Opinion
Case No. 1:00 CR 161
June 9, 2000
MEMORANDUM OF OPINION RE: DENYING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant's Motion to Dismiss ("Motion") ( Doc. No. 9). Defendant moves for a dismissal of all charges pursuant to the Speedy Trial Act, 18 U.S.C. § 3161, et seq. For the following reason, the Motion is DENIED.
I.
On or about April 27, 1998, the Menorah Federal Credit Union contacted the Lyndhurst Police Department and the Federal Bureau of Investigation ("FBI") to report that Defendant Ronald A. Latevola had engaged in a scheme of embezzling Credit Union funds. In short order, the Lyndhurst Police filed a complaint against Latevola, issued a warrant for his arrest and arrested him. In the presence of counsel, Latevola gave a statement admitting the embezzlement to both the Police and an FBI agent. Latevola thereafter appeared in Lyndhurst Municipal Court to answer the charges and entered a "not guilty" plea. At the FBI's request, the state case was "nolled," i.e., dismissed, to allow federal charges to be pursued.
On April 5, 2000, the federal indictment in this case was filed against Latevola. (Doc. No. 1). A summons was issued to him on April 17 (Doc. No. 2), and he was arraigned on April 27, 2000 (Doc. No. 3).
On June 7, 2000, Latevola filed the pending Motion, asking the Court to dismiss the case with prejudice on the basis that the federal government's failure to file the indictment within 30 days of his April 1998 arrest violates 18 U.S.C. § 3161, et seq.
II.
Under 18 U.S.C. § 3161 (b), an indictment "charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." Further, "[i]f, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b)... such charge against that individual contained in such complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162 (a)(1). It is within the Court's discretion to determine whether such dismissal is with or without prejudice. Id.
Latevola argues that the nearly two-year period between his arrest by the Lyndhurst Police and his federal indictment violates the 30-day limitations period imposed by the Speedy Trial Act. This argument has been soundly rejected by the Sixth Circuit. An arrest by the state, regardless of the degree of federal involvement in the state investigation or arrest, does not trigger the 30-day limitations period of § 3161(b). United States v. Blackmon, 874 F.2d 378, 381 (6th Cir.), cert. denied, 493 U.S. 859 (1989) (citing United States v. Adams, 694 F.2d 200 (9th Cir. 1982). An arrest by state officers, even if accompanied by federal officers, does not constitute a § 3161(b) "arrest." Blackmon, 874 F.2d at 381 (citing United States v. Iaquinta, 674 F.2d 260, 267-69 (4th Cir. 1982). Nor does cooperation between state and federal officials while the defendant is in state custody. Blackmon, 874 F.2d at 381 (citations omitted). A defendant is not deemed "arrested" for Speedy Trial purposes "until formal federal charges are pending." Blackmon, 874 F.2d at 381 (citing United States v. Sanchez, 722 F.2d 1501, 1508 (11th Cir. 1984); see also United States v. Graef, 31 F.3d 362, 364 (6th Cir. 1994); United States v. Payne, No. 91-6065, 1992 WL 96319 *2 (6th Cir. May 7, 1992) (citations omitted).
In this case, no federal charges were pending against Latevola until April 5, 2000. The indictment, the issuance of the summons, and the arraignment all occurred within 22 days. Although nearly two years elapsed between Latevola's state arrest and the filing of the federal indictment, the provisions of the Speedy Trial Act do not affect the time it takes the government to investigate before filing federal charges or the prosecutor's discretion in deciding whether to file such charges. United States v. Alfarano, 706 F.2d 739, 741 (6th Cir.) (per curiam), cert. denied, 461 U.S. 931 (1983) (citing United States v. Hillegas, 578 F.2d 453 (2d Cir. 1978)).
Latevola argues that the case should be dismissed based on pre-indictment delay. "Statutes of limitations provide defendants their primary guarantee against overly stale charges; however, the Due Process Clause of the Fifth Amendment also plays a "limited role' in protecting against excessive pre-indictment delay." United States v. Cook, No. 98-5457, 1999 WL 357788 (6th Cir. May 20, 1999) (citing United States v. Brown, 959 F.2d 63, 65 (6th Cir. 1992) (citing United States v. Lovasco, 431 U.S. 783, 789 (1977))). Latevola does not contend that the indictment violated the applicable statutes of limitations. Thus, to show that the delay in filing the indictment violated Latevola's Fifth Amendment due process rights, he must demonstrate that: 1) he suffered substantial prejudice as a result of the delay, and (2) the delay was intentionally caused by the government in order to gain a tactical advantage. See Lovasco, 431 U.S. at 789-90; United States v. Rogers. 118 F.3d 466, 474-75 (6th Cir. 1997).
Latevola inartfully casts this argument as one under § 3162, which addresses sanctions only for delays between an arrest and the filing of an indictment, and between the filing of an indictment and the commencement of trial. The Speedy Trial Act does not address pre-indictment delays.
Latevola has failed to show that the United States deliberately delayed the indictment for the specific purpose of gaining a tactical advantage. Indeed, he has provided no evidence that the delay occurred for any reason other than the government's need to investigate more fully the conduct targeted in the indictment. Moreover, he admits that he cannot establish prejudice. Motion, at 4. This contention also has no merit.
III.
In sum, Latevola's indictment, summons and arraignment were all well within the 30-day limitations period of 18 U.S.C. § 3161 (b). Accordingly, Defendant's Motion to Dismiss (Doc. No. 9) is DENIED.
IT IS SO ORDERED.