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UNITED STATES v. CURRY

December 8, 1967

UNITED STATES OF AMERICA,
v.
BENNIE CURRY ET AL., DEFENDANTS (TWO CASES).



The opinion of the court was delivered by: Marovitz, District Judge.

  MEMORANDUM OPINION

Defendant Curry's Motions

Defendant Hill's Motions (67 CR 254)

Bennie Curry is named in two indictments. 67 CR 248 is in four counts and charges the sale and concealment of several quantities of heroin, in violation of 26 U.S.C. § 4705(a), and 21 U.S.C. Sec. 174. 67 CR 254 charges Curry and four other defendants*fn1 with conspiring to transfer a quantity of marijuana to one Frank J. Boyles, in violation of 26 U.S.C. § 4742(a), and 18 U.S.C. Sec. 371. Curry has presented several pretrial motions pertaining to both indictments for our consideration, and William Hill, a defendant in 67 CR 254, seeks to obtain a severance and a bill of particulars.

Curry's Motion to Dismiss in 67 CR 254

Alleging that he has been denied due process of law and his Sixth Amendment right to a speedy trial, Curry moves under Rule 48(b) of the Criminal Rules*fn2 to dismiss 67 CR 254. The alleged offense began on March 14, 1966 and continued to about March 16, 1966. Defendant was apparently arrested on March 16, 1966, and appeared before the Commissioner to answer a complaint on March 17, 1966. At that hearing, he was informed of his right to counsel and executed a signed waiver of that right insofar as it applied to the hearing. He waived a preliminary hearing and was held to the United States District Court.

An indictment was not returned until May 4, 1967, and Curry claims that he was not notified thereof until approximately early October, 1967. He appeared in this Court on October 10, 1967, for arraignment and plea, and was represented by counsel from the Federal Defender Program, Inc.

In denying a similar motion by Eddie McCorkle, Curry's co-defendant in 67 CR 248,*fn3 we noted that McCorkle had been represented by counsel in the time between his preliminary hearing before the Commissioner and the return of the indictment, but had not demanded a trial or moved to dismiss the complaint, and had failed to demonstrate any actual prejudice to his ability to prepare a defense to the charges.

The Government attempts to equate these facts with the instant ones, by alleging that "as a practical matter" Curry had counsel herein prior to his arraignment. Apparently, on April 12 and 19, 1966, he was represented at two hearings on a complaint dealing with an alleged narcotics transaction occurring on December 16, 1965. Although that alleged transaction is nowhere mentioned in the instant indictment, the Government contends that the complaint "was the start of the series of events that led up to the offenses charged in 67 CR 248 and 67 CR 254." Because he was represented in the above proceedings, the Government contends that his interests herein were represented.

That logic stretches credibility too far, and assumes too much. Mr. Hilliard, the counsel who represented Curry in the other matter on April 12 and 19, 1966, has never made an appearance in this cause. Indeed, when defendant appeared here for arraignment, we appointed the public defender to represent him. We cannot conclude that he was represented by counsel in this matter between the date of his Commissioner's hearing and his arraignment.

  In our opinion in McCorkle's case, we held that where the delay
occurred between the time of the preliminary hearing, and the
return of the indictment, a defendant must either affirmatively
demand a speedy trial or move to dismiss the complaint, before a
motion to dismiss on grounds of delay will be considered. United
States v. Fassoulis, 179 F. Supp. 645 (S.D.N.Y. 1959), affirmed
293 F.2d 243 (2d Cir. 1961); cert. denied 368 U.S. 919, 82 S.Ct.
240, 7 L.Ed.2d 134 (1961); United States v. Jamin, 222 F. Supp. 678
 (S.D.N.Y. 1962); United States v. Gladding, 265 F. Supp. 850
(S.D.N.Y. 1966). It is undisputed that Curry has done neither.
Yet he contends that absent assistance of counsel he could not be
expected or required to demand a speedy trial or move to dismiss
the complaint, and that he should not be deemed to have waived
these remedies.

We are not disposed to indicate a position on that issue at this time, for even if it be assumed that the waiver doctrine is applicable, under the discretionary authority conferred by Rule 48(b), we would still be able to dismiss an indictment where actual prejudice due to delay is shown. United States v. Gladding, supra at 856. Indeed, even if defendant's argument is not deemed to be governed by the waiver doctrine, he must make a strong showing of prejudice before an indictment can be dismissed. Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965); Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966).*fn4 See United States v. Feinberg, 383 F.2d 60, 65-67 (2d Cir. 1967).

Curry suggests several examples of specific prejudice which he allegedly has suffered by the instant delay:

  "1. The defendant CURRY cannot remember his
  whereabouts on December (sic) 20, or February 17,
  1966.
  2. The defendant CURRY cannot remember in any detail
  the circumstances leading up to his presence in
  Indiana on ...

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