United States ex rel. Solomon v. Mancusi

• Decision Date: 05 May 1969
• Docket Number: No. 300,Docket 32554.,300
• Parties: UNITED STATES of America ex rel. Kahmid SOLOMON, Relator-Appellant, v. Vincent R. MANCUSI, Warden of Attica Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

412 F.2d 88 (1969)

UNITED STATES of America ex rel. Kahmid SOLOMON, Relator-Appellant, v. Vincent R. MANCUSI, Warden of Attica Prison, Respondent-Appellee.

No. 300, Docket 32554.

United States Court of Appeals Second Circuit.

Argued January 10, 1969.

Decided May 5, 1969.

Herald Price Fahringer, Buffalo, N. Y. (Lipsitz, Green, Fahringer, Roll Schuller & James, Willard H. Myers, III, Buffalo, N. Y., on the brief), for appellant.

Hillel Hoffman, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., of the State of New York, New York City, Samuel A. Hirshowitz, First Asst. Atty. Gen.) for appellee.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

MOORE, Circuit Judge:

Kahmid Solomon, appellant herein, was indicted in the Erie County Court on April 21, 1964, for the sale of narcotics in violation of former § 1751 of the New York Penal Law, McKinney's Consol.Laws, c. 40. On the following day he was arraigned and an attorney, Daniel J. Kij, Esq., was assigned as counsel for his defense. At that time Kij was, and had been for nearly 13 months, an attorney associated with the Erie County Attorney's Office. Early in May, 1964, Kij received a notice of trial which informed him that he had been appointed as counsel for Solomon, and that the District Attorney of Erie County was ready to proceed with the trial at the earliest convenient date. Shortly thereafter, Kij appeared before a judge of the Erie County Court and asked to be relieved as appointed counsel for Solomon because of a possible conflict of interest in view of his official capacity with the Erie County Attorney's Office. Kij was informed that he would be "removed and replaced." Apparently, no other lawyer was assigned to take his place.

Kij never saw or spoke with Solomon. In June of 1964 Kij received two telephone calls from the Erie County jailer stating that Solomon wished to talk with him about his defense. Kij advised the jailer that he was no longer associated with the matter and that someone else had been appointed to take his place. Twice, notices of calendar calls were sent to Kij at the address of the law firm with which he had been associated before he had taken the position with the Erie County Attorney's Office. The first of these notices advised that the case would be moved for trial at a calendar call to be held on June 26, 1964; the second advised of a calendar call on September 3, 1964. Neither notice was received by Kij or Solomon. Subsequently, Kij's old office did inform him by telephone that a letter had been received from the County Court judge who had assigned and supposedly relieved Kij that the Solomon case had been scheduled for trial in November. Kij, in November, made a second appearance before the County Court, restated his position and was told that he had no further responsibility in the matter.

On January 13th, the County Court appointed new counsel for Solomon's defense, but this counsel informed the court that he was about to enter the hospital for a major operation and could not therefore assume such duties. Immediately thereafter Robert Rosinski, Esq., was appointed counsel and, on January 15, 1965, Solomon for the first time conferred with an attorney — Rosinski.

On March 16, 1965, Rosinski moved in the County Court to dismiss the indictment against Solomon on the grounds that he had been deprived of the assistance of counsel for nine months and had been denied a speedy trial. The court denied the motion on the grounds that there had been no showing that Solomon had been prejudiced by the delay, or that Rosinski's investigation of the matter had been in any way impeded. Solomon was thereafter convicted following a trial by jury of the crime of selling a narcotic drug. On April 12, 1965, he was sentenced to Attica State Prison for not less than five nor more than ten years. The conviction was affirmed without opinion by the Appellate Division on March 31, 1966 (25 A.D.2d 719, 269 N.Y.S.2d 1014) and the New York Court of Appeals denied leave to appeal on July 12, 1966.

Having exhausted his state remedies, Solomon shifted to the federal forum by instituting a habeas corpus proceeding in the United States District Court for the Western District of New York. His petition once again raised the questions of excessive delay and denial of the assistance of counsel. The district court denied Solomon's writ but granted a certificate of probable cause for appeal.

There is no dispute in this case that Solomon was detained for eleven months between his arraignment and trial. During the first nine months of this detention, he did not have the assistance of counsel, for the reasons set forth above. He now contends, as he did in his previous state and federal papers, that he was denied his Sixth Amendment rights to a speedy trial and to the assistance of counsel.

This circuit has looked to four factors in deciding whether there has been a violation of the right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the prejudice to the defendant; and (4) waiver by the defendant. See Note, 57 Colum. L.Rev. 846, 861-63 (1957); United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963); United States v. Simmons, 338 F.2d 804, 807 (2d Cir. 1964); United States v. Tortorello, 391 F.2d 587, 589 (2d Cir. 1968) (Per Curiam); United States v. Richardson, 291 F.Supp. 441, 444 (S.D.N.Y. 1968). Looking to the first of these factors, we note that dismissal has rarely been granted for a delay of less than several years. Note, 51 U.Va.L.Rev. 1587, 1591, f. 20 (1965). This circuit has held that "the unexcused delay of approximately four years was an undue delay within the meaning of the Sixth Amendment even though appellant has not shown that it prejudiced him in the presentation of his defense." United States v. Lustman, 258 F.2d 475, 478 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). In Lustman, the court denied appellant relief on the ground that he had waived his constitutional right to a speedy trial by not promptly asserting that right. And in the recent case of United States v. Richardson, supra, 291 F.Supp. at 444 the court, citing Lustman, noted that a period of four years — the relevant delay in that case — was enough to satisfy the first factor. We know of no case, and none has been brought to our attention, in which a delay of less than a year has been thought to satisfy the "length of delay" requirement.

Solomon, citing the language in Lustman that "a showing of prejudice is not required when a criminal defendant is asserting his constitutional right under the Sixth Amendment," 258 F.2d at 478, suggests that there is a rule in this circuit that undue delay in bringing a defendant to trial may constitute a Sixth Amendment violation per se, without a showing of prejudice. Even if Lustman in fact still stated the appropriate rule, such would not necessarily be applicable in the instant case since the delay there held to be per se violative of the Sixth Amendment was four years and there was no indication in that case that the rule would apply to shorter delays. Later decisions of this court, however, indicate that a showing of prejudice is required in cases involving delay between arrest and trial. In United States v. Kabot, 295 F.2d 848, 852-853 (2d Cir. 1961), cert. denied 369 U.S. 803, 82 S.Ct. 641, 7 L.Ed.3d 550 (1962) the court, finding that a two-and-one-half year delay between arrest and trial for which the defendant was partly responsible was not unreasonable, noted that "there was, moreover, no showing of prejudice to appellant from the delay." In United States ex rel. Von Cseh, supra, 313 F.2d at 623, a showing of prejudice was one of the four factors listed as relevant in examining speedy trial cases. See also United States v. Kelly, 349 F.2d 720, 768 (2d Cir. 1965); United States v. Simmons, supra, 338 F. 2d at 808; United States v. Tortorello, supra, 391 F.2d at 589; and United States v. Richardson, supra, 291 F.Supp. at 444 which, while noting that a four-year delay was long enough to satisfy the first of the four speedy trial requirements, was "careful to note that mere lapse of time does not itself establish a violation of the Sixth Amendment". In addition, cases construing Rule 48(b), Federal Rules of Criminal Procedure, which authorizes the dismissal of an indictment "if there is unnecessary delay in bringing a defendant to trial * * *," hold that "there must be a showing that the delay prejudiced the defendant's ability to rebut the government's case, or that the delay was caused by oppressive governmental action." United States v. Dooling, 2 Cir., 406 F.2d 192, 196 (decided January 21, 1969). See also Fleming v. United States, 378 F.2d 502, 504 (1st Cir. 1967), noting that "a mere lapse of time is not enough to establish denial of a speedy trial."

Solomon contends that his defense was in fact prejudiced by the delay herein, alleging as he did before the state court and the district court that recollection of events dims with the passage of time, as does the ability to remember possible witnesses for his defense. It is further urged that the failure to appoint counsel to talk with Solomon constituted prejudice, in that no one trained in the law could prepare the defense, muster witnesses and investigate events so long after the arrest and indictment. But in his previous state and federal appearances, and now before this court, Solomon has been unable to make a showing, beyond these allegations, of any particular way in which he was prejudiced. Except in cases such as Lustman, supra, where "the delay might be so substantial as to be prima facie prejudicial * * *," United States v. Simmons, supra, 338 F.2d at 808, a more particularized showing of prejudice than a mere allegation of the dimming of the memory is required. United States ex rel. Von Cseh, supra, 313 F.2d at 624, noting that "Von Cseh has not demonstrated that any...