The opinion of the court was delivered by: METZNER
On October 10, 1969, Indictment 69 Cr. 718 was filed charging the defendants Fred Dornau and Ra-Dor Industries, Inc. (Ra-Dor) with unlawfully making and presenting claims to a United States government agency for payment for the furnishing of missile shipping and storage containers, knowing said claims to be false (Counts 1-29), and with uttering and publishing as true a forged contract between Ra-Dor and the United States (Count 30). The indictment further charged Fred Dornau, Peter Dornau and Ra-Dor with mail fraud (Counts 31-41) and wire fraud (Counts 42-45).
The instant pre-trial motions are made on behalf of the individual defendants, Fred and Peter Dornau. The corporate defendant is currently in bankruptcy and has not pleaded to the indictment. Fred Dornau was the president of Ra-Dor Industries and Peter Dornau the secretary-treasurer. Both were actively engaged in its business.
Both defendants have moved this court, pursuant to the Sixth Amendment and Rule 48(b), Fed. R. Crim. P., for an order dismissing the indictment because of the delay in indicting them after the commission of the alleged illegal acts. The indictment was filed on October 10, 1969. Counts 1-29 therein charge the defendants Fred Dornau and Ra-Dor with making false claims to the government from October 29, 1965 to March 11, 1968. Count 30 charges the same defendants with uttering a false contract modification on May 22, 1968. Finally, Counts 31-45 charge all of the defendants with defrauding securities investors by use of the mails from September 13, 1967 to March 14, 1969, and with wire fraud in December 1968 and January 1969.
The government alleges that its investigation of this case commenced in January 1968, and that the defendants were interrogated by the FBI in connection with the charges contained in the indictment in June 1968.
In United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1972), the Supreme Court held that the Sixth Amendment is inapplicable to "pre-accusation" delays. The reach of Rule 48(b) is similarly circumscribed. 404 U.S. at 319. See also, United States v. Handel, 464 F.2d 679, 681 (2d Cir.), cert. denied, 409 U.S. 984, 93 S. Ct. 326, 34 L. Ed. 2d 249 (1972). The Court indicated that the statute of limitations is the primary safeguard against the bringing of overly stale criminal charges. Cf. United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966).
However, the Court in Marion explicitly left open the possibility that a demonstration of "actual prejudice" stemming from pre-accusation delay might require a dismissal under the Fifth Amendment. 404 U.S. at 324, 92 S. Ct. 455, 30 L. Ed. 2d 468. See also United States v. Schwartz, 464 F.2d 499 (2d Cir.), cert. denied, 409 U.S. 1009, 93 S. Ct. 443, 34 L. Ed. 2d 302 (1972). Under this standard the defendants have the burden of showing that they were actually prejudiced by the delay preceding the indictment. They argue that they have been prejudiced because one-half of the business records of Ra-Dor were destroyed prior to the filing of the indictment. Ra-Dor went into bankruptcy prior to the indictment and a trustee came in sometime in September 1968. At that time he took the company records which he needed and left the others at the place of business, where they were later destroyed by a new tenant. The defendants contend that if the government had not waited so long to indict them, these records could have been saved. As a result of this destruction, they claim that they cannot adequately combat the charges against them.
The Second Circuit has indicated that to support a claim of prejudice, a defendant must make a particularized showing either that a key defense witness or valuable evidence has been lost during the delay, or that the defendant is unable to reconstruct the events surrounding the alleged offense. United States v. Feinberg, 383 F.2d 60, 65 (2d Cir. 1967), cert. denied, 389 U.S. 1044, 88 S. Ct. 788, 19 L. Ed. 2d 836 (1968). A bare allegation that records have been lost or destroyed, which might relate to the instant prosecution, is insufficient to show actual prejudice. See United States v. Schwartz, supra. The defendants here have made no effort to identify the alleged lost records nor have they indicated how they are prejudiced by their loss. The fact that evidence may be lost or destroyed during the pre-indictment stage is inherent in any delay, no matter what the duration. United States v. Marion, supra, 404 U.S. at 321, 326, 92 S. Ct. 455, 30 L. Ed. 2d 468. Furthermore, there has been no allegation in this case that the destruction of the records was deliberate on the part of either the government or trustee.
Finally, the moving papers themselves show that Fred Dornau was interrogated by the FBI at least by August 1968 with respect to the facts involved in this indictment. This was over a year before the indictment was returned, and at least a month before the trustee took over. They could reasonably have taken steps during this period to secure the records of Ra-Dor or, at least, to familiarize themselves with their contents. The defendants have failed to demonstrate actual prejudice. Accordingly, the motion to dismiss for pre-indictment delay is denied.
II. Post-Indictment Delay in Bringing Peter Dornau to Trial
Defendant Peter Dornau has also moved to dismiss the indictment for post-indictment delay in bringing him to trial before April 12, 1972 in violation of Rule 48(b) and the Sixth Amendment. This defendant has waived any delay subsequent to that date. He alleges that the government was ordered in December 1969 to file a bill of particulars which it did not file until September 1971. Furthermore, that bill was subsequently found to be insufficient and by order of the court on December 6, 1971 a supplemental bill of particulars was filed on February 3, 1972. The defendant claims that the documents attached to the supplemental bill were illegible, and that it was not until April 12, 1972 that new photocopies were made available. Finally, he claims that it was not until August 11, 1972 that the government "finally produced other documents it had agreed to produce." The government does not dispute the factual background set forth above, instead it claims that the delay in furnishing the information was not prejudicial.
In order to determine whether a defendant's right to a speedy trial has been violated under the test set out by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), we must consider four factors: (1) length of delay; (2) reason for delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant. Cf. United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973).
As the Supreme Court observed in Barker, "length of the delay is to some extent a triggering mechanism," and there must be some period of delay which is "presumptively prejudicial" before an inquiry is necessary into the other factors. 407 U.S. at 530, 92 S. Ct. at 2192. In the instant case, the delay spanned two and one-half years between the date of the indictment and the date of waiver. It is clear that such a period of time is sufficient to provoke an inquiry into the remaining factors.
Upon the adoption of the individual calendar system, this case was assigned to me in the fall of 1970. Counsel appeared before the court on March 12, 1971 to fix a date for trial. Counsel advised the court that Fred Dornau was then incarcerated in Florida awaiting trial on a first degree murder charge in that state. Neither side (the defendants were represented by the same counsel) was anxious to proceed under the circumstances. When defense counsel pointed out that the government had failed to furnish the bill of particulars, the court fixed a date for compliance, but defense counsel urged that such a deadline was unnecessary. He stated:
"Perhaps if it is all right with the court, I, and hopefully Mr. Naftalis [the Assistant United States Attorney] and Mr. Kelleher could come back in two weeks or so and in the meantime I will try and grab Mr. Naftalis in the corridor at some ...