UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 16, 1971.
UNITED STATES OF AMERICA
JOSEPH CAROSIELLO, PAUL ROSS PREPSTEIN, MICHAEL HAROLD RUBIN. APPEAL OF MICHAEL HAROLD RUBIN
McLaughlin and Van Dusen, Circuit Judges, and Hannum, District Judge.
Author: Per Curiam
Opinion OF THE COURT
This appeal challenges a judgment and order suspending the imposition of sentence and placing the defendant-appellant on probation for two years after a guilty verdict of knowing possession, on or about May 13, 1966, of a motorcycle stolen from an interstate shipment had been returned by a jury on April 9, 1970.*fn1 The defendant claims alleged unconstitutional delay by the Government in securing an indictment and in bringing the defendant to trial.
On or about May 13, 1966, six motorcycles were found to be missing from an interstate shipment of the Shanahan Transportation Company.*fn2 On August 19, 1966, the defendant was questioned by, and gave a statement to, representatives of the F.B.I. concerning one of the above motorcycles which was in his possession, but he denied having knowledge that it was stolen in May 1966. Defendant was indicted on November 12, 1968. Since the jury verdict involved a finding that the defendant's August 1966 essentially exculpatory statement to the F.B.I. was at least incomplete, which incompleteness justified additional investigation by the F.B.I., there is no merit in the contention that defendant's Fifth or Sixth Amendment rights were denied by filing the indictment in November 1968. See United States v. Feldman, 425 F.2d 688 (3d Cir. 1970), and cases there cited.*fn3
One of Philadelphia's most experienced and able criminal lawyers entered his appearance for defendant on February 25, 1969, and represented him on this appeal as well as during the trial (see Documents 9 and 11). Also, the defendant testified that this able lawyer had represented him in this matter since May 1966. He testified that the first time he made "arrangements for [the lawyer] to represent [him] at the trial in this particular case" was shortly after the indictment. Approximately seven months after the indictment, the case was listed for trial on June 18, 1969. On June 10, 1969, the case was continued to allow a co-defendant to secure new counsel. Defendant did not request a severance of his case (see Fed.R.Crim.P. 14) and the start of his trial at that time.*fn4 On April 1, 1970, defendant filed a Motion to Dismiss the Indictment on the ground that the delay from August 1966 until November 1968 in filing the indictment denied the defendant's constitutional rights to a speedy trial and due process of law (Document 16). This Motion was amended and denied on April 7. The trial commenced on April 7, 1970, and lasted until April 9. On this record, the defendant's contention that a consideration of the period between August 1966 and trial in April 1970 shows a violation of defendant's Sixth Amendment rights must be rejected, since defendant could have had a trial in June 1969 by requesting a severance. Furthermore, the F.B.I. agent conducting the investigation was "in and out of the hospital * * *" from September 1969 until April 1, 1970.
Considering the entire period between the date of the offense and the eventual trial, we find no prejudice to the defendant justifying dismissal of the indictment, particularly in view of his opportunity to request a severance and have a trial in June 1969.*fn5 See United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966), and cases there cited. In Ewell, the court said at page 120, 86 S. Ct. at page 776:
The judgment will be affirmed.