601 F.2d 1051 (9th Cir. 1979), 78-3340, United States v. Walker

Docket Nº:78-3340.
Citation:601 F.2d 1051
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Joann WALKER, Jeanette Adel Davis, Defendants-Appellees.
Case Date:August 01, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1051

601 F.2d 1051 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellant,


Joann WALKER, Jeanette Adel Davis, Defendants-Appellees.

No. 78-3340.

United States Court of Appeals, Ninth Circuit

August 1, 1979

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[Copyrighted Material Omitted]

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Richard R. Romero, Asst. U. S. Atty. (argued), Los Angeles, Cal., for the U. S.

Stephen J. Hillman (argued), Morton H. Boren (argued), Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before SNEED and HUG, Circuit Judges, and ENRIGHT [*], District Judge.

HUG, Circuit Judge:

The central issue in this case is whether the 13-month delay between the commission of the offense charged and the return of the indictment constituted a violation of the due process rights of the accused.

On June 8, 1978, the federal grand jury for the Central District of California returned a one-count indictment against appellees Joann Walker and Jeanette Adel Davis. The indictment charged that on May 16, 1977, Walker set fire to the Cedars Dormitory at the Federal Correctional Institution, Terminal Island, and that Davis aided and abetted Walker, all in violation of 18 U.S.C. §§ 2 and 81. Walker and Davis were inmates at the institution at the time of the fire. Appellees filed a motion to dismiss, alleging that their due process rights had been violated by the 13-month pre-indictment delay. The district court granted the motion for dismissal and denied the Government's motion for reconsideration. We hold that the 13-month delay was a justifiable investigative delay and did not substantially prejudice the defendants and we therefore reverse.



On May 16, 1977, a fire broke out shortly before midnight in the Cedars Dormitory which housed 80 women at the Federal Correction Institute, Terminal Island, California. The FBI concluded its investigation and filed its report with the United States Attorney's Office on July 13, 1977. The investigation included the interview of over 60 inmates and numerous staff personnel. The FBI report revealed strong evidence of arson, but conflicting accounts as to the persons responsible. The black inmates and the white inmates appeared to be at odds and some of each group blamed the fire on members of the other group. Two white inmates, Jane Meisner and Katherine Simpson, stated that shortly before the fire, they saw the defendant Joann Walker, a black inmate, kneeling in front of a storage closet in the dormitory and that there was a glow coming from the closet. They further stated that defendant Jeanette Davis, also a black inmate, was standing next to Walker, acting as lookout. On the other hand, certain of the black inmates (and Diane Youngblood, a white inmate who associated with the black group) accused a group of white inmates, whom they called the

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"White Nazis", of setting the fire. The FBI report revealed that Youngblood stated in her interviews on May 20 and May 27, 1977 that she saw one of the white inmates, Joan Lopez, just before the fire, walk down the hall with a bottle of paint thinner toward the area where the fire broke out. She said she heard Lopez later, in the company of Meisner and Simpson, make remarks indicating that the blacks would be blamed for the fire.

Youngblood escaped sometime in June of 1977 and was a fugitive until December of 1977. She was interviewed again on December 15, 1977, shortly after her capture. In that interview, she revealed for the first time that the defendant Davis had confided to her that she had acted as Walker's lookout when the fire was set.

On January 6, 1978, the case was assigned to an Assistant United States Attorney. On May 4, 1978, the matter was presented to the grand jury. At that time, after the testimony of eight inmate witnesses before the grand jury, the Assistant United States Attorney decided to seek an indictment against Walker and Davis, but not against Lopez. A second grand jury was scheduled for June 8, 1978, to allow Walker and Davis to testify. Walker declined and Davis did not respond. On June 8, 1978, the grand jury heard the further testimony and then returned an indictment against Walker and Davis. There was a total period of approximately 13 months between the fire and the return of the indictment.

The statute of limitations on this charge of arson is five years, 18 U.S.C. § 3282. The indictment was thus returned well within the statutory limit. The defendants, however, moved to dismiss the indictment on the grounds that the 13-month pre-indictment delay violated the Due Process Clause. The trial court granted the motion, stating that the pre-indictment delay was "unreasonable, unusual and unnecessary". The trial court noted that the FBI investigation was completed in July of 1977 and that the six-month delay in assigning the case to an Assistant United States Attorney in January of 1978, and the subsequent delay in submitting the matter to the grand jury in May of 1978, was "unexcused and unjustified". The trial court rejected a proposed finding that the delay was purposefully intended to secure a tactical advantage for the Government, but found negligence or lack of diligence in failing to proceed as rapidly as the trial court deemed appropriate.

The trial court further found that the defendants had been prejudiced in three ways. First, in October of 1977, most of the percipient witnesses were transferred to other federal institutions; and subsequent to that date, many of them were released from federal custody, which hampered the investigation by the defendants. Secondly, Diane Youngblood, who had previously escaped from federal custody and was a fugitive from June, 1977 to December, 1977, again escaped in June of 1978 and was a fugitive at the time the trial judge entered his order. The judge stated that she could have testified favorably on behalf of the defendants, could have possibly implicated another person as the one responsible for the fire, and could have possibly impeached a Government witness. Thirdly, the trial court cites as prejudicial to the defense the fact that the dormitory structure had been rebuilt without preserving any evidence from the area where the fire supposedly began.



A. Augmentation of Record.

Preliminarily, we dispose of a procedural question. The Government seeks to enlarge the record on appeal, citing Rule 10(e) of Fed.R.App.P. to show that Diane Youngblood has been returned to custody and is now available to the appellees. Rule 10(e) cannot be used to add to or enlarge the record on appeal to include material which was not before the district court. McKinney v. Boyle, 404 F.2d 632, 633 (9th Cir. 1968), Cert. denied 394 U.S. 992, 89 S.Ct. 1481, 22 L.Ed.2d 767 (1969); Borden, Inc. v. FTC, 495 F.2d 785, 787-88 (7th Cir. 1974);

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United States ex rel. Mulvaney v. Rush,487 F.2d 684, 687 (3d Cir. 1973); 16 Fed.Prac. and Proc. § 3956, p. 387 (1977). Therefore, inasmuch as the affidavits were not part of the evidence presented to the district court, the Government cannot now add these documents to the record on appeal. We are here concerned only with the record before the trial judge when his decision was made.

B. Pre-Indictment Delay.

As the Supreme Court has recently noted, the statute of limitations provides the primary guarantee against the bringing of stale charges. However, the statute of limitations does not define the full scope of a defendant's rights to have charges promptly brought. The Due Process Clause has a limited role to play in protecting against oppressive delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

In describing the limited role of the Due Process Clause in this area, the Court stated:

(P)roof of prejudice is generally a necessary but not sufficient element of a due process claim, and . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.

. . . (T)he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Judges are not free, in defining "due process," to impose on law enforcement officials our "personal and private notions" of fairness and to "disregard the limits that bind judges in their judicial function." Rochin v. California, 342 U.S. 165, 170, (72 S.Ct. 205, 209, 96 L.Ed. 183) (1952). Our task is more circumscribed. We are to determine only whether the action complained of here, compelling respondent to stand trial after the Government delayed indictment to investigate further violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions," Mooney v. Holohan, 294 U.S. 103, 112, (55 S.Ct. 340, 342, 79 L.Ed. 791) (1935), and which define "the community's sense of fair play and decency," Rochin v. California, supra, 342 U.S. at 173, (72 S.Ct. at 210.) . . . .

Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049.

The Court in Lovasco thoroughly examined the policy for not requiring, as a constitutional mandate, that the prosecutor bring charges as soon as probable cause has been established. The Court further rejected the argument that the Government is constitutionally required to file charges promptly, once it has assembled sufficient evidence to prove guilt beyond a reasonable doubt. Id. at 791-792, 97 S.Ct. 2044.

Several reasons were identified by the Court for...

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