U.S. v. Dote

• Decision Date: 05 February 2001
• Docket Number: No. 00 CR 342.,00 CR 342.
• Citation: 150 F.Supp.2d 935
• Parties: UNITED STATES of America v. Anthony R. DOTE, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

Page 935

150 F.Supp.2d 935

UNITED STATES of America v. Anthony R. DOTE, et al., Defendants.

No. 00 CR 342.

United States District Court, N.D. Illinois, Eastern Division.

February 5, 2001.

John L. Burley, U.S. Attorney's Office, Chicago, IL, for Plaintiff.

Joseph M. Urgo, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

The government has brought a seven-count indictment against an alleged bookmaking ring, including defendant Anthony Dote. The charges include operating an illegal gambling business, 18 U.S.C. § 1955, use of interstate facilities to further unlawful activity, 18 U.S.C. § 1952, and RICO violations. 18 U.S.C. § 1962(c)(d). Dote has filed two motions to dismiss the indictments, from which we have discerned seven constitutional and statutory arguments. For the following reasons, defendant's motions are denied.

BACKGROUND

Defendant Dote is charged with operating a sports gambling ring from approximately July 1994 through August 1997. The enterprise allegedly accepted bets on football, basketball, hockey and baseball games. Its customers are in the Chicago area, but it routinely obtained betting line and point spread information, by telephone, from Nevada.

This was not Dote's first venture into the illegal gambling business. He was indicted for bookmaking and RICO violations (among other charges) in 1994. Pursuant to a plea agreement, he was sentenced to 51 months on September 13, 1996. The government knew the facts alleged in the current indictment, namely that Dote was still bookmaking while on bond, before his 1996 sentencing. The government, however, declined to present this evidence to the court in seeking a sentencing enhancement. Dote served 38 months and was released in February 2000. Two months later, on April 27, 2000, a grand jury returned the current indictment.

DISCUSSION

I. Speedy Trial

Defendant first argues that the government's failure to indict him sooner violated his right to a speedy trial.¹ The Sixth Amendment right to a speedy trial is only triggered by an arrest, indictment or other official accusation. See United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). This is not at issue here. The primary pre-indictment time restriction is the statute of limitations. Id. at 322, 92 S.Ct. 455. That too was clearly satisfied here. The Supreme Court, however, has recognized that an extended pre-indictment delay can also violate a defendant's Fifth Amendment due process rights. See United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).² The standards for determining if a delay amounts to a Fifth or Sixth Amendment violation are somewhat different, and the parties here have conflated them, so we will spell them each out in some detail.

The seminal Sixth Amendment speedy trial case is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It outlines four factors for assessing these claims: whether the delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether the defendant timely asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result. Id. at 530, 92 S.Ct. 2182. Defendant relies on a line of cases holding that long delays presumptively prejudice the defendant. See Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). There are indeed numerous cases discussing at what point a delay becomes presumptively prejudicial, primarily because it is a threshold question in applying the Barker test.³ The flaw in defendant's argument is that these are all Sixth Amendment, i.e. post-indictment, cases.⁴

The standard for a Fifth Amendment due process violation is less well defined. In discussing when a pre-indictment delay might be unconstitutional, the Supreme Court has eschewed any rigid rules, preferring a typically amorphous due process definition. The defendant must show his prosecution deviates from "`fundamental conceptions of justice which lie at the base of our civil and political institutions,' ... and which define `the community's sense of fair play and decency.'" Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (internal citations omitted). Lower courts have typically employed a balancing test, weighing the prejudice to the defendant against the government's reason for delay. See United States v. Sabath, 990 F.Supp. 1007, 1018 (N.D.Ill.1998). The majority of circuits also require defendants to show The government acted in bad faith.⁵ Id. at 1017 (collecting cases).

One thing that is clear, however, is that defendant must prove actual prejudice. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The Seventh Circuit emphatically stated:

[Defendant's] attempt to rely on a "presumption of prejudice" ignores our Circuit's law that "it is not enough ... to offer some suggestion of speculative harm; rather, the defendant must present concrete evidence showing material harm" to his ability to secure a fair trial. It is not enough simply to speculate ... that witnesses' memories might have faded because of the passage of time. In order to establish prejudice for due process purposes, a defendant's "allegation of prejudice must be specific, concrete and supported by the evidence-vague, speculative, or conclusory allegations will not suffice."

Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302, 310 (7th Cir.1998) (internal citations omitted). Possible or speculative harm is not sufficient. The harm must be substantial and certain. Similar to the Sixth Amendment cases, prejudice is a threshold question. The government need not explain its delay unless the defendant can first show actual prejudice. Sowa, 34 F.3d at 449-50. But defendant's attempts to import the presumptive prejudice standard from Doggett are misplaced. See Aleman, 138 F.3d at 309 (distinguishing between pre- and post-indictment delays); United States v. Stoecker, 920 F.Supp. 867, 871 (N.D.Ill. 1996).⁶

We find the analysis in United States v. Martinez, 77 F.3d 332 (9th Cir.1996), which provides an almost identical fact pattern, particularly convincing. Martinez was indicted for, and pled guilty to, possession of stolen property, a $60,000 truckload of toys. The government also had tapes proving his complicity in a related scheme involving $1.4 million in stolen goods, but did not introduce that evidence at sentencing. Shortly before his scheduled release the government secured a separate indictment for the $1.4 million theft. Defendant moved to dismiss, claiming the delay prejudiced him in three ways. First, if charged together, he would have faced a total of 21 to 27 months in prison. Because he now had a prior conviction, Martinez faced 24 to 30 months for the second charge alone, in addition to the 8 months he had already served. Second, the prior conviction could be used to impeach him at the second trial. Finally, the separate convictions meant he would have two strikes under a state "three strikes" law.

The trial court found prejudice and granted the motion to dismiss. The Ninth Circuit, despite using a deferential abuse of discretion standard, reversed and reinstated the indictments. First, regarding trial prejudice, "The possibility that the government will use prior convictions for impeachment purposes is not the type of prejudice that violates principles of due process." Id. at 335. Second, any increased sentence would be speculative. If the trial judge found the delayed indictment yielded a longer than fair sentence under the guidelines, she could always take a downward departure. Id. at 336-37. Finally, the second strike would only be prejudicial if Martinez committed another crime, which was speculative. Id.

We agree. We do not see any certain prejudice to Dote caused by the delayed indictment. His motion does not cite any particular harm, only some abstract effect from sequential prosecutions. As a matter of law, his argument that prejudice is presumed is incorrect. He must not only particularize any prejudice, but also bears the burden of demonstrating that it is certain. His failure to do either is fatal to his claim. Even if Dote were to advance the arguments discussed in Martinez, we agree with the Ninth Circuit's disposition. First, all probative evidence is prejudicial. We only endeavor to eliminate things that are unfairly prejudicial. The evidentiary rules satisfactorily deal with balancing probative value and prejudicial effect. The appropriate remedy, if any, would be a motion in limine regarding use of the prior conviction, not dismissal. Second, we do have discretion to take departures if appropriate. And finally, we cannot presume that Dote will commit another crime in the future. Any harm would be speculative.

II. Continuous Crime

Second, defendant argues that we must dismiss this indictment because RICO is a continuous crime. We interpret this as a claim that the acts alleged in the current indictment are a mere continuation of those in the prior indictment, and hence, not separately punishable. Notwithstanding defendant's protestations to the contrary, this does sound like a double jeopardy argument. As the government points out, however, the indictments allege distinct acts. If defendant committed additional crimes after his first indictment, he can be punished again. This is true even if they are the same type of crime, i.e. running a gambling ring. The second enterprise existed at a different time and involved different people.

Defendant terms this "punishment-on-the-installment-plan." We are not sure what he means by this. The closest legal analogies we can find are double jeopardy and speedy trial. This does not violate double jeopardy. Indeed defen...