United States v. Bailey

• Court: U.S. District Court — Middle District of Florida
• Writing for the Court: REED
• Citation: United States v. Bailey, 399 F.Supp. 526 (M.D. Fla. 1975)
• Decision Date: 08 August 1975
• Docket Number: No. 73-71.,73-71.
• Parties: UNITED STATES of America v. F. Lee BAILEY.

399 F. Supp. 526

UNITED STATES of America v. F. Lee BAILEY.

No. 73-71.

United States District Court, M. D. Florida, Orlando Division.

August 8, 1975.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude Tison, William M. James, Jr., Tampa, Fla., for plaintiff.

F. Lee Bailey, pro se, Henry Gonzalez, Tampa, Fla., for defendant.

MEMORANDUM OF DECISION

REED, District Judge.

I. Introduction:

On 30 July 1975, the Court heard two motions filed by the defendant Bailey. One was a Motion to Dismiss for Failure of the Government to Provide a Speedy Trial. The other was an Alternative Motion for a Speedy Trial. The former was filed on 19 June 1975; the latter on 1 July 1975. Evidence was taken at the hearing.

II. Background:

On 18 May 1973, the indictment was returned. The defendant Bailey was one of thirteen defendants joined therein. He was charged in each of the indictment's twenty-eight counts. Twenty-seven counts charged defendant Bailey with mail fraud. The last count of the indictment charged him with conspiracy to commit mail fraud.

At an early date, the very nature of the indictment with its multiple but similar claims and numerous defendants inspired a judicial forecast of procedural and substantive problems. On 23 May 1973, the defendant Bailey moved for a speedy trial and, on 4 June 1973, a severance. In passing on these motions, the then presiding judge of this Court prophetically observed:

"Now, the Government proceeds it seems to me at its own peril in this respect because of the duration of the trial, if the case goes eight to fourteen weeks, and it becomes necessary to sever as to certain defendants . . . It might be that a trial of that duration as to a defendant even if severed from the trial might preclude a retrial . . . . So I do not at this time grant the severance, however, I make that ruling with the caveat as I have just stated."

III. A Chronology of Events and Pertinent Facts Appearing from the Record or by Reasonable Inference:

The trial of all defendants got under way on 17 September 1973. As to the defendant Bailey the trial terminated in his severance seven months later when, on 25 April 1974, it became apparent that essential testimony from a codefendant would not be available to the defendant Bailey in the context of a joint trial. After eight and one-half months of trial and the receipt in evidence of some one thousand exhibits and the testimony of approximately one hundred sixty witnesses, the epic production ended for the other defendants on 30 May 1974 in a mistrial because the jury was unable to reach a verdict.

Immediately after the mistrial, the defendant Bailey took steps to determine the Government's position with respect to retrial. On 4 June 1974, the defendant Bailey indicated to officials in the Department of Justice that he desired to have a speedy retrial, if a retrial was to be had at all, and was told by such officials that the Government's position with respect to retrial would be formulated within thirty days. After the lapse of thirty-five days with no response forthcoming from the Government, the defendant Bailey prepared two motions — one a motion to dismiss on the ground that a retrial would violate his right to immunity from double jeopardy; the other, an alternative motion for speedy trial. These motions were filed on 16 July 1974 and heard by the Court on 23 August 1974. The Government took no position with respect to the latter motion. Both motions were denied by an order entered 30 August 1974.

The Court's order of 30 August 1974 was appealed to the United States Court of Appeals for the Fifth Circuit on 9 September 1974. The mandate from the Fifth Circuit came down on 5 June 1975. The accompanying opinion indicated that the appellate court had concluded that it was without jurisdiction over the appeal because of the interlocutory nature of the order appealed from — a position urged by the Government. Thereafter, a petition for certiorari was filed in the Supreme Court on 9 June 1975. The petition is still pending. During the appellate process, the defendant sought no stay order to deter prosecution pending resolution of the appeal.

At no time since the severance on 25 April 1974 has the case against the defendant Bailey been set for a new trial. The trial of the case against the other defendants has been set for 4 August 1975. At the hearing before this Court on 30 July 1975 the Government advised the Court that it expects the trial of the other defendants to last approximately four and one-half months and that it desires the Bailey trial to commence thirty to sixty days thereafter. Somewhat similar advice was given by the Government to the Honorable Terrell Hodges on 19 June 1975 at a status conference following which the severed case as to the defendant Bailey was transferred to the undersigned for further proceedings. From a practical standpoint, this case cannot be tried, because of the pendency of the trial of the other defendants, until mid-January 1976.

By way of summary, the following appears to be an accurate resume of the relevant time periods:

         Period                        Event                   Lapsed Time
                     9/17/73-5/30/74     Trial from start to mistrial          8 1/3 months
                     4/25/74-9/9/74      From severance to Notice of Appeal    4½ months
                     9/9/74-6/5/75       From Notice of Appeal to Mandate      9    months
                     4/25/74-7/30/75     From severance to hearing on Motion
                                          to Dismiss                           15   months
                     4/25/74-1/15/76     From severance to anticipated date
                                          for retrial                          20 2/3 months
                     5/18/73-1/15/76     From indictment to anticipated date
                                          for retrial                          32   months
                

The prosecuting attorneys have made no affirmative effort to secure or delay the setting of the case for retrial of the defendant Bailey or to establish any sequence for the new trials. The Government did, however, adopt the position that it favored a deferral of the retrial of the defendant Bailey until after the conclusion of the trial of the other defendants. The reason for this position was an assumption by the Government's attorneys that the quality of the witnesses' testimony would deteriorate with each succeeding trial and this assumed deficit, from a public-interest standpoint, would be more acceptable in the trial of a single defendant than in the joint trial of the other defendants. Neither the Government preference nor the reason therefor was communicated to this Court, until the hearing on the present motion on 30 July 1975.

The defendant Bailey, a practicing trial lawyer, has suffered serious professional, financial and emotional distress as a result of the delay. For example, personnel in the defendant's law firm has diminished and his professional income has decreased. He has lost clients and been unable to make firm commitments to court or client respecting his ability to meet trial dates. Defendant Bailey is paying the cost of his own defense. To the extent, therefore, that the delay has impaired his financial resources, his ability to present his defense may likewise have been affected.

III. Legal Analysis:

The Court's function in passing on a motion to dismiss grounded on a denial of a defendant's sixth amendment right to speedy trial is to attempt to balance the conduct of the prosecution against that of the defendant in arriving at a decision as to whether or not such right has in fact been denied. In so doing, the Court must consider the length of delay, the reasons for the delay, whether the defendant has asserted his right to speedy trial, what, if any, prejudice has accrued to the defendant, and any other relevant factors. Barker v. Wingo, 407 U.S. 514, 1972, 92 S.Ct. 2182, 33 L.Ed.2d 101; Moore v. Arizona, 414 U.S. 25, 1973, 94 S.Ct. 188, 38 L.Ed. 2d 183; Prince v. State of Alabama, CA 5, 1975, 507 F.2d 693; United States v. Shepherd, CA5, 511 F.2d 119; Turner v. Estelle, CA5, 1975, 515 F.2d 853.

Usually the length of the delay is measured from the indictment to the time of trial. See Prince v. State of Alabama, supra, at page 701. In the present case, the time lapse from indictment to...