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February 23, 1987


Clarence C. Newcomer, J.

The opinion of the court was delivered by: NEWCOMER


 Defendant Frezzo is charged with 1) receiving and concealing rugs which were part of interstate commerce and valued at $60,000, knowing that the rugs were stolen and 2) purchasing goods (including shotguns and rifles) which were part of interstate commerce and valued at $6,300, knowing that the goods were stolen. Both charges constitute violations of 18 U.S.C. § 2315. Defendant is charged with receiving the rugs on March 21, 1981 and concealing them until August 1982. Defendant is charged with purchasing the shotguns, rifles and other goods on January 2, 1982. The present indictment was filed on December 30, 1986, more than five years after defendant is charged with receiving the rugs and almost five years after defendant is charged with buying the guns and other goods.

 Defendant has moved to dismiss the indictment. Defendant argues that the present indictment, No. 86-527, is barred by the Speedy Trial Clause of the Sixth Amendment, the Due Process clause of the Fifth Amendment, 18 U.S.C. § 3161(b) which mandates the presentment of charges to a grand jury within thirty (30) days of the defendant's arrest, Fed.R.Crim.P. 48(b) which precludes unnecessary delay in presenting a charge to a grand jury or in bringing the defendant to trial, and the statute of limitations. Defendant also argues that 18 U.S.C. § 3161 (c) (1) required that a previous indictment, No. 85-462, pending before Judge Scirica, have been dismissed with prejudice. A chronology of the relevant dates and events is set forth in Appendix A.

 Counsel for the defendant has drawn the court's attention to various statements by the United States Attorney which appear in the Government's Memorandum in Opposition to Frezzo's Motion to Dismiss (filed in Criminal Action No. 85-462). First, the inconsistencies in the government's witness' statements have increased with the passage of time. Second, the United States Attorney investigated and prosecuted numerous cases, some of them complex, during the relevant time period. Third, although the government could have prosecuted Frezzo alone, prior to November 1985, it chose to develop the case as a 10 defendant conspiracy case and delay the independent indictment of Frezzo. See Government's Memorandum pp. 5-8. The court now turns to defendant's arguments.

 I The Speedy Trial Act and Criminal Action No. 85-462

 At oral argument, both sides agree that with respect to the 1985 indictment, Judge Scirica's December 17, 1986, dismissal of the indictment without prejudice stands as law of the case. This court today shall not review or pass on that order. Instead, defendant's motion that the record in 85-462 be consolidated with the present action was granted at the hearing held last week. Therefore, defendant will be able to preserve his right to appeal the December 17, 1986, order.

 II The Speedy Trial Clause of the Sixth Amendment

 Defendant spends a great deal of time arguing that the Speedy Trial Clause prevents pre-indictment delay and, hence, bars the present indictment. This argument cannot stand. The Supreme Court in United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971) and more recently in United States v. MacDonald, 456 U.S. 1, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1982) stated that the Sixth Amendment right to a speedy trial does not arise until charges are pending or the defendant is arrested. *fn1" Defendant was in prison serving time for a unrelated conviction when the government obtained the indictments in 1985 and 1986. *fn2" Therefore, the Sixth Amendment Speedy Trial Clause does not apply to the pre-indictment delay in the present case.

 III The Due Process Clause of the Fifth Amendment

 Delay prior to an arrest or an indictment may give rise to a Due Process claim under the Fifth Amendment. United States v. Lovasco, 431 U.S. 783, 788-9, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977); see United States v. Gouveia, 467 U.S. 180, 192, 81 L. Ed. 2d 146, 157, 104 S. Ct. 2292 (1984); United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971); United States v. Sebetich, 776 F.2d 412, 429-30 (3d Cir. 1985). The Fifth amendment requires the dismissal of an indictment if the defendant can prove that 1) the government's delay in bringing the indictment was a deliberate device designed to gain an advantage over the defendant and 2) the delay caused the defendant actual prejudice in presenting his defense. Gouveia, 467 U.S. at 192, 81 L. Ed. 2d at 157. This court will assume that defendant's arguments of prejudice included in his Sixth Amendment argument would also apply to his Fifth Amendment argument.

 Applying the applicable legal standard to the present case, the court concludes that defendant has failed to satisfy his burden. Defense counsel first argues that the United States Attorney delayed the indictment in order to obtain the defendant's cooperation in a plea agreement. See Exhibit H to Defendant's Memorandum: Letter dated August 7, 1985, from Mr. Walter Batty, Assistant United States Attorney, concerning a pre-indictment plea agreement. Even if the government had delayed the indictment to obtain defendant's cooperation, such a tactic would not run afoul of Lovasco, Gouveia, and Marion. Those cases stand for the proposition that the government may not intentionally delay obtaining an indictment in a effort to hamper the defendant's preparation or presentation of his case. Furthermore, prosecutors are permitted discretion in conducting plea bargaining. See Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978). Defendant does not claim that the United States Attorney has acted vindictively or improperly in Frezzo I or in the present case. See generally Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974).

 Defense counsel also argues that the government also sought the present indictment in an attempt to lengthen or "enhance" Mr. Frezzo's current prison sentence. The government acknowledges that it sought the present indictment as a means to lengthen Frezzo's imprisonment. This argument is not relevant to the applicable standard as the attempt to enhance Frezzo's sentence has nothing to with the pre-indictment delay.

 Having determined that defendant has not satisfied his burden with respect to the first prong of the Lovasco-Gouveia-Marion standard, this court need not examine defendant's arguments with respect to the second prong -- actual prejudice. With respect to prejudice, defense counsel submit that witness' memories have become dim and the defendant has experienced anxiety during the pre-indictment delay. This court concludes that defendant has not made a sufficient ...

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