Perales claims that his due process rights have been violated by federal authorities' twenty-three month delay in bringing charges against him. "In order to obtain a dismissal of charges on the grounds of pre-indictment delay pursuant to the Due Process Clause, a defendant must bear the burden of proving two essential facts: (1) that the government intentionally delayed bringing the indictment in order to gain some advantage over him, and that (2) this intentional delay caused the defendant actual prejudice." United States v. Ismaili, 828 F.2d 153, 167 (3d Cir. 1987) citing United States v. Marion, 404 U.S. 307, 325, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). Accord: United States v. Otto, 742 F.2d 104, 107-08 (3d Cir. 1984), cert. denied, 469 U.S. 1196, 83 L. Ed. 2d 980, 105 S. Ct. 978 (1985).
Perales alleges that the prosecution gained a tactical advantage by delaying prosecution until after he pled in state court to drug trafficking charges. While the state crime is unquestionably an essential element of Count I of the federal indictment, based on 18 U.S.C. § 924(c)(1), and undoubtedly weakens Perales's defense to such charges, that is not the type or degree of prejudice contemplated by the courts where preindictment delay is concerned. See: Ismaili, supra, 828 F.2d at 167-69.
The same is true of Perales' assertion that the delay deprived him of the opportunity to serve his federal sentence concurrently with the state sentences. Defendant suffered no prejudice on that ground, inasmuch as the federal statute under which he was indicted in Count I, 18 U.S.C. § 924(c)(1), prohibits the sentence for that offense from running concurrently with any other.
Although defendant alleges that the delay prejudiced him by depriving him of potential witnesses, he does not provide any specifics or name a single witness or a single piece of exculpatory evidence no longer available to, or discoverable by, him as a result of the delay. An unsubstantiated allegation of prejudice due to the delay is insufficient to warrant dismissal on constitutional grounds.
Defendant has failed to satisfy either prong of the two-prong standard announced in Marion, supra, and we will, accordingly deny his motion to dismiss the indictment on due process grounds.
Defendant argues that even if the court finds no evidence that his constitutional rights were violated by the delay, the court should exercise its discretion to dismiss the indictment under the less demanding Rule 48(b) standard.
For the reasons discussed above, we find defendant has suffered no prejudice as a result of the delay and deny his request for dismissal under Rule 48(b).
Defendant argues that the indictment should be dismissed as vindictively filed in violation of his Fifth Amendment right of due process. He bases that allegation on a discussion which he had with two federal agents, of the Bureau of Alcohol, Tobacco, and Firearms, on August 30, 1991 while incarcerated at the State Correctional Institution at Camp Hill. The agents advised him that he was under investigation for federal firearms violations, including a violation of 18 U.S.C. § 924(c)(1) which carries a mandatory five year sentence. They also told him if he cooperated with federal authorities in their investigation, he might be eligible to receive a sentence of less than five years. Perales told the agents that he was represented by counsel and advised them to have his attorney contact either the agents or the U.S. Attorney's office. He declined to speak further with the agents, and the visit was terminated. Perales advised his attorney at that time, Peter T. Campana, Esq., of the discussion. Nothing came of Perales' conversations with the agents.
To establish a constitutional violation, the defendant must show that federal authorities are prosecuting him to penalize him for exercising legally protected rights. United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir.), cert. denied, 493 U.S. 995, 110 S. Ct. 546, 107 L. Ed. 2d 543 (1989). Absent proof of a realistic likelihood of vindictiveness on the part of government prosecutors, the burden of proving that the government acted with actual malice is on the defendant and does not shift to the prosecution without some showing on the part of the defendant. Wasman v. United States, 468 U.S. 559, 569, 82 L. Ed. 2d 424, 104 S. Ct. 3217 (1984). United States v. Goodwin, 457 U.S. 368, 380, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982). Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974)
Here, defendant has made no showing of actual malice. The charges filed against him plainly have a basis in fact.
In addition, there were practical impediments to the federal government's filing of an indictment earlier. The federal charges against defendant are predicated on the commission of underlying state crimes. Section 924(c)(1), prohibits the sentence for that offense from running concurrently with any other, and the Speedy Trial Act requires that a defendant be brought to trial on federal charges within 70 days of "the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). While these factors may not have prohibited the government from pursuing the charges against him while defendant was serving his state sentence, they do constitute reasonable grounds for delaying the indictment and countermand defendant's argument of vindictiveness.
Further, there is nothing improper about the government engaging in discussions with a defendant about the possible reduction of charges in exchange for cooperation or assistance with an ongoing investigation and then pursuing the charges discussed in the event no agreement is reached. Such discussions are a necessary component of plea bargain negotiations. If the negotiations are unsuccessful, there is no constitutional bar to authorities' pursuit of charges otherwise proper and supported by the facts. Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978) and United States v. Esposito, 968 F.2d 300, 304-05 (3d Cir. 1992).
Double jeopardy principles do not bar subsequent federal prosecution for the same acts or series of acts which were the subject of state prosecution. United States v. Wheeler, 435 U.S. 313, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978) and United States v. Pungitore, 910 F.2d 1084, 1105 (3d Cir. 1990).
The contention that charges brought under 18 U.S.C. § 924(c) subsequent to state prosecution for the same act or acts is barred on double jeopardy grounds has been specifically rejected by the federal courts. United States v. Smith, 962 F.2d 923, 932 (9th Cir. 1992). See also: United States v. Martin, 961 F.2d 161, 163 (11th Cir. 1992) (Cumulative sentences imposed pursuant to 18 U.S.C. §§ 111 and 924(c)(1) are not a violation of the Constitution's guaranties against double jeopardy.) For further citations, see: United States v. Moore, 917 F.2d 215, 230 (6th Cir. 1990), cert. denied, 499 U.S. 963, 111 S. Ct. 1590, 113 L. Ed. 2d 654 (1991).
We note in addition, that defendant was not prosecuted in state court on firearms charges. Only one of the counts filed against him was a weapons charge, filed in Snyder County, which was nol prossed.
The Petite policy discourages federal prosecution following a state prosecution "based on substantially the same act or acts" absent "a compelling federal interest" in dual prosecution. The policy is an internal guideline, not a mandatory requirement which vests in the accused the right to have the charges against him dismissed in the event of non-compliance. United States v. Ng, 699 F.2d 63, 71 (2d Cir. 1983).
The facts of record indicate that defendant's prosecution is not a violation of the Petite policy. The United States Attorney has represented to the court in his opposing brief that authorization was, in fact, obtained to prosecute Perales for federal firearms violations under the policies stated in the United States Attorney's Manual, § 9-2.142 (1980), but that the government has declined to provide defendant with a copy of that authorization for confidentiality reasons.
In addition, it is obvious that the federal government has a compelling interest in stemming the escalation of violent, drug-related offenses by prosecuting persons involved in committing such offenses and thereby subjecting them to a mandatory five-year sentence.
Based on the government's representation, and on the fact that non-compliance does not constitute grounds for dismissal of the indictment, defendant's argument for dismissal based on a violation of the Petite policy is rejected.
* * *
An order will be entered consistent with this memorandum.
James F. McClure, Jr.
United States District Judge
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. Defendant's request for a hearing on the issues raised by his motion to dismiss is denied.
2. Defendant's motion (Record Document No. 35) to dismiss Count III of the indictment is denied, as moot.
3. Defendant's motion (Record Document No. 17) to dismiss Counts I and II of the indictment is denied.
James F. McClure, Jr.
United States District Judge