Opinion
No. 65 Cr. 844.
March 23, 1971.
Whitney North Seymour, U.S. Atty., S.D.N.Y., New York City, for the United States; David A. Luttinger, Asst. U.S. Atty., of counsel.
Milton Adler, Legal Aid Society, New York City, for defendant; Murray Mogel, New York City, of counsel.
The defendant moves under Rule 48(b) of the Federal Rules of Criminal Procedure to dismiss the indictment because of pre- as well as post-indictment delay extending over a period of almost twelve years. The indictment contains two counts, each charging the sale of heroin from an unstamped original package, on October 14 and on November 5, 1959. The defendant was arrested on January 26, 1960, and since that time there has been such "unnecessary delay," both prior to and subsequent to the indictment, as to warrant its dismissal under the Rule — indeed, the facts are so compelling that the United States Attorney might well have moved on his own accord for dismissal under Rule 48(a) or to have consented to the grant of this motion.
The defendant is now past seventy years of age. Following his arrest in 1960, he states he was advised by federal agents that if he cooperated he would have nothing to worry about. The government concedes that thereafter he "cooperated with the Bureau of Narcotics to their satisfaction" for a period of approximately a year and a half, but that due to illnesses and confinement to bed, he was subsequently no longer available for such cooperative services. Finally, in September 1965, almost six years after the commission of the alleged offenses, but shortly before the expiration of the limitation period, the current indictment was returned, which the defendant states was contrary to what he was advised, or at least contrary to his understanding. He states he was told by narcotics agents that he did not need a lawyer, and he had none at the time of his arraignment, when the court directed a plea of not guilty be entered. It appears, however, that at some point a Legal Aid attorney was designated to represent him; just when it is not clear from this record. In any event, there followed further interminable delay, during which no attempt was made to bring this case to trial. According to the government, although disputed by the defendant, efforts to locate him were fruitless until April 1969, when he was located at an address in the Bronx by an agent, who reported to the United States Attorney that the defendant was "too ill and infirm to appear in court at that time."
Not surprisingly, those Assistants who were in charge of the case at its inception and during its early years are no longer members of the United States Attorney's staff. The present Assistant has no personal knowledge of the facts, but necessarily relies upon information provided him by an Assistant who had charge of the matter in 1962-66. In substance, the government's explanation for what it concedes is the "inordinate delay" in this case is that as a reward for the defendant's admitted cooperation it was decided to proceed under a "tax count," with the anticipation that the defendant would plead guilty; that because of the difficulty in locating the defendant this was never done. However, this does not excuse the government's failure to move this case for trial over a five and a half year period since the return of the indictment. Moreover, the defendant's allegation that government agents always knew where to locate him, and indeed called on him from time to time before the accident referred to hereinafter, that they assured him there was no need to worry about the case, and that they never requested him to come to court, is not denied.
In June 1969, the defendant, then sixty-nine years of age, was struck by a cab and confined to a hospital for over a year. He sustained a fracture of the back of his head and neck and a rod was inserted in his hip and leg. He was released about seven months ago, but still receives treatment as an outpatient. In addition to the injuries sustained as a result of the cab accident, the defendant, who is receiving welfare aid, suffers from a heart condition and tuberculosis of the spine; as he states it, he seems to "have everything a man can have and keep living."
Defendant swears that he does not now recall the events of 1959; that after the cab struck him he "can't remember too well"; that he does not remember the facts in this case; that he does not recall that a lawyer was assigned to him; and finally that he has not been in trouble with the law since 1959.
Apart from the fact that the government received full cooperation from the defendant, during which he insists he was repeatedly told not to worry, with the implicit suggestion that no prosecution would take place, his lack of memory or recall of events in 1959 appears to be genuine and would not be unusual under the facts here presented. Indeed, it is not disputed by the government. This is a case of unwarranted delay to the prejudice of the defendant, and accordingly the motion to dismiss the indictment is granted. Cf. United States v. Smalls, 438 F.2d 711 (2d Cir. 1971); United States ex rel. Solomon v. Mancusi, 412 F.2d 88, 90 (2d Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969); United States v. Dillon, 183 F. Supp. 541, 543-544 (S.D.N.Y. 1960).