U.S. v. Roberts, 836

• Decision Date: 09 April 1975
• Docket Number: D,No. 836,836
• Citation: 515 F.2d 642
• Parties: UNITED STATES of America, Appellant, v. Tommy ROBERTS, Appellee. ocket 75-1052.
• Court: U.S. Court of Appeals — Second Circuit

Page 642

515 F.2d 642

UNITED STATES of America, Appellant, v. Tommy ROBERTS, Appellee.

No. 836, Docket 75-1052.

United States Court of Appeals, Second Circuit.

Argued March 17, 1975.

Decided April 9, 1975.

Alvin A. Schall, Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the Eastern District of New York, Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellant.

Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for appellee.

Before SMITH and TIMBERS, Circuit Judges, and BRYAN, District Judge. ^*

J. JOSEPH SMITH, Circuit Judge:

On January 20, 1975, the United States District Court for the Eastern District of New York, John F. Dooling, Judge, dismissed an indictment charging Tommy Roberts with ten counts of possessing stolen mail in violation of 18 U.S.C. § 1708. ¹ The court rested its order on the defendant's constitutional right to a speedy trial under the Sixth Amendment. On appeal, the United States challenges the dismissal on two grounds, each of which it contends offers an independent basis for reversal. First, since Roberts agreed shortly after his indictment to plead guilty to reduced charges and therefore had no expectation of actually going to trial, the Constitution's speedy trial guarantee afforded him no protection. Secondly, assuming arguendo that the Sixth Amendment does ensure a speedy disposition to persons awaiting only the opportunity to plead guilty, its mandate was not violated in this instance. We find neither contention persuasive and affirm the order below.

Roberts was indicted on October 2, 1973, for unlawful possession of stolen mail "on or about" May 1, 1973. Along with related cases involving Alonzo and Henry Smith, Roberts' case was assigned to United States District Judge Anthony J. Travia of the Eastern District of New York. Although the defendant pleaded not guilty when arraigned before Judge Travia on October 15, he had by then concluded an arrangement with the government to plead guilty to a misdemeanor information. The plea of not guilty at the arraignment is explained by the parties' agreement to defer entry of the guilty plea until the Smith cases were resolved a resolution not realized until February 14, 1975. About the time of Roberts' arraignment, Judge Travia embarked upon a trial which required the court's almost undivided attention for the next nine months. The Smith cases thus remained quiescent and, as a result, Roberts' entry of a guilty plea was held in abeyance. During that nine-month period, moreover specifically, on May 21, 1974 Roberts' 26th birthday passed and with it expired the defendant's eligibility for the advantages (primarily, probation and the opportunity to have the conviction erased from his record) of a sentence imposed on him as a young adult offender under the Youth Corrections Act. 18 U.S.C. §§ 4209, 5010(a), 5021. ² Upon conclusion of the lengthy trial, Judge Travia left for an extended vacation and, not long after, resigned from the bench. Both the defendant's and the Smiths' cases were then transferred to Judge Dooling, who on November 13, 1974, called a pretrial conference in Roberts' case to set a date for trial. At the conference, the defendant raised for the first time his right to a speedy trial. One month later, Roberts formally moved to dismiss the indictment for undue delay and, after argument by counsel for both sides and an offer by the government to proceed with the plea bargain despite the still-unresolved status of the Smith cases, Judge Dooling granted the motion on Sixth Amendment grounds. ³ Several weeks afterward, the government and the Smiths successfully concluded months of negotiation for a plea bargain covering postal offense charges related to Roberts' case and possible future indictments for conspiracy to obtain by fraud federally-insured mortgage loans (see 18 U.S.C. §§ 371, 1010).

I.

The appellant's attempt to limit the protection of the speedy trial clause to defendants awaiting trial adopts a too literal reading of that clause. The Sixth Amendment's guarantee of a speedy trial gives recognition to 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. In Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (1957), the Supreme Court was willing to assume arguendo "that sentence is part of the trial for purposes of the Sixth Amendment." Since the case currently under review had not, at the time of Roberts' motion to dismiss, even reached the stage at which a defendant must decide whether to plead guilty or proceed forthwith to trial, we need not construe "trial" as broadly as Pollard intimates may be appropriate. We hold, therefore, that the speedy trial clause applies with full force at least until a guilty plea has been entered by the defendant and accepted by the court. ⁴

II.

In challenging the district court's conclusion that Roberts was denied his constitutional right to a speedy trial, the government does not contend that Judge Dooling applied an incorrect standard. And obviously he did not, for in his memorandum opinion dated January 20, 1975, ⁵ he adhered to the direction of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), to assess "(l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." The government takes issue, then, with the district court's understanding of the application of this multi-factor balancing test to the circumstances of Roberts' case. Close attention to the form assumed by these four variables in the context of Roberts' case, however, fully supports Judge Dooling's decision that the indictment must be dismissed. ⁶

At the time of Roberts' motion to dismiss, the post-indictment delay was considerably shorter than others countenanced by this court. See, e. g., United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973) (per curiam ) (over four years); United States v. Saglimbene, 471 F.2d 16 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2146, 36 L.Ed.2d 686 (1973) (six years). On the other hand, as the Court made clear in Barker v. Wingo,supra, 407 U.S. 514 at 530-31, 92 S.Ct. 2182 at 2192, 33 L.Ed.2d 101 a delay not patently unreasonable in length may nonetheless be intolerably long in light of "the peculiar circumstances of the case." And a peculiarity of the instant case highly relevant in this regard was the government's ability to predict with great certainty that Roberts would be seriously prejudiced in the event that he was not permitted to plead guilty prior to his 26th birthday. After that date, Roberts lost his right, see Dorszynski v. United States,418 U.S. 424, 443-44, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), to be considered by the sentencing judge for youthful offender treatment. Significantly, loss of the right to be considered for youthful offender treatment amounted in this case to little less than loss of the right to receive such treatment: Since this was Roberts' first offense and he had demonstrated a willingness to cooperate with the prosecution, there was, in the district court's view, a "real and substantial" possibility that he would receive the notable advantages of youthful offender treatment. ⁷ Due regard for the district court's closer contact than ours to the facts and personalities in this case as well as its greater familiarity with the sentencing practices in its district requires that we defer to Judge Dooling's prediction of probable sentencing treatment.

In terms of the Barker v. Wingo balance, the importance of accepting the district court's view on this matter is two-fold. Most obviously, it means that the prejudice factor is substantial: As a result of the delay, Roberts lost an excellent opportunity to be given, upon pleading guilty, a youthful offender probationary sentence and the chance to have the conviction expunged from his record. Deference to the district court's view on Roberts' probable qualification for youthful offender status, furthermore, also has the effect of making the length of delay factor a weighty one in Roberts' favor: To allow the more than seven months between Roberts' indictment and his birthday to pass was egregious delay in light of the virtual certainty that serious harm would befall Roberts as a consequence.

The reason for delay is also a factor favoring dismissal of the indictment on speedy trial grounds. On one level, the delay may be seen simply as a byproduct of Judge Travia's calendar and his decision to resign from the bench. Though institutional delays are chargeable to the government, see United States v. West, 504 F.2d 253, 256 (D.C.Cir. 1974), they are not appropriately treated with the same severity as delays procured by the prosecution. To assimilate the delay experienced by Roberts to neutral, institutional causes, then, limits the force of his speedy trial claim. Further analysis indicates, however, that this characterization of the delay would limit the defendant's claim quite unjustly. For, as the district court found, ⁸ the government plainly had an interest in tardy disposition of Roberts' case and played an important role in procuring the delay experienced by the defendant.

Thus, Roberts was ready to plead guilty back in October, 1973. The prosecution did not permit him to do so, however, because it wanted to make certain that Roberts kept his part of the plea bargain (testifying, if necessary, against the Smiths) before it delivered the consideration promised on its part (replacing the felony indictment with a misdemeanor information). The threat of prosecution on a still alive felony indictment was therefore a valuable weapon to ensure that Roberts would testify as promised, and the government was not about to relinquish that coercive device by giving Roberts his...