APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Crim. No. 704-73.
Aldisert, Gibbons and Rosenn, Circuit Judges.
We are asked to consider the claim of appellant, Audrey Ellen Goldsmith, that her sixth amendment right to a speedy trial was violated by the Government's bringing her to trial twenty-nine months after her indictment.*fn1 The United States District Court for the District of New Jersey denied Goldsmith's motion to dismiss on this ground. Thereafter, she stipulated to the facts contained in Count I of a four-count indictment and was tried and convicted on that count by the district court judge sitting without a jury.*fn2 We hold that Goldsmith was denied a speedy trial and reverse, directing the district court to vacate the sentence and dismiss the indictment, as required by Strunk v. United States, 412 U.S. 434, 37 L. Ed. 2d 56, 93 S. Ct. 2260 (1973).
The Government's brief concedes that the length of the delay in this case "should trigger further inquiry." Our inquiry must begin with the chronology of events in the twenty-nine month period. Goldsmith owned a camper which was shipped from Belgium to Port Elizabeth, New Jersey, with approximately 856 pounds of hashish in its storage area. She met the camper at Port Elizabeth in late August 1972, drove it to Iowa, turned the vehicle over to a co-conspirator, and flew to California. Goldsmith was arrested in California where she was indicted a few weeks later. The indictment charged her and the co-conspirator with conspiracy to possess, import, and distribute hashish.
The United States Attorney in California then communicated with his counterpart in New Jersey to inform him that Goldsmith's lack of contacts with the camper in California would make the case difficult to prove there. As a result, on November 19, 1972, a one-count indictment charging Goldsmith with importing hashish was returned in New Jersey. Venue of the California indictment was transferred to New Jersey in February 1973.
In March of that year, a superseding New Jersey indictment was returned. That indictment charged Goldsmith and three co-defendants with four counts of importation, possession with intent to distribute, and conspiracy to import and to possess hashish.
The Government and defense counsel agreed on a consent order for discovery on May 23, 1973, which the Government did not file until six weeks had passed. On August 10, 1973, defense counsel wrote to the Assistant United States Attorney for a stamped copy of the consent order and to inform him that Goldsmith "has been extremely distraught and emotionally upset as a result of the long delay and pressures in this case."
The consent order was never used because a second superseding indictment against Goldsmith and eight co-defendants was returned on December 19, 1973. This indictment ultimately formed the basis for trial in March 1975. It charged the same offenses as the March 1973 indictment*fn3 but included five additional co-defendants and five additional overt acts in furtherance of the conspiracy, none of which was alleged to have been committed by Goldsmith.
Consent orders for discovery were entered in April 1974, but the Government did not fully comply with the orders until the case had been listed for trial six months later.
In November 1974, defense counsel and the Assistant United States Attorney set a peremptory trial date for March 1975. A few weeks later, Goldsmith unsuccessfully sought to have the second superseding indictment dismissed as to her on the speedy trial ground. In support of her motion, Goldsmith introduced evidence of the psychological damage which she contended had been wrought by the long delay in this case.
Although the district court thought that the delay "is much too long," it professed skepticism toward Goldsmith's allegations of prejudice. Furthermore, it concluded that she had not demonstrated the sort of prejudice against which the speedy trial guarantee could be invoked. We believe ...