The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
However much one may deplore the situation here presented
- nearly fifty adjournments of a preliminary hearing on a complaint before the United States Commissioner extending over a period of more than four years until the indictment was returned - the defense must share with the prosecution the responsibility for these excessive postponements. The government's attempt to justify the four-year delay as not unreasonable or unnecessary because of the alleged need for continued and extensive investigation in this ordinary conspiracy charge of knowingly possessing stolen goods moving in interstate commerce, is as unpersuasive as is defense counsel's statement that had a preliminary hearing been granted, his clients "might well have testified in their own behalf on the issue of probable cause."
Following the arrest of the defendants under the complaint, they were arraigned pursuant to Rule 5 of the Federal Rules of Criminal Procedure before the United States Commissioner, and the preliminary hearing with the consent of defense counsel was set for October 19, 1961. While there appears to be a dispute as to the reason for this first postponement,
thereafter the preliminary hearing was adjourned on approximately fifty occasions until December 22, 1965, when the complaint was dismissed by reason of the return of the indictment by the grand jury on December 13, 1965.
The defendants, represented at their initial appearance before the United States Commissioner by counsel who, as already noted, consented to the postponement to October 19, 1961, took no steps of any kind to obtain a hearing, to oppose the continuances or to dismiss the complaint; in fact, after their appearance before the Commissioner, they never showed up - they simply paid no attention to the matter until the return of the indictment. In the circumstances it is abundantly clear that the defendants, who had been released on their own recognizance, were satisfied "to let the * * * matter rest and * * * acquiesced in the continuances."
Absent affirmative action by the defendants, represented at all times by counsel, there is no basis, so long as Lustman4 remains as controlling authority in this circuit, for granting the motion now made to dismiss the indictment for alleged violation of their constitutional right to a speedy trial under the Sixth Amendment, or for unnecessary delay in presenting the charge to the grand jury under Rule 48 of the Federal Rules of Criminal Procedure.
However, applying the Lustman doctrine of waiver based upon nonaction of a defendant does not end the matter.
The inordinate delay between the filing of the complaint and the indictment may have been prejudicial to the defendants. The defendants do assert that the four-year delay in presenting the matter to the grand jury has prejudiced them; that the death of a codefendant now forecloses exculpatory evidence from him; they allege loss of material records and dimming of recollections - their own and those of potential witnesses. Under the circumstances the motion to dismiss the indictment is denied, but without prejudice to renewal upon the trial, where a more realistic appraisal may be made of all the circumstances to determine whether the ...