U.S. v. Beamon

• Decision Date: 05 March 1993
• Docket Number: 90-30228,Nos. 92-30222,s. 92-30222
• Citation: 992 F.2d 1009
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Donald BEAMON, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey John McMILLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1009

992 F.2d 1009

UNITED STATES of America, Plaintiff-Appellee, v. Walter Donald BEAMON, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey John McMILLIN, Defendant-Appellant.

Nos. 92-30222, 90-30228.

United States Court of Appeals Ninth Circuit.

Submitted March 5, 1993. ^*

Decided May 11, 1993.

Susan Elizabeth Reese, Reese & Goffredi, Portland, OR, for defendant-appellant Beamon.

Hap Wong, Portland, OR, for defendant-appellant McMillin.

Leslie K. Baker, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before TANG, POOLE, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Walter Donald Beamon and Jeffrey John McMillin appeal their convictions following guilty pleas for attempted possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846. They both argue that their convictions should be reversed because their Sixth Amendment right to a speedy trial was violated. Beamon also appeals his sentence, arguing that the district court erred in denying him a downward departure for aberrant behavior. We must decide whether a delay between indictment and arrest of 17 months in Beamon's case or 20 months in McMillin's case violates the Sixth Amendment ¹ right to a speedy trial under Doggett v. United States, --- U.S. ----, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). We have jurisdiction under 28 U.S.C. § 1291, and we affirm both convictions and Beamon's sentence.

I

In early 1990, Beamon and McMillin arranged to purchase cocaine from William Lee Caron. Caron, acting as a "middleman," arranged a meeting with Beamon, McMillin and a cocaine supplier, who in fact was an undercover Immigration and Naturalization Service agent working with Portland Police. The meeting took place on March 30, 1990, during which McMillin was to purchase one kilogram of cocaine, and Beamon one half kilogram. Instead, Beamon, McMillin, and Caron were arrested by the INS agent and Portland police officers on suspicion of state law drug violations.

Because of the amount of drugs involved, the Portland Police Department requested federal prosecution. ² A federal indictment was returned on May 8, 1990. Beamon, however, was not arrested until October 16, 1991, over 17 months after the indictment. McMillin surrendered on January 8, 1992, 20 months after the indictment.

Portland Police Officer William Gray testified that during the 17 months between Beamon's indictment and arrest, he spent several nights trying to locate Beamon, including driving by and watching Beamon's house, which Gray said looked vacant. At one point, Gray knocked on Beamon's door, but Beamon's wife said he was at work. Gray left a message with Beamon's wife, but did not mention that there was a warrant out for his arrest. In June 1990, Gray suspended efforts to locate Beamon, apparently under the impression that United States Marshals would take over. In October 1991, however, Gray and Portland Police Officer Dirk Anderson happened to drive by Beamon's house, saw that the lights were on, and knocked on the door. Beamon answered, and was arrested.

Gray also testified about the 20 month delay in McMillin's case. He said that he had two addresses for McMillin, which he and Anderson had surveilled approximately 12 to 15 times. As with Beamon, the officers suspended efforts to locate McMillin in June 1990, again under the impression that the U.S. Marshals would take over. After the October 1991 arrest of Beamon, however, the officers called McMillin's parents to obtain his address. The parents refused, but said that they would try to convince McMillin to surrender. McMillin surrendered on January 8, 1992. It appears that McMillin, like Beamon, had been living at the same address since his original 1990 arrest on state law charges.

Beamon testified that throughout the 17 month delay he was never aware of a federal prosecution. At all times, he lived at the address listed on the warrant for his arrest. He also testified that his child, who was born April 7, 1990, one month before the federal indictment, suffered from jaundice and required special lighting in his room 12 hours a day, and that someone was home with the baby at all times during the baby's first year.

A few weeks prior to the indictment, Beamon, his then fiance, his attorney, Officers Gray and Anderson, and a state district attorney met regarding civil forfeiture proceedings arising from the March 1990 arrest. Beamon and his attorney claim that they were never told of a federal indictment while negotiating the forfeiture, or at any other time prior to the arrest. In fact, at one point during the 17 month delay, Beamon signed a return receipt from a certified FBI letter relating to the forfeiture, and met with an officer who came by in the summer of 1990 to receive title to Beamon's car.

During the 20 month delay in his case, McMillin was living and working in Portland. Though there is hearsay evidence that he was "keeping a low profile," there is no evidence that he was hiding from the police. McMillin's testimony that he was not hiding from the police, that he learned about the indictment around Christmas 1991, and that he voluntarily surrendered a few weeks later in January 1992 was uncontradicted.

Both Beamon and McMillin filed a motion to dismiss for violation of the Sixth Amendment right to a speedy trial. The motions were denied, and Beamon and McMillin then entered into plea agreements which reserved their rights to appeal the denial of their speedy trial motions.

II

The denial of a motion to dismiss based upon the Sixth Amendment right to a speedy trial is reviewed de novo. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1050 (9th Cir.1990). The trial court's findings of fact are reviewed for clear error. Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2450-51, 91 L.Ed.2d 110 (1986).

A discretionary refusal to depart downward is not reviewable, United States v. Morales, 972 F.2d 1007, 1010-11 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993) (No. 92-7776) whereas a ruling that a particular circumstance is not a permissible basis for departure is reviewed de novo. Id.

III

A

"The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy trial." Doggett v. United States, --- U.S. ----, ----, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992). Speedy trial challenges are subject to a four part inquiry governed by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971). The four factors are: "(1) whether delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for that delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered prejudice" because of the delay. Doggett, --- U.S. at ----, 112 S.Ct. at 2690; United States v. Turner, 926 F.2d 883, 889 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 103, 116 L.Ed.2d 73 (1991).

Doggett breaks the first inquiry, length of delay, into two steps. --- U.S. at ----, 112 S.Ct. at 2690. To trigger a speedy trial inquiry, an accused must show that the period between indictment and trial passes a threshold point of "presumptively prejudicial" delay. Id. If this threshold is not met, the court does not proceed with the Barker factors. Id. If, however, the threshold showing is made, the court considers the extent to which the delay exceeds the threshold point in light of the degree of diligence by the government and acquiescence by the defendant to determine whether sufficient prejudice exists to warrant relief. Id. --- U.S. at ----, 112 S.Ct. at 2690, 2693-94.

We have no trouble concluding that Beamon and McMillin pass the threshold test. As Doggett notes, courts have generally found delays approaching one year to be "presumptively prejudicial," id. --- U.S. at ---- n. 1, 112 S.Ct. at 2691 n. 1, though some have found the line crossed at an earlier point. See, e.g., United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir.) (suggesting that there is a general consensus of about 8 months), cert. denied, --- U.S. ----, 113 S.Ct. 627, 121 L.Ed.2d 559 (1992). We do not need to decide exactly when delay is "presumptively prejudicial," since the 17 and 20 month delays here are well over one year and are more than sufficient to trigger the speedy trial inquiry under Barker.

B

We must therefore examine the reasons for delay, Barker's second factor. The government argues that it was diligent under the circumstances; Beamon argues that the government delayed intentionally or was at least grossly negligent. The district court found that "both defendants should have been found if a serious effort had been made to find them." A district court's determination that the government was negligent in pursuing a suspect is reviewed with considerable deference. Doggett, --- U.S. at ----, 112 S.Ct. at 2691. Here, the district court's finding is not clearly erroneous. The police should have found Beamon since they knew where he lived and knew his attorney from the forfeiture proceedings. There is no evidence that McMillin tried to hide from the police, or knew of the indictment; when surrendering in 1992, McMillin listed the same address as he did when arrested in 1990 by Portland police. By the same token, there is no evidence that the government acted with the specific intent to delay for tactical advantage. We therefore accept the district court's finding that the government did not act with appropriate diligence in pursuing either Beamon or McMillin.

C

As to the third factor, the defendant's asserting his right to a speedy trial, the district court found that although both Beamon and McMillin knew the investigation was continuing, Beamon did not know about the indictment and McMillin turned himself in within a few weeks of finding out he...