U.S. v. Baumgarten

• Decision Date: 23 May 1975
• Docket Number: 74-1507,74-1494,Nos. 74-1493,s. 74-1493
• Citation: 517 F.2d 1020
• Parties: UNITED STATES of America, Appellee, v. Martin L. BAUMGARTEN, Appellant. UNITED STATES of America, Appellee, v. Randolph E. GOULD, Appellant. UNITED STATES of America, Appellee, v. Richard L. STANLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1020

517 F.2d 1020

UNITED STATES of America, Appellee, v. Martin L. BAUMGARTEN, Appellant.

UNITED STATES of America, Appellee, v. Randolph E. GOULD, Appellant.

UNITED STATES of America, Appellee, v. Richard L. STANLEY, Appellant.

Nos. 74-1493, 74-1494, 74-1507.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1975.

Decided May 1, 1975.

Rehearings and Rehearings En Banc Denied May 23, 1975.

Robert G. Duncan, Kansas City, Mo. and Ronald J. Clark, Chicago, Ill., for appellants.

Robert Schneider, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

These combined appeals are taken from the convictions ¹ of appellants Baumgarten, Gould and Stanley for conspiracy and related substantive offenses arising out of a series of bombings in the Kansas City area in the spring and early summer of 1970. Essentially, appellants contend that they were denied a speedy trial in violation of their Fifth and Sixth Amendment rights, that the trial court erred in admitting into evidence a letter sent by appellant Gould to a key government witness while that witness was in jail, and that the court erred in admitting into evidence prejudicial testimony and exhibits which went beyond the scope of the indictment. In addition, appellant Baumgarten claims that his conviction on each of three counts was not supported by the record and that the court should have granted his motion for a judgment of acquittal. We affirm.

The facts of the case that pertain to the alleged conspiracy and the related charges are significant only with regard to Baumgarten's claim that his convictions were not supported by the record. Accordingly, a recitation of those facts will be reserved until that issue is discussed. However, in order to evaluate appellants' contention that they were denied a speedy trial, a detailed survey of the procedural history of this case must be set forth.

I.

In July of 1971 appellants (plus Kenneth Sandusky, who was subsequently exonerated of all charges by means of a directed verdict of acquittal) were named in a six-count indictment handed down by a grand jury in the Western District of Missouri. The first count charged all appellants with conspiring with Arnold A. Stead (not here named as a defendant), ² in violation of 18 U.S.C. § 371, to make destructive devices without paying the tax required by 26 U.S.C. § 5861(f) (1970). The conspiracy count also alleged the transportation of explosives and destructive devices in interstate commerce and the possession of unregistered firearms. This was the only count in which appellant Gould was named. Counts II through VI charged the other appellants, in a variety of combinations with each other and Sandusky, with aiding and abetting Arnold Stead in the making of illegal pipe bombs on five occasions between April 4 and June 29, 1970. Appellants were arraigned on these charges on July 28, 1971 and pled not guilty.

Defense counsel filed a variety of written motions but no requests for a speedy trial in the seven-month period following the arraignment. A hearing on these motions was held on January 11 and 12, 1972. During those proceedings, Gould's attorney requested that the case be set for trial on or after February 28 because of his other commitments. On January 18 the court ordered that the final pretrial conference be held on February 29 with the trial commencing the following day.

On February 24 the government filed a motion for a continuance based upon the fact that Arnold Stead, the key witness for the government, had declared his intention to refuse to testify at the scheduled trial. The motion was granted by the court ex parte. Four days later the government filed a motion to compel Stead's testimony. At the February 29 pretrial conference, counsel for the appellants objected to the continuance. The next day a hearing was held on the motion to compel. The court informed counsel that he would not rule on the motion until Stead had been called, sworn, and had refused to testify. On March 21 appellant Gould moved for an immediate setting of the trial or the dismissal of the case on speedy trial grounds. Two days later this motion was joined by co-defendant Sandusky.

At this point in the proceedings, the focus of the case shifted to Arnold Stead, the maker of the bombs and the chief witness for the prosecution. In late February of 1972, Stead decided, with advice of counsel, to seek suppression of his earlier statements to federal agents on the grounds that he had been coerced. These statements formed the basis of the charges brought against appellants. The legal battle which Stead waged in seeking suppression was not finally lost until August 1972 when this court in an unpublished order dismissed Stead's appeal from the district court's denial of his motion to suppress.

During this same time period, state criminal charges based on the bombings were brought against Stead in two Kansas counties. In early September 1972 Stead, on advice of counsel, changed his mind and decided to testify for the state and for the United States. ³ Between September and March of 1973 he testified in five state criminal proceedings involving either Gould, Stanley, or Sandusky.

In November 1972 the government was informed of Stead's decision to cooperate and withdrew its motion to compel his testimony. On March 2, 1973, all three appellants filed motions to dismiss the indictment on speedy trial grounds. Those motions were discussed with the court at a conference on March 5, at which time the government announced its immediate readiness for trial. Defense counsel responded by reasserting their speedy trial claim but informed the court that other commitments necessitated that the trial not be set until early April. Subsequently, an evidentiary hearing was held on March 9 regarding the speedy trial motions and other defense motions. The trial commenced on April 16, 1973 and lasted 16 days.

In contending that they were denied a speedy trial, appellants emphasize the length of the delay between the indictment and trial and the fact that the intervening death of a potential alibi witness in December of 1972 severely prejudiced their defense. Appellants contend that these two factors, plus the fact that the delay was solely for the benefit of the government, require that the case be dismissed in compliance with the standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We disagree.

In Barker the Supreme Court recognized that "a defendant's constitutional right to a speedy trial can only be determined on an ad hoc balancing basis." Thomas v. United States, 501 F.2d 1169, 1171 (8th Cir. 1974). See also United States v. Cummings, 507 F.2d 324, 330 (8th Cir. 1974); Wallace v. Kern, 499 F.2d 1345, 1349-50 (2d Cir. 1974). Only after consideration of such factors as the length of the delay, the reason for the delay, the defendants' prompt assertion of their speedy trial right, and the prejudice to the defendants caused by the delay can a valid assessment of appellants' claim be made. Barker v. Wingo, supra, 407 U.S. at 531-34, 92 S.Ct. 2182. See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).

The first factor, the length of the delay, is primarily relevant as a "triggering mechanism" which prompts consideration of the other balancing factors. Barker v. Wingo, supra, 407 U.S. at 530-31, 92 S.Ct. 2182. In a "serious, complex conspiracy" case such as this, as opposed to an "ordinary street crime," a longer delay can be tolerated prior to a finding that the delay was "presumptively prejudicial." Id. at 530, 92 S.Ct. 2182. Nonetheless, in the instant case we find, as the government conceded in its brief, that the 21-month period between the indictment and the trial was sufficient to warrant further inquiry. However, our application of the other Barker factors convinces us that appellants did not suffer prejudice by virtue of this delay and thus, on balance, were not deprived of the right to a speedy trial.

With respect to the reason for the delay, appellants contend that because the delay was solely for the purpose of obtaining the testimony of Arnold Stead as a prosecution witness, this factor should be weighed heavily against the government. See Barker v. Wingo, supra at 531, 92 S.Ct. 2182. Cf. United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Arrant v. Wainwright, 468 F.2d 677, 681 (5th Cir. 1972), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973); United States v. Golden, 436 F.2d 941, 945-46 (8th Cir.) cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971).

However, we agree with the government's contention that its efforts to procure Stead's cooperation constituted a valid reason which, under Barker, " should serve to justify appropriate delay." 407 U.S. at 531, 92 S.Ct. at 2192. Stead's refusal to testify on the eve of trial after months of preparation can be likened to situations in which courts have found some period of delay justified when caused by a missing witness, United States v. Anderson, 471 F.2d 201 (5th Cir. 1973), or by a physically incapacitated witness, United States v. Robinson, 145 U.S.App.D.C. 46, 447 F.2d 1215, 1219-20 (1971). This was not a last-minute change in the testimony of a key witness. Arrant v. Wainwright, 468 F.2d 677, 680 (5th Cir. 1972), cert. denied, 410 U.S. 947, 93 S.Ct. 1369, 35 L.Ed.2d 613 (1973). Stead consistently maintained that his statements to various government agents and the grand jury were truthful.

Under the particular circumstances of this case, we conclude that the delay of approximately nine months, beginning with Stead's refusal to testify in February and the communication to the government of his decision to testify in November, was justifiable and should not be weighed to the government's disadvantage. Of the remaining 12 months...