U.S. v. Marler, 84-1272

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation756 F.2d 206
Docket NumberNo. 84-1272,84-1272
Parties18 Fed. R. Evid. Serv. 208 UNITED STATES of America, Appellee, v. William T. MARLER, Defendant, Appellant.
Decision Date08 March 1985

Kathleen A. Bryan, Boston, Mass., with whom Michael A. Collora and Hemenway & Barnes, Boston, Mass., were on brief for defendant, appellant.

Frank D. Allen, Jr., Civil Rights Division, Dept. of Justice, Washington, D.C., with whom Walter W. Barnett, Wm. Bradford Reynolds, Asst. Attys. Gen., Washington, D.C., and William F. Weld, U.S. Atty., Boston, Mass., were on brief for appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and GIGNOUX, * Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

William T. Marler, formerly a Lynn, Massachusetts, police officer, appeals from his conviction in the United States District Court for the District of Massachusetts for willfully depriving Lawrence J. Brown of his civil rights in violation of 18 U.S.C. Sec. 242. 1

Marler contends that the federal government violated his sixth amendment right to a speedy trial and his fifth amendment due process rights by waiting overlong to indict him on federal civil rights charges after his indictment on state law charges arising from the same incident. He also argues that the district court committed reversible error by giving an incorrect jury instruction on causation under 18 U.S.C. Sec. 242 and by admitting an irrelevant and highly prejudicial statement made by Marler. We find these arguments unpersuasive and affirm the judgment of the district court.

The parties agree as to the preliminary events of the incident underlying Marler's conviction. On September 12, 1979, Marler, who was then off duty, was visiting with a fellow officer, Richard Blazak, and a friend of Blazak, Thomas Callinan, at the Lynn Yacht Club bar. A woman called the club's bartender, reporting that two men had removed a small package from Callinan's car. The bartender transmitted this information to Marler, Blazak, and Callinan, who left the club to investigate. Upon securing a description of the suspects and a statement that the suspects were walking toward the nearby Beef and Sea Restaurant, Blazak and Callinan took off in Callinan's car to find the suspects while Marler proceeded directly to the Beef and Sea on foot.

Marler testified that when he arrived at the Beef and Sea parking lot he spotted a man fitting the description of one of the suspects rummaging through a garbage barrel. Marler recognized the man to be Lawrence Brown, an alcoholic whom the Lynn police took into protective custody on a regular basis. At the time of the incident in question, Brown was drunk and unsteady. Marler also noticed a second man, later identified as Richard Anderson, sitting some feet away attempting to open a can of dog food with a rock.

At this point, Blazak and Callinan arrived. Marler, Blazak, and Callinan surmised that the package taken from Callinan's car was the can of dog food. Callinan decided not to press charges, but the officers decided to take Brown and Anderson into protective custody. Blazak asked an employee of the Beef and Sea to call for a police cruiser.

At this point, the testimony diverges. Marler asserts that Brown kept wandering off toward Lynn Harbor, which abutted the Beef and Sea's parking lot, in an effort to avoid custody. He testified that Blazak retrieved Brown a number of times and finally he himself attempted to bring Brown back into the group. According to Marler, Brown, in backing away from Marler, wandered too close to the bulkhead at the edge of the parking lot and either fell or jumped into Lynn Harbor. Marler states that he did not attempt to rescue Brown because of his fear of water. Instead, he contends that he returned to the group, led Anderson to the harbor's edge, and asked him to talk his friend into getting out of the water. According to Marler, Anderson then jumped into the harbor of his own accord to save his friend. Anderson swam to some rocks a few feet away and climbed to safety, but Brown drowned.

The United States version of these events is markedly different. It asserts that after having words with Brown, Marler intentionally pushed both Brown and Anderson into the water, causing Brown's death. The government presented two witnesses who testified that they saw Marler push both Brown and Anderson across the parking lot and into the water and three witnesses who did not see Brown being pushed into the water but who testified that they did see Marler push Anderson into the harbor. All the witnesses were situated in or near the Beef and Sea Restaurant, approximately 200 feet from the seawall where Brown went into the harbor.

After the incident, Marler gave his story to the police. When asked why he did not try to save Brown, Marler stated that he was afraid of water and that he "wouldn't go in any water for any fucken [sic] PC [ (person taken into protective custody) ]."

Less than two weeks after the incident, an Essex County grand jury indicted Marler for manslaughter and two counts of assault and battery. Tried before a jury in the state court in December 1979, he was acquitted of manslaughter but convicted on both counts of assault and battery. The Massachusetts Appeals Court reversed Marler's convictions, Commonwealth v. Marler, 11 Mass.App. 1014, 419 N.E.2d 854 (1981), but after a second state trial on the assault and battery charges in September 1981, Marler was again found guilty. He was sentenced to, and served, a sentence of three years' probation.

Federal authorities were not involved in the initial investigation into Brown's death nor in Marler's arrest. The incident was first brought to the attention of the federal government when the FBI received a complaint in January 1980, after the first state trial. Federal authorities secured the state court trial transcript in October 1980 but did not initiate their own investigation of the incident until December 1981. The federal government did not request that the state's evidence be transferred to it until August 1982, almost one year after the close of the second state trial. A federal grand jury first heard evidence in the case in July 1983 and ultimately indicted Marler for willfully violating Brown's right not to be deprived of liberty without due process of law. The present indictment was returned on November 3, 1983, over four years after the incident occurred.

On December 13, 1983, Marler moved in the district court to dismiss the federal indictment on speedy trial and due process grounds. After a hearing, the district court denied Marler's motion. United States v. Marler, 583 F.Supp. 1456 (D.Mass.1984). After a seven-day trial before a jury, Marler was convicted on March 1, 1984. On April 4, 1984, Marler was sentenced to 15 years. Marler filed a notice of appeal, and the court stayed execution of his sentence pending resolution of this appeal.

I. SIXTH AMENDMENT SPEEDY TRIAL RIGHT

Although the speedy trial provision of the sixth amendment 2 and the due process clause of the fifth amendment both protect individuals against unreasonable prosecutorial delay, they cover distinct stages of the pre-trial process. The Supreme Court has stated that "it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the Sixth Amendment." United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Thus, "[a]lthough delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, see United States v. Lovasco, 431 U.S. 783, 788-89 [97 S.Ct. 2044, 2047-2048, 52 L.Ed.2d 752] (1977), or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending." United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). 3

Marler does not complain of any undue delay in the period between his federal arrest and indictment and his federal trial. Instead, he claims that his sixth amendment right attached at the time of his state indictment, and that the 53-month interval between that indictment (September 24, 1979) and Marler's federal trial on charges arising from the same incident (February 21, 1984) constituted a violation of his speedy trial right. The question before us, then, is whether under these circumstances a state indictment may trigger an individual's speedy trial right so as to force the federal government to bring him promptly to trial on any federal charges that may arise from the same course of conduct.

Marler argues that the state indictment, like a federal arrest, "is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends." Marion, 404 U.S. at 320, 92 S.Ct. at 463. Because "[t]hese considerations were substantial underpinnings" for the Court's decision to extend the reach of the speedy trial guarantee to the arrest stage, id., Marler contends that the same considerations require us to find that his sixth amendment right attached when he was "accused" by the state.

Marler, however, overlooks Supreme Court precedent indicating that very different considerations control when the issue is whether accusation by one sovereign triggers speedy trial rights as to possible indictments by another sovereign.

Although the Supreme Court has never directly ruled on this issue, it gave a clear indication of its position in United States v. MacDonald, 456 U.S. at 6-11, 102 S.Ct. at 1500-03. In MacDonald, the Court held that the 51-month period between the dismissal of military charges against MacDonald and his subsequent indictment on...

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