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UNITED STATES v. ZABADY

June 15, 1982

UNITED STATES of America
v.
Robert ZABADY and Ronald Barillo, Defendants



The opinion of the court was delivered by: CONABOY

 CONABOY, District Judge.

 Following a lengthy investigation by the United States Government which began in 1979, the Defendants, Robert Zabady and Ronald Barillo, were indicted by a federal grand jury on February 12, 1982. The fifty-four (54) count indictment charges the Defendants with various violations of 18 U.S.C. § 371 (1 count), 18 U.S.C. § 2312 (18 counts), 18 U.S.C. § 2313 (17 counts), and 18 U.S.C. § 1341 (18 counts). Essentially, the Defendants are accused of having knowingly transported from Europe and sold in the United States stolen automobiles. The Defendants were arraigned before this Court on February 26, 1982 at which time a March 19, 1982 deadline for the filing of all pretrial motions was set and trial of this matter was scheduled for April 19, 1982. On March 19, 1982 the Defendants filed numerous pretrial motions. *fn1" By notice dated April 6, 1982, the Court advised the parties that a pretrial conference and discussion of the motions would be held April 14, 1982. On the eve of this conference, the Government filed a motion for an extension of time in which to file a response to the Defendants' pretrial motions, and a motion for exclusion of time under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.

 At the April 14 pretrial conference, defense counsel first learned of the Government's intention to seek a six-month extension of time under the Speedy Trial Act. No representation had been made by the Government prior to April 13th that the prosecution would not be ready to proceed with its case on the scheduled April 19 trial date. As a result of this new information, defense counsel orally indicated to the Court that they desired to file an additional motion to dismiss the indictment on the basis of the Government's unlawful delay in bringing the Defendants to trial. *fn2" The Court then directed the Government to address this motion for dismissal, as well as its own motion for exclusion of time under the Speedy Trial Act, in a brief to be filed by April 23, 1982. The defense was given until April 30, 1982 to file a responsive brief. The Court also ordered the disposition of all other pretrial motions to be held in abeyance pending the resolution of these latest motions. On May 20, 1982, a hearing was held on the two motions and, in accordance with the Court's order of that date, a supplemental memorandum of law has been filed by each party.

 As a basis for dismissal of the instant indictment, Defendants invoke the "speedy trial" guarantees of the Sixth Amendment, the Speedy Trial Act, and, particularly, Rule 48(b) of the Federal Rules of Criminal Procedure. While the standards that a court must utilize in appraising the efficacy of a motion to dismiss under each of these provisions may vary, nevertheless, it is apparent that the chief societal and personal interests to be protected by the three are similar. In United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468 (1971), the Supreme Court identified these interests:

 
Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.

 See also Barker v. Wingo, 407 U.S. 514, 532-33, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101 (1972); Dickey v. Florida, 398 U.S. 30, 41-42, 90 S. Ct. 1564, 1570-71, 26 L. Ed. 2d 26 (1970) (Brennan, J., concurring). Similarly, the Court recently noted in United States v. McDonald, 456 U.S. 1, 7, 102 S. Ct. 1497, 1502, 71 L. Ed. 2d 696 (1982), that the "speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." Thus, conceptually the three speedy trial safeguards, i.e., the Sixth Amendment, the Speedy Trial Act, and Fed.R.Crim.P. 48(b), are interrelated in that their principal purpose is to mandate prosecutorial adherence to the age-old maxim that "justice delayed is justice denied." *fn3" In essence, they are "intended to spare an accused those penalties and disabilities -- incompatible with the presumption of innocence -- that may spring from delay in the criminal process", Dickey v. Florida, supra, 398 U.S. at 41, 90 S. Ct. at 1570 (Brennan, J., concurring), and to impose upon the Government an affirmative obligation to "move with the dispatch that is appropriate to assure . . . [a defendant] an early and proper disposition of the charges against him." United States v. Marion, supra, 404 U.S. at 313, 92 S. Ct. at 459. It is with these basic tenets in mind that we now turn to consider the Defendants' motion to dismiss for unlawful delay, cognizant that a proper resolution of this issue "requires particularized attention to the specific facts of the case." United States v. Mann, 291 F. Supp. 268, 269 (S.D.N.Y.1968); see Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 485, 1 L. Ed. 2d 393 (1957).

 The primary ground raised by Defendants in their dismissal motion is Rule 48(b) of the Federal Rules of Criminal Procedure, which provides:

 
If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint. (emphasis added).

 In addition to implementing or enforcing the Sixth Amendment guarantee of a speedy trial, *fn4" the rule serves a much broader function; it is a restatement of the court's inherent power to dismiss a case simply for want of prosecution. United States v. Dreyer, 533 F.2d 112, 113 n.1 (3d Cir. 1976); United States v. Correia, 531 F.2d 1095, 1099 (1st Cir. 1976); Mann v. United States, 113 U.S. App. D.C. 27, 304 F.2d 394, 398 (D.C.Cir.), cert. denied, 371 U.S. 896, 83 S. Ct. 194, 9 L. Ed. 2d 127 (1962); Notes of Advisory Committee on Fed.R.Crim.P. 48(b); see generally 3 C. Wright, Federal Practice and Procedure, § 814 (1969). The scope of a federal court's discretionary authority under this provision was aptly delineated by the court in United States v. Rowbotham, 430 F. Supp. 1254, 1256-57 (D.Mass.1977):

 
The court's power to dismiss under Rule 48(b) is not limited to those situations in which the defendant's sixth amendment right to a speedy trial has been violated. United States v. Correia, 531 F.2d 1095, 1099 (1st Cir. 1976); United States v. DeLeo, 422 F.2d 487, 495 (1st Cir. 1970), cert. den., 397 U.S. 1037, 90 S. Ct. 1355, 25 L. Ed. 2d 648 (1970); United States v. Cartano, 420 F.2d 362, 363 (1st Cir. 1970), cert. den., 397 U.S. 1054, 90 S. Ct. 1398, 25 L. Ed. 2d 671 (1970). . . . *fn5"
 
The rule imposes a stricter standard of tolerable delay than does the sixth amendment. United States v. Cartano, supra. Consequently, it may be proper for a court to exercise its discretion to dismiss an indictment under Rule 48(b) even though the unreasonable delay in prosecuting does not rise to a constitutional violation. 8B Moore's Federal Practice para. 48-03(1) at 48-16 (2d ed. 1976). *fn6"
 
In determining whether to exercise its discretionary power to dismiss under Rule 48(b), the court may consider the same factors relevant to a constitutional decision regarding denial of a speedy trial. United States v. Judge, 425 F. Supp. 499 at 503 (D.Mass.1976); United States v. Dowl, 394 F. Supp. 1250 (D.Minn.1975).

 In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court established a balancing test to determine whether a defendant's speedy trial right has been violated. Specifically, the Court identified four factors that should be considered: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the Defendant. Id. at 530, 92 S. Ct. at 2192. None of the four factors, however, is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with ...


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