U.S. v. Bagga, 85-8442

• Citation: 782 F.2d 1541
• Decision Date: 24 February 1986
• Docket Number: No. 85-8442,85-8442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mohan Singh BAGGA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1541

782 F.2d 1541

UNITED STATES of America, Plaintiff-Appellee, v. Mohan Singh BAGGA, Defendant-Appellant.

No. 85-8442.

United States Court of Appeals, Eleventh Circuit.

Feb. 24, 1986.

Barry Hazan, Atlanta, Ga., for defendant-appellant.

William C. Bryson, Sp. Counsel, Appellate Section, U.S. Dept. of Justice, Washington, D.C., and James W. Herman, Sp. Atty., OC & R Section, Miami, Fla., for plaintiff-appellee.

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

Before JOHNSON and ANDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Bagga was indicted on July 11, 1978 on one count of making false sworn declarations before a court of the United States in violation of 18 U.S.C. Section 1623. Prior to his trial on April 10, 1985 Bagga filed a motion to dismiss the indictment on the ground that he had been denied his right to a speedy trial under the Speedy Trial Clause of the Sixth Amendment. He contended that there was an unreasonable delay by the government in notifying him of his indictment and bringing him to trial, that he was prejudiced by the delay, and that he timely asserted his right to a speedy trial. The district court found to the contrary. We agree and affirm.

On February 17, 1978 Bagga testified under oath in the case of United States v. Russell Weiss, then pending in the United States District Court for the Northern District of Georgia. Weiss had been indicted for bribery, obstruction of justice, and possession of a firearm by a convicted felon. Weiss moved to dismiss the indictment against him contending that there had been government interference with his attorney-client relationship. At the hearing on Weiss' motion to dismiss Bagga was called as a witness. He had previously talked with Special Agent Whitley of the Federal Bureau of Investigation concerning an ongoing investigation of the night club industry in Atlanta, Georgia, during which there was some discussion about Bagga recording a bugged conversation between Bagga, Weiss and Brookins, Weiss' attorney. Bagga reported this to Shafer, who also represented Weiss, and at Shafer's request a telephone conversation between Bagga and Whitley was tape recorded by Shafer on February 6, 1978. This scheme was concocted to put Whitley on the spot, and thus bolster Weiss' position on his motion to dismiss his indictment. During the telephone conversation between Bagga and Whitley, Bagga said he had set up an appointment with Weiss at 10:00 a.m. and with Brookins at 1:00 p.m. Whitley told Bagga to forget the meeting with Weiss and, if he could, reverse the appointments so that he would meet with Brookins in the morning instead of the afternoon. The tape recorded by Shafer was introduced and played before the Court at the hearing of Weiss' motion to dismiss held on February 17, 1978. Bagga's testimony at the hearing, to the effect that the FBI agent had engaged in various improprieties in their dealings with him, was the basis of the charges contained in the indictment returned against Bagga in this case.

In April 1981, the tape introduced at Weiss' hearing was destroyed at the request of the Clerk of Court with the approval of the government and Weiss' attorney Shafer. Destroyed at the same time with their approval was a sheet of paper listing the names and telephone numbers of Whitley and a Special United States attorney in the Weiss case which had been furnished to Bagga by government counsel.

On learning of his wife's illness in India, Bagga left the United States and arrived there on April 18, 1978. He was indicted in this case on July 11, 1978. He first learned of the indictment against him through his accountant in June or July, 1981. He retained a lawyer in Atlanta who advised him to complete his law studies in India and continue to attend to his business enterprises there. In June 1984 Bagga returned to the United States and went to California to live. In October 1984 he turned himself in to face the charges against him.

Prior to Bagga's trial the district court held an evidentiary hearing on his motion to dismiss the indictment. The court found that a reasonable effort had been made on the part of the government to locate and bring Bagga to trial, that he made no attempt to obtain a speedy trial, and that there was no actual substantial prejudice suffered by Bagga in violation of his constitutional right. Bagga's motion to dismiss the indictment against him was denied. He was tried and convicted.

We must engage in a difficult balancing process "on an ad hoc basis" in determining whether Bagga "has been deprived of his right", by assessing the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).

Bagga asserts that the period of time critical to this case is from the point of his indictment in July 1978 to the point he learned of the indictment in June or July 1981. We accept this period only for determining that this delay is sufficiently long to be "presumptively prejudicial" thereby "triggering" an inquiry into the other three factors, i.e. reasons for the delay, defendant's assertion of his right, and prejudice to the defendant, to determine whether Bagga has been denied his constitutional right to a speedy trial. Barker, supra, at 530, 92 S.Ct. at 2192. The government does not dispute this. Bagga does not suggest that there was any impropriety in the delay between October 1984 when he was arrested and April 1985 when his trial began. For the reasons hereinafter discussed we regard the time span between Bagga learning of his indictment in June or July 1981 until his arrest in October, 1984 as also critical to the second prong of the Barker inquiry, i.e. the assertion of his right.

While the government is not required to exhaust all conceivable avenues for locating Bagga after his indictment, it has a "constitutional duty to make a diligent, good-faith effort" to locate and apprehend a defendant and bring the defendant to trial. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed.2d 607 (1969). There is no suggestion here that there was any attempt to delay the trial of Bagga in order to hamper his defense. The government strongly argues that it made a reasonable effort to locate Bagga, while Bagga is critical of the adequacy of the government's efforts to find him after the return of the indictment. To determine whether Bagga's right to a speedy trial has been violated the conduct of the government must be weighed against the conduct of the defendant. Barker, supra, 407 U.S. at 530, 92 S.Ct. at 2192.

Bagga received a call one evening in April 1978 advising him that his wife had suffered a nervous breakdown in India. He left the next morning to go to her. After the indictment in July, 1978 the agents were at a loss to determine where he had gone. Because of his sudden departure it was surmised that he was a fugitive. The agents looked for Bagga without success at his residence on East Winding Drive in Atlanta, the address that he had given the agents at the time of his interview with them. Apparently, he had moved from there by the time he was called as a witness in the Weiss case, because he then testified that he lived on Copeland Road, Sandy Springs. This could account for the agents' failure to find or telephone Bagga's relatives at the Copeland Road Complex where Bagga testified they were living during late 1978 and early 1979.

The agents also met with no success when they looked for Bagga at a restaurant known as the Colorado Mining Company in which Bagga's wife, mother-in-law and nephew had a joint enterprise ownership interest. One of the agents spoke to employees at the restaurant who could give the agent no information of Bagga's whereabouts. The record does not disclose whether the agents spoke to any of Bagga's relatives.

Bagga complains that there was insufficient inquiry made of the passport office to find his passport which was renewed on October 18, 1978 as a means to locate him or put him on notice of the charges. He argues that there can only be an assumption that the agents discovered this information and did not...