United States v. Macino

• Decision Date: 06 September 1973
• Docket Number: No. 72-1786,72-1787.,72-1786
• Citation: 486 F.2d 750
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony MACINO and Robert Walensky, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

486 F.2d 750 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony MACINO and Robert Walensky, Defendants-Appellants.

Nos. 72-1786, 72-1787.

United States Court of Appeals, Seventh Circuit.

Argued April 24, 1973.

Decided September 6, 1973.

Rehearing Denied December 12, 1973.

Anna R. Lavin, Edward J. Calihan, Jr., Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., William T. Huyck, Terry M. Gordon, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, MOORE,^* Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

Rehearing En Banc Denied December 12, 1973.

SWYGERT, Chief Judge.

Defendants-appellants, Anthony Macino and Robert Walensky, appeal their convictions for violations of the counterfeiting laws, 18 U.S.C. § 472, on the ground that the twenty-eight month delay between the date of their arrest and the return of the indictments violated their sixth amendment right to a speedy trial.¹ We hold that there was a denial of a speedy trial and we reverse.

On April 8, 1968 appellants and two other persons were arrested when they attempted to pass counterfeit federal reserve notes to an undercover Secret Service agent. A preliminary hearing at which bail was set and the appellants were bound over to the grand jury was held on April 25. Both Macino and Walensky posted bond and were released. No further action was taken by the Government until August 1970 when indictments were obtained against all four participants in the April 1968 offense.

Prior to trial, Walensky filed a motion to dismiss the indictment in which he alleged that the twenty-eight month time lapse between arrest and indictment violated his right to a speedy trial. Macino filed a similar motion on October 19. Both motions were denied, although the same motion by one of the other defendants was granted.² That defendant's motion was granted because he had, while incarcerated on a separate charge, demanded a speedy trial. Neither Macino nor Walensky ever demanded an early trial date.

Applying the balancing test of the Supreme Court's most recent interpretation of the sixth amendment right to a speedy trial, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we hold that a twenty-eight month delay under the circumstances of this case requires reversal.

In Barker v. Wingo, the Court expressly rejected the two speedy trial theories which had gained the widest acceptance in both state and federal jurisdictions. Holding the "specified time period" approach to be without constitutional basis and too inflexible, and the "demand-waiver" approach to be inconsistent with the rule that constitutional rights cannot be waived by inaction or silence, the Court adopted a balancing test "in which the conduct of both the prosecution and the defendant are weighed." 407 U.S. at 530, 92 S.Ct. at 2192. Four factors are to be weighed: length of delay, reason for the delay, defendant's assertion of his right, and prejudice to the defendant. For purposes of this opinion, we will deal with each separately.

Delay. Several things need be mentioned concerning the extent of the delay. The delay in the instant cases is not insubstantial amounting as it does to nearly two and one-half years. However, as the Barker opinion points out several elements are involved in the concept of delay. It can, on the one hand, be viewed merely as the "triggering mechanism" which precipitates a speedy trial issue. Viewed as such, its significance in the balance is not great. On the other hand, delay is inextricably tied to the question of prejudice. As the length of the delay extends, the more certain prejudice is to result. It is manifest that prejudice, always a difficult thing to ascertain, must, at some point, be presumed to result from an inordinate delay in bringing a defendant to trial. Exactly where that point lies on the spectrum of pretrial delay is uncertain, but it is clear that the longer the delay, the heavier the weight to be given it in the balance. Such was explicitly recognized by the District of Columbia Circuit in United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108-1109 (1971):

Time is the most important factor; the longer the delay between arrest and trial the heavier the burden on the Government will be in arguing that the right to a speedy trial has not been abridged. The defense claim has prima facie merit if the lapse between arrest and trial is longer than one year.

Explanation for delay. Little need be said concerning the weight to be given the explanation for the delay in this case. Indeed, nothing can be said because the Government offered no explanation. Although the appellants' motions to dismiss invited the Government to explain or justify the delay, the Government apparently chose not to do so.

With respect to the weight to be given this factor, Barker is instructive. Setting forth the extremes and the middle ground, the Court notes:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or over-crowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Having offered no explanation, the Government has placed nothing upon the scale to offset what on its face appears to be an extreme delay. Certainly we can presume neither a deliberate attempt to hamper the defense nor a valid reason for the delay. Even if we were to assume that the delay was caused by negligence or an understaffed prosecutor's office, in the instant case, this factor must be weighed in favor of the appellants.

Assertion of right to speedy trial. Neither Macino nor Walensky made known their desire for a speedy trial until after the indictments were returned, more than twenty-eight months after appellants' initial arrest. Failure to demand a speedy trial does not constitute a waiver of that right. Failure to assert the right, however, is a factor to be weighed in cases alleging the denial of a speedy trial. In Barker, the Supreme Court emphasized that the assertion of the right is "entitled to strong evidentiary weight in determining whether the right has been deprived" and, conversely, that the failure to assert it will "make it difficult for a defendant to prove that he was denied a speedy trial." 407 U.S. at 531-532, 92 S.Ct. at 2192-2193. However, the weight to be given the absence of a demand in cases where the delay is between arrest and indictment is substantially less than in cases of postindictment delay.

We cannot ignore the fact that a person who has been arrested but not charged will always nourish the hope that the Government will decide not to prosecute. We are not, therefore, inclined to force a prospective criminal defendant to seek his own prosecution. As the Court characterized its holding in Barker, "the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial." 407 U.S. at 529, 92 S.Ct. at 2191. That is especially true where the delay is preindictment.

Prejudice. We now turn to the question of prejudice—the final and most elusive of the factors enunciated in Barker. As to prejudice, the Court offers us the following guidelines:

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

Because appellants were released on bail following their preliminary hearing, they suffered no oppressive pretrial incarceration. The remaining two forms of prejudice are, however, both present in this case.

As to the anxiety and stigma which inevitably attach to arrest and indictment, we must recognize that they exist despite the fact that a trial transcript or court record will seldom reveal them. Nor can this form of prejudice be treated lightly. As the Supreme Court pointedly observed in United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), they are the "major evils protected against by the speedy trial guarantee";

Inordinate delay between arrest, indictment and trial may inpair a defendant\'s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused\'s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant\'s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends. These considerations were substantial under-pinnings for the decision in Klopfer v. North Carolina 386 U.S. 213, 87 S.Ct. 988, 18

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