The opinion of the court was delivered by: DITTER
Defendant Francis Harry Brown was adjudged guilty of conspiracy to distribute stolen postal money orders, 18 U.S.C. § 371, on April 10, 1973. This court sentenced him to pay a fine of $ 1,000 and placed him on probation for a period of two years until April 10, 1975. By the instant petition, the government seeks an order revoking that probation on the ground that the defendant violated its terms by engaging in criminal conduct. After reviewing the briefs and arguments of counsel, I have concluded that the government is correct in its assertion, and I find that Mr. Brown has indeed violated his probation.
I note at the outset that the revocation of probation is a matter which rests squarely within the discretion of the district court. Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L. Ed. 266 (1932); United States v. D'Amato, 429 F.2d 1284 (3d Cir. 1970). Moreover, to order revocation, the court need only "be reasonably satisfied that (the probationer) has violated one of the conditions of his probation." United States v. Manuszak, 532 F.2d 311 (3d Cir. 1976).
The government's charge here arises from the defendant's conviction of extortion, mail fraud, and conspiracy on June 16, 1977, after a jury trial before the Honorable Alfred L. Luongo of this district. It is conceded by the prosecution that discovery of this conduct, as well as the conviction, occurred after the probationary period had expired. The government points out, however, that under 18 U.S.C. § 3653, a warrant for the arrest of a probation violator may issue anytime within the five year maximum probationary period permitted by 18 U.S.C. § 3651, so long as the violation itself occurred during the actual period set by the sentencing court. See United States v. Sanchez, 138 F. Supp. 143 (S.D.Tex.1956).
The defendant does not dispute this general rule. Rather, he raises three arguments in support of his position that a probation revocation would be improper. First, Brown contends that the government was guilty of prejudicial delay in filing its revocation petition. Second, he asserts that all the conduct alleged to be violative of his probation occurred either before the probationary period began or after it ended. Finally, it is suggested that I should dismiss the instant petition because the fact of Brown's probation was brought to Judge Luongo's attention and considered by him in sentencing the defendant following the June 16, 1977, conviction.
The defendant asserts that government prosecutors and investigators were aware of the conduct allegedly constituting a probation violation as much as 17 months prior to the filing of the revocation petition.
It is claimed that this delay prejudiced Brown in that he was not able to defend against the charges at or about the time that the criminal conduct allegedly occurred, and that it subverted the purpose of probation, which is to supervise the defendant and encourage lawful activity on his part.
It should be noted first that defendant has already been found guilty of the underlying crimes charged in the government's petition. No delay in bringing the present revocation proceedings, however extended, could affect the central issue before me that is, whether or not the defendant was on probation when he committed the criminal acts proven by his conviction.
In any event, I am not persuaded by the defendant's arguments regarding his constitutional rights. Brown relies heavily on United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). He correctly cites this case for the proposition that Pre-indictment delay by the government may violate due process, and that the statute of limitations does not fully define the right of a defendant to be speedily accused. I have no quarrel with this principle, but it does not aid the probationer here. Defendants in Marion were indicted on April 20, 1970, for crimes occurring between May 15, 1965, and February 6, 1967. The district court dismissed the indictment on the ground of prejudicial delay, but the Supreme Court reversed. The Court noted that the sixth amendment is inapplicable until the defendant has been formally charged. As to pre-arrest and pre-indictment delay, the Court expressly reaffirmed the principle that " "the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.' " 404 U.S. at 322, 92 S. Ct. at 464, quoting United States v. Ewell, 383 U.S. 116, 122, 86 S. Ct. 773, 777, 15 L. Ed. 2d 627 (1966).
It is true that the Marion holding went beyond the statute of limitations. The Court stated that in some circumstances, due process would require dismissal of an indictment even though the applicable limitation period had not yet expired. Such a case, however, would require a showing of substantial prejudice to the accused And proof that the prosecution had intentionally delayed in order to gain a tactical advantage. 404 U.S. at 324, 92 S. Ct. at 465.
A similar holding was announced in United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). There, an 18 month delay was found insufficient to warrant dismissal of the indictment, despite the fact that two material defense witnesses had died in the interim. The Court noted that a showing of prejudice is not enough. Rather, the second element of the Marion text, i. e., a prosecution motive to gain a tactical advantage, must also be shown. 431 U.S. at 787-89, 97 S. Ct. at 2048-49.
These cases make it clear that the delay in the instant case did not violate Brown's right to due process. The defendant has failed to demonstrate, or even adequately allege, that the government wilfully delayed the institution of these proceedings in order to gain an advantage.
More importantly, Mr. Brown has made no showing that he was prejudiced by the government's actions. His vague protest that he was unable to defend against the charges at or about the time that the criminal conduct allegedly occurred amounts to no more than the general allegation of prejudice inherent in any delay which was found insufficient in Marion, supra.
Another point raised by the government here bears mention. Marion and Lovasco are concerned with pre-arrest and pre-indictment delay. The instant case, by contrast, presents a petition for revocation of probation. That this distinction is noteworthy was made clear in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Morrissey held that a parole revocation proceeding is not a part of the criminal prosecution and thus it is not attended by the "full panoply of rights" due a defendant in a criminal trial. 408 U.S. at 480, 92 S. Ct. at 2600. Gagnon extended this holding to probation revocation. 411 U.S. at 782, 93 S. Ct. at 1759-60. It is certainly arguable therefore that a ...