24 F.3d 250 (9th Cir. 1994), 93-50428, U.S. v. Ashe

• Docket Number: 93-50428.
• Date: 05 May 1994
• Citation: 24 F.3d 250
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Joe ASHE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 250

24 F.3d 250 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Billy Joe ASHE, Defendant-Appellant.

No. 93-50428.

United States Court of Appeals, Ninth Circuit

May 5, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted April 5, 1994.

Appeal from the United States District Court, for the Southern District of California, D.C. No. CR-89-0492-01-K; Judith N. Keep, Chief District Judge, Presiding.

S.D.Cal. [APPEALING AFTER NEW TRIAL FROM, 951 F.2d 362.]

AFFIRMED.

Before: HUG, WIGGINS, and NOONAN, Circuit Judges.

MEMORANDUM ^[*]

I. BACKGROUND

Appellant Billy Joe Ashe ("Ashe") was convicted in January 1993 on three counts of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The charges stemmed from three separate incidents, in March, April, and May of 1989, in which Ashe was found to be in possession of three different handguns. The district court sentenced Ashe to a total of 262 months in prison, followed by five years of supervised release. Ashe raises seven issues on appeal. He alleges that the district court erred in (1) denying his motion to dismiss charges because of pre-indictment delay; (2) denying his motion to dismiss for vindictive prosecution; (3) denying his motion to sever the three counts; (4) preventing him from presenting a defense that he was entitled, under Texas law, to possess the three handguns; (5) determining that he qualified as an "armed career criminal;" and (6) imposing a two-level upward departure in his sentence. Additionally, Ashe alleges that he was denied effective assistance of counsel at trial. We find no reversible error in Ashe's trial, decline to address Ashe's ineffective assistance of counsel claim on direct appeal, and affirm the judgment and sentence of the district court.

II. DISCUSSION

1. Pre-indictment Delay

   Ashe contends the district court erred in not granting his motion to dismiss the charges against him for pre-indictment delay. We review a district court's ruling on a motion to dismiss for pre-indictment delay for abuse of discretion. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir.1992).

   Statutes of limitations provide the primary guarantee against bringing overly stale criminal charges. United States v. Marion, 404 U.S. 307, 322 (1971) (quoting United States v. Ewell, 383 U.S. 116, 122 (1966)). However, pre-indictment delays may violate a criminal defendant's Fifth Amendment due process rights, even when charges are brought within the relevant statutory time limits. Id. at 324. We have articulated a two-part test to determine if a defendant's due process rights have been violated by delays between arrest and indictment. Huntley, 976 F.2d at 1290. First, the defendant must provide proof of "actual, non-speculative prejudice" resulting from the delay. Id. Courts apply the actual prejudice test stringently. United States v. Butz, 982 F.2d 1378, 1380 (9th Cir.1993). We previously have stated that "[t]he task of establishing the requisite prejudice for a possible due process violation is 'so heavy' that we have found only two cases since 1975 in which any circuit has upheld a due process claim." Huntley, 976 F.2d at 1290. Second, the length of the delay must be balanced against the reason for the delay to determine if "fundamental conceptions of justice" have been offended. Id.

   Ashe claims that the two-year delay led to the loss of exculpatory witness testimony. To establish a due process claim based on lost testimony or faded witness memory, a defendant "must show that the loss of testimony meaningfully has impaired his ability to defend himself" and "must demonstrate by definite and non-speculative evidence how the loss of a witness ... is prejudicial to the defendant's case." Id. Generally, lost witness testimony will not warrant a finding of a due process violation, but rather "falls solely within the ambit of the statute of limitations." Id. Indeed, we have "questioned whether such lost testimony would ever qualify for the level of prejudice necessary to establish a due process violation...." United States v. Moran, 759 F.2d 777, 782 (9th Cir.1985), cert. denied, 474 U.S. 1102 (1986) (emphasis added) (citing United States v. Pallan, 571 F.2d 497 (9th Cir.), cert. denied, 436 U.S. 911 (1978)).

   Ashe fails to specify what was lost due to the delay, or how such loss was prejudicial to his defense. The only particular testimony that he points to was that of Betty Begona and Suzy Gushwa, both of whom told police at the time of one of the incidents that Ashe did not possess a gun. However, in order to establish a due process claim based on unavailability of witnesses, a defendant must "establish his inability to locate the witness[es]," United States v. Horowitz, 756 F.2d 1400, 1405 (9th Cir.), cert. denied, 474 U.S. 822 (1985), and demonstrate the efforts he made to locate them. United States v. Kidd, 734 F.2d 409, 413 (9th Cir.1984); United States v. Mills, 641 F.2d 785, 788 (9th Cir.), cert. denied, 454 U.S. 902 (1981). Ashe has failed to do this.

   Moreover, the testimony that both of these witnesses would have given was cumulative of the testimony of other defense witnesses, who testified that Ashe did not possess a gun on that occasion. The loss of cumulative witness testimony does not establish prejudice. Horowitz, 756 F.2d at 1405.

   Ashe also claims that the destruction by fire of the premises where the April incident occurred prevented the jury from "reconstructing the actual scene" in order to evaluate the conflicting witness testimony. However, Ashe does not show that the scene could not be reconstructed through diagrams drawn after the building was destroyed. Further, Ashe does not state with specificity what he would have gained had the structure been intact during his trial. Here again, Ashe fails to establish actual prejudice.

   The district court did not err in finding that Ashe failed to establish that he was prejudiced by the pre-indictment delay.

2. Vindictive Prosecution

   Ashe contends that the district court erred in denying his motion to dismiss for vindictive prosecution. The standard of review of a district court's denial of a motion to dismiss for prosecutorial vindictiveness is unsettled in this circuit. United States v. Garza-Juarez, 992 F.2d 896, 903 (9th Cir.1993), cert. denied, 114 S.Ct. 724 (1994). We sometimes have applied "abuse of discretion" or "clearly erroneous" standards, Guam v. Fegurgur, 800 F.2d 1470, 1472 (9th Cir.1986), cert. denied, 480 U.S. 932 (1987), and other times "de novo " review, United States v. Martinez, 785 F.2d 663, 666 (9th Cir.1986). We need not resolve the disparity here, as Ashe's claim fails under each of these standards.

   Ashe makes two separate claims that his prosecution was motivated by vindictiveness on the part of the Government. First, he argues that the original decision to prosecute him under federal as opposed to state law was motivated by a desire to punish him for filing a civil RICO case in Texas based on violations of his civil rights. This claim is without merit. Ashe raised this argument in the appeal of his first conviction on charges relating to the March, 1989 incident. We found then that Ashe offered no evidence of vindictiveness. In this appeal, Ashe again fails to make any showing to support his claim.

   Second, Ashe claims that the Government's decision to indict him on the charges relating to the April and May incidents was motivated by a desire to punish Ashe for appealing his first conviction relating to the March incident. This claim must fail as well.

   The Supreme Court has held that "the Due Process Clause prohibits the prosecution of more serious charges ... against a defendant merely because the defendant has exercised his right to appeal from a conviction." Garza-Juarez, 992 F.2d at 905 (citing Blackledge v. Perry, 417 U.S. 21, 28-29 (1974)). The analysis of such a claim proceeds in two steps. First, a defendant must raise a presumption of vindictiveness by making an "initial showing that charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness." Id. at 907 (quoting United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir.1982)). Once this presumption is raised, the burden shifts to the prosecution to show that the superseding charges "did not stem from a vindictive motive, or [were] justified by independent reasons or intervening circumstances that dispel the appearance of vindictiveness." Id. at 906 (quoting Gallegos-Curiel, 681 F.2d at 1168).

   Ashe failed to make an initial showing that the charges on the second and third counts were brought in retaliation for Ashe's appealing his first conviction. The incidents that formed the basis for Counts Two and Three occurred at separate times from the conduct charged in the first indictment; the three counts related to Ashe's possession of three separate guns on three separate occasions. The fact that the additional counts arose out of separate, independently chargeable incidents suggests the absence of prosecutorial vindictiveness. See United States v. Robison, 644 F.2d 1270, 1272 (9th Cir.1981) ("In almost every case in which courts have condemned prosecutions as vindictive, the defendant ... had been confronted with a more serious or an additional charge arising out of the same nucleus of operative facts as the original charge.") (emphasis added). See also Adamson v. Ricketts, 865 F.2d 1011, 1017-18 (9th Cir.1988) (en banc ) (presumption of vindictiveness raised when, inter alia, the additional charges are based on the same conduct as the initial indictment), cert. denied, 497 U.S. 1031 (1990); Martinez, 785 F.2d at...