239 F. Supp. 116 | S.D.N.Y. | 1965
The defendant moves to dismiss a five year old indictment on the ground that he has been deprived of his right to a speedy trial under the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure.
The indictment, returned on March 25, 1960, charged the defendant with perjury before the Securities and Exchange Commission in March 1959. On March 31, 1960, represented by privately retained counsel, he entered a not guilty plea. His case was then marked off the trial calendar, evidently upon an understanding that defendant would cooperate with the prosecution by appearing as a Government witness in other cases against persons charged with securities violations. These other cases were com
Although the Government attributes the initial delay to its expectation that defendant would be called as a prosecution witness, there is upon this record no explanation for the two-year delay from the termination of those prosecutions in November 1962 to October 1964, when the Government first moved to restore the case to the trial calendar. Nonetheless the Government urges that the defendant, by failure to press for prompt trial, acquiesced in the delay and thereby waived his rights.
While the Court has been of the view that regardless of a defendant’s inaction the Government is under a positive duty to move a criminal case promptly to afford him his constitutional right to a speedy trial,
Accordingly, consonant with the Lust-man rule, the motion to dismiss the indictment for deprivation of Sixth Amend
The defendant’s other motions, to the extent to which they are not consented to, are granted. The original notes of testimony are evidential, and upon a trial the Government would be required to produce them. A defendant has a right to compare the original notes with the claimed accurate transcription. It will save trial time to permit their inspection now.
. In United States v. Dillon, 183 F.Supp. 541, 543 (S.D.N.Y.1960), this Court held that it was not “the duty of a defendant to press that he be prosecuted upon an indictment under penalty of waiving his right to a speedy trial if he fails to do so.” See also, United States v. Brown, 188 F.Supp. 624, 626 (S.D.N.Y.1960); People v. Prosser, 309 N.Y. 353, 130 N.E. 2d 891, 57 A.L.R.24 295 (1955). This Court believes that the foregoing view is compelled by the nature of the waiver doctrine enunciated in the Supreme Court. See Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed. 2d 408 (1965); Carnley v. Cochran, 369 U.S. 506, 513-517, 82 S.Ct. 884, 8 L.Ed. 2d 70 (1962); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
. 258 F.2d 475, 478 (2d Cir.), cert, denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958).
. United States v. Haller, 333 F.2d 827 (2d Cir.), cert. denied, 379 U.S. 921, 85 S.Ct. 276, 13 L.Ed.2d 334 (1964); United States v. Wai Lau, 329 F.2d 310 (2d Cir.), cert. denied, 379 U.S. 856, 85 S.Ct. 108, 13 L.Ed.20 59 (1964); United States v. Kaufman, 311 F.2d 695 (2d Cir. 1963); United States v. Van Allen, 288 F.2d 825 (2d Cir.), cert. denied, 368 U.S. 836, 82 S.Ct. 31, 7 L.Ed.2d 37 (1961). Cf. United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963).
. See Lustman, 258 F.2d at 478; United States v. Dillon, 183 F.Supp. 541 (S.D. N.Y.1960); United States v. Chase, 135 F.Supp. 230 (N.D.III.1955).
. See United States v. Hunter Pharmacy, Inc., 213 F.Supp. 323 (S.D.N.Y.1963); United States v. Dillon, 183 F.Supp. 541 (S.D.N.Y.1960). See also, United States v. Gilbar Pharmacy, Inc., 221 F.Supp. 160, 162 (S.D.N.Y.1963).