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November 9, 1970

UNITED STATES of America, Plaintiff,
George COLITTO, Defendant

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 Pursuant to the Sixth Amendment of the Constitution and Rule 48(b) of the Federal Rules of Criminal Procedure, defendant moves for dismissal of the indictment claiming unnecessary post-arrest delay in presenting the charges to the grand jury -- without justification and to his prejudice. The motion must be granted for the reasons indicated below.


 Defendant was arrested on September 15, 1969 for possession and transfer of unregistered firearms -- two pipe bombs. 26 U.S.C. ยงยง 5861(d)(e), 5871. In November, 1969 -- between his appearance before the Commissioner and indictment in the Eastern District -- defendant pleaded guilty in the Southern District of New York to a firearms violation charge. On January 15, 1970 he was sentenced to one year on this conviction.

 After being imprisoned at Danbury, Connecticut until June 12, 1970, he was transferred to the Federal House of Detention in New York City where he completed the sentence on July 16, 1970. While still held in the House of Detention he was indicted in this Court on September 17, 1970 -- just over a year after his appearance before the Commissioner.

 Defendant was represented by the same attorney both at his 1969 appearance before the Commissioner in the Eastern District and in the entire Southern District prosecution. In January, 1970 after sentencing in the Southern District, counsel notified defendant that he would not longer represent him in this Court. Thus, until Legal Aid was appointed following the September, 1970 indictment, defendant was incarcerated and without counsel.


 The Sixth Amendment right to a speedy trial is as fundamental as any of the other rights secured by the Constitution. Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970); Klopfer v. State of North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1 (1967). Among its practical goals is prevention of undue and oppressive pretrial incarceration, minimization of the anxiety and concern accompanying public accusation and limitation of the possibility that long delay will impair the accused's ability to defend himself. United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776, 15 L. Ed. 2d 627 (1966); Smith v. Hooey, 393 U.S. 374, 378, 89 S. Ct. 575, 577, 21 L. Ed. 2d 607 (1969). As the Supreme Court has reminded us, this right is designed to meet the practical realities of the effects of a criminal prosecution:

"The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality on the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases. Although a great many accused persons seek to put off the confrontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial." Dickey v. Florida, 398 U.S. 30, 37-38, 90 S. Ct. 1564, 1568-1569, 26 L. Ed. 2d 26 (1970).

 Where arrest takes place before indictment, "there is substantial authority that the right [to a speedy trial] attaches upon arrest." Dickey v. Florida, 398 U.S. 30, 43, 90 S. Ct. 1564, 1572, 26 L. Ed. 2d 26 (1970) (concurring opinion). See also, e.g., Mathies v. United States, 126 U.S. App. D.C. 98, 374 F.2d 312 (1967); United States v. Sanchez, 361 F.2d 824, 825 (2d Cir. 1966); Ross v. United States, 121 U.S. App. D.C. 233, 349 F.2d 210 (1965); ABA, Standards Relating to Speedy Trial, 2.2, 3.1 (Approved Draft 1968); Note, The Right to A Speedy Trial, 20 Stan. L. Rev. 476, 482-493 (1968). Cf. Lucas v. United States, 363 F.2d 500, 502 (9th Cir. 1966). As one useful note points out:

if the right to a speedy trial is designed to relieve an individual from lengthy imprisonment prior to trial and from the anxiety caused by public accusation, a refusal to extend its protective cloak to delays occurring between arrest and the filing of formal charges subverts its purpose. Such delays would seem to be just as capable of contributing to the inability of an individual to refute the charges against him as are delays occurring after indictment.

 20 Stan. L. Rev. 476, 485 (1968).

 Whether a delay in prosecution represents a deprivation of these rights can be determined only by a realistic examination of all of "the circumstances" as they affect prosecutor and defendant. Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 486, 1 L. Ed. 2d 393 (1957). The Second Circuit has emphasized four factors in determining whether a defendant's right to a speedy trial has been violated: "(1) the length of the delay; (2) the reason for the delay; (3) the prejudice to the defendant; and (4) waiver by the defendant." United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 90 (2d Cir.), cert. denied, 396 U.S. 936, 90 S. Ct. 269, 24 L. Ed. 2d 236 (1969). See also United States ex rel. Von ...

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