United States v. Filiberti, Crim. No. H-300.

• Decision Date: 19 January 1973
• Docket Number: Crim. No. H-300.
• Citation: 353 F. Supp. 252
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Raymond FILIBERTI and Frank Sacco.

353 F. Supp. 252

UNITED STATES of America v. Raymond FILIBERTI and Frank Sacco.

Crim. No. H-300.

United States District Court, D. Connecticut.

January 19, 1973.

Randolph C. Roeder, Asst. U. S. Atty., Hartford, Conn., for plaintiff.

Hubert J. Santos, Federal Public Defender, Hartford, Conn., for defendants.

RULING ON DEFENDANT FILIBERTI'S MOTION TO DISMISS THE INDICTMENT

BLUMENFELD, Chief Judge.

Raymond Filiberti was indicted on June 27, 1972, for fraudulently concealing and transferring the assets of a bankrupt corporation and conspiracy in violation of 18 U.S.C. §§ 152 and 371. The substantive offense allegedly occurred on or about June 26, 1968, four years and one day before the indictment was returned.¹ Defendant does not allege that he has been prejudiced by this delay in any way, but contends that the government has failed to comply with the provisions of 18 U.S.C. § 3057² and that the indictment must therefore, be dismissed. For reasons which will appear, this motion must be denied.

Defendant's argument is of necessity grounded upon the statute, for the Supreme Court has squarely rejected the argument that the sixth amendment's guarantee of a speedy trial³ applies to pre-indictment delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Moreover, his suggested reading of § 3057 would make that statute unique in criminal procedure, for "the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges," United States v. Marion, supra, 404 U.S. at 322, 92 S.Ct. at 464, 30 L.Ed.2d at 479 quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), and Rule 48(b), Fed.R.Crim.P., permitting the court to dismiss an indictment brought after "unnecessary delay," applies only to delay subsequent to the defendant's arrest. United States v. Marion, supra at 478, 92 S.Ct. 455.

The statute, directing that the United States Attorney, "if it appears probable that any such offense has been committed, shall without delay, present the matter to the grand jury" (see note 2 supra) does not on its face confer any procedural rights upon a defendant in a bankruptcy fraud prosecution. It is not surprising that such a provision has found its way into the bankruptcy statutes, where the concern for speedy administration of bankruptcy estates is particularly strong. Wrenched from its context, the above-quoted segment of the statute appears to be a severe restriction on the well-recognized discretion⁴ accorded prosecutors regarding the initiation of criminal proceedings. However, the words immediately following make any such reading of the statute untenable, for the United States Attorney may decide "upon inquiry and examination . . . that the ends of public justice do not require investigation or prosecution, in which case he shall report the facts to the Attorney General for his direction." 18 U.S.C. § 3057(b). The presence of this language further supports the view that § 3057 was intended primarily as an administrative measure—a congressional directive to the district offices of the United States Attorneys to become more active in the prosecution of bankruptcy fraud cases.

This interpretation of § 3057 is supported by its legislative history. The section was first added to the Bankruptcy Act in 1926 when Congress made significant changes in the criminal provisions of the Act, creating new offenses and making existing penalties stiffer. 44 Stat. 665, 666. There was little discussion of § 29(e), the present § 3057, which was added at the insistence of the House of Representatives. That chamber heard Rep. Michener, floor manager of the bill, repeat the exact words of the House Report in explaining the amendment:

"Section 29(e) is new matter and the text of the amendment was prepared by the Attorney General. The Attorney General did not suggest the amendment but did perfect the text. The amendment is designed to secure the aid and cooperation of the United States district attorney in bringing to speedy justice offenders against the bankruptcy law." 67 Cong.Rec. 7678 (Pt. 7) (April 17, 1926).

Defendant's argument is plainly without foundation in the sixth amendment, nor in long-established principles governing the operation of the statute of limitations. The language, purpose, and relevant legislative history of § 3057 are equally...