United States v. McLemore

• Decision Date: 07 March 1978
• Docket Number: Crim. No. 7-80884.
• Citation: 447 F. Supp. 1229
• Parties: UNITED STATES of America, Plaintiff, v. Harold McLEMORE, Jr., Defendant.
• Court: U.S. District Court — Western District of Michigan

447 F. Supp. 1229

UNITED STATES of America, Plaintiff, v. Harold McLEMORE, Jr., Defendant.

Crim. No. 7-80884.

United States District Court, E. D. Michigan, S. D.

March 7, 1978.

Loren G. Keenan, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Kenneth R. Sasse, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

PHILIP PRATT, District Judge.

Defendant Harold McLemore, Jr., is charged with escape from a federal penal facility in violation of 18 U.S.C. § 751 and with illegal possession of a firearm in violation of 18 U.S.C. § 1202(a)(1) (Appendix).¹ The case is presently before the Court on his motion to dismiss. The matters raised in the motion were the subject of an evidentiary hearing conducted on November 11, 1977.

The government does not, in any material fashion, dispute the defendant's version of the facts. From the pleadings filed to date and from the evidence adduced at the hearing, it appears that Mr. McLemore was convicted on December 30, 1969 of armed bank robbery. On July 6, 1970 he was sentenced to ten years in custody. In March, 1976 he was transferred from the Federal Correctional Institution at Terre Haute, Indiana to the Community Treatment Center in Detroit in anticipation of his imminent release on parole. It is from there that the Indictment charges that defendant walked away on April 7, 1976.

At the time of his alleged escape defendant was scheduled for parole on July 8, 1976.² On April 26, 1976 his parole was retarded and his case set for a rescission hearing, the date thereof being held in abeyance pending his apprehension and return to federal custody. Defendant's Exhibit 7.

On July 28, 1976, McLemore was seized in the City of Detroit by agents of the Federal Bureau of Investigation. The agents informed him, in substance and effect, that he was being arrested for escaping from lawful federal custody. He was turned over to the local police, who held him for several days in connection with a murder investigation. On August 1, he was transferred to the Detention Unit of the Federal Correctional Institution at Milan, Michigan, where he was held as a Marshal's prisoner.³

On May 2, 1977, nine months after his arrest and detention at Milan Federal Correctional Institution, defendant filed, pro se, a pleading styled "Motion for Dismissal of Indictment-Information-Complaint," in which he requested dismissal of charges arising out of the events and circumstances for which he had been arrested on July 28, on the ground that his statutory and constitutional rights to a speedy trial had been violated. Judge Fred Kaess of this Court denied the motion as premature, finding on the basis of his understanding of the facts presented to him at that time that defendant's speedy-trial rights had not yet attached.⁴

Judge Kaess handed down his ruling on August 3, 1977. The instant Indictment was returned and filed on August 5, two days later. On August 12, 1977 defendant was returned to the general prison population of Terre Haute FCI. There he was brought before a panel of the United States Parole Commission on August 24.⁵ On September 7, 1977 he was arraigned before a magistrate of this Court on the instant charges.

Except for sporadic interruptions of relatively short duration, when he was transferred to the custody of the Detroit Police Department,⁶ defendant was in continuous confinement at the Detention Unit at Milan FCI from August 1, 1976 until August 12, 1977, when he was returned to Terre Haute. Defendant's Exhibit 9. No action was taken to rescind his July 8, 1976 parole until September 19, 1977, when the Commission announced its decision relative to the August 24, 1977 hearing. Defendant's Exhibit 6.

At this point it appears advisable to describe at greater length the type of incarceration to which defendant was subjected during this period from August, 1976 to August, 1977.

Lacking federally owned or contracted-for detention or jail facilities in the Detroit Metropolitan area, the United States Marshal has arranged with the Bureau of Prisons for the use of detention space at the Milan FCI. Marshal's prisoners are designated as such and, as such, they are either denied all access to various facilities, equipment, counseling services, and educational, recreational and other developmental programs, or they are afforded far more restricted opportunity to avail themselves of those facilities, services, and programs than are the members of the general prison population. In brief, incarceration at the Detention Unit should not be confused with the usual beneficial incidents of regular inmate status one associates with a federal correctional institution. Under the control of the Marshal, defendant was confined in a jail-type environment. It is in this context that the nature of defendant's confinement is to be understood.

To recapitulate, then, the Court observes that the defendant, having been taken into custody on July 28, 1976 for escape, remained a Marshal's prisoner at the Detention Unit at Milan FCI from August 1, 1976 until August 12, 1977, a period exceeding one year. He was not arraigned on any charge of escape. The parole authorities were not advised of his return to custody. No action of any kind was taken, in fact, until after he filed, pro se, a petition to dismiss an "Indictment-Information-Complaint" which had not yet even been filed against him, and indeed was not until after his petition had been denied. The sequence of events is too rapid for the Court not to infer that the return to Terre Haute two days after Judge Kaess' ruling was not coincidental and, thus, that it was that ruling that nudged the government out of its inaction, so that finally defendant was returned to Terre Haute, given a rescission hearing, and arraigned on a contemporaneously obtained indictment.

Now the defendant, represented by counsel, presents essentially the same claims that Judge Kaess rejected on the earlier occasion. More specifically, he contends that the treatment to which he has been subjected at the hands of the federal government, as outlined above, constitutes a violation of his rights under both the Fifth and Sixth Amendments of the Constitution, under Rule 5 of the Federal Rules of Criminal Procedure, and under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., as implemented, interim, by Local Rule XXXI.

Under the foregoing circumstances, the Court is convinced that it must exercise its discretion to dismiss the Indictment. It does so in the exercise of its supervisory control over the integrity of its proceedings, an inherent power codified for federal courts in the provisions of Rule 48(b) of the Federal Rules of Criminal Procedure.⁷ At the same time the Court acknowledges that these circumstances present the basis for a substantial and appealing argument that the defendant's Sixth Amendment right to a speedy trial has been violated and that, therefore, the same remedy may be required under that theory. Since the Court finds, however, more than adequate grounds to sustain its ruling in the provisions of Rule 48(b), it does not deem it necessary at this time to determine the constitutional issue. See Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960).

On the other hand, this is not to say that the Sixth Amendment implications can be ignored. On the contrary, analysis of precedents dealing with Sixth Amendment issues provides illumination which must be considered for an intelligent, correct, and prudent application of Rule 48(b).

In recent years the United States Supreme Court has devoted much attention to the elaboration of principles defining the government's duty to proceed with respect to those it wishes to accuse of crime. What emerges is a broad framework in which constitutional and statutory provisions interrelate.

In the most generalized fashion, a suspect's speedy-trial rights are protected by the applicable statute of limitations. For reasons of legislatively determined policy, prosecution is permanently barred unless commenced within the prescribed limitations period. Within that period, however, the framework of our governmental structure provides that certain other safeguards be applied on a case-by-case basis. The Due Process Clause of the Fifth Amendment forbids the government to delay the commencement of a criminal prosecution when the delay is unjustified by the legitimate needs of the investigation and/or prosecution and when it either results from a bad-faith choice of strategy on the government's part or results in the substantial impairment of the suspect's ability to erect a defense. After commencement of the prosecution, on the other hand, the Speedy Trial Clause of the Sixth Amendment requires that the Court engage in a delicate ad hoc balancing of the relative weight of a number of interests and considerations. U. S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); U. S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); U. S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Within the confines of the Sixth Amendment requirements, and therefore affording a broader mantle of protection to the individual suspect, are the provisions of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.,⁸ and of Rule 48(b).

The Fifth Amendment to the United States Constitution provides, in pertinent part, that "no person shall . . be deprived of life, liberty, or property without due process of law," while the Sixth Amendment's first words are: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . ." The different operation of these two clauses, insofar as relevant to the instant inquiry, was clearly expounded in the line of cases cited above. In Marion and Lovasco the Supreme Court declared that in order to ground a delay-of-prosecution...