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UNITED STATES v. FRUMENTO

October 3, 1975

UNITED STATES OF AMERICA
v.
ROCCO FRUMENTO, et al., GEORGE COLLITT, Movant



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Before the Court are various pretrial motions filed by defendant George Collitt in this multi-defendant criminal case. Collitt is charged in two counts of an eleven-count indictment with conspiracy to violate 18 U.S.C. § 1962(c) and with violation of the Hobbs Act, 18 U.S.C. § 1951. Collitt's motions seek: (1) to quash the indictment; (2) severance and separate trial; (3) to obtain a bill of particulars; and (4) permission to inspect grand jury notes of testimony. We will discuss each motion separately.

 Motion to Quash the Indictment

 Collitt contends that there are three grounds upon which the indictment should be dismissed. The first is an alleged violation of his right to a speedy trial. Secondly, he claims that this prosecution violates the Double Jeopardy Clause of the Fifth Amendment. Finally, he contends that the indictment, on its face, fails to charge a violation of federal law.

 1. Speedy Trial

 The events giving rise to the indictment in this case are alleged to have occurred in 1971 and 1972. The indictment itself was filed on May 22, 1975. While Collitt does not make any claim of an unconstitutional delay in the post-indictment period, he strenuously objects to the delay between the alleged criminal activity and his indictment.

 Prior to the time of filing of a formal indictment or information, or else the actual restraints imposed by arrest and holding to answer a criminal charge, the protections of the speedy trial provision of the Sixth Amendment do not come into play. United States v. Marion, 404 U.S. 307, 320, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). Likewise, the provisions of Fed.R.Crim.P. 48(b) are clearly limited to post-arrest situations. Id. at 319. Thus, neither the Sixth Amendment nor Rule 48 is applicable to the present case.

 The Supreme Court did indicate in United States v. Marion, supra, that pre-indictment delay could violate the Due Process Clause of the Fifth Amendment. 404 U.S. at 324, 325. While some cases in this circuit have indicated that the requisite proof to make out such a violation is either that the pre-indictment delay caused substantial prejudice to the defendant's right to a fair trial or that the delay was an intentional prosecutorial device to gain tactical advantage over the accused or to harass him, United States v. Dukow, 453 F.2d 1328, 1330 (3d Cir.), cert. denied, 406 U.S. 945, 92 S. Ct. 2042, 32 L. Ed. 2d 331 (1972); United States v. Clark, 398 F. Supp. 341 (E.D.Pa., 1975), this Court believes that the language in United States v. Marion, supra, requires a showing of both elements before an indictment will be dismissed on due process grounds. Accord, United States v. Brown, 511 F.2d 920, 922-923 (2d Cir. 1975); United States v. Beckham, 505 F.2d 1316, 1319 (5th Cir.), cert. denied, 421 U.S. 950, 95 S. Ct. 1683, 44 L. Ed. 2d 104 (1975); United States v. MacClain, 501 F.2d 1006, 1010 (10th Cir. 1974); United States v. DeTienne, 468 F.2d 151, 156 (7th Cir. 1972), cert. denied, 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274 (1973).

 In a criminal proceeding, the constitutional guarantee of due process embodies ". . . that fundamental fairness essential to the very concept of justice." Lisenba v. California, 314 U.S. 219, 236, 86 L. Ed. 166, 62 S. Ct. 280 (1941). It is the most basic, and yet the least procedurally precise, of the constitutional limitations on the ability of the Government to prosecute an individual. This Court does not believe, in the absence of a showing of prosecutorial misconduct, that it is fundamentally unfair to a subsequently-indicted defendant that he suffers some actual prejudice to his defense from a delay in the Government's seeking of his indictment which does not exceed the applicable statute of limitations. We believe a stricter standard would place an unfair burden of responsibility on the prosecution for pre-indictment delays over which it frequently has no control. The Supreme Court recognized this fact in United States v. Marion, supra, 404 U.S. at 324-325, when it stated: "Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution."

 In the present case, Collitt has failed to prove either of the elements necessary to find a violation of due process based on pre-indictment delay. The only ground asserted by Collitt to support a claim of substantial prejudice to his right to a fair trial is the failing memories of the defense witnesses. However, a defendant may not rely on dimmed memories to support his claim of substantial prejudice. United States v. Dukow, supra, 453 F.2d at 1330. As for prosecutorial misconduct, while Collitt alleges that the Government's delay in bringing this indictment was "inordinate and wilful," we find no evidence of a specific intent to harass the defendant or place him at a tactical disadvantage. Mere conscious knowledge of the delay on the part of the Government is not enough to satisfy the requirement of bad faith and purposeful delay in the pre-indictment, pre-arrest period.

 Finally, we note that the indictment pending against Collitt in the Philadelphia Court of Common Pleas, on related state charges growing out of the same activities, does not trigger the Sixth Amendment's speedy trial protection. United States v. DeTienne, supra, 468 F.2d at 155. Nor does a state indictment activate the provisions of Rule 48(b), which applies only to defendants who have "been held to answer to the district court. . . ." (Emphasis added.)

 There is clearly no tenable basis upon which Collitt may claim that his right to a speedy trial has been violated. We will refuse to dismiss the indictment on that ground.

 2. Double Jeopardy

 Collitt next contends that the Government's indictment places him twice in jeopardy for the same offenses because there are similar charges currently pending against him under a state indictment. This claim is also without merit and will be denied.

 Jeopardy attaches in a jury case when the jury has been impaneled and sworn. In a non-jury case, jeopardy attaches after the court has begun to hear evidence. United States v. Pecora, 484 F.2d 1289 (3d Cir. 1973). Collitt has not been brought to trial yet in the state courts and, thus, has no viable argument that he is being subjected to double jeopardy by the indictment presently being challenged. Moreover, even if jeopardy had already attached in the state case, successive state and federal prosecutions for the same acts do not violate the Double Jeopardy Clause of the Fifth Amendment. Abbate v. United States, 359 U.S. 187, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959).

 3. Federal Offense

 Collitt's final argument for dismissal of the indictment is that the statutes under which he is charged are not intended to proscribe the activity in which he allegedly engaged. The first offense allegedly committed by Collitt is conspiring, in violation of 18 U.S.C. § ...


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