U.S. v. Cordova, 76--1183

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 537 F.2d 1073
• Docket Number: No. 76--1183,76--1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony CORDOVA, Defendant-Appellant.
• Decision Date: 22 June 1976

Page 1073

537 F.2d 1073 UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph Anthony CORDOVA, Defendant-Appellant. No. 76--1183. United States Court of Appeals,
Ninth Circuit. June 22, 1976.
Rehearing Denied July 20, 1976.

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Donald E. Wolfram (argued), of Wolfram & Trujillo, Phoenix, Ariz., for defendant-appellant.

Joel D. Sacke, Asst. U.S. Atty. (argued), Phoenix, Ariz., for plaintiff-appellee.

OPINION

Before WRIGHT, KILKENNY and SNEED, Circuit Judges.

PER CURIAM:

Cordova was convicted after jury trial of possession of heroin with intent to distribute (21 U.S.C. § 841(a)). We affirm.

Cordova raises four issues which merit discussion: (1) validity of the search; (2) double jeopardy; (3) speedy trial; and (4) testimony by a prosecution witness concerning Cordova's past criminal conduct, unrelated to the crime charged.

Heroin and other evidence was seized from the home of Ms. Klase, who later became a government witness. Cordova has no 'automatic' or 'actual' standing to object to the seizure of any item, as he did not at the suppression hearing assert a possessory interest in any, and the government's case does not depend on proof of his possession at the time of the search. See Brown v. United States, 411 U.S. 223, 228--29, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); United States v. Boston, 510 F.2d 35 (9th Cir. 1974).

Cordova's double jeopardy argument lacks merit. After his arrest he was prosecuted first by the state of Arizona. That action was dismissed before trial for failure to comply with the state's speedy trial rule. The proceeding in state court did not place him in jeopardy. See United States v. Crosson, 462 F.2d 96, 103 (9th Cir. 1972).

But we need not reach that question since successive state and federal prosecutions '(do) not violate the proscription of double jeopardy included in the Fifth Amendment.' Bartkus v. Illinois, 359 U.S. 121, 132--33, 79 S.Ct. 676, 683, 3 L.Ed.2d 684 (1959). See also Crosson, supra.

We turn to the speedy trial issue. Cordova argues that a lapse of 14 months from the date of arrest by Phoenix police (November 2, 1973) to the date of his federal indictment (January 22, 1975) constituted a denial of his Sixth Amendment right to a speedy trial. ¹

Cordova's speedy trial right under the Sixth Amendment was not activated until the date of federal 'accusation.' United States v. Marion,404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). That is the date on which a defendant is arrested and held to answer on a criminal charge, or the date on which he is formally charged, whichever is earlier. Marion, 404 U.S. at 320, 92 S.Ct. 455. See also Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975).

Cordova was not arrested by federal authorities or held to answer on the charge now before us before the date of federal indictment. Since the federal prosecution did not start until January 22, 1975, Cordova's

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Sixth Amendment rights were not activated until that date. Marion, 404 U.S. at 313, 92 S.Ct. 455.

The fact of Cordova's arrest in November by state officers is irrelevant to the issue before us because that arrest was for alleged violation of Arizona, not federal, law. See Gravitt v. United States, 523 F.2d 1211, 1215 n. 6 (5th Cir. 1975); United States v. Lemons, 470 F.2d 135, 137 (3rd Cir. 1972); United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972).

Nor can Cordova benefit from the coincidence that the state prosecution following the November arrest was for the same illegal activity as that involved in the federal prosecution. As we have discussed, separate sovereignty allows both prosecutions. There is no indication that the state arrest and prosecution constituted 'a mere 'temporary device' used to restrain appellant' until federal authorities might choose to prosecute. United States v. Cabral, 475 F.2d 715, 718 (1st Cir. 1973). See also DeTienne, supra, 468 F.2d at 155. ²

Cordova's allegation of pre-accusation delay must, then, be based upon the due process clause of the Fifth Amendment, not the speedy trial clause of the Sixth Amendment. Marion, 404 U.S. at 324, 92 S.Ct. 455. If so, the standards in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), do not apply here. Cordova can prevail only by demonstrating that the 14-month delay caused substantial, actual prejudice and was an intentional device on the part of the government to gain tactical advantage. Marion, 404 U.S. at 324, 92 S.Ct. 455; United States v. Andros, 484 F.2d 531, 533 (9th Cir. 1973). He made no such showing below and we must reject his speedy trial argument.

We next face a question raised by testimony of Klase concerning past criminal activity of Cordova, unrelated to the crime charged. Relevant portions are set forth in the margin. ³

Cordova did not testify and Klase's testimony was clearly inadmissible. See

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Michelson v. United States, 335 U.S. 469, 475--76, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Lyda v. United States, 321 F.2d 788,...