Thomas v. U.S.

• Decision Date: 28 August 1974
• Docket Number: No. 73-1883,73-1883
• Parties: Joseph David THOMAS, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1169

501 F.2d 1169

Joseph David THOMAS, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 73-1883.

United States Court of Appeals, Eighth Circuit.

Submitted June 11, 1974.

Decided Aug. 28, 1974.

George J. Parnham, Houston, Tex., for appellant.

Daniel E. Wherry, Asst. U.S. Atty., Omaha, Neb., for appellee.

Before BRIGHT, STEPHENSON, and WEBSTER, Circuit Judges.

BRIGHT, Circuit Judge.

Joseph David Thomas, Jr. appeals from his conviction for possessing heroin with intent to distribute in violation of 21 U.S.C. 841(a)(1). He presents the following arguments: (1) the trial judge ¹ erred in refusing to grant a motion to dismiss on the grounds that Thomas was denied his due process rights to a speedy trial under the fifth and sixth amendments; (2) the trial court erroneously denied a motion to suppress the heroin seized from Thomas; and (3) the trial court committed error in admitting evidence related to Thomas' general character and reputation. We reject these contentions and affirm the judgment of conviction.

The facts disclose that at about 9:00 P.M. on November 15, 1972, federal law enforcement officers supported by local police raided a drinking and gambling establishment in Omaha, Nebraska, known as the 'Crap House.' The purpose of the raid was to search the premises for narcotics under the authority of a 'no-knock' search warrant issued by the late United States District Judge Richard Dier. Further, the officers intended to arrest any persons found on the premises against whom arrest warrants had been issued. Thomas was one of these individuals, having been previously indicted on a narcotics charge separate from this present prosecution. Law enforcement officers discovered Thomas playing cards in a room on the premises. He was arrested and searched. Arresting Officer Gary Boan of the Omaha Police Department found and seized three tinfoil packages from Thomas containing heroin. The next day a formal complaint was filed against Thomas charging him with possession of heroin with intent to distribute. Although Thomas requested a preliminary hearing, no such hearing was held since the complaint was dismissed on November 28, 1972. The same charge was later reinstated by a Grand Jury indictment returned on February 25, 1973.

On November 21, 1972, six days after Thomas' arrest, a woman named Sue Ronhovde gave a statement to Thomas' attorney claiming that the arresting officer, Boan, had stated to her prior to Thomas' arrest that he was planning to plant heroin on Thomas, and that he further stated, after the arrest, that he had in fact planted heroin on Thomas. Ms. Ronhovde recanted the next day and signed a second statement admitting that the previous statement was false. Ms. Ronhovde made this second statement to a federal agent in the presence of her own attorney.

Thomas' trial did not commence until September 6, 1973. Pending trial he had been released on bail until later convicted and incarcerated on a state charge on or about June 15, 1973.

We now turn to his contentions of error asserted on appeal.

I. Right to a Speedy Trial.

Thomas' first assertion that he had been denied his due process right to a speedy trial focuses upon the nature and effect of the delay rather than its length. He claims that the Government's initial dismissal served to deprive him of a preliminary hearing and thus denied him the opportunity to obtain the testimony of Ms. Ronhovde under oath. After the Government indicted him three months later, he claims that he could not adequately defend himself since Ms. Ronhovde's testimony was unavailable because she had disappeared. We disagree.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court observed that a defendant's constitutional right to a speedy trial can only be determined on an ad hoc balancing basis. Such factors as the length of the delay, the reason for the delay, the defendant's prompt assertion of his right to a speedy trial, and prejudice to the defendant are to be weighed by the court. In Barker, the Court ruled that even though the defendant was not brought to trial for murder until more than five years after he had been arrested, during which time the prosecution obtained numerous continuances, he was not denied his right to a speedy trial. The Court determined that this lengthy delay was counterbalanced by a lack of prejudice to the defendant, the fact that the defendant was free on bail for most of the time, and by the absence of any demand for a speedy trial. Here, the time between arrest and trial amounted to ten months. The Grand Jury which next convened following the arrest returned the indictment. The Government asked for no continuances and the defendant did not seek a speedier resolution of the prosecution. Additionally, the defendant posted bond on this charge although he was subsequently incarcerated on an unrelated state charge.

The appellant, however, stresses the alleged prejudice flowing from the dismissal of the criminal complaint and the consequent loss of the opportunity to obtain Ms. Ronhovde's testimony at a preliminary hearing which he had demanded. This contention rests on unstable grounds for we have held that the defendant has no absolute right to the benefits of a preliminary hearing for the underlying purpose of such a hearing may be supplanted by a dismissal of the complaint, McDonnell v. United States, 457 F.2d 1049, 1051 (8th Cir. 1972), or a later Grand Jury indictment, Spinelli v. United States, 382 F.2d 871, 887 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Moreover, appellant's claim that he was prejudiced by the absence of Ms. Ronhovde seems highly speculative. We have examined Ms. Ronhavde's conflicting written statements. We think it unlikely that her testimony could have helped Thomas' defense. In her second (recanting) statement, she accused the defendant of 'coaching' her to give a false statement to Thomas' attorney. If she were available at the trial and testified favorably for Thomas, the prosecution could cross-examine her on the recanting statements with devastating adverse effects to the defense. A missing witness whose testimony cannot help a defendant constitutes a flimsy basis on which to claim prejudice. See McDonnell, supra, 457 F.2d at 1051.

Accordingly, we hold this record demonstrates no error by the trial court in its rejection of the dismissal motions for alleged delay in the trial.

II. Search and Seizure.

The record shows that Omaha police possessed an arrest warrant for Thomas at the time of the raid but that police did not enter the premises of the 'Crap House' under authority of that warrant. Appellant, therefore, argues that since Thomas was arrested and searched within the 'Crap House,' any evidence seized from him must be suppressed unless the raiding policemen possessed lawful authority to enter the premises in question. Assuming, but not deciding, the validity of this contention, we have examined and find valid the authority granted to the police to make a no-knock...