United States v. Mark II Electronics of Louisiana, Inc., Crim. No. 31279.

• Decision Date: 17 November 1969
• Docket Number: Crim. No. 31279.
• Citation: 305 F. Supp. 1280
• Parties: The UNITED STATES v. MARK II ELECTRONICS OF LOUISIANA, INC., James M. Scanlan, William Gray, Charles Yuspeh, and Robert Maycroft.
• Court: U.S. District Court — Eastern District of Louisiana

305 F. Supp. 1280

The UNITED STATES v. MARK II ELECTRONICS OF LOUISIANA, INC., James M. Scanlan, William Gray, Charles Yuspeh, and Robert Maycroft.

Crim. No. 31279.

United States District Court E. D. Louisiana, New Orleans Division.

November 17, 1969.

Julian Murray, Asst. U. S. Atty., New Orleans, La., for plaintiff.

Jack C. Benjamin of Kierr & Gainsburgh, New Orleans, La., for Charles Yuspeh.

Francis R. Salazar, Denver, Colo., for James M. Scanlan.

COMISKEY, District Judge.

Defendants Mark II Electronics of Louisiana, Inc., James M. Scanlan, William Gray, Charles Yuspeh and Robert Maycroft were originally indicted on February 18, 1965, for violating 18 U.S.C. § 1341, which prohibits mail fraud. According to the indictment, the defendants engaged in promoting a referral selling plan to effect sales of intercommunicating, fire and burglar alarm systems, which referral selling plan was allegedly fraudulent in violation of § 1341. The alleged criminal acts took place during the years 1962 through 1964. The fraudulent acts consisted of a number of sales "pitches" to prospective purchasers in which fraudulent representations were allegedly made. The indictment charged that the mails were used to further this scheme in violation of § 1341 during the years 1963 and 1964.

On March 27, 1968, the original indictment was dismissed by Judge Alvin B. Rubin under Rule 48(b) of the Federal Rules of Criminal Procedure because of the long delay in prosecuting this case. United States v. Mark II Electronics of Louisiana, 283 F.Supp. 280 (E.D.La.1968). However, the indictment was dismissed without prejudice to the Government's right to re-indict the defendants.

The Government exercised this right and re-indicted the defendants on June 4, 1968, under the same statute. In August of 1968 the defendants James M. Scanlan and Charles Yuspeh filed motions to dismiss the new indictment under the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure. These motions were denied on September 30, 1968. The motions were reurged at the beginning of the trial of this case on February 3, 1969. The Court advised the parties that these motions had heretofore been denied, but we further stated that during or at the conclusion of the trial we would reconsider them should it appear from the evidence and the witnesses that the delay in the prosecution of this case resulted in serious prejudice to these defendants. The trial ended on February 28, 1969, at which time the jury was hopelessly deadlocked in its attempt to reach a verdict as to defendants James M. Scanlan and Charles Yuspeh. Therefore, this Court declared a mistrial as to these defendants on that date. The jury found defendant Mark II Electronics of Louisiana guilty. Defendant Robert Maycroft was not tried, as his present whereabouts are unknown.

We have now reviewed the testimony of the witnesses and the other evidence presented at the trial, and we conclude that the defendants James M. Scanlan and Charles Yuspeh were so prejudiced by the long delay of the prosecution that their motions to dismiss the indictment under the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure should be granted.

1. THE SIXTH AMENDMENT

In considering whether a defendant has been denied his constitutional right to a speedy trial, the Court must take into consideration a number of factors:

"Four factors are relevant to a consideration of whether denial of a speedy trial assumes due process proportions: the length of delay, the reason for the delay, the prejudice to the defendant, and waiver by the defendant." United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2nd Cir. 1963); Oden v. United States, 410 F.2d 103, 105 (5th Cir. 1969).

These factors are not to be treated independently as separate prerequisites to the successful invoking of the Sixth Amendment's right to a speedy trial. Rather, they are interrelated and must be read pari materiae. We do not believe that all four factors must be resolved in favor of the accused in every case to justify relief. In United States ex rel. Von Cseh v. Fay, supra, 313 F.2d at 623, the Court said:

"These factors are to be considered together because they are interrelated. For example, even a short delay might constitute a violation of the defendant's constitutional right where the defendant is held without bail, and there is no reason for the delay."

See also: United States v. Velez-Arenas, 299 F.Supp. 463, 464 (D.Puerto Rico, 1969); United States v. Roberts, 293 F. Supp. 195, 197 (S.D.N.Y.1968).

With this principle in mind, we proceed to analyze these four interrelated factors.

I. LENGTH OF DELAY

It is settled in this circuit that the Sixth Amendment right to a speedy trial is only applicable once a prosecution is begun; it does not arise immediately after the commission of the offense. Oden v. United States, supra, 410 F.2d 103, 104 (5th Cir. 1969); Bruce v. United States, 351 F.2d 318, 320 (5th Cir. 1965), cert. den. 384 U.S. 921, 86 S.Ct. 1370, 16 L.Ed.2d 441 (1966), reh. den. 384 U.S. 958, 86 S.Ct. 1575, 16 L.Ed.2d 553 (1966); Harlow v. United States, 301 F.2d 361, 366 (5th Cir. 1962), cert. den. 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962), reh. den. 371 U.S. 906, 83 S.Ct. 204, 9 L.Ed.2d 167 (1962). The original indictment was brought against the defendants on February 18, 1965— four years before the trial finally took place. Although the defendants were reindicted on June 4, 1968, this indictment charges virtually the same offenses as the original indictment. It is clear to the Court that this four year period is an unusually long delay and may form the basis, along with other circumstances, for the granting of the defendants' motions to dismiss the indictment.

Other courts have come to similar conclusions. In United States v. Tchack, 296 F.Supp. 500, 502 (S.D.N.Y.1969), the court said that "a four and a half year delay is unduly lengthy * * *." The Second Circuit Court of Appeals found that a "delay of three years and seven months from indictment to trial was unusually long." United States ex rel. Von Cseh v. Fay, supra, 313 F.2d 620, 624 (2nd Cir. 1963). And in United States v. Richardson, 291 F.Supp. 441, 444 (S.D.N.Y.1968), the court held that "a period of four years is enough of a delay to satisfy the first factor relevant to the violation of a right to a speedy trial * * *."

2. REASON FOR THE DELAY

The Government does not blame its delay in prosecuting this case on traditional reasons for delay—further time to investigate the case, to locate missing witnesses or to discover additional evidence. United States v. Richardson, supra, 291 F.Supp. 441 (S.D.N.Y.1968); United States v. Lester, 328 F.2d 971 (2nd Cir. 1964); United States v. Kaufman, 311 F.2d 695 (2nd Cir. 1963). And, although the Government contends that the delay was caused by an insufficient number of judges, there is nothing in the record to indicate that a trial date was ever sought in the thirty-four months the case was pending before the Court itself called a conference. We are of the opinion that this failure to request a trial date was unwarranted. "The Government has a duty to press criminal cases to trial, to give them any necessary priority, and to prevent, whenever possible, even the suggestion of staleness." Hodges v. United States, 408 F.2d 543, 551 (8th Cir. 1969). Therefore, we do not find here that the delay, under all the circumstances of this case, was justified.

3. PREJUDICE TO THE DEFENDANTS

It is the opinion of this Court that this aspect of the right to a speedy trial is the most important factor to be considered. The very purpose of the granting of this right is to protect the defendant against the prejudicial effects of a delay in the prosecution. "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." United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). One of the chief prejudicial effects of a long delay in the prosecution of a case is the weakening of a defendant's ability to adequately defend himself because of the absence of witnesses and the loss of memory by many witnesses who do testify. "The fundamental right to a speedy trial, its origins tracing back at least to the Magna Carta, is designed in part to insure that a criminal defendant is not rendered unable to rebut charges against him because undue delay has caused memories to dim or witnesses to disappear." Pitts v. State of North Carolina, 395 F.2d 182, 184 (4th Cir. 1968).

It is clear to this Court that the defendants were gravely prejudiced by the four year delay between the original indictment brought on February 18, 1965, and the trial held during the month of February of 1969. The present indictment before the Court concerns an alleged scheme to defraud allegedly begun on March 12, 1962, and continued through July of 1964. This scheme, which began more than seven and one-half years ago, allegedly resulted in the use of the mails in four instances: August 1, 1963, September 10, 1963, January of 1964, and March 19, 1964. One of these four instances involved attempted sales of Mark II equipment to Mr. and Mrs. Cecil McKinley. The Mark II salesman who made the allegedly false statements was not available when this case was tried in February of 1969. Another instance was the sale to Mr. and Mrs. Audran Sands made by a Mark II salesman, W. J. Hobbs, who is now dead. The third sale was made to Mr. and Mrs. Welch Bush by a salesman for Mark II named Robert Maycroft, a co-defendant in this case whose whereabouts are unknown; Maycroft fled this jurisdiction and is reportedly living in Mexico, if he is still living at all. The last sale to Mr. and Mrs. Hubert Ben was made by a Mark II salesman named ...