U.S. v. Francisco, 77-1316

• Decision Date: 09 May 1978
• Docket Number: No. 77-1316,77-1316
• Citation: 575 F.2d 815
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewis J. FRANCISCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 815

575 F.2d 815

UNITED STATES of America, Plaintiff-Appellee, v. Lewis J. FRANCISCO, Defendant-Appellant.

No. 77-1316.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted April 17, 1978.

Decided May 9, 1978.

Alex Stephen Keller of Keller, Dunievitz & Johnson, Denver, Colo., for defendant-appellant.

James W. Winchester, Asst. U. S. Atty., Denver, Colo. (Joseph P. Dolan, U. S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal from a conviction after a jury trial for a violation of 18 U.S.C. § 922(h). As applicable here, that section makes it unlawful for a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year "to receive any firearm or ammunition which has been shipped or transported in interstate . . . commerce."

The questions on appeal relate to pre-indictment delay and the time-frame within which appellant must be shown to have received the firearm to sustain his conviction.

It is undisputed that defendant-appellant, Lewis J. Francisco, was in possession of a .38 caliber Smith and Wesson revolver, taken from him by a police officer in Satan's Bar in Denver on September 27, 1975; that Francisco had previously been convicted in 1971 of a felony; and that the pistol here involved had been shipped in interstate commerce from the state of its manufacture, Massachusetts, to Oklahoma, where it was sold in 1974 to one Joseph O'Donnell, who brought it to Colorado when he moved to Denver in May of 1974.

Defendant Francisco was known to O'Donnell by his nickname, "Red." O'Donnell testified that he sold the revolver in Satan's Bar sometime during the fall of 1974 at a time when Francisco was present. O'Donnell's testimony was that he was drinking and did not recall exactly to whom he sold the gun; that the date of the sale was "probably November of '74, somewhere in that area," but it could have been in December or October 1974; "It was somewhere in the late fall portion of the year."

The indictment was issued December 15, 1976, some 15 months after the seizure of the weapon. Francisco was arrested the day after the indictment. Trial to the jury commenced March 7, 1977.

The indictment charged that Francisco knowingly received the specifically described firearm between "on or about October 1, 1974 and on or about September 27, 1975." By pretrial motion for a bill of particulars, defendant Francisco sought to require the Government to specify the particular date on which the weapon was allegedly received by him. Responding to expressions from Judge Winner, who ruled on the pretrial motions, that the Government be more specific about the date of the alleged receipt of the revolver to assist the defendant in preparing his defense, the Government made the following response in its bill of particulars:

The witness upon whom the Government relies to establish the exact date of the alleged receipt of the weapon described in the indictment, is unable to recall a specific date upon which he transferred the weapon. However, he is able to recall that the weapon was transferred in late November or early December 1974.

Therefore, the Government, for its Bill of Particulars, states the alleged offense occurred in late November or early December 1974.

Defendant's objection that this response did not pin down the date closely enough was overruled by Judge Winner, whose order stated:

Defendant's objection to the amended bill of particulars is overruled and his motion to dismiss the indictment is denied. The government guarantees this is the best it can do to specify a date, and the government will be held to this uncertainty in presenting its proof. At least the time period now is reduced from a year to less than a month, but I agree that the remaining uncertainty as to the time of the alleged commission of a single act makes the charge pretty vague.

In any event, the matter cannot be decided on motion, and it must be ruled on at time, of trial, either by a properly instructed jury or by action on the part of the judge who hears the testimony at trial.

Judge Chilson, who presided at the trial, gave the following instruction on the significance of the date of receipt of the revolver by Francisco:

Now, you will note that the Indictment charges that the offense was committed on some date between October 1, 1974, and September 27, 1975. The proof need not establish with certainty the exact date of the alleged offense in this case, the exact date that the gun was received by the defendant. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed by the defendant at some time during the period beginning October 1, 1974, to and including September 27, 1975.

After instructing on the need for proof of the accused's prior conviction, that he did receive the firearm and that it had been shipped in interstate commerce, Judge Chilson said:

The Court should add one further essential element, and that is that the receipt of the firearm by the defendant was during the time, during the period from October 1, 1974 to and including September 27, 1975.

He refused to limit the time period to the November-December 1974 date for the receipt as an essential element of the required proof.

I

On the question of pretrial delay, the motion to dismiss filed by Francisco alleged that the Government's investigation was complete by November 13, 1975, approximately one year before the presentment to the Grand Jury. It asserted that the bar where the sale allegedly took place was closed in February 1976, and that most employees were transients who could not be located. It argued that the pre-indictment delay had prejudiced defendant's ability to obtain witnesses. There was no allegation that the delay was an intentional device by the Government to gain tactical advantage or to harass the accused. Nor was there any proof offered by defendant at the pretrial hearing in support of the motion other than the contentions recited above. Defendant produced no evidence at the trial, although his counsel mentioned two witnesses "who will dispute the three-week period." What their testimony would have been was not clear from counsel's statements.

We have recently considered this matter of pre-indictment delay in the aftermath of United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). It is our view that those cases do not permit us to second-guess the timing of the Government's indictment in the absence of proof by an accused of both actual prejudice to his case and an ulterior motive by the prosecution for such delay. See United States v. Revada, 574 F.2d 1047 (10th Cir. 1978). Defendant-appellant has not sustained the burden placed upon him by those decisions.

II

We turn now to the issue of the instructions given the jury by Judge Chilson, and the importance of proof of the date of the receipt of the revolver. Leaving aside for a moment the comments and order of Judge Winner and the Government's response to the motion for bill of particulars, we see nothing wrong with either the indictment or the instructions by Judge Chilson.

Defendant acknowledged that he had possession of the gun on September 27, 1975; that...