421 F.2d 207 (9th Cir. 1970), 22978, Chisum v. United States

Docket Nº:22978.
Citation:421 F.2d 207
Party Name:Tony CHISUM, Jr., Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 14, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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421 F.2d 207 (9th Cir. 1970)

Tony CHISUM, Jr., Appellant,

v.

UNITED STATES of America, Appellee.

No. 22978.

United States Court of Appeals, Ninth Circuit.

January 14, 1970

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[Copyrighted Material Omitted]

Page 209

Luke McKissack (argued), of McKissack & Saltzman, Hollywood, Cal., for appellant.

Alan H. Friedman (argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, KOELSCH and KILKENNY, Circuit Judges.

KOELSCH, Circuit Judge.

Tony Chisum, Jr. appeals from his conviction on all ten counts of an indictment charging him with violations of the narcotics and tax laws. (21 U.S.C. § 174 and 26 U.S.C. §§ 4705(a)).

His principal contentions are that he was denied a speedy trial guaranteed by the Sixth Amendment to the Constitution and a fair trial afforded by the due process clause of the Fifth.

The charges were rested upon a series of four separate transactions in each of which Chisum supplied heroin to an undercover narcotics agent. The first transaction took place on May 11, and the last on May 26, 1966. Chisum was indicted on January 11, 1967 and tried the following September.

We reject Chisum's Sixth Amendment contention. The burden was upon Chisum not only to assert the right in the trial court but to offer at least a plausible claim of prejudice or oppression by virtue of the delay. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). He did, on two occasions prior to trial, move to dismiss the action. However, in support of these motions, he did not assert or suggest that the defense might be impaired because of a dimming of his memory or an inability to secure witnesses or an unduly long incarceration; neither did he urge any circumstances tending to indicate an evil purpose on the part of the prosecution. 1 Rather, he relied, so far as the record reveals, solely on the fact that several months had passed since the indictment without a trial being held.

We are aware that prejudice may be presumed if the accused is not brought to trial within a reasonable length of time after being charged with a criminal offense. But we do not regard an interval of six months, standing alone, as so unreasonable as to require dismissal of the charge. 2 See Ewell v. United States, supra. Moreover, Chisum was responsible for four trial postponements. The docket sheet reveals that the case was set for trial eight times; that three of the settings were vacated on Chisum's motion and the fourth because of illness of his counsel; in addition, it appears that on April 19, 1967, he formally waived a speedy trial.

Chisum's denial of due process contention is rested upon the failure of the government to make available the informer

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who introduced the undercover agent to the defendant. 3 When cross-examining a government witness, defendant first learned that the informer had disappeared. He did not then, or during the further proceedings in the district court, move to dismiss the action but he did make it clear that he would have called the informer as a witness. 4

In the recent case of United States v. Walton, 411 F.2d 283 (9th Cir. 1969), this court explained that the question of fair trial in missing witness situations is 'cast' by the fact that the absentee is a government informant coupled with a delay in making an arrest, and that the 'controlling consideration' is 'whether there is a reasonable possibility that, if (the absentee) had been available to testify, defendant would not have been convicted.' We are satisfied that here the answer is 'no.'

Chisum states in brief that the offer of proof made in the trial court shows 'how he hoped to utilize the testimony of the informant, Craig...

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