The opinion of the court was delivered by: MOTLEY
This is a motion brought pursuant to Fed. R. Crim. P. 48(b) and the Sixth Amendment of the United States Constitution to dismiss the instant indictment on the ground that there has been unnecessary delay in presenting the case to the grand jury and in bringing the defendant to trial.
Defendant was arrested on March 5, 1964, and arraigned the same day on a complaint which charged him with a violation of 18 U.S.C. §§ 1084, and 2.
The essence of the charge is that defendant unlawfully used the telephone to transmit wagering information, and caused others to do so. The offenses were alleged to have been committed in March 1962. The instant indictment was filed on April 14, 1965, more than a year after defendant's arrest. Defendant was arraigned on the indictment in June 1965 and released on bail.
No action was taken on the case thereafter until December 10, 1968, when it was marked off the calendar at the Government's request. There had been a number of adjournments of the case in the interim. These had been obtained by the Government with defendant's consent. (August 30, 1965; May 11, 1967; seven dates in 1968, beginning in January and ending in December, 1968). There were adjournments, as well, in January and February of 1970.
In December, 1969, the case appeared on the calendar for trial assignment to a judge, but this was not done until March 15, 1971, when defendant was notified by the Government that the case had been assigned to the undersigned for trial.
At a pretrial conference held subsequently, the case was set down for a May 26, 1971, trial. Defendant thereafter filed his motion to dismiss.
It is well settled law in this Circuit that a court considers four elements in determining speedy trial motions: the length of the delay, the reason for it, the resultant prejudice to defendant, and facts demonstrating waiver of the right. United States v. Smalls, 438 F.2d 711 (2d Cir., 1971); 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); United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963).
Rule 48(b) of the Fed. R. Crim. P. implements the speedy trial right guaranteed by the Sixth Amendment, (United States v. Dooling, 406 F.2d 192, 196 (2d Cir. 1969) and the cases cited therein), and the same factors are considered in passing on a motion to dismiss brought under that rule.
The length of the delay involved here is six years, dating from the time of indictment, i.e., April 14, 1965. Such delay is by any standard shockingly long. See 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); United States v. Perez, 310 F. Supp. 550 (S.D.N.Y. 1970); United States v. Skinner, 308 F. Supp. 1221 (S.D.N.Y. 1969); United States v. Chin, 306 F. Supp. 397 (S.D.N.Y. 1969); United States v. Mann, 291 F. Supp. 268 (S.D.N.Y. 1968); United States v. Richardson, 291 F. Supp. 441 (S.D.N.Y. 1968); United States v. Roberts, 293 F. Supp. 195 (S.D.N.Y. 1968).
The court finds the explanation the Government offers for its dilatoriness in bringing the matter to trial unsatisfactory. The Governnment says that the reason it did not proceed expeditiously is because the facts of this case, and the facts of some ten other indictments returned at the same time, presented a novel question of law regarding the applicability of 18 U.S.C. § 1084 to such facts. All eleven indictments presented the question whether one who makes his living by disseminating by means of wire communications in interstate commerce information (tips) of some value to wagerers (e.g., horse players) violates Section 1084. The Section previously had been applied only to defendants who had provided services such as communicating the results of races run in widespread sections of the United States, directly to "bookies." The facts of the instant indictment thus involved an expansion of the applicability of the Section. The Government then says that a single Assistant United States Attorney was assigned to try all eleven cases serially in order to see how the court would rule on the question of the applicability of the statute and to accumulate knowledge as to how such cases are best tried. The cases brought under the Section developed as follows: In United States v. Sekular, 65 Cr. 348, a guilty verdict was returned in June, 1966; a plea of guilty was entered in United States v. Winston, 65 Cr. 355, in 1967; In December, 1969, Judge Tyler acquitted Perry Alpirn, 65 Cr. 352, finding that Section 1084 was not violated by the facts as stipulated to by counsel; in February, 1971, Judge Mansfield did find a violation on similar stipulated facts to those in Alpirn (United States v. Grossman, 65 Cr. 351); Irving King was acquitted before Judge Wyatt in March, 1971 (65 Cr. 346); two other remaining indictments have been nolle prosequi ; four other cases, including the instant case, remain to be tried. The Government next says: "The rather inconsistent results obtained by the Government in these cases is in large part responsible for the delay in bringing these cases to trial." Affidavit in Opposition, p. 3.
This is not the kind of justification for governmental delay in bringing a criminal case to trial which the courts have accepted as "reasonable." See e.g., 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) (need to complete undercover work); United States v. Brown, 188 F. Supp. 624 (S.D.N.Y. 1960) (need to further investigate crime). Rather, this is the very type of "purposeful" delay against which the Sixth Amendment seeks to guard. See Pollard v. United States, 352 U.S. 354, 361-362, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). The rights of this defendant should not have been "sacrificed" in order to give Government lawyers a chance to "practice."
The court finds that defendant has been prejudiced by the long and improper delay. First, defendant has been subject to the "ignominy and psychological burden of a public indictment" for over six years, (United States v. Alo, 439 F.2d 751, 756, n. 11 (2d Cir., 1971), while the Government waited to determine whether there was any legal basis for applying the law to the facts presented.
Secondly, defendant suffers from Paget's Disease (hypertrophy and deformation of the bony tissue), which, over the years which have elapsed, has become much worse, making it difficult for defendant to physically participate in preparing his defense with the aid of counsel. Defendant is now fifty-nine years of age. The facts go back nine years. The lapse of time involved here makes it self-evident that the facts must now be dusted off by both Government and defendant in an effort to establish the charge and present a defense. Indeed, the delay here "might be so substantial as to be [itself considered] ...