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UNITED STATES v. NAPPER

December 1, 1983

UNITED STATES OF AMERICA
v.
HYACINTHE T. NAPPER



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 This matter is before the Court on defendant's Motion to Dismiss the Indictment on Grounds of Six and Fifth Amendment Violations and the government's opposition thereto. The defendant has been charged with supplying false information in a passport application in violation of 18 U.S.C. § 1542 (1976). She claims that her indictment should be dismissed pursuant to Fed. R. Crim. P. 12(b)(1) for three alternative reasons. First, she alleges that her Sixth Amendment right to a speedy trial has been violated. Additionally, she claims that her Fifth Amendment due process rights were violated because of an "unreasonable and prejudicial pre-indictment delay." Defendant's Memorandum at p. 14. Finally, the defendant alleges that her Fifth Amendment due process rights were violated because the government prosecuted her in retaliation of her lawful resistance to criminal charges pending in the Eastern District of New York.

 I. SIXTH AMENDMENT CLAIM

 THERE IS NO PRIMA FACIE EVIDENCE OF AN UNREASONABLE LENGTH OF DELAY

 The defendant argues that her Sixth Amendment right to a speedy trial attached on December 23, 1981 when the Assistant United States Attorney assigned to represent the government in a removal hearing based on a criminal complaint filed in New York, informed this Court of a continuing investigation of the defendant which 19 months later led to an indictment in this Court. Specifically, the defendant contends that during the hearing in front of a United States Magistrate, the government levelled a public "accusation" against the defendant, subjecting her to "public obloquy", and personal anxiety. Defendant's Memorandum at p. 6. The defendant cites the Supreme Court decisions of United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971) and United States v. MacDonald, 456 U.S. 1, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1982) in support of her position that she became an "accused" on December 23, 1981, thus triggering her Sixth Amendment right to a speedy trial. The Court cannot agree with defendant's contentions.

 The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." U.S. Const. amend. VI. A literal reading of the Amendment "suggests that this right attaches only when a formal criminal charge is instituted and a criminal prosecution begins." MacDonald, 456 U.S. at 6. In United States v. Marion, the Supreme Court specifically held that "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." 404 U.S. at 320-21. The Court more recently has noted 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.

 MacDonald, 456 U.S. at 9.

 Neither MacDonald nor Marion support the proposition that the Sixth Amendment speedy trial right attaches prior to arrest, indictment or information. The District of Columbia Circuit Court of Appeals has explicitly recognized that "the Sixth Amendment right to a speedy trial does not attach until the defendant becomes an 'accused' either by means of indictment or information or arrest. United States v. Pollack, 175 U.S. App. D.C. 227, 534 F.2d 964, 969 (D.C. Cir. 1976), citing United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971); accord, United States v. Peters, 434 F. Supp. 357, 360 (D.D.C. 1977), modified on different grounds, 587 F.2d 1267 (D.C. Cir. 1978). The defendant in the case at bar, as of December 21, 1981, was not arrested, indicted, nor had an information been filed concerning the charges in this case. *fn1" As of that date, the defendant was a suspect in an ongoing criminal investigation. Both Marion and MacDonald support the conclusion that the right to a speedy trial does not attach to a citizen in such a position. *fn2" The Court concludes that defendant's Sixth Amendment right to a speedy trial attached on July 26, 1983, the date of the indictment in this case. Our determination of whether that right was violated in this instance, therefore, is limited to the period subsequent to the filing of the indictment. Pollack, 534 F.2d at 969; see United States v. Parish, 152 U.S. App. D.C. 72, 468 F.2d 1129, 1134 (D.C. Cir. 1972), cert. denied, 410 U.S. 957, 35 L. Ed. 2d 690, 93 S. Ct. 1430 (1973).

 Trial is scheduled to begin in this case on December 12, 1983. This is less than 5 months from the date of the indictment. The D.C. Circuit has held that cases involving more than six months delay are properly subject to inquiry and a need for justification. United States v. Lara, 172 U.S. App. D.C. 60, 520 F.2d 460, 464 (D.C. Cir. 1975), citing United States v. Ransom, 151 U.S. App. D.C. 87, 465 F.2d 672, 673 (D.C. Cir. 1972). Given these facts, the Court is unable to find a prima facie unreasonable delay to pursue defendant's claim any further.

 II. FIFTH AMENDMENT CLAIMS

 THE DEFENDANT HAS FAILED TO SHOW AN ACTUAL IMPAIRMENT OF HER ABILITY ...


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