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
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
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
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
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,
2. The defendant CURRY cannot remember in any detail
the circumstances leading up to his presence in
Indiana on March 16, and March 17, of 1966.
3. The following witnesses all essential to
establishing defendant's defense are missing and
cannot be located by defendant:
a) A man by the name of Jones who was the apparent
owner of a restaurant at 79th and Halsted in the
City of Chicago.
b) The young lady who lived in an apartment in the
vicinity of 69th and Morgan, whose name CURRY no
c) Others, not personally recalled or known to the
defendant CURRY, who may have been with him on
various dates between November of 1965 through
March of 1966.
4. The defendant CURRY generally does not recall
events of late 1965 and
early 1966, events related to the facts alleged in
We do not think he has made a sufficient showing to justify
dismissal of the indictment. Curry has not suggested why "Jones"
or the "young lady" are material witnesses, or to what they would
testify. And he must do more than merely assert in unsworn
fashion in his brief that he cannot remember his whereabouts on
the relevant dates. United States v. Ward,