The opinion of the court was delivered by: POLLAK
John Holman, Ismael Pagan Quinones, and ten other persons were indicted for conspiring to engage in the unlawful traffic of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), 843(b) and 952(a). Holman and Ismael Quinones were also charged with engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. In addition, there were nine counts of aiding and abetting the possession of heroin with the intent of distributing it in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, brought against various defendants. On September 6, 1979, I ordered Charles B. Burr, II, Esquire, to discontinue his representation of either Candida Figueroa or William Antonio Quinones, both of whom he was attempting to represent at the time. An appeal was taken, and the order was affirmed on January 17, 1980. After another attorney replaces Mr. Burr in the representation of one of Mr. Burr's clients, and has an opportunity to become familiar with the case, trial ought to commence promptly. Wherefore, it seems appropriate at this time to proceed to the disposition of numerous pending pre-trial motions.
(A) Constitutionality of 21 U.S.C. § 848.
John Holman has moved to dismiss count two of the indictment on the ground that 21 U.S.C. § 848, which provides particularly severe penalties for those engaging in a "continuing criminal enterprise" as defined by the section, is unconstitutionally vague. The defects pointed to by the defendant are the requirements, among other things, that a person violating the provision shall have committed a narcotics felony as part of "a continuing series of violations of this subchapter" and shall have obtained "substantial income" from such violations. 21 U.S.C. § 848. Although the constitutionality of this provision has not been expressly ruled on by our Court of Appeals, it has been upheld by the Second, Fifth, Sixth, Eighth and Ninth Circuits. United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2651, 41 L. Ed. 2d 240 (1974); United States v. Cravero, 545 F.2d 406 (5th Cir. 1976), cert. denied, 429 U.S. 1100, 97 S. Ct. 1123, 51 L. Ed. 2d 549 (1977); United States v. Collier, 493 F.2d 327 (6th Cir.), cert. denied, 419 U.S. 831, 95 S. Ct. 56, 42 L. Ed. 2d 57 (1974); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977); United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979). Conceivably there might be situations in which this statute would be unconstitutional as applied. See United States v. Valenzuela, 596 F.2d at 1367-8. But I agree with the great weight of the case authority that the provision is not unconstitutionally vague on its face.
Defendant Hutchinson argues that he has already been tried for overt act # 20 by the Commonwealth of Pennsylvania and that retrial would violate the double jeopardy provision of the Fifth Amendment. However, pursuant to the principle of dual sovereignty, the Fifth Amendment does not preclude trial by both state and federal governments of the same individual for the same offenses. Abbate v. United States, 359 U.S. 187, 193-96, 79 S. Ct. 666, 669-71, 3 L. Ed. 2d 729 (1959); United States v. Lanza, 260 U.S. 377, 383, 43 S. Ct. 141, 143, 67 L. Ed. 314 (1922).
Defendants Holman, Hutchinson and Stevenson have moved to dismiss the indictment on the grounds that delays prior to their indictment have denied them speedy trials in violation of the Sixth Amendment or, in the alternative, have denied them Fifth Amendment due process. The facts giving rise to these speedy trial/due process claims are summarized by the Government as follows:
Benny Stevenson was arrested by the Philadelphia Police on August 18, 1976 for delivery of a controlled substance, 2 counts of manufacturing of a controlled substance, 3 counts of possession with intent to manufacture controlled substance, 3 counts of possession with intent to deliver a controlled substance and 3 counts of criminal conspiracy. John Holman and Petro Williams were also arrested on August 18, 1976 on similar charges. An arrest warrant was issued for James Hutchinson, but was never executed. All arrest warrants were dismissed by the local authorities when the United States Attorney's office agreed to conduct an investigation into the matter.
Government's Answer to Defendants' Motion to Dismiss, at p. 1 n.1.
The speedy trial/due process arguments are these: The Sixth Amendment right to a speedy trial attaches only to those who have been "accused." United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971). The speedy trial rights of these defendants should be held to have attached at the time of the 1976 state arrests, since they were arrests for the same offenses as this indictment and thus, defendants were then first "accused" of these offenses. United States v. Cabral, 475 F.2d 715 (1st Cir. 1973). Even if the court concludes that the Sixth Amendment rights did not attach at that time, however, the indictment should be dismissed because of the prejudicial delay between the time the federal government first could have indicted and the time that they actually did so that delay denying due process. United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); United States v. Marion, supra.
The Ninth Circuit recently summarized the legal context for this kind of argument:
The Constitution provides two separate safeguards against delay in the different stages of the investigation and prosecution of a crime. In the pre-indictment or pre-arrest stage delay is tested by the general proscriptions of due process. Because of statutory safeguards in the form of statutes of limitation, "the Due Process Clause has a limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048, 52 L. Ed. 2d 752 (1977). Pre-indictment delay is permissible unless it violates "fundamental conceptions of justice which lie at the base of our civil and political institutions," Rochin v. California, 342 U.S. 165, 173, 72 S. Ct. 205, 96 L. Ed. 183 (1952). See also United States v. Lovasco, supra, 431 U.S. at 790, 97 S. Ct. 2044, 2049. Ham v. South Carolina, 409 U.S. 524, 526, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973); Lisenba v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 86 L. Ed. 166 (1941); Hebert v. Louisiana, 272 U.S. 312, 316 (47 S. Ct. 103, 71 L. Ed. 270) (1926); Hurtado v. California, 110 U.S. 516, 535, 4 S. Ct. 111, 28 L. Ed. 232 (1884).
But once a person becomes "accused" the more stringent requirements of the Sixth Amendment speedy trial right apply. One becomes "accused" when there is "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . ." United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971). (Emphasis added). At this stage, although standards are still imprecise, the courts have been more willing to find delay to be constitutionally impermissible.
This case is complicated because it presents issues of delay encompassing both the pre-arrest and the "accused" stages.
As the Government's memorandum makes clear, the question whether a state arrest can render a person "accused" for purposes of the Sixth Amendment right to a speedy trial in a subsequent federal prosecution has been expressly considered by the Courts of Appeals for the First, Second, Fifth, Seventh, Eighth and Ninth Circuits. United States v. Cabral, supra; United States v. Mejias, 552 F.2d 435 (2d Cir. 1977), cert. denied, 434 U.S. 847, 98 S. Ct. 154, 54 L. Ed. 2d 115; United States v. Phillips, 569 F.2d 1315 (5th Cir. 1978); United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), cert. den. 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274 (1973); United States v. Burkhalter, 583 F.2d 389 (8th Cir. 1978); United States v. Romero, 585 F.2d 391 (9th Cir. 1978), cert. denied, 440 U.S. 935, 99 S. Ct. 1278, 59 L. Ed. 2d 492 (1979). The closest that the Third Circuit seems to have come to this issue is a summary affirmance. United States v. Dabney, 393 F. Supp. 529 (E.D.Pa.1975), aff'd without opinion, 527 F.2d 644 (3d Cir. 1976); United States v. Clark et al., 398 F. Supp. 341 (E.D.Pa.1975), aff'd without opinion, 532 F.2d 745, 746, 748 (3d Cir. 1976) (the two cases were related and the trial judge made the same determination in each). Only in the First Circuit case, Cabral, was it squarely held that a federal defendant's Sixth Amendment speedy trial rights attached at the time of his state arrest. The defendants here also rely on the Seventh Circuit case, DeTienne, and on the district court decision affirmed by the Third Circuit in Clark ; but what they rely on is dicta, for each of those opinions distinguished Cabral and found that state arrests had not triggered the Sixth Amendment rights since the federal prosecutions were for different offenses. As the trial judge stated in Clark :
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, 92 S. Ct. 455, 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.
An arrest on state charges, under the circumstances presented by this case, does not trigger any Sixth Amendment rights with respect to federal charges which may follow. "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", United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972), although "if the crimes for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision's applicability as to prosecution for all the interrelated offenses", Id. at 155. In the instant case, the state charges included aggravated robbery, kidnapping, conspiracy, burglary, violation of the Uniform Firearms Act, and carrying a concealed deadly weapon, some or all of which offenses could clearly be completed by acts which took place at or near the Kellys' home, and are thus independent of the federal bank robbery offense which constitutes the basis for the instant indictment. n3
n3 The instant case is thus distinguishable from United States v. Cabral, 475 F.2d 715, 717-718 (1st Cir. 1973), in which a state policeman arrested the defendant for possession of a sawed-off shotgun and possession of stolen property, although he was ultimately arraigned on a charge of grand larceny, which was later dismissed. Three days after the arrest, the sawed-off shotgun was turned over to federal authorities, who waited fifteen months to seek an indictment under 26 U.S.C. § 5861(i). Under these circumstances and the substantial identity of the charge on arrest and at the ultimate federal prosecution, the court concluded that the speedy trial guarantee attached at the time of initial arrest. In the instant case, however, in which the federal charges do not in any sense "gild the charge(s) underlying (the) initial arrest", United States v. DeTienne, supra, 468 F.2d at 155, this reasoning is inapplicable.
United States v. Clark, supra at 349. The same distinction led the Ninth Circuit to refuse to follow Cabral in United States v. Romero, supra, and may have been the basis for a similar refusal in the Eighth Circuit in United States v. Burkhalter, supra. The Fifth Circuit refused to follow Cabral because the claim before it was under the Speedy Trial Act and not the Sixth Amendment as in Cabral. United States v. Phillips, supra. This leaves only the Second Circuit which, squarely confronting a state arrest for substantially the same offense as the later federal prosecution, has rejected the contention that the state arrest triggers the Sixth Amendment speedy trial right. United States v. Mejias, supra. Significantly, the Mejias case involved facts almost identical to ours: ...