Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 87 CR 40009 -- James L. Foreman, Chief Judge.
Cummings and Wood, Jr., Circuit Judges, and Will, Senior District Judge.*fn*
WOOD, JR., Circuit Judge.
Defendant-appellant Chester Zukowski, Jr., was charged in a one-count indictment with escape from the Federal Prison Camp in Marion, Illinois, in violation of 18 U.S.C. § 751(a). On July 21, 1987, pursuant to a written plea agreement, he entered a conditional plea of guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2), which allows for appellate review of the district court's adverse determination of specified pretrial motions. The court sentenced the defendant to a two-year term of imprisonment. The defendant has appealed, arguing that the district court erred in failing to dismiss the case because the delay between arrest and prosecution violated defendant's statutory and constitutional rights to a speedy trial. The defendant also argues that the government is collaterally estopped from contesting that the defendant's arrest was pursuant to a warrant. We affirm.
On August 1, 1983, the defendant was sentenced in the Southern District of Florida to a term of six years' imprisonment for filing false and fraudulent income tax returns. On November 20, 1984, he surrendered to the custody of the Attorney General at the Federal Prison Camp in Marion, Illinois.
On May 19, 1985, the defendant escaped from the Federal Prison Camp. The Bureau of Prisons issued copies of a document entitled "Notice of Escaped Federal Prisoner." No complaint was prepared, and no warrant was issued for his arrest at that time. The defendant was apprehended on June 5, 1985, in Davie, Florida.
Upon apprehension, the defendant was advised of his rights. He told law enforcement officers that he had two firearms in the apartment he had been renting. He consented to a search of the apartment, and the officers recovered the two firearms.
The defendant was initially taken to the Fort Lauderdale city jail, and later transferred to the Federal Correctional Institution in Ashland, Kentucky, where he was to serve the remainder of his sentence on the tax conviction. He began receiving credit toward his sentence when he was apprehended June 5, 1985.
On April 15, 1986, the defendant was indicted in the Southern District of Florida on two counts for possession of firearms by a convicted felon, 18 U.S.C. §§ 922(h)(1), 924(a), arising from the search of his apartment. An arrest warrant was issued April 18, 1986, and a detainer filed at Ashland on April 28, 1986. See 18 U.S.C. § 3161(j)(1)(B). The defendant's initial appearance and arraignment were on May 28, 1986, at which time counsel was appointed. A status conference was held June 3, 1986.
At the status conference, Chief District Judge James Lawrence King raised the issue of a possible violation of the Speedy Trial Act. During discussion among the judge and the attorneys, the defendant's attorney made an oral motion to dismiss the indictment pursuant to 18 U.S.C. § 3161(b) for failure to indict the defendant within thirty days of his arrest.
The government took the position that defendant had been arrested for escape, and that, therefore, section 3161(b) was not violated when the government failed to indict him for the firearms charge within thirty days of the arrest. The assistant United States attorney stated incorrectly that a warrant had been issued for the escape.
In ruling on the timeliness issues in the firearms case, Judge King mentioned that "the prisoner/defendant was arrested in the Southern District of Florida on a warrant of arrest on escape from a federal institution." United States v. Zukowski, No. 86-355 (S.D. Fla. June 20, 1986) (order denying defendant's motion to dismiss). The court went on to find, however, that because the "defendant had not been charged until the indictment was returned, the period between his arrest and the return of the indictment did not violate the provisions of the Speedy Trial Act." Id. The motion to dismiss was therefore denied.
The defendant pled guilty to one count of the indictment on the firearms charge on August 18, 1986, and was sentenced April 27, 1987, to a three-month term to ...