U.S. v. Beszborn
| Citation | 21 F.3d 62 |
| Decision Date | 18 April 1994 |
| Docket Number | No. 92-2747,92-2747 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. James Daniel BESZBORN, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James L. Turner, Paula Offenhauser and Jimmy Sledge, Jr., Asst. U.S. Attys., Lawrence D. Finder, Acting U.S. Atty., Houston, TX, for appellant.
Wendell A. Odom, Jr. Schaffer, Lambright, Odom & Sparks, Houston, TX, for Westmoreland.
Bohn E. Phillips, Houston, TX (Court-Appointed), for Schehin.
Larry Veselka, (Court-Appointed) Harold A. Odom, III, Houston, TX, for Purdom.
Alexander Bunin, Houston, TX (Court-Appointed), for Blanchard.
David B. Gerger, Asst. Federal Public Defender, Roland E. Dahlin, Federal Public Defender, Thomas S. Berg, Asst. Federal Public Defender, Houston, TX, for Beszborn.
Appeals from the United States District Court for the Southern District of Texas.
Before GARWOOD and BARKSDALE, Circuit Judges, and SHAW *, District Judge.
OPINION
The Government appeals the district court's decision granting defendants' motions and dismissing the indictment on the basis of pre-indictment delay and double jeopardy. We reverse and remand.
The Government charged five defendants, James Daniel Beszborn, Joseph Westmoreland, James Purdom, Michael Blanchard, and Martin Schehin with participating in a scheme to defraud First Universal Savings, Meridian Savings Association, the Federal Savings and Loan Insurance Corporation (FSLIC), the Federal Home Loan Bank Board (FHLBB), and the Internal Revenue Service (IRS) through a series of transactions made in connection with the purchase and development of several parcels of real estate.
The facts which form the basis of the indictments involve a complex series of transactions involving First Universal Savings (Universal), a federally-insured savings and loan association; First Universal Service Corporation (FUSC), a wholly-owned subsidiary of Universal, which was created to participate in real estate development ventures; Penn West, a general partnership owned by Gary Pentecost, an unindicted co-conspirator, and Westmoreland; First National Trust T, a real estate development company, and Meridian Savings Association (Meridian), another federally-insured savings and loan association. Schehin, Purdom, and Blanchard were officers, directors, and shareholders of Universal. Schehin was the president of FUSC. Beszborn and Westmoreland were part-owners of FNT. The alleged scheme involved the fraudulent acquisition of financing by FNT through Universal and Meridian.
Initially, on September 17, 1990, a grand jury indicted defendants-appellees, James Daniel Beszborn and Joseph Westmoreland on four counts involving conspiracy, bank fraud, and tax evasion. On August 22, 1991, the Government filed a superseding indictment, adding as defendants, James Purdom, Michael Blanchard, and Martin Schehin. The indictment charged Beszborn, Westmoreland, Purdom, Blanchard, and Schehin with conspiracy, false entry, misapplication of funds, and bank fraud.
On September 27, 1991, Schehin moved to dismiss two counts of the indictment asserting that they were barred by the applicable statute of limitation. Purdom and Schehin filed a motion to dismiss due to pre-indictment delay, and all defendants moved to adopt and incorporate each of their co-defendants' motions.
After a hearing on the defendants' motions to dismiss, the district judge denied the motions without reasons.
Shortly thereafter, Schehin and Purdom filed special pleas of jeopardy, and Beszborn and Westmoreland filed motions to dismiss based upon double jeopardy. The court took these motions under advisement.
On June 24, 1992, the Government filed a second superseding indictment charging the defendants in twelve counts with various crimes, including conspiracy, bank fraud, misapplication of funds, false statements, and tax evasion.
On July 15, 1992, Purdom and Schehin amended and refiled their earlier motion to dismiss the indictment due to pre-indictment delay and Schehin filed a motion to dismiss on the basis of double jeopardy.
On August 28, 1992, the district court dismissed the indictment, granting all of the defendants' motions, including (1) Purdom's and Schehin's motion to dismiss due to pre-indictment delay; (2) Schehin's special plea of jeopardy; (3) Purdom's special plea of jeopardy; (4) Beszborn's motion to dismiss for double jeopardy; (5) Westmoreland's motion to dismiss for double jeopardy; and (6) Schehin's motion to dismiss for double jeopardy. This appeal resulted.
The Government contends that the district court erred as a matter of law when it misapplied the standard for evaluating a due process claim. The Government argues that the district court presumed prejudice from the pre-indictment delay, relieving the defendants of their burden of proving actual prejudice, necessary for a due process violation.
While the Sixth Amendment guarantees a criminal defendant a right to a speedy trial post indictment, the Supreme Court has held that the Due Process Clause of the Fifth Amendment protects an accused against pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
The burden of proving a due process violation due to pre-indictment delay is on the defendant, who must prove that (1) the prosecutor intentionally delayed the indictment to gain a tactical advantage, and (2) the defendant incurred actual prejudice as a result of the delay. United States v. Amuny, 767 F.2d 1113 (5th Cir.1985).
The Government contends that the district court, in dismissing the indictment for pre-indictment delay, did not apply the proper standard in evaluating a due process claim, and did not make a finding of actual prejudice. In its order, the district court reviewed a list of five potentially material witnesses who have died since the acts which formed the basis of the indictment occurred. The court stated that documents have moved and it is virtually impossible to re-create the circumstances surrounding the alleged transactions. Apparently, being unable to make a finding of actual prejudice, the district court relied on the case of Doggett v. United States, --- U.S. ----, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), in dismissing the indictment on a finding of presumptive prejudice, holding that the defendants should not be penalized because they are unable to show actual prejudice. The district court quotes extensively from Doggett stating, "excessive delay presumptively compromises the reliability of a trial" and "affirmative proof of particularized prejudice is not essential to every speedy trial claim...."
The law is well settled that it is actual prejudice, not possible or presumed prejudice, which is required to support a due process claim. The applicable statute of limitations is the mechanism established by law to guard against possible, as distinguished from actual, prejudice resulting from the passage of time between crime and the charge, protecting a defendant from overly stale criminal charges. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
The concept of presumed prejudice has no place in a due process analysis, and the district court's reliance on Doggett is misplaced. Doggett was a case involving a Sixth Amendment speedy trial violation claim, due to post-indictment delay, rather than pre-indictment delay. The proper measure of a claim of prejudice due to pre-indictment delay is the due process standard of the Fifth Amendment, which requires a showing of actual prejudice. Without proof of actual prejudice resulting from the delay, a due process claim is merely speculative and cannot be maintained.
The Supreme Court was clear in its directive that, "There is no need to ... guard against mere possibility that ... delays will prejudice the defense ... since statutes of limitation already perform that function." United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The law is well settled--the Due Process Clause of the Fifth Amendment requires dismissal of an indictment if it is shown that the pre-indictment delay caused actual prejudice to the accused and that the Government intentionally delayed the indictment to gain a tactical advantage.
Assuming the district court applied the proper standard for a due process claim, requiring proof of actual prejudice, this court must review the record to determine whether the record supports a finding of actual prejudice.
As a general rule, this court reviews the district court's findings of fact for clear error and reviews its conclusions of law de novo. Colonial Penn Ins. Co. v. Market Planners Ins. Agency, Inc., 1 F.3d 374 (5th Cir.1993). A finding of prejudice involves a mixed question of law and fact.
This court has applied a clearly erroneous standard to similar mixed questions of law and fact under the Fifth Amendment. United States v. Gibson, 963 F.2d 708 (5th Cir.1992); United States v. Bourgeois, 950 F.2d 980 (5th Cir.1992).
The district court relied upon the death or relocation of potentially material witnesses and the movement and misplacement of several documents in its finding of apparent prejudice, without an actual showing of prejudice by defendants.
The deceased witnesses were merely potentially material to the defense in this case. There was no evidence that the testimony of any of these witnesses was exculpatory in nature, or that it would have actually aided the defense. Although the district court stated that documents have been moved numerous times and it is virtually impossible to re-create the circumstances surrounding the alleged transactions, there is no evidence that the information to be derived from these...
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