Anderson and Oakes, Circuit Judges, and Clarie, District Judge.*fn* Oakes, Circuit Judge (dissenting).
James Singleton, convicted under 26 U.S.C. §§ 4705(a) and 7237 for the sale of a narcotic to an undercover F.B.I. agent, asserts on this appeal that he was denied a speedy trial, that he was convicted upon the impermissible use of a deposition of a key Government witness, and that he was improperly sentenced. The sufficiency of the evidence is not in question; and these claims do not require a detailed exposition of all of the facts in the case.
In essence, Singleton was charged with making a sale of approximately 139.5 grams of cocaine for $1800 to Agent Frederick Ford in New York City during the period August 20 to 22, 1969. Government informer Samuel Morris helped to arrange the sale and served as a middleman in many of the dealings.
The complaint was made against Singleton on January 14, 1970, and he was arrested on January 22, 1970; but, upon his offer to cooperate with the Government in its narcotics investigations, he was released on his own recognizance the same day. The indictment was returned March 10, 1971, and the case was first set down for trial on April 22, 1971, but it was then adjourned to May 18, 1971, at the defendant's request. Although Morris was present in New York and ready to testify in April, it was determined on May 17th that he was too ill with granulocytic leukemia to leave his home in Mobile, Alabama. Thereupon, the trial court granted the Government's motion to take Morris' deposition in Mobile pursuant to 18 U.S.C. § 3503 and set the final trial date for July 22, 1971.
Singleton argues that his conviction should be reversed and his indictment dismissed because the length of time which was allowed to elapse between the date of the criminal acts and the date of the trial violated his Sixth Amendment right to a speedy trial, his Fifth Amendment right to due process, Rule 48(b) of Fed.Rules of Crim.P., and the Second Circuit rules regarding prompt disposition of criminal cases.
Whether or not one has been denied a speedy trial is a relative question which depends on a weighing of the circumstances, United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). The essential elements to consider are the length of delay, the reason for it, the extent of prejudice, and whether or not the defendant has made specific demand for a speedy trial, United States v. Stein, 456 F.2d 844, 847 (2 Cir. 1972); United States v. Smalls, 438 F.2d 711 (2 Cir.), cert. denied, 403 U.S. 933, 91 S. Ct. 2261, 29 L. Ed. 2d 712 (1971); United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 90 (2 Cir.), cert. denied, 396 U.S. 936, 90 S. Ct. 269, 24 L. Ed. 2d 236 (1969).
It is the time between arrest and indictment, some thirteen months, which is pertinent, because the right to a speedy trial does not attach until a defendant has been arrested or has become an accused. As the Supreme Court said in United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971):
"It is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of [the] speedy-trial provision of the Sixth Amendment."
The defendant makes no real claim of excessive post-indictment delay.
As to the reason for delay, the Government asserts it was brought about by the defendant's agreement to help in further narcotics investigations with the possibility that successful cooperation might lead to a dropping of charges. Singleton agrees that three months of the delay was the result of his offer to cooperate, but he claims that this offer was terminated during the spring of 1970. The United States Attorney claims that he postponed the seeking of an indictment pursuant to a request, dated June 9, 1970, from the Bureau of Narcotics and Dangerous Drugs until the Bureau notified him on January 26, 1971, that Singleton's help had been unsatisfactory. The trial court found that the delay was attributable to the defendant. This conclusion was supported by the evidence and is dispositive of appellant's point. See United States v. Kabot, 295 F.2d 848, 852 (2 Cir. 1961), cert. denied, 369 U.S. 803, 82 S. Ct. 641, 7 L. Ed. 2d 550 (1962); United States v. Lustman, 258 F.2d 475, 477 (2 Cir.), cert. denied, 358 U.S. 880, 79 S. Ct. 118, 3 L. Ed. 2d 109 (1958).
With regard to the claim of prejudice,*fn1 it may be assumed that the appellant sustained a certain amount from the fact that the court and jury did not have the opportunity to observe the witness Morris, but this was brought about by Singleton's unreadiness to go to trial when Morris was in court ready to testify on April 22.
There remains the element of waiver. It has long been the rule of this Circuit that the failure to demand a speedy trial constitutes a waiver of that right, Lustman, supra, at 478, Small, supra, 438 F.2d at 714; cf. Dickey v. Florida, 398 U.S. 30, 36, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). While Rule 8 of this court, concerning the prompt disposition of criminal cases, dispenses with the need for demand, waiver may still be considered as a relevant factor in deciding whether or not the constitutional right to a speedy trial has been violated.
In this case, appointed counsel moved to dismiss for lack of a speedy trial shortly after they were assigned in March, 1971. Certainly the failure of the defendant to seek such relief prior to that time should not weigh heavily against him. Nevertheless it is significant that, even though he admits that he stopped cooperating in the narcotics investigations, the defendant made no attempt to have the charges dropped or to seek the appointment of counsel. The delay between arrest and indictment was largely the responsibility of the defendant, and considering the fact that he was free on bail throughout the period and ...