US v. Noone, Crim. No. 88-0198-F.
| Decision Date | 27 April 1990 |
| Docket Number | Crim. No. 88-0198-F. |
| Citation | 735 F. Supp. 443 |
| Parties | UNITED STATES of America v. Joseph NOONE III, a/k/a Spud Noone, Marion B. Noone, Peter Noone and Kevin Noone, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Mary Elizabeth Carmody, Asst. U.S. Atty., Springfield, Mass., for plaintiff.
Joseph Noone, pro se.
Marion B. Noone, pro se.
Owen S. Walker, Boston, Mass., for Peter Noone.
Robert Gordon, Agawam, Mass., for Kevin Noone.
Before the Court are a variety of motions filed by both the United States government and the various defendants. By and large, little formal discussion is required with respect to any of these pleadings, but for the sake of completeness, they will be disposed of individually.
The defendants Joseph Noone and Marion Noone request that this Court dismiss the charges against them on the basis of the government's failure to provide them with a speedy trial, in violation of the United States Constitution and the laws promulgated thereunder. See U.S. Const. amend. VI; 18 U.S.C. §§ 3161 et seq. The government opposes the defendants' motion. For the reasons set forth below, the Court will deny the defendants' motion.
The government suggests to this Court that one ground for denying the defendants' motion is that this case presents novel questions of law or fact within the meaning of 18 U.S.C. § 3161(h)(8)(B)(ii), thus making it an "unusual" case and one not subject to the time restrictions of the Speedy Trial Act. After considerable deliberation, the Court concludes that this is one of the rare instances in which such a declaration is merited. As the Court noted in an earlier order pertaining to co-defendant Peter Noone, the defendants' resistance to the appointment of counsel, their persistent efforts to have a non-attorney represent them, and the sheer volume of their submissions to this Court have all contributed to whatever delay about which the defendants might complain. See United States v. Dalpe, Crim. No. 88-00012-F, slip op. at 8-9 (D.Mass. June 1, 1989); compare United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1197-98 (2d Cir.1989).
The Court wishes to make it expressly clear that it considers a speedy trial to be one of the fundamental rights secured to each citizen by the Constitution. However, in circumstances in which the defendants themselves have shown rank indifference to the speed with which these proceedings are resolved, the Court concludes that the government should not be held responsible for any de minimis violations (if any) of the strict time limit imposed by the Speedy Trial Act.
Even if the strictures of the Speedy Trial Act are applied, however, the Court is confident that the defendants have been brought to trial within the statutory period. As the government correctly notes, the multiple filings, objections and notices make it virtually impossible for the Court to accurately determine the precise demarcations of excludable and non-excludable time. To the best of its ability, the Court has reviewed the pleadings submitted by the parties and the respective docket sheets for each of the defendants. Based upon that evaluation, the Court concludes that the government has submitted the correct tally, within an acceptable margin of error of two to three days. See Government's Opposition to Joseph and Marion Noone's Motion to Dismiss for Speedy Trial at 6-7. The Court also agrees that for the purposes of this calculation, the relevant time period did not begin until March 7, 1989, the day after which Peter Noone was arraigned. Id. at 5; Dalpe, slip op. at 3-8.
The defendants' motion to dismiss for lack of speedy trial is denied.
Defendant Peter Noone moves to dismiss the indictment against him on two separate grounds: (1) that the statute under which he is charged, 18 U.S.C. § 1074, applies only to flight from state, and not federal, prosecutions;1 and (2) that the government failed to obtain written approval by the Attorney General required for prosecution under 18 U.S.C. § 1074. The government opposes both motions, for reasons which will be discussed below.
1. Application of 18 U.S.C. § 1074 Is Not Limited to State Prosecutions
As the parties hotly dispute the meaning of the specific language of statute under which Peter Noone is being prosecuted, the Court finds it helpful to quote the relevant text:
(a) Whoever moves or travels in interstate or foreign commerce with intent either (1) to avoid prosecution, or custody, or confinement after conviction, under the laws of the place from which he flees, for willfully attempting to or damaging or destroying by fire or explosive any . . . vehicle, . . . or (2) to avoid giving testimony in any criminal proceeding relating to any such offense shall be fined not more than $5,000 or imprisoned not more than five years, or both.
18 U.S.C.A. § 1074 (Supp.1989). Specifically, Peter Noone argues that Congress' use of the language "under the laws of the place from which he flees" was meant to limit application of section 1074 to persons who attempt to flee state and not federal proceedings. The government argues that "laws of the place" includes federal law as well.
The Court's efforts to resolve this dilemma are hampered by a true dearth of relevant precedent. Peter Noone relies heavily on the legislative history of section 1074, arguing that it is clear from Congress' comments that they intended section 1074 to apply only to state or local prosecutions. See H.R.Rep. No. 956, 86th Cong., 1st Sess., reprinted in 1960 U.S.Code Cong. & Ad.News, 1939, 1942-43. And admittedly, the text is liberally sprinkled with references to how the passage of section 1074 will help state and local officials, often hampered by inadequate resources, to track down perpetrators of bombings. Id. at 1943.
However, after thoroughly reviewing the arguments put forth by the defendant, the Court concludes that dismissal is not warranted. First, the Court notes that when section 1074 was passed as part of the 1960 Civil Rights Act, there was no federal bombing statute on the books. The substantive statute under which the defendant Peter Noone was convicted, 18 U.S.C. § 844, was not passed by Congress until October 15, 1970, a full decade later. Since there was no federal bombing statute in 1960, it is not surprising that the House Report does not discuss the application of section 1074 to section 844.
The question then presents itself as to whether or not Congress intended to prevent application of section 1074 to the clearly unforeseen federal bombing statute. Having reviewed the language of both the statute and the legislative history, the Court can find nothing which indicates that Congress would not want section 1074 to be applied to federal proceedings under section 844. This conclusion is supported by the fact that the language of section 844(i) is virtually identical to that of the earlier statute, section 1074.
Second, the Court agrees with the government that the phrase "laws of the place" can be and should be read to include federal law. Specifically, the government contends that under our system of dual sovereignty, the "laws of the place" consists of both federal and state law.
Over a hundred years ago, the Supreme Court eloquently wrote that:
The laws of the United States are laws of the several States, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent and, within its jurisdiction, paramount sovereignty.... The two together form one system of jurisprudence, which constitutes the law of the land for the State....
Claflin v. Houseman, 93 U.S. 130, 136-37, 23 L.Ed. 833 (1876); see also Iconco v. Jensen Const. Co., 622 F.2d 1291, 1296 (8th Cir.1980).
Claflin makes it clear to this Court that if the defendants were in fact fleeing from prosecution under 18 U.S.C. § 844, they subjected themselves to possible prosecution under 18 U.S.C. § 1074.
Finally, the only case which the Court has been able to locate in which section 1074 is even mentioned arises in the context of a federal investigation. In United States v. Tarrant, 730 F.Supp. 30 (N.D. Tex.1990), the district court noted that one of the co-defendants, Daniel Wood, had been convicted of violating 18 U.S.C. § 1074 by fleeing Texas to avoid testifying before a federal grand jury. Id. at 32 n. 3.
Based on all of the above factors, the Court reaffirms its decision not to dismiss the present indictment against the defendant Peter Noone.
The motion by defendant Kevin Noone for a judgment of acquittal is substantially similar to that filed by his brother and co-defendant Peter Noone, and will also be denied.
As an initial matter, however, Kevin Noone suggests to this Court that the government's opening unmistakably demonstrated that the evidence it planned to submit to the jury would be insufficient to sustain a conviction against him. The Court disagrees; Assistant United States Attorney Mary Elizabeth Carmody made it perfectly clear that she intended to introduce evidence which, if believed by the jury, would be sufficient to convict Kevin Noone of the offense with which he is charged.
As to Kevin Noone's motion with respect to section 1074, only a few additional comments are necessary at this stage. Noone offers two additional sources to persuade this Court that section 1074 is limited to state prosecutions. First, Noone submits a letter written by then-Attorney General Robert F. Kennedy to the Chairman of the House Committee on the Judiciary, Representative Emanuel Celler. However, Kennedy's letter is not relevant to this discussion, as it deals...
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...of the place from which he flees, for wilfully ... damaging ... any building ... by explosive.... 18 U.S.C. Sec. 1074 (emphasis added). 735 F.Supp. 443. The determinative legal question on this appeal concerns the meaning of the italicized words "laws of the place." Noone argues that those ......