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UNITED STATES v. TCHACK

January 31, 1969

UNITED STATES of America
v.
Benjamin TCHACK, Defendant



The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

 The court has before it an omnibus motion filed by counsel on behalf of defendant for dismissal of the indictment for lack of a speedy trial, for the suppression of a statement given by the defendant, for the suppression and return of various items taken from the defendant's apartment, and, in the alternative, for a bill of particulars as well as an order directing the government to produce for inspection and copying all of the property which was taken from the defendant's apartment.

 Defendant Benjamin Tchack was indicted on or about April 24, 1964, for violating 18 U.S.C. ยงยง 1341, 1342 (using the mails to defraud). Approximately four and one-half years having elapsed between the filing of the indictment and the assignment of this case for trial, defendant moves to dismiss the indictment on the grounds that he has been denied the right to a speedy trial guaranteed by the Sixth Amendment, and that there has been unnecessary delay in bringing him to trial in violation of Rule 48(b), Federal Rules of Criminal Procedure.

 At no time during the four and one-half year period did the defendant object to the delay or demand a speedy trial although he was at all times represented by counsel of his own choice, even prior to the presentment of the case to the grand jury. Moreover, he has been unable to show any prejudice to himself other than that which he suggests may be inferred from the mere fact of a four and one-half year delay. See e.g., Pitts v. North Carolina, 395 F.2d 182 (4th Cir. 1968).

 Under the leading case in this jurisdiction, United States v. Lustman, 258 F.2d 475 (2d Cir.) cert. denied 358 U.S. 880, 79 S. Ct. 118, 3 L. Ed. 2d 109 (1958), a defendant under the circumstances prevailing here -- namely a defendant represented by counsel and suffering no specific or unusual prejudice -- waives his Sixth Amendment right unless he requests a speedy trial. It is settled that the Sixth Amendment is a shield to protect the defendant and not a sword which he may use to thwart justice. Lustman, 258 F.2d at 478; accord, United States v. Della Rocca, 388 F.2d 525 (2d Cir. 1968) vacated on other grounds, 390 U.S. 745, 88 S. Ct. 1443, 20 L. Ed. 2d 274 (1968) (5 year delay); United States v. Maxwell, 383 F.2d 437 (2d Cir. 1967) (5 year delay); United States v. Van Allen, 288 F.2d 825 (2d Cir. 1961) cert. denied, 368 U.S. 836, 82 S. Ct. 31, 7 L. Ed. 2d 37 (1961) (6 year delay); United States v. Algranati, 239 F. Supp. 116 (S.D.N.Y.1965) (5 year delay). Compare cases such as United States v. Mann, 291 F. Supp. 268 (S.D.N.Y.1968); United States v. Roberts, 293 F. Supp. 195 (S.D.N.Y. filed November 4, 1968) or United States v. Richardson, 291 F. Supp. 441 (S.D.N.Y.1968), where specific prejudice was shown to have injured defendant in the presentment of his defense.

 Defendant also relies on Rule 48(b) of the Federal Rules of Criminal Procedure, which rule provides that an indictment may be dismissed if there is "unnecessary delay in bringing a defendant to trial."

 A Rule 48(b) motion is addressed to the sound discretion of the court. In determining this motion it is incumbent on the court to consider all relevant factors, especially the four factors set out in United States v. Simmons, 338 F.2d 804 (2d Cir. 1964); length of delay, reason for the delay, prejudice to defendant, and waiver by defendant.

 While a four and a half year delay is unduly lengthy and while the government offers no good reason for the delay, the defendant did at least once consent to an adjournment. Moreover, and crucial to this motion, the defendant has not alleged any particular prejudice to himself. No witnesses are dead or missing; defendant is not aged, infirm or less able to stand trial now than he was four and one-half years ago. The defendant's bare and general assertions that there has been a lapse of time, that of necessity the memories of potential government witnesses have been dimmed and that unspecified evidence has been mislaid are insufficient. United States v. Sawyers, 186 F. Supp. 264 (N.D.Cal.1960); United States v. Monarch Radio & T.V. Corp., 162 F. Supp. 910 (S.D.N.Y.1958); United States v. Gladding, 265 F. Supp. 850 (S.D.N.Y.1966); United States v. Research Foundation, Inc., 155 F. Supp. 650 (S.D.N.Y.1957). Cf. United States v. Ewell, 383 U.S. 116, 120-121, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966). The defendant does not even claim that he will have difficulty recollecting the events surrounding the present charge.

 Accordingly, defendant's motion to dismiss the indictment is denied without prejudice to him to renew at the conclusion of the trial.

 The government intends to use as evidence against defendant Tchack a statement executed by Tchack on September 23, 1963, and certain books, tapes and records taken from Tchack's apartment on that date. Tchack maintains that the statement was a coerced confession, that the records, tapes and books are the fruits of an illegal search, and that consequently the Fifth and Fourth Amendments to the Constitution forbid their being admitted into evidence. Concededly the inspectors had no search warrant or arrest warrant. For that matter, the subject of a warrant was never discussed. At no time did the defendant ask whether the inspectors had a search warrant or arrest warrant, and at no time did the inspectors state or indicate that they had such documents. A full suppression hearing was held, and it is this court's conclusion that defendant's claims are without merit.

 The facts are as follows:

 Postal Inspector Mailloux had been placed in charge of investigating the non-payment of charges due on certain introductory offers of diverse book and record clubs. The materials were addressed to the names of Tracy, Lacey, and Macy, at 428 East 89 Street, and at another New York City address. In the course of his investigations during the summer of 1963 Inspector Mailloux visited the East 89 Street premises and found that they were leased by Tchack but that Tchack was in Europe at the time. Upon Tchack's return, Inspector Mailloux, accompanied by Inspector Palmer, returned to the East 89 Street address and there interviewed Tchack in the latter's apartment, although Mailloux did not at that time know or suspect if Tchack had ordered the materials or if they were in his apartment.

 Prior to entering the defendant's apartment, the two inspectors properly identified themselves and were admitted to Tchack's apartment at approximately 11:30 a.m. Mailloux asked Tchack if he had any information concerning certain mailings. Tchack responded that the materials had been ordered by friends who had been staying at his apartment. Inspector Mailloux asked defendant if any of the ordered materials had been left behind and if so whether he could examine them. Tchack then handed Mailloux several volumes and Mailloux recognized one of them. Mailloux then made use of an ultra-violet light to detect his own initials which he had imprinted on the book after having first intercepted it during the course of his investigation and while it was still at the post office. Confronted with this demonstration Tchack thereupon readily admitted that he had ordered and received the materials in question. At this point Inspectors Mailloux and Palmer had been in Tchack's apartment for between ten and twenty minutes. Mailloux then orally advised Tchack that he could consult with an attorney, that he had a right to remain silent, and that any statement that he did make could be used against him.

 Immediately thereafter and at Mailloux's suggestion, Tchack wrote out the statement *fn1" in issue. The evidence is undisputed that except for the introductory material above the line (reciting the voluntary nature of the confession) which was written by Inspector Mailloux and the opening words of the confession -- to wit -- ...


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