U.S. v. Ciammitti

• Decision Date: 07 November 1983
• Docket Number: No. 82-1897,82-1923,Nos. 82-1897,No. 82-1923,82-1897,s. 82-1897
• Citation: 720 F.2d 927
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sabatino CIAMMITTI (), Antonio Ciammitti (), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 927

720 F.2d 927

UNITED STATES of America, Plaintiff-Appellee, v. Sabatino CIAMMITTI (No. 82-1897), Antonio Ciammitti (No 82-1923), Defendants-Appellants.

Nos. 82-1897, 82-1923.

United States Court of Appeals Sixth Circuit.

Argued Aug. 23, 1983.

Decided Nov. 7, 1983.

Neil H. Fink (argued), Detroit, Mich., Ronald A. Lustig, Southfield, Mich., for defendant-appellant in No. 82-1897.

Richard Lustig, Southfield, Mich., for defendant-appellant in No. 82-1923.

Leonard R. Gilman, U.S. Atty., Alan Gershel (argued in No. 82-1897), Thomas A. Ziolkowski (argued in No. 82-1923), Asst. U.S. Attys., Detroit, Mich., for plaintiff-appellee.

Before LIVELY, Chief Judge, JONES, Circuit Judge, and RUBIN ^*, District Judge.

LIVELY, Chief Judge.

These consolidated appeals present three distinct challenges to the defendants' convictions of conspiracy to manufacture methamphetamine. Since neither defendant claims that the evidence was insufficient, the facts will be recited only to the extent required to deal with the issues actually raised.

I.

On January 18, 1980 the defendants were arrested on a charge of conspiring and attempting to manufacture amphetamine. The arrest warrant was issued on the complaint of Thomas Powell, a special agent of the Drug Enforcement Administration (DEA). When no indictment or information was filed against the defendants within 30 days of their initial appearance on the complaint, the magistrate dismissed the complaint and cancelled the defendants' bonds. This occurred on March 21, 1980. On April 15, 1982 the defendants were jointly indicted on seven counts for drug-related offenses arising out of the same events. One count charged conspiracy to manufacture methamphetamine. The defendants moved for dismissal of the charges because of preindictment delay.

A.

The defendants do not claim a violation of the Sixth Amendment. Nor do they contend that the delay in the present case violated their due process rights under the Fifth Amendment in view of the district court's finding that the delay did not hinder their ability to present a defense. The defendants rely exclusively on Rule 48(b), F.R.Crim.P., which provides:

Rule 48. Dismissal

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(b) By Court. 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, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.

By its terms Rule 48(b) is discretionary and, according to the Reporter's Notes, reflects the inherent power of courts to dismiss for want of prosecution. The defendants assert that the district court abused its discretion in denying their motion and committed error in refusing to admit tendered evidence of personal hardship caused by the delay. The proffered testimony was that of the defendants' wives that their families suffered anxieties and hardships during the two-year period between arrest and indictment, and that the threat of indictment hung over them "like a sword of Damocles."

The defendants argue that the district court overlooked the fact of their 1980 arrest in holding that Rule 48(b) is inapplicable to pre-indictment delay. They rely on the statement in United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 462, 30 L.Ed.2d 468 (1971), that Rule 48(b) "clearly is limited to post-arrest situations." (Footnote omitted). The defendants maintain that delay should be measured from their arrests on January 18, 1980 and that the "balancing test" prescribed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), should have been applied. Barker recognizes four factors which should be considered in determining whether there has been a violation of the Sixth Amendment right to a speedy trial. Prejudice is one of the factors, and in the Sixth Amendment setting prejudice consisting of anxiety and concern is to be considered. The inquiry is not limited to prejudice which interferes with the defendant's ability to mount and present a defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

The government responds that Rule 48(b) does not apply to the period between arrest and indictment where the charges have been dismissed subsequent to arrest. The prompt dismissal of all charges after arrest required that the delay before indictment be tested by due process standards under guidelines established in Marion and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the government contends. Under those guidelines, the government argues, dismissal is not required upon a showing of the type of hardship relied upon by these defendants. Therefore, it was not error to exclude the testimony of the defendants' wives.

B.

Rule 48(b) comes into play when there is unnecessary delay in presenting a charge to a grand jury "against a defendant who has been held to answer to a district court ...." In this case we have defendants who were held to answer charges in 1980. However, the charges were not pending during the entire period between their arrest and their indictment. In fact, they were pending only from January 18 until March 21, 1980. None were pending from March 21, 1980 to April 15, 1982. This fact is significant. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court held that the Sixth Amendment right to a speedy trial does not apply to a period between the dismissal of charges and the institution of new charges:

Once charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation. Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. This is true whether or not charges have been filed and then dismissed. This was true in Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, "a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer." United States v. Marion, 404 U.S., at 321 . Following dismissal of charges, any restraint on liberty, disruption of employment, strain on financial resources, and exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly subject to a criminal investigation.

Id. at 8-9, 102 S.Ct. at 1502 (footnotes omitted). Chief Justice Burger summarized the Court's holding by pointing out that once the first set of charges against the defendant were dismissed he "was legally and constitutionally in the same posture as though no charges had been made." Id. at 10, 102 S.Ct. at 1503 (footnote omitted).

The defendants contend that MacDonald applies only to Sixth Amendment claims and that Rule 48(b) has a broader reach than the constitutional requirement. They point out that various courts have applied the Barker v. Wingo balancing test to Rule 48(b) cases. The defendants argue that the district court erred in refusing to receive and consider evidence of personal hardships brought about by delay. We note that the cases relied upon by the defendants involved facts which were quite different from those found in the record before us. For example, the defendant in United States v. McLemore, 447 F.Supp. 1229 (E.D.Mich.1978), had been in custody for more than a year prior to his indictment. In United States v. Starr, 434 F.Supp. 214 (D.D.C.1977), the court found that serious prejudice had been caused to the defendants' ability to defend themselves because two important witnesses had disappeared in the 13 months between arrest and indictment. In this case the defendants were not incarcerated and were not subject to bail requirements; the charges had been dismissed and their bonds cancelled. Under MacDonald prejudice of the type which the defendants sought to establish is insufficient to require dismissal. The defendants do not claim unnecessary delay between their indictment and their trial. They focus on the period between arrest and indictment, most of which need not be considered with respect to their claim of personal hardship because there were no charges pending. The district court did not err in excluding evidence of anxiety and concern which resulted only from the fact that the defendants were under criminal investigation. Like the defendant in MacDonald, they were in the same position as if no charges had been made. The defendants concede that they were unable to establish actual prejudice to their ability to defend or intentional delay to gain some tactical advantage or to harass them. See United States v. Marion, supra, 404 U.S. at 325, 92 S.Ct. at 466. Under the circumstances presented in this case it was not an abuse of discretion to deny the motion to dismiss. Cf. United States v. Giacalone, 477 F.2d 1273 (6th Cir.1973).

II.

Several DEA agents searched the defendant Antonio Ciammitti's residence on January 18, 1980 and seized drug-related materials and paraphernalia. Both defendants filed a motion to suppress evidence seized during the search, claiming that the search was illegal. The search was conducted pursuant to a warrant issued on the basis of an affidavit by DEA agent Thomas Powell. In paragraph 2 of the affidavit Powell stated that on December 11, 1979 he and another agent "observed" Antonio Ciammitti and another person obtain from a Columbus, Ohio establishment chemicals and laboratory equipment which could be used to manufacture controlled substances. In paragraph 6 Powell stated...