The opinion of the court was delivered by: FRANKEL
On March 13, 1959, the defendant, then 67 years old, was charged in a five-count indictment with willful attempts to evade taxes owed by himself and his wife on their income for each of the calendar years 1952 through 1956. The first steps following the indictment were accomplished with "admirable promptness," Klopfer v. North Carolina, 386 U.S. 213, 217, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967); within two months defendant had entered a plea of not guilty, moved for a bill of particulars, and received the particulars ordered by the court in its partial granting of the motion. Some nine years and three months later, on August 14, 1968, the Government moved the case for assignment to a trial part.
The case was set for trial to begin October 14, 1968, subject to the motion defendant has made under the Sixth Amendment
and Fed. R. Crim. P. 48(b)
for dismissal of the indictment on the ground that he has been deprived of his right to a speedy trial or, in the words of the Rule, a trial without "unnecessary delay."
The motion is one which requires particularized attention to the specific facts of the case. See Pollard v. United States, 352 U.S. 354, 361, 1 L. Ed. 2d 393, 77 S. Ct. 481 (1957). The protection invoked guards "only against unreasonable and unnecessary delay, and those characteristics call for an evaluation of all the circumstances." United States v. Simmons, 338 F.2d 804, 806 (2d Cir. 1964), cert. denied, 380 U.S. 983, 14 L. Ed. 2d 276, 85 S. Ct. 1352 (1965). Specifically, we have been instructed to consider four factors: "the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant * * *." Id., 338 F.2d at 807, quoting from United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963). We proceed, then, to consider these factors in the order stated.
A delay of 9 1/2 years is patently shocking on its face. This first factor need not detain us. The Government, conceding as much, urges that "the other factors serve to direct the Court's discretion in favor of a denial of the motion."
Asserted Reasons for the Delay
The case for the prosecution does not brighten measurably under this heading. Seven Assistant United States Attorneys, successively charged with the case over the years, have filed affidavits. Three of these report that at one time or another defense counsel said something about "documents" which would establish his client's innocence. More specifically, this series of affiants reports as follows:
(1) The Assistant who had the case until November 6, 1959, says nothing about documents.
(2) The Assistant assigned from November 18, 1959, to June 21, 1961, says defense counsel "promised repeatedly to show me documentary evidence which he said would prove that the machinery sales on which the unreported commissions were alleged to have been paid were never consumated [sic]." He adds that counsel "never produced such documents nor did he state he could not produce them."
(3) The Assistant in charge for the relatively brief period from July 3 to September 12, 1961, never spoke to defense counsel at all and does not indicate that he did anything whatever about an indictment already well over two years old.
(4) The Assistant handling the case from September 13, 1961, to September 4, 1964, almost exactly three years, says he spoke to defense counsel "a number of times" and that the latter "promised to come and speak to me about the case and repeated that promise on numerous occasions, as he had information which would show that his client was not guilty of any crime." On August 25, 1964, when this Assistant was known to be leaving the United States Attorney's Office, he goes on to state, defense counsel said "he was willing to show the prosecution documentary evidence that his client never received the allegedly unreported commission but that such commissions were tagged on to the cost of the machinery and given to other people." Although he then left the office a scant week or so later, this Assistant adds (correctly) that defense counsel "never produced such documents."
(5) The next Assistant had the case from November 18, 1964 to March 18, 1966, for the sixteen months rounding out the sixth and seventh years following return of the indictment. In a six-line affidavit, this affiant says he does not recall ever speaking to defense counsel or defendant about the case. He does not indicate that he did anything to move forward with a prosecution already so remarkably ancient.
(6) The next affidavit is that of an Assistant who had the case from March 23, 1966, to December 1, 1967. During these 20 months, he says, he saw references in the files to alleged "documents," spoke to defense counsel about them, and was told by the latter that he would have to "reacquaint himself with the case" before he could say anything. Defense counsel never fulfilled his promise to "get in touch," says this affidavit, and ...