The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
This opinion addresses the defendant's motion to dismiss an Indictment returned against him on November 16, 1977. His moving papers assert that the Government's delay, both before and after the return of the accusatory instrument, violate rights secured to him by the Fifth and Sixth Amendments to the United States Constitution, as well as the Northern District Plan For Prompt Disposition of Criminal Cases. While the Court has found that the delay in this case falls dangerously near the period of presumptive harm, the Government's continued prosecution of this matter is neither constitutionally proscribed nor barred by those traditional equitable principles codified in the Northern District Plan.
On November 30, 1972, Jay Bottone and Vicki Lynn Ratliffe were arrested for possession and transportation of cocaine by agents of the United States Customs Service at the Champlain, New York Port of Entry. They were subsequently indicted for the violation of federal narcotics laws and, at their arraignment on December 18, 1972, both pleaded not guilty. Three days later, Bottone was released on bail, and Ms. Ratliffe remained incarcerated, entering a change of plea on January 15, 1973. A presentence investigation was ordered; and, during her interview, Ms. Ratliffe disclosed for the first time that an individual known only to her as "Randy" had assisted her and Bottone in making the South American "connection" necessary to obtain the cocaine. Bottone's trial was scheduled for March 28, 1973; however, when he failed to appear, his bail was revoked and a bench warrant was issued for his arrest.
Bottone remained a fugitive until August 23, 1977, when he was arrested in New York City by agents of the Drug Enforcement Administration. After pleading guilty, he provided a full statement identifying and inculpating his coconspirators. Consequently, it was not until October 11, 1977, that Government agents identified the defendant's surname. As the statute of limitations would soon bar any prosecution, an investigation was immediately commenced in an effort to corroborate Bottone's statement. Corroborative proof was then established with respect to the defendant, and on November 16, 1977, the underlying Indictment was returned.
Upon its return, the Indictment was sealed at the request of the United States Attorney. On the record, a cursory justification was given for this action; however, the Assistant United States Attorney who made this application subsequently disclosed that biographical data which was then available suggested that Villa had extensive international contracts, had successfully assisted one of his coconspirators in eluding prosecution for four years, had no substantial ties with any one American community, and moved freely from coast to coast within the United States.
Following this Court's issuance of an arrest warrant, Drug Enforcement Administration agents began their efforts to identify, locate, and apprehend the defendant. Testimony elicited from the case agent responsible for this matter disclosed that the investigation began with Bottone's interview in the Oneida County jail on October 11, 1977. At this time, Bottone disclosed that he and Villa had been arrested in California on drug charges in 1970. In addition to giving a complete account of the underlying transaction, Bottone also revealed that Villa had been sending him money to assist in his exile; and, when Special Agent Lear interviewed the individuals with whom Bottone had been staying in Canada, he was given a phone number where the defendant might be reached. However, pursuit of this lead did not result in additional information.
Because Villa had been associated with the San Francisco and Metropolitan New York areas, the case agent requested investigative assistance from the Drug Enforcement Administration (D.E.A.) offices located in both cities. Agents in New York City reported that the defendant's father was known to the Philippine Embassy. When an agent contacted him under the guise of an old friend searching for Randy's whereabouts, he was informed that the defendant had two California mailing addresses and an answering service at his recording studio. On January 25, 1978, this information was transmitted to the case agent, as well as the D.E.A. office in San Francisco.
In the meantime, California investigators had located arrest records corroborating Bottone's statement that he and Villa had been picked up on drug charges during 1970. Although their search of the California Department of Motor Vehicles records did not reveal the defendant's current address, the computer did contain his photograph and disclosed that his past traffic tickets had listed a New Jersey mailing address. When Ms. Ratliffe was shown a photographic array, she identified the defendant as the individual named "Randy" with whom she had done business some five years earlier. The case agent then contacted the F.B.I., requesting their assistance, and the California D.E.A. agents began checking the phone number and mailing addresses supplied by the New York City office.
The California investigation was assigned to Special Agent Neal. When he contacted the Pacific Telephone Company security office on January 25, 1978, he was advised that the phone number given by Villa's father had been listed to the Caltronics Security Company, but was no longer in service. As a result, Special Agent Neal did not check the previous billings. If he had, he would have discovered that Randy Villa had been billed for the phone service at 1102 College Avenue in Santa Rosa, California. Nonetheless, the Court finds that Special Agent Neal's decision not to check prior billings was reasonable in these circumstances and would have resulted in no new information, inasmuch as the defendant's father had already informed a D.E.A. agent that his son might be contacted at 1102 College Avenue.
Special Agent Neal pursued his investigation of the College Avenue address by contacting the utility company which serviced that area. Company officials informed him that on January 25, 1978, no utilities were connected at this address. Then, since Agent Neal's office is more than eighty miles from Santa Rosa, he asked the Santa Rosa Police Department to check the College Avenue location. Their investigation disclosed that 1102 College Avenue was not a residence, but an abandoned business. Furthermore, it did not appear to be a recording studio, but a company which sold and serviced security alarm systems. In any event, since it was not visibly in use, no surveillance was set up and the police did not check with the landlord or neighbors in an effort to ascertain whether the defendant had ever been seen there; nor were they subsequently able to apprehend the defendant. Consequently, the only remaining lead was the post office box number given by the defendant's father.
Records of the Postal Inspector's Office indicated that post office box no. 1502 in Santa Rosa, California, had been opened by Randy J. Villa, whose address was listed as 1102 College Avenue.
The box was currently in use and, although mail was being picked up several times a week, postal workers could not establish a consistent pattern of receipt. They did, however, indicate that the defendant had been driving a black Volvo when he picked up the mail, and a subsequent license check disclosed that the automobile was registered to a third party. Unfortunately, this information was of little utility since the registration listed the owner's address as Villa's post office box. Full day surveillance of the post office box was therefore conducted by a D.E.A. agent on February 22, 1978, May 9, 1978, and September 18, 1978.
When the first and second surveillances failed to produce positive results,
Villa was declared a D.E.A. fugitive and his name was entered in the National Crime Information Center (N.C.I.C.) data bank during late June or early July of 1978. He was still not apprehended, and when the third postal surveillance and the N.C.I.C. reference failed to result in his arrest, the defendant's father was contacted forthright. Five days later, Randy Villa surrendered to authorities in New York.
The defendant offered no independent testimony during the hearing. Nonetheless, he argues that if D.E.A. agents had checked with the Santa Rosa Junior College, they would have discovered that the defendant had been enrolled there as a student from the Spring of 1975, through the Summer of 1978. Furthermore, the defendant had introduced a Sonoma County Public Library card, likewise suggesting that he might have been located earlier if the special agents had checked with this institution.
Finally, the defendant has introduced several telephone bills indicating that the answering service telephone billings had been forwarded to 1102 College Avenue.
The defendant has not, however, shown that the college, the telephone company, or the library could have provided information which would have resulted in an earlier apprehension. Indeed, the library card lists the defendant's address as the post office box which D.E.A. agents found to be a fruitless lead. Similarly, the address listed on the telephone billings had already been checked without success. Consequently, the Court finds that the D.E.A. agents did not overlook any investigative leads which would have resulted in an earlier apprehension of the defendant. Moreover, their decision not to confront family members until the postal surveillance had been completed cannot, in these circumstances, be regarded ...