The opinion of the court was delivered by: JACKSON
THOMAS PENFIELD JACKSON, UNITED STATES DISTRICT JUDGE.
On March 9, 1990, a federal grand jury in Washington, D.C., returned the instant 13-count indictment against defendant William J. Kilroy, an insurance broker, charging him with multiple offenses in connection with his alleged embezzlement of approximately $ 573,000 from two ERISA pension plans of which he was the administrator from mid-1981 to mid-1985.
According to the indictment, Kilroy failed to remit, and converted to his use, the monies he was to have sent to the Hartford Insurance Company ("Hartford") to pay the premiums for the annuities that funded the plans for the benefit of staff and contract employees of the National Council of Senior Citizens ("NCSC") in the District of Columbia.
Kilroy has filed three motions in advance of trial, any one of which, if granted, would result in or necessitate a dismissal of the indictment.
During roughly the same period covered by this indictment, i.e., the early 1980's, Kilroy was under investigation by an organized crime strike force of the U.S. Department of Justice in Las Vegas, Nevada (the "Las Vegas Strike Force"), in connection with labor union corruption in general, and, specifically, Kilroy's suspected sale of fraudulent insurance coverage to a culinary workers' union local welfare and pension fund. In late March, 1985, Kilroy, among others, was indicted in Las Vegas, and he immediately opened negotiations with the Strike Force prosecutors to become a cooperating witness. The negotiations between Kilroy's attorneys and the prosecutors culminated in a written plea agreement under date of August 14, 1985, by which Kilroy undertook to plead guilty to a single felony count of the Las Vegas indictment and to provide "full and truthful information and testimony whenever called upon" in return for immunity -- in part "transactional," and in part "use" immunity -- for all he revealed. (Gov't Exhibit No. 1). Kilroy did as he had agreed, testified for the government against others indicted in Las Vegas, and ultimately received a sentence of probation on his felony conviction.
Kilroy moves to dismiss the District of Columbia indictment for an alleged violation of his Fifth Amendment right to due process in the form of the government's unconscionable delay in presenting its evidence to a grand jury after first acquiring knowledge of his crime against NCSC. He had, in fact, confessed to it to the F.B.I. in August of 1985, following his plea agreement in Las Vegas. The District of Columbia grand jury did not indict until March of 1990.
Since United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971), it has been established, however, that the Sixth Amendment right to a "speedy trial" does not begin to run for a criminal suspect not in custody until indictment, and that an otherwise dilatory prosecution does not compromise a defendant's Fifth Amendment due process rights, and may go forward, if commenced within the period of limitations, unless the defendant has suffered actual prejudice to his ability to obtain a fair trial by the elapse of time, and the delay was intentionally caused by the government to gain a tactical advantage over him. 404 U.S. at 324. In United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977) it is made clear that the burden is upon the defendant to establish both the prejudice to his defense and the government's malign intent.
The record before the Court conclusively establishes, however, that Kimm ordered the audit in April, 1985, several months before Kilroy's August, 1985, confession, at a time when his peculations from NCSC were presumably unknown to anyone.
And Cook is not shown to have communicated with anyone connected with the NCSC investigation and prosecution respecting the allegations against Kilroy in his handling of the NCSC funds. Thus, the proposition that Kilroy's defense has been disadvantaged in any particular by the deaths of Kimm and Cook is, at the moment, a purely speculative possibility, and certainly not the substantial actual prejudice required by Marion and Lovasco as sufficient reason to abate a delayed prosecution altogether.
Moreover, the evidence fails to support a finding of an evil motive on the part of the government in delaying the return of an indictment in the District of Columbia until March of 1990. The explanation given by the government (which is both innocent and unrefuted) is that it wished to complete the several trials arising out of the Las Vegas investigation in which Kilroy was a cooperating witness before complicating those prosecutions, and Kilroy's life, by bringing additional charges against him. The last of those trials took place in 1988. Thereafter, the prosecutors asked the Internal Revenue Service to review their NCSC evidence to determine if tax offenses, as well as theft, had been committed by Kilroy, and then presented the entire case to the Department of Justice to seek authorization to prosecute. The Department of Justice completed its review in early 1990, and the case was presented to a grand jury for indictment a month or two later. The investigative process leading up to indictment may have been desultory, and the government not altogether candid with Kilroy about it, but he has not shown it to have been done as slowly as it was for any purpose of getting an upper hand in this case.
Kilroy also moves to dismiss the indictment on the ground that it represents a breach of the plea agreement he reached ...