United States v. Fassoulis

• Decision Date: 30 December 1959
• Citation: 179 F. Supp. 645
• Parties: UNITED STATES of America v. Satiris Galahad FASSOULIS, Defendant.
• Court: U.S. District Court — Southern District of New York

179 F. Supp. 645

UNITED STATES of America v. Satiris Galahad FASSOULIS, Defendant.

United States District Court S. D. New York.

December 30, 1959.

S. Hazard Gillespie, Jr., U. S. Atty., for Southern District of New York, New York City, Herbert F. Roth, Asst. U. S. Atty., Astoria, N. Y., of counsel, for United States.

Samuel J. Siegel, New York City, for defendant.

DIMOCK, District Judge.

Defendant moves for a dismissal of the indictment upon the ground that he has not been accorded the right to a speedy trial to which he is entitled under amendment VI of the United States Constitution and on the ground of unnecessary delay of the Government in presenting the charge against defendant to a Grand Jury in violation of subdivision (b) of Rule 48 of the Federal Rules of Criminal Procedure.

Defendant was apprehended on or about December 28, 1955, pursuant to a warrant issued on a complaint filed with the United States Commissioner for the Southern District of New York, which charged a violation of section 1343 of Title 18, U.S.Code. On January 11, 1956, defendant waived examination before the United States Commissioner and was held to await the action of the Grand Jury. A few days thereafter he was released on bail in the sum of $25,000 and has been continuously at liberty since that time. No indictment was found until the early part of October 1959. He pleaded not guilty on October 16, 1959, and, upon his request, the case was adjourned to November 4, 1959.

Under the rule of United States v. Lustman, 2 Cir., 258 F.2d 475, certiorari denied 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109, a defendant who has failed to demand a speedy trial is not entitled to a dismissal of the indictment no matter how great the delay. Defendant has never demanded a speedy trial and never complained of the delay until the time when he was indicted in 1959 and made the motion for a dismissal of the indictment. He says, however, that he had no right to demand a speedy trial until he was indicted and that he ought not to be penalized for failure to do something that he had no right to do. As I shall hereinafter elaborate, the answer is that he did have the right to move to dismiss the complaint and, for the purposes of the rule, such a motion where there had been no indictment would take the place of a demand for a speedy trial.

Under Rule 48(b), F.R.Crim.P., "If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint." A motion made by such a defendant for a dismissal of the complaint on the ground that there had been unnecessary delay in presenting the charge to a Grand Jury would be the equivalent of a demand for a speedy trial by a defendant who had already been indicted. Take, for example, the case of a defendant held on complaint for the Grand Jury who, after two years, had moved to dismiss the complaint and had had his motion denied. If after two more years he were indicted and moved to dismiss the indictment because his right to a speedy trial had been denied, certainly no court would deny the motion on the sole ground that he had never demanded a speedy trial.

The motion to dismiss the indictment is denied.

Defendant also moves for a bill of particulars. In point of fact the motion, with minor exceptions, is really a set of interrogatories with respect to the Government's evidence and must therefore be denied except in those minor respects. The indictment alleges a scheme to defraud and...