JOSEPH F. BIANCO, District Judge.
Defendant William E. Schaefer ("defendant" or "Schaefer") was indicted on October 7, 2009 on one count of possession of child pornography, in violation of Title 18, United States Code, Sections 2252(a)(4)(B) and 2252(b)(2).
Schaefer moved to suppress statements he made to law enforcement officers and evidence seized by law enforcement officers during a search of defendant's home
At a conference on November 9, 2010, after counsel for defendant conceded that there was no actual prejudice from the pre-indictment delay, the Court denied defendant's request for an evidentiary hearing on that issue, denied that portion of the motion, and stated that a written order would follow. With respect to the motion to suppress, on November 9, 2010 and November 15, 2012, the Court conducted an evidentiary hearing regarding the consent issue and, on February 1, 2011, the Court orally denied the motion to suppress for reasons set forth in detail on the record. The Court now issues this Memorandum and Order regarding the motion to dismiss for pre-indictment delay and to supplement its oral ruling on the motion to suppress, including a more detailed discussion of the relevant case authority.
At the evidentiary hearing, the Court heard testimony from Special Agent Joseph Lazzara, Special Agent Eric Mancini, and from the defendant. After evaluating the credibility of the witnesses, and the other evidence offered at the hearing, the Court makes the following findings of fact. With respect to the findings of fact, the Court notes that it found the testimony of Special Agent Lazzara and Special Agent Mancini to be fully credible in light of their demeanor and the other evidence offered at the hearing. Moreover, as discussed below, the defendant agreed, to a substantial extent, with their testimony and, where he contradicted the agents' testimony as to certain key aspects of the circumstances surrounding the search, the Court found the defendant not to be credible in light of his demeanor and the other evidence.
On August 20, 2007, Special Agent Joseph Lazzara ("Agent Lazzara"), then employed by Immigration and Customs Enforcement ("ICE"), went to defendant's residence at 29 Town Path in Glen Cove, New York, with ICE Special Agent Rosanna Licitra ("Agent Licitra"), and with Nassau County Detective Betty Egan ("Detective Egan"). (Nov. 9, 2010 Tr.
On August 20, 2007, at approximately 5:30 p.m., the agents and detective approached the defendant's front door and knocked. (Id. at 8, 45.) The defendant opened the door, and Agent Lazzara explained that they were conducting an investigation regarding the use of a computer through the internet to obtain child pornography images. (Id. at 8.) The defendant allowed the agents and detective to come inside. (Id. at 9.) In response to Agent Lazzara's questions, the defendant said that he lived alone, owned a computer that was hooked up to the internet, and had an email account with the same address as the email address provided through Operation Flicker. (Id. at 9-10.) The defendant said he used the internet to pay bills, "conduct e-trade," and purchase fishing equipment. (Id. at 10.) The defendant further stated that he had adult pornography on his computer, and that he paid approximately $29 per month with his credit card to belong to an adult pornography website. (Id. at 10-11.) The defendant told the agents and detective that about a week before the August 20, 2007 visit, he had been the victim of credit card fraud. (Id. at 11, 13-14.) Agent Lazzara asked the defendant if he understood the definition of child pornography, and the defendant responded that it involved the sexual penetration of an individual under the age of 18. (Id. at 14, 70.) At that point, the defendant stated that he had not sought out child pornography, was not interested in child pornography, and had no child pornography on his computer. (Id. at 14-15.)
The defendant's demeanor, when they began discussing child pornography, was agitated and nervous. (Id. at 15.) Agent Lazzara said that the defendant was "moving around a little bit" and had trouble making eye contact. (Id.) Agent Lazzara "got the sense that there was something bothering him." (Id.) Agent Lazzara was concerned for officer safety, particularly because they were in relatively close proximity. (Id. at 15-16.)
About midway through the interview — probably close to 5:45 p.m. — the defendant told Agent Lazzara that he was going to call his brother. (Id. at 16, 58, 71.) Agent Lazzara testified that he believed that the defendant mentioned that his brother was a police officer. (Id. at 16, 65-66, 71.) Agent Lazzara wanted to ask the defendant some additional questions before the defendant made the phone call, but the defendant "reached behind him and basically grabbed the phone and brought it up fast." (Id. at 16.) The phone was a handheld set for a land line, and was located on an end table or coffee table next to the couch. (Id. at 59) The defendant's reach for the phone happened in a "split second," and surprised Agent Lazzara. (Id. at 16.) He testified that he "felt threatened by it."
Agent Lazzara continued the interview, asking if the defendant had ever received child pornography on his computer. (Id.) The defendant responded that any child pornography he received consisted of unsolicited emails. (Id.) At that point, Agent Lazzara asked Schaefer if the agents could look at Schaefer's computer. (Id. at 18.) The defendant gave verbal consent to allow the agents to search his computer. (Id. at 18-19.) Agent Licitra's notes indicate that the defendant gave verbal consent at 5:45 p.m. (Id. at 19.) The defendant subsequently signed a written consent form to search the computer. (Id. at 18-19; Gov. Ex.
Agent Licitra began to examine the computer after receiving the defendant's verbal and written consent. (Id. at 20, 56.)
At some point during the interview, Agent Lazzara asked how long Schaefer had been collecting such images, and the defendant stated that he had eight years' worth of stuff. (Id.) The defendant also said that when he drank, he did stupid things. (Id.) Before leaving with the computer, the agents gave the defendant a chain of custody form for receipt of the computer.
Agent Lazzara, Agent Licitra, and Detective Egan were all wearing plain clothes at the interview, and none of them drew their guns, which were concealed.
Special Agent Eric Mancini ("Agent Mancini"), an ICE agent, participated in the defendant's October 16, 2009 arrest at the defendant's residence in Glen Cove. (Id. at 74.) The agents had a warrant for the defendant's arrest, though they did not have a search warrant for his house. (Id. at 80.) The defendant verbally consented to a search of his residence, though the agents did not actually conduct a search on that date. (Id. at 81-82.) Although Agent Mancini testified that the defendant "possibly" signed a consent form, the government stipulated that the form indicated that the defendant had refused to sign. (Id. at 81.)
Agent Mancini testified that he observed someone read the standard Miranda warnings sheet to Schaefer at the time of his arrest, though Schaefer did not provide a written waiver of his rights. (Id. at 75-76.) When the agents arrived at the defendant's house, the defendant was not dressed, so the agents accompanied him to the bedroom, where he dressed to leave his residence. (Id. at 76-77.) While he was getting dressed, the defendant "kept on repeating" and "remarking" on how long it took for the agents to arrest him after they seized his computer. (Id. at 77.) According to Agent Mancini, the defendant also said that if he "would have known it would have taken you so long to come back and arrest me, I would have booked." (Id.) Agent Mancini took this statement to mean that the defendant "would have tried to escape justice and perhaps become a fugitive." (Id. at 77-78.)
The defendant testified on his own behalf. The Court has summarized the defendant's testimony below. As noted infra, the defendant's testimony was consistent with the testimony of the government
Defendant explained that he was 53 years old, has a high school degree, and had worked for 35 years at Waldbaum's Supermarket, where was the deli manager. (Nov. 15, 2010 Tr.
After the defendant let them into the apartment, Agent Lazzara asked if the defendant had any little girls hidden in the house. (Id. at 7-8.) The defendant responded that he did not. The agents asked the defendant if he had a computer, and he said that he did. (Id. at 8.) The agents also asked the defendant what he considered to be child pornography, and the defendant responded that child pornography included "[a]nyone under the age of 18 involved with like sexual penetration or intercourse." (Id. at 8-9.) The defendant testified that he noticed that Agent Licitra had a black sidearm in a block holster exposed on her right hip, as well as a white canister that he assumed to be mace or pepper spray. (Id. at 10.)
As the defendant sat on the couch, and the three agents sat on the other side of the coffee table, the defendant grabbed for his telephone. (Id. at 14.) The defendant told Agent Lazzara that he wanted to call his brother, a Nassau County police officer, for advice. (Id.) After the defendant told him who he was calling, Agent Lazzara "became very loud and he demanded that I hang up the phone." (Id. at 15.) The defendant testified that Agent Lazzara became "shocking loud, like you would yell at your son or your dog or something." (Id.) The defendant put down the phone at that point and "just sat there." (Id.) He testified that he "didn't know what to do" and "felt like [he] had no choice." (Id.) At that point, Agent Lazzara asked to see the computer, and the defendant gave the agents verbal consent to search it. (Id.) He testified that he "felt [he] had no choice" because there were "three of them and one of me." (Id.) The defendant testified that he gave the verbal consent after he had hung up the phone. (Id. at 20.)
Agent Licitra then sat down in front of the computer. (Id. at 16.) According to the defendant, the computer was off, and Agent Licitra turned it on. (Id.) After Agent Licitra turned on the computer, the defendant told the officers that he had changed his mind, and reached over to shut the computer off. (Id. at 17.) The defendant testified that the computer had been on for 10-15 seconds, "tops." (Id.) As the defendant reached over to start to shut the computer off, Agent Licitra pointed to a single picture and said that it could
On cross-examination, the defendant testified that he told the agents, prior to the examination of the computer, that the only pornography that he used the computer for was adult pornography. (Id. at 34.) The defendant told them that any child pornography on the computer came from unsolicited emails, and that he had never joined a child pornography subscription website. (Id. at 34-35.) The defendant testified that he had once used his credit card to put money on Paypal, and then used Paypal to join a paid website. (Id. at 24.) The defendant also told the agents that he had recently been the victim of credit card fraud. (Id. at 35.)
After the agents found an image on the computer that they believed to be child pornography, the defendant admitted that he had received child pornography from a site called "bdcomp." (Id. at 45.) He explained that the site had emailed him stuff for about a year. (Id.) The defendant further testified that he had said to the agents that children depicted in photos were 9 to 10 years old, but denied that he was referencing the images they found in his apartment that day. (Id.) He said, rather, that he was referring to a modeling site. (Id.) The defendant told the agents that the photos were sent from Europe. (Id. at 46.) The defendant agreed that he had told the agents on the day of the search that he was an alcoholic and that he did stupid things when he drank. (Id.) Finally, the defendant stated that he had admitted to the agents that the images were sent to him and that he knew they were in the computer. (Id.) He testified that he had told the agents that the emails were unsolicited and came from sites with disclaimers that said the images were perfectly legal. (Id. at 47.) The defendant agreed that he must have saved the photos because they were in his "my documents, my pictures" folder, but stated that he did not remember the pictures. (Id. at 50.) He conceded that "some of" the pictures the Assistant United States Attorney ("AUSA") showed him would be child pornography. (Id. at 50-51.)
The defendant testified that, during the agents' visit, he felt that he couldn't leave the house, but also explained that the agents never told him that he couldn't leave the house. (Id. at 31.) The defendant agreed that the agents were present for approximately half an hour. (Id.)
With regards to the arrest on October 16, 2009, the defendant testified that he told Agent Mancini that he "could have" booked. (Id. at 25.) He said he was taking a shower at the time — 5:45 a.m. — and that it was a "little frightening" when he heard banging and knocking at the door. (Id.) The defendant stated that the agents read him his Miranda warnings, but his statement about how he could have booked was "just babbling" and was not in response to those warnings. (Id. at 26.) At some point during the arrest, the agents presented the defendant with a form, which he refused to sign. (Id. at 26-27.)
On August 26, 2010, defendant filed a motion to dismiss the indictment for pre-indictment delay and a motion to suppress evidence obtained during the search and seizure on August 20, 2007 at the defendant's
Schaefer has moved to suppress any evidence obtained as a result of the August 20, 2007 search on the grounds that his consent to the search of his home and the seizure of his computer was not voluntary. As set forth below, and for the reasons set forth on the record on February 1, 2011, the Court finds that the government has met its burden of proving that the defendant voluntarily consented to the search and seizure under the totality of the circumstances.
The Fourth Amendment protects individuals in their homes "against unreasonable searches and seizures." U.S. Const. amend. IV. "It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is `per se unreasonable... subject only to a few specifically established and well-delineated exceptions.' It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). When the government seeks to justify a search on the basis of the subject's consent, and the subject is not in custody, the government must demonstrate that the consent "was in fact voluntarily given, and not the result of duress or coercion, express or implied." Id. at 248, 93 S.Ct. 2041. Thus, the government bears the burden of proving by a preponderance of the evidence that consent was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983); see also United States v. Snype, 441 F.3d 119, 131 (2d Cir.2006) ("when, as in this case, the government relies on consent to justify a warrantless search, it bears the burden of proving by a preponderance of the evidence that the consent was voluntary"); accord United States v. Lewis, 386 F.3d 475, 481 (2d Cir.2004).
Whether consent was voluntarily given is "a question of fact to be determined from all the circumstances." Schneckloth, 412 U.S. at 248-49, 93 S.Ct. 2041. The "ultimate question presented is whether the officer had a reasonable basis for believing that there had been consent to the search." United States v. Garcia, 56 F.3d 418, 423 (2d Cir.1995) (quotations and citations omitted). The standard for evaluating a subject's consent is "`objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248,
In assessing the "totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation," the Supreme Court has considered various factors. Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. For example, some of these factors include "the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as deprivation of food or sleep." Id. (citations omitted). In each case, the Supreme Court's decision "reflected a careful scrutiny of all the surrounding circumstances," as opposed to "the presence or absence of a single controlling criterion." Id. For example, "`the fact of custody alone has never been enough in itself to demonstrate a coerced... consent to search.'" United States v. Tortorello, 533 F.2d 809, 814 (2d Cir.1976) (quoting United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). Courts have also considered relevant factors such as "whether the defendant was in custody and in handcuffs, whether there was a show of force, whether the agents told the defendant that a search warrant would be obtained, whether the defendant had knowledge of the right to refuse consent, and whether the defendant previously had refused to consent." United States v. Lavan, 10 F.Supp.2d 377, 384 (S.D.N.Y.1998) (footnotes omitted) (collecting cases). In addition, the government has no affirmative obligation to advise the defendant of his right to refuse consent to search; rather, that is one factor to be taken into account in determining voluntariness. See United States v. Drayton, 536 U.S. 194, 206-07, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) ("The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search."); see also Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041 ("While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent."); United States v. Crespo, 834 F.2d 267, 271-72 (2d Cir.1987) ("Nor under Schneckloth does the Government have an affirmative duty to advise a suspect that he may refuse his consent to an apartment search.") (citation omitted).
Applying the above-referenced standard to the facts of this case, the Court concludes that the defendant voluntarily consented to the search. As discussed below, the surrounding totality of the circumstances, including the details of the interview and search as well as the characteristics of the defendant, make clear that the consent to search by the defendant was voluntary.
First, the circumstances surrounding the consent to search were non-coercive. In particular, the Court finds that (1) the defendant was approached at his own residence during the early evening; (2) the two agents and detective who came to his home to speak with him were in plain clothes, and their weapons were not drawn; (3) the agents asked the defendant for permission to enter his home, which he granted; (4) the agents introduced themselves and stated that the reason for the visit related to child pornography; (5) the defendant was never handcuffed or placed in custody by the agents; (6) the entire interview and search took one-half hour; and (7) no threats or promises were made
Second, the defendant orally consented to the search and also signed a written consent form which (1) specifically advised him of his right to refuse consent, (2) stated that he understood that information obtained by the search could be used against him, and (3) stated that no threats or promises had been made in exchange for consent.
Third, with respect to the characteristics of the defendant, the Court notes that the defendant is a 53-year old who graduated high school, reads English, manages a deli department, and is familiar with computers. Thus, his personal characteristics also favor a finding that he voluntarily consented to the search.
The key fact upon which defendant relies, in an attempt to demonstrate that his verbal and written consent was involuntary, is the fact that Agent Lazzara refused to allow the defendant to call his brother during the search. However, the Court concludes that the refusal to allow the defendant to call his brother, when considered in conjunction with the totality of the circumstances, does not transform what is clearly a voluntary consent to search into an involuntary one. As a threshold matter, the Court notes that there is no absolute constitutional right to a telephone call during police questioning, even after an arrest (which did not occur here); however, such a constitutional right can be implicated if it relates to other constitutional rights, such as the right to consult with counsel. See, e.g., Harrill v. Blount Cnty., 55 F.3d 1123, 1125 (6th Cir. 1995) ("The right to make a phone call immediately upon arrest is not a recognized property right, nor is it a traditional liberty interest recognized by federal law."); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1145 n. 2 (7th Cir.1983) ("[T]here is no constitutional requirement that a phone call be permitted upon completion of booking formalities."); accord Dietzen v. Mork, No. 95-2086, 1996 WL 625605, at *2 (7th Cir. Oct. 25, 1996) ("Dietzen's federal constitutional rights were not violated by the temporary deprivation of telephone privileges. We decline to adopt Dietzen's assertion that he had an absolute constitutional right to a telephone call.... Rather, the right to make a telephone call occurs only when certain constitutional rights are implicated, for example the right to consult with counsel." (citations omitted)); Cannon v. Montgomery County, PA, No. CIV.A. 96-CV-7405, 1998 WL 354999, at *7 (E.D.Pa. June 29, 1998) ("There is ... no constitutional right to make a telephone call upon arrest or completion of booking.").
Here, defendant is not claiming that he was trying to call an attorney during the non-custodial questioning by the agents at his home; rather, he wanted to contact his brother, who is a police officer. Defendant had no constitutional right to do so, and the police in this case (as in many cases) certainly had valid law enforcement reasons, including safety concerns, for not allowing an interviewee to make phone calls to unknown individuals during an interview
In United States v. Tejada, No. 04 CR. 1174(LMM), 2005 WL 2677891 (S.D.N.Y. Oct. 20, 2005), Judge McKenna reached a similar conclusion in denying a motion to suppress. In particular, in Tejada, the occupant of the apartment being searched was not permitted to answer her telephone when a next door neighbor called the apartment after the officers had entered. Id. at *3. Moreover, it was not clear whether that incident occurred before or after the consent to search form was signed by the occupant. Id. In any event, the court determined that this incident "does not amount to holding [the occupant] `incommunicado,' and it does not negate the voluntariness of [the occupant's] consent." Id. The court further noted that, if custody would not vitiate an otherwise voluntary consent under the totality of the circumstances, then a refusal to allow telephone contact certainly would not:
Id. Thus, notwithstanding the denial of defendant's ability to answer, the court held that the government had met its burden of proving that the consent was voluntary.
Defendant's other arguments are similarly unpersuasive. First, during the hearing, the defendant testified that he saw what appeared to him to be a gun and a can of mace on Agent Licitra's belt. Even assuming arguendo that testimony to be true (although not previously mentioned in his pre-hearing affidavit), that fact clearly did not make the circumstances coercive or render his consent to search involuntary. It is undisputed that the agents were in plainclothes, and never drew or referenced any weapons. Under these circumstances, the fact that they possessed weapons clearly would not render his consent involuntary. See Tejada, 2005 WL 2677891, at *3 ("It is probably the fact that [the occupant] noticed the weapon of one of the officers, as she said she did. That fact, in the Court's estimation, does not mean much. Most people in New York City (perhaps throughout the country) expect law enforcement officers, even in plain clothes, will have weapons, and the Court does not believe that a reasonable person would feel threatened or coerced in speaking to a law enforcement officer in possession of a weapon which is not drawn.").
Second, to the extent the defendant testified about the timing and sequence of the consent to search in relation to the actual search, the Court did not find defendant's testimony to credible. In particular, defendant testified that (1) he gave verbal consent after he hung up the telephone at approximately 5:45 p.m.; (2) Agent Licitra then began the search before defendant gave written consent; (3) after Agent Licitra turned the computer on, Schaefer told officers he changed his mind, and reached over to shut the computer off after 10-15
Third, although defendant testified that he did not read the written consent-to-search form before signing it because he did not have his glasses, and thus he did not understand that he had the right to refuse to consent, the Court did not find that testimony to be credible. Instead, the Court finds that the defendant signed the form, understood he had the right to refuse consent, and knew that by executing the form the agents were going to search his computer. In any event, the agents would have had no reason to believe that, based upon the surrounding circumstances, that his consent was not voluntary. See, e.g., United States v. Nelsen, No. CRIM. 05-98-P-S, 2006 WL 752778, at *4 (D.Me. Mar. 22, 2006) ("the defendant's testimony that he did not read the written consent-to-search form before signing it does not render his consent invalid"); see also United States v. Harrison, 9 F.3d 1554, 1993 WL 460666, at *2 (9th Cir. Nov. 8, 1993) ("Although she testified that no one informed her of her right to refuse consent and she did not read the consent forms, the surrounding circumstances indicate that her consent was voluntary.").
Fourth, defendant asserts that he was "in custody" while at his home on August 20, 2007. (Def.'s Post-Hearing Memorandum of Law, at 27.). However, the Court disagrees, and finds that a reasonable person in defendant's situation would have understood that he was free to ask the agents to leave and end the interview,
In sum, after carefully considering the evidence presented at the suppression hearing, the Court finds that the government has met its burden by a preponderance of the evidence that the defendant's consent to search the computer was voluntary and freely given. Accordingly, the motion to suppress is denied.
Defendant also brought a motion to dismiss the indictment, under the Due Process Clause, based upon pre-indictment delay because the defendant was not arrested and indicted until over two years
It is well settled that "[a]n indictment brought within the time constraints of the statute may nevertheless violate due process where pre-indictment delay has been shown to cause `substantial prejudice' to the defendant's ability to present his defense and `the delay was an intentional device to gain [a] tactical advantage over the accused.'" United States v. Cornielle, 171 F.3d 748, 752 (2d Cir.1999) (quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). The rule is based upon the rationale that "where delay prejudices the presentation of a defense and is engaged in for an improper purpose it violates the Due Process Clause because such conduct departs from fundamental notions of `fair play.'" Cornielle, 171 F.3d at 752 (quoting United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)). However, to establish such a claim, "[a] defendant bears the `heavy burden' of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose." Cornielle, 171 F.3d at 752 (emphasis in original); see also United States v. Langella, 776 F.2d 1078, 1083 (2d Cir.1985) ("To prevail on his claim that pre-indictment delay violated his due process rights, [the defendant] must prove both that the delay resulted in actual prejudice and that the government's reasons for the delay were improper.").
In the instant case, although there was an over two-year delay between the search at the defendant's home and his arrest and indictment, there is absolutely no evidence that the delay resulted in any actual prejudice. In fact, defense counsel conceded during argument on the motion that no actual prejudice resulted from the delay. See Nov. 9, 2012 Tr. at 84 ("I don't think we have any actual prejudice, Judge."). Therefore, given the lack of any actual prejudice to the defendant from the delay, the above-referenced motion to dismiss based upon the pre-indictment delay is denied.
For the foregoing reasons, and for the reasons set forth on the record on February 1, 2011, the Court denies defendant's motion to suppress. Similarly, for the foregoing reasons and for the reasons set forth on the record on November 9, 2010, the Court denies defendant's motion to dismiss the indictment for pre-indictment delay, including the request for an evidentiary hearing on that motion.
SO ORDERED.
