U.S. v. Fuzer, 93-1902

• Decision Date: 18 March 1994
• Docket Number: No. 93-1902,93-1902
• Citation: 18 F.3d 517
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank FUZER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 517

18 F.3d 517

UNITED STATES of America, Plaintiff-Appellee, v. Frank FUZER, Defendant-Appellant.

No. 93-1902.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 1994.

Decided March 18, 1994.

Barry R. Elden, Diane L. Saltoun, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, IL, Scott A. Verseman (argued), Office of U.S. Atty., Rockford, IL, for plaintiff-appellee.

Thomas J. Royce (argued), Chicago, IL, for defendant-appellant.

Before CUDAHY, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Frank Fuzer, a felon, was convicted of possessing a firearm in violation of 18 U.S.C. Sec. 922(g)(1) and was sentenced to fifteen years' imprisonment to be followed by five years of parole (supervised release) and ordered to pay a $50 special assessment. He appeals the district court's denial of his motion to dismiss the indictment and vacate the judgment of conviction. We affirm.

BACKGROUND

The State Proceedings

On February 3, 1987, the Arlington Heights, Illinois, Police Department arrested Fuzer pursuant to several outstanding Illinois arrest warrants. During the arrest, the police discovered a loaded .22 caliber handgun in the right pocket of Fuzer's jacket and he was charged under section 24-1(a)(10) of chapter 38 of the Illinois code, entitled "Unlawful Use of Weapons," which prohibited the possession of a loaded firearm "in a vehicle or on or about his person within the corporate limits of a city, village, or incorporated town, except when on his land or in his own abode or fixed place of business[.]"

At the time Fuzer appeared in the Cook County Circuit Court, there were ten outstanding Illinois criminal indictments and informations pending against him as well as five separate probation violations. Pursuant to a plea agreement, the state's attorney moved to dismiss several of the charges pending against Fuzer, including the unlawful use of a weapon charge, and Fuzer pled guilty to the remaining charges, including the five probation violations, and was sentenced on July 1, 1987, to twelve years of incarceration.

The Federal Proceedings

On January 30, 1992, a federal grand jury returned a one count indictment charging that Fuzer, a convicted felon, on February 3, 1987, knowingly possessed a firearm in violation of 18 U.S.C. Sec. 922(g)(1) when he was arrested within the corporate limits of Arlington Heights, Illinois, by the local police department. The indictment was handed down less than a week before the five year statute of limitations (18 U.S.C. Sec. 3282) was due to expire. Fuzer moved to dismiss the indictment, arguing that the delay in bringing the indictment was prejudicial and in violation of his due process rights, stating that 1) his memory regarding the events surrounding the arrest had faded, 2) an attorney would have difficulty locating witnesses, and 3) but for the delay, he may have had an opportunity to serve the state and federal sentences concurrently. After the judge denied the motion to dismiss, a jury convicted Fuzer moved to set aside the judgment of conviction. In addition to renewing his pre-indictment delay claim, he contended for the first time that his plea agreement with the Illinois Assistant State's Attorney "incorporated the specific promise that he would not be subjected to any additional prosecution be it State or Federal." He claimed that agents from the Bureau of Alcohol, Tobacco, and Firearms were present at his guilty plea hearing and were aware that the plea agreement allegedly prohibited federal authorities from prosecuting him for his possession of the .22 caliber handgun on February 3, 1987. Fuzer argued that "although the United States Attorney was not a party to this agreement, the [ATF] agents of the United States who were aware of the agreement put the United States on notice and bound the United States to this agreement." Fuzer has never identified the ATF agents whose alleged presence in the courtroom supposedly bound the federal government to the Illinois Assistant State's Attorney's alleged promise that Fuzer would not be prosecuted further for the events of February 3, 1987, and a review of the record fails to reveal any statement in Fuzer's plea agreement that he would not be federally prosecuted. In fact, in contrast to the defendant's position, the transcript of his 1987 guilty plea hearing sets forth that when asked whether "any promise or threat [had] been made to you to get you to make this decision to plead guilty to the charges here[,]" Fuzer replied, "No, there hasn't."

him of being a felon in possession of a firearm.

The district court denied Fuzer's motion to set aside the verdict on the basis of preindictment delay. For purposes of its decision only, the district court assumed that the State's Attorney's Office promised him that he would not be federally prosecuted. The judge ruled that even if the state prosecutor agreed that the federal government would not prosecute him, the promise was unenforceable because the respective state jurisdictions do not have the authority to bind the federal government. United States v. Eliason, 3 F.3d 1149, 1153 (7th Cir.1993) n. 3 (citing United States v. Roberson, 872 F.2d 597, 611-12 (5th Cir.), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989)). Also for purposes of its decision, the court assumed that ATF agents were present in the courtroom during the proceedings and were aware of the alleged promise not to prosecute. Even considering all of these assumptions, the judge rejected the defendant's argument that he was entitled to relief because Fuzer had not established that the agents took any "explicit action ... which says to the defendant without the benefit of inference or implication if you do this, we will not prosecute."

ISSUES

The issues we must decide are: 1) whether the court erroneously denied Fuzer's motion to dismiss the indictment on the grounds of delay, and 2) whether the court committed error in denying his motion to set aside the judgment on the grounds of the alleged agreement that Fuzer would not be federally prosecuted.

DISCUSSION

Initially Fuzer contends that the government violated his due process rights by delaying his prosecution.

"To successfully advance a claim that pre-indictment delay violated due process, a defendant must 'prove that the delay caused actual and substantial prejudice to his or her fair trial rights and that the government delayed indictment for tactical advantage or some other impermissible reason'." United States v. Ashford, 924 F.2d 1416, 1419-20 (7th Cir.1991) (quoting United States v. Chappell, 854 F.2d 190, 195 (7th Cir.1988)). "It is the defendant's burden to prove that he was prejudiced by the delay." Id. "We review for abuse of discretion the court's denial of motions to dismiss" an indictment for pre-indictment delay. United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir.1989), cert. denied sub nom. Charley v. United States, --- U.S. ----, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992).

On appeal, Fuzer has abandoned his claim that the delay prejudiced him because of faded memory or inability to locate witnesses instead, his claim of prejudice arises solely from his speculative contention that if the government had prosecuted him promptly, he could have served his state and federal sentences concurrently. He further implies that the government delayed its indictment because it was dissatisfied with the twelve-year sentence he received in state court.

The record before us fails to demonstrate that Fuzer suffered an actual and substantial prejudice because we are aware of no case law, nor has any been provided to us, even suggesting that a felon has a right to serve his federal and state sentences concurrently. United States v. Koller, 956 F.2d 1408, 1415-16 (7th Cir.1992) ("Koller has no right to serve his sentences on these two different convictions, one state and one federal, concurrently, and thus, he suffered no prejudice"); see also Sherlock, 962 F.2d at...