U.S. v. Bartlett

Decision Date05 August 1986
Docket NumberNo. 85-5114,85-5114
Citation794 F.2d 1285
PartiesUNITED STATES of America, Appellant, v. John David BARTLETT, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Robert J. Erickson, Dept. of Justice, Washington, D.C., for appellant.

Robert C. Riter, Jr., Pierre, S.D., for appellee.

Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The United States appeals from the dismissal of an indictment returned against John David Bartlett charging him with assault with intent to commit rape in Indian country, under 18 U.S.C. Secs. 113(a), 1153 (1982). The district court dismissed the indictment on the basis of unreasonable pre-indictment delay, finding the nearly five-year delay between the date of the offense and the date of the indictment violated the due process clause. The federal indictment was returned shortly after the Supreme Court affirmed a lower court decision setting aside Bartlett's state court conviction on charges arising out of the same incident on the ground that the federal government had exclusive criminal jurisdiction over the offense. See Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), aff'g 691 F.2d 420 (8th Cir.1982), aff'g No. 82-3009 (D.S.D. Apr. 19, 1982). The government contends that it was reasonable to delay seeking an indictment until the Supreme Court had definitively resolved the question of which sovereign--the federal government or the State of South Dakota--had jurisdiction over the crime, and that Bartlett has not demonstrated any actual prejudice to his right to a fair trial by reason of the delay. Because we hold that Bartlett has not demonstrated substantial actual prejudice to his right to a fair trial, we reverse the judgment of the district court.

Bartlett, an Indian, allegedly assaulted Henrietta Janis on March 14, 1979 at the Eagle Butte Legal Services Office on the Cheyenne River Sioux Reservation in South Dakota. He was arrested and charged under state law with attempted rape. On April 24, 1979, Bartlett pleaded guilty in state court and was sentenced to ten years imprisonment. He immediately commenced serving his term in the state penitentiary.

Eagle Butte is located on a portion of the Reservation which had been opened for settlement by Congress in 1908. See Act of May 29, 1908, Pub.L. No. 60-158, 35 Stat. 460. At the time of the incident both the Federal District Court for the District of South Dakota and the South Dakota Supreme Court had held that areas of the Reservation opened to homesteading had lost their reservation status, and offenses occurring within those areas were therefore within exclusive state criminal jurisdiction. See United States v. Juvenile, 453 F.Supp. 1171 (D.S.D.1978), rev'd, United States v. Dupris, 612 F.2d 319 (8th Cir.1979); Stankey v. Waddell, 256 N.W.2d 117 (S.D.1977). Later that year, however, this court reversed the Juvenile decision in United States v. Dupris, 612 F.2d 319 (8th Cir.1979), vacated and remanded on other grounds, 446 U.S. 980, 100 S.Ct. 2959, 64 L.Ed.2d 836 (1980), and held that the federal government retained sole jurisdiction to try offenses committed by Indians on the Cheyenne River Sioux Reservation.

After exhausting his state court remedies, Bartlett filed a petition for a writ of habeas corpus in the federal district court. The sole contention raised in his petition for habeas relief was that the state lacked jurisdiction to try him because the federal government had exclusive jurisdiction over offenses occurring on the Reservation. The district court granted the writ in April, 1982, Bartlett v. Solem, No. 82-3009 (D.S.D. Apr. 19, 1982); we affirmed, Bartlett v. Solem, 691 F.2d 420 (8th Cir.1982), and our decision ultimately was affirmed by the Supreme Court on February 22, 1984, Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984).

On March 7, 1984, one week before the statute of limitations would have run, the government filed the present indictment against Bartlett in federal court. The indictment charged him with assault with intent to commit rape 1 in connection with the incident at Eagle Butte, for which Bartlett had already been incarcerated for nearly five years. 2 The district court granted Bartlett's motion to dismiss the indictment for pre-indictment delay, and ordered him released from custody. The district court held that the government's decision to delay bringing an indictment until Bartlett's habeas action had been definitively decided on appeal was not reasonable in light of the government's consistent assertion of jurisdiction over crimes on the Reservation after our decision in Dupris in 1979 and during the time Bartlett's habeas action was pending. The district court held that to the extent the government decided to await the outcome of Bartlett's habeas action against the state before seeking a new indictment, "the delay [became] an intentional device to gain tactical advantage over the accused." United States v. Bartlett, No. CR 84-30018-01, slip op. at 6 (D.S.D. Mar. 15, 1985) (quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971)). The district court found actual prejudice to Bartlett in his continued incarceration on void state charges, and in the death and disappearance of several witnesses who might have provided exculpatory evidence. Id. at 7-8.

The government argues on appeal that the district court misapplied the standards of United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), and United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), in granting Bartlett's motion.

Statutes of limitation provide the primary guarantee against prosecution of a defendant on overly stale charges. United States v. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048; United States v. Marion, 404 U.S. at 322, 92 S.Ct. at 464. Legislatures define in these statutes the appropriate balance between the governmental interest in just and effective prosecution and the defendant's interest in being protected from having to defend against charges based on events long since obscured by the passage of time. See Marion, 404 U.S. at 322-23, 92 S.Ct. at 464; United States v. Otto, 742 F.2d 104, 107 (3d Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 978, 83 L.Ed.2d 980 (1985). The Supreme Court has acknowledged, however, that the due process clause has a "limited role to play in protecting against oppressive delay." Lovasco, 431 U.S. at 789, 97 S.Ct. at 1048. Pre-indictment delay will be sufficiently "oppressive" to warrant dismissal of an indictment where the delay was unreasonable and substantially prejudicial to the defendant in the presentation of his case. Id. at 790, 97 S.Ct. at 2048; Marion, 404 U.S. at 324, 92 S.Ct. at 465. Proof of actual prejudice resulting from the delay is "generally a necessary but not sufficient condition to establish a due process violation." Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048. Proof of actual prejudice ensures that the due process claim is "concrete and ripe for adjudication," id. at 789, 97 S.Ct. at 2048. Where actual prejudice is established, the court must balance the reasons for the delay against the resulting prejudice. Id. at 796, 97 S.Ct. at 2052; United States v. Purham, 725 F.2d 450, 453 (8th Cir.1984); United States v. Barket, 530 F.2d 189, 193 (8th Cir.1976).

The defendant bears the burden of proving actual prejudice flowing from the pre-indictment delay. Lovasco, 431 U.S. at 789-90, 97 S.Ct. at 2048; United States v. Tempesta, 587 F.2d 931, 933 (8th Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979). To prove actual prejudice, a defendant must specifically identify witnesses or documents lost during delay properly attributable to the government. See Lovasco, 431 U.S. at 788-90, 97 S.Ct. at 2047-48; United States v. Dennis, 625 F.2d 782, 794 (8th Cir.1980); see also United States v. Mills, 641 F.2d 785, 788 (9th Cir.), cert. denied, 454 U.S. 902, 102 S.Ct. 409, 70 L.Ed.2d 221 (1981); United States v. Tousant, 619 F.2d 810, 814 (9th Cir.1980). Speculative or conclusory claims alleging "possible" prejudice as a result of the passage of time are insufficient. Marion, 404 U.S. at 325-26, 92 S.Ct. at 466; Purham, 725 F.2d at 453. The defendant also must relate the substance of the testimony which would be offered by the missing witnesses or the information contained in lost documents in sufficient detail to permit a court to assess accurately whether the information is material to the accused's defense. See United States v. Page, 544 F.2d 982, 985 (8th Cir.1976); United States v. Quinn, 540 F.2d 357, 361-62 (8th Cir.1976); see also Mills, 641 F.2d at 789; United States v. Mays, 549 F.2d 670, 679-80 (9th Cir.1977). Finally, the defendant must show that the missing testimony or information is not available through substitute sources. See Tempesta, 587 F.2d at 933-34; see also United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir.1981). In sum, the defendant must demonstrate that the prejudice actually impaired his ability to meaningfully present a defense. United States v. Solomon, 686 F.2d 863, 872 (11th Cir.1982); Cederquist, 641 F.2d at 1351.

The district court held that the defendant had satisfactorily demonstrated prejudice in two ways: first, by being forced "to sit imprisoned for five years on charges the United States always considered void," United States v. Bartlett, slip op. at 6; and second, by the death or disappearance of a number of witnesses. Id. at 7-8.

We do not believe that Bartlett's incarceration as a result of his guilty plea to the state charges, by itself, is actual prejudice for the purpose of the due process clause. The Supreme Court's concern in Marion and Lovasco was with due process rights to a fair trial and prejudice to the defense of the case. Lova...

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