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UNITED STATES v. FROMAL

November 20, 1989

UNITED STATES OF AMERICA
v.
KENNETH JOSEPH FROMAL



The opinion of the court was delivered by: VAN ANTWERPEN

 FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE

 This matter comes before the court upon the defendant's Motion to Dismiss the Indictment. The basis of the defendant's motion is a twenty-month delay between the commission of the alleged offense (possession of a firearm by a convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp. 1989)) on November 25, 1987 and his indictment on August 8, 1989. In support of his motion, the defendant has alleged violations of the following: the Fifth and Sixth Amendments to the United States Constitution; Fed.R.Crim.P. 48(b); 18 U.S.C.A. §§ 3161(b), 3161(j), and 3162(a)(1) (West 1985 and Supp. 1989) (Speedy Trial Act); and 18 U.S.C.A. App. §§ 2-9 (West 1985 and Supp. 1989) (Interstate Agreement on Detainers Act). For the reasons given below, we shall deny the defendant's motion.

 Before launching into a discussion of the law, however, we believe it helpful to set forth a brief chronology of relevant events in the instant case. On November 25, 1987, the defendant was arrested by Pennsylvania state police in conjunction with the investigation of a bank robbery which had taken place in Quarryville, Pennsylvania on November 20, 1987. Also on November 25, 1987, a revolver and live rounds of ammunition were found in the automobile that the defendant was driving at the time of his arrest. On May 3, 1988, a Federal complaint and warrant were filed against the defendant on the Federal gun possession charge. On May 12, 1988, a Federal detainer was lodged against the defendant, who was then in Lancaster County prison. On June 9, 1988, the defendant wrote to the Lancaster County Prison warden, requesting him to notify the appropriate prosecuting officials that he wished a final disposition of the Federal charge against him. On May 30, 1989, the Lancaster County Court of Common Pleas imposed upon the defendant a seven and a half to fifteen year sentence for the bank robbery charge, for which the defendant had been found guilty by a jury on May 12, 1988. On August 8, 1989, the defendant was indicted on the Federal gun possession charge. The defendant's trial date on this Federal charge was set for November 13, 1989. In light of this chronology, we now turn to a consideration of the applicable law.

 FIFTH AMENDMENT ARGUMENT

 If certain criteria are met, pre-indictment delay may give rise to a claim of deprivation of due process under the Fifth Amendment to the United States Constitution:

 
The Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).

 United States v. Marion, 404 U.S. 307, 324, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971) (footnote omitted.)

 In the instant case, the defendant argues that he has been prejudiced in the denial of favorable custody status in state prison where he was incarcerated, and, most significantly, in the preclusion of the possibility that the state judge who sentenced him for bank robbery might have run his state sentence concurrently with any Federal sentence he might have received, had he been convicted on the gun charge. In support of his argument that he has been so "prejudiced", the defendant cites to Smith v. Hooey, 393 U.S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575 (1969). Smith, however, concerned the Sixth Amendment *fn1" and its purpose of preventing oppressive incarceration prior to trial. It was within this frame of reference that the United States Supreme Court said: "The possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed." Id. at 378 (footnote omitted). In the instant case, what the defendant must show in order to prove a violation of due process under the Fifth Amendment is that the pre-indictment delay "caused substantial prejudice to [his] rights to a fair trial." Marion, 404 U.S. at 324. (Emphasis supplied.) The defendant has offered us no arguments explaining how his right to a fair trial has been prejudiced by the delay.

 Nor has the defendant succeeded in proving that this delay was "an intentional device" by the government "to gain tactical advantage" over the defendant. Id. In June of 1988, the United States Attorney involved with the defendant's case told the attorney then representing the defendant on the Federal charge that the Government was waiting to see what the sentence in the state court would be before deciding on the disposition of the Federal charge. The defendant has offered us no explanation as to how this decision offered the Government any "tactical advantage" in the trial of the gun possession charge. Nor can we ourselves find any. Accordingly, we find that the defendant's argument based upon the due process clause of the Fifth Amendment must fail.

 SIXTH AMENDMENT ARGUMENT

 In the instant case, the defendant argues that he has been denied his Sixth Amendment right to a speedy trial. The Sixth Amendment to the United States Constitution guarantees the "accused" the right to a "speedy and public trial." The point at which this right attaches has been considered by the United States Supreme Court in Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455. In Marion, the Supreme Court stated: "It is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." Id. at 321. The situation of the defendant in the instant case does not fall within the category of "arrest and holding to answer a criminal charge." He was, however, indicted on the Federal charge on August 8, 1989. It was, thus, only at the time of his indictment that the Sixth Amendment guarantee of a speedy trial came into play. The defendant makes no argument that his rights were violated by any post -indictment delay. *fn2" Since the defendant became an "accused" entitled to the speedy trial guarantee of the Sixth Amendment only upon his indictment, we find that the defendant's use of the Sixth Amendment to attack the delay in the instant case must also be rejected.

 FED.R.CRIM.P. 48(b) ARGUMENT

 Fed.R.Crim.P. 48(b) reads as ...


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