The opinion of the court was delivered by: SIRICA
The defendants herein were convicted by a jury of violations of the federal mail fraud statute,
and were sentenced to a term of imprisonment of from twenty months to five years. From that judgment they appealed. The United States Court of Appeals for the District of Columbia Circuit remanded the cause for a hearing to determine certain matters relating to the defendants' right to a speedy trial as guaranteed by the Sixth Amendment, and as to whether unnecessary delay in bringing the prosecution against the defendants requires a dismissal of the case under Rule 48(b).
Hanrahan v. United States, 121 U.S. App. D.C. 134, 348 F.2d 363 (1965).
The defendants were first indicted in the United States District Court for the District of Puerto Rico. The indictment charged these defendants and seven other persons in sixty-five counts with fraudulent mailings to Puerto Rican citizens pursuant to a scheme to defraud. Three months after the indictment was returned, the defendants filed a motion for change of venue, alleging that prejudicial pretrial publicity made a fair trial in Puerto Rico impossible, and that most of their witnesses lived in the continental United States and that the defendants were without funds to bring these witnesses to Puerto Rico for trial. Some months later, this motion was granted and the case was transferred to the United States District Court for the District of Columbia. Subsequently, the United States indicated to the Court that it intended to dismiss the Puerto Rican indictment and to seek a new indictment before a grand jury in the District of Columbia. Between this announcement and the return of the indictment under which the defendants were convicted, some seventeen months elapsed.
The hearing on remand was held by this Court commencing on March 4, 1966, and continued from time to time until May 20, 1966. The defendants were present at the hearing, and along with the United States, were represented by able and experienced counsel. This hearing was directed at seeking answers to two questions which the Court of Appeals found unanswered by the voluminous trial record: (1) Did the prosecutor exercise reasonable diligence in seeking the second indictment; and (2) since the mailings took place in the District of Columbia, and the scheme was centered there, why was the prosecutor's discretion exercised in first bringing the case in Puerto Rico instead of the District of Columbia? Testimony of five witnesses totalling approximately twelve hundred typed pages, plus affidavits and documents were presented to the Court along with citations to the original trial record and proposed findings of fact and conclusions of law.
On or about February 12, 1959, Postal Inspector Stohlberg visited Mr. Francisco A. Gil, Jr., United States Attorney for the District of Puerto Rico, and brought to his attention numerous complaints concerning the activities of the Commercial Finance Service Corporation in Puerto Rico. Mr. Gil was, at that time, familiar with a circular issued from the Office of the Attorney General of the United States dealing with the so-called advance fee racket, and after examining the evidence presented to him by Inspector Stohlberg, he determined that Title 18, U.S.C. § 1341 had been, and was being, violated by agents of the Commercial Finance Service Corporation. He further determined that the victims of these offenses were what he considered poor persons. For these reasons, he authorized the filing of a complaint and the issuance of arrest warrants. The complaint was filed on February 13, 1959, with the United States Commissioner for the District of Puerto Rico, charging the defendant Shea and six other persons not now before the Court, with violations of 18 U.S.C. § 1341. The warrant for the arrest of defendant Shea was never executed and was returned to the United States Commissioner.
The United States Attorney in Puerto Rico received the final report from the Postal Inspector about six weeks following the arrests of agents of the Commercial Finance Service Corporation in Puerto Rico. On June 30, 1959, the defendants filed a motion to dismiss the Commissioner's proceedings against them. One of the grounds therefor was an alleged denial of a speedy trial, although the motion was unsupported by any factual allegations or citation of authority. Subsequently, on July 22, 1959, and although defendants' counsel had expressed a desire to waive indictment and proceed by way of information, an indictment was returned in the United States District Court for the District of Puerto Rico which charged these defendants and others in sixty-five counts with violations of the mail fraud statute. This matter had been presented to the grand jury by the United States Attorney in approximately one day. All of the counts of the Puerto Rican indictment charged violations which were within the applicable statute of limitations.
None of the present defendants had been arrested up to the date of the return of the indictment. On July 28, 1959, defendants Hanrahan and Shea surrendered themselves in the United States District Court for the District of Puerto Rico and were enlarged upon bond the same day. They were arraigned the following day and entered pleas of not guilty. Defendant Tynan was arrested in the State of Maryland on July 28, 1959, and was released on bond the same day. Defendant Tynan was never arraigned during the pendency of the case in Puerto Rico. At their arraignment, counsel for Hanrahan and Shea moved for a trial as soon as possible. The Court declined to grant the motion on the ground that it could not set a trial date until all of the defendants were produced and arraigned.
On August 28, 1959, the defendants, through counsel, filed a motion for a bill of particulars. The bill of particulars was filed by the government on October 13, 1959. On September 21, 1959, the case was scheduled for trial on November 16, 1959. However, on October 28, 1959, the defendants filed a motion for change of venue, and on November 3, they also moved for a continuance of the trial date, alleging that the case was complicated and that they would be unable to prepare it for trial within such a short period. The motion was granted on November 4, 1959, and the trial date was continued until March 28, 1960. There is no indication that the defendants, or the government, sought a hearing on the defendants' motion for change of venue. On November 6, 1959, the Court entered an order continuing the hearing on this motion until further order. On February 10, 1960, the defendants filed their second motion for a continuance, requesting a delay until June, 1960. The grounds for this motion were that counsel would not be available until May; that the defendants were as yet still unprepared; and that they would be in a better position to defray expenses if the trial was held in the summer months. On March 14, 1960, this motion for a continuance was granted, and the trial was set for June 6, 1960. On May 2, 1960, the Court entered an order setting the pending motions, including the motion for change of venue, for a hearing on May 12, 1960. On May 9, 1960, the defendants moved for a further continuance of the trial date on the ground that their attorney would necessarily be in the continental United States until the end of June, 1960. The United States filed a formal opposition on the following day.
On May 12, 1960, a hearing was held on the defendants' motion for change of venue. The Court noted that the defendants would undoubtedly be subject to some local prejudice in Puerto Rico, indicating that it did not know whether the passage of time from the publication of the newspaper articles would have allowed their influence to subside or disappear. The Court, observing that the newspaper articles brought out the contentions of both the prosecution and the defense, as to the legitimacy of the business that had been conducted, took the defendants' motion under advisement. On May 24, 1960, an order was entered granting the defendants' motion for change of venue. As the basis for its ruling, the Court mentioned the newspaper publicity which had taken place about the time of the defendants' arrest in Puerto Rico, and also noted that the majority of the jurors would probably be occupied in trades, businesses, etc., similar to those of the alleged victims. The Court also recognized the defendants' precarious financial condition and the fact that most of the witnesses they intended to call lived or had their offices in Washington, D.C., in the vicinity of Washington, D.C., or elsewhere on the mainland.
It is the defendants' contention that the prosecution in Puerto Rico was under the direction and control of the Department of Justice and that the case was brought in that District in order to take advantage of the situation which existed there, and to put the defendants at a disadvantage in the presentation of their defense.
The exhibits and testimony indicate that there was considerable correspondence between the United States Attorney in Puerto Rico and the Department of Justice. In addition, Mr. Gil testified that he participated in eight or ten conferences, including telephonic communication, with the Department concerning the case. On May 28, 1959, the Department informed Mr. Gil that they were concerned that there be no more delays before presenting the case to the grand jury, and offered their assistance to him. On the following day, Mr. Gil called the Department of Justice and indicated that because of his crowded work schedule, he would welcome assistance in preparing the indictment. Subsequently, sample indictments were furnished by the Department, and Mr. Gil was requested to forward by air mail a copy of the indictment he would use. Upon receipt of this indictment, the Department indicated to Mr. Gil that it had doubts about portions of it, but before a revised copy could be prepared by the Department, the indictment was filed in Puerto Rico. In addition to cooperation in the preparation of the indictment, there was correspondence between the United States Attorney and the Department of Justice regarding the defendants' desire to waive indictment; opposition to the motion for change of venue and other offers of assistance.
It is apparent to the Court that the Department of Justice was interested in the prosecution of mail fraud schemes in general, and in this case in particular, in conjunction with the Attorney General's program to eradicate consumer frauds. However, the United States Attorney for the District of Puerto Rico had the authority to initiate prosecutions for violations of federal statutes which were taking place in Puerto Rico, and at no time prior to his authorizing the filing of the complaint and the issuance of the arrest warrants in this case, did Mr. Gil consult with any official of the Department of Justice. Furthermore, although the Post Office Department was conducting an investigation of the defendants and their activities in the continental United States prior to the time the defendants began their operations in Puerto Rico, it is apparent that Mr. Gil did not learn of this investigation until immediately before he presented his case to the Puerto Rican grand jury, and that at that time the investigation of continental cases had not been completed. It is the Court's conclusion, based on the foregoing, and upon the whole record of this case, that the decision to bring the prosecution in the United States District Court for the District of Puerto Rico was an independent judgment by the United States Attorney, and that in so deciding, he was not controlled by the dictates of the Department of Justice.
The further question remains: Why did the prosecutor choose to bring the action in Puerto Rico? As indicated, it is the defendants' position that this was done to take advantage of supposed local prejudice and to place the defendants at a disadvantage, that is, that the decision was a deliberate choice made for a supposed advantage. The Court does not feel that this inference can be drawn from the evidence. On or about February 13, 1959, the agents of Commercial Finance Service Corporation operating in Puerto Rico had already collected more than $20,000 pursuant to their activities. It was apparent that a federal statute had been, and was then being, violated and that the residents of the district were being victimized. Furthermore, the continental investigation, of which the prosecutor later became aware, had not yet been completed, while the investigation of Puerto Rican cases was completed within two months after the warrants were issued. It is reasonable to assume that when he did become aware of this investigation he felt that a trial on the Puerto Rican charges would be more feasible under the circumstances, than waiting for the completion of the investigation in the continental United States. Furthermore, as subsequent events would indicate, a trial in Puerto Rico on the Puerto Rican charges could possibly have taken place prior to a trial in the District of Columbia on the same charges. In the last analysis, it appears to this Court that the prosecutor felt that it was his duty to stop a continuing offense whereby residents of his district were being victimized. There is no indication that this decision was reached in utter disregard for the defendants' rights. In the opinion of this Court, the prosecutor would have been derelict in his duty if he had not moved swiftly, as he did.
II. The Prosecution in the District of Columbia
The pleadings, bonds and photostatic copies of docket entries were transmitted from the Clerk of the United States District Court for the District of Puerto Rico on June 1, 1960, and arrived in the office of the Clerk of the United States District Court for the District of Columbia on June 3, 1960. The United States Attorney for the District of Columbia was notified of the transfer of the case on June 14, 1960, and on June 23, 1960, the matter, designated Criminal Case No. 510-60, was assigned to Assistant United States Attorney Harry T. Alexander, by the Chief of the Criminal Division of the United States Attorney's Office. On June 28, 1960, Mr. Philip F. Herrick entered his appearance as attorney for the instant defendants and four others. On July 1, 1960, several defendants, other than the present ones, filed a motion to continue arraignment until the first day of trial. On July 6, 1960, Mr. Alexander filed an opposition to this motion indicating that the presence of all defendants before the Court would enable the Court to fix a trial date agreeable to all and eliminate further requests for a continuance. On July 5, 1960, the defendants' motion was denied and the Court ordered that the arraignment of defendant Tynan, and four co-defendants who had not been previously arraigned in Puerto Rico, be set for August 5, 1960.
At the arraignment, the government requested that the trial be set for some time in January, 1961. The defendants opposed this, urging their Constitutional right to a speedy trial. The Court tentatively set the case down for trial on October 10, 1960. On August 12, 1960, the government moved again to have the case set for trial in January, 1961, and in their opposition, the defendants again demanded a speedy trial. These demands for a speedy trial are interesting, especially in view of the fact that at least until February 10, 1960, the defendants were not prepared for trial in Puerto Rico, and that they were unable to go to trial there as late as June, 1960, although upon arraignment in Puerto Rico on July 29, 1959, they had demanded a trial as soon as possible. During the pendency of the ...