United States v. Brown, 80-CR-43.

Citation521 F. Supp. 511
Decision Date30 January 1981
Docket NumberNo. 80-CR-43.,80-CR-43.
PartiesUNITED STATES of America, Plaintiff, v. James R. BROWN and Carol Herklotz, Defendants.
CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Judith M. Hawley, Asst. U. S. Atty., Madison, Wis., for plaintiff.

David J. Ghilardi, Charles Giesen, Eisenberg, Giesen, Ewers & Hayes, Madison, Wis., for defendants.

ORDER

CRABB, Chief Judge.

The parties have filed no objections to the Report and Recommendation entered herein by the Honorable William L. Gansner, United States Magistrate. In the absence of any objections, there is no need for me to review the merits of the magistrate's proposed findings of fact and conclusions of law. However, I have made an independent review of the Report and Recommendation.

I find the magistrate's proposed findings and conclusions well-founded and unexceptionable. Accordingly, I adopt as the court's own the proposed findings of fact of the magistrate and the proposed conclusions of law.

IT IS ORDERED that the defendants' motions to dismiss the indictment on the ground of allegedly prejudicial representations made to the Grand Jury is DENIED; defendants' motion for dismissal of the indictment for election of charges by the government on the ground that the indictment charges both conspiracy and substantive offenses is DENIED; defendants' motion to dismiss Count I on the grounds that it charges a dual-objective conspiracy and that it is insufficient is DENIED; defendants' motion to dismiss Count II for insufficiency is DENIED; defendants' motion to dismiss Counts III through VIII is DENIED; defendants' motion to dismiss Count II for duplicity is DENIED; and defendants' motion to dismiss Counts III through VIII as to require election, on the ground of multiplicity is DENIED.

REPORT AND RECOMMENDATION

Dec. 9, 1980.

WILLIAM L. GANSNER, United States Magistrate.

INTRODUCTION

This report and recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(B), and addresses various dismissal motions filed by the defendants.

Conspiracy and substantive offenses are at issue in this case. Count I jointly charges the defendants with conspiracy to violate 18 U.S.C. §§ 665 and 1001, respectively, by embezzling and misapplying property under the Comprehensive Employment and Training Act (CETA), and by causing false written statements to be made in matters within the jurisdiction of an agency of the United States. Count II jointly charges the defendants with the substantive offense of embezzling and misapplying CETA property; namely, the services of trainees participating in the Western Dairyland Supported Work Program. It is alleged that defendant Brown was the director and defendant Herklotz the personnel coordinator of this CETA-funded work experience program. Each defendant is individually charged with three substantive counts of causing a false written statement to be made (defendant Herklotz in Counts III, IV, and V, and defendant Brown in Counts VI, VII, and VIII). The false statements alleged in these counts involve the preparation of weekly time sheets on which the work sites of six different trainees were falsified. Specifically, it is alleged that the time sheets represented that the trainees had worked at an approved work project, while in fact each had worked at an unapproved work site that was privately owned by defendant Herklotz and her husband and leased by them to the Cataract Corporation, a private profit-making corporation of which Brown, Herklotz and her husband were all officers.

Each defendant filed several dismissal motions in this case, and each defendant was subsequently granted leave to join in and rely upon the other's motions. Construing all motions as having been asserted by both defendants, therefore, the following dismissal motions are before the court:

1. Motion to dismiss the indictment on the ground of pre-indictment prosecutorial delay;
2. Motion to dismiss the indictment on the ground that prejudicial non-evidentiary representations were made to the Grand Jury by a government agent;
3. Motion to dismiss all counts, or require government election between the conspiracy and substantive counts, on the ground that the indictment improperly charges the defendants with both conspiracy and underlying substantive offenses;
4. Motion to dismiss Count I on the ground of its improper charging of two conspiratorial objectives;
5. Motion to dismiss Counts I and II on the ground of insufficiency;
6. Motion to dismiss the false statement counts (Counts III—VIII) on the ground of failure to allege a matter within the jurisdiction of a department of the United States as required by 18 U.S.C. § 1001.
7. Motion to dismiss Count II on the ground of duplicity; and
8. Motion to dismiss the false statement counts (Counts III—VIII), or require government election of one count as to each defendant, on the ground of multiplicity.

Such facts as are necessary to a consideration of these motions are incorporated within the appropriate section of the following opinion.

OPINION
1. Pre-indictment Delay

Defendants have moved to dismiss the indictment in this case on the ground of delay between the commission of their alleged offenses and the return of the indictment. Defendant Brown, who brought the motion, argues that his right to a fair trial has been prejudiced by this passage of time and that the delay was unnecessary. Defendant Herklotz, who joined in the motion after its filing, has presented no argument or allegation in its support. The government's briefs in opposition to the defense motions in this case do not address this motion at all.1

The offenses in this action are alleged to have been committed between the dates of September 1, 1978 and April 23, 1979. It appears that a grand jury investigation was underway as early as late March of 1979,2 but it is clear that an indictment was not returned until July 29, 1980. There was a period of approximately 15 months, therefore, between the last date of an alleged offense and the bringing of charges.

As noted above, defendant Herklotz has advanced no allegation, suggestion or argument of any prejudice accruing to her from the pre-indictment delay. Neither Brown nor his counsel have submitted an affidavit in this regard. Brown's only representations of delay-caused prejudice are set forth in the following four sentences of argument from his counsel's brief:

It is clear that the Indictment against the defendant, James R. Brown, should be dismissed. There is little question that defendant's due process right to a fair trial has been prejudiced by the thirteen-month delay by the Government in presenting its evidence to the Grand Jury. The passage of time, as pointed out by the Court in Dickey, supra, makes it more difficult for defendant to reconstruct events of the past in his own memory. The memories of witnesses who could rebut the allegation that they were used to work on unauthorized work sites will have undoubtedly faded, if such witnesses are still available at all.

The government has offered no factual explanation of the cause or need for the 15 month pre-indictment delay in this case.

The constitutional significance of lengthy pre-indictment delay has been considered by the United States Supreme Court in two leading cases, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). From them, the following "settled principles," Id. at 797, 97 S.Ct. at 2052, have emerged: (1) while statutes of limitations provide the primary guarantee against the bringing of stale criminal charges, the Due Process clause plays a limited role in protecting against oppressive delays; (2) proof of actual prejudice resulting from pre-indictment delay is a pre-requisite to adjudication of a due process claim but is not by itself sufficient to establish the validity of the claim; (3) once actual prejudice is proved, the judicial focus must then turn to the reasons for the delay; and (4) a due process claim grounded upon pre-indictment delay will be successful only where proof of actual prejudice is coupled with proof of an unnecessary delay.

Under Marion and Lovasco, therefore, a due process claim based upon pre-indictment delay requires a balancing or comparison of the extent of actual prejudice and the reasons for delay. It is clear, however, that "the due process calculus is not even brought into play until actual prejudice is shown." Arnold v. McCarthy, 566 F.2d 1377, 1383-84, n.1 (9th Cir. 1978); accord, United States v. King, 593 F.2d 269, 271 (7th Cir. 1979).

Complete and detailed consideration of defendants' due process claim is unnecessary, for they have failed to demonstrate or even allege any specific actual prejudice arising from the 15-month pre-indictment delay in this case. Their claim is simply not "concrete and ripe for adjudication." Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048.

Herklotz has pointed to no prejudice of any kind resulting from the pre-charging delay; the present motion should obviously be denied as to her. Neither Brown nor his counsel have advanced any affidavit in this regard. Instead, Brown relies upon the arguments of his counsel that the delay has made it "more difficult for him to reconstruct events of the past in his own memory," and that the memories of witnesses may have faded, "if such witnesses are available at all." These "arguments" must be considered as such, and are entitled to no factual weight. Had they been presented by affidavit, however, such allegations would remain indefinite, speculative, and premature. There is no allegation that delay has impaired the memory of Brown or any witness as to events material to his defense; nor is there any allegation that the passage of time has resulted in the loss of any useful witness.

Proof of actual prejudice is a prerequisite...

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