U.S. v. Jenkins, 81-1886

• Decision Date: 28 February 1983
• Docket Number: No. 81-1886,81-1886
• Citation: 701 F.2d 850
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose JENKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 850

701 F.2d 850

UNITED STATES of America, Plaintiff-Appellee, v. Jose JENKINS, Defendant-Appellant.

No. 81-1886.

United States Court of Appeals Tenth Circuit.

Feb. 28, 1983.

Reber Boult, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M. (Don J. Svet, U.S. Atty., Albuquerque, N.M., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY and SEYMOUR, Circuit Judges, and KELLY, District Judge. ^*

HOLLOWAY, Circuit Judge.

Defendant-appellant Jose Jenkins brings this timely appeal of his convictions on Counts I through IV of a six-count indictment. Count I charged that Jenkins and a Ms. Jennings possessed with intent to distribute a quantity of cocaine, a Schedule II narcotic drug controlled substance on or about April 17, 1979 in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. ¹ Count II charged that Jenkins and Ms. Jennings distributed a quantity of cocaine in violation of the same statutes, also on or about April 17, 1979. Count III charged Jenkins alone with possession with intent to distribute a quantity of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) on or about April 23, 1979. Count IV charged Jenkins alone with distribution of a quantity of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) on or about April 23, 1979. Counts V and VI made similar possession and distribution charges against Jenkins alone, alleged to have occurred on or about April 24, 1979, but he was acquitted on those charges. Ms. Jennings made a plea bargain with the Government and agreed to testify against Jenkins in this case, which she did. (V R. 246-47).

For reversal, defendant argues (1) that the seven month delay between his offenses and the indictment was violative of his Fifth Amendment due process rights, (2) that the sixteen month delay between his indictment and his arrest violated his Sixth Amendment right to a speedy trial, (3) that the trial court erred in refusing to give an instruction on his defense that if he was acting as a government informer, or reasonably so believed, he should be acquitted, and (4) that the Government's peremptory challenge of the only Black on the jury panel gave rise to a requirement that the Government state its reason for the challenge, defendant being a Black. We find no merit in these contentions and accordingly affirm.

I

The Government's evidence tended to show the following circumstances:

During April 1979 Detective John Maruffi of the Albuquerque, New Mexico, police department and a confidential informant, both then engaged in an undercover drug investigation, negotiated with defendant for the sale to them of quantities of cocaine. Sales of approximately one and one-half ounces of cocaine which resulted in defendant's convictions took place on April 17 and 23, 1979. There is no dispute as to the occurrence of the sales; the only question at trial was as to the extent of defendant's participation in the sales and the reasons for that participation. (Appellant's Brief In Chief at 2, n. *).

On April 26, 1979, police officers executed a search warrant at defendant's home. Defendant was present throughout the search. The search was unproductive, and the officers released defendant without charging him. (II R. 34, 37, 42-43). Upon completion of his investigation concerning the defendant, Detective Maruffi forwarded the case to the United States Attorney's office in Albuquerque in mid-May, 1979. A grand jury indicted defendant and Ms. Jennings approximately seven months later, on November 19, 1979, jointly on Counts I and II and defendant Jenkins alone on Counts III through VI. As noted, Ms. Jennings made a plea bargain and testified for the Government against Jenkins in this case.

After the indictment was returned Detective Maruffi and, subsequently, Deputy United States Marshal Rudy Montoya attempted to apprehend defendant. Defendant had in fact left Albuquerque in May of 1979 and had moved into his parents' home in Victorville, California. He remained in residence there until his arrest on March 23, 1981, approximately sixteen months after his indictment. The record reveals no credible evidence that defendant left Albuquerque to avoid arrest, that he attempted to conceal his whereabouts, or that he knew of the indictment returned against him. (See II R. 38-39).

Defendant left no forwarding address with the Albuquerque post office (II R. 52); he did, however, leave an accurate forwarding address to his parents' Victorville home with his immediate past employer, the Council of Governments, with the City of Albuquerque, and with the Public Employees' Retirement Association. (II R. 29-30, 35; Defendant's Exhibits IIA, IIB). ² In August 1979 defendant obtained employment in California with the Bendix Corporation, which he still held at least through sentencing. (II R. 36, Appellant's Brief in Chief at 3). The Government points to the fact that defendant initiated no telephone or electric or gas utility service in his name upon his arrival in California. We note, however, that defendant was living with his parents and it would appear unnecessary that defendant initiate any such service in his own name.

In attempting to locate defendant, Maruffi and Montoya, among other things, ³ checked the post office for a forwarding address, checked in Los Angeles for utility service in defendant's name, and made numerous standard inquiries in the Albuquerque area. Maruffi and Montoya did not contact defendant's past employers and they did not attempt to reach any of his relatives, although either of those contacts would have resulted in ascertaining defendant's California address.

It was not until March 23, 1981, that the investigating officers located defendant. An informant then told Montoya of defendant's Victorville, California, residence, and defendant was arrested the same day. In view of these circumstances surrounding the sixteen month delay between defendant's indictment and arrest, the trial judge found that "the government was negligent in failing to locate the defendant, I think it properly could have ...." (VI R. 409-10). The trial judge nevertheless denied defendant's motion to dismiss which was based in part on this delay, after an evidentiary hearing.

Defendant was then tried before a jury on July 1, 2, and 6, 1981. As defendant's brief states, there was no question that the April 17 and 23, 1979, cocaine sales were made. The dispute was over the extent, if any, of defendant's participation and what the reasons were for any participation by him. (Appellant's Brief in Chief at 2, note *). Defendant testified he was working as an informant in the transactions so that he did not have the required intent to violate the law. The officer with whom he said he was working, Mr. Mares, admitted earlier contacts with defendant in that capacity and payment of money to defendant, but denied any such contacts at the time of the offenses.

Defendant was found guilty on two counts of possession with intent to distribute cocaine and two counts of distribution of cocaine. The trial judge merged Count I with Count II and Count III with Count IV for the purpose of sentencing and sentenced defendant to two terms of five years' imprisonment on the Counts as merged, with a special parole term of three years on each, the sentences all to run concurrently, and defendant appeals.

II

Defendant first contends that the delay of approximately seven months from the time of the offenses until the indictment violates his Fifth Amendment due process rights. ⁴ The Supreme Court has held that although a defendant's primary protection against the Government's prosecution of overly stale criminal charges is the statutes of limitations, the Fifth Amendment's Due Process Clause does have a "limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977).

Under Marion and Lovasco we have applied a two-part due process test to identify oppressive pre-indictment delay violative of the Fifth Amendment:

[T]he rights of a defendant under the due process clause of the Fifth Amendment are not violated in the absence of a showing of actual prejudice resulting from the preindictment delay and that the delay was purposefully designed to gain tactical advantage or to harass the defendants.

United States v. Revada, 574 F.2d 1047, 1048 (10th Cir.1978), quoting United States v. Beitscher, 467 F.2d 269, 272 (10th Cir.1972). Accord, United States v. Gutierrez, 696 F.2d 753 (10th Cir.1982); United States v. McManaman, 606 F.2d 919, 922-23 (10th Cir.1979); United States v. Redmond, 546 F.2d 1386, 1388 (10th Cir.1977), cert. denied, 435 U.S. 995, 98 S.Ct. 1645, 56 L.Ed.2d 83 (1978); United States v. MacClain, 501 F.2d 1006, 1010 (10th Cir.1974).

We conclude that defendant's due process rights have not been violated by pre-indictment delay here. First, defendant has neither shown nor alleged actual prejudice resulting from such delay sufficient to violate the Fifth Amendment. Defendant merely testified and argued that he recognized voices of several witnesses, whom he named from hearing Government tapes; that he was unable to locate a number of these witnesses who would be important to his defense; that witnesses who were found had fading memories on important defense matters, and that his own memory as to events surrounding his offense was failing. (Appellant's Brief In Chief at 9-10; e.g., II R. 39-41). However, defendant does not demonstrate what particular facts could be proven by the witnesses. Vague and conclusory allegations of prejudice resulting from the passage of time and the absence of witnesses are insufficient to constitute a showing of actual prejudice for the purposes of impermissible preindictment delay; defendant must be able to show definite and not speculative prejudice, and in what specific manner missing witnesses would...