United States v. Dowl

• Decision Date: 27 May 1975
• Docket Number: No. 3-72 Cr. 212.,3-72 Cr. 212.
• Citation: 394 F. Supp. 1250
• Parties: UNITED STATES of America, Plaintiff, v. Jesse Bernard DOWL, Defendant.
• Court: U.S. District Court — District of Minnesota

394 F. Supp. 1250

UNITED STATES of America, Plaintiff, v. Jesse Bernard DOWL, Defendant.

No. 3-72 Cr. 212.

United States District Court, D. Minnesota, Third Division.

May 27, 1975.

COPYRIGHT MATERIAL OMITTED

Robert G. Renner, U. S. Atty, by Daniel M. Scott, Asst. U. S. Atty., for plaintiff.

James E. Schatz, Doherty, Rumble & Bulter, St. Paul, Minn., for defendant.

MEMORANDUM AND ORDER

ALSOP, District Judge.

The defendant has been charged on a one count indictment with knowingly receiving a firearm in and affecting commerce after having been convicted of a felony, in violation of 18 U.S.C.App. § 1202(a)(1). The matter comes before the court upon the motion of the defendant to dismiss the indictment on the grounds that his right to a "speedy and public trial" has been denied under the Sixth Amendment to the Constitution of the United States or, in the alternative, to dismiss the indictment due to an "unnecessary delay in bringing a defendant to trial" under Rule 48(b) of the Fed.R.Cr.P.

A chronology of key events leading to this motion is as follows:¹

1. On October 22, 1972, defendant was arrested by officers of the St. Paul Police Department in possession of a firearm and was incarcerated at the St. Paul City Jail until October 24, 1972, when released.

2. On December 7, 1972, the present indictment was filed with the United States District Court for the District of Minnesota charging the defendant with the crime of knowingly receiving a firearm in and affecting commerce on or about October 22, 1972, after having been convicted of a felony.

3. On May 10, 1973, defendant was arrested and charged with a drug offense in the city of Ben Harbor, Michigan.

4. In June of 1973, defendant learned that a federal detainer had been filed against him with the Michigan authorities based upon the indictment in this case.

5. On July 23, 1973, defendant, who was represented by counsel, was convicted of the drug offense upon which he was charged on May 10, 1973. A sentence of two to five years was imposed by the Michigan court.

6. On November 7, 1974, defendant completed serving his sentence and was turned over to Federal authorities for a removal hearing. United States Magistrate Hackett postponed the hearing on the Removal Petition until November 18, 1974, so that an attorney could be appointed to represent defendant at the hearing. Defendant, however, appeared again before Magistrate Hackett on November 12, 1974, and waived the removal hearing.

7. On December 3, 1974, defendant appeared, as ordered, in United States District Court for the District of Minnesota before Magistrate J. Earl Cudd. Attorney James Schatz was appointed to represent the defendant in the proceedings before this court.

8. On December 19, 1974, defendant filed the instant motion to dismiss the indictment and a hearing was held February 28, 1975.

The right to a speedy trial "has its roots at the very foundation of our English law heritage" and "is as fundamental as any of the rights secured by the Sixth Amendment." Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). The defendant in this case contends that his Sixth Amendment right to speedy trial has been denied by the more than 28 month delay in bringing him to trial. If defendant has been denied a speedy trial, the remedy is clearly that of dismissing the indictment. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

The defendant also contends that even if this court does not find that his constitutional right to speedy trial has been violated, it can still dismiss the indictment under the authority of Rule 48(b) of the Fed.R.Cr.P.

The difficulty of determining when a defendant has been denied speedy trial is caused by the vagueness of the concept and the inability to define with precision the exact number of months or years which amount to denial. Barker v. Wingo, supra, 407 U.S. at 521, 92 S.Ct. 2182. Due to this imprecision, the Supreme Court has formulated a balancing test that should be applied in an effort to weigh the conduct of the prosecution and that of the defendant.

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. footnote omitted.

In applying these factors to the case at bar the court finds the following:

Length of Delay

The defendant was indicted on December 7, 1972, and filed a motion to dismiss on December 19, 1974. Separating these two dates is a 24 month period in which defendant was not brought to trial.² This period of time is sufficiently inordinate to serve as a "triggering mechanism" to create the presumption of prejudicial delay. Barker v. Wingo, supra; United States v. Washington, 504 F.2d 346 (8th Cir. 1974). Once the presumption is found to exist, the government is responsible for explaining or justifying the reason for the delay. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182; United States v. Rucker, 150 U.S.App.D.C. 314, 464 F.2d 823, 825 (1972).

Reasons for the Delay

The government argues that the delay between December 7, 1972, and May 10, 1973, is excusable because the defendant was a fugitive. Defendant, on the other hand, argues that he had no knowledge that there was an indictment pending against him and that the federal authorities knew or should have known of his whereabouts.

Defendant, through affidavit, has submitted that after leaving St. Paul he lived at 1436 Washington Street, Gary, Indiana, until sometime in January of 1973 and then moved to the home of his parents at 2692 Polk Street, Gary, Indiana — a location to which he could have been easily traced. In further support of his contention, defendant refers the court to the December 11, 1972, report of Special Agent Michael W. Hegerfeld of the Bureau of Alcohol, Tobacco and Firearms, which states in part:

Information was received that sometime between October 23 and October 25, 1972, Dowl left the St. Paul area and returned to his place of residence, 1436 Washington Avenue, Gary, Indiana. . . .

Special Agent Hegerfeld has submitted an affidavit to the court stating that he notified Special Agents Dale Monroe and Michael Blackman of the Bureau of Alcohol, Tobacco and Firearms in the Gary, Indiana, area that the defendant may be staying at 1436 Washington or at the Lavella Hotel and that both agents informed him that they would attempt to locate defendant Dowl.

The court is of the opinion that a lengthy delay between indictment and arrest, if attributable to the negligence or intentional neglect of the government officers, would weigh against the government in applying the balancing test. United States v. Washington, supra, 504 F.2d at 348. Since it is not clear from the affidavit of Special Agent Hegerfeld whether agents did in fact attempt to find the defendant in the Gary, Indiana, area it would be difficult for the court to affix this segment of the delay to the government or the defendant. However, it is clear that the government has not succeeded in persuading the court that defendant Dowl should be charged with this delay.

The more significant segment of delay occurred between the arrest of defendant in Michigan in May of 1973 and the filing of this motion approximately 19 months later. The government contends that this period of delay should be charged to the defendant because he did not demand trial pursuant to the Interstate Agreement on Detainers Act, 18 U.S.C.App. § 2, art. III.

The defendant argues that even though he was aware of the general nature of his right to speedy trial he was unaware that such a demand would be worthwhile or that by not making a demand the government would later argue that he had waived his right to a speedy trial. Of greater significance is defendant's contention that he was without counsel during the period between his conviction in Michigan in July of 1973 and his arraignment in Minnesota on December 3, 1974. Defendant argues that not having funds to employ counsel and none being appointed for him by the government, he should not now be said to have waived his constitutional right. It is also noteworthy that the government as well as the defendant could have taken advantage of the Interstate Agreement on Detainers Act, 18 U.S.C.App. § 2, art. IV, to transfer defendant to Minnesota for speedy trial.

Pursuant to the provisions of the Interstate Agreement on Detainers Act, 18 U.S.C.App. § 1 et seq., either the prisoner or the state can request that the prisoner be temporarily transferred to a state where an indictment is pending so that a speedy and efficient prosecution may follow. While this provision places no duty upon the state, or in this case the United States, to bring the prisoner to trial absent a demand by him, it does provide a procedure whereby the state may have the prisoner transferred to its custody if it so chooses. United States v. Cappucci, 342 F.Supp. 790, 792-93 (E.D.Pa.1972). However, the fact that the defendant is incarcerated in another jurisdiction does not relieve the government from providing a speedy trial under the Sixth Amendment. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Further, though defendants may seek to put off trials in many instances, "the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial." Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970).

The government has argued that the segment of delay from May 10,...