United States v. Dukow, 71-1292
| Decision Date | 10 January 1972 |
| Docket Number | No. 71-1292,71-1293.,71-1292 |
| Parties | UNITED STATES of America v. Albert N. DUKOW et al., Appellants. Appeal of Thomas S. CROW. Appeal of Saul BROURMAN. |
| Court | U.S. Court of Appeals — Third Circuit |
Harold Gondelman, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa. (Richard H. Martin, Pittsburgh, Pa., on the brief), for appellants.
Charles F. Scarlata, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U. S. Atty., on the brief), for appellee.
Before GANEY, ADAMS and MAX ROSENN, Circuit Judges.
Appellants, Crow and Brourman,1 following a jury trial, were convicted on two counts of a nine count indictment charging violations of various portions of the federal securities laws. While they do not complain that there was insufficient evidence to support the verdict or that there was reversible error in the course of the trial, Crow and Brourman argue that their motions to dismiss the indictment should have been granted because of a violation of F.R.Crim.P. 48(b), their Sixth Amendment right to a speedy trial, and their Fifth Amendment due process rights.2
Crow and Brourman were officers in the brokerage firm of Crow, Brourman and Chatkin, Inc. In January, 1963, the Securities and Exchange Commission (SEC) began a routine, administrative examination of the operations of the firm, inspecting and copying the records relating to a number of securities transactions. Based on the information obtained, the SEC, in April, 1963, issued a Formal Order of Investigation. Pursuant to the order, hearings were held. Appellants, although they were first warned of their rights, testified, and as a result of the hearing an order for public proceedings was issued on August 23, 1963. Additional hearings covering approximately 3,000 pages of transcript commenced on November 19, 1963 and led to the filing of proposed findings on June 1, 1964 by the Division of Trading and Markets of the SEC, and a decision by the Hearing Examiner on November 18, 1964 recommending that the brokerage firm's registration be revoked. On April 1, 1965 oral argument was held before the SEC, which by order dated March 15, 1966, revoked the firm's license, finding that Crow and Brourman, among others, were the cause of the revocation.
During the three year period—from January, 1963 until March, 1966—the SEC considered criminal prosecution of Crow and Brourman with regard to the firm's stock transactions. Internal rules of the SEC required that prior to forwarding a file to the Department of Justice for the purpose of prosecution, the file should first be scrutinized by the Office of Criminal Reference of the SEC. The Washington Regional Office of the SEC initially communicated with the Office of Criminal Reference concerning this case on October 29, 1964. The Office of Criminal Reference decided that further investigation was necessary before criminal prosecution could be recommended to the Department of Justice. On March 6, 1966, an expanded report was sent to the Office of Criminal Reference. The SEC, after advice from that Office, on May 9, 1966, referred the file to the Department of Justice and the United States Attorney for the Western District of Pennsylvania. A Federal Grand Jury then indicted the defendants on March 7, 1968.
On August 16, 1968, Crow and Brourman moved to dismiss the indictments, and the motions were denied by Order dated March 25, 1970.3 The trial commenced on October 6, 1970, and after almost five weeks of testimony, the jury rendered its verdict of guilty on Counts 3 and 4 of the indictment.
The delay complained of by Crow and Brourman, consists of either 55 months —the time from the initiation of public administrative proceedings by the SEC to the date of the indictment—or 22 months—the time from the referral of the case from the SEC to the United States Attorney to the date of the indictment.
Before reaching the merits of the speedy trial argument, we must first determine whether any rights under the Sixth Amendment or F.R.Crim.P. 48(b) attach to a preindictment, pre-arrest delay—the only delay here in issue. In United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966), the Court noted that "the applicable statute of limitations . . . is usually considered the primary guarantee against bringing overly stale criminal charges." The Fifth Circuit has gone so far as to hold that "Any delay between commission of the crime and indictment is controlled by the applicable statute of limitations."
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