WATERMAN, Circuit Judge:
This is an appeal from a judgment order of the United States District Court for the Western District of New York, Burke, J., convicting appellant Carini, following a jury trial, of having violated 26 U.S.C. § 7512(b) by failing to deposit, into a trust account, taxes which had been withheld from the paychecks of employees of Carini Construction Company, a corporation of which Carini is president. There are only two issues raised on appeal here. The first is whether the government's failure to comply with the requirements of the recently enacted Speedy Trial Act, 18 U.S.C. §§ 3161-74, requires or justifies dismissal of the information. If dismissal is not so required or justified under the Speedy Trial Act, we reach the second issue and must decide whether the 34-month delay between the filing of the information and the commencement of trial violated Carini's Sixth Amendment right to a speedy trial. We reach the constitutional question, and we hold that Carini was deprived of his Sixth Amendment right to a speedy trial and, as a consequence, the information against him must be dismissed with prejudice.
The ten-count information which initiated this case was filed on March 15, 1974. Carini was arraigned ten days later, on March 25, 1974, at which time he pleaded "not guilty" to each of the counts and was released on his own recognizance. Shortly thereafter, on May 13, 1974, the government moved to have a trial date set. About two weeks later, however, the government advised the district court that plea negotiations were being conducted with the defendant and that there was a possibility of an agreement being reached with him. Under the terms of the contemplated agreement, a guilty plea to misdemeanor tax charges would eventually be entered by Carini's corporation, but not by Carini personally. It was expected that the corporation would satisfy all outstanding tax liabilities and that over a period of time before the agreement was actually consummated Carini, as his part of the bargain, would demonstrate his good faith by a scrupulous compliance with the tax withholding requirements of the Internal Revenue Code. Presumably because Carini expressed an interest in obtaining the obvious benefits to
Following the collapse of the contemplated plea bargain, there was little progress in the case. The district court took its usual summer recess in August of 1975 and therefore no progress was made during that month. The only activity in the next month and a half (i. e., from September 1, 1975 through October 14, 1975) was the government's motion, made on September 18, 1975, seeking to have a trial date set. During the next month (i. e., from October 14, 1975 until November 10, 1975) no progress was made because on October 14 and on October 28 the defense had been granted adjournments so that it might prepare and present a motion to dismiss based upon an alleged deprivation of Carini's right to a speedy trial. The hearing on the defendant's motion to dismiss the information was further postponed for another one-half month (i. e., from November 10, 1975 until November 24, 1975) because Judge Burke was hospitalized.
After Carini's motion to dismiss was submitted on November 24, 1975, the matter was taken under advisement and remained sub judice from November 24, 1975 until March 3, 1976, a period of slightly over three months. On March 3, 1976, Carini's motion to dismiss the information was denied in an unenlightening decision which reads as follows:
For the next two months (i. e., from March 3, 1976 until May 10, 1976) there was no progress in the case. Finally, on May 10, 1976, the government again moved to have a trial date set. At this time the defendant's attorney moved to withdraw from the case, and, shortly thereafter, on May 27, 1976, a new attorney was appointed to represent Carini. When and whether the new attorney was prepared to go to trial is not evident from the record now before us. In any event, the five-month period from June 13, 1976 until November 8, 1976 saw no progress because of Judge Burke's further hospitalizations and convalescences and the court's usual one-month summer recess. The government, however, concerned that it might not meet the Speedy Trial Act December 27, 1976 deadline for trial
It is clear, and indeed the government concedes, that, inasmuch as trial in
"[T]he right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied." Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). As we have frequently stated, see United States v. Vispi, 545 F.2d 328, 333 (2d Cir. 1976); United States v. Roberts, 515 F.2d 642, 645 (2d Cir. 1975); United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973) (per curiam); United States v. Saglimbene, 471 F.2d 16, 17 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2146, 36 L.Ed.2d 686 (1973), the usual factors to be evaluated in determining whether the defendant has been denied his Sixth Amendment right to a speedy trial are clearly delineated in Barker v. Wingo, supra. Under Barker, the four factors which should generally be considered are: (1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant has asserted his right to a speedy trial; and (4) the prejudice resulting to the defendant from the delay. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. These four factors are the primary components of a "balancing test [which] necessarily compels courts to approach speedy trial cases on an ad hoc basis." Id. at 530, 92 S.Ct. at 2192. No one "of the four factors [is, however,] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. at 533, 92 S.Ct. at 2193; United States v. Vispi, supra at 333. Rather, and perhaps most critical for purposes of the case presently before us, the four factors "must be considered together with such other circumstances as may be relevant." Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193 (emphasis supplied); accord, United States v. Vispi, supra at 333. We believe that the case before us now presents such an additional relevant circumstance, namely, the acknowledged violation of the Speedy Trial Act, which, in view of the closeness of the case here, we consider to be pivotal.
The length of the delay here — 34 months — is, indeed, disturbing and, although, as emphasized in Barker v. Wingo, supra, 407 U.S. at 521, 530-31, 92 S.Ct. 2182 and demonstrated in our own cases, see United States v. Vispi, supra; United States v. Roberts, supra, length alone is not dispositive, the length of the delay here does unquestionably "trigger," see Barker
Next to be considered are the reasons for the delay in bringing Carini to trial. We think, on balance, that the great bulk of the 34-month delay here must be assessed against the government. For instance, the initial 16-month delay (i. e., from March of 1974 through July of 1975) must be charged directly to the government. During this period plea negotiations were being conducted and the defendant was being given an opportunity to demonstrate his good faith, and, as we have recently explained in United States v. Roberts, supra at 647, when the prosecution enters into negotiations looking toward a plea bargain "in which a defendant's faithful performance of his part of the agreement is made a condition precedent to the prosecution's consent, at the time of pleading, to a reduction in [, or an elimination of,] the charges [, we] reject any notion that a defendant in effect waives his right to a speedy trial by consenting to such an agreement. Thus, if the government wishes to bargain for this condition, it may but it should do so mindful of the risks which it thereby assumes of dismissed indictments for unconstitutional delay."
It is clear, furthermore, and the government concedes, that the so-called "institutional" delays here — the lengthy delays occasioned by Judge Burke's illnesses, the court's summer recesses, and the otherwise unexplained inaction of the District Court, caused, no doubt, by an overloaded docket, Judge Elfvin's disqualifications and the vacancy on the District Court bench created by Judge Henderson's death — are properly chargeable against the government under prevailing case law, see e. g., Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182; United States v. Lane,
We do not think it significant that Carini waited approximately 20 months before claiming that he had been denied his constitutional right to a speedy trial. During most of this time he was operating under the impression, eventually proved to be an erroneous one, that the prosecutor in the Western District of New York had the authority to offer him the attractive plea bargain proposal which had originally been made and pursuant to which Carini was attempting to demonstrate good faith compliance with tax withholding requirements. Moreover, as already discussed, we stated quite clearly in United States v. Roberts, supra at 647, that a defendant does not waive his constitutional right to a speedy trial merely by attempting to make such a sustained demonstration of good faith compliance. We also pointed out in Roberts that the time that accrues during this period is to be weighed against the prosecution.
Whether, and how, Carini was prejudiced by the delay is not so easily determined. The government makes a persuasive argument here that Carini suffered little, if any, actual prejudice. It points out that, inasmuch as his own character witnesses were completely unaware until a few days before trial that Carini had been charged with criminal conduct, Carini's reputation in the community was apparently not damaged by the pending criminal charges. At no point was Carini incarcerated. Carini's business, it is true, encountered financial difficulties while the charges against him were pending, but, as the government asserts, these problems, in contrast to the pecuniary harm to the defendant-attorney in United States v. Vispi, supra at 334-35, seem more likely to be traceable to the existing public knowledge of the underlying financial instability of Carini's business than to any public awareness of the criminal charges then pending against him.
Carini argues, however, that there were specific ways in which he was prejudiced. Although he does not claim that the significant delay was intentionally nurtured by the government to allow it to gain a tactical advantage over him, Carini does argue that his sole defense at trial, like Vispi's "lack of willfulness" defense in United States v. Vispi, supra at 335, was harmed by the inordinate delay. Specifically, Carini, relying upon 26 U.S.C. § 7215(b)(2), defended at trial on the ground that his failure to make the required bank deposits was "due to circumstances beyond his control." Those circumstances were that numerous judgments (seventeen in addition to the IRS action against him), attachments and restraining orders destroyed any actual control he might have had over the bank accounts from which he would have paid the withholding taxes he owed the government. Thus, he argues, he was incapable of making the special bank deposits the IRS was requiring of him. The long passage of time between the time of these transactions and the time of trial had, however, made it considerably more difficult for Carini to recall all the details of the myriad legal proceedings which had been instituted against him at about the time the IRS was actively pursuing him. Carini's argument, while not entirely unpersuasive, is fairly weak, because here, unlike the situation in Vispi, the information was filed a short time after the crimes were committed while the facts were still fresh in Carini's mind and Carini seemingly would have begun at that point to develop his defense by committing to writing the various "circumstances" which he claims made it impossible for him to pay over to the government the taxes he had withheld from his employees.
In further support of his claim that he was harmed by the long delay, Carini urges, and we can safely accept the statement, that he suffered the "anxiety [arising from] a public accusation of criminal conduct," United States v. Vispi, supra at 335, which constitutes, as we have stated, "substantial harm of [a] type which the Sixth Amendment was intended to remedy." Id. at 334.
While we think, on the whole, that the showing of prejudice here is not particularly strong, we believe that the other three factors enumerated in Barker lean generally against the government. The delay was a patently long one and it was largely chargeable to the government. Even if we were to disregard the time during which a mutually agreeable termination of the case remained a possibility,
The judgment of conviction is reversed and the case is remanded with instructions to dismiss the information with prejudice.