U.S. v. Colombo, 88-1010

• Decision Date: 03 May 1988
• Docket Number: No. 88-1010,88-1010
• Citation: 852 F.2d 19
• Parties: UNITED STATES of America, Appellant, v. Anthony R. COLOMBO and Joseph Colombo, Jr., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 19

852 F.2d 19

UNITED STATES of America, Appellant, v. Anthony R. COLOMBO and Joseph Colombo, Jr., Defendants, Appellees.

No. 88-1010.

United States Court of Appeals First Circuit.

Heard May 3, 1988.

Decided July 18, 1988.

Alan Hechtkopf, Tax Div., Dept. of Justice, with whom William S. Rose, Jr., Asst. Atty. Gen., Gary R. Allen and Robert E. Lindsay, Tax Div., Dept. of Justice, Washington, D.C., and Richard V. Wiebusch, U.S. Atty., Concord, N.H., were on brief for appellant.

Glenn G. Geiger, Jr., by appointment of the court, with whom Geiger & Heiser, Penacook, N.H., was on brief for defendant, appellee Anthony R. Colombo.

Patrick J. Devine with whom Law Offices of Allison & Devine, Plaistow, N.H., was on brief for defendant, appellee Joseph Colombo, Jr.

Before COFFIN and TORRUELLA, Circuit Judges, and FUSTE, ^* District judge.

TORRUELLA, Circuit Judge.

This appeal requires us to pass upon appellees' constitutional right to a speedy trial as guaranteed by the Sixth Amendment. ¹ The facts of this case reveal delays in bringing appellees to trial caused in large part by the government's mismanagement of appellees' indictment and other related pre-trial matters. Because the district court failed to properly identify and weigh the various relevant factors as set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972), we find that the district court abused its discretion in dismissing the indictment.

Background Facts

The alleged "buy a church" scheme

The following are the facts alleged by the government in this case.

Appellees Anthony R. Colombo and Joseph Colombo, Jr. are brothers, the first residing in Merrimack, New Hampshire, and the second in Lowell, Massachusetts. In October, 1979 they obtained the exclusive right for New England to sell "ministries" in an organization called the Life Science Church (LSC), which was founded in 1976 in San Diego, California. Through LSC, individuals could avoid tax liability by taking a "vow of poverty" and thereafter not paying income taxes, or by deducting as charitable contributions up to 50% of their contributions to LSC.

Under the first plan, the purchaser of a "ministry" was advised to take the "vow" and assign himself to a church, ideally the home of the "minister." The "minister" could then name his or her spouse as trustee, and divert the contributions to the trustee. However, the monies would continue to be controlled by the "minister" as "church accounts," allowing the "minister" to withdraw the funds to pay the "minister's" living expenses as non-taxable parsonage allowances.

Under the alternative plan the purchasers were advised to deduct 50% of their gross income as contributions to LSC "churches." An accounting procedure similar to that used in the "vow" situation was also followed by the "church" for payment of funds to the "ministers" for claimed personal expenses.

Anthony R. Colombo himself took the "vow" and avoided the payment of income taxes. The accounts involved included savings as well as stock brokerage accounts. Furthermore, he failed to report substantial income from the sale of LSC "ministries." Joseph Colombo purchased a ministry under the alternate plan. Both Colombo "ministers" withdrew sums totalling $210,066 in cash from an LSC account at Indian Head National Bank in Nashua, New Hampshire, and used the money to purchase personal items, including a $32,500 automobile.

The New York indictment

On June 25, 1984, an indictment was returned against appellees in the Southern District of New York charging that from October 1979 to June 1984, through the use of the LSC scheme, they had conspired to defraud the United States by impeding, impairing, obstructing and defeating the functions of the IRS in the ascertainment, computation, assessment and collection of the income taxes owed by themselves and other "ministers." There were also two individual counts against each brother charging substantive violations of attempting to evade income taxes in 1980 and 1981.

Thereafter motions to dismiss were filed by the Colombos alleging lack of jurisdiction by the grand jury to indict on the substantive offenses committed outside New York and also requesting that the conspiracy count be transfered to the District of Massachusetts. On August 9, 1984, the court ordered the cases transferred in toto to the District of Massachusetts, without ruling on the merits of the motions to dismiss.

The proceedings in Massachusetts

The case was docketed in the District of Massachusetts on August 20, 1984. After appointment of counsel for both appellees, the case was set for trial on November 13, 1984. On October 31, however, at the request of Anthony's counsel, the trial was continued to January 2, 1985, and thereafter, as a result of a similar request, another continuance was granted on February 1, 1985.

On motion of appellees the court then dismissed both substantive charges against Joseph and one substantive charge against Anthony on the ground that the New York grand jury lacked jurisdiction over these allegations. The government's motion to re-transfer the remaining counts back to the Southern District of New York was denied by the court on April 9, 1985.

On December 4, 1985, the court granted the government leave to dismiss "the indictment ... without prejudice to reprosecution in a judicial district having jurisdiction over all offenses originally charged in the indictment." Appellees thereafter moved for reconsideration of the dismissal without prejudice, claiming that the government was improperly seeking a more favorable forum in order to pretermit resolution of a pending Motion to Dismiss for Misuse of Process, and that the time allowed by the Speedy Trial Act has elapsed. The court denied the motion on December 3, 1985. ²

The New Hampshire proceedings

On April 9, 1987, the grand jury for the District of New Hampshire returned an indictment against appellees. The first count of the indictment charged that from October 23, 1979 until June 25, 1984 in the Districts of New Hampshire and Massachusetts appellees conspired to defraud the United States through the use of the LSC schemes. Counts II and III of the indictment charged Anthony R. Colombo with substantive criminal violations of the income tax laws in the District of New Hampshire, as did Counts IV and V against Joseph Colombo, Jr. All these charges were substantially the same as those made in the New York indictments.

On April 9 and May 20, 1987, counsel were appointed for Joseph and Anthony respectively, and trial commencement was set for June 23, 1987. On May 28, 1987, however, Anthony moved for a continuance of the trial date, which was granted initially to July 7, 1987. The continuance was then extended upon Anthony's motion to October 20, 1987.

On September 4, 1987, the appellees filed the motion to dismiss for lack of a speedy trial in violation of the Sixth Amendment. The district court granted this motion and dismissed the indictment on October 21, 1987. The court ruled that there was "uncontroverted evidence that the government was aware of possible tax evasion by defendants almost six years before the indictments" were filed in New Hampshire, that appellees had been represented by different counsel in New York, Massachusetts and New Hampshire, with "[e]ach successive new counsel ... incurr[ing] more onerous duties, more stale facts and inexorable pressure by the government and the courts to conform with the speedy trial act," and that "[t]he record discloses serious prejudice to the defendants." The court did not specify in any manner the nature of this "serious prejudice."

The government appeals from this dismissal.

The Constitutional Right to a Speedy Trial

The Sixth Amendment right to a speedy trial, though important, is a fairly limited right, with a fairly specific purpose:

The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

United States v. MacDonald, 456 U.S. 1, 8 (1981).

This right attaches upon an individual's indictment, arrest or official accusation. United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1500-01, 71 L.Ed.2d 696 (1981); United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459-60, 30 L.Ed.2d 468 (1971). It is well established that in considering whether this right has been violated the court should consider four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) the prejudice caused to the defendant as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972); United States v. Johnson, 579 F.2d 122, 123 (1st Cir.1978).

Except for a threshold showing of presumptively prejudicial delay, the court must

"regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant."

Barker, 407 U.S. at 533, 92 S.Ct. at 2193. In other words, the presence or absence of any one of them does not determine the result, we must still weigh all of the factors collectively before deciding whether a defendant's right to a speedy trial has been violated. Our first task, however, is to determine the length of the relevant delay, because "[u]ntil there is some delay which is presumptively...