U.S. v. Milhim

• Decision Date: 29 March 1983
• Docket Number: No. 82-1173,82-1173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George N. MILHIM, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 522

702 F.2d 522

UNITED STATES of America, Plaintiff-Appellee, v. George N. MILHIM, Defendant-Appellant.

No. 82-1173

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 29, 1983.

Lynch, Zimmerman, White & Allison, William P. Allison, (court-appointed), Michael F. Lynch, Austin, Tex., for defendant-appellant.

Mervyn Hamburg, Atty., Appellate Section, Crim. Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

On June 12, 1981, a federal grand jury indicted appellant Milhim for possession of counterfeit money under 18 U.S.C. Sec. 472. He was arrested and appeared before a magistrate on June 18, 1981. On June 24, 1981, he requested an extension of time for filing a possible plea bargaining agreement, and he waived his right to a speedy trial. On September 21, 1981, the jury was selected in his case but was not sworn, and the trial was scheduled for October 5, 1981. This trial date was later reset as October 26, 1981.

On October 20, 1981, a superseding three-count indictment was filed charging Milhim in Count I with conspiracy to receive and utter counterfeit money and to possess counterfeit money, 18 U.S.C. Sec. 371. In Count II the charge was possessing counterfeit money, 18 U.S.C. Sec. 472. Count III involved a charge of obstruction of justice by corruptly undertaking by threats and coercion to prevent a witness from testifying against him at trial, 18 U.S.C. Sec. 1503.

On October 26, the date scheduled for the trial under the earlier indictment, the government announced that it was ready to proceed. Milhim announced ready to proceed on the old indictment, but requested thirty days to prepare on the two new counts, Counts I and III in the superseding indictment. At this time, the government indicated it had no objection to retaining the previously selected jury. Milhim stated that he was opposed to being prosecuted on the new counts before the same jury, or even another jury selected from the same venire. The court, therefore, discharged the jury and stated that a new jury would be selected from a new panel whenever Milhim was prepared to proceed to trial.

On November 6, 1981, Milhim filed a motion to dismiss Counts I and II of the superseding indictment on the grounds that further prosecution violated the due process of law and the double jeopardy clauses of the Fifth Amendment. This motion was denied.

A new jury panel was brought in on January 25, 1982. A new jury was selected from that panel and the jury was sworn. On February 3, 1982, after trial, the jury convicted Milhim on Counts I and II. It was unable to reach a verdict on Count III, the obstruction of justice count. Appellant was sentenced to five years confinement on Count I and seven years confinement on Count II to run concurrently. A motion to be released on bond pending appeal was filed. After a hearing on April 1, 1982, the court denied this motion.

I.

Appellant's first contention on appeal is the assertion of error in the denial of his motion to dismiss Counts I and II of the indictment on the ground of double jeopardy. In this case the first jury was dismissed before it was sworn. Jeopardy does not attach in a criminal case until the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157, 57 L.Ed.2d 24 (1978); United States v. Futch, 637 F.2d 386, 389 (5th Cir.1981).

Milhim urges, however, that the Court should now reject this well settled rule on the ground that once the first jury has been chosen, the trial has begun for purposes of the Speedy Trial Act, 18 U.S.C. Sec. 3161. But the reason why the date of the beginning of the trial under the Speedy Trial Act should not control is well represented by this case. Milhim did not object to the court's dismissal of the first jury in favor of the second. Rather, the dismissal was wholly in response to his objection to having the first jury try his case. Further, he had earlier waived rights under the Speedy Trial Act. Milhim's failure to object to trying the case before the second jury, and indeed requesting that it not be tried before the first jury, constituted a waiver of his double jeopardy claim. See Grogan v. United States, 394 F.2d 287, 289 (5th Cir.1967), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100 (1968) (double jeopardy is an affirmative defense which can be waived); Leser v. United States, 358 F.2d 313, 318 (9th Cir.), cert. dismissed, 385 U.S. 802, 87 S.Ct. 10, 17 L.Ed.2d 49 (1966) (stipulation to substitution of alternate juror constituted waiver).

Even without waiver, however, appellant cannot prevail. This case is controlled by our decision in United States v. Alford, 516 F.2d 941 (5th Cir.1975). In that case several alleged conspirators were subjected to a multi-count indictment. Through an oversight, the government attached only a one-count indictment to the arrest warrants. As a result of the government error, one of the defendants appeared for trial without ever having received a copy of the correct indictment. This was discovered only after opening statements were made to the jury which had been empaneled and sworn. The district court declared a mistrial as to the defendant who had not received the copy of the correct indictment. The mistrial was granted on the ground that there was manifest necessity for such a declaration and there was no showing of prosecutorial overreaching. Id. at 946. We held that the district court was not required to drop the extra counts and proceed on the single count which the defendant had been ready to defend. This holding compels rejection of Milhim's argument that he is placed in double jeopardy by failure to proceed before the original jury on the original indictment.

Milhim's double jeopardy contention is wholly without foundation.

II.

Milhim next contends that the dismissal of the first jury and the compulsion to go to trial on the three later charges violated his due process right to proceed to trial once both parties had announced ready on the first indictment. Appellant cites no authority to support this proposition, which has no constitutional recognition. He does cite, however, Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965), under a general right to be heard "at a meaningful time and in a meaningful manner." The facts and holding of Armstrong v. Manzo are not relevant. The case involved the necessity for granting a hearing to a divorced father in an adoption proceeding by the child's mother and her successor husband. Milhim has not alleged nor shown any prejudice resulting from the claimed deprivation of due process rights. He had a full trial "at a meaningful time and in a meaningful manner."

III.

Milhim claims that he was denied his Sixth Amendment right to a speedy trial. This claim is based upon the fact that the circumstances underlying the charges arose in October 1979, but the superseding indictment was not filed until October 1981. The Supreme Court has identified four factors to be assessed in determining whether a defendant has been deprived of his right to a speedy trial: the length of delay, the reason for the delay, the defendant's assertion of his or her right to a speedy trial, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); see also Jamerson v Estelle, 666 F.2d 241, 243 (5th Cir.1982). The application of these four factors to Milhim's case reveals no constitutional violation.

The first inquiry is the length of the delay. The right to a speedy trial is not triggered by the date of the alleged crime but by the suspect's arrest or indictment, whichever occurs first. Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); United States v. Greer, 655 F.2d 51, 52 (5th Cir.1981). Milhim was originally indicted on June 12, 1981. The trial on the superseding indictment commenced on January 25, 1982, seven and one-half months later. In United States v. Maizumi, 526 F.2d 848, 851 (5th Cir.1976), this Court held that a ten and one-half months delay per se was not so unreasonably long that an inquiry into the other factors was necessary. Because the length of time which will be considered presumptively prejudicial varies from case to case, however, we enter into an examination of the other factors as well. See Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192.

The second factor is the reason for the delay. Milhim argues that the delay was...