United States v. Blaustein

• Decision Date: 19 January 1971
• Docket Number: 67 Crim. 667.,No. 66 Crim. 604,66 Crim. 604
• Citation: 325 F. Supp. 233
• Parties: UNITED STATES of America v. Ira BLAUSTEIN, Defendant. UNITED STATES of America v. Harry S. STONEHILL and Ira Blaustein, Defendants.
• Court: U.S. District Court — Southern District of New York

325 F. Supp. 233

UNITED STATES of America v. Ira BLAUSTEIN, Defendant.

UNITED STATES of America v. Harry S. STONEHILL and Ira Blaustein, Defendants.

Nos. 66 Crim. 604, 67 Crim. 667.

United States District Court, S. D. New York.

January 19, 1971.

Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., for the U. S.; Richard A. Givens, Asst. U. S. Atty., of counsel.

Williams & Connolly, Washington, D. C., for Ira Blaustein; Vincent J. Fuller, Frank X. Grossi, Jr., Washington, D. C., of counsel.

Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, for Harry S. Stonehill; Simon H. Rifkind, Jay H. Topkis, George P. Felleman, Neil H. Cogan, New York City, Trammell, Rand & Nathan, Hans A. Nathan, Washington, D. C., of counsel.

MEMORANDUM

BONSAL, District Judge.

Defendants Harry Stonehill and Ira Blaustein move to dismiss the within indictments as against them on the ground that they have been denied a speedy trial.

In a one-count indictment filed on August 1, 1966 (the 1966 indictment), defendant Blaustein is charged with wilfully attempting to evade and defeat a large part of the Federal corporate income tax due and owing by Universal New York, Inc. (Universal) for the fiscal year ending March 31, 1960 in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2, by filing, or causing to be filed, a false and fraudulent return which understated the corporate income tax due and owing by the sum of $62,433.78.

In a four-count indictment filed on July 26, 1967 (the 1967 indictment), both defendants are charged in Count One with conspiring to violate 26 U.S.C. § 7201 and to defraud the United States in connection with the corporate income tax returns of Universal filed for the fiscal years ending March 31, 1959, 1960, and 1961 — in violation of 18 U.S. C. § 371. Five of the overt acts alleged to have been committed in furtherance of the conspiracy are alleged to have taken place in 1958; three in 1959; one in 1960 and two in 1961. The remaining three counts in the 1967 indictment charge both defendants with attempting to evade and defeat a large part of the Federal corporate income tax due and owing by Universal for the fiscal years ending March 31, 1959, 1960, and 1961 in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2, by filing, or causing to be filed, false and fraudulent returns which understated the corporate income tax due and owing for the fiscal years 1959, 1960, and 1961 by the sums of $25,174.85, $62,433.78, and $30,750.61, respectively. Count Three of the 1967 indictment is identical to the 1966 indictment, with the exception of the inclusion of defendant Stonehill as a defendant.

During the years embraced by the indictments (1958-1961), defendant Blaustein was the General Manager, and both defendants were shareholders, of Universal, which was located in New York. During these years, Universal did business with various Philippine companies in which defendant Stonehill had an interest.

On November 2, 1966, defendant Blaustein pleaded not guilty to the 1966 indictment, and on December 12, 1966, he moved to dismiss the 1966 indictment on the ground that it was returned more than six years after the filing of the tax return in question, for a bill of particulars, and for discovery and inspection. On September 20, 1967, both defendants pleaded not guilty to the 1967 indictment, and the 1966 indictment was marked off the calendar. On October 19, 1967, defendant Blaustein moved to dismiss the 1967 indictment on the grounds of the statute of limitations and unnecessary pre-indictment delay in violation of his right to a speedy trial; for suppression of evidence; for a bill of particulars; and for discovery and inspection.¹ Defendant Stonehill made similar motions on October 25, 1967. All the motions were argued before Judge Frankel on February 28, 1968, and the 1966 and 1967 indictments were marked off the calendar on March 29, 1968.

Judge Frankel's decisions on the several motions were given in open court on February 28, 1968, and by memorandum and order filed on May 9, 1968.

As to Blaustein:

Judge Frankel dismissed Counts Two and Three of the 1967 indictment on the ground that the statute of limitations had run, and denied his motion to dismiss Counts One and Four of the 1967 indictment without prejudice to renewal at trial.

As to Stonehill:

Judge Frankel denied defendant Stonehill's motion to dismiss the 1967 indictment.

As to both defendants:

Judge Frankel denied the remaining motions, including the motions to dismiss the 1967 indictment because of undue delay in returning it. The motions to suppress as evidence materials seized in the Philippines in 1962 were denied, without prejudice to renewal shortly in advance of trial. Judge Frankel directed the Government to serve a bill of particulars and to produce certain enumerated documents for inspection and copying. Included among the documents to be produced were books, records, correspondence and memoranda, seized in the Philippines, which the Government "intends to use in connection with this trial."

A bill of particulars was served on the defendants on June 5, 1970, 25 months after Judge Frankel's order, and the Government produced the Philippine documents for inspection in August, 1970, 27 months after Judge Frankel's order.

Awaiting trial are the 1966 indictment and Counts One and Four of the 1967 indictment against defendant Blaustein, and the 1967 indictment against defendant Stonehill.

On November 9, 1970, the defendants made the instant motions to dismiss the remaining charges in the 1966 and 1967 indictments against them on the ground that they have been denied a speedy trial. Defendant Blaustein's motion was made pursuant to Rule 12(b), F.R.Cr.P., "on the ground that defendant has been denied his right to a speedy trial guaranteed by the Sixth Amendment of the Constitution² and by Rule 48(b) of the Federal Rules of Criminal Procedure."³ Defendant Stonehill's motion was made pursuant to Rule 48(b), F.R.Cr.P., "on the ground that he has been denied a speedy trial in violation of his rights guaranteed by the Fifth and Sixth Amendments." The court heard argument on the motions on January 11, 1971, at which time the court stated it would grant the defendants' motions pursuant to Rule 48(b), F.R.Cr.P., at the time it filed this Memorandum.

The right of an accused to a speedy trial is "one of the most basic rights preserved by our Constitution." Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 375, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Moreover, the right to a speedy trial is provided by Rule 48(b), F.R.Cr.P. Defendants' motions are based both on the Sixth Amendment and Rule 48(b).

The cases recognize that the Sixth Amendment guarantee and a defendant's right under Rule 48(b) are not coextensive. United States v. DeLeo, 422 F.2d 487, 495 (1st Cir.), cert. denied, 397 U. S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970); Hodges v. United States, 408 F.2d 543, 548-549 (8th Cir. 1969) and cases cited therein. "Rule 48(b) `is a restatement of the inherent power of the court to dismiss a case for want of prosecution.' And that power is not circumscribed by the Sixth Amendment." Mann v. United States, 113 U.S.App.D. C. 27, 304 F.2d 394, 398, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). See also, 8A Moore, Federal Practice ¶ 48.031 (1968). The protection invoked guards only against unnecessary delay. United States v. Simmons, 338 F.2d 804, 806 (2d Cir. 1964), cert. denied, 380 U.S. 983, 85 S.Ct. 1352, 14 L.Ed.2d 276 (1965).

In considering motions to dismiss pursuant to Rule 48(b), the court is "governed by the standards of United States ex rel. Solomon v. Mancusi, 412 F.2d 88 (2d Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969)." United States v. Fitzpatrick, 437 F.2d 19 at 26 (2d Cir. 12/24/70). See also, United States v. Garelle, 438 F.2d 366 at 369 (2d Cir. 10/13/70). As stated in United States ex rel. Solomon v. Mancusi, supra 412 F.2d at 90.

"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."

"These factors are to be considered together because they are interrelated," United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963).

With respect to the first of these factors, the length of the delay, 3½ years have elapsed since the 1967 indictment, and 4½ years have passed since the 1966 indictment. In United States v. Lustman, 258 F.2d 475, 477 (2d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958), the court held that a period of approximately four years during which nothing was done to bring the case to trial was an undue delay. Here, the alleged crimes occurred as early as 1958, and the 1967 motions to dismiss the indictment for unnecessary pre-indictment delay certainly put the Government on notice to proceed expeditiously to trial.⁴ However, the Government made no attempt to bring the defendants to trial until June 5, 1970, when the Government filed a bill of particulars 25 months after Judge Frankel's order of May 9, 1968. The documents which were seized in the Philippines in 1962 were not produced by the Government until August, 1970, 27 months after Judge Frankel directed the Government to produce them.

The Government conceded at argument that the delay in filing a bill of particulars for 25 months after Judge Frankel's order was due to "sheer inadvertence." With respect to the 27-month delay between Judge Frankel's order and production of the documents seized in the Philippines, the Government points out that defendant Stonehill moved to suppress the same documents in a civil tax action involving the same issues in the Southern District of California, which resulted in an extensive evidentiary hearing and a...