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UNITED STATES v. PERALES

December 8, 1992

UNITED STATES OF AMERICA, Plaintiff
v.
GEORGE PERALES, Defendant



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 BACKGROUND

 Defendant George Perales was indicted on three counts by a grand jury sitting in Williamsport, Pennsylvania on June 11, 1992. Perales is charged with: (1) carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) *fn1" (Count I); (2) knowingly transporting a firearm and ammunition in interstate commerce with the intent of committing an offense punishable by imprisonment for a term exceeding one year in violation of 18 U.S.C. § 924(b) *fn2" (Count II); and (3) traveling interstate (from Florida to Pennsylvania) with the intent of facilitating the distribution and possession of controlled substances in violation of the Pennsylvania Controlled Substance Act and 18 U.S.C. § 1952(a)(3) (Count III).

 Count III was dismissed by the court on November 30, 1992 upon motion of the government. Defendant's motion to dismiss Count III is therefore moot.

 The charges against Perales arise out of an altercation which he had with three service station attendants and the events which followed. The altercation occurred on July 31, 1990 in Snyder County, Pennsylvania while Perales was traveling from Miami, Florida, to Rochester, New York. During the confrontation, Perales allegedly pulled out a loaded .38 revolver, pointed it at one of the attendants, and threatened to kill him. After the confrontation, Perales and his traveling companion, Christine Call, got back in their vehicle and proceeded north on U.S. Route 15.

 Their vehicle was stopped by police officers in Clinton Township, Lycoming County. During a consensual search of the vehicle, the police found the loaded .38 revolver underneath the passenger seat, the seat occupied by Perales when the vehicle was stopped. Their search also uncovered twenty plastic bags of marijuana and 42 grams of cocaine, also contained in plastic bags. After being advised of his rights, Perales admitted placing the drugs in the trunk compartment, where they were found by the officers, when he packed the car in Miami, Florida.

 State criminal charges were filed against Perales in Snyder and Lycoming Counties. He was charged in Snyder County with making terroristic threats, recklessly endangering another person, and possessing an offensive weapon. He was charged in Lycoming County with two counts of possessing a controlled substance, two counts of possessing a controlled substance with intent to deliver, one count of possession of drug paraphernalia, and one count of carrying a firearm without a license.

 Perales entered into a plea agreement on the Snyder County charges. Under the terms of the agreement, he pled guilty to one count of recklessly endangering another person and was sentenced to a term of one to two years in a state correctional institution. The weapons charge and the terroristic threats charge were nol prossed in exchange for Perales' agreeing to enter a plea to the charge of recklessly endangering.

 Perales entered into a plea agreement on the Lycoming County charges as well. Under the terms of that agreement, he pled guilty to possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and carrying a weapon without a license. He was sentenced to an aggregate term of 22 to 60 months on those charges, to be served concurrently with the Snyder County sentence.

 Perales was released from state custody on June 11, 1992. On that date, a federal grand jury handed down the three-count indictment which is the subject of this action. Perales entered a plea of not guilty to the federal charges on July 6, 1992 and was released on an appearance bond.

 Before the court is a Rule 12(b)(1) motion (Record Document No. 11) to dismiss the indictment with prejudice. Defendant moves to dismiss the indictment on four grounds: (1) vindictive prosecution; (2) pre-indictment delay; (3) violation of the policy stated in Petite v. United States, 361 U.S. 529, 4 L. Ed. 2d 490, 80 S. Ct. 450 (1960), (the "Petite policy"); and (4) double jeopardy. For the following reasons, defendant's motion will be denied.

 Pre-Indictment Delay

 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, ...


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