U.S. v. Medina-Arellano

• Decision Date: 13 March 1978
• Docket Number: No. 76-2818,MEDINA-ARELLAN,D,76-2818
• Citation: 569 F.2d 349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 349

569 F.2d 349

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

No. 76-2818.

United States Court of Appeals, Fifth Circuit.

March 13, 1978.

Irwin G. Lichter (court-appointed), Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Miami, Fla., C. Wesley G. Currier, Hugh F. Culverhouse, Jr., Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM and GEE, Circuit Judges, and VAN PELT ^*, District Judge.

WISDOM, Circuit Judge:

Jose Medina-Arellano appeals from judgments entered against him on verdicts finding him guilty of conspiracy to import cocaine and conspiracy to possess cocaine with the intent to distribute it. Medina assigns three points of error. First, he points out that the indictment in this case was returned nearly four years after the occurrence of the alleged offenses. He contends that this delay violated his fifth amendment right to due process of law, because it caused him to forget a possible alibi defense. Second, Medina contends that the trial court's refusal to grant a continuance before or during trial deprived his attorney of sufficient time to prepare his defense, thereby depriving him of effective assistance of counsel guaranteed by the sixth amendment. Third, Medina assigns as error the refusal of the trial court to grant a mistrial when the government's chief witness stated that he had pleaded guilty to a charge of conspiracy to distribute cocaine. Medina contends that the trial court's curative instruction about the guilty plea was inadequate.

We find no merit in any of Medina's contentions, and affirm the judgment of the district court.

I.

The indictment against Medina charged that he and fifteen other named defendants conspired to import cocaine into the United States and to possess cocaine with the intent to distribute it. ¹ Seven of these defendants were tried along with Medina. The indictment also named six unindicted coconspirators.

The indictment charged that Medina participated in the drug conspiracies from March 28, 1972, to August 30, 1972. The government based its case largely on the testimony of an unindicted coconspirator, Jorge Ramos, a paid government informant. Ramos had been involved in several trials and grand jury proceedings in various jurisdictions from the time he became an informant, 1972, until the time of trial in this case, April and May of 1976.

Medina was indicted on narcotics charges on February 19, 1976. He was arraigned on April 9, 1976. The trial court appointed Irwin G. Lichter of Miami to represent Medina. Lichter was informed of his appointment on April 12, 1976. On April 12 or 13, the trial court set April 26, 1976, as the trial date for Medina.

Lichter's records reflect that he received notice of the trial date by April 21. On that date, Lichter moved for a continuance on the ground that he had two other trials pending in federal court. By the time of trial, however, the conflicts had disappeared. The motion for a continuance was denied. At trial, Lichter stated that he had been physically unable to complete his reading of the six-inch stack of discovery material available to him. Lichter renewed his motion for a continuance at various times during the eight-day trial, but these motions, too, were unsuccessful.

At trial, Ramos testified that while in Haiti he had seen Medina place large amounts of cocaine in plastic bags. Ramos testified that Medina brought him four kilograms of cocaine on one occasion and six kilograms on another occasion, and that he paid Medina $10,000 for the cocaine. Medina did not take the stand, and Ramos's statements of Medina's involvement were never contradicted.

On direct examination, Ramos testified that he had pleaded guilty to conspiracy to possess cocaine. The defendants' attorneys objected, and moved for a mistrial. They argued that this testimony was prejudicial because the jury could infer that Ramos had pleaded guilty to this conspiracy to possess cocaine. The trial judge, however, instructed the jury that "Mr. Ramos was found guilty of a crime several years ago" and that "(w)hat he did in his case" was irrelevant to their deliberations in the case at trial.

II.

We find that the four-year delay in this case between the crime alleged and arraignment did not violate the fifth amendment due process clause. Delay before indictment or arraignment involves the fifth amendment's due process guarantee rather than the sixth amendment's speedy trial provision. United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. See United States v. Ewell, 1966, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627.

Generally, before a conviction may be reversed for preindictment delay, the defendant must show that he has been prejudiced. United States v. Lovasco, 1977, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752. ² This Court "has consistently held that speculative allegations, such as general allegations of loss of witnesses and failure of memories, are insufficient to establish the requisite actual prejudice". United States v. Avalos, 5 Cir. 1976, 541 F.2d 1100, 1108. See United States v. McGough, 5 Cir. 1975, 510 F.2d 598, 604; United States v. Zane, 5 Cir. 1973, 489 F.2d 269, 270. Even if a defendant has been "somewhat prejudiced by the lapse of time", the due process clause does not always require reversal of his conviction if there has been a valid purpose for the delay. United States v. Lovasco, 431 U.S. at 796, 97 S.Ct. at 2044.

In each case, the prejudice to the defendant is to be weighed against the validity of the government's reason for delay. This balancing is to determine if it would be "fundamentally unfair" to compel the defendant to stand trial. United States v. Lovasco, 431 U.S. at 796, 97 S.Ct. 2044. See also United States v. Brand, 5 Cir. 1977, 556 F.2d 1312, 1317 n.7.

Medina's allegations of prejudice here could hardly be more speculative. He contends that the government's delay totally deprived him of " a possible alibi defense". This speculative contention is entitled to little weight in the due process analysis. See United States v. Avalos, 5 Cir. 1976,541 F.2d 1100, 1108, which also involved a four-year delay, and in which "(t)he appellants . . . alleged only in the most general and conclusory fashion that the government's delay resulted in faded memories and a loss of potential defense witnesses."

The government has an explanation for its delay in indicting Medina. It was using its chief witness, Jorge Ramos, in four separate narcotics prosecutions in the Southern District of New York from late 1972 until 1975. Medina's bare allegation of improper tactical purpose on the government's part is insufficient to establish a malevolent purpose. United States v. Marion, 1971, 404 U.S. 307, 324-25, 92 S.Ct. 455, 30 L.Ed.2d 468, 481. See United States v. Avalos, 5 Cir. 1976, 541 F.2d 1100, 1108; United States v. Butts, 5 Cir. 1975, 524 F.2d 975, 977 & n.2; United States v. DiNapoli, 2 Cir. 1977, 557 F.2d 962, 966. The government's reason for delay is not the most compelling. Cf. Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stanford L.Rev. 525, 526-27 (1975). The government might well have been able to spare Ramos from the New York prosecutions for the time needed to seek indictments against Medina and the others involved in this proceeding. Nevertheless, this Court has recognized that "the necessity of allocating prosecutorial resources" may cause delays valid under the Lovasco analysis. United States v. Shaw, 5 Cir. 1977, 555 F.2d 1295, 1299.

Given Medina's inability to show prejudice we hold that compelling him to stand trial, after the delay that occurred, was not fundamentally unfair and did not violate due process.

III.

Generally, "(a) motion for a continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there was a showing that there has been an abuse of that discretion." United States v. Uptain, 5 Cir. 1976, 531 F.2d 1281, 1285. See, e. g., Avery v. Alabama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; United States v. Gidley, 5 Cir. 1976, 527 F.2d 1345; United States v. Gates, 5 Cir. 1977, 557 F.2d 1086, 1088. Medina contends that the trial court's denial of a continuance violated his sixth amendment right to the effective assistance of counsel, because his lawyer had inadequate time to examine effectively the discovery material provided by the government. ³

Since the trial, Medina's attorney has examined the government's discovery material and has identified material that allegedly would have helped Medina's case. Our consideration of this point, therefore, is aided by hindsight.

Usually, the issue of proper or improper denial of a continuance "must be decided . . . in light of the circumstances presented, particularly the reasons for continuance presented to the trial court at the time the request is denied". United States v. Uptain, 5 Cir. 1976, 531 F.2d 1281, 1285-86. See Ungar v. Sarafite, 1964, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921; McKinney v. Wainwright, 5 Cir. 1974, 488 F.2d 28, cert. denied, 416 U.S. 973, 94 S.Ct. 1998, 40 L.Ed.2d 562. This rule obtains because the denial of the continuance often prevents the appellate court from knowing what facts would have come to light at trial had the continuance been granted. For example, when a continuance to subpoena witnesses is denied, the appellate court cannot know, usually, whether the witness could have been located within a reasonable time, or, often, what the substance of his testimony would have been. See United States v. Gidley, 5 Cir. 1976, 527 F.2d 1345; United States v. Pollack, 5 Cir. 1970, 427 F.2d 1168. Similarly, when a defendant is denied a continuance to obtain another lawyer, or to await the recuperation of an ill member of a defense team, it...