United States v. Joseph C. Vispi

one-page finding decision the defendant ANDERSON, Before MANSFIELD 21, 1976, April almost six guilty until MULLIGAN, Judges. Circuit later. months MANSFIELD, Judge: Circuit pre-information contends that the delay violated Sixth presents example one more appeal This trial and his Fifth Amendment inexcusable type of excessive and trial, that process to due and a fair bringing defendant to trial that led filing its state- Act, government’s delay Speedy Trial 18 Congress adopt 1974, 4 of the 1, ment of readiness violated Rule February 3161-64. On §§ U.S.C. Prompt Dis- District’s Plan for Attorney for the Western Western the United States Cases,1 position filed an information of Criminal District of New York summons, arrest, detention, part: provides pertinent service of or 4 of the Plan 1. Rule complaint charge ready of a or of a formal government must be “In cases the all upon which the defendant is to be tried . six months from the date of for trial within Marion, also at violated the U.S. post-information S.Ct. 455, which usually upon Amendment. occurs arrest or Sixth indictment, event whichever first occurs.2 DISCUSSION Joyce, See United States v. Cir.), (7th 419 U.S. Delay Pre-Information S.Ct. L.Ed.2d 306 “Until this determining pre-in whether In occurs, suffers event a citizen no restraints delay is so excessive to violate a dictment liberty subject on his and is of. governed are rights, we defendant’s accusation; public his situation does not principles. primary well-settled few compare with that a defendant who has rights of the individual’s guardian arrested and held answer.” United limitations, statute United States v. Mar supra, ion, S.Ct. at 464. (1971); Ewell, L.Ed.2d 468 argues Appellant for Sixth purposes period the pre-in Amendment of (1966), which was enacted protect to delay formation be should deemed to have against person’s having a against defend investigative commenced with the interro after criminal the stale evidence gation agents, including of him IRS Mi may to encourage have been lost and law warnings,3 requests pro randa the for promptly officials enforcement investi disagree. duction of business records. We prosecute suspected gate offenders. investigation, unaccompanied by Mere ar States, v. United Toussie public charges, pose rest or does not a suffi (1970). Where S.Ct. person’s cient liberty, interference with charges are filed within the statutory peri resources, employment or relations with od, may a defendant still invoke his Sixth protection. others warrant constitutional

Amendment to a Marion, supra, United See States government of the delay part undue on the 455; 309-13, United S.Ct. of the the period or court. of Joyce, supra. delay relevant does not start at the time of alleged when the the offense but Appellant defendant not arrested prior “accused,” the status of an filing assumes the on February the information government whichever If is earliest. yet formally not indicted or arrested" and ready time, for trial within such and if by jury peers may “exoneration only only charged non-capi- the defendant is with vague possibility lurking in the distant fu- offenses, tal ing, the defendant move in writ- present ture.” In the there is no evidence days’ govern- on at least ten notice to the received a trial or accusation in the ment, Any dismissal indictment. press pre-information or other His media. prompt- motion shall be decided with utmost rights pro- must therefore focus on the formal appear If ness. grounds it should that sufficient ceedings in this case. tolling any portion existed for period one six-month or more of the reject government’s 3. We contention that exceptions in Rule the motion shall be Beckwith, United States v. 425 U.S. denied. . . . the court shall Otherwise which held that dismissing enter an order the indictment with warnings required Miranda in a non- prejudice unless court finds that coercive, investiga- non-custodial criminal tax government’s excusable, neglect is in which tion, is relevant to the issue of defendant’s event not be the dismissal shall effective if status as an government ready proceed “accused.” to trial broadly protects days.” within ten accused from adverse determining guilt societal effects of or triggered by public innocence and is tion, concurring opinion in accusa- In his Justice 2. protects Douglas suggested rights while Miranda an of an ac- individual from protect against generated by cused be broadened to non-for- coercion and is an accusation,” mal, “public inherently but nonetheless rea- coercive situation. Beckwith is opinion process, “may soning public therefore uninstructive Sixth Amendment weigh heavily upon more an individual who has issues. anyone is no evidence that There and the L.Ed.2d 180 besides the investiga- family were aware Moreover, significant indica- this is tion. The Government’s Notice Readiness attempting own activities that his tion Appellant argues next that since from prosecuting authorities dissuade filed its notice of readiness 14 major be- was a factor him more than six months after the investigation and end of the IRS tween the information, six-month limitation Accordingly, filing of the information. 4 of Rule the Western fixed District’s status appellant assumed the hold that we Prompt Disposition Plan of Criminal upon an accused Cases, supra note mandates dismissal. therefore, exists, support No information. again must disagree. Here we protec- his claim Sixth Amendment government’s delay prior on the based tion Although not even minimal unexcused that date. delays beyond period the six-month tol- are Plan, erated under the Western District see any sup Nor does the record offer McDonough, for the claim that port 1974); (2d Flores, Cir. United States denied due long pre-information 1974), F.2d 1356 here the record Fifth in violation of his process that, months, computing reveals six There is no evidence rights. periods must pursuant various be excluded as an inten government utilized Rule 5 of the Western District’s Plan to advantage gain to a tactical tional device permissible period the with result the specif it in some or that resulted over beyond the 14 tak- days extends additional v. to him.4 United See States prejudice ic instance, government. For an en Foddrell, Marion, supra; United v. States 11-day delay caused the recusal of both denied, 86, (2d Cir.), 423 88 cert. F.2d 523 judges court in Buffalo on the district 370, 950, 46 286 96 S.Ct. L.Ed.2d U.S. they personal were friends of grounds Eucker, F.2d v. 532 (1975); United States defendant, which the sub- necessitated Iannelii, 1976); v. (2d United States 249 Cir. Rochester, of case to sequent transfer denied, 483, (2d Cir.), 409 485 cert. F.2d 461 by an clearly excludable as occasioned was 310, 980, 34 243 93 S.Ct. L.Ed.2d U.S. “exceptional circumstance” within F.2d Capaldo, v. 402 (1972); United States 5(h). meaning peri- The six-month of Rule denied, 821, 1968), U.S. (2d 823 cert. 394 Cir. 5(2) tolled to Rule pursuant was further od 1476, 989, 89 22 L.Ed.2d 764 period at the 13 of least the additional process a due more To constitute denial of re- required by by way than prejudice of must be shown pretrial As a spond appellant’s motions. dimming memory, of the defendant’s filing exclusions the of the of these result Finkelstein, see United F.2d States v. 526 August was of readiness notice 517, (2d 1975), Cir. especially when a there is no evidence that the timely. Since portion of the is attributable to the ready not proceed was attempts defendant’s dissuade date, criminal, not bringing from on that indictment was rath trial civil, than a Rule 4 of er action. the Western See United v. dismissible States (2d 460 F.2d Singleton, 1972), Cir. cert. Plan. District’s See, yet presented prejudice. g., has This e. Circuit shown United actual (2d squarely Payden, 1976); with issue of whether both ele- 536 F.2d 541 States Cir. v. Brasco, Marion, (2d in United articulated ments Cir. United States denied, supra, prove 1974), to be shown in order need 96 S.Ct. cert. Mallah, (1976); Due of the Process Clause as a result violation L.Ed.2d pre-indictment delay. (2d Cir.), pre-information or In of 503 F.2d 971 predecessors, present in its we since issue has not in the reach cited text. the cases need Delay Here the circumstances demonstrate be- The Post-Information yond unduly doubt that the long. was that the 20- Appellant’s contention period It is relevant that the 20-month of the in delay between month immediately preceded by period of ap- commencement of trial vio formation years 4 to 5 between proximately right his Sixth lated discovery alleged of- a much more serious presents and its fense information. Al- established the test Under question. though for reasons we have long noted this in Barker v. Supreme Court may triggered stretch not have appellant’s rights, Sixth Amendment see issue, must, resolving, we (1972),5 supra, give it did length four factors: consider government ample time in which to delay, the defend delay, the reason investigate and marshal its evidence for an preju and the assertion ant’s following its filing immediate defendant. See United States dice to the The information. and evidence F.2d simple uncomplicated. Proof of added in Supreme Court non-filing the defendant’s of his federal tax Barker, supra, 407 U.S. at 92 S.Ct. at prime returns was the element of the 2193: government’s case. There were no co-de- the four regard none of factors iden- “We fendants, witnesses, itself, few and the trial necessary as either a or suffi- tified above held, eventually when it was only lasted 7Vh finding depri- condition to the of a cient lapse After the 5-year hours. the 4 to vation trial. Rath- investigatory period, further in the they er are related factors and must be Vispi’s trial could serve increase together with such other cir- considered obtaining burden witnesses and evidence cumstances as be relevant.” that his conduct had not to show been will- ful. alone, Standing the 20-month though far more than

period, permit reason for the inexcusable Speedy ted under since-enacted Trial bringing appellant squarely to trial rests (even allowing periods Act after nor itself, of the court the door district with the mally might per excluded that extend the contributing substantially to government time), by missible could not itself be classi failure, by the blame its even after an inor- per pointed fied as se excessive.6 But as we passed following dinate amount of time had Roberts, supra, in v. information, out United States 515 filing press its 646, delay patently “a unreason F.2d at apparent trial. The court’s lack of interest length may nonetheless be intoler able in getting in the case to trial is evidenced peculiar long light in of ‘the circum ably that after simple pre- the fact defendant’s case’,” quoting Barker v. discovery April stances motions were filed on trial 514, 530, 2182, 24, (less Wingo, 407 U.S. than three months after the filed) was and taken indictment 48(b) Appellant’s See, Rule g., claim under 5. the Sixth Amendment. e. United Procedure is cotermi- Rules of Criminal Federal (2d Saglimbene, 471 F.2d 16 States v. Cir. Sixth Amendment claim. See nous with his 966, 2146, 1972), Singleton, supra; v. United United States (1973) (six years from trial to 36 L.Ed.2d Infanti, 522, (2d 474 F.2d Cir. States v. Infanti, indictment); supra (28 Fasanaro, months); States v. 471 F.2d United 1973) (four years); (2d United but see Cir. 1, 1979, July Beginning the court will be on Roberts, (16 supra months held unrea States v. bring required a defendant to trial within 70 Calloway, sonable); information, 164 U.S. United after the of an as ex- periods. longer (1974) (15 App.D.C. Periods months excluded 505 F.2d tended held, unreasonable). than 20 months have been under the cir- particular not to violate cumstances of to the next astonishing when one turns 28, 1974, May by the court advisement considered under Barker v. to be discovery factor this routine held judge the trial e., i. whether the defendant made months, until Octo- judice for 17 motion sub timely assertion Sixth only in government, 20,1975. After the ber record, Here the speedy trial. defendant, filed by the prodding response to where denial of a in most cases unlike that of readiness to notice August its claimed, reveals that case, the trial simple misdemeanor try this energetically as- repeatedly and trial until October bring it to did not judge beginning August rights, his serted months later. more than 14 August dated ignored. By letter but allowing protested govern- for institution after defense counsel Even re- including backlog any supplemental court’s problems, al ment’s April 1974 dis- of the late Chief to the defendant’s sponse the unfortunate loss motion, he would ask Henderson, advising that Judge covery no valid reason is offered charged against delay be trying this case. The long in re- motion, When the discovery government. simple defendant’s May response, de- on its earlier ply relied except for one or been consented two. August Judge Burke on counsel wrote have fense dispute, still in should items minor dispute over the 22, 1974, asking that the disposed promptly by the trial items be resolved discovery minor two Regardless judge’s inaction judge. to have wishes advising that “the defendant delay may that the have been in fact or the May trial.” On case set for factors, this to institutional attributable part for nine months had failed the court after was not entitled to sit back moved request, the defendant grant notice of readi rely pro on its forma for failure to the information dismiss ness; moni duty the additional it owed Even after this him a trial. afford for a toring pressing case and court brought was not was filed the case motion We have re reasonably prompt trial. for still by Judge Burke another to trial that affirmative ac emphasized peatedly five months. bringing cases tion escape and that it cannot is mandated Bark Turning finally to the fourth ground is for duty on the prejudice obvious er element— —it reasons. institutional See specific handicaps attributable to although (2d 1974); Bowman, Cir. Unit 493 F.2d present in the post-information Favolaro, ed States suf pinpoint, are difficult to did 1974); supra. United States type harm of the which the fer substantial government had a the court and the Both remedy.7 intended to Amendment was Sixth to the defendant but responsibility the criminal long pendency of simple little public to see that this to him, upon in addition to their effect than de promptly rather was tried case morale, ef serious adverse had a more They failed year. than a layed for more might otherwise income than on his fect responsibility. that case, as an since his retention have been and as a confidential attorney by others in the han- lethargy district court’s justice Supreme York Court to a New more clerk all the dling of this case becomes presumption that a defendant’s filed within an irrebuttable that information was 7. The fact by prejudiced.” period of limitations Unit- fixed the statute a fair trial would be to prejudice Marion, supra, to defend- not determinative ed States Congressional enact- ant’s case thereafter. where trial has not com- limiting periods of an ments time expi- after the reasonable time within a menced de- that indictment or information assume probability period, the of the limitations ration brought reason- trial within a fendant will be to prejudice general to a defendant’s of serious predictabil- provide time. statutes able “These strong. case by specifying beyond ity which there is a limit MULLIGAN, integri- Judge in his (dissenting): on confidence Circuit greatly turned being questioned. now which was ty, respectfully I dissent. I know of no other decision in this circuit which concludes that prejudiced was further Appellant although there was no violation of the time defense, that his unlike the the reason provided by limitations a district court’s (which principally rested Prompt Disposition Plan for the of Criminal explained contemporaneous records as on Cases, there was nonetheless a so government agents), was that his failure by egregious that the defendant’s Sixth negli his returns had been due to file Amendment constitutional oversight the severe gence and caused majority opinion trial was violated. The and loss of records pressure of overwork length holds that while the mere of time during period. 1967-69 To sustain this between of the information and Vispi faced formidable task of defense trial, months, which was here 20 cannot to locate old records and to attempting excessive, per itself be se it classified as dredge up dimmed recollections —a task light intolerably long nonetheless be more, that was made difficult the 20- peculiar circumstances of the case. top five-year of the four to month lapse. presentence (2d Cir. prejudice We in this when find period triggers While the here with the other factors and cir- considered inquiry under Barker v. cumstances, satisfy to be sufficient 92 S.Ct. Barker requirements Wingo, supra. (1972), peculiar I no circumstances in find That a defendant should be accorded a fair this case which create constitutional infir- exculpate himself, prompt and chance majority mity. I believe overstates the anxiety well as to be relieved of the prejudice Vispi resulting factor of from public of a pressures accusation of societal delay. Although the majority properly conduct, criminal lies root of the alleged pre-information concludes that guarantee Amendment’s of a Sixth delay here did not warrant constitutional right. was not accorded that trial. protection, United suffering expected In addition to all consequences that flow from the personal argues it nonetheless that very delay this period of criminal for a pendency give ample did unreasonably long unex- was both “simple its evidence for a marshal and un- hardly expected have been he could plained, hand, complicated” trial. On the other it successfully fleeting with his own cope period delay plus finds that this po- his associates memory and post-information delay 20-month which is witnesses, long since dulled and tential us, is before damaged Vispi’s all that “for- subject impeachment, much less to hence attempting midable task of to locate old recover files that had mislaid or inad- dredge up records and to dimmed recollec- vertently destroyed. I support tions.” see no in the record for For these alleged prejudice. reasons we conclude that knew from his satisfactory has made a show in 1969 audit was aware IRS ing in principles accordance with the laid he had filed his 1967 and 1968 income Supreme down Court in Barker v. attorney tax returns. He was an and late Wingo that he was denied his enough Sixth Amend in 1970 was concerned to have re- speedy Accordingly ment trial. investiga- tained counsel in view IRS judgment indicates, majori- we reverse the of conviction with The record and the tion. comments, to dismiss the part pre-informa- directions information. In ty disposition appeal on delay view of our the is attributable to defendant’s at- tion unnecessary it becomes grounds, above to dissuade the from tempts criminal, resolve the other claims of error. rather than a civil ac- bringing a filed its readiness within the a notice of sophisticated retained Vispi also tion. by provided Prompt Disposition the Rules specialized firm which City law New York in the then in effect Western District of It is in tax matters. unrealistic in criminal urged York. is now the New It dis- assume that his counsel my opinion not to lethargic and lacked trict court was interest anticipated possibility the only not had judgment the a which is readily in but had proceedings made efforts criminal hindsight. in It is true that made institu- identify and to the facts to ascertain delays chargeable govern- to the tional are pro- witnesses and the which would records “they appropriately but ment are treat- Vispi’s The issue of his will- defense. vide severity delays as pro- with the same ed failing to file had to reviewed fulness in be by prosecution.” cured his counsel much earlier than by Vispi and Roberts, F.2d at 646. supra, 515 In its any delay. period of factor, Supreme of this discussion Court long contends majority also The Wingo, supra, Barker v. 407 U.S. at in an of the criminal had pendency omitted) (footnote at noted: since, income an effect on his as adverse attempt A deliberate in trial would retain attorney, others hesitate to to hamper the defense should be otjder weighted heavily against integrity. him of the attack his because govern- nothing support in the There is record to ment. A more neutral reason such as Vispi’s ap- While brief on hypothesis. this negligence or overcrowded courts should his income in peal states that 1970 and 1971 weighted heavily be less but nevertheless than his income in 1967 was less should considered since ultimate no was filed until Hence information responsibility for such circumstances hardly have could caused a dimi- must rest with the rather prior years. of income The nution than with the defendant. Vispi to whatever permitted here continue judges in two the three active Since An law he had. earlier conviction practice precluded from overburdened district a much more impact have had serious would they (a knew trying Vispi because filing of the I do not than the information. Bar director of the local Association former psychological minimize trauma president University of his class at charged faces once he every defendant School), there was one of Buffalo Law But was incar- with a crime. never judge for the trial in the district. available charged cerated, he was with a crime advantage did have some This compare hardly with the serious- which can removing the trial from Buffalo where he count the de- the murder faced ness of It had was well known to Rochester. the seminal case of Barker v. fendant disadvantage delaying disposition waited Wingo, supra, where defendant congestion the case. Since calendar or even trial, spent for a ten months years five negligence are to be classified neutral jail, still found no constitu- and the Court balancing Barker, factors under I rights. violation tional weigh heavily cannot them here. clearly a The reason Finally, it is the fact that bal- be considered Barker’s factor to disposition request prompt here did nothing There is at all to ancing test. sought case. Had he not delaying indicate Wingo, supra, 407 under Barker v. strategic for some this case trial of unsatisfactorily 92 S.Ct. at “the in United States v. advantage as remedy severe of dismissal indict inac- supra, studied where appropriate. ment” would not be the defendant from obtain- prevented request an tivity it does follow that unheeded probationary sen- ing necessarily requires offender youthful prompt disposition proceeding criminal was de- In United tence since the that we dismiss the information. Henderson, birthday. 26th layed beyond ex rel. Walker v. majority, Cir.), government, as found F.2d L.Ed.2d 1144 appellant, who claimed that DIRECTOR, his federal OFFICE OF WORKERS’ trial in a PROGRAMS, constitutional COMPENSATION UNIT- violated, also court had been un- state ED STATES DEPARTMENT OF LA- successfully sought prompt disposition BOR, Petitioner. though he his trial. Even had been months, for 15

imprisoned court found O’KEEFE, Respondent. Elizabeth no constitutional violation. See United No. 75-2297. Diaz, (1st United States Court of Appeals, Third Circuit. recognize I that each must rest on its Barker v. own facts while Argued May 1976. factors, identifying the relevant does not Decided Oct. 1976. purport precision to calibrate with As Amended Nov. 1976. weight Rudstein, to be accorded each. See Speedy Right Trial: Barker v. Courts, Wingo In the Lower 1975 U.Ill.L.F. However, I do not consider the

lapse of here to be that excessive where no

particularly imprisonment was in prejudice Vispi I see no real

volved. delay, and there is no evidence that it damaged or his income

affected his defense.

I consider the institutional neutral I per was not deliberate. am

since it asking prompt disposi that his

suaded balancing any

tion creates in his favor. expect would a member of the

One bar

continuously represented by competent here motions, appropriate

counsel to make

might the case with less sophisticat charged

ed defendants with more serious

crimes. While a failure of counsel here to probably

seek trial would be fatal claim,

to the constitutional it is clear that

the failure the court grant request automatically

does not create constitu sum,

tional violation. In all considering

circumstances, I do not believe that magnitude here was of constitutional Wingo.

under Barker v.

Case Details

Case Name: United States v. Joseph C. Vispi

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 15, 1976

Citation: 545 F.2d 328

Docket Number: 156, Docket 76-1250

Court Abbreviation: 2d Cir.