can be no violation of the Speedy Trial Act. There is no interim sanction for a delayed response to a motion during a period in which the speedy trial clock is validly stopped; here time was repeatedly excluded for a panoply of valid reasons, most notably motions by codefendants, a severance requested by defendant Cruz himself, and supplemental motions filed by Cruz.
Furthermore, the Second Circuit has recognized that a defendant's explicit waiver of speedy trial rights and consent to delay will undermine a defendant's allegations of unreasonable delay. In United States v. Vasquez, the Circuit Court rejected allegations of speedy trial violations, noting that the defendant had "affirmatively indicated during much of this period that he was willing to countenance extensive pretrial delays." 918 F.2d 329, 337 (2d Cir. 1990). The Circuit Court observed that since the defendant had joined motions made by his codefendant, was cognizant of the delays caused by them, and had delayed making a severance motion for 22 months, he "should not be permitted to demand a retroactive inquiry into the reasonableness of delays. . ." because he had made "a clear tactical choice." Id. Cruz made similar tactical choices for each exclusion in his case; he cannot now complain of unfair delay.
The defendant cites United States v. Didier, 542 F.2d 1182, 1189 (2d Cir. 1976), for the proposition that the government must obtain from a defendant "an express waiver specifically tailored to address only the time periods actually being waived" in order to exclude Speedy Trial Act time.
Cruz Mem. at 8. Cruz asserts that he gave no such explicit waiver as to the government's delayed response to his motion. Id. While it may be true that Cruz did not agree to that specific delay, I hold that Cruz's agreements to exclude time until after the main trial and during the preparation of his June, 1995 supplemental motion constitute explicit waivers of Speedy Trial Act requirements for any and all delays during that excluded time.
In addition, defendant's situation is distinguishable from Didier's in two important ways. First, the Didier trial court twice agreed to adjournments sine die requested by the government without consulting Didier himself, never informing him of one the exclusions and telling him of the other only after it been granted. Didier, 542 F.2d at 1184-85, 1189 n.10. The Second Circuit condemned that procedure and required that a trial court elicit an explicit waiver from a defendant before it excludes time from a speedy trial clock. Id. at 1189. The defendant in the case at bar was given all these protections. Every exclusion of time from the speedy trial clock was made in Cruz's presence; the lengthiest delay was explicitly agreed to after a lengthy explanation of the defendant's rights. See Discussion of December 8, 1994 hearing, supra. Cruz's waivers of the Speedy Trial Act all meet the specifications of Didier.
In addition, the defendant in Didier suffered delay because the trial judge was engaged in trying other cases, a delay which could not have been foreseen by defendant. Id. at 1185. In Cruz's case, by contrast, the most significant delay not due to a pending motion was caused directly by the trial of Angel Padilla, severance from which Cruz had requested and been granted, with significant salutary benefit to him. It was both foreseeable and unavoidable that severance of Cruz from his codefendants would delay Cruz's trial; Cruz cannot claim to have been surprised by the delay, as the defendant in Didier might have been. Given the obvious scheduling consequences of a successful severance application, Cruz's motion must be read effectively to assert that the severance of his case from that of his codefendants entitled him not only to severance, but also to a speedy trial before a different judge. I am unwilling to read such a requirement into the Speedy Trial Act without authority to that effect in this Circuit.
Finally, Cruz argues that he was "placed snugly between a rock and a hard place" by the choices available to him: forego his right to a speedy trial or forego the rights he asserted in motion practice. Cruz. Mem. at 6-8, citing United States v. Hastings, 847 F.2d 920, 923 (1st Cir. 1988), cert. denied, 488 U.S. 925, 102 L. Ed. 2d 327, 109 S. Ct. 308 (1988). The tension Cruz complains of is an inevitable result of the Speedy Trial Act, which assures defendants a speedy trial but explicitly excludes time when a motion is pending before the Court. In Hastings, the government's "willful, dilatory" refusal to provide automatic discovery forced the defendant to stop his speedy trial clock repeatedly with discovery motions. Hastings, 847 F.2d at 928. Although Cruz alleges that the government's behavior in this case was "equivalent to a deliberate attempt to delay his trial," Cruz Mem. at 6, the Court rejects this characterization completely. The government's behavior in this case was neither negligent nor improper; it did not answer Cruz's October, 1994 motion because it did not need to, since time was excluded in the case pending completion of the main trial and then pending the filing of his supplemental motions. It is true that the overall delay was lengthy, but it was agreed to by Cruz, and the time was excluded in his presence, and, for the most part, for his benefit. Cruz was not forced into any "Catch-22" beyond that inherent within the Speedy Trial Act itself.
2. The Constitutional Claim
Cruz also alleges a violation of his constitutional right to a speedy trial under the Fifth and Sixth Amendments to the United States Constitution. The United States Supreme Court heard such a challenge in Barker v. Wingo, and identified four factors that must be considered in determining whether the constitutional right to a speedy trial has been violated: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). See Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520 (1992); United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992), cert. denied sub nom Moore v. United States, 506 U.S. 1009, 121 L. Ed. 2d 559, 113 S. Ct. 627 (1992); Vasquez, 918 F.2d at 338.
Each of these factors weighs against Cruz's claims. First, the 14-month delay of Cruz's trial is significantly shorter than many delays that have been upheld as constitutional. See Vasquez, 918 F.2d at 338 (allowing 26-month delay); Flowers v. Warden, Connecticut Correctional Institution, 853 F.2d 131, 133 (2d Cir. 1988), cert. denied, 488 U.S. 995, 102 L. Ed. 2d 588, 109 S. Ct. 563 (1988), reh'g denied, 488 U.S. 1051, 102 L. Ed. 2d 1009, 109 S. Ct. 887 (1989) (allowing 17-month delay and listing 11 cases allowing delays longer than 14 months).
Second, the reason for delay in this case is attributable to valid motions and exclusions, many prompted by the defendant himself. Defendant's codefendants made motions in autumn, 1994; defendant requested severance from the main trial and agreed to be tried after it; defendant twice asked for the opportunity to make supplemental motions after the main trial, and defendant asked for additional time in autumn, 1995 so that his new counsel could acquaint himself with the case. All of these delays were justified and appropriate, and the Court was willing to exclude time to satisfy the defendant's needs. The only delay prompted by the government was equally valid, raising a colorable and eventually successful challenge to the propriety of Cruz's counsel, Manuel Zapata, remaining in the case. In sum, the reasons for delay all weigh against any finding of a constitutional violation.
Third, it must be noted that defendant waited until literally the eve of trial to assert his speedy trial rights. The Supreme Court has instructed that, since a serious deprivation is more likely to prompt a defendant to complain, "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532; Vasquez, 918 F.2d at 338 (lengthy delay in asserting speedy trial rights "weighs heavily" against defendants). Cruz raised no speedy trial concerns until the day before voir dire was to begin at his trial. By the Supreme Court's instruction, his silence is deemed to indicate that the delay of his trial was not serious enough to constitute a constitutional wrong.
The final factor identified by the Supreme Court in Barker is prejudice to the defendant, which the Court described as involving three interests: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; (iii) to limit the possibility that the defense will be impaired." Barker at 532. Here, there is no claim that Cruz's defense was prejudiced by the death or unavailability of any witnesses, and his 14 months in prison cannot constitute oppressive pretrial incarceration given precedent in this circuit. See Vasquez at 338 (holding 26 months pretrial incarceration acceptable); Flowers at 133 (holding 17 months pretrial incarceration acceptable). Cruz alleges that he was prejudiced by his former attorney's admissions concerning that attorney's representation of a former codefendant. This single allegation of prejudice is entirely insufficient to prove a violation of the constitutional right to a speedy trial. See Flowers at 133-34 (summarizing prejudice faced by other defendants).
In conclusion, defendant Cruz failed to demonstrate a violation of his statutory or constitutional right to a speedy trial. His motion to dismiss the indictment was therefore denied.
Dated: New York, New York
December 4, 1995
CHARLES S. HAIGHT, JR.