The opinion of the court was delivered by: HERLANDS
These defense motions to dismiss the indictment raise questions concerning the interpretation and application of the Sixth Amendment to the Constitution and Rule 48(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.
The Sixth Amendment relevantly provides:
'In all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial * * *.'
Fed.Rules Cr.Proc. rule 48(b), 18 U.S.C.A. provides, so far as pertinent:
'* * * if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment * * *.'
Defendant Benjamin E. Roberts moves to dismiss the indictment on three grounds: (1) that his constitutional right to a speedy trial has been violated; (2) that there has been an unnecessary delay in the prosecution of this case; and (3) 'that defendant's health has so deteriorated that subjecting him to trial at this time could have a fatal outcome.'
Defendants Research Foundation, Inc. and Charles S. White move to dismiss the indictment for the reasons expressed in the first two grounds of the Roberts motion.
A detailed chronology
of the proceedings is essential for the proper consideration and disposition of these motions.
On April 4, 1950, a seven-count indictment was filed herein. It charged defendants with having used the mails pursuant to a fraudulent scheme and with conspiracy so to do. The period of time covered by defendants' activities, as alleged in the indictment, was from January 1, 1947 to July 12, 1949.
On April 12, 1950, defendants pleaded not guilty; defendants were allowed until April 22, 1950 to make motions; and the case itself was adjourned to April 26, 1950.
(According to defendant White's present moving affidavit, 'in the very beginning' he was told 'to forget it that there never would be any trial herein as there was nothing here but that the indictment was brought because of the postal authorities getting after the District Attorney's Office.' In the same affidavit, White asserts that he was told by William Koerner, the Assistant U.S. Attorney then in charge of the case, 'not to worry about it as the matter would never be brought to trial,' whereupon White told Mr. Koerner that he was 'ready to go to trial right away.')
On April 18, 1950, co-defendant Guerrieri moved to dismiss the indictment; and, on April 19, 1950, defendant Roberts moved to dismiss the indictment.
On April 26, 1950, a notice of appearance was filed by William W. Kleinman, Esq., as attorney for defendant White. On the same date, defendant Roberts' attorney answered 'ready,' upon the calendar call. The case was adjourned to June 6, 1950 upon application of the prosecutor.
On May 1, 1950, Guerrieri's motion to dismiss was denied; and, on May 5, 1950, Roberts' motion to dismiss was denied.
Between June 6, 1950 and February 6, 1951, there were the following four adjournments of the case, upon he prosecutor's application and although Roberts' attorney answered 'ready': from June 6, 1950 to September 11, 1950; from September 11, 1950 to October 2, 1950; from October 2, 1950 to December 11, 1950; from December 11, 1950 to February 6, 1951.
(According to the present moving affidavit of defendant Roberts, on September 11, 1950, he told an 'Assistant U.S. Attorney who I believe (he believes) was Mr. Koerner' that 'I wanted it (the case) to go to trial without further delay,' and that the Assistant told him that 'he did not think that it ever would go to trial with me (Roberts) as a defendant.' This affidavit also alleges that, on January 24, 1951, he was told (who told him is not stated) 'that it did not appear that the case would be brought to trial.')
On February 6, 1951, the case was marked off the calendar, upon the prosecutor's application.
From about June 28, 1950 until February 1951, Assistant United States Attorney Harold J. Raby was in charge of the case, on ...