United States v. Joseph C. Vispi

MULLIGAN, Circuit Judge

(dissenting):

I respectfully dissent. I know of no other decision in this circuit which concludes that although there was no violation of the time limitations provided by a district court’s Plan for the Prompt Disposition of Criminal Cases, there was nonetheless a delay so egregious that the defendant’s Sixth Amendment constitutional right to a speedy trial was violated. The majority opinion holds that while the mere length of time between the filing of the information and the trial, which was here 20 months, cannot in itself be classified as per se excessive, it may nonetheless be intolerably long in light of the peculiar circumstances of the case. United States v. Roberts, 515 F.2d 642, 646 (2d Cir. 1975).

While the period of delay here triggers the inquiry under Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972), I find no peculiar circumstances in this case which create constitutional infirmity. I believe the majority overstates the factor of prejudice to Vispi resulting from the delay. Although the majority properly concludes that the alleged pre-information delay here did not warrant constitutional protection, United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971), it nonetheless argues that this very delay did give the government ample time to marshal its evidence for a “simple and uncomplicated” trial. On the other hand, it finds that this period of delay plus the 20-month post-information delay which is all that is before us, damaged Vispi’s “formidable task of attempting to locate old records and to dredge up dimmed recollections.” I see no support in the record for this alleged prejudice. Vispi knew from his audit in 1969 that the IRS was aware that he had not filed his 1967 and 1968 income tax returns. He was an attorney and late in 1970 was concerned enough to have retained counsel in view of the IRS investigation. The record indicates, and the majority comments, that part of the pre-information delay is attributable to defendant’s attempts to dissuade the government from bringing a criminal, rather than a civil ac *336 tion. Vispi also retained a sophisticated New York City law firm which specialized in criminal tax matters. It is unrealistic in my opinion not to assume that his counsel had not only anticipated the possibility of criminal proceedings but had made efforts to ascertain the facts and to identify the records and the witnesses which would provide Vispi’s defense. The issue of his willfulness in failing to file had to be reviewed by Vispi and his counsel much earlier than any period of delay.

The majority also contends that the long pendency of the criminal charges had an adverse effect on his income since, as an attorney, others would hesitate to retain him because of the attack on his integrity. There is nothing in the record to support this hypothesis. While Vispi’s brief on appeal states that his income in 1970 and 1971 was less than his income in 1967 and 1968, no information was filed until 1974. Hence the delay could hardly have caused a diminution of income in prior years. The delay here permitted Vispi to continue whatever law practice he had. An earlier conviction would have had a much more serious impact than the filing of the information. I do not minimize the psychological trauma which every defendant faces once he is charged with a crime. But Vispi was never incarcerated, and he was charged with a crime which can hardly compare with the seriousness of the murder count faced by the defendant in the seminal case of Barker v. Wingo, supra, where the defendant waited for five years for a trial, spent ten months in jail, and the Court still found no constitutional violation of speedy trial rights.

The reason for the delay is clearly a factor to be considered under Barker’s balancing test. There is nothing at all to indicate that the government was delaying the trial of this case for some strategic advantage as in United States v. Roberts, supra, where the government’s studied inactivity prevented the defendant from obtaining a youthful offender probationary sentence since the criminal proceeding was delayed beyond his 26th birthday. The government, as found by the majority, had filed its notice of readiness within the time provided by the Prompt Disposition Rules then in effect in the Western District of New York. It is now urged that the district court was lethargic and lacked interest in the case, a judgment which is readily made in hindsight. It is true that institutional delays are chargeable to the government but “they are not appropriately treated with the same severity as delays procured by the prosecution.” United States v. Roberts, supra, 515 F.2d at 646 . In its discussion of this factor, the Supreme Court in Barker v. Wingo, supra, 407 U.S. at 531 , 92 S.Ct. at 2192 (footnote omitted) noted:

A deliberate attempt to delay the trial in otjder to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Since two of the three active judges in this overburdened district were precluded from trying the case because they knew Vispi (a former director of the local Bar Association and president of his class at the University of Buffalo Law School), there was only one judge available for the trial in the district. This did have some advantage for Vispi by removing the trial from Buffalo where he was well known to Rochester. It had the disadvantage of delaying the disposition of the case. Since calendar congestion or even negligence are to be classified as neutral factors in the balancing under Barker , I cannot weigh them heavily here.

Finally, it is the fact that the appellant here did request a prompt disposition of his case. Had he not sought a speedy trial under Barker v. Wingo, supra, 407 U.S. at 522 , 92 S.Ct. at 2188 , “the unsatisfactorily severe remedy of dismissal of the indictment” would not be appropriate. However, it does not follow that an unheeded request for prompt disposition necessarily requires that we dismiss the information. In United States ex rel. Walker v. Henderson, 492 F.2d 1311 (2d Cir.), cert. denied, 417 U.S. *337 972 , 94 S.Ct. 3179 , 41 L.Ed.2d 1144 (1974), the appellant, who claimed that his federal constitutional right to a speedy trial in a state court had been violated, had also unsuccessfully sought the prompt disposition of his trial. Even though he had been imprisoned for 15 months, this court found no constitutional violation. See United States v. Diaz, 535 F.2d 130, 133 (1st Cir. 1976).

I recognize that each case must rest on its own facts and that Barker v. Wingo, while identifying the relevant factors, does not purport to calibrate with precision the weight to be accorded each. See Rudstein, The Right to a Speedy Trial: Barker v. Wingo In the Lower Courts, 1975 U.Ill.L.F. 11, 58. However, I do not consider the lapse of time here to be that excessive particularly where no imprisonment was involved. I see no real prejudice to Vispi in the delay, and there is no evidence that it affected his income or damaged his defense. I consider the institutional delay neutral since it was not deliberate. I am not persuaded that his asking for prompt disposition creates any balancing in his favor. One would expect a member of the bar continuously represented here by competent counsel to make appropriate motions, which might not be the case with less sophisticated defendants charged with more serious crimes. While a failure of counsel here to seek a speedy trial would probably be fatal to the constitutional claim, it is clear that the failure of the court to grant the request does not automatically create a constitutional violation. In sum, considering all the circumstances, I do not believe that the delay here was of constitutional magnitude under Barker v. Wingo.