U.S. v. Dreyer

• Decision Date: 29 March 1976
• Docket Number: No. 75-1835,75-1835
• Citation: 533 F.2d 112
• Parties: UNITED STATES of America v. Joel P. DREYER et al. Appeal of Audrey Ellen GOLDSMITH.
• Court: U.S. Court of Appeals — Third Circuit

Page 112

533 F.2d 112

UNITED STATES of America v. Joel P. DREYER et al.

Appeal of Audrey Ellen GOLDSMITH.

No. 75-1835.

United States Court of Appeals, Third Circuit.

Argued Feb. 12, 1976.

Decided March 29, 1976.

Alan Silber, East Orange, N. J., for appellant.

Jonathan L. Goldstein, U. S. Atty., Newark, N. J., for appellee; Brian D. Burns, Asst. U. S. Atty., on the brief.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

We are asked to consider the claim of appellant, Audrey Ellen Goldsmith, that her sixth amendment right to a speedy trial was violated by the Government's bringing her to trial twenty-nine months after her indictment. ¹ The United States District Court for the District of New Jersey denied Goldsmith's motion to dismiss on this ground. Thereafter, she stipulated to the facts contained in Count I of a four-count indictment and was tried and convicted on that count by the district court judge sitting without a jury. ² We hold that Goldsmith was denied a speedy trial and reverse, directing the district court to vacate the sentence and dismiss the indictment, as required by Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

I.

The Government's brief concedes that the length of the delay in this case "should trigger further inquiry." Our inquiry must begin with the chronology of events in the twenty-nine month period. Goldsmith owned a camper which was shipped from Belgium to Port Elizabeth, New Jersey, with approximately 856 pounds of hashish in its storage area. She met the camper at Port Elizabeth in late August 1972, drove it to Iowa, turned the vehicle over to a co-conspirator, and flew to California. Goldsmith was arrested in California where she was indicted a few weeks later. The indictment charged her and the co-conspirator with conspiracy to possess, import, and distribute hashish.

The United States Attorney in California then communicated with his counterpart in New Jersey to inform him that Goldsmith's lack of contacts with the camper in California would make the case difficult to prove there. As a result, on November 19, 1972, a one-count indictment charging Goldsmith with importing hashish was returned in New Jersey. Venue of the California indictment was transferred to New Jersey in February 1973.

In March of that year, a superseding New Jersey indictment was returned. That indictment charged Goldsmith and three co-defendants with four counts of importation, possession with intent to distribute, and conspiracy to import and to possess hashish.

The Government and defense counsel agreed on a consent order for discovery on May 23, 1973, which the Government did not file until six weeks had passed. On August 10, 1973, defense counsel wrote to the Assistant United States Attorney for a stamped copy of the consent order and to inform him that Goldsmith "has been extremely distraught and emotionally upset as a result of the long delay and pressures in this case."

The consent order was never used because a second superseding indictment against Goldsmith and eight codefendants was returned on December 19, 1973. This indictment ultimately formed the basis for trial in March 1975. It charged the same offenses as the March 1973 indictment ³ but included five additional co-defendants and five additional overt acts in furtherance of the conspiracy, none of which was alleged to have been committed by Goldsmith.

Consent orders for discovery were entered in April 1974, but the Government did not fully comply with the orders until the case had been listed for trial six months later.

In November 1974, defense counsel and the Assistant United States Attorney set a peremptory trial date for March 1975. A few weeks later, Goldsmith unsuccessfully sought to have the second superseding indictment dismissed as to her on the speedy trial ground. In support of her motion, Goldsmith introduced evidence of the psychological damage which she contended had been wrought by the long delay in this case.

Although the district court thought that the delay "is much too long," it professed skepticism toward Goldsmith's allegations of prejudice. Furthermore, it concluded that she had not demonstrated the sort of prejudice against which the speedy trial guarantee could be invoked. We believe this conclusion reflected a too restricted view of the scope of the guarantee.

II.

The district court properly looked to the "balancing test" of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which is the jumping-off point for any analysis of a speedy trial claim. The Barker Court isolated four factors which are significant in weighing the claim: (1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) prejudice to the defendant. The Court emphasized that it did not intend the list to be exhaustive nor any one factor dispositive and that other relevant circumstances should also be considered.

Our analysis begins with the district court's treatment of the prejudice factor. In its oral opinion denying Goldsmith's motion to dismiss the indictment, the district court expressed its understanding of "prejudice" within the meaning of Barker:

(B)y prejudice, I mean the impairment of the ability of the defendant to defend this case on the merits.

Nothing has been presented to me on which I could posit a finding (that) her ability to defend has been in any way impaired. No witness she says essential has died. No documents have been destroyed. Nothing has happened to make a trial held not less than fair to her.

This reading of Barker, which confines "prejudice" to impairment to the defense, was explicitly rejected by the United States Supreme Court in Moore v. Arizona, 414 U.S. 25, 26-27, 94 S.Ct. 188, 189-190, 38 L.Ed.2d 183, 185-186 (1973) (per curiam). There the Court quoted approvingly from Justice White's concurring opinion in Barker v. Wingo, supra, 407 U.S. at 537, 92 S.Ct. at 2195, 33 L.Ed.2d at 121:

Inordinate delay "wholly aside from possible prejudice to a defense on the merits, may 'seriously interfere with the defendant's liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.' United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty." ⁴

The majority in Barker also recognized that an accused is "disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility." Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. ⁵ A proper reading of Barker, therefore, must include within the meaning of "prejudice" any threat to what the Second Circuit recently has termed "an accused's significant stakes psychological, physical and financial in the prompt termination of a proceeding which may ultimately deprive him of life, liberty or property." United States v. Roberts, 515 F.2d 642, 645 (2d Cir. 1975).

The speedy trial guarantee has generally been regarded as a shield against personal prejudice to a defendant. Strunk v. United States, 412 U.S. 434, 439, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61 (1973); Dickey v. Florida, 398 U.S. 30, 41-42, 90 S.Ct. 1564, 1570-71, 26 L.Ed.2d 26, 34 (1970) (Brennan, J., concurring); Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 577, 21 L.Ed.2d 607, 612 (1969); Klopfer v. North Carolina,, 386 U.S. 213, 222, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 7 (1967); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630 (1966). Some decisions appear to express more solicitude toward this sort of prejudice than toward impairment of a defense.

Indeed, erosion of a defense by passage of time may occur even when there is a delay between the commission of the offense and the criminal prosecution, whether by arrest, formal indictment, or information. Nevertheless, the speedy trial guarantee is not applied to such delay. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205, 44 U.S.L.W. 3327 (Dec. 1, 1975). The Court in United States v. Marion, supra, explained:

Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense.

404 U.S. at 320, 92 S.Ct. at 463, 30 L.Ed.2d at 478. The Court went on to emphasize the disruptions to a defendant's life which begin with his arrest and indictment in the language quoted by Justice White in Barker, supra.

This court, following the avenue marked out in Marion, paid particular attention to evidence of a "severe anxiety reaction" by prolonged confinement of a defendant awaiting trial in United States ex rel. Stukes v. Shovlin, 464 F.2d 1211, 1214-15 (3d Cir. 1972). The Shovlin decision took account of the factors listed in Barker, which had been handed down one month before, when it stated that "(t)he creation of such anxiety in a defendant is one of the evils against which the Sixth Amendment is designed to protect." Id. at 1215.

A recent decision by the United States Court of Appeals for the District of Columbia Circuit accords with Shovlin. In United States v. Brown, 172 U.S.App.D.C. 92, 520 F.2d 1106 (1975), the court declared of a defendant making a speedy trial claim:

His prejudice of a personal character is clear. This kind of prejudice, though not the same as that caused by the death of a witness or other loss of evidence, which may include loss of the memories of witnesses, is firmly...