Appeal from denial of the sanction of dismissal of an indictment for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.; the indictment, which charged bank larceny, was filed 20 months after defendant's arrest in connection with an unprosecuted complaint that charged defendant with opening the bank account by using a false loan or credit application. Defendant also appeals his sentence which was imposed after a hearing which included hearsay information from informants whose identity and whereabouts were not disclosed, and at which defendant was precluded from ascertaining whether informants were in a Witness Protection Program.
Van Graafeiland and Cardamone, Circuit Judges, and Pollack, Senior District Judge.*fn*
POLLACK, Senior District Judge.
Defendant, Peter Napolitano, was arrested on September 30, 1982; the next day the government filed a complaint charging defendant with applying for a bank account at a Citibank branch in Hicksville, Long Island, under a false name ("Louis Ferolito"), address, and bank reference, in violation of 18 U.S.C. § 1014. The complaint also charged that defendant, on September 29, 1982, had deposited four checks into the account without authority, and had withdrawn $58,000 from it using a false name. The checks which defendant deposited had been stolen. Defendant was arrested at the bank while attempting to make another, larger, withdrawal from the account. As of October 30, 1982, the date by which an indictment was required to be filed under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (the "Act"), no action had been taken by the government.
On May 24, 1984 approximately 20 months after defendant's arrest, an indictment was returned charging defendant with one count of bank larceny in violation of 18 U.S.C. § 2113(b) and conspiracy to commit the same in violation of 18 U.S.C. § 371. The indictment, however, did not charge defendant with the offense for which he had been initially arrested. Defendant was arraigned on June 1, 1984.
On June 20, 1984, approximately one month after the indictment, it was discovered that the original complaint against defendant had never been dismissed. The government thereupon dismissed it.
On July 26, 1984, defendant moved to dismiss the indictment, with prejudice, on the ground that the 20 month delay between the date of his arrest and the return of the indictment violated his rights under the Speedy Trial Act. The District Court (Judge Mishler) denied defendant's motion, finding that the charges contained in the indictment were not included in the initial complaint filed against the defendant and holding that "when an indictment is not filed within 30 days of arrest, only the offense or offenses charged in the original complaint must be dismissed" and "[t]herefore, the Act's dismissal sanction is not applicable to these charges."
On October 19, 1984, defendant pleaded guilty to the bank larceny charge, and, on December 7, 1984 he was sentenced to five years imprisonment and a $5000.00 fine. At the time he entered his plea, Napolitano reserved his right to bring this appeal, pursuant to Rule 11(a) (2), Fed. R. Crim. P., challenging the District Court's denial of his motion to dismiss the indictment. Defendant also appeals from the District Court's imposition of sentence, claiming that the sentence was based on hearsay testimony of unnamed informants, and further, that he was precluded from ascertaining whether the informants were in the Witness Protection Program, in violation of his Fifth Amendment due process rights.
Defendant claims that the 20 month delay between his arrest on September 30, 1982, and his indictment on May 24, 1984, violated his rights under 18 U.S.C. §§ 3161 (b) and 3162(a)(1). Section 3161(b) sets forth the time limit in which the government must seek an indictment: "Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. . . ."
Section 3162(a)(1) sets for the sanction for noncompliance with § 3161(b): "If, in the case of any individual against whom a complaint is filed charging such an individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against the individual contained in such complaint shall be dismissed or otherwise dropped. . . ."
Defendant contends that the Act bars prosecution not only for the charge alleged in the complaint, but also for any conduct "aris[ing] out of the same criminal episode" which was "known or reasonably should have been known" at the time the complaint was filed. Defendant claims that the same facts underlie both the later indictment and the earlier complaint and that the government cannot avoid the Act simply by changing the charges brought.
The statutory language is clear: it requires dismissal only of "such charge against the individual contained in such complaint." 18 U.S.C. § 3162(a)(1) (emphasis added). "Absent a clear indication of legislative intent to the contrary, the statutory language controls its construction." Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n.3, 68 L. Ed. 2d 744, 101 S. Ct. 2239 (1981).
Moreover, the legislative history of the Act clearly indicates that Congress considered and rejected defendant's suggestion that the Act's dismissal sanction be applied to subsequent charges if they arise from the same criminal episode as those specified in the original complaint or ...