USA v. Drepanos CV-95-129-B 05/02/96 ___________________ UNITED STATES DISTRICT COURT ________________ FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
_____ v. Criminal No. 95-129-01-B
Nicholas P. Drepanos
O R D E R
Defendant was indicted for bank bribery, 18 U.S.C.A. § 215
(West Supp. 1995), and conspiracy, 18 U.S.C.A. § 371 (West Supp.
1995). He moved to dismiss the indictment and requested an
evidentiary hearing on the matter, contending that the pre
indictment delay violated the Due Process Clause of the Fifth
Amendment. Because defendant neither presents evidence nor
alleges that the government intentionally delayed indictment to
gain a tactical advantage over him, I deny his motion to dismiss
and his request for a hearing.
I. BACKGROUND
The Superseding Indictment charges that between September,
1986 and June, 1988, Nicholas P. Drepanos, an insurance salesman
and real estate developer, along with William Link, III, an
attorney, and Robert F. Fredo, Jr., Senior Vice President and
Senior Loan Officer of First Service Bank for Savings ("FSB"),
conspired to and did accept bribes from borrowers for making
loans from FSB.
According to defendant, bank examiners at the Federal
Deposit Insurance Corporation ("FDIC") uncovered widespread
corruption at FSB during a periodic review in the Spring of 1988.
On August 26, 1988, the FDIC made eleven criminal referrals
concerning FSB to the FBI, and informed the FBI that Fredo
"figure[d] predominantly" in all of them. The criminal referral
on Fredo states that he is suspected of "self-dealing" and of
"granting of loan [sic] for personal benefit." However, the
defendant does not dispute the government's assertion that it did
not learn of his possible involvement in the conspiracy until
1991.
The government initially returned an indictment against
Drepanos on November 30, 1995. This was superseded by an
indictment returned January 4, 1996. Defendant alleges that the
delay of nearly eight years between when the government learned
of the corruption at FSB and when it returned the indictments has
substantially prejudiced his ability to defend himself because he
is unable to remember clearly what happened at FSB during the
period 1986 to 1988. Defendant also alleges that he generally
has a faulty memory due to a severely hypoplastic (undersized)
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left temporal lobe, a congenital defect which was exacerbated by
a traumatic head injury in 1983. Dr. Robert C. Cantu states in
his affidavit that he has performed nine separate neurosurgical
operations on defendant since the accident, and that the
compression of defendant's left temporal lobe and the leakage of
cerebrospinal fluid from his brain may have caused memory loss.1
Kristine Pelletier, an employee of defendant's insurance agency
since 1982, states in her affidavit that since his accident in
1983, defendant has suffered from memory loss, mood swings,
headaches, fatigue, and sudden bursts of temper.
II. DISCUSSION
The parties agree that the indictment in this case was
returned within the ten-year statute of limitations that applies
to bank bribery and conspiracy charges. See, e.g., 18 U.S.C.A. § 3293 . Nevertheless, defendant argues that I must dismiss the
indictment because the government violated the Fifth Amendment's
Due Process Clause by allowing more than seven years to elapse
1 Defendant does not specifically allege that his congenital defect and injury in 1983 cause him to be less able to remember 1986-1988 now than at any earlier time. In other words, defendant does not allege that he could remember 1986-1988 in, for example, 1989. Nor does he contend that he is incompetent to stand trial because of the injury.
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between the time it knew of the alleged misconduct and the time
it brought the indictment against him.
When the government prosecutes before the statute of
limitations has run, the Due Process Clause "'has a limited role
to play in protecting against oppressive delay.'" United States
v. Marler, 756 F.2d 206, 213 (guoting United States v. Lovasco,
431 U.S. 783, 789 (1977)). "Pre-indictment delay violates due
process if (1) it caused substantial prejudice to the defendant's
right to a fair trial, and (2) the Government intentionally
delayed indictment in order to gain a tactical advantage over the
accused." United States v. McCoy, 977 F.2d 706, 711 (1st Cir.
1992) (internal guotations omitted). See also United States v.
Henson, 945 F.2d 430, 439 (1st Cir. 1991); Acha v. United States,
910 F.2d 28, 32 (1st Cir. 1990); United States v. Acevedo, 842 F.2d 502, 504 (1st Cir. 1988); United States v. Lebron-Gonzalez,
816 F.2d 823, 831 (1st Cir. 1987), cert, denied by 484 U.S. 843
(1987) and Fonfrias v. United States, 484 U.S. 857 (1987); United
States v. Picciandra, 788 F.2d 39, 42 (1st Cir. 1986) (citing
United States v. Marion, 404 U.S. 307, 324-25 (1971), cert.
denied, 479 U.S. 847 (1986).
Regardless of whether defendant has satisfied the first
reguirement, he fails to satisfy the second. Defendant simply
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does not allege that the government intentionally delayed
indictment to gain a tactical advantage over him. Instead, he
contends that I should follow the Fourth, Fifth, and Ninth
Circuit Courts of Appeals and weigh any prejudice he has suffered
against the government's justification of the delay. See Howell
v. Barker, 904 F.2d 889, 895 (4th Cir. 1990), cert, denied, 498
U.S.1016 (1990); UnitedStates v. Crouch, 51 F.3d 480, 485 (5th
Cir. 1995); United States v. Butz, 982 F.2d 1378, 1380 (9th Cir.
1993), cert, denied 114 S.Ct. 250 (1993). See also United States
v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994) (applying balancing
test), cert, denied, 115 S.Ct. 915 (1995); United States v.
Miller, 20 F.3d 926 , 931 (1994) (same), cert, denied, 115 S.Ct. 226 (1994).But see United States v. Hoo, 825 F.2d 667, 671 (2nd
Cir. 1987), cert, denied, 484 U.S. 1035 (1988) (Justice White,
dissenting, noted split in circuits); United States v. Ismaili,
828 F.2d 153, 167 (3d Cir. 1987), cert, denied, 485 U.S. 935
(1988); United States v. Brown, 959 F.2d 63, 68 (6th Cir. 1992);
United States v. Engstrom, 965 F.2d 836, 838 (10th Cir. 1992);
United States v. Thomas, 62 F.3d 1332, 1338 (11th Cir. 1995),
cert, denied, Wilda M. Thomas v. United States, ___ S.Ct. ___ ,
1996 WL 63345 (1996). I am bound by the decisions of the First
Circuit Court of Appeals. Therefore, I decline defendant's
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invitation to follow the trail blazed by appellate courts in
other circuits.
Defendant also argues that I must "deem" the intent
requirement satisfied unless the government provides evidence of
legitimate reasons for the delay, and cites United States v.
Whittv, 688 F. Supp. 48 (D. Me. 1988). For both elements of the
due process violation, however, defendant bears the burden of
proof. Acha, 910 F.2d at 32 ; Marler, 756 F.2d at 213 . Because
defendant has not even alleged that the government delayed
indictment to disadvantage him, and has produced no evidence to
that effect, he has not carried his burden of proof.
Furthermore, in Whittv, the government assembled all the evidence
it would use against the defendant, then waited eighteen months
to indict him, and offered no explanation for the delay other
than an "abject admission" that it had shelved the case. 688 F. Supp. at 57 . In contrast, here the government explains in its
Memorandum of Law in Opposition to Defendant's Motion to Dismiss
the Indictment for Prejudicial Pre-Indictment Delay that it has
been steadily gathering evidence of Drepanos' guilt since it
suspected his involvement in the conspiracy. The criminal
referral, submitted by defendant, from the FDIC to the FBI in
June of 1988, does not mention defendant. See Defendant's
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Exhibit C. Rather, it mainly concerns a $2.3 million loan which
FSB officers Wester and Fredo made from FSB to a financially
unstable condominium project to relieve their financial
obligations.2 According to the government, through investigating
information provided by a confidential informant in 1991, it
learned that Drepanos, Link, and Fredo worked in concert to
extract "broker's fees" from parties who wished to borrow from
FSB. Since then, the government has been busy prosecuting and
obtaining plea agreements from a series of six people involved in
the alleged bank bribery conspiracy.3 The government "is under
no duty to initiate criminal proceedings until it is satisfied
that it can establish guilt beyond a reasonable doubt." LebronGonzalez , 816 F.2d at 831 (citing Lovasco, 431 U.S. at 791 ) .
Since the defendant offers no evidence to contradict the
government's assertions explaining its reason for postponing an
indictment, I see no reason to deem the bad faith reguirement to
have been met in this case.
2 The referral does list 18 U.S.C.A. § 215 as one of the violated statutes. See Defendant's Exhibit C at 2.
3 Defendant neither contests this (the government's) account of the time between the charged conduct and the indictment, nor offers an account of his own.
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Finally, defendant argues that I must hold an evidentiary
hearing to determine whether the government's reasons for delay
outweigh any prejudice he may have suffered. As I have already
stated, the First Circuit Court of Appeals does not apply the
balancing test adopted by some Courts of Appeals, but instead
reguires defendants to prove both actual prejudice and bad faith.
In addition to failing to carry this burden in his pleadings,
defendant fails to allege, even in general terms, that the
government intentionally delayed indictment to disadvantage him.
Because defendant does not even propose to present evidence that
the government acted in bad faith, an evidentiary hearing would
be a waste of time.
III. CONCLUSION
For the foregoing reasons defendant's motion to dismiss the
superseding indictment (document no. 13) and his reguest for an
evidentiary hearing are denied.
SO ORDERED.
Paul Barbadoro United States District Judge May 2, 1996
cc: Robert W. Kinsella, Esg.
Robert E. Wallace, Jr. Esq. Robert Ullmann, Esq.
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