United States v. DeTienne, 71-1744 and 71-1745.

• Decision Date: 18 September 1972
• Docket Number: No. 71-1744 and 71-1745.,71-1744 and 71-1745.
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. Carl Eugene DeTIENNE and Charles Henry Askins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

468 F.2d 151 (1972)

UNITED STATES of America, Plaintiff-Appellee. v. Carl Eugene DeTIENNE and Charles Henry Askins, Defendants-Appellants.

Nos. 71-1744 and 71-1745.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 1972.

Decided September 18, 1972.

Rehearing Denied October 31 and November 1, 1972.

Certiorari Denied January 22, 1973.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Charles J. Kolker, Edward P. Burke, E. St. Louis, Ill., for defendants-appellants.

Henry A. Schwarz, U. S. Atty., E. St. Louis, Ill., Michael L. Levinson, Asst. U. S. Atty., Danville, Ill., for plaintiff-appellee.

Before KNOCH, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges.

Rehearing En Banc Denied October 31 and November 1, 1972.

Certiorari Denied January 22, 1973. See 93 S.Ct. 974.

CUMMINGS, Circuit Judge.

On December 5, 1969, an indictment was returned against appellants and Francis Huntley, charging them with the September 25, 1968, attempted robbery of the First State Bank of Beecher City, Illinois, together with an assault with a dangerous weapon on Dorwin Barr, the bank's cashier.¹ In April 1971 Huntley pleaded guilty to the attempted bank robbery charge and shortly thereafter was sentenced to fifteen years' imprisonment. Askins pled not guilty on April 1, 1971, and DeTienne entered the same plea on May 4, 1971. Their joint jury trial commenced on July 13, 1971, and concluded two days later with a verdict of guilty as charged in the indictment. Appellants were each sentenced to fifteen years' imprisonment and have appealed from their convictions.

Sixth Amendment Right to a Speedy Trial

Both appellants urge reversal of their convictions on the ground that they were denied their right to a speedy trial guaranteed by the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure.

DeTienne was arrested in Chicago on October 3, 1968, by the Federal Bureau of Investigation pursuant to a federal Unlawful Flight to Avoid Confinement Arrest Warrant issued September 17, 1968, at the request of the State's Attorney of Rock Island County, Illinois. In March 1968 DeTienne, along with Askins, had been convicted in the Rock Island Circuit Court of theft, forgery, and conspiracy, and the State's Attorney requested the federal warrant on August 13, 1968, following DeTienne's forfeiture of his appeal bond and the consequent issuance of a state bench warrant for his arrest. Upon his October 3d arrest on the federal unlawful flight warrant, DeTienne was immediately transferred to the Rock Island jail where the state arrest warrant was served on the following day. Accordingly, five days later the federal arrest warrant was dismissed. On October 4, DeTienne and Huntley were identified in an FBI lineup at the Rock Island jail by eyewitness Dorwin Barr. The Government acknowledges that the bulk of the FBI investigation was completed by November of 1968. As noted, the indictment was returned on December 5, 1969, and ten days later federal arrest warrants based on these offenses were for the first time issued for appellants and Huntley. On December 29, 1969, a federal detainer was placed on DeTienne who was then serving a sentence at the Illinois Penitentiary at Menard, Illinois. His actual arrest occurred there on May 3, 1971, when counsel was appointed to represent him, and he was arraigned the next day.

Askins and Huntley were taken into local custody by officers of the Rock Island Police Department on October 1, 1968. Askins' arrest was pursuant to a July 3, 1968, state court bench warrant issued for violation of the probation on which he was placed following his March 1968 state conviction and pursuant to a federal warrant charging unlawful flight to avoid confinement for the probation violation. The federal warrant was requested and issued on the same respective dates as the federal warrant for DeTienne's arrest, but since Rock Island officials first obtained custody of Askins based on the underlying state charge, no return was made on the federal warrant for his arrest, and the latter was subsequently dismissed. When on October 1 Askins and Huntley were accosted by the Rock Island police, they were in possession of a 1962 blue Cadillac automobile which allegedly was driven by Askins at the time of the attempted robbery.

On September 5, 1969, before the federal attempted bank robbery indictment had been returned, Askins was released on parole from the Illinois State Penitentiary at Joliet. The FBI could not locate him thereafter until he was arrested in Fort Pierce, Florida, on January 14, 1971, on a Dyer Act charge of driving a stolen Cadillac.² Later that month, the federal arrest warrant, issued December 15, 1969, for the Beecher City bank robbery, was forwarded to the United States Marshal in Florida for service upon Askins.

Although they were not indicted until December 5, 1969, appellants would have us measure "delay" for Sixth Amendment purposes from the time of their arrests in October 1968. In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, the Supreme Court held that "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an `accused'." In that case the protection of the Amendment attached only upon the return of an indictment, but the Court made clear that the event transforming a person into an "accused" "need not await indictment, information or other formal charge." Id. at 321, 92 S.Ct. at 463. That event may occur when "actual restraints are imposed by arrest and holding to answer a criminal charge" (id. at 320, 92 S.Ct. at 463), but it does not occur until arrest. Id. at 321, 92 S.Ct. 455. However, appellants cannot invoke their speedy trial guarantee as of their October 1968 arrests. This is because those arrests were based on local arrest warrants involving other charges and federal warrants charging unlawful flight to avoid confinement for unrelated state offenses. It would be absurd in the extreme if an arrest on one charge triggered the Sixth Amendment's speedy trial protection as to prosecutions for any other chargeable offenses. Of course, if the crimes for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision's applicability as to prosecution for all the interrelated offenses. No such situation is presented in this case, and the appellants did not become "accused" for Sixth Amendment purposes on the occurrence of their unrelated October 1968 arrests.

In seeking to bring their pre-indictment delay within the reach of the Sixth Amendment's protection, appellants stress the fact that the FBI had completed the bulk of its investigation by November 1968, at which time indictments could have been sought. But it was just such a theory—measuring delay cognizable under the Sixth Amendment from the point at which the Government could have accused the putative defendant—that the Supreme Court explicitly rejected in Marion, supra at 313, 319, 321 n. 13, 92 S.Ct. 455. Consequently, it avails the appellants nothing here.

Because appellants were not arrested on the attempted bank robbery charges until after the indictments for those charges were returned, as in Marion it is the indictment's date, December 5, 1969, on which appellants became accused for the purpose of computing pretrial delay cognizable under the Sixth Amendment. Similarly appellants fare no better under Rule 48(b) of the Federal Rules of Criminal Procedure which authorizes dismissal of an indictment for unreasonable delay in presenting a charge to the grand jury because "the rule is clearly limited to post-arrest situations." United States v. Marion, supra at 319, 92 S.Ct. at 463. The pre-indictment delay herein was well within the applicable statute of limitations, which remains the primary yardstick for measuring pre-accusation delays to prevent possible prejudice. Id. at 322-323, 92 S.Ct. 455. Furthermore, appellants have not shown that the pre-indictment delay in this case caused substantial prejudice to their rights to a fair trial and that the delay was an intentional device to gain technical advantage over the accused. Therefore, the due process clause of the Fifth Amendment also does not require dismissal of the indictment. Id. at 324, 92 S.Ct. 455.

There was a nineteen-month delay between the indictment and appellants' trial. Understandably, the Government wished to try appellants together, but Askins' whereabouts were unknown at least from April 1970 until January 14, 1971, when he was found in Florida driving a stolen automobile.³ By absconding a few months after his parole from the Illinois State Penitentiary in Joliet, Askins clearly waived his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 528, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (decided June 22, 1972). Although counsel was appointed for Askins on March 30, 1971, his motion to dismiss the indictment for want of speedy trial was not filed until July 12, 1971, just the day before the case was called for trial, and apart from the dates relied upon by the counsel, neither the motion nor supporting affidavit showed any reason to grant it. For these reasons, the time lapse between his arrest in Florida in mid-January and his trial six months later cannot be considered unreasonable.

As to DeTienne, the Supreme Court has recently delineated four factors to be considered in determining whether a defendant has been deprived of his right to a speedy trial. These are length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Barker v. Wingo, supra, 92 S.Ct. 2182. With regard to the duration of the delay, a nineteen-month post-indictment delay in this type of case gives rise to a certain amount of presumed...