United States v. Colitto

• Decision Date: 09 November 1970
• Docket Number: No. 70 CR 647.,70 CR 647.
• Citation: 319 F. Supp. 1077
• Parties: UNITED STATES of America, Plaintiff, v. George COLITTO, Defendant.
• Court: U.S. District Court — Eastern District of New York

319 F. Supp. 1077

UNITED STATES of America, Plaintiff, v. George COLITTO, Defendant.

No. 70 CR 647.

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

November 9, 1970.

Edward R. Neaher, U. S. Atty., E. D. New York, Brooklyn, N. Y., for plaintiff; Emanuel A. Moore, Asst. U. S. Atty., of counsel.

Milton Adler, Legal Aid Society, Brooklyn, N. Y., for defendant; Edward J. Kelly, Huntington Station, N. Y., of counsel.

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

Pursuant to the Sixth Amendment of the Constitution and Rule 48(b) of the Federal Rules of Criminal Procedure, defendant moves for dismissal of the indictment claiming unnecessary post-arrest delay in presenting the charges to the grand jury—without justification and to his prejudice. The motion must be granted for the reasons indicated below.

I

Defendant was arrested on September 15, 1969 for possession and transfer of unregistered firearms—two pipe bombs. 26 U.S.C. §§ 5861(d) (e), 5871. In November, 1969—between his appearance before the Commissioner and indictment in the Eastern District—defendant pleaded guilty in the Southern District of New York to a firearms violation charge. On January 15, 1970 he was sentenced to one year on this conviction.

After being imprisoned at Danbury, Connecticut until June 12, 1970, he was transferred to the Federal House of Detention in New York City where he completed the sentence on July 16, 1970. While still held in the House of Detention he was indicted in this Court on September 17, 1970—just over a year after his appearance before the Commissioner.

Defendant was represented by the same attorney both at his 1969 appearance before the Commissioner in the Eastern District and in the entire Southern District prosecution. In January, 1970 after sentencing in the Southern District, counsel notified defendant that he would not longer represent him in this Court. Thus, until Legal Aid was appointed following the September, 1970 indictment, defendant was incarcerated and without counsel.

II

The Sixth Amendment right to a speedy trial is as fundamental as any of the other rights secured by the Constitution. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Klopfer v. State of North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed. 2d 1 (1967). Among its practical goals is prevention of undue and oppressive pretrial incarceration, minimization of the anxiety and concern accompanying public accusation and limitation of the possibility that long delay will impair the accused's ability to defend himself. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966); Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 577, 21 L.Ed.2d 607 (1969). As the Supreme Court has reminded us, this right is designed to meet the practical realities of the effects of a criminal prosecution:

"The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality on the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases. Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial." Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 1568-1569 (1970).

Where arrest takes place before indictment, "there is substantial authority that the right to a speedy trial attaches upon arrest." Dickey v. Florida, 398 U.S. 30, 43, 90 S.Ct. 1564, 1572 (1970) (concurring opinion). See also, e. g., Mathies v. United States, 126 U.S. App.D.C. 98, 374 F.2d 312 (1967); United States v. Sanchez, 361 F.2d 824, 825 (2d Cir. 1966); Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965); ABA, Standards Relating to Speedy Trial, 2.2, 3.1 (Approved Draft 1968); Note, The Right to A Speedy Trial, 20 Stan.L.Rev. 476, 482-493 (1968). Cf. Lucas v. United States, 363 F.2d 500, 502 (9th Cir. 1966). As one useful note points out:

if the right to a speedy trial is designed to relieve an individual from lengthy imprisonment prior to trial and from the anxiety caused by public accusation, a refusal to extend its protective cloak to delays occurring between arrest and the filing of formal charges subverts its purpose. Such delays would seem to be just as capable of contributing to the inability of an individual to refute the charges against him as are delays occurring after indictment.

20 Stan.L.Rev. 476, 485 (1968).

Whether a delay in prosecution represents a deprivation of these rights can be determined only by a realistic examination of all of "the circumstances" as they affect prosecutor and defendant. Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (1957). The Second Circuit has emphasized four factors in determining whether a defendant's right to a speedy trial has been violated: "(1) the length of the delay; (2) the reason for the delay; (3) the prejudice to the defendant; and (4) waiver by the defendant." United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 90 (2d Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969). See also United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir.), cert. denied, 365 U.S. 817, 81 S.Ct. 699, 5 L. Ed.2d 695 (1963); United States of America v. Garelle, slip sheet 53, 58 (2d Cir. 1970).

a) Length of Delay

Length of delay is important primarily as it may affect other factors, particularly prejudice to the defendant. Note, The Right to A Speedy Trial, 20 Stan.L. Rev. 476, 478 (1968). Except where the period is so extremely long or short that prejudice or its lack can be assumed, special circumstances of the case will be decisive. Thus, periods of under a year have been found excessive where the delay prevented an adequate defense. See, e. g., Ross v. United States, 121 U.S. App.D.C. 233, 349 F.2d 210 (1965) (7 month delay in charging defendant made it impossible for defendant to remember the day of crime); Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966) (4 month delay before arrest). By contrast, delays of four years and more have been held reasonable where the defendant acquiesced. See, e. g., United States v. Lustman, 258 F.2d 475 (2nd Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958) (four years not excessive where defendant was found to have waived his right); United States v. Della Rocca, 388 F.2d 525 (2d Cir.), vacated and remanded on other grounds, 390 U.S. 745, 88 S.Ct. 1443, 20 L.Ed.2d 274 (1968) (over 7 year delay between arrest and trial not excessive where defendant failed to assert his right for almost five years after indictment). The length of the delay in the instant case—one year—is sufficient to justify a dismissal of the indictment if the other factors warrant.

b) Excuse for Delay

The only excuse the government has been able to offer for its delay is a shortage of manpower caused by its own failure to appoint authorized personnel. Its brief states (at p. 2):

"During the course of the latter part of 1969, the United States Attorney's Office was seriously hampered in its efforts to move cases for presentment to the Grand Jury as its manpower had dwindled to six or seven assistants because of the change of administration."

Inefficiency or negligence of the Government is not a legal justification for a serious deprivation of a fundamental right. Dickey v. Florida, 398 U.S. 30, 51, 90 S.Ct. 1564, 1576, n. 17, 26 L.Ed.2d 26 (1970) (concurring opinion); Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363, 368 (1965), cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed. 2d 111 (1967); United States v. Reed, 285 F.Supp. 738, 741 (D.D.C.1968); ABA, Standards Relating To Speedy Trial, 2.3 (Approved Draft 1968).

Nor are we dealing in the case before us with delay justifiable by prosecutorial necessity as when there may be some reason to keep the prospective defendant from knowing he is under suspicion or when undercover sources are being protected. Pre-arrest delays in such circumstances are often justified. See, e. g., Godfrey v. United States, 123 U.S. App.D.C. 219, 385 F.2d 850 (1966); Powell v. United States, 122 U.S.App. D.C. 229, 352 F.2d 705 (1965); United States v. Dickerson, 347 F.2d 783 (2d Cir. 1965); United States v. Kaufman, 311 F.2d 695 (2nd Cir. 1963); ABA, Standards Relating to Speedy Trial, 22-23 (Approved Draft 1968). But cf. Dickey v. Florida, 398 U.S. 30, 44-47, 90 S.Ct. 1564, 1572-1573, 26 L.Ed.2d 26 (1970) (concurring opinion). After arrest this justification normally does not lie. As the Court of Appeals in this Circuit has recognized:

Pre-arrest delay is usually free of the sometimes damaging effects of excessive post-arrest delay for until he has been arrested one has not been deprived of his freedom or been publicly accused. Moreover, there may be valid justification for a pre-arrest delay. Time-consuming investigation prior to an arrest minimizes the likelihood of accusing innocent parties and may facilitate the exposure of additional guilty persons. Once probable cause is established and an indictment filed, however, these justifications are of decreasing importance; the accusation has already been made, the prosecution has gathered at least a modicum of evidence, and news of the arrest will cause other implicated parties to take cover.

United States v. Feinberg, 383 F.2d 60, 64-65 (2nd Cir. 1967). As far as practical consequences are concerned, the words "arrested and held to answer" can be substituted for "indictment filed" in the Court of Appeals statement.

c) Prejudice to Defendant

While it might seem that a person in prison would suffer no substantial...