U.S. v. Brown

• Decision Date: 19 March 1992
• Docket Number: No. 91-5447,91-5447
• Citation: 959 F.2d 63
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald S. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 63

959 F.2d 63

UNITED STATES of America, Plaintiff-Appellee, v. Ronald S. BROWN, Defendant-Appellant.

No. 91-5447.

United States Court of Appeals Sixth Circuit.

Argued Feb. 4, 1992.

Decided March 19, 1992.

William Cohen, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Nashville, Tenn., for plaintiff-appellee.

William J. Marett, Jr. (argued and briefed), Bryan & Marett, Nashville, Tenn., for defendant-appellant.

Before: KENNEDY and JONES, Circuit Judges; and BROWN, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Defendant, Ronald S. Brown, appeals his jury conviction and sentence imposed for carrying a firearm during the commission of a crime of violence for which he could be prosecuted in federal court, and for possession of a weapon by a convicted felon. For the reasons that follow, we affirm.

I

The events underlying Brown's conviction transpired in a small tavern known as Lisa's Just In Time located in Nashville, Tennessee. Like many drinking establishments, Lisa's Just In Time serves beer and snack food manufactured in another state. At approximately 3:00 a.m. on New Year's Day, 1989, Brown entered the back door of Lisa's Just In Time wearing a nylon mask and armed with a shotgun. Brown placed the muzzle of the gun into the back of an employee and ordered her not to move. He then proceeded to the cash register near the bar's front entrance. As he approached the register, however, he was disarmed by bartender Tommy Springer and his father-in-law. Springer removed the nylon mask, whereupon, to everyone's surprise, Brown stated that he recognized Springer as a former acquaintance and added, somewhat belatedly, that he would not have attempted to rob the tavern had he known Springer worked there. Brown, the ski mask, and the shotgun were then turned over to the police. Approximately three hours later, after being advised of his Miranda rights, Brown confessed to officers that he had gone to Lisa's Just In Time with the intent of robbing it, and that he had hoped to steal between $7,000 and $8,000.

On September 29, 1989, Brown pleaded guilty in state court to assault with intent to commit armed robbery and received a sentence of five-years imprisonment. On December 14, 1989, a federal grand jury returned a two-count indictment charging Brown, in count one, with carrying a firearm during the commission of a crime of violence for which he could be prosecuted in federal court (namely, a violation of the Hobbs Act, 18 U.S.C. § 1951 (1988)), in violation of 18 U.S.C. § 924(c)(1) (1988), amended by 18 U.S.C.A. § 924(c)(1) (West Supp.1991), and, in count two, with possession of a weapon by a convicted felon in violation of 18 U.S.C.A. §§ 922(g)(1), 924(a)(1)(D) (West Supp.1991). After filing a series of motions to continue the date of trial, Brown filed a motion to dismiss the indictment for prejudicial preindictment delay. That motion was denied.

The case proceeded to trial on January 22, 1991. At the conclusion of trial, the jury found Brown guilty on both counts. On March 27, 1991, Brown was sentenced to five-years imprisonment on count one and fifty-one-months imprisonment on count two, the latter to be served concurrently with the state sentence that Brown was serving. This timely appeal followed.

II

Brown's first claim on appeal is that the prosecution's delay in bringing the instant federal charges violated his right to due process embedded in the Fifth Amendment. The district court rejected this claim in denying Brown's pretrial motion to dismiss the indictment.

Our analysis of this issue is guided by United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) and its progeny. In Lovasco, Justice Marshall, writing for the Court, recognized that, while statutes of limitations provide the primary guarantee against the prosecution of overly stale criminal charges, id. at 789, 97 S.Ct. at 2048; accord United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987), the Due Process Clause of the Fifth Amendment also plays a "limited role" in protecting against excessive preindictment delay, Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. The Court emphasized, however, that " 'fundamental conceptions of justice' " embodied in the concept of due process are not impinged simply upon a showing that the government failed to secure an indictment immediately upon a determination of probable guilt. Id. at 791, 97 S.Ct. at 2049 (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341-42, 79 L.Ed. 791 (1935)).

From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried.... From the perspective of law enforcement officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited. And from the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only some of the responsible parties or some of the criminal acts. Thus, no one's interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.

Id. 431 U.S. at 791-92, 97 S.Ct. at 2049-50 (footnotes omitted).

Indeed, a defendant's right against preindictment delay is circumscribed in substantial part by a defendant's equally vital interests in freedom from indictment prior to a showing of probable cause consistent with the Fourth Amendment, and freedom from post -indictment delay guaranteed by the Speedy Trial Clause of the Sixth Amendment. Thus, particularly where the delay is investigative rather than intended to gain a tactical advantage over the accused, preindictment delay does not offend the Fifth Amendment. Id. at 795, 97 S.Ct. at 2051. "Rather than deviating from elementary standards of 'fair play and decency,' a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt." Id.; see also United States v. Eight Thousand Eight Hundred and Fifty Dollars, 461 U.S. 555, 563, 103 S.Ct. 2005, 2011-12, 76 L.Ed.2d 143 (1983) (noting that "the interests of the suspect and society are better served if, absent bad faith or extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh and sift evidence to ensure that an indictment is well founded").

This court has consistently read Lovasco to hold that "[d]ismissal for pre-indictment delay is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage." United States v. Brown, 667 F.2d 566, 568 (6th Cir.1982) (per curiam) (emphasis added); accord United States v. Lawson, 780 F.2d 535, 541 (6th Cir.1985) (per curiam). "A showing of prejudice to the defendant, without more, is not enough to prove a due process violation; rather, there must also be a consideration of the reasons for the delay." Atisha, 804 F.2d at 928; accord United States v. DeClue, 899 F.2d 1465, 1468-69 (6th Cir.1990). Thus, although preindictment delay intentionally brought about by the prosecution to obtain a tactical advantage over the defendant may warrant the dismissal of an indictment, see, e.g., Atisha, 804 F.2d at 928; Lawson, 780 F.2d at 541, a defendant's Fifth Amendment due process rights are generally not implicated where the government offers a valid reason for the delay, DeClue, 899 F.2d at 1469.

In the instant case, Brown rests his due process challenge exclusively upon the fact that the federal indictment followed his guilty plea in state court to assault with intent to commit armed robbery. Specifically, Brown contends that his state plea prejudiced his ability to mount a defense to the federal charges, and that the motive for the delay was solely for the improper purpose of obtaining this tactical advantage. Upon review, we disagree.

First, it is doubtful whether Brown's plea on the state charges prejudiced in any meaningful respect his conviction on the federal indictment. The evidence against Brown on the underlying crime of attempted robbery was overwhelming: he was apprehended at the scene of the crime, was recognized by the bartender who disarmed him, was arrested immediately thereafter, and within hours, confessed to the police that he had entered the tavern for the express purpose of robbing it. The primary issue in dispute at Brown's trial on the federal charges was whether his actions had the requisite effect on interstate commerce to support a Hobbs Act violation. Brown fails to suggest how his preindictment state plea in any sense impacted his ability to mount a defense to the issue of whether his actions affected interstate commerce.

Brown is similarly unable to show that the delay was prompted by a desire to gain a tactical advantage at trial. While Brown concedes that he has no direct evidence of bad faith, he would have us infer an improper prosecutorial motive merely from the fact that the filing of the federal indictment followed his plea in state court. This inference is untenable, however, for essentially the same reasons as discussed above. There are no grounds for assuming that the prosecution believed that disposition of the state charges would in some sense ease its burden of proving that Brown's acts affected interstate commerce sufficiently to support the federal charges. Moreover, we see little value in a rule that...