U.S. v. Greer

Decision Date03 September 1981
Docket NumberNo. 80-1898,80-1898
Citation655 F.2d 51
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Curtis Edward GREER, Defendant-Appellant. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Roland E. Dahlin, II, Federal Public Defender, Karen K. Brown, Asst. Public Defender, Houston, Tex., for defendant-appellant.

Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before MARKEY, * Chief Judge, and GEE and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

This appeal occasions an examination of the Sixth Amendment right of a criminal defendant to speedy trial, applying the test established by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Curtis Edward Greer, a convicted felon, was indicted on July 16, 1979, on eight counts of possessing firearms in violation of 18 U.S.C.App. § 1202(a)(1), and arrested on July 25, 1979. Following disposition of defense motions to dismiss and to suppress certain evidence, the case was set for trial on February 11, 1980. Instead of trial, on that day the indictment was dismissed on the government's motion. On April 24, 1980, Greer was re-indicted, again charged, in one count, with violating 18 U.S.C.App. § 1202(a)(1) by possessing 15 firearms, eight of which were included in the earlier indictment, and in a second count for transferring a firearm contrary to 26 U.S.C. §§ 5861(e) and 5871. A motion to dismiss was denied; a motion to suppress the evidence on the second count was granted. Trial, resulting in a guilty verdict on the section 1202(a)(1) charge, commenced on July 7, 1980. Greer contends that the 113/4 month delay between initial indictment and trial violated his Sixth Amendment guarantee of a speedy trial. We disagree and affirm the conviction.

Barker v. Wingo provides the tetrad standard against which we must measure the elusive speedy trial perquisite: (1) duration; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice caused by the delay. No one consideration is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial ... they are related factors and must be considered together with such other circumstances as may be relevant." 407 U.S. at 533, 92 S.Ct. at 2193.

I. Duration of Delay

The constitutional assurance of a speedy trial attaches upon arrest, return of an indictment, or filing of an information, whichever first occurs. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Carter, 603 F.2d 1204 (5th Cir. 1979). At the threshold, Barker v. Wingo requires that the delay from the triggering event to trial must be "presumptively prejudicial," otherwise "there is no necessity for inquiry into the other factors that go into the balance." 407 U.S. at 530, 92 S.Ct. at 2192. See United States v. Wentland, 582 F.2d 1022 (5th Cir. 1978).

The 113/4 month delay at bar falls between the 101/2 month delay not considered presumptively prejudicial in United States v. Maizumi, 526 F.2d 848 (5th Cir. 1976), and the 15 month delay considered presumptively prejudicial in United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976). Rather than decide summarily that the Greer delay is nearer that experienced in Maizumi, and thus pretermit further consideration of Greer's Sixth Amendment assertion, we opt to examine appellant's complaint in light of the three remaining Barker v. Wingo factors.

II. Reason for Delay

Greer filed motions to dismiss and to suppress evidence which accounted for a portion of the delay; the district court concluded that just over four months was excusable. Responsibility for seven and one-half months of the delay rests with the government.

In the original indictment, the eight weapons were listed in separate counts. This use of seriatum counts is inconsistent with the ruling in United States v. Smith, 591 F.2d 1105 (5th Cir. 1979), decided four months before the first indictment, in which we held "that simultaneous possession of several weapons constitutes only one offense under Section 1202(a)." Id. at 1107. The prosecutors inform us that upon learning of our holding in Smith, they moved for a dismissal. We find no prosecutorial vindictiveness or bad faith; the scenario was the product of professional inattentiveness. An unintentional delay, one attributable to negligence, is to be weighed "less heavily" against the government. Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192; Avalos, supra. Nevertheless, the responsibility rests with the prosecution to justify the delay, for which it assigns two reasons: newly discovered evidence and a change in the law. The record does not support the prosecution's explanation.

III. Defendant's Assertion of Right

The third factor relates to the defendant's action or inaction in asserting his right to a speedy trial. Greer moved for dismissal asserting speedy trial failure on the day the government moved to dismiss the first indictment. This portion of the test is also met.

IV. Prejudice

The final element in the Barker v. Wingo formula, prejudice, is the most difficult to evaluate qualitatively and quantitatively. The Supreme Court identified three interests which the speedy trial right is designed to protect: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." 407 U.S. at 532, 92 S.Ct. at 2193. See United States v. Noll, 600 F.2d 1123 (5th Cir. 1979).

Greer complains of incarceration for seven months prior to dismissal of the first indictment. When indicted, Greer was on bond pending appeal of a state felony conviction, a conviction affirmed shortly after the indictment was dismissed. Greer v. State, 595 S.W.2d 871 (Tex.Cr.App.1980). After arraignment on federal charges he was released on bail; however, state authorities revoked his post-conviction bail. The incarceration of which Greer...

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  • Spencer v. State
    • United States
    • Mississippi Supreme Court
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    ...18.2 (1984), quoting Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980)). See also United States v. Greer, 655 F.2d 51, 53 (5th Cir.1981) (357 days is prejudicial); Beavers v. State, 498 So.2d 788, 790 (Miss.1986) (423 days is presumptively prejudicial); Bai......
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    • U.S. District Court — Southern District of Mississippi
    • 21 Julio 2021
    ...Of all the factors, the prejudice factor is “the most difficult to evaluate qualitatively and quantitatively.” United States v. Greer, 655 F.2d 51, 53 (5th Cir. 1981). Because the first three factors do not weigh heavily in his favor, Scott must make an affirmative showing of actual prejudi......
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