U.S. v. Carlson

• Decision Date: 05 January 1983
• Docket Number: No. 82-1200,82-1200
• Citation: 697 F.2d 231
• Parties: UNITED STATES of America, Plaintiff, v. Robert J. CARLSON, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 231

697 F.2d 231

UNITED STATES of America, Plaintiff, v. Robert J. CARLSON, Defendant.

No. 82-1200.

United States Court of Appeals,

Eighth Circuit.

Submitted June 18, 1982.

Decided Jan. 5, 1983.

Meshbesher, Singer & Spence, Ltd., Ronald I. Meshbesher, Cheryl Divine, Minneapolis, Minn., for appellant.

James M. Rosenbaum, U.S. Atty., Janice M. Symchych, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., David Soucy, Legal Intern, for appellee.

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Robert J. Carlson appeals from his conviction for mail fraud under 18 U.S.C. Sec. 1341, contending that the district court ¹ improperly denied his pretrial motions to dismiss the indictment and to suppress evidence. Carlson argues that the mail fraud indictment should have been dismissed because the government delayed presenting the charges to the grand jury in violation of his speedy trial rights. Carlson further contends that his Fourth Amendment rights were violated. We affirm.

On September 15, 1976, defendant Carlson and his friend Paul Scherber reported to the Mound, Minnesota Police Department that a number of video games belonging to Carlson had been stolen from Scherber's residence. Carlson reported the loss to his insurance company, Aetna Casualty and Surety Company, and in February 1977 Aetna paid Carlson a total of $40,000 in satisfaction of his claim for the loss of the video machines. It was stipulated that defendant Carlson and an accomplice had themselves removed the machines from Scherber's garage and had created the appearance of a burglary in order to defraud Carlson's insurance company.

In mid-January 1980 Officer Olson of the Minnetonka Police Department received an anonymous call stating that four of the video games which Carlson had reported stolen in 1976 had been delivered to Carlson's residence on January 15, 1980, and that five more would be delivered to defendant at his residence at approximately 7:00 a.m. on January 18, 1980. Inspector Olson communicated this information to Officer Bostrom and Detective Coudron. Detectives Coudron and Peterson of the Minnetonka Police Department set up surveillance of defendant Carlson's house at approximately 6:00 a.m. on January 18, 1980. A few minutes before 7:00 they observed a white van pull up and saw an unidentified man unload five boxes onto the sidewalk near defendant's house. They observed the man ring the door bell and then leave immediately. The boxes were of the size that could hold video games. At a little after 7:00 a man matching Robert Carlson's description came out of the house, moved the five boxes into the garage and closed the garage door.

At around 8:40 a.m. the police observed a large amount of smoke coming from the chimney of defendant Carlson's house. They contacted the Hennepin County Attorney's office believing that evidence was being burned, and were advised by the county attorney to "seize" the house and await the issuance of a warrant before searching it. The police then telephoned Sergeant Hudson of the Mound Police Department and requested that he apply for a search warrant.

The police officers approached defendant's house, and as they were walking toward the front door they observed through an unobstructed window that there were cut up pieces of video games lying on the floor in the den of Carlson's house, and they saw other pieces of the video games burning in the fireplace. They knocked on the door of defendant's house and identified themselves, but received no response. In order to prevent the further destruction of evidence they then forcibly entered defendant's house and put out the fire. They made a security sweep of the house and found defendant Carlson in an upstairs bathroom. They arrested him, brought him downstairs and waited for the search warrant to arrive. At 10:00 a.m. they obtained the warrant and thereafter conducted a search of defendant's house, seizing a number of the video games which defendant had reported stolen in 1976.

Defendant Carlson was taken to the Hennepin County Jail but was released a few hours later. Carlson appeared in Hennepin County District Court on January 23, 1980, at which time he learned that no complaint or charges had been filed. No state criminal charges have ever been brought against Carlson as a result of the January 18, 1980 arrest.

Federal authorities learned of Carlson's arrest shortly after it occurred. On March 7, 1980, they decided to investigate the case for possible mail fraud. The case was transferred among several postal inspectors until May 1980, when it was assigned to Harry Shields. Shields continued to investigate the case through June 1981. On July 10, 1981, an indictment for mail fraud was returned against defendant pursuant to 18 U.S.C. Sec. 1341.

On July 16, 1981, defendant appeared before Magistrate Floyd E. Boline and entered a plea of not guilty. Magistrate Boline heard defendant's pretrial motions on August 11 and 12, 1981. On the recommendation of Magistrate Boline, Judge Murphy denied appellant's motions to suppress evidence and to dismiss the indictment. After a trial to the court based on stipulated facts, Judge Murphy found defendant guilty of mail fraud and sentenced him to a one-year jail term.

I. SPEEDY TRIAL

A. Speedy Trial Act

Carlson first contends that the eighteen-month delay between his January 18, 1980, arrest by state officials and his July 10, 1981, indictment on Federal mail fraud charges violates the Speedy Trial Act, 18 U.S.C. Sec. 3161, et seq. We reject defendant's argument and join the Second, Fourth and Fifth Circuits in holding that a state arrest does not activate the time limits of the Speedy Trial Act.

In the recent case of United States v. Iaquinta, 674 F.2d 260, 264 (4th Cir.1982), the Fourth Circuit reviewed the cases dealing with the state arrest issue and concluded:

The Speedy Trial Act is intended to mandate an orderly and expeditious procedure for federal criminal prosecutions by fixing specific, mechanical time limits within which the various progressions in the prosecution must occur.... Since the Act applies only to federal prosecutions it is only a federal arrest, not a state arrest, which will trigger the commencement of the time limits set in the Act. In so providing, the Act is consistent with "the doctrine of dual sovereignty, which recognizes that 'the federal government is not bound by the actions of state authorities and that successive state and federal prosecutions are constitutionally permissible.' " [Quoting from United States v. Wilson, 657 F.2d 755, 767 (5th Cir.1981) ]

Accord: United States v. Mejias, 552 F.2d 435 (2d Cir.) cert. denied 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977); U.S. v. Phillips, 569 F.2d 1315 (5th Cir.1978); United States v. Lai Ming Tanu, 589 F.2d 82 (2d Cir.1978); United States v. Rivera, 465 F.Supp. 402, (S.D.N.Y.) aff'd without opinion sub nom., United States v. Ramirez, 614 F.2d 1292 (2d Cir.1979); United States v. Leonard, 639 F.2d 101 (2d Cir.1981).

Even if we were to rule that a state arrest could activate the time provisions of the Speedy Trial Act, however, the particular arrest at issue here would not have been sufficient to do so. In United States v. Jones, 676 F.2d 327 (8th Cir.1982), we held that 18 U.S.C. Sec. 3161 applied only when an arrested individual has been charged with an offense. It is undisputed that defendant was not charged with any offense after his January 18, 1980 arrest. Under the reasoning of Jones this arrest therefore would not have set in motion the time limits of the Speedy Trial Act. See also: United States v. Solomon, 679 F.2d 1246 (8th Cir.1982); United States v. Boles, 684 F.2d 534 (8th Cir.1982).

B. Sixth Amendment

Carlson next contends that his Sixth Amendment speedy trial rights have been violated. We reject this argument since the delay defendant complains of occurred in the "pre-accusation" stage of the proceedings. "[T]he protection of the [Sixth] Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (1971). Defendant's Sixth Amendment speedy trial rights can be triggered by an arrest as well as by an indictment. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). As the Supreme Court made clear in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), however, it is not the arrest itself, but rather the criminal charges arising out of the arrest which activate Sixth Amendment protection. See also: United States v. Jones, supra; United States v. Solomon, supra; United States v. Boles, supra. In this case defendant was incarcerated for only a few hours following his arrest, and no state charges were brought against him. ² We conclude that defendant's Sixth Amendment speedy trial rights were not activated by the delay between his January 1980 state arrest and his July 1981 federal indictment.

Even if we were to accept defendant's argument that his January 1980 arrest automatically triggered Sixth Amendment protection, we would find that defendant had not been deprived of his right to a speedy trial. We have reviewed the record in light of the standards set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and conclude that no Sixth Amendment speedy trial violation occurred.

C. Fifth Amendment

Defendant also argues that the government's preindictment delay violated his Fifth Amendment due process rights. ³ In order to establish a due process violation sufficient to warrant dismissal defendant must show both that the government deliberately delayed in order to gain a tactical advantage and that the delay prejudiced him in presenting his case. United States v. Dennis,...