U.S. v. McConahy, 74-1393

• Decision Date: 16 January 1975
• Docket Number: No. 74-1393,74-1393
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Malcolm McCONAHY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 770

505 F.2d 770

UNITED STATES of America, Plaintiff-Appellee, v. Malcolm McCONAHY, Defendant-Appellant.

No. 74-1393.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 4, 1974.

Decided Nov. 5, 1974, Rehearing Denied Jan. 16, 1975.

Wayne H. Rusch, Madison, Wis., for defendant-appellant.

William J. Mulligan, U.S. Atty., and Randall Standfort, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, STEVENS and TONE, Circuit Judges.

TONE, Circuit Judge.

This appeal concerns the right to a speedy trial under a federal indictment when the defendant was serving a prison sentence in a foreign country.

In January 1969 the defendant Malcolm W. McConahy was released on bail pending appeal after having been convicted of mail fraud in the United States District Court for the Eastern District of Wisconsin and sentenced by that court to imprisonment for one year and one day. The bond signed by him required his appearance at all future hearings in the cause and gave his address as 120 South 12th Street, Minneapolis, Minnesota. When McConahy failed to appear at a hearing in the Wisconsin state court on an unrelated state charge, the federal prosecutor moved for an increase in the federal bond and mailed notice of this motion to McConahy at the Minneapolis address given in the bond. McConahy failed to appear at the hearing on the motion. The District Court then entered an order requiring him to appear on April 21, 1969 and providing that if he failed to appear his bond would be forfeited and a bench warrant issued. Notice was sent to McConahy at the same address. He again failed to appear, and on May 13, 1969 an indictment was returned against him under 18 U.S.C. 3150 charging wilful failure to appear as required by the order.

According to a stipulation between the government and the defendant in this case, from the time he was released on bond until January 21, 1969 McConahy lived with his father at the Minneapolis address. On that date he went to California and remained there until at least March 3, 1969. On June 17, 1970 McConahy was arrested in London, England, where he was held until the following September by reason of the pending charges in the United States and thereafter on forgery charges brought against him by the British government. In March 1971 he was convicted on the British charges and sentenced to a term of five years imprisonment with a recommendation for deportation.

McConahy was released from British custody on December 24, 1973 and deported to the United States in January 1974. His trial on the bail-jumping charges was held before the court without a jury on May 8, 1974, approximately five years after the date of the indictment. Prior to trial he filed a motion to dismiss the indictment on the ground that the government had failed to give him a speedy trial as guaranteed by the Sixth Amendment. The motion was ruled on during the trial, after the introduction of evidence bearing upon the motion. The court, while finding that 'the ability to defend is made more difficult for both the government and the defendant by the period of delay involved,' held that the defendant was not entitled to dismissal because 'the government is not chargeable with delay.' At the conclusion of the trial, the court found McConahy guilty.

The government concedes that 'the defendant from time to time has asserted his speedy trial rights.' It is therefore unnecessary to describe in detail McConahy's requests made during the time he was incarcerated in England that arrangements be made to return him to the United States for trial.

The government also concedes, and the District Court found, prejudice resulting from the delay. The prejudice consisted of the unavailability of witnesses whose testimony would have been relevant on the issue of whether McConahy's failure to appear on April 21, 1969 was wilful, i.e., whether he received notice that he was required to appear on that date and whether he understood prior to that date that he was permitted to leave the jurisdiction and would not be required to be in court for an extended period. Cf. United States v. DePugh, 434 F.2d 548 (8th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328 (1971); United States v. Reed, 354 F.Supp. 18 (W.D.Mo.1973). He testified that there were three witnesses who would have been able to testify concerning communications he claimed to have received from his then attorney to the effect that he was permitted to leave the jurisdiction. One of the witnesses, his father, had died in 1973. His present attorney was unable to locate the other two witnesses, whom McConahy had known in California in 1969. McConahy also testified that as a result of the lapse of time he had lost notes and correspondence that would have had a bearing on wilfulness. Had the issue been McConahy's state of mind in May 1970, when he was apprehended in England, we would have great difficulty in finding that the alleged lost evidence was material. The relevant time, of...