U.S. v. McManaman

• Decision Date: 01 October 1979
• Docket Number: No. 78-1168,78-1168
• Citation: 606 F.2d 919
• Parties: 5 Fed. R. Evid. Serv. 116 UNITED STATES of America, Plaintiff-Appellee, v. Leroy Basil McMANAMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 919

606 F.2d 919

5 Fed. R. Evid. Serv. 116

UNITED STATES of America, Plaintiff-Appellee, v. Leroy Basil McMANAMAN, Defendant-Appellant.

No. 78-1168.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 26, 1979.

Decided Oct. 1, 1979.

Stephen K. Lester, Asst. U. S. Atty., Wichita, Kan. (James P. Buchele, U. S. Atty., Wichita, Kan., on brief), for plaintiff-appellee.

Thomas G. Hanlon, Tulsa, Okl., for defendant-appellant.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Leroy Basil McManaman appeals his convictions of conspiracy to possess with intent to distribution of and distribute methamphetamine, a controlled substance, and of possession with intent to distribute and distribution of methamphetamine, in violation of 21 U.S.C. Sections 846 and 841(a)(1). ¹

Count I of the indictment charged that defendant and unindicted coconspirators Harold Richard Shipman (deceased), Mary Eileen Shipman (Harold Shipman's wife), and Roanna McManaman Barkley (defendant's daughter), were involved in the conspiracy at specified times in 1977. Counts II, III and IV charged possession with intent to distribute and distribution by defendant of methamphetamine on April 28, June 21, ² and June 25 of 1977, respectively. ³

The jury found defendant guilty of counts I and II, not guilty of count III, and reached no verdict as to count IV. Count IV was then dismissed on the Government's motion. (I R. 22; III R. 459-462). Defendant On appeal, defendant asserts error in the following particulars: (1) the overruling of his motion to dismiss due to delay in arrest and accusation; (2) the admission of evidence of a conversation between defendant and Mary Shipman, who was working for the Government, after defendant was arrested and in the absence of his counsel; (3) the admission through that conversation of highly prejudicial collateral evidence of plans to commit murder; (4) the admission of statements of Harold Shipman who was deceased at the time of trial; ⁴ (5) the admission of tapes of only a portion of a conversation between Harold Shipman and Government informer Danny Austin; and (6) the denial of a motion for judgment of acquittal based on insufficiency of the evidence.

was sentenced to five years' imprisonment on each conviction, the sentences to run concurrently, and to a special parole term of two years. (I R. 22; III R. 467-471).

While we conclude that we must remand for a new trial as explained in Part III, we discuss the other questions since they are matters which might bar prosecution altogether or will likely be problems in a further trial.

I PRE-INDICTMENT DELAY

First, defendant contends that the delay from April 28 to July 6, 1977 in charging him was purposeful, prejudicial, and designed to gain for the Government a tactical advantage.

Defendant was originally charged by a complaint executed July 6, 1977, in the District of Kansas (I R. 1); he was arrested the same day. The complaint alleged one count of possession with intent to distribute and distribution of methamphetamine on April 28. An information filed on July 13 alleged possession with intent to distribute and distribution of the drug on that date. The superseding indictment described above was returned on August 26. At trial defendant challenged the delay in accusation and arrest by a motion to dismiss. The trial judge overruled this motion, holding that the delay of five to six months to investigate was not unreasonable. (II R. 7, 10).

On appeal defendant argues that the delay deprived him of the testimony of Harold Shipman who, if he had not died on May 22, "could have been a witness for the defendant." Further, the charges added in the indictment, especially the conspiracy charge, were added "for the sole purpose of illiciting (sic) hearsay testimony and that of the deceased, Harold Shipman." For these reasons defendant claims he has been deprived "of a fair trial as provided for by the 5th and 6th Amendments . . ." (Brief of Defendant, 5).

It is well-settled 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 speedy trial provision of the Sixth Amendment." United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 39 L.Ed.2d 468; United States v. Lovasco,431 U.S. 783, 788, 97 S.Ct. 2044, 52 L.Ed.2d 752. Since the delay involved occurred before defendant was charged or restrained, his reliance on the Sixth Amendment is misplaced. ⁵

To support a due process claim of unlawful preindictment delay under the Fifth Amendment the Supreme Court has made it clear that the defendant must show actual prejudice resulting from the preindictment delay and that the delay was purposefully designed to gain a tactical advantage or to harass the defendant. United States v (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.

Marion, supra, 404 U.S. at 325, 92 S.Ct. 455; United States v. Lovasco, 431 U.S. at 790, 97 S.Ct. 2044; United States v. Revada, 574 F.2d 1047, 1048 (10th Cir.); United States v. MacClain, 501 F.2d 1006 (10th Cir.); United States v. Redmond, 546 F.2d 1386 (10th Cir.), Cert. denied, 435 U.S. 995, 98 S.Ct. 1645, 56 L.Ed.2d 83; United States v. Beitscher, 467 F.2d 269, 272 (10th Cir.). In Beitscher we stated the test as follows (467 F.2d at 272):

We cannot agree that any actual prejudice to defendant has been shown. The mere allegation that the deceased Shipman could have testified for the defendant does not establish that he would have so testified or that his testimony would have been helpful. In fact, defendant nowhere shows how the witness would have aided the defense, had he been available and willing. See United States v. Lovasco, supra, 431 U.S. at 786, 97 S.Ct. 2044. And there is no showing that the Government had any information that Shipman's death was imminent.

Moreover the entire period from the April 28 offense until return of the indictment on August 26 was only some four months, during which time investigation continued, events premising the two added substantive counts occurred, and additional evidence was gathered supporting the conspiracy charge. In the circumstances this was not an unreasonable period for a conspiracy investigation. The Supreme Court has said that "to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." United States v. Lovasco, supra, 431 U.S. at 796, 97 S.Ct. at 2052. ⁶ In any event there is no constitutional right to immediate arrest, even when the Government's evidence becomes strong enough to support probable cause or guilt beyond reasonable doubt. Such a requirement would unduly fetter those charged with enforcing the laws, and would hamper other considerations affecting the justice done in an individual case. See United States v. Lovasco, 431 U.S. at 790-795, 97 S.Ct. 2040; Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374.

Thus we conclude that there was no error in denying the motion to dismiss based on the claim of pre-indictment delay.

II THE CONVERSATION WITH MARY SHIPMAN

Defendant argues that statements he made to Mary Shipman in a conversation on August 1, 1977, should have been excluded. The conversation occurred at a tavern in Valley Center, Kansas, and the Wichita police recorded it as received from an electronic transmitter worn by Mrs. Shipman. Among other things the two referred briefly to some drug dealings between themselves (Ex. 25A at 23, 32-33) and also discussed in detail killing Government witness Austin and an agreement that defendant kill another man, George Poulos. (Ex. 25A at 5, 20, 21, 25, 27).

Defendant says the statements were obtained through secret interrogation by At trial defendant testified in his own behalf. In addition to explaining that the various meetings with Mrs. Shipman and others involved loans and not drugs (III R. 298-300, 302-303, 310; Cf. III R. 305, 332, 355-356), he denied ever having drug dealings with Mrs. Shipman or anyone else at any time. (III R. 300, 307, 310, 331). On cross-examination the Government, asking about specific statements in the August conversation, attacked this testimony. (III R. 343-347). Defendant either denied or could not remember these statements (Id.), and the Government in rebuttal offered evidence of the conversation. (III R. 348-349, 351-354, 357-359, 365; Exs. 25 and 25A).

Mrs. Shipman while working as a Government agent after defendant McManaman was charged and arrested and without the presence of his counsel, ⁷ in violation of his rights under the Fourth, Fifth and Sixth Amendments; that the statements were made after any alleged conspiracy had ended; and that the reference to doing away with Austin injected a highly prejudicial collateral issue. We will deal with the problem concerning secret interrogation after arrest and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, first.

The trial court overruled defendant's objection to questioning concerning the August 1 conversation, relying on Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (III R. 337), and admitted evidence of the conversation. At the time the objections to the transcript of the conversation (Government Exhibit 25A) were overruled and the tape was admitted, the trial court gave a cautionary instruction to the jury (III R. 367-68):

I will overrule it. The tape is admitted, ladies and gentlemen of the jury, from a legal standpoint to be considered only in connection with or as to the question of impeachment of the testimony of the defendant. In other...