U.S. v. Brock

• Decision Date: 11 February 1986
• Docket Number: No. 84-1854,84-1854
• Citation: 782 F.2d 1442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Holly BROCK, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1442

782 F.2d 1442

UNITED STATES of America, Plaintiff-Appellee, v. Holly BROCK, Jr., Defendant-Appellant.

No. 84-1854.

United States Court of Appeals,

Seventh Circuit.

Argued April 24, 1985.

Decided Feb. 11, 1986.

Victor M. Pilolla, Chicago, Ill., for defendant-appellant.

Howard Pearl, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

ESCHBACH, Circuit Judge.

Holly Brock, Jr. entered a conditional guilty plea to one count of conspiring to import and to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 963. He was sentenced to six months incarceration and four years and six months probation. He appealed from the district court's denial of his "Motion for Indictment Dismissal" pursuant to Federal Rule of Criminal Procedure 11(a)(2). He contends: (1) that pre-indictment delay of over four years denied him his fifth amendment right of due process; (2) that post-indictment delay of two and one-half years violated his sixth amendment right to a speedy trial; and (3) that he was not brought to trial within the time limits of the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1). For the reasons stated below, we will affirm Brock's conviction and the district court's denial of his motion to dismiss the indictment.

I

On August 12, 1977, Brock was arrested at Chicago's O'Hare airport after he picked up a package that contained approximately 19 grams of a mixture including cocaine. A complaint charging Brock with possession of cocaine was filed; however, the government dismissed the complaint shortly after the arrest to permit a broader investigation of Brock's activities to proceed.

On October 14, 1981, a federal grand jury indicted Brock on one count of conspiracy to import and to possess with intent to distribute cocaine and one count of possession with intent to distribute cocaine. The conspiracy count recited eight overt acts. The first seven occurred between January 10, 1975 and October 30, 1976. The possession count and the eighth overt act charged in the conspiracy count were based upon Brock's alleged possession of cocaine at the date of his arrest on August 12, 1977.

II

Brock concedes that the conspiracy and possession charges were brought within the five-year statute of limitations. See 18 U.S.C. Sec. 3282. Nevertheless, he contends that the four and one-half years delay between his arrest and the indictment deprived him of due process. We disagree.

Even if an indictment is returned within the limitations period, pre-indictment delay might constitute a due process violation if it prejudices the defendant. See United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The defendant, however, bears the burden of showing "actual and substantial prejudice to his defense." United States v. Williams, 738 F.2d 172, 175 (7th Cir.1984). ¹ Brock's sole showing of prejudice consisted of the unsupported assertion in his Motion for Indictment Dismissal that his memory of events that occurred between 1975 and 1977 might have faded. ² Such an unsubstantiated allegation is insufficient to establish actual and substantial prejudice. Id. at 175-76 (no prejudice despite death of defense witness); United States v. Watkins, 709 F.2d 475, 479 (7th Cir.1983) ("a general assertion that the mere passage of time prevented [defendant] from credibly reconstructing the [relevant] events" does not establish actual and substantial prejudice); United States v. Solomon, 688 F.2d 1171, 1179-80 (7th Cir.1982) (no prejudice despite death of two defense witnesses).

The United States Attorney, of necessity, enjoys broad discretion in setting prosecutorial priorities. In deciding whether, when, and on what charges to prosecute, he or she weighs the strength of the case, its effect on other investigations, the specific and general deterrence value, the limited availability of prosecutorial resources and the government's enforcement priorities. The choice of whether and when to prosecute thus is ill suited to judicial review. See Wayte v. United States, --- U.S. ----, ----, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985); United States v. Lovasco, 431 U.S. 783, 790-96, 97 S.Ct. 2044, 2048-52, 52 L.Ed.2d 752 (1977).

In this case, the government filed charges against Brock shortly after his 1977 arrest; however, it dismissed these charges after David DeVorre, a Drug Enforcement Administration ("DEA") agent assigned to the Los Angeles office, reported that he was conducting a broader investigation of Brock's cocaine importation and distribution conspiracy. Because the government delayed prosecution for investigative purposes, it was not until 1981 that the government chose to indict Brock on charges arising from his 1977 arrest. ³ Since the pre-indictment delay did not prejudice Brock's defense, we conclude that the government did not violate due process by indicting Brock over four years after his arrest.

Furthermore, the indictment charged Brock with conspiring to import and to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 963 "[f]rom in or about November, 1974, to the present [October 14, 1981]." Unlike other conspiracy charges, it is unnecessary to allege an overt act in furtherance of a conspiracy in violation of 21 U.S.C. Secs. 846 and 963. See, e.g., United States v. Elledge, 723 F.2d 864, 866 (11th Cir.1984). ⁴ "With respect to conspiracy statutes [such as sections 846 and 963] that do not require proof of an overt act,.... [t]he conspiracy may be deemed to continue as long as its purposes have neither been abandoned nor accomplished." United States v. Coia, 719 F.2d 1120, 1124 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2349, 80 L.Ed.2d 822 (1984). With respect to the conspiracy count, therefore, there was no pre-indictment delay from the completion of the offense to the date of the indictment because the offense may be considered to have continued up to the date of the indictment.

III

Brock also argues that post-indictment delay of nearly two and one-half years between his indictment on October 14, 1981, and his guilty plea on March 29, 1984, violated his sixth amendment right to a speedy trial. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth the four factors to be considered to determine whether post-indictment delay deprived a defendant of his right to a speedy trial. Those factors are the length of the delay, the reasons for the delay, the nature of defendant's assertion of his right to a speedy trial, and the prejudice caused by the delay. Id. at 530, 92 S.Ct. at 2192. We will examine each element in turn.

A. Length of delay

The length of the delay in this case is measured from the date of the issuance of the warrant for Brock's arrest, October 14, 1981, to that of his guilty plea. See United States v. Deleon, 710 F.2d 1218, 1220 (7th Cir.1983). This period is approximately two and one-half years. The government in its appellate brief concedes that a delay of this length requires examination of the other three Barker factors. See, e.g., United States v. Jackson, 542 F.2d 403, 407 (7th Cir.1976) (one-year delay is presumptively prejudicial).

B. Reasons for delay

With respect to the reasons for delay, we will consider separately the periods between Brock's indictment and arrest and from his arrest to his guilty plea.

1. Delay from Indictment to Arrest

Again, Brock was indicted and a warrant was issued for his arrest on October 14, 1981; however, he was not placed in federal custody on the conspiracy and possession charges until July 19, 1983. The explanation for this 21-month delay is that, notwithstanding the government's efforts to locate and arrest him, Brock, successfully for a time, attempted to avoid arrest.

The government diligently searched for Brock after he was indicted. On October 21, 1981, one week after the indictment was handed down, David DeVorre, the DEA agent who directed the investigation out of the Los Angeles office, informed Brock's counsel, James Crouch, of the indictment and requested Crouch to instruct Brock to surrender himself. DeVorre completed a Fugitive Declaration Report on Brock and placed Brock's name in three law enforcement computer databases: the National Crime Information System ("NCIS"), which is administered by the Federal Bureau of Investigation ("FBI") and contains the names of persons against whom there are outstanding warrants; the Narcotics and Dangerous Drugs Information System ("NADDIS"), which is used by the DEA and includes information about individuals suspected of being involved in illegal drug transactions; and the Treasury Enforcement Communications System ("TECS"), which is operated by the Treasury Department and contains the names of fugitives to be detained at customs. Also on October 21, 1981, DeVorre instructed agents in the DEA's San Francisco and Chicago offices to search for Brock at the last-known addresses of the defendant, his family and associates.

William Ruzzamenti, a DEA agent in San Francisco, had looked for Brock at approximately ten Bay area addresses immediately prior to the return of the indictment. After he received DeVorre's request, Ruzzamenti revisited four addresses in search of the defendant. In November 1981, Dale Anderson, a DEA agent assigned to Chicago, visited both Brock's father and mother at their separate addresses and maintained surveillance of his mother's residence on two occasions for about seven hours.

In July 1982, Michael Heard, a FBI agent assigned to find Eric Young, Brock's indicted co-conspirator, searched for Brock as a way of locating Young. He visited Brock's mother's residence on three or four occasions and interviewed a former associate of Brock and Young. When Heard arrested Young in September 1982, he questioned Young about...