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UNITED STATES v. BROWN

February 20, 1973

UNITED STATES of America
v.
Francis Harry BROWN et al.


Ditter, District Judge.


The opinion of the court was delivered by: DITTER

DITTER, District Judge.

 This case comes before the court on defendant's motion for dismissal of the indictment for lack of a speedy trial.

 Defendant, Francis Harry Brown, was arrested on September 29, 1971, and charged with violations of 18 U.S.C. Sections 371, 500 and 641, offenses relating to the theft of some 9500 blank U.S. Postal Money Orders. He was not indicted until September 15, 1972. It is Brown's contention that as a result of the delay of approximately one year between arrest and indictment he has suffered such substantial prejudice as to necessitate a dismissal of the indictment for lack of a speedy trial.

 In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court set out some of the considerations to be taken into account on an "ad hoc" basis when determining Sixth Amendment speedy trial issues: (1) defendant's assertion of his right; (2) the length of the delay; (3) the prejudice to the defendant; and (4) the reason for the delay. See also United States ex rel. Stukes v. Shovlin, 464 F.2d 1211, 1214 (3rd Cir. 1972).

 I will consider each of these factors as it relates to this case.

 1. Defendant's assertion of his right to a speedy trial.

 2. The length of the delay.

 Defendant was arrested on September 29, 1971, and indicted September 15, 1972. While the length of the delay is the least conclusive of the four factors identified in Barker, a hiatus of 50 weeks requires evaluation of the reasons advanced by the defendant to show prejudice and those stated by the prosecution by way of explanation for not proceeding with greater speed.

 3. Prejudice to the defendant.

 The primary prejudice which Brown alleges is the intervening death of one Marvin "Babe" Chuvian whom Brown asserts would have been able to testify in his behalf. Chuvian was allegedly extensively involved in the criminal activities for which Brown was indicted. Brown further asserts that because of the delay several of his co-defendants are fugitives. *fn1" The thrust of this argument is that if Chuvian and these co-defendants were available, they would provide testimony which would be helpful to defendant's case.

 The prejudice that results from the death or disappearance of witnesses is one that is recognized in Barker, supra, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d 101. However, the degree of harm must be evaluated in each instance. For example, the death of a character witness whose only testimony would be to show past good reputation cannot be equated with the death of an alibi witness whose testimony, if accepted, provides an absolute defense. In the instant case, the defendant would have me believe that if Chuvian had lived he would have exculpated Brown by inculpating himself. I consider this possibility to be highly speculative at best. It can be argued with equal force that Chuvian would have provided evidence against Brown. In my experience, one co-defendant is more likely to testify against another than to shoulder all the blame so that the ...


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