UNITED STATES of America, Appellant, v. Noel QUINN, Appellee. UNITED STATES of America, Appellant, v. Lee WILSON, Appellee.
Nos. 75-1850, 75-1851
United States Court of Appeals, Eighth Circuit
Submitted Jan. 15, 1976. Decided July 27, 1976.
Rehearing and Rehearing En Banc Denied Aug. 18, 1976.
540 F.2d 357
James E. Reeves, Ward & Reeves, Caruthersville, Mo., for appellants.
WEBSTER, Circuit Judge.
The United States appeals from two orders entered by the District Court dismissing the actions against appellees Noel Quinn and Lee Wilson because of preindictment delay. Jurisdiction is proper in this Court under
Appellee Quinn was charged in a ten count indictment with selling firearms on five occasions without maintaining records as required by law in violation of
Appellee Wilson was charged in a single count indictment with dealing in firearms without a license in violation of
At the suggestion of the District Court, the appellees made pretrial motions to dismiss the indictments for preindictment delay. A combined hearing on the motions was held on September 26, 1975. At that hearing, Quinn, Wilson, and Agent Joseph A. Patterson of the Bureau testified. Quinn, a barber and licensed gun dealer, testified that he kept no notebook or diary of dates and transactions other than the firearm records required by the government and had no means or ability to reconstruct the events of the dates of the alleged offenses. He stated that he could not recall any specific events which occurred in May or June of 1974, nor the identity of the persons who may have come into his place of business during that period. Finally, he testified that he had, since the execution of the search warrant, been living under stress and had been unable properly to carry on his business. Wilson, a laborer, testified that he had a fifth grade education and kept no notebook, diary, or other record from which he could reconstruct his activities during the time period in question. He stated that he had a short memory and could not recall the events on the dates of the alleged transactions.
Agent Patterson testified that he supervised the undercover investigations concerning Quinn and Wilson. He stated that the government employed a paid informant, one James Green, to assist in the investigations, but that no other such informants were used. He testified that Green‘s role in the investigation was solely to introduce the undercover agents who purchased the firearms to Quinn and Wilson. In response to a question as to Green‘s whereabouts at the
After the conclusion of the hearing, the District Court entered two orders dismissing the indictments. In Quinn‘s case, it stated:
In September, 1974, a search warrant was issued and returned, the record showing that defendant‘s records of firearms transactions and three firearms were seized. If investigation was theretofore continuing, it ceased almost a year before the indictment was returned. Defendant has been prejudiced by the delay by reason of the present unavailability of the government‘s informant and in other respects. We find the delay to be wholly unnecessary and unreasonable.
In Wilson‘s case, it stated:
It appears that the government bases its charge on four alleged transactions with undercover agents, the first on April 1, 1974 and the last on July 16, 1974. There being no evidence of a bona fide continuing investigation which might conceivably justify the thirteen months delay in presenting the charge to a grand jury, it is our view that the delay was unreasonable. Defendant has been prejudiced not only by his inability to reconstruct his activities on the dates in question and obtain exculpatory evidence but by the present unavailability to the defense of James Green, the alleged government informant.
Until very recently this Court, while recognizing that unreasonable preindictment delay coupled with prejudice to a defendant may violate the Fifth Amendment Due Process Clause, had not held in any case that the prejudice was sufficient to require dismissal. See United States v. Librach, 520 F.2d 550, 555 (8th Cir. 1975); United States v. Jackson, 504 F.2d 337, 339 n. 1 (8th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). The test which we have applied has been one of balancing the reasonableness of the delay against the resultant prejudice to the accused, if any. United States v. Jackson, supra, 504 F.2d at 339. In two recent cases, we have held that the demonstrated prejudice to the defendant outweighed any justification for delay in initiating prosecution and on this basis have affirmed the judgment of the district court dismissing the indictment for prejudicial delay. See United States v. Lovasco, 532 F.2d 59 (8th Cir. 1976); United States v. Barket, 530 F.2d 189 (8th Cir. 1976). In each case, we held that the ability of the defendant to prepare his defense was materially hampered by an unreasonable delay in initiating prosecution.2 It is apparent that this balancing process does not lend itself to a precise codification of circumstances constituting prejudicial preindictment delay and that each case must be carefully scrutinized on an ad hoc basis.
I. Circumstances of Delay
The government contends that the reason for the delay in bringing the indictments was that other undercover activity in the area relating to illegal firearms would have been jeopardized had prosecutions been immediately initiated following completion of the investigations of Quinn and Wilson. The government stated to the District Court that active undercover investigations of these defendants were completed by September, 1974; and Agent Patterson testified that the testing of the guns to
II. Prejudice to Defendants
The District Court found that Quinn was “prejudiced by the delay by reason of the present unavailability of the government‘s informant and in other respects.” It found that Wilson was “prejudiced not only by his inability to reconstruct his activities on the dates in question and obtain exculpatory evidence but by the present unavailability to the defense of James Green, the alleged government informant.” For lack of further amplification, it is assumed that the “other respects” in which Quinn was found to have been prejudiced would be the same inability to reconstruct his activities that the District Court found in Wilson‘s case. These findings must be sustained unless clearly erroneous. United States v. Barket, supra, 530 F.2d at 193; United States v. Jackson, supra, 504 F.2d at 341.
A. Unavailability of Informant Green
We found prejudicial delay in United States v. Barket, supra, where because of a delay of 47 months the defendant was prejudiced by the loss of witnesses to the circumstances of the transaction either by death or inability to recall. In United States v. Lovasco, supra, we affirmed the dismissal of three of four counts and held the defendant to have been prejudiced by a delay of 17 months during which a material witness died who was the person from whom the defendant claimed to have received guns and who the defendant testified would have supported his claim that he did not know that the guns were stolen from the United States mails.
The factual circumstances of this case are substantially different. The record shows that the missing witness, James Green, only introduced the government agents who purchased the firearms to Quinn and Wilson. Agent Patterson testified at the hearing on the motion to dismiss that he did not know Green‘s whereabouts and that he had not been in contact with Green for approximately two months.3 Neither defendant carried his burden of affirmatively showing prejudice from the absence of the informant. There was no intimation that the informant could supply any information which might constitute a defense or rebut any necessary element of the offense. The government, on the other hand, adequately carried its burden of showing that the informant would have no basis for supplying exculpatory information. See United States v. Norton, 504 F.2d 342, 345 (8th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 790, 42 L.Ed.2d 811 (1975).4 The requirement of “substantial
B. Inability to Recall Events
Each defendant claimed prejudice resulting from an inability to recall the events which formed the basis for the charges against him. However, a “claim merely of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice for reversal based on denial of due process.” United States v. Atkins, 487 F.2d 257, 259 (8th Cir. 1973).5 See also United States v. Emory, 468 F.2d 1017, 1020 (8th Cir. 1972); United States v. Golden, 436 F.2d 941, 943 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971). We do not exclude the possibility that an extended delay resulting from calculated and intentional tactics by the prosecution in an effort to impede the defense coupled with a resulting inability of the defendant to recall events may cause the balance to be struck in favor of the defendant on the issue of prejudice; but this is not such a case. We have reviewed the testimony of Quinn given prior to the District Court‘s suggestion of the possibility of dismissal for preindictment delay at a hearing on a motion to suppress and find that he exhibited an ability to recall events surrounding the execution of the search warrant in September, 1974. While he was able to recall these events in some detail, he claimed that he could not recall events in the Spring of the same year. We think that such generalized contentions are insubstantial and speculative and as such are inadequate to satisfy Quinn‘s burden of affirmatively demonstrating prejudice.6
Wilson testified that he was able to recall the sale of two of the guns to the agents but denied any criminal intent or knowledge that the guns were stolen. His knowledge of certain of the events within the time frame weakens his claim of failing memory as a basis for substantial prejudice.
The District Court properly reflected its concern about the length of time which elapsed from the time the investigations had been completed until the initiation of prosecution. We conclude, however, that upon the record before us substantial prejudice has not been demonstrated and that the findings of the District Court in this regard are clearly erroneous.7
HEANEY, Circuit Judge (dissenting).
The federal courts have long possessed the inherent power, derived from the common law, to dismiss a case for want of prosecution. United States v. Furey, 514 F.2d 1098, 1103-1104 (2nd Cir. 1975); United States v. McWilliams, 82 U.S.App.D.C. 259, 163 F.2d 695, 696 (1947); Ex Parte Altman, 34 F.Supp. 106, 108 (S.D.Cal.1940); District of Columbia v. Weams, 208 A.2d 617 (D.C.Mun.App.1965). See also Note, Justice Overdue-Speedy Trial for the Potential Defendant, 5 Stan.L.Rev. 95, 104 (1952). This power is rooted in the court‘s supervisory authority over its own jurisdiction, and its exercise has traditionally been within the court‘s discretion. United States v. Furey, supra at 1103; United States v. McWilliams, supra at 696; Ex Parte Altman, supra at 108. As stated by Mr. Justice Frankfurter in Nardone v. United States, 308 U.S. 338, 341-342, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939):
Dispatch in the trial of criminal causes is essential in bringing crime to book. * * * The civilized conduct of criminal trials cannot be confined within mechanical rules. It necessarily demands the authority of limited direction entrusted to the judge presiding in federal trials, including a well-established range of judicial discretion, subject to appropriate review on appeal, in ruling upon preliminary questions of fact. Such a system as ours must, within the limits here indicated, rely on the learning, good sense, fairness and courage of federal trial judges.
The discretionary authority is broadly described. The cited cases present factually the post-arrest situation, but the court‘s authority over its jurisdiction is not so limited. Reason dictates this conclusion. Judicial concern for the preservation of proof, the maximization of the deterrent effect of prosecution, the minimization of potential additional criminal conduct and the sure arrest of the individual apply no less forcefully to the pre-arrest situation. The Supreme Court has not indicated otherwise.
In the instant case, the sales with which Quinn was charged allegedly took place between May 1, 1974, and June 4, 1974. Those with which Wilson was charged allegedly occurred between April 1, 1974, and July 16, 1974. Although all active undercover investigations of these defendants were completed by September, 1974, indictments against them were not filed until August 8, 1975, more than a year after the commission of the alleged offenses. Under these circumstances, I do not believe that the dismissal of the indictments by the District Court constituted an abuse of discretion, and that, accordingly, the orders of the District Court should be affirmed.
Nothing is more important to the administration of criminal justice than the prompt arrest, indictment and trial of those accused of crimes. Of equal importance is the prompt completion of the appellate procedure. The reasons are twofold. The rights of an accused can be better protected and the interests of society can be better served.
Congress has addressed itself to a principal cause of delay in the
The negative power to withhold prosecution and to decide when and whether to initiate criminal proceedings is even greater than the affirmative power to prosecute because it is less protected against abuse. See id. at 22, 188-191. For the potential defendant, the consequences of a deliberate choice on the part of the government to delay the initiation of prosecution may be severe. See Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476, 489 (1968). The consequences to society of a deliberate delay in prosecution may be equally severe.
Notes
United States v. Cowsen, 530 F.2d 734, 736-37 (7th Cir. 1976).A claim of faded memory, the veracity of which can rarely be satisfactorily tested, can be plausibly asserted in almost any criminal case in which the defendant is not charged within a few weeks, at most, after the crime. The possibility or likelihood of faded memory has not, however, in itself, been viewed as prejudice that requires dismissal of an indictment, despite delays of much longer than the four and one-half months shown here. * * * Any person is likely to have difficulty in remembering what he was doing on a particular date during the hours when many, if not most, crimes are committed. If the limitation period for prosecution were measured by the length of the defendant‘s memory of routine events, few crimes could be prosecuted. * * * Here, however, the facts do not show unfairness. There was no evidence that the government intentionally delayed charging the defendant in order to gain a tactical advantage or for purposes of harassment.