United States v. Drucker, 77 Crim. 596.
| Decision Date | 09 June 1978 |
| Docket Number | No. 77 Crim. 596.,77 Crim. 596. |
| Citation | 453 F. Supp. 741 |
| Parties | UNITED STATES of America v. Robert DRUCKER, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y. by Lawrence Iason, Asst. U. S. Atty., New York City, for plaintiff.
Ronald E. DePetris, DePetris & Stewart, New York City, for defendant.
Prior to trial the defendant moved for dismissal of the original indictment on the grounds of excessive hearsay. He also argued that as to two of the counts, no evidence was presented to the grand jury.
Before I had ruled on that motion, but after I had examined the transcript of the testimony before the grand jury and had indicated to the Government my concern with the manner in which the case had been presented to the grand jury, the matter was presented again to a new grand jury and a superseding indictment was filed. At that point I denied the defendant's motion to dismiss the original indictment as moot and the case proceeded to trial. In the course of the trial I dismissed various of the counts in the superseding indictment, and the defendant was convicted on all the remaining counts.
The defendant now asserts by post-trial motion that the superseding indictment is barred by the statute of limitations. The thrust of his argument is twofold: (1) The original indictment was invalid in that it was based upon excessive and misleading hearsay and accordingly it did not toll the statute of limitations; (2) Section 3288 of Title 181 is inapplicable to this case as the original indictment was not dismissed, and hence the tolling provisions of Section 3288 do not come into play.
Consistent with the views I expressed on March 3, 1978, Hearing Transcript at 407-409 (March 3, 1978), I reiterate my concern for the extensive reliance upon hearsay testimony to secure indictments. However, I find as a matter of law that whether or not the original indictment was defective, that indictment served to toll the statute of limitations with respect to the charges contained therein. See United States v. Macklin, 535 F.2d 191 (2d Cir. 1976). It put the defendant squarely on notice of the criminal activities with respect to which he was charged. The superseding indictment, filed while the original indictment was still pending, made no substantive change in the charges against the defendant. With one minor change it was, in fact, identical to the original indictment.
In United States v. Grady, 544 F.2d 598, 601-602 (2d Cir. 1976), the Second Circuit held that a superseding indictment brought after the limitations period has...
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...However, Gillespie is not the law of this Circuit. See United States v. Grady, 544 F.2d 598 (2d Cir.1976) ("Grady"); United States v. Drucker, 453 F.Supp. 741 (S.D.N.Y.1978). "Once an indictment is brought, the statute of limitations is tolled as to the charges contained in that indictment.......
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...Garcia, 412 F.2d 999, 1000-01 (10th Cir.1969); United States v. Chagra, 638 F.Supp. 1389, 1394-95 (W.D.Tex.1986); United States v. Drucker, 453 F.Supp. 741, 742-43 (S.D.N. Y.), aff'd mem., 591 F.2d 1332 (2d Cir. 1978), cert. denied, 440 U.S. 963, 99 S.Ct. 1510, 59 L.Ed.2d 778 (1979). Those ......
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U.S. v. Scott, 87-1354
...761 F.2d 184, 185 n. 2 (4th Cir.1985); United States v. Drucker, 591 F.2d 1332 (2d Cir.1978), affirming without opinion, 453 F.Supp. 741, 742 (S.D.N.Y.1978). The issue is moot because the validity of the indictment no longer poses "a present, live controversy of the kind that must exist if ......
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...under the Grady rule is unrelated to the issue of whether an indictment is defective or insufficient. See United States v. Drucker, 453 F. Supp. 741, 742 (S.D.N.Y. 1978), aff'd 591 F.2d 1332 (2nd Cir. 1978) (finding that whether or not the original indictment was defective, the indictment s......