U.S. v. Duke

• Decision Date: 23 February 1976
• Docket Number: No. 75--1729,75--1729
• Citation: 527 F.2d 386
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Joe DUKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 386

527 F.2d 386

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Joe DUKE, Defendant-Appellant.

No. 75--1729.

United States Court of Appeals, Fifth Circuit.

Feb. 23, 1976.

Rehearing Denied March 25, 1976.

J. Hue Henry, Athens, Ga. (Court-appointed), for defendant-appellant.

John W. Stokes, U.S. Atty., Gale McKenzie, James E. Fagan, Jr., Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee. AP Appeal from the United States District Court for the Northern District of Georgia.

Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

On February 12, 1975, defendant Bobby Joe Duke was convicted by a jury on a criminal information charging possession of marijuana in violation of 21 U.S.C. § 844. Defendant appeals from that conviction, enumerating as error: (1) the refusal of the trial court to dismiss for prosecution's unnecessary delay in seeking an indictment; (2) an improper instruction to the jury, shifting the burden of proof to the defendant; and (3) the trial judge's elicitation of a verdict of guilty from a reluctant juror.

Pertinent facts in this case are as follows. On March 4, 1974, defendant Duke, a prisoner at the Atlanta Federal Penitentiary, was seated at a table in the visiting room with his wife. At that time, Odell Rich, a guard whose job was to control contraband in the visiting room, observed defendant put his right hand in the fly of his pants. Rich then conveyed defendant to the hospital where Dr. Alderete, director of the penitentiary hospital, made X-rays of the defendant which indicated the presence of a foreign object in the latter's rectum. Defendant denied the presence of an object, claiming that the X-ray could be explained by his history of a fractured vertebra. Later, however, defendant passed a vial containing three grams of marijuana. On the day following the incident in the visitors' room, defendant was placed in administrative segregation, where he remained for thirty-five days.

On January 6, 1975, approximately ten months after the offense, a criminal information was filed against defendant for possession of marijuana. Trial began on February 10, 1975 and a jury verdict of guilty was returned on February 12, 1975.

I. Prosecution's Delay in Seeking Indictment--

Defendant contends that the government's delay of ten months from the time the offense was committed until an information was filed handicapped him in his preparation of a defense and violated his right to a speedy trial as guaranteed by the Sixth Amendment. Specifically, the defense argues that on the date of the incident in the visitors' room, defendant was temporarily insane as a result of withdrawal from morphine, a drug to which he allegedly was addicted, and that, accordingly, he was not responsible for his actions. The defense bolsters its argument by medical testimony indicating that all evidence of withdrawal is gone by the fifth day after deprivation of the drug. Therefore, according to this argument, by not indicting him quickly, the government failed to alert the defendant of the need to obtain an attorney and to gather evidence of his medical incapacity due to drug withdrawal. Because of this delay all evidence upon which a temporary insanity defense could be based was forever lost and defendant's defense was irreparably prejudiced.

In analyzing a speedy trial argument, the applicable cases can be classified into two groups: pre-accusation delay ¹ and post-accusation delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), has established the standard for evaluating a claim of delay at the pre-accusation level. In that case the defendant argued for dismissal of his indictment on Sixth Amendment grounds, after a three-year delay between commission of the offense and indictment occurred. Rejecting the defendant's argument, the Supreme Court held that 'the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused," id. at 313, 92 S.Ct. at 459, 30 L.Ed.2d at 474, and that, the primary guarantee against prosecutorial delay in seeking an indictment being the applicable statute of limitations, the government has no duty to 'discover, investigate, and accuse any person within any particular period of time.' Id. at 313, 92 S.Ct. at 459, 30 L.Ed.2d at 474. The Court held, however, that a case can be dismissed for pre-accusation delay, but only if the defense shows actual prejudice and demonstrates that the delay was an intentional device by the prosecution to gain a tactical advantage. Id. at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 481.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is the case most often cited for the standard to be applied in post-accusation delay questions. In Barker, the defendant was indicted for murder in September, 1958, but was not brought to trial until October, 1963, after sixteen continuances had been obtained by the prosecution. Noting that the concept of speedy trial is vague, the Court in Barker refused to set down a final period of time by which the government must bring a criminal defendant to trial. Rather, it established a balancing test, triggered by a presumptively prejudicial delay, by which post-accusation delay cases must be evaluated. The four factors to be balanced include (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of his right to a speedy trial, and (4) prejudice resulting from the delay in bringing defendant to trial. Id. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

In examining defendant's Sixth Amendment claim, it is important to determine at the outset whether the actual prejudice test of Marion or the balancing test of Barker is appropriate. Obviously, the Marion test, requiring a showing of actual prejudice and intentional prosecutorial delay, is a harder test for claimants to meet than the more flexible balancing test of Barker. Not surprisingly, defendant argues that the Barker test is applicable in this case. The key in determining which test to apply rests on the question whether defendant was an 'accused' during the ten-month delay in question.

Defendant argues that placement of him in administrative segregation for thirty-five days constituted an arrest, thereby rendering him an accused, subject to the Barker balancing test on delay. We cannot accept the argument that administrative segregation of a prisoner is equivalent to his arrest. First, we note the language in Marion explaining why arrest is a significant event triggering the protection of the Sixth Amendment:

. . . Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. . . . So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. Id. 404 U.S. at 320, 92 S.Ct. at 463, 30 L.Ed.2d at 478--79. (Emphasis added.)

Obviously, administrative segregation does not contain those incidents associated in Marion with arrest; that is, administrative segregation of a prisoner does not 'disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy,' etc. ² In addition, Marion speaks of the 'actual restraints imposed by arrest and holding to answer a criminal charge' as engaging the protection of the speedy trial provision of the Sixth Amendment. Id. at 320, 92 S.Ct. at 463, 30 L.Ed.2d at 479. (Emphasis added.) Here the defendant was not 'charged' with a crime ³ and hence was not subject to the 'anxiety and concern accompanying public accusation' that Marion saw as a major reason for giving an accused a speedy trial. Id. at 320, 92 S.Ct. at 463, 30 L.Ed.2d at 478.

More importantly, we do not hold administrative segregation to constitute an arrest because of what we consider to be the essential nature of that act. ⁴ That is, administrative segregation is an internal disciplinary means of classifying prisoners, utilized under the almost total discretion of prison officials, and subject to the interference of the courts only in a case of wide abuse of that discretion. Royal v. Clark, 447 F.2d 501 (5th Cir. 1971), Theriault v. Mississippi, 433 F.2d 990 (5th Cir. 1970). Used as a method of disciplining or investigating inmates who break prison regulations, of protecting certain inmates from members of the general population, and of providing a general cooling-down period for inmates involved in events that could disrupt the general population, administrative segregation accompanying the breach of a prison regulation is in no way related to or dependent on prosecution by the federal government of an inmate for that same offense as a violation of federal criminal law. According to the testimony of Abbie Clark, a prison official at the Atlanta Penitentiary, administrative segregation would have occurred regardless of any action taken by the United States prosecutor's office. While this court has not specifically addressed the issue of the relationship between administrative segregation and arrest, the Tenth Circuit has held that administrative segregation cannot be considered an arrest. Rivera v. Toft, 477 F.2d 534 (10th Cir. 1973). Similarly, this court, in allowing prison officials almost total discretion over the use of administrative segregation, has recognized the independence that segregation enjoys from the traditional criminal processes that are subject to careful judicial scrutiny. In Young v. Wainwright, 449 F.2d 338 (5th Cir. 1971), an inmate sought an injunction to obtain his release from segregation on the ground that h...