stated he 'didn't want to live'. His final break seems to have been acute.
'In addition to the above, he is retarded, inattentive, speaks in a low, at times inaudible, voice. He appeared almost catatonic at times, but retains his depressive affect. His field of interest is very narrow, and he cannot be directed into other fields.
* * * * * *
'It is my opinion that Mr. Burke is suffering from an Acute Psychotic Depressive Reaction, and that presently he is incompetent because of his mental condition to continue with the trial now in progress, to consult with counsel, or to participate in his own defense.'
The latest report on defendant Burke's psychiatric condition was filed on September 20, 1963, in which report the defendant's psychiatrist stated:
'* * * I have been seeing the above named in psychotherapy since his discharge from New Rochelle Hospital. He has recovered to a point where I am now spacing out the therapeutic intervals, and he is beginning to function fairly well. He has returned to his work as an insurance salesman, and though not quite as successful as he has been in the past, he is able to do some selling, but he feels that at the present time something has gone out of his selling ability and he does not have the talent now that he used to possess.
'He is no longer depressed, and I feel he is quite capable, if necessary, to stand trial. * * * '* * * I feel Mr. Burke is a well man at the present time, at least on the road to recovery * * *.'
In these circumstances, the issue is whether trial now would violate defendant Burke's constitutional right to a speedy trial, as guaranteed by the Sixth Amendment: '* * * the accused shall enjoy the right to a speedy and public trial * * *.'
To apply this constitutional standard, this Court must first determine the time when the alleged unconstitutional delay began to run. There is no claim here that there was any undue delay in commencing the first trial under the second indictment. Nor is there any claim that there has been any undue delay between the declaration of a mistrial as to this defendant in April, 1963, and the setting of a trial date at the present time. Nor is there any claim that either the first or the second indictment was presented after the five-year statute of limitations had run, 18 U.S.C. § 3282, since both indictments were filed well within the time permitted.
The defendant has argued that the time should be computed from the time the first indictment was presented, July 22, 1959, on the ground that the two indictments are so similar as to Amount to one continuing indictment. This contention must be rejected, however. Each use of the mails in a scheme to defraud is a separate and distinct offense. Thus the offenses charged in the second indictment are technically different from the offenses charged in the first, just as each offense in the two indictments is different from every other offense.
This Court has concluded that the time should be computed not from the time of the presentment of either indictment, but rather from the time of the offenses themselves, as charged in the second indictment -- namely, on various specific dates between May 15, 1958 and June 29, 1959. (The first indictment specified dates wholly within this period -- namely, between November, 1958 and January, 1959.) Although the periods between offense and indictment, and between indictment and trial would normally be computed separately, there are exceptional circumstances when the constitutional guarantee of a speedy trial necessitates considering the entire period between offense and eventual trial in order to determine whether the guarantee has been violated. Petition of Provoo, 17 F.R.D. 183 (D.Md.1955), aff'd. per curiam, 350 U.S. 857, 76 S. Ct. 101, 100 L. Ed. 761 (1955); United States v. Barnes, 175 F.Supp. 60 (D.Calif.1959). 'The number of years having elapsed since the commission of the offense is an important, but not conclusive, criterion.' Fouts v. United States, 253 F.2d 215, 217 (6th Cir. 1958).
Thus although Rule 48(b) seems to have fragmented the periods,
the constitutional guarantee of a speedy trial requires the Court, in the circumstances of this case, to decide whether the guarantee would be violated by trial now on charges which allege violations between May of 1958 and June of 1959.
To decide whether a particular period of delay violates the constitutional guarantee to a speedy trial, courts must examine carefully the particular facts in the case presented. 'The right to a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 576, 49 L. Ed. 950 (1905). (Emphasis added.) 'Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances. The delay must not be purposeful or oppressive.' Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 485-486, 1 L. Ed. 2d 393 (1957). (Emphasis added.) 'An extremely careful appraisal of the circumstances should be made by the court.' Fouts, supra, 253 F.2d at 217. 'Careful scrutiny is demanded by the exacting mandate of the Sixth Amendment.' Nickens v. United States, 323 F.2d 808, 812 (D.C.Cir. 1963) (concurring opinion).
There are four separate circumstances which lead this Court to conclude that the period between the offenses and trial in the immediate future amounts to a delay which is both 'purposeful' and 'oppressive,' to use the language of the Supreme Court in Pollard, supra, and that trial now would thus violate the defendant's right to a speedy trial.
In the first place, although the two indictments charged separate offenses, there is an important connection between these two indictments which requires this Court to conclude that the time required to present a new indictment significantly delayed the trial. Trial on the first indictment was ready to go forward in October of 1960, under court order, when the Government, for some reason, decided that it would be more advantageous to dismiss the first indictment and bring a new indictment. The Government definitely saw a binding link between the two indictments. As Mr. Conliffe stated to the court on October 7, 1960, the Government intended 'to re-present the matter' to a grand jury. If the two indictments were completely separate, there would have been no need to dismiss the first in order to bring the second. Thus this Court must conclude that the Government exercised a 'deliberate choice for a supposed advantage,' Petition of Provoo, supra, 17 F.R.D. at 202, which means that the delay between October 7, 1960, and the presentment of the new indictment on March 26, 1962, was 'purposeful,' in the language of Pollard, supra. Compare United States v. Shelton, 211 F.Supp. 869 (D.D.C.1962).
In the second place, assuming this connection between the first and second indictments, the delays necessitated by the change of venue from Puerto Rico to the District of Columbia, granted on motion of all defendants except defendant Burke, must also be considered. Defendant Burke was ready to proceed with trial in Puerto Rico. If he had succeeded in doing so, this matter might well have been disposed of in 1960.
Both of the above considerations were presented to Judge Pine and Judge Sirica when they denied previous motions of defendant Burke for dismissal for lack of a speedy trial. But in the interval since they so ruled, two additional considerations have developed.
The first of these later developments is the mental breakdown of defendant Burke. The mental condition of the defendant, if such condition has changed during the period between offense and trial, is highly relevant to deciding whether the guarantee of a speedy trial has been violated. Petition of Provoo, supra, 17 F.R.D. at 195, 203; Williams v. United States, 102 U.S.App.D.C. 51, 250 F.2d 19 (1957). Here we have a defendant whose mental and emotional processes broke down during the strain of a protracted trial after a prolonged delay since first being indicted, and who is now, according to one psychiatrist, competent to stand trial. The Government has no moved, however, for the commitment of the defendant to Saint Elizabeths Hospital for the normal 90-day period to determine the defendant's competency. The defendant's psychiatrist has stated to this Court, by affidavit, that
'Incarcerating him for three months in St. Elizabeth's Hospital, in my opinion, would be a procedure which would serve no purpose save perhaps making him worse. * * * Incarcerating him for three months in St. Elizabeth's would interfere with the therapy which I have outlined for him and proceeded on with a great deal of success.'
Thus, defendant's mental condition is still precarious, and commitment to Saint Elizabeths Hospital -- which this Court might well be required to order before trial to determine defendant's competency at the present time -- is presented to the Court as a serious threat to defendant's continued stability. In these circumstances, trial now would undoubtedly be 'oppressive,' to use the language of Pollard, supra, since during the long delay between offense and trial, defendant's mental condition has been seriously impaired.
One final consideration is important in this Court's conclusion that the defendant's right to a speedy trial would be violated by trial at the present time, over four years after the latest date mentioned in the indictment. Both the first and second indictments charged, in effect, that this defendant was merely one of the selling agents for the group of men who were behind the alleged fraud; in fact, the defendant has asserted that he was completely ignorant of the alleged scheme to defraud. Of the fourteen defendants indicted in this (the second) case, eight pleaded guilty (two in companion cases), one pleaded nolo contendere, three were found guilty by the jury, one was found not guilty, and one -- this defendant -- has the charges still pending. The these circumstances, even assuming that the defendant did have some knowledge of the scheme to defraud, the interest of society in punishing this particular individual at this time is slight -- especially in view of the emotional punishment which the defendant has already received.
Considering all of these circumstances -- the Government's purposeful delay, the co-defendants' delays, the oppressive effect which these delays had upon this defendant's mental condition, and the slight interest of society in punishing this particular defendant at this time -- this Court has concluded that trial now would violate this defendant's constitutional right to a speedy trial. The defendant's motion to dismiss the case will therefore be granted.