United States v. Joseph, Crim. No. 81-00070.
Decision Date | 02 April 1981 |
Docket Number | Crim. No. 81-00070. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Parties | UNITED STATES of America v. Joseph A. JOSEPH. |
Daniel B. Huyett, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Wallace C. Worth, Jr., Allentown, Pa., for defendant.
The government has charged that defendant, the Clerk of Courts of Lehigh County, violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., by soliciting and accepting various amounts of cash from a bailbondsman in consideration for defendant's favorable recommendations and exercise of discretion in his official decisions. Defendant has filed several pre-trial motions addressed seriatim below.
First, defendant attacks the factual sufficiency of the indictment, which must allege as an essential element of the crime that defendant's enterprise activities affected interstate commerce. See 18 U.S.C. § 1962. Defendant, contending that the indictment fails to state facts sufficient to constitute an effect upon interstate commerce, relies principally upon United States v. Vignola, 464 F.Supp. 1091 (E.D.Pa.), aff'd, 605 F.2d 1199 (3d Cir. 1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980), which he cites for the proposition that the racketeering activities of a traffic court judge cannot have an effect upon interstate commerce absent maintenance of an out-of-state office. Since the Lehigh County Clerk of Courts operates no out-of-state offices, defendant reasons, interstate commerce has not been affected within the meaning of the RICO statute.
Clearly, however, Vignola held that defendant's racketeering activity need not affect interstate commerce; rather, the named enterprise, not the individual defendant, must be engaged in or affecting interstate commerce. See id. at 1098-99. See also United States v. Haley, 504 F.Supp. 1124 (E.D.Pa.1981). The Vignola court premised its ruling upon the plain reading of the statute, the legislative history and the Supreme Court's analysis of Congress' ability to proscribe wholly intrastate activities which affect interstate commerce.
Congressional Statement and Finding of Purpose, supra. Defendant has neither alleged nor demonstrated that Congress' findings lack a rational basis or that the means which Congress chose to rid the economy of a recognized menace are irresponsible or inappropriate.
Moreover, most courts do have an effect upon interstate commerce, United States v. Vignola, 464 F.Supp. at 1097, as do sheriff's departments, United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980), and the offices of prosecuting attorneys, United States v. Altomare, 625 F.2d 5, 8 (4th Cir. 1980), all of which place interstate telephone calls, purchase supplies and materials through interstate commerce and involve non-citizens of the forum state in litigation. In summary, RICO is a proper exercise of federal power. The indictment sufficiently states facts alleging that defendant's enterprise activities affected interstate commerce. Defendant's motion will be denied.
Second, defendant moves to dismiss on the grounds of preindictment delay. Defendant claims that, prior to notification in September 1980 that a grand jury had targeted him for investigation, federal officers questioned him repeatedly for several months and that the resulting five-month delay in return of the indictment prejudiced him by depriving him of his Fifth Amendment right to due process and his Sixth Amendment right to a speedy trial. Hence, defendant argues, the indictment should be dismissed.
Defendant does not assert that his right to a speedy post-indictment trial has been violated. See Speedy Trial Act, 18 U.S.C. § 3161 et seq., and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Rather, defendant complains that the government's delay in returning the indictment prejudices his right to a speedy determination of the charges. In United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), the Supreme Court, holding that a formal indictment or information or the "actual restraints imposed by arrest" triggers application of the Sixth Amendment guarantee to a speedy trial, declined to extend the reach of this right to the period prior to arrest. The court reasoned that statutes of limitation and the Due Process Clause provide defendants with sufficient protection against the possibility of prejudicial pre-accusation delay. Id. at 323-24, 92 S.Ct. at 464-65. Declining to define precisely the limitations which the Due Process Clause imposes upon pre-indictment delay, the court stated that dismissal would be warranted if defendant could show at trial not only that the delay substantially prejudiced his rights to receive a fair trial but also that the government intentionally delayed the indictment to gain a tactical advantage. Id. at 323-24, 92 S.Ct. at 464-65.
To hold otherwise, the court concluded, would compel prosecutors to initiate criminal proceedings as soon as they were legally entitled to, "resolving doubtful cases in favor of early — and possibly unwarranted — prosecutions". Id. at 793, 97 S.Ct. at 2050. However, "fair play and decency" require a prosecutor to refrain from seeking indictments until he is "completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt". Id. at 795, 97 S.Ct. at 2051 (emphasis added). Stressing that courts should not truncate criminal proceedings merely because they disagree with prosecutors' decision when to indict, Lovasco concluded that investigative delay does not deprive a defendant of due process, "even if his defense might be somewhat prejudiced by the lapse of time". Id. at 790, 796, 97 S.Ct. at 2048, 2052 (emphasis added).
Finally, where almost two years had elapsed between the date of the last overt act charged in furthering a conspiracy and the date on which the grand jury returned the indictment, this Court recently refused to dismiss an indictment. United States v. Heldon, 479 F.Supp. 316, 320 (E.D.Pa.1979). "Mere speculation" that defendants had been prejudiced by the delay failed to warrant dismissal, which would, in effect, "judicially fashion a shorter statute of limitations". Id. Accordingly, defendant's motion to dismiss for pre-indictment delay will be denied.
Defendant also seeks dismissal, and contemporaneously a bill of particulars. Characterizing the indictment as unreasonably and...
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