U.S. v. Zukowski

• Citation: 851 F.2d 174
• Decision Date: 28 June 1988
• Docket Number: No. 87-2233,87-2233
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chester ZUKOWSKI, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 174

851 F.2d 174

UNITED STATES of America, Plaintiff-Appellee, v. Chester ZUKOWSKI, Jr., Defendant-Appellant.

No. 87-2233.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 21, 1988.

Decided June 28, 1988.

Lee T. Lawless, Federal Public Defender's Office, St. Louis, Mo., for defendant-appellant.

Laura J. Jones, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., Benton, Ill., for plaintiff-appellee.

Before CUMMINGS and WOOD, Jr., Circuit Judges, and WILL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant Chester Zukowski, Jr., was charged in a one-count indictment with escape from the Federal Prison Camp in Marion, Illinois, in violation of 18 U.S.C. Sec. 751(a). On July 21, 1987, pursuant to a written plea agreement, he entered a conditional plea of guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2), which allows for appellate review of the district court's adverse determination of specified pretrial motions. The court sentenced the defendant to a two-year term of imprisonment. The defendant has appealed, arguing that the district court erred in failing to dismiss the case because the delay between arrest and prosecution violated defendant's statutory and constitutional rights to a speedy trial. The defendant also argues that the government is collaterally estopped from contesting that thedefendant's arrest was pursuant to a warrant. We affirm.

I. FACTUAL BACKGROUND

On August 1, 1983, the defendant was sentenced in the Southern District of Florida to a term of six years' imprisonment for filing false and fraudulent income tax returns. On November 20, 1984, he surrendered to the custody of the Attorney General at the Federal Prison Camp in Marion, Illinois.

On May 19, 1985, the defendant escaped from the Federal Prison Camp. The Bureau of Prisons issued copies of a document entitled "Notice of Escaped Federal Prisoner." No complaint was prepared, and no warrant was issued for his arrest at that time. The defendant was apprehended on June 5, 1985, in Davie, Florida.

Upon apprehension, the defendant was advised of his rights. He told law enforcement officers that he had two firearms in the apartment he had been renting. He consented to a search of the apartment, and the officers recovered the two firearms.

The defendant was initially taken to the Fort Lauderdale city jail, and later transferred to the Federal Correctional Institution in Ashland, Kentucky, where he was to serve the remainder of his sentence on the tax conviction. He began receiving credit toward his sentence when he was apprehended June 5, 1985.

On April 15, 1986, the defendant was indicted in the Southern District of Florida on two counts for possession of firearms by a convicted felon, 18 U.S.C. Secs. 922(h)(1), 924(a), arising from the search of his apartment. An arrest warrant was issued April 18, 1986, and a detainer filed at Ashland on April 28, 1986. See 18 U.S.C. Sec. 3161(j)(1)(B). The defendant's initial appearance and arraignment were on May 28, 1986, at which time counsel was appointed. A status conference was held June 3, 1986.

At the status conference, Chief District Judge James Lawrence King raised the issue of a possible violation of the Speedy Trial Act. During discussion among the judge and the attorneys, the defendant's attorney made an oral motion to dismiss the indictment pursuant to 18 U.S.C. Sec. 3161(b) for failure to indict the defendant within thirty days of his arrest.

The government took the position that defendant had been arrested for escape, and that, therefore, section 3161(b) was not violated when the government failed to indict him for the firearms charge within thirty days of the arrest. The assistant United States attorney stated incorrectly that a warrant had been issued for the escape.

In ruling on the timeliness issues in the firearms case, Judge King mentioned that "the prisoner/defendant was arrested in the Southern District of Florida on a warrant of arrest on escape from a federal institution." United States v. Zukowski, No. 86-355 (S.D.Fla. June 20, 1986) (order denying defendant's motion to dismiss). The court went on to find, however, that because the "defendant had not been charged until the indictment was returned, the period between his arrest and the return of the indictment did not violate the provisions of the Speedy Trial Act." Id. The motion to dismiss was therefore denied.

The defendant pled guilty to one count of the indictment on the firearms charge on August 18, 1986, and was sentenced April 27, 1987, to a three-month term to run concurrently with his 1983 tax sentence.

On January 23, 1987, the defendant was indicted in the Southern District of Illinois for the May 19, 1985, escape, from custody.

On June 11, 1987, defendant filed by mail a motion to likewise dismiss the escape charges based on violations of the Speedy Trial Act, 18 U.S.C. Secs. 3161(b), 3162(a)(1), and the sixth amendment. Chief Judge Foreman denied the motion on June 29, 1987, and denied defendant's subsequent motion to reconsider on July 21, 1987. ¹ The defendant entered his conditional plea of guilty on the same day, and this appeal followed.

II. DISCUSSION

A. Speedy Trial Issues

The defendant argues that he was not properly indicted for the escape within thirty days of his arrest on June 5, 1985. The government argues, and the district court found, that the apprehension of an escaped prisoner is not an arrest that triggers section 3161(b) because the restraints imposed on the prisoner are not new but are based on his original conviction.

The Fourth Circuit considered this issue in United States v. Sairafi, 801 F.2d 691 (4th Cir.1986). Sairafi escaped from a federal correctional institution on May 22, 1985, and boarded a plane. When the plane landed, a law enforcement officer seized the defendant and returned him to custody. The court found that "[t]here was no arrest warrant or other document ordering or authorizing defendant's arrest on a charge of escape." Id. at 692. The defendant was not indicted for the escape until December 16, 1985.

The Fourth Circuit found that the principle behind the Speedy Trial Act did not support its application to the recapture of an escaped prisoner. The court agreed with the Eighth Circuit that " '[t]he right to a speedy trial on a charge is triggered by arrest only where the arrest is the beginning of continuing restraints on defendant's liberty imposed in connection with the formal charge on which the defendant is eventually tried.' " Id. (quoting United States v. Stead, 745 F.2d 1170, 1172 (8th Cir.1984)). An arrest of an escaped prisoner, however, does not initiate new restraints; the defendant is subject to apprehension and confinement as a result of his original conviction. Id. The Fourth Circuit therefore found no violation of the Speedy Trial Act.

We find the district court's decision that the Speedy Trial Act does not apply to the recapture of an escaped prisoner to be well-supported by the law of the other circuits that have considered the issue. Sairafi, 801 F.2d at 692 (Fourth Circuit); United States v. Ray, 768 F.2d 991, 995-97 (8th Cir.1985); Stead, 745 F.2d at 1172-73 (Eighth Circuit); United States v. Wilson, 690 F.2d 1267, 1276 (9th Cir.1982), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983). The defendant, however, seeks to distinguish this case by pointing out that here, unlike Sairafi, there was a document authorizing his arrest: the Notice of Escaped Federal Prisoner.

We disagree with the defendant as to the effect of the Notice of Escaped Federal Prisoner. Nowhere on its face does the notice purport to order or authorize an arrest of the subject. The notice is informational only. It provides a photograph of the prisoner; his physical description; his prison, FBI, and social security numbers; his home address, occupation, and known aliases; and the offense committed and sentence received. The notice includes the date and location of the escape, the circumstances under which his absence was discovered, and information on whether the prisoner is considered armed and dangerous. The notice informs readers of a possible reward, and gives the prison warden's name and two telephone numbers.

The Notice of Escaped Prisoner, although informative, has no legal effect. It is similar to the "wanted posters" the FBI places in the post office. It gives the reader the information necessary to recognize an escaped prisoner, but it does not order or authorize the reader to arrest the prisoner. We therefore find that the Notice of Escaped Prisoner was not an "other document ordering or authorizing defendant's arrest on a charge of escape." Sairafi, 801 F.2d at 692. We affirm the district court's ruling that apprehension of the defendant was not an arrest triggering the application of section 3161(b) of the Speedy Trial Act. There was thus no violation of the Act.

B. Preindictment Delay

The defendant also argues that his constitutional right to a speedy trial was violated by the delay between his arrest and indictment. U.S. Const. amend. VI. The sixth amendment right, however, only attaches when a formal criminal charge is instituted and a criminal prosecution begins. United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 1500-01, 71 L.Ed.2d 696 (1982). Sixth amendment rights do not protect an individual against unreasonable delay before accusation by arrest or the filing of charges. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). We have found that the defendant's apprehension was not an arrest for purposes of 3161(b) because no new restraints were imposed; we similarly find that the defendant's sixth amendment rights did not attach until he was indicted for the escape charge. Before the indictment was returned, the defendant was not the subject of a criminal prosecution. MacDonald, 456 U.S. at 6-7, 102 S.Ct. at 1500-01.

The defendant ...