United States v. Castellana

• Decision Date: 20 November 1978
• Docket Number: No. 72-327-Cr-T-H.,72-327-Cr-T-H.
• Citation: 461 F. Supp. 233
• Parties: UNITED STATES of America v. Salvatore CASTELLANA.
• Court: U.S. District Court — Middle District of Florida

461 F. Supp. 233

UNITED STATES of America v. Salvatore CASTELLANA.

No. 72-327-Cr-T-H.

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

November 20, 1978.

COPYRIGHT MATERIAL OMITTED

John J. Daley, Jr., U. S. Atty., Jacksonville, Fla., Douglas J. Titus, Jr., Asst. U. S. Atty., Tampa, for plaintiff.

James R. Yon, Tampa, Fla., for defendant.

OPINION

CHARLES R. SCOTT, District Judge.

Defendant Salvatore ("Sam") Castellana has moved the Court to dismiss the indictment in this case on the ground that his right to a speedy trial has been violated.

Facts

The indictment in this case was returned against defendant Castellana on November 28, 1972. Although he was not arraigned until February 2, 1973, he had an initial appearance on December 4, 1972. Trial was scheduled for March 19, 1973, in Jacksonville, Florida. At the motion of the Government to change venue of the trial, the Court rescheduled trial for March 26, 1973, in Ocala, Florida. Meanwhile, defendant had filed a motion to suppress evidence, which the Court took under advisement until May 2, 1973. Consequently, trial was delayed until the Court's ruling, granting defendant's motion to suppress, on May 2, 1973.

Pursuant to 18 U.S.C. § 3731,¹ the Government took an interlocutory appeal from the Court's order granting the motion to suppress. Trial, therefore, was further delayed from May 2, 1973, until October 2, 1974, while the appeal from the Court's suppression order was pending before the Fifth Circuit Court of Appeals. On October 2, 1974, the Court of Appeals en banc affirmed in part and reversed in part the Court's suppression order of May 2, 1973. United States v. Castellana, 500 F.2d 325 (5th Cir. 1974).

From October 2, 1974, until July 7, 1975, (a period of nearly nine months), the case remained pending. On July 7, 1975, trial of this case commenced in Ocala, Florida. It ended in a mistrial, with a hung jury, on July 8, 1975. For more than forty months, more than three and one-third years since this case ended in a mistrial, it has remained pending without trial.

On March 5, 1976, defendant filed his only motion to dismiss, based upon two independent grounds: (1) that the indictment failed to allege an offense against the United States as a matter of law, because as a result of his pardon from the State of Florida, defendant was not a convicted felon within the scope of 18 U.S.C.App. § 1202(a); and (2) that defendant's right to a speedy trial had been violated. Defendant has never complied with the local rules of this Court by filing a memorandum of law, with citations of authorities to support the grounds for his motion. Nevertheless, the Court took both grounds of the motion to dismiss under advisement, after hearings on April 22, 1976, and May 20, 1976. On June 29, 1977, the Court ruled on defendant's motion to dismiss on the ground that the indictment failed to allege an offense by him as a matter of law. United States v. Castellana, 433 F.Supp. 1309 (M.D.Fla. 1977). The Court ruled that

... defendant's pardon does not exempt him from operation of 18 U.S.C. App. § 1202(a)(1) since the pardon does not expressly authorize him to receive, possess, or transport in commerce a firearm. Id. at 1317.

Consequently, the Court denied the motion to dismiss on that ground. Id. The motion to dismiss on the ground of denial of right to speedy retrial has remained pending.

Over much of that same period of time, however, an extraordinary situation, with acute circumstances, arose in the Jacksonville and Ocala Divisions of the Middle District of Florida. In September, 1975, the only other active resident district judge became involved in a seven-month trial in Ocala, Florida. In December, 1975, that judge was appointed to the United States Court of Appeals for the Fifth Circuit. From December, 1975, to May 12, 1977, the undersigned was the sole resident district judge in the Ocala and Jacksonville Divisions of the Middle District of Florida. With a crushing caseload of between 1,200 and 1,400 cases; the congressionally mandated² priority to bring criminal cases to an initial trial or disposition; and with the deteriorating health of the undersigned which resulted in surgery, hospitalization, and recuperation for the last four months of 1976; the condition of the dockets for the Jacksonville and Ocala Divisions became congested and backlogged. During all that time, this case remained pending, awaiting a ruling on the motions to dismiss, and a possible retrial if warranted. In November, 1976, the undersigned became a senior district judge.³ Meanwhile, however, he remained the only resident district judge until May 12, 1977. From May 12, 1977, until January, 1978, the undersigned, although a senior judge, continued to carry half of the caseload of the Jacksonville and Ocala Divisions, because the active district judgeship position, which had been vacated by the appointment of Judge Gerald Bard Tjoflat to the Court of Appeals, remained unfilled. Throughout the period of time following the recovered health of the undersigned, he has been constantly engaged in bringing his caseload in the docket of the Ocala Division to a current condition. At the same time, he has been laboring to dispose of the accumulated backlog of cases under consideration by him.

Law

I. Constitutional Right to a Speedy Retrial

To begin with, the Sixth Amendment guarantees a speedy trial to every defendant who becomes an accused, either by arrest, information, or indictment. Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 102, 112 (1972); United States v. Avalos, 541 F.2d 1100, 1108 (5th Cir. 1976). The Supreme Court, however has rejected the notion that the Sixth Amendment speedy trial right imposes an absolute, specified time period within which an accused must be brought to trial, while at the same time rejecting the view that the Sixth Amendment speedy trial right applies only to cases where an accused "has demanded a speedy trial." Id. at 524, 92 S.Ct. at 2188, 33 L.Ed.2d at 113. Instead, the Supreme Court established a fourfold test, by which the facts of each particular case are analyzed and balanced in relation to each of the four factors, in order to determine whether or not a defendant's right to a speedy trial has been violated. The four factors are (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) any prejudice to the defendant. Id. at 530-33, 92 S.Ct. at 2191-93, 33 L.Ed.2d at 116-118.

The case at hand presents two different time periods to which defendant Castellana's speedy trial right applies: (1) the period running from post-accusation to trial (approximately thirty-one months), and (2) the period running from mistrial to the present (approximately forty months). The Court will examine both time periods involved in this case, in the light of the four factors, to determine if there has been a denial of speedy trial.

A. First Period: From Accusation Until Trial (November, 1972 through July 7, 1975)

Under the Supreme Court's fourfold test, if the length of the delay involved is de minimus or short, there is no need for a court to inquire further concerning the other three factors. On the other hand, a substantially lengthy delay raises a prima facie question of presumptive prejudice, which triggers a further inquiry concerning the remaining three factors.⁴ If, after investigating all four factors of the speedy trial test, a court determines that a defendant has been denied his right to a speedy trial, the indictment must be dismissed. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61-62 (1973); United States v. Novelli, 544 F.2d 800, 803 (5th Cir. 1977). Unless those factors are satisfied on balance, however, dismissal is not required.

Length of Delay. The length of delay during the period between indictment and trial was approximately two years and seven months (thirty-one months). This delay is sufficiently long to require the Court's inquiry into the remaining three factors.

Reasons for Delay. There are different reasons for delay; and each kind of, or reason for, delay is weighted differently in determining whether there has been a violation of a speedy trial right. United States v. Avalos, 541 F.2d at 1111.

Deliberate delay on behalf of the Government, in an attempt to "hamper the defense" should be weighed heavily against the Government. Id. at 1111-13 (court-shopping and prosecutor-shopping). The Court of Appeals reversed the district court's denial of a habeas corpus petition in Arrant v. Wainwright, 468 F.2d 677 (5th Cir. 1972), cert. denied 410 U.S. 947, 93 S.Ct. 1369, 34 L.Ed.2d 613 (1973). The state prosecutor had sought and obtained repeated continuances, without objection, for nine months. After that, the state court defendant had asserted his right to a speedy trial on four different occasions. No action was taken, however. The defendant was not brought to trial until two years after his indictment, while the state court had expressly noted that the delay was caused by the state's inability "to successfully prosecute the defendant at the present time or in the reasonable foreseeable future." Id. at 680. The state prosecutor had repeatedly stalled the trial because he "quite candidly" admitted that he did not want to see the defendant acquitted. The Court of Appeals found such delay to be intolerable, inexcusable, and warranting heavy weight against the prosecution. Deploring such conduct, the Fifth Circuit declared that

... this court fears the day when any arm of our government is allowed to keep an individual under indictment for an extended period merely because it fears that were he brought to trial, he would be found not guilty. Id. at 684.

The district court was directed to issue the writ of habeas corpus. Id.

Negligent delay, on the other hand, which is for more neutral reasons, should weigh only...