The opinion of the court was delivered by: CARTER
ROBERT L. CARTER, District Judge.
Defendants Manuel Francisco Padilla Martinez ("Padilla Martinez")
and Estella Navas ("Navas") have moved to dismiss the indictment against them on the grounds that they have been denied a speedy trial in violation of the Sixth Amendment of the United States Constitution, Rule 48(b), F.R.Crim.P., and the District Court's Interim Plan Pursuant to the Provisions of the Speedy Trial Act of 1974.
In the alternative, the moving defendants seek a dismissal of the indictments against them on the grounds of pre-indictment delay, in violation of the Fifth Amendment to the United States Constitution.
The motions are denied.
On September 3, 1974, defendants Padilla Martinez, Mejias, Cadena and Valenzuela were arrested by New York City Police in apartment 1B at 455 West 48th Street in New York City and were charged with various violations of New York State drug laws. Special Agents of the Drug Enforcement Administration of the Department of Justice ("DEA") were present at the time of the arrest.
On the same day, defendant Rojas was arrested at the corner of 8th Avenue and 30th Street in New York City by a New York City Police Officer, for violations of New York State drug laws. A special agent of the DEA was present at the time of the arrest.
On October 4, 1974, defendant Navas was arrested for violations of state drug laws by the New York City Police in apartment B-204 at 61-20 Grand Central Parkway, Queens, New York. Special Agents of the DEA were present at the time of the arrest.
The decision to make all these arrests was made by a Lieutenant O'Shea of the New York City Police Department and the arrests were authorized by Assistant District Attorney Lawrence Herrmann. All federal agents participating in the arrests were under the command of Lieutenant O'Shea; no federal agent made any arrests, seized any evidence or detained any defendant. Indeed, no defendant was served with a federal summons and no federal charges were lodged until the filing of the instant indictment. Each of the above named defendants was subsequently indicted by the State of New York for various violations of state drug laws.
On October 4, 1974, Indictment 74 Cr. 939 was filed in the United States District Court for the Southern District of New York. The indictment named twenty-nine individuals as defendants. It also identified as co-conspirators, among others, the Rev. Alberto Mejias, Mario (Evangelista) Navas, Estella Navas and Juan Mesa.
On April 30, 1975, Indictment 74 Cr. 939, among others, was superseded by the filing of Indictment S 75 Cr. 429. This superseding indictment named thirty-eight persons as defendants and identified as co-conspirators either in the indictment itself or in the government's bill of particulars, approximately 400 persons, including the defendants in this case.
The trial of Indictment S 75 Cr. 429, United States v. Alberto Bravo, D.C., 403 F. Supp. 297, commenced before the Honorable John M. Cannella, United States District Judge and a jury on October 20, 1975. It ended approximately fourteen weeks later, on January 23, 1976, with a jury verdict of guilty as to the twelve defendants on trial.
On February 19, 1976, the indictment in this case, 76 Cr. 164, was filed in the Southern District of New York. Defendants Padilla Martinez and Navas are charged in the indictment with one count of conspiracy to distribute and possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 963. In addition, defendant Navas is charged in Count Three of the indictment with distributing and possessing with the intent to distribute approximately one pound of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2.
The investigation by the government and the grand jury preceding the filing of the indictment did not commence until after the conclusion of the Alberto Bravo trial on January 23, 1976. The investigation was begun because the government had been informed by the New York State authorities that the various state prosecutions against the defendants in this action were severely jeopardized by the loss of a suppression motion in state court.
The federal investigation covered a period beginning in January, 1972 -- one and one half years earlier than the earliest date in any state charge against the defendants named in the instant indictment. Furthermore, the federal indictment identifies far more individuals than were named in the various state indictments, and was based on evidence which had come into the government's possession from the State in preparation for the Alberto Bravo trial, as well as on evidence developed solely by federal agents.
The moving defendants first argue that they have been denied a speedy trial as guaranteed by the District Court's Interim Plan Pursuant to the Provisions of the Speedy Trial Act of 1974 ("Interim Plan"). The rule on which the defendants rely, Rule 5 of the Interim Plan, provides as follows:
"In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, and if the defendant is charged only with non-capital offenses, the defendant may move in writing, on at least ten days' notice to the government, for dismissal of the indictment. Any such motion shall be decided with utmost promptness. If it should appear that sufficient grounds existed for tolling any portion of the six-months period under one or more of the exceptions in Rule 6, the motion shall be denied, whether or not the government has previously requested a continuance. Otherwise the court shall enter an order dismissing the indictment with prejudice unless the court finds that the government's neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days."
Defendants argue that their speedy trial rights crystallized at the time of their initial arrests on state charges, (i.e., on September 3, and October 4, 1974) since such arrests were the product of a joint state federal investigation, and that since the government was not ready to try the ...