U.S. v. L'Allier, 87-1460

Citation838 F.2d 234
Decision Date28 January 1988
Docket NumberNo. 87-1460,87-1460
Parties24 Fed. R. Evid. Serv. 716 UNITED STATES of America, Plaintiff-Appellee, v. Kent Thomas L'ALLIER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Gerald C. Nichol, Madison, Wis., for defendant-appellant.

Daniel P. Bach, Asst. U.S. Atty., John R. Byrnes, U.S. Atty., Madison, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Defendant-appellant, Kent Thomas L'Allier, was convicted of two counts of armed robbery under 18 U.S.C. Secs. 2113(a) and (d). L'Allier challenges his conviction on the grounds that: (1) the government's delay in indicting him violated the due process clause of the fifth amendment; (2) the district court's denial of his motion to suppress identification evidence was an abuse of discretion; (3) counts I and II of his indictment were improperly joined and the district court abused its discretion when it denied his motion to sever; and (4) the district court erred by permitting the introduction of certain evidence despite the government's failure to establish a complete chain of custody. We affirm.

I.

On October 29, 1984, a single armed robber took $7,940 from the Community State Bank of Eau Claire, Wisconsin. Witnesses described the robber as a man between five feet ten inches and six feet tall, 160 to 170 pounds, with a slim build. The robber wore a white hooded sweatshirt with the hood pulled up, dark gloves, dark glasses, a false mustache and a false beard. He fled the bank on foot into a nearby neighborhood. A few days before the robbery, a resident of Chippewa Street (a street near the bank) saw a man wearing a white sweatshirt with "USA" printed on the front "scouting" the neighborhood.

On April 22, 1985, the Community State Bank of Eau Claire was robbed again by a single armed robber. This time the robber took $3,085 from the bank, including $500 of prerecorded bait bills in $20 denominations. 1 Witnesses described the robber as a man with a slim build, between five feet eight inches and six feet tall, and weighing between 140 and 170 pounds. The robber wore a blue hooded sweatshirt, a green stocking cap, dark glasses, brown work gloves, a false mustache and a false beard. The robber was armed with a small chrome or silver plated revolver. He fled the bank on foot toward the homes on Chippewa Street.

From October 11, 1984 through October 17, 1984, L'Allier rented a room at the Westgate Motel in Eau Claire, Wisconsin under the name "Dennis Sigsworth." The defendant again rented a room at this hotel under this same alias from April 10, 1985 to April 16, 1985 and on several other occasions.

The defendant was arrested on an unrelated charge on June 24, 1985. When arrested, L'Allier identified himself as Dennis Sigsworth. The arresting officers found a small silver revolver wrapped in a green ski mask in L'Allier's car. L'Allier's car was then driven to the St. Croix County Sheriff's Department where it was sealed with evidence tape. Earl Clark and Mark Willink of the St. Croix Sheriff's Department conducted an inventory search of the car on June 25, 1985. At trial, Clark testified that during the inventory search of L'Allier's car they found three white hooded sweatshirts and at least one blue pullover. Willink testified that they found three white hooded sweatshirts, one of which had "USA" in red letters on the front, and two blue pullovers. They also found two pairs of brown work gloves. In addition, Clark and Willink found ten twenty dollar bills, seven of which were bait bills from the April 22, 1985 bank robbery. On July 10, 1985, the St. Croix Sheriff's Department released L'Allier's car and personal articles to his brother, Randy L'Allier. An FBI agent retrieved three sweatshirts, one plain white, one blue and one white with the letters "USA" printed on it, from Randy's home on July 16th.

On October 8, 1986, a federal grand jury indicted L'Allier on two counts of armed bank robbery in violation of 18 U.S.C. Secs. 2113(a) and (d). The first count charged L'Allier with the October 29, 1984 armed bank robbery of the Community State Bank of Eau Claire, Wisconsin. Count II charged the defendant with the April 22, 1985 armed robbery of the same bank. The defendant moved to dismiss his indictment on the basis of impermissible preindictment delay. The district court denied the motion. Before trial, L'Allier also moved to have counts I and II of his indictment severed. L'Allier argued that severance was required because the crimes charged in the two counts were not sufficiently related. L'Allier also asserted that severance was necessary on the ground that the government's case on count II was much stronger than its case on count I. This disparity in the strength of the government's evidence, L'Allier argued, would prejudice his defense and cause a jury to convict him on both counts, even though standing alone there was not enough evidence to prove guilt beyond a reasonable doubt on count I. The district court also denied this motion.

At trial, L'Allier moved to suppress any in-court identification of himself by Rick Iverson, a government witness, on the ground that Iverson's identification would be based on an impermissibly suggestive pretrial identification procedure. Iverson testified that he saw the defendant outside the Eau Claire bank just prior to the April 22, 1985 robbery, but admitted that he had been shown a pretrial photo display. The district court held that the pretrial identification procedure was not impermissibly suggestive and therefore denied L'Allier's suppression motion. Finally, L'Allier sought to prevent the introduction into evidence of several sweatshirts because the government could not establish a complete chain of custody. The district court admitted the sweatshirts over L'Allier's objection.

A jury found L'Allier guilty of both armed bank robberies. The district court sentenced L'Allier to two consecutive ten year prison sentences, and to an additional five year prison term on each count pursuant to the enhancement provisions of 18 U.S.C. Sec. 924(c). The five year enhancement sentences are concurrent with one another and consecutive to the initial ten year sentences.

II.

L'Allier first argues that the district court erred in denying his motion to dismiss his indictment. L'Allier claims that excessive pre-indictment delay actually and substantially prejudiced his defense in violation of the due process clause of the fifth amendment. L'Allier was arrested on charges unrelated to the bank robberies on June 24, 1985. The following day, the St. Croix Sheriff's Department performed an inventory search of his car which revealed evidence linking L'Allier to both armed robberies. L'Allier was not indicted for the armed bank robberies, however, until October 8, 1986--two years after the first robbery and sixteen months after the search of his car revealed evidence related to those crimes. L'Allier argues that this delay was excessive and caused him actual and substantial prejudice in the presentation of his defense.

L'Allier claims actual and substantial prejudice to his defense in two different forms. First, L'Allier asserts that as a result of the delay his memory of the events of October 29, 1984 and April 22, 1985 was diminished. Thus, L'Allier argues, he was unable to assist his counsel because he could not recall his whereabouts and activities on the dates of the robberies. Second, L'Allier alleges that he was prejudiced by a similar memory loss on the part of the witnesses to the bank robberies. L'Allier argues that the witnesses' faded memories prejudiced his defense because the witnesses could not clearly recall whether or not he was actually the person they saw robbing the bank on those dates. There is no evidence, apart from L'Allier's allegations, that he or any witness to the robberies was actually unable to recall any of the events of October 29, 1984 or April 22, 1985.

The relevant statute of limitations provides the primary protection for defendants against prejudice that could result from excessive pre-accusation delay. United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). 2 The indictment in this case was returned well within the applicable statute of limitations. 3 The due process clause of the fifth amendment, however, does have a limited role to play in the protection of defendants' rights prior to indictment and the prevention of oppressive delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, reh. denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). Thus, an indictment must be dismissed pursuant to the due process clause if a defendant can show that the pre-indictment delay caused substantial prejudice to his or her right to a fair trial and the delay was intentionally designed to gain a tactical advantage over the defendant. Marion, 404 U.S. at 324, 92 S.Ct. at 465. The defendant bears the burden of showing actual and substantial prejudice to his or her defense resulting from the delay. United States v. Brock, 782 F.2d 1442, 1443 (7th Cir.1986).

While actual prejudice makes a due process claim ripe for adjudication, it does not make the claim automatically valid. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. "[P]roof of prejudice is generally a necessary but not sufficient element of a due process claim," the reasons for the delay must be considered along with the prejudice to the defendant. Id. at 790, 97 S.Ct. at 2048-49. Even a short and necessary delay may actually and substantially prejudice a defendant's case, and yet "no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution." Marion, 404 U.S. at 324, 92 S.Ct. at 465. A court must therefore weigh the actual prejudice to the defendant against the reasons for the delay to...

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