U.S. v. Birney

Decision Date09 August 1982
Docket NumberNo. 980,D,980
Citation686 F.2d 102
Parties10 Fed. R. Evid. Serv. 1547 UNITED STATES of America, Appellee, v. Carol BIRNEY, Defendant-Appellant. ocket 82-1011.
CourtU.S. Court of Appeals — Second Circuit

Paul Shechtman, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty. for the Southern District of New York, Edward J. M. Little, Walter P. Loughlin, Asst. U. S. Attys., New York City, on the brief), for appellee.

Irving P. Seidman, New York City (Lawrence H. Silverman, Seidman & Dochter, P. C., New York City, on the brief), for defendant-appellant.

Before OAKES, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge:

In 1974 Carol Birney began working as a teller at the Suffern, New York, branch of the Marine Midland Bank, N. A. That branch burned to the ground in January 1978. An audit conducted immediately thereafter revealed Birney's cash account was short by approximately $39,000. The Federal Bureau of Investigation began an enquiry and within a month a grand jury issued a subpoena for the bank's books and records. Three years then elapsed before a four-count indictment was handed down on March 20, 1981. It charged Birney with embezzlement (Count 1) in violation of 18 U.S.C. § 656 and with making false entries on her teller proof sheets in January (Count 2), August (Count 3) and October (Count 4) of 1977, in violation of 18 U.S.C. § 1005.

Based on the unavailability of many bank records, the defendant moved on June 30, 1981 to dismiss the indictment on the ground that she had been prejudiced by the three years of preindictment delay. Specifically, defendant contended that because these records were either lost or destroyed during the interim her ability to defend herself against the charges was impaired. A hearing was held before the Honorable Charles L. Brieant, United States District Court Judge for the Southern District of New York, to ascertain whether defendant had been prejudiced. Following a four-day hearing Judge Brieant concluded that the defendant had suffered substantial prejudice with respect to her ability to defend herself against the embezzlement charge because of negligence on the part of the Government in failing to retrieve and safeguard documentary evidence bearing on the issue of her guilt or innocence. The district court thereupon dismissed the embezzlement count, but denied defendant's motion to dismiss the remaining counts of the indictment.

Trial was later had on the remaining three counts before District Judge John M. Cannella, to whom the case had been reassigned. The Government's proof of defendant's guilt was premised on the theory that the defendant made the false entries in order to cover up her suspected embezzlement. As part of its evidence the Government introduced certain records which had previously been the cornerstone of the embezzlement charge. Over objection from defense counsel, Judge Cannella admitted these documents into evidence believing them relevant to prove defendant's motive for making the charged false entries. In December 1981, the jury found the defendant guilty on all three counts of making false entries. It is from this judgment of conviction that Birney appeals.

Her appeal raises several issues only two of which require extensive discussions: whether defendant suffered any prejudice occasioned by delay from the commission of the offense to the filing of the indictment and whether it was proper to introduce proof of defendant's embezzlement at her trial on a charge of making false entries, even though the charge of embezzlement had been dismissed prior to trial.

I

As to the first point, defendant urges that the district court erred because while it granted the motion to dismiss the embezzlement count it denied the same motion with respect to the false entry counts of the same indictment. Defendant maintains that the Government had enough relevant evidence in its possession to file an indictment against her at the time of the bank's compliance with the grand jury subpoena on February 10, 1978. Thereafter, as a result of either the record retention policy of the bank or a personal decision by one of its officers, various documents were destroyed or lost. Without these documents, defendant claims substantial prejudice at trial because of her inability adequately to defend herself.

It appears that defendant urges as grounds for reversal that she was denied a speedy trial and that her right to due process was violated. Defendant's constitutional arguments are devoid of substance. They amount to no more than an airy spume which has been floated on gossamer grounds. That these arguments lack merit is shown by the very cases relied on by defendant, none of which provide support for her contentions. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

In Marion the issue was whether a three-year delay between the occurrence of the criminal acts and the filing of an indictment rose to constitutional proportions mandating a dismissal of the charges. The Court held that the Sixth Amendment guarantee of a speedy trial did not apply absent an indictment, information, arrest, or holding. Until one of these events occurs, "a citizen suffers no restraints on his liberty and is not the subject of public accusation." 404 U.S. at 321, 92 S.Ct. at 464. No violation of defendant's Sixth Amendment right to a speedy trial may properly be found here.

The primary guarantee a citizen possesses against stale or long-delayed criminal charges being made against him is the legislatively enacted statute of limitations. See, United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). The purpose of a statute of limitations is explained in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 859-60, 25 L.Ed.2d 156 (1970): "Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." A statute of limitations thus serves as a definite legislative time limit to guide a prosecutor in filing an indictment.

Events predating the filing of an indictment and occurring within the limitation time-frame, however, may result in actual prejudice. In such case an accused's rights are not fully fixed by the statute of limitations and the Due Process Clause of the Fifth Amendment is considered. Proof of prejudice is a necessary element in stating a valid due process claim, though it is not sufficient by itself since the inquiry focuses not only on prejudice to the accused but also on the reasons for the claimed oppressive delay. Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048; see also United States v. Snyder, 668 F.2d 686, 689-90 (2d Cir. 1982).

With these considerations in mind we turn to the facts in this case. As noted, the grand jury subpoenaed and subsequently received assorted bank records. Two years later the Government subpoenaed and ultimately received from the Treasury Department copies of defendant's income tax returns which were believed probative of the crimes charged. During the intervening period bank records allegedly vital to Birney's defense were lost. The district court dismissed the embezzlement count upon its finding of actual prejudice to defendant and negligence by the Government in its handling of the case.

Defendant asks us on this appeal to dismiss the remaining false entry counts of the indictment for the same reasons. 1 In light of the previous disposition of count one the request seems plausible on its face; but, it is utterly lacking in foundation since the defendant has failed to demonstrate actual prejudice in light of other evidence of guilt which the Government presented.

The burden of demonstrating actual prejudice is on defendant, and the proof of prejudice must be definite and not speculative, United States v. Swacker, 628 F.2d 1250, 1254 (9th Cir. 1980). See also United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979); United States v. Hauff, 395 F.2d 555, 556-57 (7th Cir.), cert. denied, 393 U.S. 843, 89 S.Ct. 124, 21 L.Ed.2d 113 (1968). To sustain her burden of proof, the defendant must "demonstrate how (the loss of evidence) is prejudicial" to her. United States v. Mays, 549 F.2d 670, 677 (9th Cir. 1977). Without definite proof as to this essential element no due process claim has been stated. Thus, we find no merit to any claimed violation of defendant's Fifth Amendment due process rights arising from alleged preindictment delay.

II

Turning to the second point, defendant contends that the district court erroneously allowed evidence of embezzlement to be utilized at her trial. The evidence consisted of two bank audits of Birney's cash drawer, one of which showed a substantial shortage, thus pointing to the possibility of embezzlement. In support of this argument defendant claims that the evidence in question was so prejudicial that Judge Brieant felt compelled to dismiss the embezzlement count. Alternatively, she argues that since Judge Brieant ruled on the admissibility of the evidence prior to trial, its admission is precluded by the law of the case. The Government asserts that Judge Cannella acted well within his discretion as trial judge to admit the proffered evidence.

The starting point for any evidentiary question involving unfair prejudice is Federal Rule of Evidence 403, which provides, in part, that: "(a)lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." The test of relevance is a flexible one, requiring only that the proffered evidence make the existence of a fact more or less probable than it...

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