Opinion
Case No. 00-CR-80141-DT.
May 26, 2000.
OPINION AND ORDER DENYING MOTION TO DISMISS THE COMPLAINT
I. Procedural Background.
A. The Complaint:
On February 23, 2000 a criminal complaint was filed charging defendant Olender with a violation of 18 U.S.C. § 922 (g)(1) in that, having been previously convicted of a felony, he possessed ammunition which "affected interstate commerce." The violation allegedly occurred on February 18, 2000 in Wayne County. The complaint and an attached two-page affidavit were subscribed and sworn to by Special Agent Kevin T. Zott of the Bureau of Alcohol, Tobacco and Firearms ("ATF"). After reviewing the complaint and affidavit and determining that probable cause had been established, I issued a warrant for the arrest of the defendant. To date there has been no appearance by or on behalf of Olender, the only-named defendant.
B. Olender's Motion to Dismiss:
On April 28, 2000 Olender filed a motion to dismiss the complaint. In the brief attached the motion, Olender puts forward three issues as the grounds for dismissal. First, " Whether Government has tolled the Speedy Trial [Act] for Indictment?" Second, " Did the government have jurisdiction to participate in the search?" Third, " Was the search warrant legal?"
C. The Government's Response:
On May 10, 2000 the United States Attorney filed the government's response to the motion. The government argues with regard to the first issue that there has been no violation of Olender's rights under the Speedy Trial Act because he has not as yet been arrested nor served with a summons, which is the triggering event starting the thirty-day clock for the government to obtain an indictment. The government argues that the execution of the state search warrant was proper, in responding to Olender's second issue. The government also argues, in response to the third issue, that the search warrant was legal. The government also construes the remainder of Olender's brief to put forward a fourth issue as a ground in support of the motion, i.e., whether the statute which Olender is accused of violating was validly enacted though Congress' power to regulate interstate commerce. The government argues that it was.
D. Olender's Reply:
On May 22, 2000 Olender filed a reply brief setting forth at the outset a contention that, if the federal government has jurisdiction regarding "some threats that were made by him to some employees at Compuware," it would only be "because the government had determined that those employees['] civil rights had been violated." Olender also argued that the posting of a detainer with the Wayne County Sheriff constitutes an arrest. Olender argues in addition that the thirty-day period mandated by the Speedy Trial Act for the return of an indictment may be triggered by a state prosecution if the state case "is merely a pretext for detaining the defendant for a subsequent federal prosecution."
II. Statutes and Rules Involved.
A. Rule 48, Federal Rules of Criminal Procedure:
Rule 48, entitled " Dismissal," provides in subsection (b) that the court may dismiss the indictment, information or complaint if there is unnecessary delay in presenting the charge to a grand jury or in filing an information "against a defendant who has been held to answer to the district court."
B. Rule 5.1. Federal Rules of Criminal Procedure:
Rule 5.1 is entitled " Preliminary Examination." Subsections (a) and (b) are as follows:
(a) Probable Cause Finding. If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the federal magistrate judge shall forthwith hold the defendant to answer in district court. The finding of probable cause maybe based upon hearsay evidence in whole or in part. The defendant may cross-examine adverse witnesses and may introduce evidence. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12.
(b) Discharge of Defendant. If from the evidence it appears that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the federal magistrate judge shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the government from instituting a subsequent prosecution for the same offense.
C. The Speedy Trial Act. 18 U.S.C. § 3161 et seq.:
(1) Section 3161, Title 18, is entitled " Time limits and exclusions." It provides in subsection (b) that an information or indictment "shall be filed within thirty days from the date on which [the defendant] was arrested or served with a summons . . ." Subsection (j)(1) states that, if government counsel knows that a person charged with an offense is serving a term of imprisonment in any penal institution, he or she shall promptly " (A) undertake to obtain the presence of the prisoner for trial; or (B) cause a detainer to be filed with the person having custody of the prisoner and request him to so advise the prisoner and to advise the prisoner of his right to demand trial." Subpart (2) requires the person having custody of a prisoner for whom a detainer has been posted to promptly advise that prisoner of the foregoing and to notify government counsel if the prisoner demands trial.
(2) Section 3162, Title 18, is entitled " Sanctions." It provides in subsection (a)(1) that, where no indictment or information is filed within the time limit required by section 3161(b), the charge shall be dismissed or otherwise dropped. "In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice."
III. Analysis of Issues Presented.
A. Olender's First Claim:
Olender contends that posting a detainer constitutes an arrest as that word is used in the Speedy Trial Act. The cases cited by the government convincingly establish that it does not. In addition, Rule 48, F.R.Cr.P., allows the court to dismiss the complaint on Speedy Trial Act grounds only if the defendant has first been held to answer, i.e., after a preliminary examination has been held or waived.
B. Olender's Second and Third Claims:
Olender's second and third claims may not be raised during the preliminary criminal proceedings but must await the filing of an indictment or information. See Rule 5.1, F.R.Cr.P., cited above. Olender may file a motion to suppress under Rule 12, F.R.Cr.P. only after the return of an indictment or the filing of an information.
C. Remaining Claim:
The government construes a portion of Olender's brief as setting forth an additional, fourth ground in support of his motion to dismiss. I do not so construe the brief however, if the government is correct, I decline to rule upon it as beyond the scope of my authority. A claim that the statute forming the basis for criminal prosecution is unconstitutional should be presented in a Rule 12 motion addressed to the district court after the return of an indictment.
III. Order.
IT IS ORDERED that the motion to dismiss the complaint is DENIED. This denial is without prejudice to any right Olender may have to raise the same or similar grounds in motions addressed to the district court following the return of an indictment or the filing of as information.