72-1550 | SCOTUS | Oct 15, 1973
Dissenting Opinion
dissenting.
In 1969 the petitioner was indicted for obstructing an investigation of the Securities and Exchange Commission, and he was convicted by a jury. Both in pretrial motions and on appeal the defendant insisted that the Government had obtained an identical indictment in 1966 but had for some reason kept it secret, and that therefore there was a three-year post-indictment delay which denied the defendant his right to a speedy trial. The Government would not confirm or deny this allegation, and the defendant was unable to produce substantiating evidence. The conviction was affirmed, the Court of Appeals concluding that in any case no prejudice was shown by the defendant. 439 F.2d 751" court="2d Cir." date_filed="1971-02-19" href="https://app.midpage.ai/document/fed-sec-l-rep-p-92954-united-states-of-america-v-vincent-alo-295379?utm_source=webapp" opinion_id="295379">439 F. 2d 751, 755-756 (CA2 1971). The present proceeding arises from petitioner’s motion to vacate sentence, based on newly discovered evidence confirming the petitioner’s earlier suspicions and revealing motivations for the delay which the District Court found were “unworthy and discreditable.” The motion was denied, however, again for the reason that ho prejudice had been shown, and the Court of Appeals again affirmed.
As revealed in part by a Justice Department memorandum made available to the District Court, the Govern
For reasons still unknown, the Government never did proceed with the 1966 indictment against the petitioner; instead it kept that indictment secret and proceeded with the new indictment, more than three years after the original 1966 indictment. Although the suspicions of the defense were aroused, as indicated above the Government was able to keep the earlier indictment and the embarrassing wiretaps secret throughout petitioner’s trial.
In Barker v. Wingo, 407 U.S. 514" court="SCOTUS" date_filed="1972-06-22" href="https://app.midpage.ai/document/barker-v-wingo-108590?utm_source=webapp" opinion_id="108590">407 U. S. 514, 533 (1972), we noted that a speedy trial is “a fundamental right of the accused” that is “specifically affirmed in the Constitution.” In determining whether that right had been denied, we looked primarily to four factors: “Length
There can be no contention that the three-year delay is “de minimis,” and the defendant here surely cannot be faulted for failing to assert his right. See id., at 525-527. The Government argues that he has made no showing of prejudice however, and on this basis alone his claim should be denied. The petitioner argues that in a case such as this, where the delay, caused by the Government, is not only unjustified but is “unworthy and discreditable,” his failure to make a showing of prejudice is not crucial.
In 1963 Mr. Chief Justice Warren warned that the “fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual . . . [imposing] a heavier responsibility on this Court in its supervision of the fairness of procedures in the federal court system.” Lopez v. United States, 373 U.S. 427" court="SCOTUS" date_filed="1963-05-27" href="https://app.midpage.ai/document/lopez-v-united-states-106622?utm_source=webapp" opinion_id="106622">373 U. S. 427, 441 (concurring). That danger has not abated. In 1972 alone 43,000 people were overheard in 500,000 conversations pursuant to electronic surveillance authorized under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. § 2510 et seq. Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications, Table 4, pp. 12-13. (1972). There is no tally available of the electronic surveillance undertaken which does not purport to be authorized by Title III. My views on the constitutionality of electronic surveillance have been expressed before. See, e. g. United States v. White, 401 U.S. 745" court="SCOTUS" date_filed="1971-05-17" href="https://app.midpage.ai/document/united-states-v-white-108304?utm_source=webapp" opinion_id="108304">401 U. S. 745, 756 (1971).
Lead Opinion
C. A. 2d Cir. Certiorari denied.