sufficient to demonstrate that there was probable cause to believe that criminal activity had occurred and that evidence relating to that activity could be found at defendant's residence. The individual private citizens identified in paragraphs 12 and 13 are relied upon solely to provide the defendant's address. In each instance, the affidavit explains how these individuals came by their information (I. e., Mr. Nolan had visited Mr. Jankowski at the apartment at 2130 Carey Way and knew it to be the first door on the left at the top of the staircase; Mrs. Kennedy had loaned her portable electric typewriter to Mr. Jankowski). Both individuals provided the same address for the defendant, and the Magistrate could reasonably infer from the affidavit that these individuals had gained their information in a reliable manner. Harris, 403 U.S. at 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 ; Spinelli, 393 U.S. at 416-417, 89 S. Ct. 584, 21 L. Ed. 2d 637 .
Defendant asserts that the indictment should be dismissed because there was unnecessary delay by the government in presenting the charges to the grand jury. The parties have stipulated to the following chronology.
1. On October 10, 1978, Howard Jankowski was arrested by United States Postal Inspectors on a complaint charging a violation of 18 U.S.C. § 1708. Bond was set at $ 10,000 and Jankowski was lodged at the Allegheny County Jail. A detainer was filed against him by the State of Georgia.
2. On October 16, 1978, following a preliminary hearing, Jankowski was held for charges of mail fraud (§ 1341) rather than possession of stolen mail (§ 1708).
3. At the conclusion of the preliminary hearing, the defendant's appointed attorney advised the prosecutor in the presence of Postal Inspector Pry that the defendant would waive indictment and plead to an information.
4. A case report was submitted by the United States Postal Service to the United States Attorney's Office on November 8, 1978.
5. On December 15, 1978, a copy of the information and a plea letter were mailed to defendant's attorney. The defense attorney received the copy of the information at his office on December 20, 1978.
6. On Friday, January 5, 1979, the defendant's attorney advised the prosecutor for the first time that the defendant would not waive an indictment and would not plead to the information. The prosecutor never received any notice that the defendant had been depressed while in jail. (Tr. 17).
7. On January 5, 1979, the prosecutor determined that the earliest time the charges could be presented to a grand jury would be Wednesday, January 10, 1979.
8. On January 10, 1979, a federal grand jury indicted Howard Jankowski for mail fraud.
9. On January 18, 1979, Magistrate Robert C. Mitchell ordered that since the defendant had been incarcerated for more than 90 days the defendant could be released on $ 10,000 unsecured bond if the State of Georgia removed its detainer.
Testimony by the defendant revealed that he had been admitted to the jail hospital on December 15, 1978, for eleven days (Tr. 7-8). Defendant testified that he was very depressed during this period because he "just couldn't take sitting in that jail, waiting to find out what the United States Attorney was going to do." (Tr. 7). As a result of this depression, the defendant thought about suicide but was not sure whether he wanted to die (Tr. 9-10). In the hospital he received medication which apparently relieved his depression (Tr. 10). Defendant testified that he had been told shortly after his arrival at the jail that the State of Georgia had filed a detainer against him in connection with an alleged check forgery (Tr. 11-12).
Defendant's claim that there has been unnecessary delay by the government requiring dismissal pursuant to Rule 48(b), Fed.R.Crim.P., is based on the assertion that the delay has prejudiced the defendant. Thus, an evaluation of the Rule 48(b) claim is encompassed in the court's consideration of the question of whether there has been a violation of defendant's right to a speedy trial under the Sixth Amendment. See United States v. Dreyer, 533 F.2d 112, 113 n.1 (3rd Cir. 1976). A determination of the constitutional question requires the court to utilize a balancing test in which the conduct of both the prosecution and the defendant are weighed. In Barker v. Wingo, 407 U.S. 514, 530-533, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court identified the principal factors to be considered.
The length of delay is the threshold consideration. Here, 92 days elapsed between defendant's arrest and the return of an indictment. Because this exceeds the goals set forth in the Speedy Trial Act, 18 U.S.C. § 3161(b), and in this district's "Plan for the Prompt Disposition of Criminal Cases,"
the court will proceed to examine the reasons for the delay and whether the defendant suffered prejudice as a result.
The arrest of the defendant occurred within several hours after the government learned of the suspected criminal activity. At least some of the period between arrest and indictment in this case reasonably may be attributed to necessary investigation. The government received the Postal Service case report on November 8, 1978. Although at first the alleged crime appeared to be simply a case of mail theft, it later appeared that the appropriate allegation was that defendant had devised a mail fraud scheme in violation of § 1341 and § 1342. Reasonable investigatory delay is not one-sided or necessarily prejudicial against a defendant. See United States v. Lovasco, 431 U.S. 783, 795, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). A defendant can be adversely affected by an indictment and trial involving less than all of the criminal acts for which he may be responsible, since he otherwise is likely to be subjected to multiple trials growing out of the same series of events. 431 U.S. at 792 n.12.
Following the government's receipt of the Postal Service report, five weeks passed before the information was prepared. There is no evidence to suggest that this was a deliberate delay by the government in an effort to gain a tactical advantage. It does appear, however, that some portion of this time was delay caused by the fact that the prosecutor was required to devote his time to other cases (Tr. 94). Such a neutral reason should be weighed less heavily than deliberate delay, but it nevertheless must be weighed against the government. Barker, 407 U.S. at 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 .
The information was prepared and mailed to defense counsel on December 15, 1978. In light of the previous indications by the defendant that he would plead guilty to the information (Tr. 5, 8), the government did not act unreasonably in giving the defendant such an opportunity before presenting the case to the grand jury. On January 5, 1979, the government was advised that the defendant would not plead to the information. While it cannot be said that this delay from December 20 through January 5 should be weighed heavily against the defendant, it must be noted that the detrimental impact of his incarceration during this particular period was minimized by the fact that the next move belonged to the defendant. When the defendant indicated his decision to reject the information, the government acted promptly in presenting the matter to the grand jury which indicted the defendant on January 10, 1979. Shortly thereafter, the defendant filed a motion to dismiss asserting his right to a speedy trial.
Defendant has not alleged that there has been any specific prejudice to his ability to present a defense to this indictment. Nor is there any allegation that the delay has disrupted his employment, strained his family ties, depleted his financial resources, or subjected him to public obloquy. Defendant did testify, however, that he suffered an anxiety reaction to his confinement while awaiting disposition of these charges.
Severe personal anxiety resulting from inordinate delay can amount to a violation of a defendant's constitutional guarantee of a speedy trial. See United States v. Dreyer, 533 F.2d 112, 116-117 (3rd Cir. 1976), where there was a delay of 29 months between indictment and trial. The instant situation is distinguished from Dreyer not only by the length of the delay itself, but also by the duration and the degree of the anxiety suffered. In Dreyer, the appellant went through eleven months of intensive therapy for acute anxiety and depression following her arrest and, despite the therapy and antidepressant medication, her condition continued to deteriorate, eventually resulting in a deeply disturbed personality pattern. In our case, the defendant's depression lasted only eleven days and apparently it was relieved completely by the medication defendant received. While neither of these situations is desirable, the court concludes that the eleven-day period of depression described by the defendant is within that "certain amount of anxiety and other forms of personal prejudice to the accused (which) is inevitable in a criminal case." 533 F.2d at 116.
Accordingly, after balancing the facts before the court at this time, it is concluded that defendant's constitutional right to a speedy trial has not been violated. The motion to dismiss the indictment will be denied.
An appropriate order will be entered.