This is an appeal from a judgment order of the United States District Court for the Western District of New York, Burke, J., convicting, following a jury trial, appellant Carini of having violated 26 U.S.C. § 7512(b) by failing to deposit into a trust account taxes which had been withheld from paychecks of employees of Carini Construction Company, a corporation of which Carini is president. The issues raised on appeal are whether Carini was denied his rights to a speedy trial under either the Sixth Amendment or the Speedy Trial Act, 18 U.S.C. §§ 3161-74. Judgment of conviction reversed and case remanded with instructions to dismiss the information with prejudice.
Waterman and Meskill, Circuit Judges and Coffrin, District Judge.*fn*
This is an appeal from a judgment order of the United States District Court for the Western District of New York, Burke, J., convicting appellant Carini, following a jury trial, of having violated 26 U.S.C. § 7512(b) by failing to deposit, into a trust account, taxes which had been withheld from the paychecks of employees of Carini Construction Company, a corporation of which Carini is president. There are only two issues raised on appeal here. The first is whether the government's failure to comply with the requirements of the recently enacted Speedy Trial Act, 18 U.S.C. §§ 3161-74, requires or justifies dismissal of the information. If dismissal is not so required or justified under the Speedy Trial Act, we reach the second issue and must decide whether the 34-month delay between the filing of the information and the commencement of trial violated Carini's Sixth Amendment right to a speedy trial. We reach the constitutional question, and we hold that Carini was deprived of his Sixth Amendment right to a speedy trial and, as a consequence, the information against him must be dismissed with prejudice.*fn1
The ten-count information which initiated this case was filed on March 15, 1974. Carini was arraigned ten days later, on March 25, 1974, at which time he pleaded "not guilty" to each of the counts and was released on his own recognizance. Shortly thereafter, on May 13, 1974, the government moved to have a trial date set. About two weeks later, however, the government advised the district court that plea negotiations were being conducted with the defendant and that there was a possibility of an agreement being reached with him. Under the terms of the contemplated agreement, a guilty plea to misdemeanor tax charges would eventually be entered by Carini's corporation, but not by Carini personally. It was expected that the corporation would satisfy all outstanding tax liabilities and that over a period of time before the agreement was actually consummated Carini, as his part of the bargain, would demonstrate his good faith by a scrupulous compliance with the tax withholding requirements of the Internal Revenue Code. Presumably because Carini expressed an interest in obtaining the obvious benefits to him of such an arrangement and presumably because the government desired to have Carini make the necessary showing of good faith compliance, the government made no effort to bring the case on for trial. However, in July of 1975, the federal prosecutors in the Western District of New York were forced to withdraw their offer, for, at least as of that time, offers allowing corporations to plead guilty in lieu of similar pleas by corporate officers were not being approved by the Justice Department.
Following the collapse of the contemplated plea bargain, there was little progress in the case. The district court took its usual summer recess in August of 1975 and therefore no progress was made during that month. The only activity in the next month and a half (i.e., from September 1, 1975 through October 14, 1975) was the government's motion, made on September 18, 1975, seeking to have a trial date set. During the next month (i.e., from October 14, 1975 until November 10, 1975) no progress was made because on October 14 and on October 28 the defense had been granted adjournments so that it might prepare and present a motion to dismiss based upon an alleged deprivation of Carini's right to a speedy trial. The hearing on the defendant's motion to dismiss the information was further postponed for another one-half month (i.e., from November 10, 1975 until November 24, 1975) because Judge Burke was hospitalized.
After Carini's motion to dismiss was submitted on November 24, 1975, the matter was taken under advisement and remained sub judice from November 24, 1975 until March 3, 1976, a period of slightly over three months. On March 3, 1976, Carini's motion to dismiss the information was denied in an unenlightening decision which reads as follows:
By motion filed October 28, 1975 the defendant moved to dismiss the indictment [sic]. On November 7, 1975 the government filed its response.
The motion is in all respects denied.
For the next two months (i.e., from March 3, 1976 until May 10, 1976) there was no progress in the case. Finally, on May 10, 1976, the government again moved to have a trial date set. At this time the defendant's attorney moved to withdraw from the case, and, shortly thereafter, on May 27, 1976, a new attorney was appointed to represent Carini. When and whether the new attorney was prepared to go to trial is not evident from the record now before us. In any event, the five-month period from June 13, 1976 until November 8, 1976 saw no progress because of Judge Burke's further hospitalizations and convalescences and the court's usual one-month summer recess. The government, however, concerned that it might not meet the Speedy Trial Act December 27, 1976 deadline for trial*fn2 of this case, moved on October 4, 1976 to have a new judge assigned to hear this and 43 other cases which were then awaiting trial in the Western District of New York. Despite the government's concern and its attempt to instigate some progress, there is no indication that any progress was made from November 8, 1976 until December 13, 1976. On December 13, inasmuch as Judge Burke had resumed his judicial activities, the government, apparently having abandoned its efforts to have a new judge assigned to hear the case, again moved to have a trial date set. Because there were serious scheduling problems resulting from the recent death of Judge Henderson and various disqualifications of Judge Elfvin, who had been the United States Attorney in the district when many of the pending prosecutions had been instituted, the earliest the case could be heard was January 27, 1977. This is when trial did, in fact, commence.
It is clear, and indeed the government concedes, that, inasmuch as trial in this case did not commence by December 27, 1976 (i.e., 180 days from July 1, 1976) there was a violation of the Speedy Trial Act. See 18 U.S.C. §§ 3161(g), 3163(b)(2). Yet, as the government correctly points out, the mandatory dismissal of the information or indictment which eventually will be required, upon appropriate motion by the defendant, as a sanction for a failure to comply with the provisions of the Act, see 18 U.S.C. § 3162(a)(2), is not yet effective, 18 U.S.C. § 3163(c). In the presence of a conceded violation of the Act it might be argued that during the transition period, although dismissal of the information might not as yet be mandated, the imposition of such a drastic sanction lies within the sound exercise of our discretion. The trouble with this plausible approach is that it seems to conflict with an apparent congressional understanding that "no sanction [for violation of the Act itself] is in effect during the phase-in period. " H.R. Rep. No. 1508, 93d Cong., 2d Sess. 32 (1974), see H.R. Rep. No. 1508, 93d Cong., 2d Sess. 9, 31 (1974). We thus conclude that the violation of the Speedy Trial Act is not, in and of itself, a sufficient reason for dismissing the information here. This is not to say, however, that there are not other reasons justifying the dismissal of the information. Indeed there are, for the Speedy Trial Act, 18 U.S.C. § 3173, expressly ...