ALO v. U.S - 414 U.S. 919 (1973)
U.S. Supreme Court
ALO v. U.S , 414 U.S. 919 (1973)
414 U.S. 919
Supreme Court of the United States
October 15, 1973
On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
In 1969 the petitioner was indicted for obstructing an investigation of the Securities and Exchange Commission, and he was convicted by a jury. Both in pre-trial motions and on appeal the defendant insisted that the Government had obtained an identical indictment in 1966 but had for some reason kept it secret, and that therefore there was a three-year post indictment delay which denied the defendant his right to a speedy trial. The Government would not confirm or deny this allegation, and the defendant was unable to produce substantiating evidence. The conviction was affirmed, the Court of Appeals concluding that in any case no prejudice was shown by the defendant. (United States v. Alo, 439 F.2d 751, 755-756 (CA2 1971).) The present proceeding arises from petitioner's motion to vacate sentence, based on newly discovered evidence confirming the petitioner's earlier suspicions and revealing motivations for the delay which the District Court found were 'unworthy and discreditable.' The motion was denied however, again for the reason that no prejudice had been shown, and the Court of Appeals again affirmed. (United States v. Alo.)
As revealed in part by a Justice Department memorandum made available to the District Court, the Govern-
ment embarked on a conscious mission to conceal the 1966 indictment to prevent disclosure of an illegal wiretap on a member of the Bar. At first the indictment was sealed. Two years later the Chief of the Fraud Section of the Criminal Division wrote a confidential memorandum to the Assistant Attorney General in charge of the Division. He pointed out that the indictment was sealed because of its factual relationship to another indictment returned the same day against a Miami attorney, who had been the subject of the 'electronic surveillance.' The memorandum continued: 'Immediately after the return of the indictments, United States Attorney Morgenthau expressed great concern over the disclosure of these logs, because he did not want to spread on the record that the Department had engaged in electronic surveillance of a member of the bar. Assistant United States Attorney Givens now proposes the dismissal of the indictment as to [the attorney] and the opening of the Alo indictment . . ..' The memorandum then went to state why it might be possible to prevent disclosure of the wiretap in a prosecution of Alo, the petitioner here, an associate of the overheard attorney.
For reasons still unknown, the Government never did proceed with the 1966 indictment against the petitioner; instead it kept that indictment secret and proceeded with the new indictment, more than three years after the original 1966 indictment. Although the suspicions of the defense were aroused, as indicated above the Government was able to keep the earlier indictment and the embarrassing wiretaps secret throughout petitioner's trial.
In Barker v. Wingo, 407 U.S. 514, 533 ( 1972), we noted that speedy trial is 'a fundamental right of the accused' that is 'specifically affirmed in the Constitution.' In determining whether that right had been denied, we looked primarily to four factors: 'Length [414 U.S. 919 , 921]