The opinion of the court was delivered by: FOGEL
On May 31, 1974, Richard Dabney was found guilty by a jury on four counts charging him with conspiracy, 18 U.S.C. § 371, and violation of the federal bank robbery statute, 18 U.S.C. § 2113. His counsel has filed alternative motions which seek the following relief: (1) dismissal of the indictment based upon excessive pretrial delay, (2) arrest of judgment under Rule 34 of the Federal Rules of Criminal Procedure, or, (3) a new trial, under Rule 33 of the Federal Rules of Criminal Procedure.
We have considered these motions in light of the entire record, including all pretrial, trial and post-trial motions which have been raised by defendant; we conclude that they should be denied, and that the verdict of the jury should stand. Our reasons for doing so follow.
We considered Dabney's motion to dismiss the indictment on the grounds of prejudicial pretrial delay on May 13 and 14, 1974, before the jury was sworn. Testimony was adduced from the following persons: First, Dabney (N.T. 1-75 to 1-97; 1-101 to 1-112; 1-120 to 1-121), (after an extensive warning to him of his rights under the Fifth Amendment [N.T. 1-75]), Second, Special Agent Larry E. Doss of the Federal Bureau of Investigation (N.T. 1-98 to 1-100; 1-122 to 1-148; 1-162 to 1-164) and, Third, Ernest Kelly, Sr. (N.T. 1-148 to 1-162). We rendered an oral decision of record which included a complete statement of the findings of fact and the conclusions of law in support of our holding (N.T. 2-4 to 2-17). Our subsequent review of the record in the case, with respect to the matters that are now before us, reconfirms our conviction that the initial denial of the motion to dismiss the indictment was correct.
1. On February 8, 1973, Dabney was arrested at or near the Continental Bank, Broad and Nedro Streets, Philadelphia, on state charges arising out of an incident involving Ernest Kelly, Sr., and members of his family, which had taken place earlier that day (N.T. 1-52). The state charges included aggravated robbery, kidnapping, conspiracy, burglary, receiving stolen goods, and violation of the uniform firearms act.
2. In the latter part of February, 1973, after a period of incarceration of approximately two weeks, Dabney posted bail on the state charges (N.T. 1-52).
3. In July of 1973, Thomas Clinton died, apparently of natural causes (N.T. 1-98). Clinton was named as an unindicted co-conspirator, deceased, in the federal indictment in this case. Dabney claimed, at the hearing on May 13, 1973, that Clinton would have appeared as a witness in his favor (N.T. 1-88, 1-104 to 1-109).
4. On August 24, 1973, the indictment in the instant case was filed.
5. On the evening of August 29, 1973, Dabney was arrested and interviewed by agents of the Federal Bureau of Investigation (N.T. 1-122 to 1-148).
6. The following day, August 30, 1973, Dabney posted bail on his own recognizance in the amount of $35,000.
7. On September 6, 1973, Dabney was arraigned and pleaded not guilty to all counts of the indictment charging him with violations of 18 U.S.C. §§ 2113, 371, and 924(c)(2). He was represented at this arraignment by Edward H. Weis, Esq., of the Federal Court Division of the Defender Association of Philadelphia.
8. On September 25, 1973, Jeffrey Miller, Esq., who has been the Assistant United States Attorney in charge of prosecuting the federal indictments, wrote to Herbert K. Fisher, Esq., counsel for John W. Clark, a co-defendant, and suggested the possibility of a conflict on Fisher's part, because Dabney was represented in another criminal action in the Court by Herman Bloom, Esq., a partner of Mr. Fisher.
9. On September 28, 1973, Edward H. Weis, Esq. advised the Court in writing of the representation of John W. Clark by the Defender Association of Philadelphia in another unrelated matter which was the subject of a petition brought on Clark's behalf under 28 U.S.C. § 2255.
10. On October 3, 1973, Jeffrey Miller, Esq. advised us in writing of the arrest of William Christian and John Griffin, co-defendants in this case, by the Federal Bureau of Investigation in Jacksonville, Florida.
11. On that same date, Edward Weis, Esq. wrote to the Court requesting a continuance of the trial from October 29, 1973, when it was originally scheduled, until a date after November 12, 1973, because of Weis' impending marriage and wedding trip.
12. On October 5, 1973, the Court appointed Nicholas J. Nastasi, Esq., to replace Weis as Dabney's counsel.
13. On October 16, 1973, Nastasi wrote to John Harding, Esq., Clerk of the District Court, declining the appointment.
14. On October 23, 1973, we then appointed Robert Baer Cohen, Esq. to replace Nastasi as Dabney's counsel.
15. On October 26, 1973, Cohen wrote to the Court as follows:
"Richard Dabney has called me to advise that he has retained private counsel.
"He tells me that Nino Tinari, Esq. will be representing him and I am therefore returning the appointment unsigned."
16. On October 30, 1973, Judge Hannum, of this Court, sentenced Dabney to a period of study under 18 U.S.C. § 4208(b) and (c), and ordered the results of that study to be furnished to the Court within three months, or within such further period of time, not to exceed an additional three months, as the Court thereafter ordered. At the time of sentencing, Jeffrey Miller, Esq. stated to Judge Hannum that the instant case, involving the incident of February 8, 1973, was "far away from trial" (United States v. Dabney, Crim. No. 73-195, October 30, 1973, N.T. 11).
17. In December of 1973, Lonny Anderson died (N.T. 1-89).
Dabney testified that Anderson would have given exculpatory testimony with respect to the incident of February 8, 1973 (N.T. 1-109 to 1-111).
18. On January 2, 1974, we signed an Order specially listing the matter for trial on February 19, 1974.
19. On February 19, 1974, Judge Hannum sentenced Dabney in Crim. No. 73-195 to three years imprisonment followed by a special parole term of two years.
20. On February 19, 1974, trial of this case began. Dabney complained of problems with his back, which allegedly made it difficult, or impossible for him to continue to participate in his defense. A medical examination was conducted by a Court-appointed orthopedist, Dr. Jerome M. Cotler of Jefferson Orthopaedic Associates, Philadelphia. Even though Dr. Cotler testified that Dabney was able to stand trial and to participate in his defense (N.T. 2-16 to 2-19), the Court granted a mistrial at Dabney's request, and ordered a period of study at the Medical Center for Federal Prisoners, Springfield, Missouri. Dabney expressly waived any double jeopardy claim in connection with the grant of the mistrial (N.T. 2-23 to 2-30; the waiver form was filed February 20, 1974). A new trial was specially listed for May 13, 1974. Dabney's bail was revoked at that time.
21. On March 29, 1974, Dabney submitted a pro se petition, based on the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure.
This petition was the first assertion by or on behalf of Dabney of a right to a speedy trial.
22. On April 16, 1974, a report was sent to this Court from Dr. Jack Eardley of the Medical Center for Federal Prisoners. The report stated that Dabney was competent and able to stand trial.
23. On May 13, 1974, trial began. A hearing was held on Dabney's speedy trial claims.
This is the factual framework which has led us to conclude, as per our discussion of the legal issues which follows, that Dabney's motion lacks merit, and that our original findings and conclusions on this score should be reaffirmed. In accordance with the relevant case law in this area, we will discuss, seriatim, the alleged delay before and after the date of indictment.
The Sixth Amendment right to a speedy trial does not attach prior to indictment or arrest, United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). Similarly, the provisions of Rule 48(b) of the Federal Rules of Criminal Procedure are clearly limited to post-arrest situations, United States v. Marion, supra, 404 U.S. at 319, United States v. Dukow, 453 F.2d 1328 (3d Cir. 1972), cert. den. 406 U.S. 945, 92 S. Ct. 2042, 32 L. Ed. 2d 331.
Nor does an arrest by police on state charges, under the circumstances presented in this case, trigger any Sixth Amendment rights with respect to federal charges which may follow. As the Court said in United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972), "it would be absurd in the extreme if an arrest on one charge triggered the Sixth Amendment's speedy trial protection as to prosecutions for any other chargeable offenses."
Similarly, an arrest on state charges does not bring into play the provisions of Rule 48(b), (Federal Rules of Criminal Procedure), which provide for dismissal "if there is unnecessary delay in presenting the charge to the grand jury or in filing an information against a defendant who has been held to answer to the district court " (emphasis added).
It is clear, therefore, that Dabney can have no tenable claims based upon the Sixth Amendment, or upon Rule 48(b), for the period from February 8, 1973, the date of his arrest by the Philadelphia police, until August 24, 1973, the date of the federal indictment.
United States v. Marion, however, does permit a claim based upon the Due Process clause of the Fifth Amendment for the pre-indictment period, even though it forecloses the assertion of rights under the Sixth Amendment and Rule 48(b). Id., 404 U.S. at 324, (footnote omitted):
* * * it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). * * *
While it is not entirely clear from the Court's opinion in United States v. Marion whether both "substantial prejudice" and "an intentional device to gain tactical advantage over the accused" must be shown to make out a due process violation, the Court of Appeals for the Thid Circuit, in United States v. Dukow, supra, 453 F.2d at 1330, has apparently construed this requirement in the disjunctive. Since there is not a scintilla of evidence in this record to establish that the federal indictment was delayed for tactical advantage, in order to warrant dismissal of the indictment we must find substantial prejudice to Dabney's right to a fair trial.
First, at the time of Clinton's death, only five months had elapsed since the events of February 8, 1973. The government simply could not be accused of inordinate delay at this point. See United States v. Anderson, 471 F.2d 201, 203 (5th Cir. 1973).
Second, Clinton could not have been compelled to testify at all in these proceedings, had he chosen to assert his Fifth Amendment right against self-incrimination. See United States v. Lane, 465 F.2d 408, 412 (5th Cir. 1972). Indeed, it is clear that he was named as an unindicted co-conspirator and not a co-defendant only because of his death prior to the federal indictment. Even if Clinton had not been named in the federal indictment, he could have claimed his Fifth Amendment rights with respect to possible state prosecution or, indeed, for any other reason if, in fact, the testimony sought could have incriminated him.
Third, there is no evidence, other than Dabney's obviously self-serving statement at the hearing on May 13, 1974, (N.T. 1-105), of any agreement on the part of Clinton to waive his Fifth Amendment rights and to testify on Dabney's behalf. See United States v. Lane, supra, 465 F.2d at 412. Moreover, there is no independent evidence at all that Clinton could, or would have exculpated Dabney. There are no statements of Clinton in the possession of Dabney (N.T. 1-106), his counsel, or the government (N.T. 1-138), nor, apparently, was there any effort on the part of Dabney to procure such statements by affidavit, or otherwise (N.T. 1-106), when Clinton was alive -- a period of five months, as noted, after Dabney knew he was charged with commission of multiple crimes by the state authorities.
Under all of these circumstances, we are unable to find that Dabney has suffered "substantial prejudice" to his right to a fair trial. Indeed, we find his testimony to be completely lacking in substance and utterly unconvincing.
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court established four guidelines which control the determination of speedy trial motions: (1) length of the alleged period of delay, (2) defendant's assertion of the right, (3) reason for the delay, and (4) prejudice to the defendant. We shall discuss these factors separately.
(1) Length of the delay. The total delay from the date of the indictment until the beginning of trial on May 13, 1974, was less than nine months. The delay from indictment until the February 19, 1974 trial date, after which a mistrial was granted at defendant's request, was approximately six months. Had defendant not moved for the mistrial, the case would have proceeded to disposition on February 19, 1974, and would not have been continued until May of 1974.
(2) The defendant's assertion of the right. Dabney first asserted his right to a speedy trial in a petition filed on March 29, 1974, approximately seven months after the indictment, five weeks after his first trial was aborted at his request, and six weeks before the commencement of his second trial.
(3) The reason for the delay. The initial continuance from the October 29, 1973, trial date came at the request of Edward Weis, Esq., then counsel of record for Dabney. After Weis' conflict was discovered, we attempted to appoint substitute counsel, but it was not until October 26, 1973, that we learned that Nino Tinari, Esq. had been retained by Dabney to represent him. Mr. Tinari never filed a formal appearance in this case, and was not aware that trial had been scheduled before us in October (N.T. 1-71). Tinari never appeared in this matter before the February 19, 1974, trial date (N.T. 1-67), nor did he request that the case be listed for an earlier trial.
It is true that the government desired to have all four defendants tried together, to avoid multiple proceedings. On October 3, 1973, Jeffrey Miller, Esq. notified the Court that Christian and Griffin had been arrested in Florida, and, in a Memorandum to Chief Judge Lord dated January 28, 1974, we stated that one reason for the continuance from October 29, 1973, was grounded upon the government's desire to try all four defendants in the same proceeding, if possible. Further, Miller stated to Judge Hannum on October 30, 1973, that the instant case was "far away from trial", based upon the fact that the two co-defendants had been arrested in Florida, and apparently were not then within the jurisdiction.
In summary, therefore, it is clear that neither the defendant nor the government was prepared to go forward on October 29, 1973, nor for some time thereafter.
On January 2, 1974, the Court issued an order specially listing this trial for February 19, 1974, and requiring submission of requests for jury instructions and trial briefs by February 12, 1974. Copies of this Order were mailed to Mr. Tinari and to Dabney. Neither objected to the February 19, 1974 trial date, nor raised any speedy trial motion.
The delay from February 20, 1974, until May 13, 1974, was caused by Dabney's assertion that problems with his back made it difficult or impossible for him to proceed with trial. A mistrial was granted at his request; he was thereafter committed to the Medical Center for Federal Prisoners for study and treatment, if required. The May 13, 1974 Special Listing was ordered in the presence of Mr. Tinari and Dabney, without objection by either of them (N.T. 2-31).
It is clear, therefore, that the government was not responsible for the continuance from February 20, 1974, until May 13, 1974, and in fact opposed the granting of a mistrial and the resultant necessity to delay the trial (N.T. 1-47, 2-2).
(4) Prejudice to the defendant. Among the factors to be considered in weighing possible prejudice to the defendant are oppressive pretrial incarceration, anxiety and concern, and impairment to the defense, Barker v. Wingo, supra, 407 U.S. at 532-533. None of these factors is sufficiently substantial in the instant case to require dismissal of the indictment.
Oppressive pretrial incarceration is clearly not a factor in the instant case. Dabney's two-week incarceration in February of 1973 was on state charges, and not grounded upon the federal indictment before us. Dabney made bail immediately on the federal charges. Judge Hannum sentenced him in Criminal No. 73-195 on February 19, 1974. Bail was revoked in the instant case on February 20, 1974, and thus had no effect with respect to continued incarceration which had already been imposed by Judge Hannum.
Anxiety is not a real factor in this case. The report from Springfield established that while Dabney claimed to be depressed, he was without mental disease or defect, and competent in all respects to stand trial. Dabney's depression could have arisen from the imprisonment imposed by Judge Hannum, adjustment to prison discipline, the necessity of separation from his family, and similar factors. Clearly, no one beset with the myriad problems he faced would be euphoric.
With respect to impairment of the defense, Dabney's primary claim is that the death of Lonny Anderson, in December of 1973,
subsequent to the original trial date of October 29, 1973, deprived him of a witness who could have testified in his behalf.
In essence, Dabney claims that Lonny Anderson would have testified that Ernest Kelly, Sr. told Anderson that Dabney had nothing to do with the offenses charged, but that Kelly was pressured by the federal government to testify against Dabney, because Kelly was afraid of prosecution for alleged involvement in drugs and illegal lotteries (N.T. 1-102, 103; 1-109, 110).
We do not find this contention sufficiently substantial under the standard of Barker v. Wingo to warrant dismissal of the indictment in this case, for the following reasons:
First : There is absolutely no independent evidence in this record to establish that Lonny Anderson possessed any information -- exculpatory or otherwise -- about the events in question in this case. We have only Dabney's unsubstantiated testimony. Dabney made no effort to secure a statement or an affidavit from Anderson during the three or four month period from the federal indictment until Anderson's death in December (N.T. 1-110). Dabney's own testimony is obviously self-serving, uncorroborated, and inherently implausible. He has every motive to fabricate such a story to attempt to force dismissal of the indictment. Further, his prior felony conviction is admissible to impeach his credibility under the rule of United States v. Remco, 388 F.2d 783 (3d Cir. 1968), and is certainly a factor to be considered by the Court in assessing the truth or falsity of his testimony.
Second : Dabney's testimony is contradicted by that of Ernest Kelly, Sr., who testified that he did not recognize the name Lonny Anderson (N.T. 1-148, 1-150, 1-156, 1-157), and that he was not pressured, induced, coerced, or threatened by the government to give his testimony (N.T. 1-148 to 1-158). He stated unequivocally that the only reason for his coming forward was to seek the conviction of ...