U.S. v. Edwards

• Citation: 577 F.2d 883
• Decision Date: 01 August 1978
• Docket Number: No. 76-1668,76-1668
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin Leon EDWARDS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 883

577 F.2d 883

UNITED STATES of America, Plaintiff-Appellee, v. Alvin Leon EDWARDS, Defendant-Appellant.

No. 76-1668.

United States Court of Appeals Fifth Circuit.

Aug. 1, 1978.

H. Gilman Hudnall, Jr. (Court-appointed), Atlanta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., William F. Bartee, Jr., Dorothy T. Beasley, Asst. U. S. Attys., Atlanta, Ga., Victor D. Stone, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, SIMPSON, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.

BY THE COURT:

The defendant Edwards was convicted in a jury trial of possessing stolen mail with knowledge that the mail was stolen in violation of 18 U.S.C. § 1708. On appeal, the defendant contends that he was deprived of the right to a speedy trial, that the trial court erred in allowing the admission of hearsay testimony at a pre-trial hearing on a motion to dismiss the indictment, and that the court committed error in denying his motion to suppress evidence obtained in a search of his automobile shortly after his arrest. The government, in turn, challenges the defendant's standing to contest the constitutionality of the search, and, in any event, seeks to uphold the search and seizure alternatively as incident to a lawful arrest, based upon probable cause, and within the scope of a valid inventory search. We conclude that the defendant was not deprived of his right to a speedy trial, nor did the trial court commit reversible error in admitting hearsay testimony at the pre-trial hearing. We also conclude that the search of the automobile was a valid inventory search, and we therefore need not reach the other two issues. Accordingly, the panel opinion found at 554 F.2d 1331 is vacated. We find no error and affirm the rulings of the trial court.

I. SPEEDY TRIAL

The defendant was charged with the offense on May 2, 1974, and was bound over for trial after a preliminary hearing held on May 10, 1974. An indictment was not returned until June 3, 1975, and, after entering a plea of not guilty, the defendant was convicted on January 20, 1976. The defendant contends that the thirteen month post-arrest, pre-indictment delay constituted a denial of the right to a speedy trial in violation of the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure. ¹ It is important to note that the period between arrest and trial was approximately twenty-one months in duration.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court held that in determining whether a defendant has been denied the right to a seedy trial as a result of post-indictment delay, the Court must utilize a balancing test, weighing the conduct of the prosecution with that of the defendant. The Court should consider such factors as the length of delay, the reason for delay, whether the defendant asserted his right to a speedy trial, and whether the defendant has suffered prejudice as a result of the delay. These factors, although expressly set forth in Barker, are not necessarily to be considered as exclusive.

It is settled in this Circuit that the test enunciated in Barker is also to be applied in determining whether a period of post-arrest, pre-indictment delay has deprived the defendant of his right to a speedy trial. United States v. Palmer, 537 F.2d 1287 (5th Cir. 1976); See also United States v. Garza, 547 F.2d 1234 (5th Cir. 1977). Hence, the Barker test will be applied to the entire period between arrest and trial, approximately 21 months in duration. ²

The first prong of Barker, the length of delay, is merely a threshold "triggering mechanism." ³ The Court need not inquire into the other factors unless there has been a delay of such length as to be " presumptively prejudicial." ⁴ The question of presumptive prejudice is to be determined according to the facts and circumstances surrounding each particular case. In the case at bar, considering the lack of complexity of the factual and legal issues, the twenty-one month period between arrest and trial provides a sufficient springboard for inquiry into the other factors. ⁵ The twenty-one month delay, however, is not sufficient in itself to warrant a finding that the defendant has been denied the right to a speedy trial. See United States v. Garza, supra; United States v. Palmer, supra.

The record is unclear as to the reason for the delay in this case. ⁶ The government contends in its brief that the delay was occasioned by the inability to locate one Betty Davis, a potential defendant in the case. No indication is made, however, as to why the inability to locate a potential defendant delayed grand jury proceedings as to the defendant, Edwards. It may be that the government was seeking to construct a more airtight case against Edwards with the assistance of the testimony of Davis, or that the government was seeking to exercise judicial economy and protect the interests of the defendant by delaying indictment. See United States v. Lovasco, 431 U.S. 783, 792-93, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977), we recognized that locating a missing witness or accumulating the evidence necessary to build a prima facie case against the accused may justify appropriate delay. The record does not in any way support an inference that the delay was a deliberate attempt to gain a tactical advantage or to hamper the accused, condemned in Barker. ⁷ On the other hand, the government does not allege that any significant part of the delay was attributable to acts of the defendant. Even assuming that some delay was permissible, it would be difficult to justify a twenty-one month delay on the facts of this case. This factor must accordingly be weighed against the government in the balancing process.

The third factor expressly set forth in Barker, assertion of the right to a speedy trial by the defendant, is particularly troublesome. On the one hand, the court in Barker stated that "A defendant has no duty to bring himself to trial . . ." 407 U.S. at 527, 92 S.Ct. at 2190. Conversely, in the same opinion, the Supreme Court emphasized that "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532, 92 S.Ct. at 2193. Regardless of the apparent incongruity, assertion of the right is a factor which we must consider. In the case at bar, the defendant first asserted his right to a speedy trial more than thirteen months after his arrest, when he filed a motion to dismiss the indictment. It is plausible that the alleged difficulty encountered by the defendant in locating witnesses may have contributed to his reluctance to assert his speedy trial right. In any event, it is clear from the record that the defendant did not vigorously assert the right prior to return of the indictment. Such assertions, if present, would have weighed heavily against the government. The defendant's pre-indictment silence is a factor which should be weighed in favor of the government. See United States v. Garza, 547 F.2d 1234 (5th Cir. 1977).

The record simply does not support a finding that the defendant suffered prejudice as a result of the delay. ⁸ The defendant contends that his trial defense was prejudiced by the delay in that he and other witnesses suffered a loss of memory as to significant details, that he was unable to locate alibi witnesses, and that a key witness, the defendant's half-brother, died approximately one month prior to commencement of the trial. ⁹

Although faded memory may result in prejudice, we have held that in order to prejudice the defense to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue. United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976); cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). Vague assertions of faded memory will not suffice. We have carefully reviewed the instances of lapsed memory appearing in the record as cited to us by the defendant, and we conclude that none of the lapses substantially relate to a material issue. In fact, many, if not all, of the examples of faded memory appearing in the record are totally inconsequential.

Nor are we persuaded that the delay resulted in the unavailability of material witnesses. The defendant contends that he was unable to locate an alibi witness as a result of the delay, as well as the witnesses involved in the initial reporting of the offense. With respect to the alleged alibi witness, we fail to perceive how the defendant was prejudiced by the delay. The longer the delay, the greater the opportunity for locating the missing witness. We simply refuse to accept the contention of the defendant that even though he was arrested and formally charged with the offense in question, he had no duty to begin to locate and interview potential alibi witnesses until after he was indicted thirteen months later. The defendant's argument is belied by the fact that his attorney visited the project from whence the checks were stolen within two weeks of the defendant's arrest. ¹⁰ The same holds true for the alleged inability to locate the residents of the project involved in the reporting of the mail thefts. The delay gave the defendant more time to locate these individuals. In any event, no prejudice has been shown because the record reveals that the defendant's attorney was aware of their identity and location three months before the trial commenced and that he reasonably should have been aware of their identity well in advance of this time. ¹¹

Finally, we are unable to conclude that the death of the defendant's half-brother prior to trial prejudiced his defense. The death...