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December 28, 1970

Sydney L. ALBERT et al., Defendants

Tyler, District Judge.

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

This indictment, 60 Cr. 249, containing 45 counts, was filed on March 14, 1960. Count 1 charged that defendants Sydney Albert, Joseph Abrams, Joseph Hewitt and Larry Knohl, among others, manipulated the stock of Bellanca Aircraft Corporation ("Bellanca") on the American Stock Exchange ("AMEX") from March 1955 to June 1956. Count 2 charged the same defendants with conspiracy to manipulate Bellanca stock. Count 3 charged defendant Albert and the Finance Company of Pennsylvania *fn1" with the sale of unregistered Bellanca stock. Counts 4 through 35 charged Albert and Abrams with specific sales of unregistered Bellanca stock. Counts 36 through 39 charged defendant Albert with failing to file a required report with AMEX. Counts 40 through 44 charged defendant Albert with perjury in testifying before the Securities and Exchange Commission ("SEC"). Finally, Count 45 charged defendant Hewitt with perjury before the SEC.

 On defendants' motion for severance, by order dated August 3, 1960, Judge Weinfeld broke the case into four groups: a) Counts 1, 2 and 4-39; b) Count 3; c) Counts 40-44; and d) Count 45. So far as can be determined, *fn2" Judge Weinfeld also directed that the four groups of counts be tried separately.

 Count 45, the perjury count against Joseph Hewitt, therefore, was tried in December, 1964 before Judge Edelstein sitting without a jury. Hewitt was acquitted. This trial covered much of the same evidence as would necessarily be relied upon at a trial of the other counts.

 From September 4, 1963 through February 16, 1964, the undersigned presided over the trial of United States v. Abrams et al., 61 Cr. 332 in which Albert, Abrams and Knohl were defendants. Abrams involved charges relating to the illegal sale of unregistered stock of a corporation named Automatic Washer, Inc. Both the time periods of and principal actors in the Bellanca and Automatic Washer stock distributions overlap to a considerable degree. In addition, some evidence of the Bellanca stock transactions was admitted against Albert, Abrams and Knohl at the earlier trial. See United States v. Abrams, 357 F.2d 539, 543-547 (2d Cir. 1966). Knohl was acquitted by the jury of the charges in Abrams ; Albert and Abrams were found guilty of certain counts and sentenced to concurrent terms of three and five years respectively.

 In the period of almost 6 years since Hewitt was tried in December, 1964, the office of the United States Attorney has made no efforts to bring the other charges in this indictment to trial. Indeed, it was the court, not the prosecutor, which in August and September, 1969 *fn3" discovered and called attention to this old case by requesting the then United States Attorney to decide whether to file a nolle prosequi or move the case for trial. After this request, it is true, a new United States Attorney took office and necessarily required time to organize his staff and look into pending indictments, including this one. Thus, it is not surprising that further time elapsed until September, 1970 when the court finally demanded that a decision on this case be made. As a result, the court was informally advised in early October, 1970 that the government had decided to move the case for trial. There then ensued further delays and difficulties in notifying defendants and counsel. Finally, on October 23, 1970, all parties except Samuel Golub and Shiah Arsham appeared in person and by counsel. *fn4"

 Not surprisingly, after the October 23 appearance, the defendants moved to dismiss this indictment pursuant to the Sixth Amendment of the Constitution and Rule 48(b), F.R. Cr. P. They claim that the government has failed to prosecute this case within a reasonable time, thus depriving them of their right to a speedy trial. *fn5"

 The standards for evaluating whether or not a delay has been "unreasonable" or unconstitutional have evolved somewhat since United States v. Lustman, 258 F.2d 475 (2d Cir. 1958) which determined that defendant's failure to demand an early trial amounted to a waiver of his Sixth Amendment right. In United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (2d Cir. 1963), dealing with rights under the Fourteenth Amendment and later, under the Sixth Amendment, in United States v. Simmons, 338 F.2d 804 (2d Cir. 1964) cert. denied 380 U.S. 983, 85 S. Ct. 1352, 14 L. Ed. 2d 276 (1965), a federal case, the circuit court stated that:

"[four] factors are relevant to a consideration of whether denial of a speedy trial assumes due process [or Sixth Amendment] proportions: the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant." 338 F.2d at 807, quoting United States ex rel. Von Cseh, 313 F.2d at 623.

 In this case, the delay of trial from March 14, 1960 to the present is, without more, a powerful support for defendant's motions. More than ten years have passed since the indictment was filed; in excess of fifteen years have elapsed since the critical indictment events allegedly took place.

 No reason for the delay appears in the record; in fact, after the Hewitt trial, five years passed without so much as an entry on the docket sheet. Also, though the protracted Automatic Washer trial and the subsequent Hewitt perjury trial may have excused pressing this case for trial before early 1965, the government, significantly, has offered no reasons or excuses for the delay since that time. See, generally, Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).

 Turning to the question of prejudice, "[where] delay is as long and as groundless as that revealed here, prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years." United States v. Mann, 291 F. Supp. 268, 271 (S.D.N.Y. 1968). To buttress what is indeed a strong presumption, by letter or affidavit various of these defendants have submitted specific allegations of prejudice. Hewitt states that two witnesses whom he might have called, Franklin Payer and George C. Summers have died. The government counters that since Payer died early in the decade, his absence has no bearing on the question of a speedy trial now. Additionally, the prosecution has submitted affidavits suggesting that the testimony of these two witnesses would have been unfavorable to Hewitt. Both these facts have little bearing on what is the essential problem here -- the testimony of these men is lost. Abrams has submitted a list of eighteen persons who have died during the past ten or fifteen years. He states that all were familiar with one or more aspects of his Bellanca dealings and would have been called as witnesses. He also states that most of his books and records relating to the Bellanca transactions are missing.

 Larry Knohl is presently serving a five year prison sentence for an unrelated offense. He suffered a stroke in 1965; his health is precarious.

 Albert has submitted no specific evidence of prejudice; however, to the knowledge of the court by reason of other litigation in this court, his medical history, particularly since his ...

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