United States v. Anthony R. Colombo & Joseph Colombo, Jr., 852 F.2d 19 (1st Cir. 1988). · Go Syfert
United States v. Anthony R. Colombo & Joseph Colombo, Jr., 852 F.2d 19 (1st Cir. 1988). Cases Citing This Book View Copy Cite
115 citation events (59 in the last 25 years) across 21 distinct courts.
Strongest positive: Penn Jr. v. People of the VI (virginislands, 2026-05-08)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
discussed Cited as authority (rule) Penn Jr. v. People of the VI
virginislands · 2026 · confidence medium
This approach expressly has been adopted by the First and Seventh Circuits, see United States v. Colombo, 852 F.2d 19, 24 (lst Cir. 1988); United States v. Fuesting, 845 F.2d 664, 668 (7th Cir. 1988), by at least thirteen state courts, and by Congress in implementing the Sixth Amendmentright right in the Speedy Trial Act of 1974.
discussed Cited as authority (rule) United States v. Pizarro-Mercado (2×) also: Cited "see"
1st Cir. · 2025 · confidence medium
In response, the government points aptly to this court's prior expression that "superseding indictments setting forth new charges or adding new defendants are familiar fare," United States v. Flemmi, 245 F.3d 24, 28 (1st Cir. 20Huertas observes that the COVID-19 pandemic played a major role in the delay ad rem, but he does not "blame the government for that." See, e.g., United States v. Vargas, 97 F.4th 1277 , 1291 (11th Cir. 2024) ("At the most basic level, everything slowed down during the COVID-19 pandemic."). - 47 - 2001), which, together with our prior pronouncement that we will not "find…
discussed Cited as authority (rule) State of Alabama v. Ray Charles Williams (Appeal from Montgomery Circuit Court: CC-22-620)
Ala. Crim. App. · 2024 · confidence medium
As the United States Court of Appeals for the First Circuit has noted, under that theory the State "would be able to nullify a defendant's speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution." United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988).
discussed Cited as authority (rule) United States v. Lara
1st Cir. · 2020 · confidence medium
But, his contention that the delay impacted witness's memories is almost entirely speculative, and "[t]he passage of time alone . . . is not - 27 - conclusive evidence of prejudice." United States v. Colombo, 852 F.2d 19, 26 (1st Cir. 1988).
discussed Cited as authority (rule) United States v. Irizarry-Colon (2×)
D.P.R. · 2017 · confidence medium
Generally, a defendant is expected- to ze.alously pursue bis or her right, and not merely wait until a speedy, trial motion “[becomes] a possibly viable way to preclude consideration of the merits of the case.” U.S. v. Colombo, 852 F.2d 19, 26 (1st Cir. 1988).
examined Cited as authority (rule) United States v. Irizarry-Colon (4×) also: Cited "see"
1st Cir. · 2017 · signal: cf. · confidence medium
See United States v. Rojas-Contreras, 474 U.S. 231, 239 , 106 S.Ct. 555 , 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring in the judgment); Myers, 666 F.3d at 405 (collecting cases); cf. United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988) (acknowledging this distinction in dicta); United States v. Krynicki, 689 F.2d 289, 292-93 (1st Cir. 1982) (reaching similar conclusion with regard to *66 thirty-day period between arrest or service with summons and indictment).
discussed Cited as authority (rule) State Of Washington, V Arturo Martin
Wash. Ct. App. · 2016 · confidence medium
Although the length of delay is sufficient to trigger the Barker analysis, because the delay does not substantially exceed the "bare minimum" and Martin's prior convictions complicated the case, this factor weighs in favor of the State. 11 See Iniquez, 167 Wn.2d at 292 . 12 State v. 011ivier, 178 Wn.2d 813, 828 , 312 P.3d 1 (2013) (quoting United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988)). 13 178 Wn.2d 813, 828-29 , 312 P.3d 1 (2013). -7- No. 75230-8-1 / 8 The second factor is the reason for the delay and which party is more responsible for it.14 "'[D]elay caused by the defense weighs…
discussed Cited as authority (rule) State of Washington v. Marco Antonio Gallegos
Wash. Ct. App. · 2016 · confidence medium
Considering all, we find the roughly 18- month delay was sufficient to trigger a full Barker examination. "' [T]he length of delay is both the trigger for analysis and one of the factors to be considered."' State v. Ollivier, 178 Wn.2d 813,828 ,312 P.3d I (2013) (quoting United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988)).
discussed Cited as authority (rule) State v. R. Butterfly (2×)
Mont. · 2016 · confidence medium
We agree with the First Circuit, however, that “[t]hat distinction ... flies in the face of the opinion itself: MacDonald holds that the speedy trial right simply does not attach to one not formally accused.” United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988).
discussed Cited as authority (rule) United States v. Carpenter (2×) also: Cited "see"
1st Cir. · 2015 · confidence medium
See United States v. Salimonu, 182 F.3d 63, 69 (1st Cir.1999); United States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir.1997); United States v. Colombo, 852 F.2d 19, 21 (1st Cir.1988).
discussed Cited as authority (rule) People v. Nelson (2×) also: Cited "see, e.g."
Colo. Ct. App. · 2014 · confidence medium
And we note, as have other courts, that were the rule otherwise-that is, if the rule were that the speedy trial clock resets, rather than resumes, upon the refiling of previously dismissed charges-"the government would be able to nullify a defendant's speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution." United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir.1988): accord Commonwealth v. Butler, 464 Mass. 706 , 985 N.E.2d 377, 384 (2013) (applying the Massachusetts Constitution). 31 The majority of courts in othe…
cited Cited as authority (rule) United States v. Worthy
1st Cir. · 2014 · confidence medium
"We refuse to find bad faith from a record barren of indications that any in fact existed.” United States v. Colombo, 852 F.2d 19, 25 (1st Cir.1988). 11 .
cited Cited as authority (rule) State v. Ollivier
Wash. · 2013 · confidence medium
Thus, "the length of the delay is both the trigger for analysis and one of the factors to be considered." United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988).
cited Cited as authority (rule) State v. Ollivier
Wash. · 2013 · confidence medium
Thus, "the length of the delay is both the trigger for analysis and one of the factors to be considered." United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988).
discussed Cited as authority (rule) State v. Ollivier
Wash. · 2013 · confidence medium
Thus, “the length of the delay is both the trigger for analysis and one of the factors to be considered.” United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988). ¶24 The more than eight-year delay in Doggett was clearly sufficient to trigger the speedy trial inquiry.
cited Cited as authority (rule) United States v. Marrero-Romero
D.P.R. · 2013 · confidence medium
In “weighing all [four of the Barker ] factors collectively,” United States v. Colombo, 852 F.2d 19, 23 (1st Cir.1988), our inquiry has revealed no constitutional violation.
discussed Cited as authority (rule) United States v. Wilson
C.A.A.F. · 2013 · confidence medium
Rather, ‘we must still weigh all the factors collectively before deciding whether a defendant’s right to a speedy trial has been violated.’” United States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010) (quoting United States v. Colombo, 852 F.2d 19, 23 (1st Cir. 1988)); Barker, 407 U.S. at 533 .
discussed Cited as authority (rule) United States v. Wilson (2×)
C.A.A.F. · 2013 · confidence medium
Rather, ‘we must still weigh all the factors collectively before deciding whether a defendant’s right to a speedy trial has been violated.’ ” United States v. Dowdell, 595 F.3d 50, 60 (1st Cir.2010) (quoting United States v. Colombo, 852 F.2d 19, 23 (1st Cir.1988)); Barker, 407 U.S. at 533 , 92 S.Ct. 2182 .
discussed Cited as authority (rule) Commonwealth v. Butler
Mass. · 2013 · confidence medium
Like MacDonald , our decision in Burton v. Commonwealth, 432 Mass., 1008, 1008-1009 (2000) (Burton), did not address the “resume versus reset” issue, but instead merely stated the uncontroverted position that the speedy trial clock stops when the Commonwealth dismisses charges in good faith. 12 Notwithstanding MacDonald’s “good faith” qualifier, we think the “resume” theory expresses the better view because, “[w]ere it otherwise, the government would be able to nullify a defendant’s speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial…
examined Cited as authority (rule) United States v. Irizarry-Colon (3×) also: Cited "see", Cited "see, e.g."
D.P.R. · 2011 · confidence medium
See 18 U.S.C. § 3161 (h)(5)(2008); 1 see also Rojas-Contreras, 474 U.S. at 239 , 106 S.Ct. 555 ; United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir.1988) (internal citations omitted) (discussing how the STA excludes the time between the indictments and “not the time during the pendency of the first indictment” when a government voluntarily dismisses charges).
discussed Cited as authority (rule) United States v. Dowdell
1st Cir. · 2010 · confidence medium
Thus, “the length of the delay is both the trigger for analysis and one of the factors to be considered.” United States v. Colombo, 852 F.2d 19, 24 (1st Cir.1988); see also Doggett v. United States, 505 U.S. 647, 651 , 112 S.Ct. 2686 , 120 L.Ed.2d 520 (1992) (referring to the length-of-delay factor as a “double enquiry”).
cited Cited as authority (rule) In Re Kirsten P.
N.H. · 2008 · confidence medium
Colombo, 852 F.2d at 23-24 (citations omitted).
discussed Cited as authority (rule) State v. Urdahl
Wis. Ct. App. · 2005 · confidence medium
United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988) (included if the State voluntarily dismisses the charges); State v. Adams, 585 A.2d 853, 855-56 (N.H. 1991) (following Colombo); State v. Brazell, 480 S.E.2d 64, 70 (S.C. 1997).
discussed Cited as authority (rule) United States v. Casas
1st Cir. · 2004 · confidence medium
United States v. Henson see also United States v. Colombo , 852 F.2d 19, 25 (1st Cir. 1998) (emphasizing that Barker requires minimization, not elimination, of "the natural consequences of an indictment").
discussed Cited as authority (rule) State v. Allen (2×) also: Cited "see, e.g."
N.H. · 2003 · confidence medium
The First Circuit Court of Appeals stated in United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988), that “[sjince a person who is ‘between indictments’ is no longer the subject of public accusation, we do not count the time between indictments in assessing the length of time one has been ‘accused.’” Even though the individual may be aware of the ongoing investigation and likely prosecution, he is not subject to the restraints of liberty that the Sixth Amendment to the United States Constitution and Part 1, Article 14 of the New Hampshire Constitution seek to prevent.
discussed Cited as authority (rule) Rashad v. Walsh
D. Mass. · 2002 · confidence medium
E.g., Look v. Amaral, 725 F.2d at 6-7 (petitioner “remained silent throughout the Commonwealth’s long delay,” where “some inquiry by Look as to the status of the action against him might easily have remedied the situation”); Trueber, 238 F.3d at 90 (petitioner did nothing to expedite his trial “for nearly nine months following his arrest, ... and did not raise the issue until one month after the case was on appeal” to the First Circuit); United States v. Colombo, 852 F.2d 19, 26 (1st Cir.1988) (observing that the defendants were “content to wait until assertion of the right bec…
discussed Cited as authority (rule) United States v. Trueber
1st Cir. · 2001 · confidence medium
See, e.g., id. (assuming that a nineteen-month delay was presumptively prejudicial); United States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir.1997) (assuming that a fifteen-month delay was presumptively prejudicial); United States v. Colombo, 852 F.2d 19, 24 (1st Cir.1988) (holding that a twenty-four-month delay was long enough to be presumptively prejudicial).
discussed Cited as authority (rule) United States v. Franco (2×)
D.P.R. · 2000 · confidence medium
“This right attaches upon arrest or indictment, whichever occurs first.” United States v. Muñoz-Amado, 182 F.3d at 61 (citing United States v. MacDonald, 456 U.S. 1, 6-7 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982); United States v. Mala, 7 F.3d 1058, 1061 (1st Cir.1993); United States v. Colombo, 852 F.2d 19, 23 (1st Cir.1988)); see United States v. Marion, 404 U.S. 307, 325 , 92 S.Ct. 455, 466 , 30 L.Ed.2d 468 (1971).
examined Cited as authority (rule) United States v. Munoz Amado (3×) also: Cited "see"
1st Cir. · 1999 · confidence medium
See United States v. MacDonald, 456 U.S. 1, 6-7 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982); United States v. Mala, 7 F.3d 1058, 1061 (1st Cir.1993); United States v. Colombo, 852 F.2d 19, 23 (1st Cir.1988).
examined Cited as authority (rule) United States v. Santiago-Becerril (8×) also: Cited "see", Cited "see, e.g."
1st Cir. · 1997 · confidence medium
See United States v. MacDonald, 456 U.S. 1, 6-7 , 102 S.Ct. 1497, 1500-02 , 71 L.Ed.2d 696 (1982); United States v. Mala, 7 F.3d 1058, 1061 (1st Cir.1993); United States v. Colombo, 852 F.2d 19, 23 (1st Cir.1988).
examined Cited as authority (rule) United States v. Santiago-Becerril (4×) also: Cited "see"
1st Cir. · 1997 · confidence medium
We shall assume, under the foregoing, that the fifteen month delay in this case was "presumptively prejudicial" so as to trigger further inquiry as to Santiago, see, e.g., Koller, 956 F.2d at 1414 (holding that an eight _________ ______ and one-half month delay was enough to warrant further inquiry); Colombo, 852 F.2d at 24 (holding that a twenty-four _______ month period was long enough to be presumptively prejudicial); King, 909 F. Supp. at 372 (holding that a ____ thirty-one month delay was sufficient to trigger the Barker ______ test).
discussed Cited as authority (rule) State v. Henson
Md. · 1994 · confidence medium
See United States v. Koller, 956 F.2d 1408, 1413 (7th Cir.1992); United States v. Meyer, 906 F.2d 1247, 1251 (8th Cir.1990); United States v. Dyal, 868 F.2d 424, 429 (11th Cir.1989); United States v. Columbo, 852 F.2d 19, 24 (1st Cir.1988); United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir.1988); United States v. Mize, 820 F.2d 118, 121 (5th Cir.1987), cert. denied, 484 U.S. 943 , 108 S.Ct. 328 , 98 L.Ed.2d 355 (1987); State v. Johnson, 564 A.2d 364, 367-68 (Del.Super.1989); Wooten v. State, 262 Ga. 876, 426 S.E.2d 852, 855-56 (1993); Commonwealth v. Miles, 816 S.W.2d 657, 659 (Ky.App.), …
discussed Cited as authority (rule) United States v. Mala
1st Cir. · 1993 · confidence medium
See, e.g., Robinson v. Whitley, ______ ___ ____ ________ _______ 2 F.3d 562 , ___ (5th Cir. 1993) [ 1993 U.S. App. LEXIS 23270 , at *27]; United States v. Aquirre, 994 F.2d 1454, 1457 (9th Cir. _____________ _______ 1993); United States v. Colombo, 852 F.2d 19, 26 (1st Cir. 1988); _____________ _______ Flowers v. Fair, 680 F.2d 261, 262 (1st Cir. 1982). _______ ____ 8 into proper perspective must, at the very least, call the need for a hearing to the court's attention and ask that a hearing be convened.
discussed Cited as authority (rule) United States v. Mala
1st Cir. · 1993 · confidence medium
See, e.g., Robinson v. Whitley, 2 F.3d 562, 569 (5th Cir.1993); United States v. Aquirre, 994 F.2d 1454, 1457 (9th Cir.1993); United States v. Colombo, 852 F.2d 19, 26 (1st Cir.1988); Flowers v. Fair, 680 F.2d 261, 262 (1st Cir.1982). 4 .
examined Cited as authority (rule) United States v. David Henson, A/K/A Paul v. Andrews (4×) also: Cited "see"
1st Cir. · 1991 · confidence medium
See United States v. Iaquinta, 674 F.2d 260, 267 (4th Cir.1982) (“since there was no federal arrest of the defendants and no taking of them into federal custody until after they were indicted by a federal grand jury, there was no violation of .the Speedy Trial Act”); United States v. Shahryar, 719 F.2d 1522, 1523-1525 (11th Cir.1983) (starting date for STA is date defendant is delivered into federal custody). (ii) Sixth Amendment Henson contends that the nine and one half month delay between filing of the federal complaint and trial amounted to a sixth amendment deprivation. 6 A sixth-amen…
discussed Cited as authority (rule) State v. Dery
N.H. · 1991 · confidence medium
As we stated in State v. Adams, a challenged delay between original and subsequent indictments will be analyzed under speedy trial principles, in accordance with the approach articulated by the United States Court of Appeals for the First Circuit in United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988).
discussed Cited as authority (rule) State v. Adams
N.H. · 1991 · confidence medium
However, our view must now be tempered by the reasoning and holding of the Court of Appeals for the First Circuit that the relevant period of delay does in fact include the time the first indictments were pending, because “otherwise, the government would be able to nullify a defendant’s speedy trial rights by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution.” United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988).
cited Cited as authority (rule) United States v. Leary
D. Me. · 1988 · confidence medium
United States v. Columbo, 852 F.2d 19, 25-26 (1st Cir.1988).
cited Cited "see" Libby v. Divris
D. Mass. · 2024 · signal: see · confidence high
See United States v. Colombo, 852 F.2d 19, 25 (1st Cir. 1988).
discussed Cited "see" United States v. Albert E. Mills. United States of America v. Kenneth B. Wonson (2×)
D.C. Cir. · 1992 · signal: see · confidence high
See United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir.1988).
discussed Cited "see" State v. Curtis (2×)
Mont. · 1990 · signal: see · confidence high
See United States v. Columbo (1st Cir. 1988), 852 F.2d 19, 24 ; United States v. Richards (8th Cir. 1983), 707 F.2d 995, 997 ; United States v. Varella (11th Cir. 1982), 692 F.2d 1352, 1359 , cert. den. 464 U.S. 838 , 104 S.Ct. 127 , 78 L.Ed.2d 124 (1983); Cain v. Smith (6th Cir. 1982), 686 F.2d 374, 381 ; United States v. Nance (9th Cir.), 666 F.2d 353, 360 , cert. den. 456 U.S. 918 , 102 S.Ct. 1776 , 72 L.Ed.2d 179 (1982; United States v. Greene (5th Cir. 1978), 578 F.2d 648, 655 , cert. den. 439 U.S. 1133 , 99 S.Ct. 1056 , 59 L.Ed.2d 96 (1979); United States v. Calloway (D.C.
discussed Cited "see, e.g." State of Maine v. Nicholas W. Norris
Me. · 2023 · signal: see, e.g. · confidence medium
See, e.g., United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988); United States v. Fuesting, 845 F.2d 664, 668 (7th Cir. 1988); Butler, 985 N.E.2d at 383-84 ; State v. Allen, 837 A.2d 324, 326-27 (N.H. 2003); Durkee v. State, 357 P.3d 1106, 1111 (Wyo. 2015); Heard v. State, 761 S.E.2d 314 , 318-19 & n.2 (Ga. 2014); State v. Brazell, 480 S.E.2d 64, 70 (S.C. 1997); People v. Nelson, 360 P.3d 175, 181-83 (Colo. App. 2014); State v. Guerrero, 110 S.W.3d 155, 159 (Tex. Ct. App. 2003); In re Welfare of G.D., 473 N.W.2d 878, 881-82 (Minn. Ct. App. 1991).
discussed Cited "see, e.g." United States v. Benjamin-Hernandez
1st Cir. · 2022 · signal: see also · confidence medium
But Balbuena has not identified "undue pressures" that go "above and beyond the 'considerable anxiety [that] normally attends the initiation and pendency of criminal charges,' as [is] necessary to show prejudice." Worthy, 772 F.3d at 49 (first alteration in original) (quoting United States v. Maxwell, 351 F.3d 35, 41 (1st Cir. 2003)); see also Carpenter, 781 F.3d at 615 ("While [defendant] argues convincingly that he has suffered great stress throughout the proceedings, he does not demonstrate why his anxiety was - 11 - greater than that suffered by many other defendants, other than that it co…
discussed Cited "see, e.g." United States v. Pineda Mateo
1st Cir. · 2018 · signal: see, e.g. · confidence low
See , e.g. , United States v. Colombo , 852 F.2d 19 , 21 (1st Cir. 1988) (using the facts alleged in the indictment in reviewing the district court's dismissal of an indictment).
cited Cited "see, e.g." State v. Gill
Kan. Ct. App. · 2012 · signal: see, e.g. · confidence medium
See, e.g., United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988); Humphrey v. State, 185 P.3d 1236, 1244 (Wyo. 2008).
discussed Cited "see, e.g." United States v. Angel Casas, United States of America v. Jose Bonilla-Lugo, United States of America v. John Correy, A/K/A Earth, United States of America v. Angel Luis Pizarro-Morales, A/K/A Wee, United States of America v. Ramon Flores-Plaza, United States of America v. Raymond Nicolai-Cabassa, A/K/A Ray
1st Cir. · 2005 · signal: see also · confidence medium
However, "[w]hile this type of prejudice is not to be brushed off lightly, considerable anxiety normally attends the initiation and pendency of criminal charges; hence only undue pressures are considered." United States v. Henson, 945 F.2d 430, 438 (1st Cir.1991) (internal quotation marks and citations omitted); see also United States v. Colombo, 852 F.2d 19, 25 (1st Cir.1988) (emphasizing that Barker requires minimization, not elimination, of "the natural consequences of an indictment").
discussed Cited "see, e.g." United States v. Casas
1st Cir. · 2005 · signal: see also · confidence medium
However, “[w]hile this type of prejudice is not to be brushed off lightly, considerable anxiety normally attends the initiation and pendency of criminal charges; hence only undue pressures are considered.” United States v. Henson, 945 F.2d 430, 438 (1st Cir.1991) (internal quotation marks and citations omitted); see also United States v. Colombo, 852 F.2d 19, 25 (1st Cir.1988) (emphasizing that Barker requires minimization, not elimination, of “the natural consequences of an indictment”).
discussed Cited "see, e.g." United States v. Pizarro
1st Cir. · 2004 · signal: see also · confidence medium
However, "[w]hile this type of prejudice is not to be brushed off lightly, considerable anxiety normally attends the initiation and pendency of criminal charges; hence only undue pressures are considered." United States v. Henson , 945 F.2d 430, 438 (1st Cir. 1991) (internal quotation marks and citations omitted); see also United States v. Colombo , 852 F.2d 19, 25 (1st Cir. 1998) (emphasizing that Barker requires minimization, not elimination, of "the natural consequences of an indictment").
discussed Cited "see, e.g." United States v. Arthur P. Tranakos, United States of America v. William Pilgrim
10th Cir. · 1990 · signal: see also · confidence medium
See United States v. Hay, 527 F.2d 990, 994 (10th Cir.1975) (further analysis triggered by seventeen-month delay in prosecution for conspiracy to defraud the United States), cert. denied, 425 U.S. 935 , 96 S.Ct. *1428 1666, 48 L.Ed.2d 176 (1976); see also, e.g., United States v. Colombo, 852 F.2d 19, 24 (1st Cir.1988). 2.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellant,
v.
Anthony R. COLOMBO and Joseph Colombo, Jr., Defendants, Appellees
88-1010.
Court of Appeals for the First Circuit.
Jul 18, 1988.
852 F.2d 19
1988 U.S. App. LEXIS 9699
1988 WL 73181
Alan Hechtkopf, Tax Div., Dept, of Justice, with whom William S. Rose, Jr., Asst. Atty. Gen., Gary R. Allen and Robert E. Lindsay, Tax Div., Dept, of Justice, Washington, D.C., and Richard Y. Wiebusch, U.S. Atty., Concord, N.H., were on brief for appellant., Glenn G. Geiger, Jr., by appointment of the court, with whom Geiger & Heiser, Penacook, N.H., was on brief for defendant, appellee Anthony R. Colombo., Patrick J. Devine with whom Law Offices of Allison & Devine, Plaistow, N.H., was on brief for defendant, appellee Joseph Colombo, Jr.
Coffin, Fuste, Torruella.
Cited by 60 opinions  |  Published
TORRUELLA, Circuit Judge.

This appeal requires us to pass upon appellees’ constitutional right to a speedy trial as guaranteed by the Sixth Amendment. [1] The facts of this case reveal delays in bringing appellees to trial caused in large part by the government’s mismanagement of appellees’ indictment and other related pre-trial matters. Because the district court failed to properly identify and weigh the various relevant factors as set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972), we find that the district court abused its discretion in dismissing the indictment.

Background Facts

The alleged “buy a church” scheme

The following are the facts alleged by the government in this case.

Appellees Anthony R. Colombo and Joseph Colombo, Jr. are brothers, the first residing in Merrimack, New Hampshire, and the second in Lowell, Massachusetts. In October, 1979 they obtained the exclusive right for New England to sell “ministries” in an organization called the Life Science Church (LSC), which was founded in 1976 in San Diego, California. Through LSC, individuals could avoid tax liability by taking a “vow of poverty” and thereafter not paying income taxes, or by deducting as charitable contributions up to 50% of their contributions to LSC.

Under the first plan, the purchaser of a “ministry” was advised to take the “vow” and assign himself to a church, ideally the home of the “minister.” The “minister” could then name his or her spouse as trustee, and divert the contributions to the trustee. However, the monies would continue to be controlled by the “minister” as “church accounts,” allowing the “minister” to withdraw the funds to pay the “minister’s” living expenses as non-taxable parsonage allowances.

Under the alternative plan the purchasers were advised to deduct 50% of their gross income as contributions to LSC “churches.” An accounting procedure similar to that used in the “vow” situation was also followed by the “church” for payment of funds to the “ministers” for claimed personal expenses.

Anthony R. Colombo himself took the “vow” and avoided the payment of income taxes. The accounts involved included savings as well as stock brokerage accounts. Furthermore, he failed to report substantial income from the sale of LSC “ministries.” Joseph Colombo purchased a ministry under the alternate plan. Both Colombo “ministers” withdrew sums totalling $210,066 in cash from an LSC account at Indian Head National Bank in Nashua, New Hampshire, and used the money to purchase personal items, including a $32,-500 automobile.

The New York indictment

On June 25, 1984, an indictment was returned against appellees in the Southern District of New York charging that from October 1979 to June 1984, through the use of the LSC scheme, they had conspired to defraud the United States by impeding, impairing, obstructing and defeating the functions of the IRS in the ascertainment, computation, assessment and collection of the income taxes owed by themselves and other “ministers.” There were also two individual counts against each brother charging substantive violations of attempting to evade income taxes in 1980 and 1981.

Thereafter motions to dismiss were filed by the Colombos alleging lack of jurisdiction by the grand jury to indict on the[*22] substantive offenses committed outside New York and also requesting that the conspiracy count be transfered to the District of Massachusetts. On August 9, 1984, the court ordered the cases transferred in toto to the District of Massachusetts, without ruling on the merits of the motions to dismiss.

The proceedings in Massachusetts

The case was docketed in the District of Massachusetts on August 20, 1984. After appointment of counsel for both appellees, the case was set for trial on November 13, 1984. On October 31, however, at the request of Anthony’s counsel, the trial was continued to January 2, 1985, and thereafter, as a result of a similar request, another continuance was granted on February 1, 1985.

On motion of appellees the court then dismissed both substantive charges against Joseph and one substantive charge against Anthony on the ground that the New York grand jury lacked jurisdiction over these allegations. The government’s motion to re-transfer the remaining counts back to the Southern District of New York was denied by the court on April 9, 1985.

On December 4, 1985, the court granted the government leave to dismiss “the indictment ... without prejudice to reprose-cution in a judicial district having jurisdiction over all offenses originally charged in the indictment.” Appellees thereafter moved for reconsideration of the dismissal without prejudice, claiming that the government was improperly seeking a more favorable forum in order to pretermit resolution of a pending Motion to Dismiss for Misuse of Process, and that the time allowed by the Speedy Trial Act has elapsed. The court denied the motion on December 3, 1985. [2]

The New Hampshire proceedings

On April 9, 1987, the grand jury for the District of New Hampshire returned an indictment against appellees. The first count of the indictment charged that from October 23, 1979 until June 25, 1984 in the Districts of New Hampshire and Massachusetts appellees conspired to defraud the United States through the use of the LSC schemes. Counts II and III of the indictment charged Anthony R. Colombo with substantive criminal violations of the income tax laws in the District of New Hampshire, as did Counts IV and V against Joseph Colombo, Jr. All these charges were substantially the same as those made in the New York indictments.

On April 9 and May 20, 1987, counsel were appointed for Joseph and Anthony respectively, and trial commencement was set for June 23, 1987. On May 28, 1987, however, Anthony moved for a continuance of the trial date, which was granted initially to July 7, 1987. The continuance was then extended upon Anthony’s motion to October 20, 1987.

On September 4, 1987, the appellees filed the motion to dismiss for lack of a speedy trial in violation of the Sixth Amendment. The district court granted this motion and dismissed the indictment on October 21, 1987. The court ruled that there was “un-controverted evidence that the government was aware of possible tax evasion by defendants almost six years before the indictments” were filed in New Hampshire, that appellees had been represented by different counsel in New York, Massachusetts and New Hampshire, with “[ejach successive new counsel ... incurrpng] more onerous duties, more stale facts and inexorable pressure by the government and the courts to conform with the speedy trial act,” and that “[t]he record discloses serious prejudice to the defendants.” The court did not specify in any manner the nature of this “serious prejudice.”

The government appeals from this dismissal.

The Constitutional Right to a Speedy Trial

The Sixth Amendment right to a speedy trial, though important, is a fairly limited right, with a fairly specific purpose:

[*23] The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

United States v. MacDonald, 456 U.S. 1, 8 (1981).

This right attaches upon an individual’s indictment, arrest or official accusation. United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1500-01, 71 L.Ed.2d 696 (1981); United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459-60, 30 L.Ed.2d 468 (1971). It is well established that in considering whether this right has been violated the court should consider four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice caused to the defendant as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972); United States v. Johnson, 579 F.2d 122, 123 (1st Cir.1978).

Except for a threshold showing of presumptively prejudicial delay, the court must

“regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.”

Barker, 407 U.S. at 533, 92 S.Ct. at 2193. In other words, the presence or absence of any one of them does not determine the result, we must still weigh all of the factors collectively before deciding whether a defendant’s right to a speedy trial has been violated. Our first task, however, is to determine the length of the relevant delay, because “[ujntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. This task is somewhat complicated here by the existence of two indictments and a lengthy delay between the two. We first will decide which of those periods is relevant to the speedy trial calculus.

Sixth Amendment speedy trial mathematics [3]

The courts have implicitly assumed that if an indictment is dismissed on motion of a defendant, and the defendant is subsequently reindicted for the same offense, only the delay in prosecution of the second indictment is relevant for Sixth Amendment speedy trial purposes. See United States v. Hernández, 724 F.2d 904, 906 (11th Cir.1984); United States v. Samples, 713 F.2d 298, 301 (7th Cir.1983). Not only is this consistent with the judgment embodied in the Speedy Trial Act, see 18 U.S.C. § 3161(d)(1), United States v. Krynicki, 689 F.2d 289, 292-95 (1st Cir.1982), but it makes sense. Once a defendant manages to have all charges against him dismissed, the government must, against its will, re-commence the prosecution from square one, a time consuming process. The defendant’s efforts, therefore, are the main reason for the delay.

When the government voluntarily dismisses charges, however, a different consideration comes into play. Again, the Speedy Trial Act recognizes this, and excludes only the time between indictments, and not the time during the pendency of the first indictment. See 18 U.S.C. § 3161(h)(6); Krynicki, 689 F.2d at 294, n. 6. This is a sound approach, and is equally applicable in Sixth Amendment analysis. Were it otherwise, the government would[*24] be able to nullify a defendant’s speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution.

At the same time, however, the Sixth Amendment does not require counting the time between indictments. As the Supreme Court pointed out in MacDonald, while a person under investigation certainly suffers from many of the restraints on liberty which the Sixth Amendment seeks to prevent, see MacDonald, 456 U.S. at 8-9, 102 S.Ct. at 1502-03, that amendment simply does not apply to one not formally accused, id. at 8, 102 S.Ct. at 1502. Since a person who is “between indictments” is no longer the subject of public accusation, we do not count the time between indictments in assessing the length of time one has been “accused.”

We realize that the MacDonald court apparently left open precisely the question raised by this case. It distinguished United States v. Avalos, 541 F.2d 1100 (5th Cir.1976) (counting all the time since first indictment), because of the “unusual” circumstance in Avalos that “the government dismissed charges pending in one district in order to prosecute the defendants on those same charges in another district.” MacDonald, 456 U.S. at 8, n. 7, 102 S.Ct. at 1501, n. 7. That distinction, however, flies in the face of the opinion itself: MacDonald holds that the speedy trial right simply does not attach to one not formally accused. In addition, MacDonald was as certain of his continuing and public prosecution, see id. at 12-14, 18-19, 102 S.Ct. at 1504-05, 1507-08 (Marshall, J., dissent ing), as is an individual, such as the Colombos, who believes he will be reindicted in a different district. [4]

Our calculus of speedy trial time in this case therefore includes the time of the pendency of the first indictment (18 months), and that of the second (672 months), at least for those counts dismissed in Massachusetts at the government’s behest. We find that this 24 month period is long enough, under the circumstances of this case, to be “presumptively prejudicial.” Barker v. Wingo, 407 U.S. at 530-31, 92 S.Ct. at 2191-92. What follows, therefore, is an analysis of the four factors set forth in Barker.

The Barker v. Wingo factors:

a) Length of the delay

As we have seen, the length of the delay is both the trigger for analysis and one of the factors to be considered. In this case the length of the delay weighs in favor of the defendants. A delay of two years for a case of this complexity, where the government was aware of most of the facts beforehand, is excessive. Unfortunately for the appellees, however, their case founders on the next three prongs of the analysis.

b) The reasons for the delay

The delay was caused by both inexcusable negligence on the part of the government, and the ordinary demands of defendants in the interest of preparing a defense. Much of the elapsed time passed as a result of the government's failure to check the[*25] jurisdictional bases for its actions, and the consequent changes in appointed counsel. See ante at 22. The rest, however, was spent while the courts considered the defendants’ motions.

Since government negligence is a more “neutral” reason than bad faith or an attempt to gain a tactical advantage over the defense, time elapsed because of negligence should be “weighted less heavily” than if it were willfully sought by the government. Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192.

Both Joseph and Anthony Colombo make the unsubstantiated contention that the government dismissed the indictment in Massachusetts and reindicted the appellees in New Hampshire, “to gain tactical advantage” and for the purpose of “bad faith forum shopping.” See Brief of Appellee Joseph Colombo, Jr. at p. 11 & n. 11; Brief of appellee Anthony R. Colombo at pp. 11 & 13 n. 3. This “tactical advantage” is apparently a reference to a discovery ruling, allegedly adverse to the government, by the Massachusetts court on August 1, 1985 which was later modified by that court before the dismissal without prejudice. The New Hampshire court has not yet had the occasion to rule on this matter. We are thus left to speculate whether the government will fare any better in the latter district if such a ruling is requested and made. More on point, however, none of the courts viewing this case have found that the government has acted in bad faith or has attempted to gain a tactical advantage by any of its actions. Cf. United States v. Levasseur, 846 F.2d 786 (1st Cir.1988) (principle of judicial estoppel not applicable to bar government from proceeding against defendants in subsequent action when it has not played “fast and loose” with the courts to gain tactical advantage). In fact the Massachusetts court denied appellees’ motions for reconsideration in which such allegations were specifically made. We refuse to find bad faith from a record barren of indications that any in fact existed.

c) The lack of prejudice

In considering the prejudice factor, the Barker Court stated as follows:

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

Id. 407 U.S. at 532, 92 S.Ct. at 2193 (citations omitted).

Our search of the record fails to reveal that the delay in bringing appellees to trial caused them any prejudice rising to the level of a constitutional deprivation of their right to a speedy trial. Appellees concede that there was no pretrial incarceration, oppressive or otherwise, thus eliminating the first Barker consideration bearing on prejudice. Barker, 407 U.S. at 532, 92 S.Ct. at 2192-93.

As to the “minimiz[ation] [of] anxiety and concern of the accused,” id., there is no showing that appellees suffered any undue pressures in this respect. We emphasize that the standard here is minimization, not necessarily elimination of the natural consequences of an indictment. See United States v. Mitchell, 723 F.2d 1040, 1049-50 (1st Cir.1983) (while “this type of prejudice is not to be brushed off lightly,” it is not by itself enough to support a claim of denial of the right to a speedy trial), cf. United States v. Ciammitti, 720 F.2d 927, 930-31 (6th Cir.1983) (similar claim insufficient in Fed.R.Crim.P. 48(b) context), cert. denied, 466 U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1983).

Lastly, although appellee Joseph Colombo, Jr. claims “difficulty in preparing his defense by keeping track of a myriad of[*26] necessary witnesses to his case, see Brief at p. 13-14, we are not supplied with any specific references in the record, nor have we found any ourselves, to witnesses or evidence which may have become unavailable because of the delays in this case. United States v. Golden, 436 F.2d 941 (6th Cir.1971) (claimed impairment of defense because of delay must be specific and not by mere conjecture), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971); United States v. Edwards, 577 F.2d 883, 889 (5th Cir.1978) (vague assertions of faded memory will not suffice), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978); United States v. Finkelstein, 526 F.2d 517, 526 (2d Cir.1975) (same), cert. denied, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976); Hodges v. United States, 408 F.2d 543, 550 (8th Cir.1969) (failure to claim that specific evidence had disappeared or been lost defeats speedy trial claim).

Neither the specific types of prejudice mentioned in Barker nor any others have been brought to our attention. The passage of time alone, without a significant deprivation of liberty or impairment of the ability to defend, is not conclusive evidence of prejudice. We hold, therefore, that no prejudice can be found in the record before us.

d) The assertion of the right

The defendants claimed for the first time at the end of the 18 months elapsed under the first indictment that the Speedy Trial Act time had run. After that motion was successful, however, and upon reindictment in New Hampshire, the appellants did not re-assert their desire for a speedy trial until approximately five months later. While the delay in New Hampshire might be attributed to new counsel’s need to become familiar with the record, the 18 month wait in New York and Massachusetts demonstrates less than zeal in the pursuit of an early trial. It appears, in fact, that the defendants were content to wait until assertion of the right became a possibly viable way to preclude consideration of the merits of their case.

As the Supreme Court pointed out, “[t]he defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. [The Court] emphasize[d] that failure to assert the right will make it difficult for a defendant to prove he was denied a speedy trial.” Barker v. Wingo, 407 U.S. at 531-32, 92 S.Ct. at 2192-93. Non-assertion of the right does not necessarily excuse government neglect. Id. at 536, 92 S.Ct. at 2194-95. At the same time, this record suggests that the Colombos did not want a speedy trial until their right to a speedy trial became a possible means by which to obtain dismissal of the charges against them.

Conclusion

In the absence of demonstrable prejudice, and in view of the appellant’s own lack of enthusiasm for the right which they now assert, especially in a case where there was no bad faith on the part of the government, the record does not support a finding of denial of the Colombos’ speedy trial right. Since the district court failed to properly identify and balance the factors relevant to its determination, we find that it abused its discretion and therefore we reverse its order of dismissal. The case is remanded for action consistent with this opinion.

1

. U.S. Const, amend. VI:

In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial....

The parties did not allege, nor did the district court rule on, matters related to the Speedy Trial Act. 18 U.S.C. §§ 3161 et seq. This appeal is thus concerned only with allegations under the Sixth Amendment.

2

. This order was not appealed. There is at least some question in our minds whether this is an appealable final order which was not appealed. The government, however, has not made such a claim, nor have the parties briefed this issue. In view of our holding, we note the issue, without ruling upon it.

3

. It should be noted that we are not called upon to pass on issues related to delays in the institution of a prosecution. Those matters would involve due process concerns under the Fifth Amendment, see United States v. Marion, 404 U.S. at 324-26, 92 S.Ct. at 465-66, and have neither been claimed by appellees nor passed upon by the district court.

4

. Our own cases have not directly stated that the time elapsed during the pendency of the first indictment should be counted. In United States v. Marler, 756 F.2d 206, 209-12 (1st Cir.1985), however, we held that time elapsed under a previous state indictment should not be counted because the second indictment was brought by the federal government, a separate sovereign. Obviously, if we had held there that the time of the first indictment was not countable anyway, we would not have needed to articulate a “separate sovereign” exception. While we are reluctant to assign precedential value to a choice of alternate dispositive theories, the silent assumption there to some extent can be seen to foreshadow our holding today.

Other circuits, without discussion, have omitted the time of a first indictment from their speedy trial tally. See United States v. Moran, 759 F.2d 777, 783 (9th Cir.1985); United States v. Pajari, 715 F.2d 1378, 1384 (6th Cir.1983). Apparently, these cases misplaced reliance on MacDonald’s language excluding time "after the government, acting in good faith, formally drops charges.” Id., 456 U.S. at 7, 102 S.Ct. at 1501. That language was only meant to exclude the time between indictments, not the time of a first indictment. To the extent these cases exclude the time of the first indictment from speedy trial reckoning, we reject them.