U.S. v. Infelise, s. 91-1155

• Decision Date: 30 May 1991
• Docket Number: Nos. 91-1155,91-1156,s. 91-1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rocco Ernest INFELISE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 103

934 F.2d 103

UNITED STATES of America, Plaintiff-Appellee, v. Rocco Ernest INFELISE, et al., Defendants-Appellants.

Nos. 91-1155, 91-1156.

United States Court of Appeals, Seventh Circuit.

Submitted March 11, 1991.

Decided May 30, 1991.

Mitchell A. Mars, Jeffrey M. Johnson, Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Patrick A. Tuite, Kevin E. Milner, Chicago, Ill., Bruce Cutler, New York City, Robert A. Novelle, Serpico, Novelle, Dvorak & Navigato, Chicago, Ill., Robert F. Simone, Philadelphia, Pa., Allan A. Ackerman, Chicago, Ill., for defendants-appellants.

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The defendants, who are awaiting their federal criminal trial for a variety of racketeering acts, appeal from the district court's denial of their motion to revoke their pretrial detention. The defendants have been detained since February 1990. Their trial is scheduled for September 4, 1991--a firm date--and is expected to last five months. So by the time the trial is over, the defendants will have spent two years in jail without having been found guilty of a crime. They argue that such a delay is a denial of due process of law.

The government cannot be permitted to defeat the restrictions with which the Bill of Rights hedges about criminal prosecutions by indefinite delay in bringing defendants to trial. United States v. Salerno, 481 U.S. 739, 747 n. 4, 107 S.Ct. 2095, 2102 n. 4, 95 L.Ed.2d 697 (1987); United States v. Ojeda Rios, 846 F.2d 167 (2d Cir.1988) (per curiam); United States v. Accetturo, 783 F.2d 382, 388 (3d Cir.1986). But length of detention cannot be the only consideration, United States v. Melendez-Carrion, 820 F.2d 56 (2d Cir.1987), not only because some criminal cases are inherently complex and difficult to bring to trial quickly, and not only because some defendants awaiting trial are highly dangerous or highly prone to flee unless confined, but also because the extent of delay is to some extent within the control of the defendants themselves, and they cannot be allowed to manufacture the grounds for their constitutional argument. If judge and prosecutor are doing all they reasonably can be expected to do to move the case along, and the statutory criteria for pretrial detention are satisfied, then we do not think a defendant should be allowed to maintain a constitutional challenge to that detention. To get to first base, therefore, he must show that either the prosecution or the court has unnecessarily delayed in bringing the case to trial--maybe the prosecutor is stalling because he realizes his case is so weak that pretrial detention is the only punishment in fact he can impose on the defendant.

The defendants in this case have failed to make the required showing. There are twenty defendants all told (only four of whom--the four appellants--are being detained before trial), they are accused of a variety of serious crimes, the government's case is not weak, and the evidence is voluminous. We do not understand the defendants to be arguing that the government should not have joined all twenty, or that it has taken any other unnecessary step to delay the trial, or that the court system is responsible for the delay. The delay appears to be due to the time that the defendants' counsel are taking to prepare their clients' defense. Of course we do not criticize them for preparing as...