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The Sixth Amendment speedy-trial “clock” begins to run when an indictment is filed, regardless of whether the indictment is sealed, a federal judge has ruled. Citing the government’s “desultory investigation,” Southern District of New York Judge Shira Scheindlin dismissed a fraud indictment unsealed five years after it was brought and 11 years after the alleged crime. The decision in U.S. v. Leaver, 98 Cr. 731, clears Jonathan Leaver, who was accused of mail, wire and bank fraud for allegedly claiming that a valuable painting was stolen from the trunk of his car in Manhattan. In 1993, Standard Chartered Bank sued Leaver, a British subject, in Manhattan Supreme Court on fraud claims in connection with its security interest in the Alberto Giacommetti painting “Portrait of the Artist’s Wife.” It was insured for an appraised value of $1.2 million. Leaver failed to appear in court in New York. A civil warrant for his arrest was issued. It was vacated after he settled the litigation with the bank in 2000. But a sealed indictment had been handed down against him in the Southern District in 1998. Judge Scheindlin said Leaver lived in London openly with his companion, Karen Wright, from 1994 to 1999, when he moved to France with Wright. Although the government contested the point, Scheindlin found that he still made no attempt to conceal his identity or whereabouts. In July 1998, just after the indictment was voted, the FBI entered Leaver’s name in the National Crime Information Center database. After two years of searching for information on Leaver, Scheindlin said, and faced with an “impasse, the FBI appears to have given up.” In July 2004, the U.S. Customs Service and Border Patrol informed the FBI that Leaver was on a flight to Hawaii, and Leaver was arrested. Judge Scheindlin first found that the statute of limitations had not run on the prosecution of Leaver. The government next argued that the Sixth Amendment right to a speedy trial did not attach while the indictment was under seal � and there were no speedy-trial problems because the indictment was not unsealed until Leaver was arrested in Hawaii. SPEEDY-TRIAL RIGHT Judge Scheindlin said the government relied on U.S. v. Watson, 690 F.2d, where the 2nd Circuit said in 1979 that the speedy-trial right attaches when an indictment is unsealed or the defendant is arrested or made aware of the charges, and that any challenge on the delay between the sealing and unsealing must be based on either the Due Process Clause or statute of limitations. “The government’s reliance on Watson is misplaced because Watson is no longer good law,” Judge Scheindlin said. First, she said, in actual practice within the circuit, and in the circuit’s own case law, courts have found that the Sixth Amendment right attaches whenever a person has been “officially” charged with a crime. More importantly, she said, the “rationale underlying Watson has been undermined by the Supreme Court’s subsequent” decision in Doggett v. U.S., 505 U.S. 647 (1992), where the Court held that the speedy-trial right is triggered by “arrest, indictment, or other official accusation.” “ Watson is thus incompatible with the subsequent practice of this Circuit, and with more recent Supreme Court authority,” she said. “I therefore conclude that Watson is no longer controlling authority, and the Sixth Amendment speedy-trial guarantee attaches when an indictment is filed, regardless of whether it is sealed.” Judge Scheindlin found that the delay in bringing Leaver to trial was “presumptively prejudicial” and “uncommonly long,” and that the government was primarily responsible for the delay. While the government is not required to make futile efforts “in pursuit of an accused,” she said, the investigation “fell short of the diligence required by the Sixth Amendment.” John J. Tigue of Morvillo, Abramowitz, Grand, Iason & Silberberg represented Leaver. Assistant U.S. Attorney Robin W. Morey represented the government.

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