
    UNITED STATES of America, v. Jerry Mack DENSON.
    No. 87-250-Cr.
    United States District Court, S.D. Florida, Miami Division.
    June 29, 1987.
    
      FPD Stuart Abrams, Miami, Fla., for plaintiff.
    Eileen M. O’Connor, U.S. Attorney’s Office, Miami, Fla., for defendant.
   ORDER ON MOTION TO DISMISS

SCOTT, District Judge.

INTRODUCTION

Defendant, Jerry Mack Denson, is presently charged in a three-count indictment with bank robbery, armed bank robbery, and conspiracy to commit armed bank robbery in violation of Title 18 U.S.C. §§ 2113(a), 2113(d), and 371. Defendant was previously charged with the identical offenses by indictment returned on May 4, 1983, which was dismissed without prejudice. See United States v. Denson, Case No. 83-385-Cr-ROETTGER, Order, dated January 29, 1987. Defendant now moves to dismiss the present indictment on speedy trial grounds.

PROCEDURAL POSTURE

On April 29, 1982, Defendant was sentenced by Judge James Lawrence King to a fifteen (15) year term of incarceration for armed bank robbery. See Case No. 82-57-Cr-KING. He has been incarcerated in federal penal institutions since that time. On January 5, 1983, and May 4, 1983, Defendant was indicted again on armed bank robbery charges, Case No. 83-6001-Cr-PAINE and Case No. 83-385-Cr-ROETT-GER respectively (hereinafter referred to as “Paine indictment” and “Roettger indictment”).

On August 6, 1986, a detainer bearing the Paine indictment case number was issued by the United States Marshal directed to the Federal Correctional Institute, Memphis, Tennessee. Eleven days later, on August 17, 1986, Defendant wrote two letters expressing an interest in asserting his right to speedy trial.

Pursuant to a Writ of Habeas Corpus Ad Prosequendum issued by Magistrate Luana Snow bearing the Roettger indictment case number, Defendant was transported to the Southern District of Florida. On September 26, 1986, Defendant made his initial appearance before a United States Magistrate and was arraigned on the Roettger indictment.

Defendant moved to dismiss the Roettger case on December 16, 1986, and subsequently moved to dismiss the Paine case on December 30,1986, in both cases alleging a violation of his right to speedy trial. Judge Paine dismissed the Paine indictment with prejudice. See Case No. 83-6001-Cr-PAINE, Order, dated January 27, 1987. Judge Roettger dismissed the Roettger indictment without prejudice. See Case No. 83-385-Cr-ROETTGER, Order, dated January 29, 1987. On April 24, 1987, the Government re-indicted the Roettger case, which now bears the instant case number.

LEGAL DISCUSSION

The parties recognize that the four-prong analysis as outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and its progeny apply to the present case. As indicated by the United States Supreme Court, four factors are to be considered in adjudicating speedy trial claims: “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192. In applying these principles, this Court is cognizant that the very nature of the right “compels courts to approach speedy trial cases on an ad hoc basis.” Id.

(a) Length of Delay

Defendant was arraigned approximately forty (40) months after the original Roettger indictment was issued. The Government concedes that “there was a lengthy delay from the time of the indictment until the arrest of the Defendant on these charges.” Government’s Response to Defendant’s Motion to Dismiss, page 6. For purposes of the Barker analysis, the length of the delay is sufficient to warrant further inquiry.

(b) Reason for the Delay

It is undisputed that the delay in bringing the Defendant to trial was caused by the negligence of the Government and its agents. It is imperative to note, however, that there has been no allegation that the Government deliberately delayed the proceedings for tactical reasons or to hamper the defense. Nor has there been any allegation of “flagrant or inexcusable” misconduct. See Turner v. Estelle, 515 F.2d at 858. Accordingly, while the “ultimate responsibility for such [delay] must rest with the government and not the Defendant,” a careful consideration of this factor weighs only slightly in Defendant’s favor. United States v. Avalos, 541 F.2d at 1113 (citing Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192; United States v. Rodriguez, 510 F.2d 1 (5th Cir.1975); United States v. Shepherd, 511 F.2d 119, 122 (5th Cir.1975)).

(d) Defendant’s Assertion of his Right to Speedy Trial

This first notice of pending criminal charges which Defendant received was in August, 1986. Prior to this time, it appears Defendant had no knowledge that any pending criminal charges existed. Accordingly, the Defendant has not been impaired in asserting his right to a speedy trial. Under the Eleventh Circuit’s analysis in Dennard, supra, this factor does not inure to the benefit of the Defendant. See also United States v. Mitchell, 769 F.2d 1544, 1547 (11th Cir.1985).

(d) Prejudice to Defendant

Defendant argues that' this prong of the analysis need not be reached. According to Defendant, “prejudice — either actual or presumed — becomes totally irrelevant” when the other three elements of the Barker analysis weigh heavily in favor of the accused. Defendant’s Motion to Dismiss, page 15. The Government counters, arguing under the circumstances, Defendant must demonstrate prejudice.

In the Eleventh Circuit, it is well settled that “when the first three Barker factors weigh heavily against the government, the Defendant need not demonstrate actual prejudice.” United States v. Dennard, 722 F.2d at 1513 (citing Hill v. Wainwright, 617 F.2d 375, 379 n. 4 (5th Cir.1980); United States v. Avalos, 541 F.2d at 1116; Prince v. Alabama, 507 F.2d 693, 706-07 (5th Cir.1975), cert. denied, 423 U.S. 876, 96 S.Ct. 147, 46 L.Ed.2d 108 (1975)). A careful review of the equities involved clearly reveals that the first three Barker factors do not weigh heavily against the Government.

Moreover, the circumstances of this case do not fit within the framework of a case in which prejudice need not be demonstrated. As stated by the Fifth Circuit:

The reason for dispensing with the prejudice requirement entirely when the other three factors point heavily toward a violation of speedy trial is deterrence: the prosecution should not be permitted to engage in inexcusable misconduct on the hope that the Defendant will not be able to make out a case of prejudice.
Mindful of the difficulties sometimes encountered in weighing prejudice, this Court will not undertake such an inquiry where the prosecutorial error to be forgiven by a finding of no prejudice is flagrant and inexcusable.

Turner v. Estelle, 515 F.2d 853, 858 (5th Cir.1975) (citing Hoskins v. Wainwright, 485 F.2d 1186, 1192 (5th Cir.1973)).

In the case sub judice, there has been absolutely no showing of “flagrant and inexcusable” prosecutorial misconduct. Nor does the record suggest even a hint of bad faith on' the Government’s part. Accordingly, because the other three Barker factors do not weigh heavily in Defendant’s favor, and because Defendant can point to no “inexcusable” conduct on the Government’s part, a showing of prejudice is necessary. Turner v. Estelle, 515 F.2d 853 (5th Cir.1975).

As Defense Counsel conceded at oral argument, Defendant can demonstrate no actual prejudice as a result of the delay. Defendant has suffered no prejudice from pre-trial incarceration because he was in prison anyway. See Turner, 515 F.2d at 859 (citing Barker, supra). As for anxiety and concern, Defendant was not even aware of pending charges until August, 1986. In any case, it is difficult to conceive how the Defendant can complain about anxiety arising from these charges when he is now serving fifteen (15) years for precisely the same criminal conduct, and, as his prior record reflects, he is a career criminal. See Attached Appendix, FBI RAP Sheet, Exhibit A. Finally, Defendant has failed to demonstrate thal the delay has resulted in the loss of trial evidence (witnesses or otherwise). In sum, Defendant has suffered no prejudice whatsoever as a result of the delay in bringing this matter to trial.

CONCLUSION

This Court does not condone the Government’s explanation that this case “fell through the proverbial cracks.” Government’s Response to Defendant’s Motion to Dismiss, page 4. However, the Court will not “ignore the competing interests of the government.” See United States v. Mitchell, 769 F.2d 1544, 1548 (11th Cir.1985). Nor will this Court turn its back on society’s interest in seeing that justice is served. Accordingly, upon careful consideration of all the factors outlined in Barker and its progeny, this Court concludes that the Defendant’s right to speedy trial has not been violated under the circumstances. Defendant’s Motion is therefore DENIED.

EXHIBIT A 
      
      . It is alleged that on November 6, 1981, at approximately 2:45 P.M., Jerry Mack Denson and an unidentified co-conspirator entered the Peoples First National Bank of North Miami Beach and, at gunpoint, did knowingly and intentionally take by force $43,557.00 in United States currency.
     
      
      . The first detainer issued was not in proper form. On August 26, 1986, a corrected detainer notice was personally delivered by the United states Marshal to the Memphis Correctional Institute.
     
      
      . Magistrate Snow issued the writ September 11, 1986.
     
      
      . As indicated by the Fifth Circuit:
      The right to a speedy trial is “a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied.” Barker v. Wingo, supra, 407 U.S. at 521, 92 S.Ct. at 2187. Unlike, for example, double jeopardy, "[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.” Barker v. Wingo, supra, 407 U.S. at 522, 92 S.Ct. at 2188.
      
        Turner v. Estelle, 515 F.2d 853, 855-56 (5th Cir.1975).
     
      
      . See United States v. Dennard, 722 F.2d 1510 (11th Cir.1984) (fifteen month delay sufficient to consider the remaining elements): Hill v. Wainwright, 617 F.2d 375 (5th Cir.1980) (delay of nearly three years serves as a "triggering mechanism” to invoke further analysis); United States v. Avalos, 541 F.2d 1100 (5th Cir.1976) (fifteen month delay is sufficiently serious to consider the reasons for the delay and other elements); Turner v. Estelle, 515 F.2d 853 (5th Cir.1975) (four year and eight month delay sufficient to require further inquiry).
      The Court notes, however, that by itself, the length of the delay cannot justify granting Defendant’s Motion to Dismiss. In Barker, the delay in bringing the Defendant to trial was well over five years; the Supreme Court concluded, upon considering all the circumstances, that the right to a speedy trial had not been violated.
     
      
      . As summarized by the Government:
      [T]he failure to bring Mr. Denson before the court for trial was caused by the negligence of the Marshal service. This negligence was then most recently exacerbated by perhaps the Clerk’s Office (for failure to notify Judge Roettger’s chambers of Denson’s arraignment so the case could be taken out of "fugitive" status and placed on a trial calendar), the United State’s Attorney’s Office (for failure by the docketing section to forward the correct documents to the appropriate AUSA and the AUSA for failing to recognize that there were two pending cases) and the Public Defender’s office (for failing to file any motions or request discovery or demand a Speedy Trial on the case).
      Government’s Response to Defendant’s Motion to Dismiss, page 4.
     
      
      . As stated in his Memorandum, "Defendant does not contend that the government deliberately delayed prosecution in this matter." Defendant’s Motion to Dismiss, page 12.
     
      
      . In Dennard, a codefendant (Verduzco) was unaware of the indictment until the arrest. Defendant did not assert the right to speedy trial because she apparently did not know of the impending charges. The court found that under the circumstances, her right to speedy trial had not been violated. See United States v. Dennard, 722 F.2d at 1513.
     
      
      . Compare United States v. Martinez, 776 F.2d 1481, 1483 (10th Cir.1985) (stating that "in the absence of prejudice, we have great reluctance to dismiss an indictment for prosecutorial delay") (citing United States v. Jenkins, 701 F.2d 850 (10th Cir.1983); United States v. Brown, 600 F.2d 248 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979)).
     
      
      . The Supreme Court has recognized three interests that the speedy trial guarantee seeks to protect: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 533, 92 S.Ct. at 2193.
     
      
      . The Government has statements from eye witnesses who are available to testify and a surveillance photograph of Defendant robbing the bank. See Attached Appendix, Surveillance Photograph, Exhibit B. In short, there is no defense to this case except for the present Motion to Dismiss.
     