Appeal from a judgment of the United States District Court for the Western District of New York convicting appellant, after a non-jury trial before Harold P. Burke, Judge, of failure to file United States income tax returns, Title 26 U.S.C. § 7203, after denial of appellant's claim that his right to a speedy trial was violated.
Anderson, Mansfield and Mulligan, Circuit Judges. Mulligan, Circuit Judge.
MANSFIELD, Circuit Judge:
This appeal presents one more example of the type of excessive and inexcusable delay in bringing a defendant to trial that led Congress to adopt the Speedy Trial Act, 18 U.S.C. §§ 3161-64. On February 1, 1974, the United States Attorney for the Western District of New York filed an information against appellant, Joseph C. Vispi, charging him in two counts with willful failure to file his personal federal income tax returns for the years 1967 and 1968 in violation of 26 U.S.C. § 7203. Beginning in August, 1974, appellant pressed for a trial. Finally, on October 23, 1975, approximately six and one-half years after the first alleged violation occurred and more than 20 months after the charges were filed against him, Vispi waived a jury and was brought to a trial lasting one and one-half days before Judge Harold P. Burke who, after an additional six-month delay, adjudged him guilty, sentencing him to pay a fine of $500 on each count. We reverse on the ground that the district court's long delay in bringing the case to trial violated Vispi's Sixth Amendment rights and we remand with directions to dismiss the information.
The government's interest in Vispi's tax delinquency arose in April, 1969, when the Internal Revenue Service ("IRS") commenced an audit of his 1965 and 1966 tax returns. During the audit the revenue agent discovered that Vispi had not filed his income tax returns for the years 1967 and 1968. In the fall of 1969 this matter was turned over to the IRS Intelligence Division for criminal investigation, which was terminated in November 1970. On February 1, 1974, Vispi was named in a two-count information. On August 14, 1974, the government filed its notice of readiness for trial and, finally, after extended pretrial delays, a trial was held on October 23-24, 1975, before Judge Burke, who did not file his one-page decision finding the defendant guilty until April 21, 1976, almost six months later.
Vispi contends that the pre-information delay violated his Sixth Amendment right to a speedy trial and his Fifth Amendment right to due process and a fair trial, that the government's delay in filing its statement of readiness violated Rule 4 of the Western District's Plan for the Prompt Disposition of Criminal Cases,*fn1 and that the post-information delay also violated the Sixth Amendment.
In determining whether pre-indictment delay is so excessive as to violate a defendant's rights, we are governed by a few well-settled principles. The primary guardian of the individual's rights is the statute of limitations, United States v. Marion, 404 U.S. 307, 322, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971); United States v. Ewell, 383 U.S. 116, 122, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966), which was enacted to protect against a person's having to defend against stale criminal charges after the evidence may have been lost and to encourage law enforcement officials promptly to investigate and prosecute suspected offenders. Toussie v. United States, 397 U.S. 112, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970). Where charges are filed within the statutory period, a defendant may still invoke his Sixth Amendment right to a speedy trial against undue delay on the part of the government or of the court. However, the period of relevant delay does not start at the time of the alleged offense but when the defendant assumes the status of an "accused," United States v. Marion, 404 U.S. at 313, which usually occurs upon arrest or indictment, whichever event first occurs.*fn2 See United States v. Joyce, 499 F.2d 9, 19 (7th Cir.), cert. denied, 419 U.S. 1031, 42 L. Ed. 2d 306, 95 S. Ct. 512 (1974). "Until this occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation; his situation does not compare with that of a defendant who has been arrested and held to answer." United States v. Marion, supra, 404 U.S. at 321.
Appellant argues that for Sixth Amendment purposes the period of pre-information delay should be deemed to have commenced with the investigative interrogation of him by IRS agents, including Miranda warnings,*fn3 and the requests for production of business records. We disagree. Mere investigation, unaccompanied by arrest or public charges, does not pose a sufficient interference with a person's liberty, resources, employment or relations with others to warrant constitutional protection. See United States v. Marion, supra, 404 U.S. at 309-13; United States v. Joyce, supra.
Appellant was not arrested prior to the filing of the information on February 1, 1974. There is no evidence that anyone besides the government and the appellant and his family were aware of the investigation. Moreover, this is significant indication that his own activities in attempting to dissuade the authorities from prosecuting him was a major factor in the delay between the end of the IRS investigation and the filing of the information. Accordingly, we hold that appellant assumed the status of an accused only upon the filing of the information. No support exists, therefore, for his claim of Sixth Amendment protection based on the government's delay prior to that date.
Nor does the record offer any support for the claim that the government's long pre-information delay denied Vispi due process in violation of his Fifth Amendment rights. There is no evidence that the government utilized the delay as an intentional device to gain a tactical advantage over Vispi or that it resulted in some specific prejudice to him.*fn4 See United States v. Marion, supra; United States v. Foddrell, 523 F.2d 86, 88 (2d Cir.), cert. denied, 423 U.S. 950, 46 L. Ed. 2d 286, 96 S. Ct. 370 (1975); United States v. Eucker, 532 F.2d 249 (2d Cir. 1976); United States v. Iannelli, 461 F.2d 483, 485 (2d Cir.), cert. denied, 409 U.S. 980, 93 S. Ct. 310, 34 L. Ed. 2d 243 (1972); United States v. Capaldo, 402 F.2d 821, 823 (2d Cir. 1968), cert. denied, 394 U.S. 989, 22 L. Ed. 2d 764, 89 S. Ct. 1476 (1969). To constitute a denial of due process more by way of prejudice must be shown than the dimming of the defendant's memory, see United States v. Finkelstein, 526 F.2d 517, 526 (2d Cir. 1975), especially when a portion of the delay is attributable to the defendant's attempts to dissuade the government from bringing a criminal, rather than a civil, action. See United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S. Ct. 1506, 36 L. Ed. 2d 180 (1973).
The Government's Notice of Readiness
Appellant next argues that since the government filed its notice of readiness 14 days more than six months after the filing of the information, the six-month limitation fixed by Rule 4 of the Western District's Plan for the Prompt Disposition of Criminal ...