U.S. v. Moran

• Decision Date: 28 June 1985
• Docket Number: Nos. 83-1295,83-3101,s. 83-1295
• Citation: 759 F.2d 777
• Parties: 17 Fed. R. Evid. Serv. 1161, 18 Fed. R. Evid. Serv. 594 UNITED STATES of America, Plaintiff-Appellee, v. Robert Leo MORAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 777

759 F.2d 777

17 Fed. R. Evid. Serv. 1161, 18 Fed. R. Evid.

Serv. 594

UNITED STATES of America, Plaintiff-Appellee, v. Robert Leo MORAN, Defendant-Appellant.

Nos. 83-1295, 83-3101.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 16, 1985.

Decided May 3, 1985.

As Amended June 28, 1985.

William Hogan, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Charles O. Morgan, San Francisco, Cal., for defendant-appellant.

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

Before WRIGHT and TANG, Circuit Judges, and CROCKER ^*, District Judge.

TANG, Circuit Judge:

Robert Leo Moran was convicted of conspiring to defraud the I.R.S. by laundering funds from the sale of narcotics, and was sentenced to 18 months in prison and fined $10,000 on November 18, 1983. Moran had been indicted on seventeen counts, but the district court dismissed sixteen counts before trial on the basis that pre-indictment delay violated Moran's due process rights. The government appeals the order dismissing the sixteen counts, asserting that Moran's due process rights were not violated by investigative delay. Moran appeals his

conviction, asserting that the remaining count should have been dismissed and he also makes several other assertions of error. We reverse the dismissal of Counts II-XVII, and affirm Moran's conviction on Count I.

FACTS

On March 11, 1980, Moran was first indicted for his alleged role in the conspiracy to import marihuana in the Helena Star case. ¹ Victorson and Hale, the government's two main witnesses against Moran, were free on bond pending the appeals of their convictions, and failed to appear in time for Moran's scheduled trial date of September 8, 1980. Without the presence of Victorson and Hale, the government declined to proceed with its prosecution; Judge Voorhees dismissed the indictment against Moran without prejudice on September 8, 1980.

Victorson and Hale returned to the United States from Bolivia in April 1981. At this time the government had obtained new information from Guillermo Cooke, a convicted heroin dealer recently released from federal prison. This information was an impetus for an expanded investigation into Moran's money laundering activities that went beyond the Helena Star incident, and involved investigation by Internal Revenue Service agents.

Moran was reindicted on April 15, 1983, some two years after the return of the key witnesses Victorson and Hale. The new indictment contained the original sixteen counts alleged in 1980, plus the added Count I, which alleged a conspiracy to defraud the Internal Revenue Service by laundering through foreign banks and corporations funds from narcotics smuggling.

Moran moved the district court to dismiss the new indictment as violative of his fifth amendment due process rights because of the pre-indictment delay of two years from the return of Victorson and Hale, over three years from the original indictment, and five years from the alleged criminal acts. On July 14, 1983, the district court dismissed Counts II-XVII of the indictment, leaving only the Count I tax avoidance conspiracy charge for trial.

On October 7, 1983 after a lengthy trial, the jury found Moran guilty of the charge. On November 18, 1983, Judge Voorhees sentenced Moran to 18 months imprisonment and fined him $10,000. Moran is free on bail pending appeal.

Government's Appeal: Dismissal of Counts II-XVII of the Indictment Against Moran.

In its Order of August 22, 1983, the district court concluded that re-indicting Moran resulted in his suffering a deprivation of due process because of pre-indictment delay, and ordered that Counts II-XVII be dismissed. The court found that Moran suffered actual prejudice consisting of the "verifiable inability of the defendant to present witnesses testimony previously available to him in September of 1980 ..." Furthermore, the court concluded that the government's delay was excessive, and not sufficiently justified under United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), and United States v. Mays, 549 F.2d 670 (9th Cir.1977).

Legal standard for determining if due process is violated by pre-indictment delay.

The Supreme Court and this circuit have established a two-prong test for determining if pre-indictment delay has risen to the level of a denial of due process. The first prong of this test is that the defendant must prove "actual prejudice" occurred from the delay. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048; United States v. Mills, 641 F.2d 785, 788 (9th Cir.1981), cert. denied The dispute over the applicable legal standard in this case centers around the second prong of the test. The United States asserts that the defendant must prove that the government intentionally delayed the indictment to gain a tactical advantage, or delayed it in reckless disregard of the circumstances indicating an appreciable risk of harm to the defense under Lovasco and a series of Ninth Circuit cases. Moran, relying principally upon United States v. Mays, 549 F.2d 670 (9th Cir.1977), contends that the second prong of the test requires the court to weigh the length of the delay with the reasons for the delay, and that under this test a showing of negligence is sufficient.

Y454 U.S. 902, 102 S.Ct. 409, 70 L.Ed.2d 221 (1981).

In Mays, our court expressly held that after actual prejudice is shown, the length of the pre-indictment delay and the reason for that delay must be weighed to determine if due process has been violated. 549 F.2d at 678. We also expressly acknowledged that delays caused by negligent conduct on the part of the government would be considered in the balancing because the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Id. Some of our cases have followed the Mays formulation of the balancing test, including consideration of negligent conduct. See, e.g., United States v. Tornabene, 687 F.2d 312, 317 (9th Cir.1982); United States v. Saunders, 641 F.2d 659, 665 (9th Cir.1980), cert. denied 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); United States v. Stone, 633 F.2d 1272 (9th Cir.1979); United States v. Valenzuela, 596 F.2d 824, 827 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979).

The government asserts that certain language from United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971) and Lovasco, 431 U.S. at 795, n. 17, 97 S.Ct. at 2051, n. 17, overrules Mays and requires that the defendant prove either intentional or reckless conduct on the part of the government. We reject this contention. The language from these two cases merely acknowledges governmental concessions that intentional or reckless conduct would or might be considered violations of the due process clause if actual prejudice had been shown. The Lovasco court did not set out intent or recklessness as required standards of fault. In fact, in both the Marion and Lovasco cases, the Court stated that it "could not determine in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions." Lovasco, 431 U.S. at 796, 97 S.Ct. at 2052. The Court further stated

"[w]e therefore leave to the lower courts, in the first instance, the task of applying the settled principles of due process that we have discussed to the particular circumstances of individual cases. We simply hold that in this case the lower courts erred in dismissing the indictment."

Id. at 797, 97 S.Ct. at 2052.

Thus, the government's assertion that Lovasco overrules the possibility that due process might be violated upon a negligent delay by the government is not supported by the cited cases. The Lovasco court simply held that after proof of prejudice is shown, "the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Id. at 790, 97 S.Ct. at 2048. This is fully consistent with the Mays standard.

We do acknowledge that some of our cases following Lovasco seem to have adopted intent and recklessness as a requirement for showing a due process deprivation. See United States v. Burns, 701 F.2d 840, 842 (9th Cir.) cert. denied --- U.S. ----, 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983); United States v. Walker, 601 F.2d 1051, 1056 (9th Cir.1979).

In Burns, the defendant did not show any prejudice from the delay, therefore, the language regarding intent or reckless disregard is merely dictum. 701 F.2d at 842. In Walker the court considered expressly whether Lovasco overruled Mays, and held that the balancing test and results in the Mays case were consistent with the Lovasco- The determination of whether a pre-indictment delay has violated due process is essentially decided under a balancing test, Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048; Mays, 549 F.2d at 677, and we do not find that intent or reckless behavior by the government is an essential ingredient in the mix. If mere negligent conduct by the prosecutors is asserted, then obviously the delay and/or prejudice suffered by the defendant will have to be greater than that in cases where recklessness or intentional governmental conduct is alleged.

case, 601 F.2d at 1056, n. 1, but did not address the question of whether negligent conduct could provide a sufficient basis for a deprivation of due process under the right circumstances.

After making the balancing determination, a pre-indictment delay will be permissible unless it violates fundamental conceptions of justice which lie at the base of our civil and political institutions. Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048. Furthermore, in this area, the due process clause plays a limited role because primary protection is afforded to defendants by the applicable statute of limitations. Id. at 789, 97 S.Ct. at 2048.

Under the correct legal standard, the district court erred in dismissing Counts II-XVII.

The district court...