The opinion of the court was delivered by: BONSAL
Defendants Harry Stonehill and Ira Blaustein move to dismiss the within indictments as against them on the ground that they have been denied a speedy trial.
In a one-count indictment filed on August 1, 1966 (the 1966 indictment), defendant Blaustein is charged with wilfully attempting to evade and defeat a large part of the Federal corporate income tax due and owing by Universal New York, Inc. (Universal) for the fiscal year ending March 31, 1960 in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2, by filing, or causing to be filed, a false and fraudulent return which understated the corporate income tax due and owing by the sum of $62,433.78.
In a four-count indictment filed on July 26, 1967 (the 1967 indictment), both defendants are charged in Count One with conspiring to violate 26 U.S.C. § 7201 and to defraud the United States in connection with the corporate income tax returns of Universal filed for the fiscal years ending March 31, 1959, 1960, and 1961 -- in violation of 18 U.S.C. § 371. Five of the overt acts alleged to have been committed in furtherance of the conspiracy are alleged to have taken place in 1958; three in 1959; one in 1960 and two in 1961. The remaining three counts in the 1967 indictment charge both defendants with attempting to evade and defeat a large part of the Federal corporate income tax due and owing by Universal for the fiscal years ending March 31, 1959, 1960, and 1961 in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2, by filing, or causing to be filed, false and fraudulent returns which understated the corporate income tax due and owing for the fiscal years 1959, 1960, and 1961 by the sums of $25,174.85, $62,433.78, and $30,750.61, respectively. Count Three of the 1967 indictment is identical to the 1966 indictment, with the exception of the inclusion of defendant Stonehill as a defendant.
During the years embraced by the indictments (1958-1961), defendant Blaustein was the General Manager, and both defendants were shareholders, of Universal, which was located in New York. During these years, Universal did business with various Philippine companies in which defendant Stonehill had an interest.
On November 2, 1966, defendant Blaustein pleaded not guilty to the 1966 indictment, and on December 12, 1966, he moved to dismiss the 1966 indictment on the ground that it was returned more than six years after the filing of the tax return in question, for a bill of particulars, and for discovery and inspection. On September 20, 1967, both defendants pleaded not guilty to the 1967 indictment, and the 1966 indictment was marked off the calendar. On October 19, 1967, defendant Blaustein moved to dismiss the 1967 indictment on the grounds of the statute of limitations and unnecessary pre-indictment delay in violation of his right to a speedy trial; for suppression of evidence; for a bill of particulars; and for discovery and inspection.
Defendant Stonehill made similar motions on October 25, 1967. All the motions were argued before Judge Frankel on February 28, 1968, and the 1966 and 1967 indictments were marked off the calendar on March 29, 1968.
Judge Frankel's decisions on the several motions were given in open court on February 28, 1968, and by memorandum and order filed on May 9, 1968.
Judge Frankel dismissed Counts Two and Three of the 1967 indictment on the ground that the statute of limitations had run, and denied his motion to dismiss Counts One and Four of the 1967 indictment without prejudice to renewal at trial.
Judge Frankel denied defendant Stonehill's motion to dismiss the 1967 indictment.
Judge Frankel denied the remaining motions, including the motions to dismiss the 1967 indictment because of undue delay in returning it. The motions to suppress as evidence materials seized in the Philippines in 1962 were denied, without prejudice to renewal shortly in advance of trial. Judge Frankel directed the Government to serve a bill of particulars and to produce certain enumerated documents for inspection and copying. Included among the documents to be produced were books, records, correspondence and memoranda, seized in the Philippines, which the Government "intends to use in connection with this trial."
A bill of particulars was served on the defendants on June 5, 1970, 25 months after Judge Frankel's order, and the Government produced the Philippine documents for inspection in August, 1970, 27 months after Judge Frankel's order.
Awaiting trial are the 1966 indictment and Counts One and Four of the 1967 indictment against defendant Blaustein, and the 1967 indictment against defendant Stonehill.
On November 9, 1970, the defendants made the instant motions to dismiss the remaining charges in the 1966 and 1967 indictments against them on the ground that they have been denied a speedy trial. Defendant Blaustein's motion was made pursuant to Rule 12 (b), F.R.Cr.P., "on the ground that defendant has been denied his right to a speedy trial guaranteed by the Sixth Amendment of the Constitution
and by Rule 48 (b) of the Federal Rules of Criminal Procedure."
Defendant Stonehill's motion was made pursuant to Rule 48 (b), F.R.Cr.P., "on the ground that he has been denied a speedy trial in violation of his rights guaranteed by the Fifth and Sixth Amendments." The ...