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August 31, 1976

Robert T. DALE et al., Defendants

The opinion of the court was delivered by: WERKER

WERKER, District Judge.

 The defendants Dr. Robert T. Dale and his wife Lily Farley Ross Dale were originally indicted for income tax evasion in November 1973. This indictment was superseded in January 1974 by the pending indictment which alleges essentially the same offense.

 The proceedings against the defendants were interrupted and suspended on April 24, 1974, when Dr. Dale attempted suicide. In three court-ordered examinations which followed, Dr. Dale was determined to be incompetent to assist in his own defense and to be suffering from severe psychiatric illness. His condition has not improved in the more than two years since the suicide attempt.

 Consequently, Dr. Dale has moved this court to dismiss the indictment in the interests of justice pursuant to Rule 48(b) of the Federal Rules of Criminal Procedure, his right to a speedy trial, and due process of law. Dr. Dale bases his denial of due process claim on the contention that the pendency of the indictment is cruel and unusual punishment in that it contributes to his deteriorating mental condition and to the likelihood he will commit suicide.

 The Government opposes Dr. Dale's motion and has moved to sever the charges against Dr. Dale in order to allow the proceedings to resume as to Mrs. Dale. The court will first consider Dr. Dale's motion to dismiss the indictment.


 In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court outlined the balancing process to be used to determine whether a defendant's right to a speedy trial has been denied. The process requires the consideration of four factors; length of delay, reason for delay, defendant's assertion of his speedy trial rights, and prejudice to the defendant.

 Courts assess the actual delay itself by considering the surrounding circumstances. In United States v. Dunn, 148 U.S.App.D.C. 91, 459 F.2d 1115, 1117 (1972), a period as short as 18 1/2 months was held to be unduly long when 440 days of the delay were directly attributable to the Government and the delay was "unexplainable and unjustifiable" in the view of the court. On the other hand, a six-year delay has been held not to be violative of the defendant's speedy trial rights where the delay resulted from the cumulative effect of a congested calendar, a co-defendant's disappearance, the failure of the defendant to appear for trial, the failure of the Government to press for prosecution and the absence of any effort on the defendant's part to request a speedy trial or to object to the delay. United States v. Saglimbene, 471 F.2d 16 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2146, 36 L. Ed. 2d 686 (1973). In addition, the court found that the defendant had suffered no substantial prejudice as a result of the delay. The delay in the case at bar, which is 31 months as measured from the November 1973 indictment, must be examined in light of the particular circumstances of this case to determine whether the indictment must be dismissed.

 The disruption in the instant case is due primarily to Dr. Dale's mental and emotional condition and his incompetency to stand trial. Delays attributable primarily to a defendant cannot be considered in determining whether or not his right to a speedy trial has been violated. United States v. Stribling, 469 F.2d 443 (6th Cir. 1972), cert. denied, 410 U.S. 957, 93 S. Ct. 1432, 35 L. Ed. 2d 691 (1973); United States v. Lustman, 258 F.2d 475, 477 (2d Cir.), cert. denied, 358 U.S. 880, 79 S. Ct. 118, 3 L. Ed. 2d 109 (1958). More specifically, courts have held that delays caused by a defendant's mental inability to stand trial or delays necessitated by a psychiatric examination required to determine a defendant's competency to stand trial are not to be considered in deciding whether a defendant's right to a speedy trial has been abused. United States v. Smalls, 438 F.2d 711 (2d Cir.), cert. denied. 403 U.S. 933, 91 S. Ct. 2261, 29 L. Ed. 2d 712 (1971); United States ex rel. Daniels v. Johnston, 328 F. Supp. 100 (S.D.N.Y.1971); accord, United States v. Mills, 434 F.2d 266 (8th Cir. 1970), cert. denied, 401 U.S. 925, 91 S. Ct. 908, 27 L. Ed. 2d 828 (1971); United States v. Cartano, 420 F.2d 362 (1st Cir.), cert. denied, 397 U.S. 1054, 90 S. Ct. 1398, 25 L. Ed. 2d 671 (1970); Howard v. United States, 261 F.2d 729 (5th Cir. 1958).

 The defendant in Smalls claimed his sixth amendment right to a speedy trial had been violated by a 5 1/2-year delay. The court, however, held that the three years during which the defendant had been undergoing treatment in a state mental hospital for paranoid schizophrenia should not be included in determining the propriety of the delay. The court further held that the remaining 2 1/2 years did not constitute an undue delay in view of the circumstances and the absence of any showing of prejudice to the defendant.

 In United States ex rel. Daniels v. Johnston, supra, a defendant committed to a state mental hospital petitioned for writ of habeas corpus on several grounds, one of which was a claim that an 8 1/2-year delay from indictment to the filing of the habeas corpus petition was a violation of his speedy trial rights. The court, while granting the writ on other grounds, held that the petitioner's sixth amendment right had not been violated because a "delay in trial occasioned by mental incompetence of a defendant does not deprive the defendant of his Sixth Amendment right to a speedy trial." United States ex rel. Daniels v. Johnston, supra at 110.

 Accordingly, the delay in the instant case caused by Dr. Dale's mental incompetency to stand trial should not be considered in deciding whether his speedy trial rights have been violated. The proceedings were halted on April 24, 1974 when Dr. Dale attempted suicide; since then no further progress has been made. Thus 28 of the 33 months since Dr. Dale's indictment are directly attributable to his current condition. There is a complete absence of any showing that any part of the remaining five-month period resulted from purposeful or oppressive governmental action. Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); United States v. Smalls, supra at 713. At least part of this period was consumed by pre-trial procedures. Such a short delay cannot, therefore, be deemed violative of Dr. Dale's sixth amendment rights.

 This conclusion is further substantiated by the failure of the defendant to assert his right to a speedy trial. Prior to this motion, Dr. Dale made no demand for an immediate trial. In Barker, the Supreme Court held that although a failure to demand a speedy trial is not a waiver of that right, a defendant does have the responsibility to assert it. The failure to do so is to be considered in the balancing process to determine whether one's right to a speedy trial has been violated.

 The fourth consideration is whether any prejudice to the defendant has resulted from the delay. Dr. Dale has not made any claims that his defense has been impaired by the delay, nor has he suffered from any pre-trial incarceration. He has contended, however, that he has suffered prejudice in the form of pre-trial anxiety and stress caused by the pendency of this indictment. In his brief he cites several cases wherein the indictments were dismissed because undue delay in going to trial exacerbated the deteriorating health of the defendants. United States v. Calloway, 164 U.S.App.D.C. 204, 505 F.2d 311 (1974); United States v. Dunn, 148 U.S.App.D.C. 91, 459 F.2d 1115 (1972); United States v. Baron, 336 F. Supp. 303 (S.D.N.Y.1971); United States v. Roberts, 293 F. Supp. 195 (S.D.N.Y.1968); In re Provoo, 17 F.R.D. 183 (D.Md.), aff'd per curiam, 350 U.S. 857, 76 S. Ct. 101, 100 L. Ed. 761 ...

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