United States v. Tortorello
| Decision Date | 14 March 1968 |
| Docket Number | No. 250,Docket 31730.,250 |
| Citation | 391 F.2d 587 |
| Parties | UNITED STATES of America, Appellee, v. Arthur TORTORELLO, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Irving Younger, New York City, for appellant.
Frederick F. Greenman, Jr., Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, New York City, John R. Wing, Asst. U. S. Atty., of counsel), for appellee.
Before MOORE, FRIENDLY and KAUFMAN, Circuit Judges.
In an indictment filed July 14, 1964, appellant and 17 co-defendants were charged with illegal sale and delivery of unregistered stock, fraud in connection with the sales, and conspiracy to commit those acts, in violation of 15 U.S.C. §§ 77e(a), 77q(a) and 77x, and 18 U.S.C. § 371.1 Appellant was named in one conspiracy count and eleven substantive counts of the indictment.
On September 14, 1964, without any prior discussion with the government, appellant pleaded guilty to the conspiracy count and requested immediate sentencing. The case was adjourned until September 24, 1964, for sentencing. At the sentencing hearing, the trial judge granted the government's request that sentencing be delayed until after the trial of the other counts and the other defendants. The government now contends that at that time it fully intended to try appellant on the remaining open counts although, in fact, he has never been brought to trial on those counts and they have apparently been dropped.
After much delay, the trial of the defendants who did not plead guilty was concluded on January 31, 1967. Sentences of all defendants, including appellant, were imposed on March 8, 1967. Appellant was sentenced to one year's imprisonment, of which eleven months were suspended, with a two-year period of probation.
On this appeal appellant complains of the delay between plea and sentencing. He recognizes that because he pleaded guilty, it would not be appropriate to remedy the delayed sentence by dismissing the indictment. The Supreme Court has rejected the "doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether, because the court committed error in passing the sentence." In re Bonner, 151 U.S. 242, 260, 14 S.Ct. 323, 327, 38 L.Ed. 149 (1894). Cf., Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818 (1947). Instead he asks this court to hold that, when a sentence is unreasonably delayed, the court loses the power to impose a prison term. Since we hold that under the circumstances of this case, the lengthy delay was not unreasonable, we find it unnecessary to consider the appropriateness of this novel remedy which appellant suggests.
Rule 32(a) of the Federal Rules of Criminal Procedure provides that "Sentence shall be imposed without unreasonable delay." The Sixth Amendment's guarantee to a "speedy trial" has also been assumed to apply to the imposition of sentence. Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed. 2d 393 (1954).
Treating this appeal as we would a speedy trial case, we note that this court has laid down an appropriate test:
"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 defendant, and waiver by the defendant." United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963).
See also United States v. Simmons, 338 F.2d 804 (2d Cir. 1964), cert....
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...it failed to act in good faith. See United States v. Toy, 157 U.S.App.D.C. 152, 482 F.2d 741, 743 (1973), and United States v. Tortorello, 391 F.2d 587, 589 (2d Cir. 1968). Although the latter case was decided before Barker, the four factors used were those enunciated in c. Defendant's Asse......
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...his right to be sentenced nor showed prejudice. See 417 A.2d at 599-601. Tortorello involved a largely excused 30-month delay. See 391 F.2d at 588-89. Howard involved a resentencing three years after a timely sentence had initially been suspended and the petitioner placed on probation; the ......
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U.S. v. Ray
...a speedy trial case," applying the balancing test that would later be adopted by the Supreme Court in Barker. United States v. Tortorello, 391 F.2d 587, 589 (2d Cir.1968). We then denied the claim on the merits. Id.; see also United States v. Roberts, 515 F.2d 642, 645 & n. 4 (2d Cir.1975) ......
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Perez v. Sullivan, 85-1842
...considerably longer than it was here. See, e.g., Pollard v. United States, 352 U.S. at 354, 77 S.Ct. at 481 (24 months); United States v. Tortorello, 391 F.2d at 587 (29 months). Indeed, in those cases in which courts have viewed delays in sentencing as excessive, the delays have tended to ......