574 F.2d 1047 (10th Cir. 1978), 77-1834, United States v. Revada

Docket Nº:77-1834.
Citation:574 F.2d 1047
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Dennis H. REVADA, Defendant-Appellee.
Case Date:April 27, 1978
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1047

574 F.2d 1047 (10th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellant,

v.

Dennis H. REVADA, Defendant-Appellee.

No. 77-1834.

United States Court of Appeals, Tenth Circuit

April 27, 1978

Argued and Submitted Feb. 15, 1978.

Page 1048

Brent D. Ward, Asst. U. S. Atty., Salt Lake City, Utah (Ramon M. Child, U. S. Atty., and Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah, on brief), for plaintiff-appellant.

Steven E. Clyde of Clyde & Pratt, Salt Lake City, Utah, for defendant-appellee.

Before BARRETT, BREITENSTEIN and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This appeal challenges the action of the trial court in granting a pretrial motion to dismiss an indictment charging Dennis H. Revada with illegally possessing a sawed-off shotgun in violation of 26 U.S.C. §§ 5841 and 5861(d). The basis of the motion was pre-indictment delay of approximately 21 months between the discovery of the weapon and the indictment by the grand jury.

The action of the district judge in the instant case must be measured by the legal principles enunciated in two Supreme Court decisions. The lodestar case on pre-indictment delay is United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). It was there held that the Sixth Amendment guarantee of a speedy trial does not commence until the indictment is entered. Also Fed.R.Crim.P. 48(b), treating unnecessary delay in presenting the charge to a grand jury or in bringing a defendant to trial, applies only to post-arrest delay. There appears no reliance upon either the Sixth Amendment or Rule 48(b) by defendant-appellee here. The motion for dismissal was heard and granted approximately 3 1/2 months after the indictment, and no arrest was made by federal authorities until the day after the April 20, 1977, indictment was issued.

As to due process rights under the Fifth Amendment Marion cited with approval the fact that the Government conceded dismissal would be required "if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 404 U.S. at 324, 92 S.Ct. at 465. It was found that although there was a 38-month delay, the accused had not "alleged and proved" actual prejudice nor shown that the Government intentionally delayed for tactical advantage or to harass. 404 U.S. at 325, 92 S.Ct. 455.

This Circuit has construed the Marion case as establishing a two-pronged due process test against which to measure pre-indictment delay.

(T)he...

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