21 F.3d 62 (5th Cir. 1994), 92-2747, United States v. Beszborn

Docket Nº:92-2747.
Citation:21 F.3d 62
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. James Daniel BESZBORN, et al., Defendants-Appellees.
Case Date:April 18, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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21 F.3d 62 (5th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellant,

v.

James Daniel BESZBORN, et al., Defendants-Appellees.

No. 92-2747.

United States Court of Appeals, Fifth Circuit

April 18, 1994

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[Copyrighted Material Omitted]

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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.

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.

Facts and Proceedings Below

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

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(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.

Discussion

I. Pre-Indictment Delay

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

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to gain a tactical advantage, and (2)...

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