Terlikowski v. United States

• Citation: 379 F.2d 501
• Decision Date: 31 July 1967
• Docket Number: 18668.,No. 18667,18667
• Parties: Norbert D. TERLIKOWSKI, Appellant, v. UNITED STATES of America, Appellee. James SLAWEK, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

379 F.2d 501 (1967)

Norbert D. TERLIKOWSKI, Appellant, v. UNITED STATES of America, Appellee.

James SLAWEK, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18667, 18668.

United States Court of Appeals Eighth Circuit.

June 30, 1967.

Rehearing Denied July 27, 1967.

Rehearing Denied July 31, 1967.

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Peter J. Lindberg, Minneapolis, Minn., for appellant Norbert D. Terlikowski.

Thomas G. Drake, Minneapolis, Minn., for appellant James Slawek.

Stanley H. Green, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Patrick J. Foley, U. S. Atty., Minneapolis, Minn., on the brief.

Before MATTHES, MEHAFFY and LAY, Circuit Judges.

Rehearing Denied No. 18667 July 27, 1967.

Rehearing Denied No. 18668 July 31, 1967.

MEHAFFY, Circuit Judge.

Appellants seek review of their convictions for breaking into a United States Post Office in Minneapolis, Minnesota, injuring property of the United States and conspiring to commit said offenses in violation of 18 U.S.C. §§ 2115, 1361 and 371.¹ Their sentences were imposed to run concurrently on the three counts and concurrently with sentence imposed December 28, 1964 by the State of Illinois then being served for armed robbery.

The Minneapolis Post Office was burglarized on January 18, 1964; the indictment was found on February 3, 1966; and appellants were removed from the Illinois State Prison in June of 1966 upon writs of habeas corpus ad prosequendum. They were arraigned in the District Court in June and July of 1966 and brought to trial October 26, 1966, resulting in their convictions.

Other points are urged and will be discussed, but the main thrust of appellants' argument is grounded upon their contention of deprivation of fair and impartial trials and due process in violation of the Fifth Amendment to the Constitution, denial of their Sixth Amendment rights to speedy trial, and refusal of the court to dismiss the indictment under Fed.R. Crim.P. 48(b).

Appellants' motions for dismissal of the indictment for undue delay rest on asserted loss of memory coupled with inability to obtain witnesses after an inordinate lapse of time. They do not indicate, however, what witnesses were unavailable but stress their asserted inability to recall occurrences on any particular date, such as the date of the Post Office burglary. There was a long period, approximating two years and five months, from the date of the offenses until appellants were brought to trial, but four and one-half months of this period occurred between the date of the indictment and the date of trial, and no contention is made of prejudicial delay during this period. The trial court noted that state charges growing out of the same offenses were promptly lodged against appellants and a preliminary hearing had thereon in municipal court which undoubtedly indelibly implanted in the minds of appellants their activities in Minneapolis that weekend. The District Court examined the record of the municipal court proceedings and examined in camera the testimony presented to the United States grand jury finding that the latter disclosed testimony of appellants' connection with the crimes not theretofore within the knowledge of the Government from the state preliminary hearing. This testimony linked appellants with the crime and there is nothing in the record indicating that the federal government was in the least dilatory in its investigation culminating in the indictment and prosecution, or that the delay was motivated by the Government for its own advantage or to in any fashion weaken or hamper a fair defense. During all of this time, the Government through Post Office agents and others continued its investigation resulting in production at trial of thirty-one witnesses to establish the charges. This case from the standpoint of elapsed time between the offenses and the formal indictment, the extended investigation, the numerosity of witnesses, coupled with lack of suggestion that any prejudicial delay occurred between the date of the indictment and the trial, is factually akin to Foley v. United States, 290 F.2d 562 (8th Cir. 1961). There we held it to be settled law that the Sixth Amendment has no application except from date of commencement of the criminal prosecution, and reliance on Fed.R. Crim. P. 48(b) lacks substance where there is no evidence of intentional or vexatious delay on the Government's part. We said in Foley at pages 565-566:

"The rule is firmly established that the protection afforded by the Sixth Amendment has no application until after a prosecution is instituted, and here the defendant concedes there was no delay in bringing him to trial subsequent to the time the indictment was filed. (Citations omitted.)

"Neither do we find any substance in the contention that there was unnecessary delay in presenting the charge to the grand jury within the purview of Rule 48(b). On this score the defendant\'s argument is that the rule was violated inasmuch as the criminal investigation was commenced in the early part of January, 1954, but the indictment was not returned until February 5, 1959, and that the lapse of approximately five years constituted an unusual and unnecessary delay. He points to evidence taken upon the hearing of the motion to dismiss tending to prove that the investigation was completed in 1954 and 1955, urging that the case was allowed to lie dormant, was abandoned or ensnarled in administrative proceedings thereafter.

* * * * * *

"* * * Furthermore, motions to dismiss for lack of prosecution are addressed to the sound discretion of the trial judge and under the circumstances here we find absolutely no basis for ruling that there was an abuse of discretion in denying defendant\'s motion to dismiss the indictment. (Citations omitted.)"

The above principles of law are lucidly articulated by Judge Burger in Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963), citing Foley and a number of cases from other jurisdictions as well as legal writings.² The issue was also decided adversely to appellants' contentions here in Hoopengarner v. United States, 270 F.2d 465 (6th Cir. 1959).³

It was noted in Crow v. United States, 323 F.2d 888 (8th Cir. 1963), that a prosecutor is entitled to a reasonable time to investigate an offense for the purpose of determining whether a prosecution is warranted, and also for preparation of a case for submission to the grand jury.

Our attention has been called to Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), wherein it was held a seven month period in that case was too long a time to wait between the offense and the indictment, and reversed the conviction on Fifth Amendment due process grounds. Ross was a narcotics case and the Government relied solely on the testimony of one undercover agent who testified from his notes taken contemporaneously with his purchase from the defendant. Defendant contended he could not remember anything about the particular day or the transaction with the undercover agent. There is no similarity of fact in the case at hand, and it would be completely unrealistic to apply the rule of Ross and other similar cases here.⁴

We do not intend any implication that an inordinate or prejudicial delay between an offense and prosecution could not constitute a denial of due process. Such would be the case if the Government deliberately utilized delay to strengthen its position by weakening that of the defense or otherwise impairing defendant's right to a fair trial. Fed. R. Crim.P. 48(b) specifically authorizes the trial court to dismiss an indictment if there is unnecessary delay in presenting the charge to the grand jury or in bringing a defendant to trial.⁵ In the event a trial court abuses discretion, it would be a reviewing court's duty to reverse. In the instant case, however, the information furnished the trial court at hearing justified its overruling the motions to dismiss the indictment. Our consideration of the record leads us to the conclusion that there is no merit in appellants' contentions on this issue.

Both appellants assign as error the trial court's denial of their respective motions for severance. Appellants were convicted on each of three counts of an indictment growing out of the same transaction. Terlikowski premises his argument on an erroneous assertion that the evidence of conspiracy is weak and that he was not seen with Slawek until the day after the burglary. The record evidence conclusively shows the contrary to be the fact. Terlikowski checked into the Capp Towers Motel in Minneapolis on January 17, 1964. He and some companions were heard discussing whether Slawek had yet arrived in Minneapolis. Early in the afternoon on the Saturday of the burglary, Terlikowski rented an automobile from the National Car Rental, and at five o'clock that afternoon picked up Slawek at the home of Nancy Swan. The burglary occurred at approximately ten o'clock that evening, and thereafter Slawek appeared at the Terlikowski home followed shortly by Terlikowski. The baby sitter positively identified both defendants as well as the time they arrived at the Terlikowski home, where they remained only long enough to wash and change their clothes, and departed together in a taxi. Slawek's automobile was seen parked in front of Terlikowski's home on the night of the burglary. Terlikowski and Slawek were seen together on the following Monday.

As the burglars departed from the rear of the Post Office, some young people who lived next door to the Post Office and others who were just arriving at the residence noticed the suspicious flight of some men from the rear of the Post Office in an automobile and, noting the license number, alerted the police. The police located the car abandoned a block from Terlikowski's home, accounting for Slawek's entering the Terlikowski home a few minutes before Terlikowski. The following morning Terlikowski reported to the rental agency that the car had...