U.S. v. Butts, 75-1201

• Citation: 524 F.2d 975
• Decision Date: 12 December 1975
• Docket Number: No. 75-1201,75-1201
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Leon Edgar BUTTS, a/k/a Sonny Butts, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 975

524 F.2d 975

UNITED STATES of America, Plaintiff-Appellant, v. Leon Edgar BUTTS, a/k/a Sonny Butts, Defendant-Appellee.

No. 75-1201.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1975.

Ronald T. Knight, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellant.

Herbert Shafer, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court the Middle District of Georgia.

Before BELL, THORNBERRY and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant United States Government appeals the dismissal of an indictment obtained on February 8, 1974 against appellee Leon Edgar Butts for conspiracy and gambling offenses ¹ allegedly committed in 1971. Upon his arraignment appellee Butts moved for dismissal on the ground that the delay in obtaining an indictment had denied him his right to a speedy trial guaranteed by the Sixth Amendment. Following an evidentiary hearing the District Court for the Middle District of Georgia entered an order dismissing the indictment. It is from this order that the government appeals.

The basis of Butts' motion for dismissal was the prosecution's delay in seeking an indictment. Contending that the government was aware of his ongoing gambling activities in the fall of 1971, Butts argued that the government should have sought an indictment immediately rather than waiting until August, 1973 to bring its case against him to the grand jury. Specifically, Butts alleges, and the record indicates, that both state and federal officials were investigating illegal gambling operations in the Columbus area in 1971. In the fall of that year a raid was conducted by state officials at the place where Butts was conducting gambling activities and evidence incriminating him was seized. Because the search warrant was not legally sufficient, however, all evidence obtained in the raid was suppressed at state proceedings. This inadmissible evidence being the only probative evidence available to federal officials, they likewise declined to prosecute Butts at that time.

Also during 1971, FBI agents in Las Vegas were surveilling one Coskry, who was overheard making calls involving gambling operations to Columbus, Georgia. At that time, agents were unable to identify Butts as the person receiving the call until evidence so implicating him was revealed in late 1972. Following this last development, further investigations were made into Butts' gambling activities, after which evidence was presented to the grand jury in August, 1973. On February 8, 1974, the jury returned the indictment.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court held that the applicable statute of limitations being the primary guarantee against bringing overly stale criminal charges, one must show (1) that substantial prejudice resulted from the delay in seeking an indictment and (2) that the delay was an intentional measure to gain a tactical advantage before the indictment can be dismissed. Id. at 322-325, 92 S.Ct. at 464-465, 30 L.Ed.2d at 479-81. In...