United States District Court, D. South Dakota, Northern Division
CHARLES B. KORNMANN United States District Judge
filed a motion to dismiss the indictment pursuant to Fed. R.
Crim. P. 12(b)(3) based upon alleged unreasonable
post-accusation delay in the service of the federal arrest
warrant upon the defendant and pursuant to Fed. R. Crim. P.
5(a) based upon unreasonable delay in presentment to a U.S.
was indicted and an arrest warrant issued in this case on
June 14, 2017, for an alleged assault that occurred on April
27, 2017. The arrest warrant was not served upon defendant
until July 20, 2017.
was arrested on May 26, 2017, in connection with a revocation
warrant issued in CR 07-10004. The defendant appeared before
the magistrate with counsel on May 31, 2017, and admitted to
portions of the petition to revoke. His revocation hearing
before me was scheduled for July 21, 2017, and was later
rescheduled to July 20, 2017.
was in federal custody on the revocation matter when the
indictment and arrest warrant issued in this case on June 14,
2017. The alleged assault which is the subject of the
indictment in this case was not set forth in the petition to
revoke in CR 07-10004. The U.S. Probation Officer who had
been supervising the defendant reported in the supplemental
presentence report in CR 07-10004 that the Probation Officer
was not made aware of the alleged April 27, 2017, incident
when he moved to revoke the defendant's supervised
alleged April 27, 2017, assault and the indictment in the
present case were discussed at the defendant's revocation
hearing on July 20, 2017. Counsel for defendant in the
revocation matter requested a continuance of the revocation
hearing based upon the discovery of the new criminal charges.
I informed the defendant and counsel that I would not
consider the allegations in the indictment in this case in
conjunction with the revocation. I was, however, aware that
the arrest warrant in this case had not been served upon the
defendant until that day. The arrest warrant in this case was
served 36 days after it was issued.
criminal defendant may raise a defect in instituting the
prosecution pursuant to Fed. R. Crim. P. 12(b)(3).
Pre-indictment delay can be a basis for dismissal but there
was no pre-indictment delay in this case. The alleged offense
occurred on April 27, 2017. The indictment issued June 14,
2017. Six weeks does not constitute delay, much less
contends that he was prejudiced by the five week delay in
serving the indictment and arrest warrant upon him. Defendant
possesses a right to a speedy trial pursuant to 18 U.S.C.
§ 3161. However, that right does not attach until,
inter alia, the defendant is arrested. No Speedy
Trial Act violation occurred here.
possesses a right to a speedy trial under the Sixth
Amendment. Doggett v. United States, 505 U.S. 647,
651, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992).
"[T]he Sixth Amendment right to a speedy trial attaches
at the time of arrest or indictment, whichever comes first,
and continues until the trial commences." United
States v. Perez-Perez, 337 F.3d 990, 995 (8th Cir.
2003). An interval between accusation and trial in excess of
one year crosses "the threshold dividing ordinary from
'presumptively prejudicial' delay." United
States v. Brown, 352 F.3d 1032, 1034 (8th Cir. 2003). If
the defendant can show a presumptively prejudicial delay, the
Court is required to conduct a speedy trial analysis by
weighing the length and reason for the delay, the
defendant's assertion of his right, and prejudice to the
defendant. Id. There is no presumptively prejudicial
delay and not even an ordinary delay in the interval between
accusation and trial in this matter. Trial is scheduled for
November 12, 2017. Less than five months have elapsed since
the indictment was filed. The trial was delayed once at the
request of the defendant.
cites to Fed. R. Crim. P. 5(a)(1)(A) which requires a person
making an arrest to take the defendant without unnecessary
delay before a magistrate judge. There was no such delay in
this case. Defendant points out that the purpose of the rule
is "to frustrate law-enforcing officers from detaining
the arrested person for an unnecessary period of time to
enable the officer to extract a confession from the arrested
individual." United States v. Jeanetta, 533
F.3d 651, 656 (8th Cir. 2008). Defendant was not detained as
a result of the arrest warrant issued in this case but was
instead detained pending revocation proceedings in another
federal criminal case. There is no evidence that law
enforcement contacted the defendant about the alleged April
27, 2017, assault at any time during his detention on the
between indictment and arrest can result in a Sixth Amendment
speedy trial violation if such delay results in prejudice
similar to delay between arrest and trial. See Doggett v.
United States, 505 U.S. at 656, 112 S.Ct. at 2693.
Bad-faith delay in pursuing an arrest "to gain some
impermissible advantage at trial" or to otherwise impair
the defense is a basis for dismissal of the indictment.
Id. There is no showing here that there has been
presumptively prejudicial delay between the issuance of the
indictment and the arrest of the defendant and there has been
no claim that the government acted in bad faith in failing to
effect the defendant's arrest on the indictment. While
negligence in delaying arrest can result in a Sixth Amendment
speedy trial violation, a shorter delay results in an inverse
presumption of prejudice. Id.
contends that the short delay in this case resulted in his
being sentenced on revocation of supervised release prior to
notice that he was facing new federal criminal charges. That
is true in this case. Defendant contends that he was
therefore prejudiced because, had he been aware that he was
facing new federal charges, he could have engaged in plea
negotiations to settle both the supervised release revocation
and the new criminal charges, possibly resulting in a lower
total sentence for both cases. A defendant who maintains his
innocence and shows no indication that he would be willing to
admit his guilt undermines his claim that he would have
pleaded guilty if he had been arrested and apprised of the
criminal charges at an earlier date. See Sanders v.
United States, 341 F.3d 720, 722 (8th Cir. 2003)
("When the defendant's claim is that counsel
misadvised him of the relative advantages of pleading guilty
rather than proceeding to trial, in order to show prejudice,
the defendant 'must show that, but for his counsel's
advice, he would have accepted the plea.'").
delay between indictment and arrest in this matter was not
unreasonably long and the defendant can demonstrate no
prejudice arising out of the length of the delay. I find that
there has been no violation of the ...