U.S. v. Hood, 78-1152

• Decision Date: 08 February 1979
• Docket Number: No. 78-1152,78-1152
• Citation: 593 F.2d 293
• Parties: UNITED STATES of America, Appellee, v. James Harold HOOD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 293

593 F.2d 293

UNITED STATES of America, Appellee, v. James Harold HOOD, Appellant.

No. 78-1152.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1978.

Decided Feb. 8, 1979.

Steven A. Storslee, Fleck, Mather, Strutz & Mayer, Bismarck, N. D., for appellant.

Lynn E. Crooks, Asst. U. S. Atty., Fargo, N. D., for appellee; James R. Britton, U. S. Atty., Fargo, N. D., on brief.

Before GIBSON, Chief Judge, and LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

James Harold Hood appeals from his conviction of interstate transportation of stolen goods with a value in excess of $5,000, knowing the same to have been stolen, in violation of 18 U.S.C. § 2314. We affirm.

I.

Hood first contends that he was denied his Sixth Amendment right to a speedy trial by the government's unreasonable delay in filing charges against him. He contends that although the Federal Bureau of Investigation was aware of the facts alleged in the indictment by October, 1975, twenty months elapsed between that time and the time that the indictment on which he was tried was returned. ¹

In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752

(1977), the Supreme Court held that the speedy trial clause of the Sixth Amendment is inapplicable to preindictment delay. See United States v. Burkhalter, 583 F.2d 389, 392 (8th Cir. 1978). Unreasonable preaccusation delay, coupled with prejudice to the defendant, may, however, violate the due process clause of the Fifth Amendment. See United States v. Marion, 404 U.S. 307, 324-325 (1971); United States v. Burkhalter, supra at 392; United States v. Buttorff, 572 F.2d 619, 625 (8th Cir.), Cert. denied, 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978). In each case, the reasonableness of the delay must be balanced against any resultant prejudice to the defendant. United States v. Weaver, 565 F.2d 129, 131 (8th Cir. 1977), Cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978); United States v. Jackson, 504 F.2d 337, 339 (8th Cir. 1974), Cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975).

We find no unreasonable preindictment delay here. The investigation of this case was not concluded until March, 1977, when Hood's accomplice appeared before a federal grand jury and testified pursuant to a grant of immunity. The indictment on which Hood was tried was returned on May 25, 1977, some two months later. Periods of active investigation by the government may not ordinarily be considered in support of a claim of unreasonable preindictment delay. See United States v. Robertson; United States v. Little, 588 F.2d 575 at 577 (8th Cir. 1978). Moreover, although Hood's trial counsel alluded to the unavailability of two witnesses as a result of the government's delay, neither the identity of these witnesses, nor the content of their expected testimony, was given. Since Hood has alleged no specific incident of prejudice resulting from the government's delay, his claim is without merit. See United States v. Robertson; United States v. Little,supra at 577.

II.

Hood next contends that he was denied a fair trial by the trial court's refusal to poll the members of the jury about their possible exposure to an allegedly prejudicial newspaper article which was published in the local newspaper during the trial.

During Hood's trial, an article recounting the events of the trial appeared in the Fargo Forum, a local newspaper which has wide circulation in the Southeastern Division of the District of North Dakota where the trial was held. This article stated that through the testimony of Hood and his wife, defense counsel had demonstrated that although Hood had faced various criminal charges in other matters, all of those charges had been dismissed. In addition to listing charges which had been brought out at trial, the article also listed a charge of armed robbery in California, which had not been the subject of any trial testimony.

Whenever it appears during the course of a trial that the members of the jury may have been exposed to publicity which is adverse to the defendant, the trial judge must make an initial determination as to whether the publicity creates a danger of substantial prejudice to the accused. See United States v. Jones, 542 F.2d 186, 194-195 (4th Cir.), Cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976); United States v. Pomponio, 517 F.2d 460, 463 (4th Cir.), Cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975). If the trial judge determines that it does, the jurors should then be polled individually to determine whether they have in fact been exposed to the prejudicial information. If any jurors have been so exposed, the trial judge must ascertain the extent and effect of the infection, and what measures, including the possible declaration of a mistrial, must be taken to protect the rights of the accused. See Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Mastrian v. McManus, 554 F.2d 813, 819 n.5 (8th Cir.), Cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977); United States v. Word, 519 F.2d 612, 615 n.5 (8th Cir.), Cert. denied, 423 U.S. 934, 96 S.Ct. 29, 46 L.Ed.2d 265 (1975); United States v. Jones, supra at 194; United States v. Armocida, 515 F.2d 29, 49 (3d Cir.), Cert. denied 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975).

In this case, the trial court denied Hood's request for a poll of the members of the jury because, in its view, the information which was publicized failed to meet the threshold requirement of creating a danger of substantial prejudice to the accused. Prior to the publication of this information about Hood's arrest for an additional offense, Hood and his wife had already testified extensively about his prior arrests for three counts of murder in Arkansas, and for armed robbery and kidnapping in Arizona. Hood's defense was based upon the contention that he was being harassed by law enforcement authorities by the continual bringing of charges, and their eventual dismissal. While we believe that better practice would require the polling of the jury, we cannot say, under the particular circumstances here, that the court's failure to do so constituted an abuse of discretion. See United States v. Jones, supra at 194-195; United States v. Armocida, supra at 49; United States v. Anderson, 165 U.S.App.D.C. 390, 402, 509 F.2d 312, 324 (1974), Cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975).

III.

Hood next contends that he was denied his right to due process of law under the Fifth Amendment when the government was permitted to cross-examine him regarding his refusal to give a statement about his involvement in the crime to law enforcement authorities.

A suspect's refusal to give a statement does not generally constitute admissible evidence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Two Bulls, 577 F.2d 63, 66 (8th Cir. 1978). Such evidence is, however, admissible in certain atypical situations. United States v. Two Bulls, supra at 66. Since Hood testified on direct examination that he had offered to talk to the Federal Bureau of Investigation, he could be properly cross-examined as to his refusal to make any such statement to law enforcement authorities. Under these circumstances, Hood's prior silence was used solely to contradict his prior testimony. See Doyle v. Ohio, supra, 426 U.S. at 619 n.11, 96 S.Ct. 2240.

IV.

Hood next contends that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment. Specifically, Hood cites the failure of his trial counsel to make any motions for acquittal or for a new trial; his failure to move for a mistrial when certain allegedly prejudicial evidence was received; his unpreparedness for the examination of witnesses; and his general failure to perform with sufficient skill and diligence.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby. Benson v. United States, 552 F.2d 223, 224 (8th Cir.), Cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977); Pinnell v. Cauthron, 540 F.2d 938 (8th Cir. 1976). Our review of the record convinces us that Hood's trial counsel was prepared and that he generally performed with considerable skill and diligence. His failures to move for a mistrial do not support Hood's claim of ineffective assistance of counsel since we find no reason to believe that such motions would have been sustained had they been made. ² His failure to move for a judgment of acquittal or for a new trial also do not support Hood's contention since we find that the evidence was clearly sufficient to sustain the conviction. See Part VI, Infra.

V.

Hood next contends that he was denied his Fifth and Sixth Amendment rights by a communication from the trial court to the jury during the jury's deliberations. During its deliberations, the jury sent a note to the trial court which asked when the trial testimony would be available to them. The court responded by sending a note to the jury which stated, "It is not possible to have the testimony transcribed for the jury's use. Because of the time and expense involved, transcripts are prepared only when a case is appealed." Hood contends that since it is common knowledge among laymen that the majority of criminal appeals are by the defense after a guilty verdict, the court's reference to an appeal would have been interpreted by the jury to mean that the court believed that a guilty verdict was probable. The court's note was apparently sent without prior notice to Hood or his counsel.

It is clear that the trial court should have notified and consulted with the defense...