The opinion of the court was delivered by: METZNER
Defendants Armando Pinero and Ignacio Pinero have been indicted on a charge of conspiring to steal goods from motor trucks moving in interstate commerce and to receive and possess such stolen goods. Both defendants move to dismiss the indictment on the ground that they have been denied their right to a speedy trial. Armando Pinero moves to suppress certain evidence which was seized by FBI agents during a search of his store pursuant to a search warrant. Ignacio Pinero moves to suppress certain evidence seized from his home without a search warrant.
(A) Motion to Dismiss Indictment
Defendants were arrested on May 2, 1964 and were indicted on January 27, 1966. From the time of their arrest until the present they have been free on bail and have been represented by counsel. The United States Attorney moved the case for trial in October 1970. Thereafter defendants changed counsel and this motion was made.
Defendants claim that the delay of over six and one-half years between arrest and trial and of over five years between indictment and trial violates their rights under the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure.
Courts in the Second Circuit look to four factors in determining whether there has been a violation of the right to speedy trial: (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 (2d Cir.), cert. denied, 396 U.S. 936, 90 S. Ct. 269, 24 L. Ed. 2d 236 (1969).
A delay of five years, as is present in this case, is clearly an undue delay. United States ex rel. Solomon v. Mancusi, supra ; 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). However, the court may not dismiss an indictment merely upon the showing of delay, even extended delay. United States ex rel. Solomon v. Mancusi, supra 412 F.2d at 90. The defendant must also demonstrate either that the delay was caused by purposeful or oppressive governmental action, United States v. Dooling, 406 F.2d 192, 196 (2d Cir.), cert. denied, 395 U.S. 911, 89 S. Ct. 1744, 23 L. Ed. 2d 224 (1969), or that the delay prejudiced the defendant in some way, United States ex rel. Solomon v. Mancusi, supra 412 F.2d at 90-91.
Purposeful or oppressive governmental action is present where the government deliberately chooses to delay trial in order to secure an unfair advantage over defendant. Petition of Provoo, 17 F.R.D. 183 (D. Md.), aff'd per curiam, 350 U.S. 857, 76 S. Ct. 101, 100 L. Ed. 761 (1955). No such showing has been made here.
As to the issue of possible prejudice, the defendants contend that some of their witnesses presently reside in Puerto Rico, inferring that they previously resided in New York, as did these defendants. It is also alleged that the memory of these witnesses probably has faded in the interval between defendants' arrest and trial. However, mere speculation that unnamed witnesses might be difficult to find, or that bringing them to the place of trial is financially burdensome, or that memories have faded is insufficient to show prejudice within the meaning of the Sixth Amendment or Rule 48(b). United States v. Aberson, 419 F.2d 820 (2d Cir. 1970); United States ex rel. Solomon v. Mancusi, supra 412 F.2d at 91. A more particularized showing of prejudice is required, such as that specific favorable witnesses have died or that particular evidence has been lost. See Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). Defendants here make no such claims.
Furthermore, this is not a case where defendants have languished in jail, unrepresented by counsel, since the time of their arrest. See United States v. Richardson, 291 F. Supp. 441 (S.D.N.Y. 1968). At all times defendants have been free on bail and have had the assistance of counsel in preparing their defense. Knowing that this case could be called for trial at any time, they have had both the incentive and the means to preserve the evidence and to keep track of the witnesses in their favor. No showing of prejudice has been made.
Finally, it is the rule in the Second Circuit that the right to a speedy trial is deemed waived if not promptly asserted. United States v. Lustman, supra. Although the Lustman rule has been criticized, the Second Circuit has consistently followed it. United States v. Fitzpatrick, 437 F.2d 19, 27 (2d Cir. 1970); United States v. Aberson, supra 419 F.2d at 821; United States v. Maxwell, 383 F.2d 437 (2d Cir. 1967), cert. denied, 389 U.S. 1057, 88 S. Ct. 809, 19 L. Ed. 2d 856 (1968). Defendants have never requested a trial of their case and have therefore waived their rights under the Sixth Amendment and Rule 48(b).
The motion to dismiss the indictment is denied.
(B) Motion by Armando Pinero to Suppress Evidence
On May 1, 1964 FBI agents searched Armando Pinero's store pursuant to a search warrant. The warrant had been issued earlier that day by United States Commissioner Earle N. Bishopp, on the supporting affidavit of Agent John S. ...