## Facts

- A federal grand jury in the Southern District of New York indicted Armando C. Santos and two others for assaulting a federal narcotics agent with a deadly weapon, in violation of 18 U.S.C. § 111, based on an incident on May 7, 1962.
- Santos was arrested in Philadelphia on June 15, 1962, found in possession of heroin, and prosecuted in Pennsylvania state court.
- On August 14, 1962, Santos received a Pennsylvania sentence of 2½ to 5 years for the state narcotics offense and remained in state custody until December 15, 1964.
- After his release from Pennsylvania custody, Santos was arrested on the federal indictment, removed to the Southern District of New York, and tried in March 1965; the first jury was unable to reach a verdict.
- Santos was retried, and on April 1, 1965 the jury found him guilty; judgment was entered April 22, 1965.
- At trial, Santos sought to introduce a sworn affidavit by Narcotics Agent Edward R. Dower (a witness to the assault) that identified someone other than Santos as one of the assailants; the district court excluded the affidavit.

## Issues

1. Whether the indictment should have been dismissed under Fed. R. Crim. P. 48(b) for unnecessary delay in bringing Santos to trial where much of the interval occurred while Santos was serving an unrelated state sentence.
2. Whether the district court erred by excluding Agent Dower’s sworn affidavit as an admissible admission against the United States.

## Decision

- The Second Circuit affirmed the conviction.
- The court held there was no unreasonable or oppressive delay warranting dismissal under Rule 48(b) given Santos’s intervening state incarceration and the prompt federal proceedings after his release.
- The court held the affidavit was properly excluded and did not qualify as an admissible admission of the United States.

## Legal Principles

- Rule 48(b) dismissal for delay is discretionary and is not warranted where the elapsed time is reasonably explained, including by the defendant’s custody under another sovereign on unrelated charges, absent a showing of unnecessary, oppressive delay attributable to the prosecution.
- After a defendant becomes available to federal authorities, reasonably prompt steps to prosecute weigh against dismissal for delay.
- A federal agent’s sworn complaint affidavit is not automatically admissible against the United States as a party admission in a criminal case; such a statement remains subject to ordinary evidentiary limits, including hearsay restrictions.
- Exclusion of an out-of-court affidavit offered as substantive evidence does not require reversal where the document is not a proper party admission and its exclusion is within the trial court’s evidentiary authority.

## Conclusion

The Second Circuit upheld Santos’s conviction, ruling that the time between indictment and trial was not “unnecessary delay” under Rule 48(b) because Santos was serving an unrelated state sentence, and that a narcotics agent’s prior sworn affidavit identifying a different suspect was not admissible as a government admission and was properly excluded.


United States v. Santos, 372 F.2d 177 (2d Cir. 1967)