United States v. Hauff

• Decision Date: 23 May 1972
• Docket Number: No. 71-1296.,71-1296.
• Citation: 461 F.2d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard W. HAUFF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

461 F.2d 1061 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Richard W. HAUFF, Defendant-Appellant.

No. 71-1296.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 1972.

Decided May 23, 1972.

Terence F. MacCarthy, Director, Federal Defender Program, Chicago, Ill., for defendant-appellant.

James R. Thompson, U.S. Atty., John Peter Lulinski, Richard M. Williams, Michael P. Siavelis, Asst. U.S. Attys., Chicago, Ill., for appellee.

Shiro Kashiwa, Asst. Atty. Gen., Department of Justice, Washington, D.C., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and HAMLEY^* and PELL, Circuit Judges.

HAMLEY, Circuit Judge.

Richard W. Hauff appeals from a judgment, entered after a bench trial, convicting him of willfully failing to file federal income tax returns for calendar years 1963 (count 1) and 1964 (count 2), in violation of 26 U.S.C. § 7203.

Hauff's principal argument on appeal is that the trial court erred in denying his motion to dismiss the information because of assertedly unreasonable, prejudicial, intentional and purposeful delay by the Government in filing the information and in bringing him to trial.

The offenses were complete on April 15, 1964 (count 1), and April 15, 1965 (count 2), when federal tax returns for calendar years 1963 and 1964, respectively, were due. The United States Attorney filed the information on April 13, 1970. With regard to count 1 this was just within the six-year statute of limitations provided by 26 U.S.C. § 6531(4). Defendant had been incarcerated on other convictions since at least November, 1968. He makes no contention that he was an "accused" person in the present case until the date of filing of the information. Hauff was brought to trial on January 6, 1971, just short of nine months after the information was filed.

In urging that the trial court erred in denying his motion to dismiss the information, Hauff invokes the Speedy Trial Clause of the Sixth Amendment, the Due Process Clause of the Fifth Amendment, and Rule 48(b), Federal Rules of Criminal Procedure, authorizing a court to dismiss a prosecution for unnecessary delay. We will consider, seriatim, the possible application of each of these provisions under the circumstances of this case.

The Speedy Trial Clause of the Sixth Amendment is not applicable to the time span between the commission of the offense and the arrest of the offender or the filing of an indictment or information against him. That constitutional guarantee is activated only when a criminal prosecution has begun by the filing of an indictment or information or a prior arrest of the offender on the same charge. United States v. Marion, 404 U.S. 307, 313, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

With regard to the lapse of time between the accusation and the trial, the Speedy Trial Clause guarantees to a criminal defendant:

"... that the Government will move with the dispatch which is appropriate to assure him an early and proper disposition of the charges against him. `The essential ingredient is orderly expedition and not mere speed.\' Smith v. United States, 360 U.S. 1, 10 ,79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959)." United States v. Marion, supra, at 313, 92 S.Ct. at 459.

The purpose to be served by the speedy trial guarantee is stated as follows in United States, v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966):

"This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself."

In determining whether there has been an unconstitutional deprivation of a speedy trial, the essential inquiry is whether, in view of all of the circumstances of the case, the objectives of this constitutional guarantee have been substantially preserved or defeated. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).

As stated above, the information was filed on April 13, 1970. Between then and June 15, 1970, an attorney was appointed to represent Hauff, he was arraigned and pleaded not guilty, and most of the issues in connection with defendant's extensive pretrial discovery were formulated and resolved. A pretrial conference was held on June 24, 1970, and the cause was continued to July 1, 1970 for trial. On June 25, 1970, on motion of the Government, the cause was reset for trial from July 1 to September 9, 1970. The record does not indicate the reason for this continuance or that Hauff interposed any objection.

It apparently was not contemplated that the trial would actually commence on September 9, 1970, for, at the outset of the proceedings on that day, the court inquired: "When does somebody want it to go to trial?" Government counsel then asked that the case be set for trial on October 19, 1970. The reasons given for asking for this date were that new Government counsel had just recently been assigned the case and that defendant was scheduled for trial before another judge on September 28, 1970, in another criminal matter. In the colloquy which followed, it was brought out that Hauff was then in the Federal Penitentiary at Atlanta, Georgia.

Counsel for Hauff made no objection to the October 19th trial date, nor did he indicate that he would be ready for trial before that date. When the case came before the court on October 19, 1970, the court was told that Hauff had, two weeks previously, been convicted on other charges concerning which posttrial motions were still pending, with sentencing set for October 30, 1970. Government counsel stated that he was scheduled to try other unrelated cases on October 26, and November 2, 1970, and that he had a vacation scheduled for the middle of November. Government counsel stated that he would probably be free to try this case on December 1 or 2, 1970.

The court then observed that it had scheduled the whole month of December for an antitrust case. The court was informed that Hauff was still incarcerated. Counsel for the Government then agreed to the court's suggestion of a November 24, 1970 trial date. Again counsel for Hauff offered no objection to the continuance.

The cause was set for a status report hearing on October 30, 1970, concerning unresolved pretrial discovery matters. On October 23, 1970, the Government filed its response to defendant's pretrial discovery requests which had not yet been met. At the October 30, 1970 status hearing the final pretrial matters were disposed of. At that time the November 24, 1970 trial date seemed to be firm.

On November 24, 1970, the cause was continued to January 4, 1971, for trial. The record before us does not indicate who requested the continuance, the reasons therefor, or whether Hauff voiced any objection thereto. The trial actually commenced on January 6, 1971. It was at the outset of the trial that Hauff first objected to the continuances which had been granted, doing so by filing his motion to dismiss the information.

Applying the objectives of the Speedy Trial Clause to the circumstances described above we hold that the trial court did not err in ruling that the Speedy Trial Clause did not require dismissal of the information. Throughout the entire period from the filing of the information to the date of trial, Hauff made no objection to the continuances, but concerned himself only with the completion of pretrial discovery.¹ No showing of prejudice with reference to this period of time was made. The delay did not inconvenience or place undue strain upon Hauff as he was already incarcerated under previous convictions.² The reasons for continuances, advanced by counsel for the Government, reveal no purpose to prejudice or oppress Hauff, and Hauff makes no such contention.

We turn then to defendant's second ground for asserting error in the denial of the motion to dismiss the information—namely the Due Process Clause of the Fifth Amendment.

The applicable statute of limitations (here six years under 26 U.S.C. § 6531) is "... the primary guarantee against bringing overly stale criminal charges." United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966), quoted with approval in United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In this case the statute of limitations had not expired when the information was filed.

The Marion Court further noted, however, that "... the statute of limitations does not fully define the defendants' rights with respect to the events occurring prior to indictment." 404 U.S. 324, 92 S.Ct. 465. And this court has stated that a delay less than the period of the statute of limitations might be so unreasonable, and the resulting prejudice to the defendant so great, that in some circumstances due process would be denied and relief under the Fifth Amendment should be afforded. United States v. Bornstein, 447 F.2d 742, 745 (7th Cir.1971); United States v. Deloney, 389 F.2d 324 (7th Cir.1968).

In Marion, the Court made it clear, however, that actual prejudice resulting from delay, standing alone, is not a per se deprivation of due process. The Court pointed out that actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay, and observed that "... no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution." (404 U.S., at 324-325, 92 S.Ct., at 465) The Court added:

"To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case." (404 U.S., at 325, 92 S.Ct., at 465-466)

The cases cited above establish that in order to obtain relief under the Due Process Clause the defendant must show, at least, that the delay has redounded to his substantial prejudice. Whether he was prejudiced is to be...