Opinion
Criminal Number 02-10110-RGS
January 29, 2003.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS
The issue is whether the government's forbearance in promptly convening a grand jury violated defendant Frederick Jones' right to a speedy trial. Jones was arrested by Boston police and charged with armed robbery as the result of an incident that occurred in Dorchester on October 29, 1999. Denied bail, Jones was held in state custody on this and other charges. On April 6, 2000, the United States filed a criminal complaint against Jones, charging him with being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g). The federal complaint remained dormant while Jones' state cases wound their way through the courts. On November 29, 2001, Jones pled guilty to the last of his state charges and began serving a state sentence. On April 3, 2002, Jones was indicted by a federal grand jury. On April 16, 2002, Jones was arraigned on the federal charge. He completed his state sentence on August 19, 2002, and was then transferred to federal custody.
On December 20, 2001, while serving his state sentence, Jones invoked his right under the Interstate Agreement on Detainers (IAD) to a speedy disposition of the federal charge by filing the appropriate notice with the federal court and the United States Attorney's Office. Jones also waived his rights under Art. IV(e) of the IAD (the "anti-shuttling" provision). See Alabama v. Bozeman, 533 U.S. 146, 156-157 (2001). Jones does not contend that any right under the IAD has been violated.
On November 27, 2002, Jones filed the instant motion to dismiss. Jones maintains that the pre-indictment delay violated his Sixth Amendment right to a speedy trial and his Fifth Amendment right to due process. He also maintains that the court should dismiss the indictment pursuant to its inherent authority to do so for want of prosecution. See Fed.R.Crim.P. 48(b).
Jones' argument, that the two and one-half year interval between his arrest by Boston police on October 29, 1999, and his federal indictment on April 3, 2002, violated his Sixth Amendment right to a speedy trial fails for the simple reason that the Sixth Amendment right attaches only upon an indictment or custodial arrest. United States v. Munoz-Amado, 182 F.3d 57, 61 (1st Cir. 1999). While a federal complaint and detainer were filed against Jones on April 6, 2000, he was not taken into federal custody. The lodging of a complaint and detainer is not, contrary to Jones' implicit assumption, the functional equivalent of an "arrest" for Sixth Amendment speedy trial purposes. See United States v. Shahryar, 719 F.2d 1522, 1523-1525 (11th Cir. 1983); United States v. Henson, 945 F.2d 430, 437 (1st Cir. 1991); United States v. Bloom, 865 F.2d 485, 491 (2d Cir. 1989). The Sixth Amendment guarantees a speedy trial, not a speedy indictment.
While a Fifth Amendment due process claim arising from inordinate prosecutorial delay is not a Phoenix in ashes, see United States v. Lovasco, 431 U.S. 783, 789 (1977), a defendant must show actual prejudice and purposeful conduct undertaken by the government for the sole purpose of extracting tactical advantage. United States v. Picciandra, 788 F.2d 39, 42 (1st Cir. 1986), citing United States v. Marion, 404 U.S. 307, 324-325 (1971). Putting aside the question of the government's motivation, Jones fails to identify any advantage that the government might have gained because of the delay. As Jones acknowledges, by the time state authorities had completed their investigation, a powerfully incriminating case pointed directly to his guilt on the gun charge. See Defendant's Memorandum, at 9-10. Jones suggests the possibility that the government's case may have been bolstered by a change in the testimony of a female companion who had initially denied seeing him in possession of a gun. If her testimony has changed (there is no confirmation that it has), the government's alleged prize is pretty threadbare. Given the compelling identification of Jones as the shooter by the victim of the robbery, it is hard to imagine what advantage the government would gain by offering the testimony of an obviously reluctant witness who by Jones' account has given two, and possibly three conflicting versions of events. There is also a legal hole in Jones' due process claim. He does not accuse the government of deliberate delay. Rather, he contends that Picciandra, supra, and other First Circuit cases holding that a defendant must meet both prongs of the test (purpose and prejudice) are based on an erroneous reading of Supreme Court precedent. If this is so, it is not for me to say, as this court is bound by the law of its Circuit.
While it is true, as Jones says, that witnesses' memories tend to fade over time to the prejudice of the proponent, this is typically more a problem for the government, which bears the burden of proof, than it is for the defense.
Finally, Fed.R.Crim.P. 48(b) applies to unwonted delay in presenting a case to a grand jury after a defendant comes into federal custody. United States v. Bouthot, 685 F. Supp. 286, 301 (D.Mass. 1988). As Jones became a federal prisoner only after the return of the indictment on April 3, 2002, and not before, there is no basis or reason for applying the Rule.
ORDER
For the foregoing reasons, the motion to dismiss is DENIED.
SO ORDERED.