U.S. v. Harvey, 89-1476

Citation897 F.2d 1300
Decision Date26 March 1990
Docket NumberNo. 89-1476,89-1476
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donny Joel HARVEY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Walter M. Reaves, Jr., West, Tex. (Court-appointed), for defendant-appellant.

LeRoy M. Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., William C. Brown, Kathleen A. Felton, Attys., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before WISDOM, JOHNSON and DUHE, Circuit Judges.

JOHNSON, Circuit Judge:

Donny Joel Harvey appeals his conviction and sentence for possession of a handgun by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). For the reasons cited herein, we affirm.

I. FACTS AND PROCEDURAL HISTORY

On February 12, 1988, Waco, Texas, police officers secured an arrest warrant for James Jordan (Jordan) and a search warrant for Jordan's house. On the evening of the next day, while the officers were executing the warrant, and after methamphetamine and firearms had been found in Jordan's house, Officer Darrell Moore observed Donny Joel Harvey (Harvey) drive up in the alley adjacent to Jordan's house. Officer Moore and a fellow officer approached Harvey and asked Harvey for his identification. Thereafter, Officer Moore, while frisking Harvey, discovered a loaded handgun concealed in Harvey's clothing. Harvey was arrested and later indicted by a federal grand jury sitting in the Western District of Texas on one count of possession of a firearm by a felon in violation of 18 U.S.C. Secs. 922(g)(1) and 846. Harvey entered a plea of not guilty to the charges in the indictment.

Before trial, Harvey moved to suppress the handgun confiscated by Officer Moore. After conducting a hearing on the motion to suppress, the district court allowed the handgun into evidence. Thereafter, a jury returned a verdict of guilty against Harvey. The district court, departing upward from the guidelines, entered judgment on the verdict and sentenced Harvey to a sixty month term of imprisonment. Harvey thereafter filed this timely appeal.

II. DISCUSSION

On appeal, Harvey advances arguments in support of four issues. First, Harvey argues that his rights to a speedy trial were violated by the district court. Second, Harvey contends that the district court erred in dismissing Harvey's motion to suppress the handgun confiscated from him. Third, Harvey complains that the district court erred by refusing a proffered jury instruction on the defense of duress or necessity. Fourth, Harvey contends that the district court improperly departed upward from the Federal Sentencing Guidelines in assessing his sentence. We reject Harvey's contentions addressing each issue in turn.

I.

Harvey first claims a violation of his right to a speedy trial under the Speedy Trial Act, 1 and under the sixth amendment. Before reviewing the merits of Harvey's contentions on this issue, it is helpful to review the chronology of events giving rise to Harvey's claim. The search and seizure of the illegal handgun in Harvey's possession occurred on February 13, 1988. Harvey was arrested and placed in state custody on that date by state authorities. On September 14, 1988, Harvey was indicted by a federal grand jury. On September 27, 1988, a federal detainer was lodged with state authorities. Harvey initially appeared in federal district court on January 30, 1989. A little more than two months later on April 1, 1989, and after pretrial motions had been filed and considered by the district court, Harvey's actual trial commenced.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court articulated a four factor analysis to be applied in cases where a criminal defendant has complained that his or her constitutional right to a speedy trial has been violated. The Wingo factors are as follows: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertions of his right; and 4) prejudice to the defendant. The first factor, the length of the delay, is a threshold consideration, and examination of the remaining three factors is unnecessary unless the period of delay is presumptively prejudicial to the defendant. Id. 92 S.Ct. at 2192.

In United States v. Maizomi, 526 F.2d 848 (5th Cir.1976), this Court held that a delay of ten and one-half months between arraignment and trial was not presumptively prejudicial. In United States v. Avalos, 541 F.2d 1100 (5th Cir.1976), however, this Court determined that a delay of fifteen months was prejudicial. In Davis v. Puckett, 857 F.2d 1035 (5th Cir.1988), a delay of thirteen months between indictment and trial was sufficient to warrant further inquiry. In the instant case, Harvey suggests that the seven month delay between the date of his indictment and the date his trial actually commenced was sufficient to give rise to further inquiry. Further, Harvey points out that if the period between Harvey's arrest and indictment is taken into account, the delay would clearly fall within the presumptively prejudicial range.

Notwithstanding Harvey's contentions, we are not prepared to conclude that the delay in this case was prejudicial. Our review of the record confirms the district court's observation that Harvey failed to demand a speedy trial when he had the opportunity to do so, i.e., when he was presented the detainer form for signature in October 1988. Rather than demand a speedy trial at that time, Harvey waited some three months later until he appeared in federal court on January 31, 1989, to ask for a speedy trial. Harvey's actual trial commenced on April 10, 1989,--some seventy days from Harvey's first request for a speedy trial.

On these facts, we are unable to give credence to Harvey's argument that he has suffered prejudice as a result of the alleged delay in the scheduling of the proceedings against him. Further, Harvey has failed to show any reason for any alleged delay that is clearly attributable to the government. Thus, we determine that Harvey has not made a prima facie showing that his rights to a speedy trial were violated by the district court. Accordingly, we do not reach Harvey's arguments regarding the remaining three Wingo factors and conclude that the district court did not err in denying Harvey's motion to dismiss for a violation of his right to a speedy trial.

II.

Harvey next argues that the district court erred in denying Harvey's motion to suppress the handgun seized from Harvey by Officer Moore during the search of the Jordan house. The warrant which gave rise to the search of Jordan's house also provided for the arrest of Jordan and any other persons making entry into the location or making their escape. In response to Harvey's challenge to the validity of the arrest warrant, the district court held that the warrant was invalid insofar as it authorized the arrest of persons entering or exiting the premises. The district court, in so holding, concluded that the warrant failed to sufficiently particularize the person to be arrested. The district court, reviewing the affidavit supporting the warrant, nevertheless concluded that the officers who arrested Harvey were acting in good faith reliance on the warrant. The court found that there was sufficient information in the affidavit to support a police officer's belief that the warrant was constitutionally sufficient.

On appeal, Harvey asserts that the affidavit and warrant were so lacking in probable cause that any reasonably well trained officer could not, in good faith, have relied on it. Harvey also argues that the warrant's failure to particularly describe the person to be arrested precluded reasonable reliance on it. Because we conclude, however, that the stop and search of Harvey was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we do not reach Harvey's good faith reliance argument.

In Terry v. Ohio, the Supreme Court recognized the necessity of granting a police officer the authority to search a person for weapons where the police officer has reason to believe that the person with whom he is dealing is possibly armed and dangerous. The Supreme Court emphasized that the officer in such a situation need not have probable cause to arrest the individual. Instead, the proper focus of inquiry is whether "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 88 S.Ct. at 1883 (citations omitted). In determining whether an officer in such circumstances has acted reasonably in executing a stop and frisk search, this Court must give due weight to the specific inferences which the officer is entitled to draw from the facts of the situation in light of the officer's experience. Id. (citation omitted). In that regard, this Court is also bound to reject an officer's "inchoate and unparticularized suspicion or 'hunch'." Id.

On appeal, Harvey alleges that the arresting officer's sole justification for the stop and frisk was the officer's later assertion that it is common for persons dealing in narcotics to carry weapons. Harvey argues that this justification, standing alone, is insufficient to pass muster under Terry standards. Harvey's contention, however, fails to take into account many other factors which came into play in this particular instance. First, Officer Moore point blank asked Harvey if Harvey was armed. Harvey, instead of responding either affirmatively or negatively, simply remained silent. Second, by the time Harvey drove up and parked in the alley next to the Jordan house, officers had already discovered a quantity of methamphetamine, syringes and firearms on the premises. Third, the Jordan house was well known as a place where frequent drug deals were made and Officer Moore quite naturally could infer that Harvey had arrived to either buy or sell drugs. In...

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