Jun 23

‘Serious’ Delay Found to Violate Speedy Trial Act

PUBLICATION: New York Law Journal Online
DATE: 03-05-2004
ARTICLE: ‘Serious’ Delay Found to Violate Speedy Trial Act
by Mark Hamblett
A three-year delay between arrest and indictment prompted an Eastern District judge to dismiss charges against a Long Island woman for violation of the Speedy Trial Act.

Judge Denis R. Hurley took the unusual step of dismissing, with prejudice, the indictment against Mary Mancuso, who was charged with knowingly transferring stolen corporate checks across state lines in 1997.

Judge Hurley said the case, United States v. Mancuso , 01-CR-74, “did not simply fall off the radar screen” during the three-year gap between arrest and indictment, “given the evidence of intermittent plea negotiations that occurred during the period.”

The complaint filed against Ms. Mancuso in October 1997 claimed that as office manager and bookkeeper of VIMRx Pharmaceuticals, Inc., she signed 74 checks totaling $590,600 payable to C.X.I. Inc., a company of which she was part owner.

At her arraignment, a 30-day waiver of her right to a speedy indictment was entered, and a 60-day extension was later agreed to by her attorney.

When she was indicted on Jan. 19, 2001, Ms. Mancuso moved to dismiss under the act, 18 U.S.C. ยง3162(a)(1), which requires that an indictment be returned within 30 days of arrest if court extensions are not granted.

While noting that the “seriousness of the offense charged weighs against a dismissal of the indictment with prejudice,” Judge Hurley also said that, “It is undisputed that the delay here is serious.”

The government raised three issues, arguing first that Ms. Mancuso should be barred from claiming a speedy trial violation because she induced the delay, second that her defense counsel repeatedly stated he would not raise speedy trial issues, and finally, that the prosecutor handling the case, who is no longer with the office, wrongly assumed that the complaint had been dismissed, making the delay an “isolated, unwitting violation,” of the act.

The government raised three issues, arguing first that Ms. Mancuso should be barred from claiming a speedy trial violation because she induced the delay, second that her defense counsel repeatedly stated he would not raise speedy trial issues, and finally, that the prosecutor handling the case, who is no longer with the office, wrongly assumed that the complaint had been dismissed, making the delay an “isolated, unwitting violation,” of the act.

The judge found the government’s claim that the defense counsel agreed not to raise speedy trial issues “similarly unsubstantiated.”

As to the government’s argument that the former prosecutor believed the complaint had been dismissed, Judge Hurley said the legitimacy of that statement, although made in good faith, “is belied by the concurrent claim that defense counsel supposedly asserted, as previously discussed, that they would ‘not raise any speedy trial issues.'”

“If, contrary to the fact, the complaint had been dismissed, such assurances would have been superfluous as no speedy trial issue under the Act would have arisen,” he said.

Judge Hurley said the former prosecutor had “endeavored to comply” with the act’s requirements during the first 90 days following the filing of the complaint and had engaged in plea negotiations. The judge also said the government was now “speculating” that the prosecutor had believed the complaint had been dismissed.

“Those three considerations, together with other evidence presented, signify a continuing neglectful attitude during the three-year pre-indictment delay, rather than an isolated, unwitting violation of the Speedy Trial Act,” Judge Hurley said.

Track Record

The government, he said, had argued that the Eastern District U.S. Attorney’s Office “has a proven track-record of compliance with the Act’s mandates.”

And while the judge said that track record would normally favor dismissal of the case without prejudice, he also said: “but it must be remembered that, in the final analysis, the Office operates through its AUSAs.”

“In some instances, that means that a dismissal with prejudice is called for even if the Office practice generally honors the requirements of the Speedy Trial Act,” he said.

Stephen P. Scaring, Matthew W. Brissenden and Faith A. Freidman of Stephen Scaring, and Randy Scott Zelin of Westbury, represented Ms. Mancuso. Assistant US Attorney Mark Lesko now represents the government.