(b).⁷ Therefore, the critical question in this case is, not when was the indictment filed, but when was the prosecution commenced.

The mail fraud charges brought here involve two essential elements: (1) a scheme to defraud, and (2) use of the mail in furtherance of the said scheme. Where one scheme involves several mailings, the law is settled that each mailing constitutes a violation of the statute. See Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706 (1916). But what is not clear is whether, in appraising appellants' claimed denial of speedy trial in this case, successive indictments alleging the same scheme but different mailings should be looked upon as two separate prosecutions or as mere parts of one continuing prosecution. We think that the purposes behind the speedy trial provisions contained in Rule 48(b) and in the Sixth Amendment require that the facts in this case be considered as one continuing prosecution.

In curtailing the length of criminal prosecutions, the law recognizes certain interests of the person accused and attempts to protect those interests. Speedy trial provisions seek, first, to prevent lengthy pre-trial imprisonment where the accused is unable to make bail, or pre-trial restriction of movement when bail is available.⁸ Second, and perhaps equally important, these provisions seek to minimize the anxiety and attendant evils which are invariably visited upon one under public accusation but not tried.⁹ Finally, they seek to insure that the ability of the accused person to answer the charge will not be impaired on account of lost witnesses and faded memories due to the passage of time.¹⁰ In this case, these protected interests were threatened by a public accusation of mail fraud which went unresolved for close to four years. The fact that the second indictment involved thirty incidents of mail usage which differed from the sixty-five originally alleged did not mitigate this threat. The purposes underlying the speedy trial provisions would be hopelessly frustrated if the prosecutor in a mail fraud case could evade his responsibility to prosecute with reasonable diligence by merely substituting for mailings originally alleged other mailings, not alleged, but nevertheless made in furtherance of the same scheme.

From the fact alone that the entire period, beginning with the Puerto Rican indictment, must be considered, however, it does not automatically follow that appellants have been denied a speedy trial under the Sixth Amendment, or that there has been unnecessary delay under Rule 48(b). These determinations require analysis of the reasons for the lengthy prosecution and evaluation of those reasons. In some cases, where the delay is uncommonly long and, therefore, the likelihood of prejudice quite high, the reason for the delay may be of little significance.¹¹ In this case, however, an analysis of the reasons must be made. The complexity of the alleged scheme and the number of witnesses needed to prove the charges indicate that a considerable time for preparation may have been justifiable. Moreover, after transfer to the District of Columbia it is reasonable to assume that some time was needed by the Government to make the changes necessitated by the new trial setting.

Two questions, however, arise from this record which went unanswered in the trial court because of the court's failure to consider the time preceding the second indictment. First, did the prosecutor exercise...