U.S. v. Neal

• Decision Date: 21 July 1994
• Docket Number: No. 90-1957,90-1957
• Citation: 27 F.3d 1035
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin Glenn NEAL, Ricky Clyde Duncan, Leslie Raymond Jones, Clifford P. Sutherland, James Glen Pace, Evelyn Austin Graham, Timothy Wade Green, Jacky Ronald Pace, Gilbert D. Smith, Jimmy Wayne Joyce, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1035

27 F.3d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Melvin Glenn NEAL, Ricky Clyde Duncan, Leslie Raymond Jones Clifford P. Sutherland, James Glen Pace, Evelyn Austin Graham, Timothy Wade Green, Jacky Ronald Pace, Gilbert D Smith, Jimmy Wayne Joyce, Defendants-Appellants.

No. 90-1957.

United States Court of Appeals Fifth Circuit.

July 21, 1994.

Rehearing Denied Sept. 22, 1994.

George R. Trimber (Court-appointed), Trimber & McAfee, Ft. Worth, TX, for Jones.

Franklin W. Cram, Arlington, TX (Court-appointed), for Sutherland.

John F. Taylor (Court-appointed), Cantey & Hunger, Ft. Worth, TX, for Pace.

George B. Macky, Ft. Worth, TX (Court-appointed), for Graham.

Stephen Mitchell, Hurst, TX (Court-appointed), for Joyce.

Stephen M. Stasio, Ft. Worth, TX (Court-appointed), for Green.

R.H. Wallace, Jr. (Court-appointed), Shannon, Gracey, Ratliff & Miller, Ft. Worth, TX, for Jacky Pace.

Gerhard Kleinschmidt, Ft. Worth, TX (Court-appointed), for Smith.

Danny O. Burns, Ft. Worth, TX (Court-appointed), for Duncan.

David L. Richards, Ft. Worth, TX (Court-appointed), for Neal.

Joe C. Lockhart, Asst. U.S. Atty., Dallas, TX, Fred Schattman, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Ft. Worth, TX, for appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendants Jacky Ronald Pace, James Glen Pace, Melvin Glenn Neal, Ricky Clyde Duncan, Leslie Raymond Jones, Clifford P. Sutherland, Evelyn Austin Graham, Timothy Wade Green, Gilbert D. Smith, and Jimmy Wayne Joyce ("the Defendants") were jointly tried and convicted of various offenses stemming from a conspiracy to manufacture, possess, and distribute amphetamine. All ten defendants were convicted of conspiring to manufacture, distribute, or possess with intent to distribute a controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988). ¹ All ten defendants now appeal their convictions. We affirm in part, vacate in part, and remand in part.

I

In 1984 and 1985, Jacky Pace operated an extensive conspiracy to distribute amphetamine. At varying points throughout the conspiracy's existence, Pace recruited the other Defendants into his organization. ² Pace also established a network of phony corporations ("the JRP group") to purchase the chemicals and equipment necessary to manufacture amphetamine and to launder the money he received from his amphetamine operations. Agents of the Drug Enforcement Administration ("DEA") and the Texas Department of Public Safety ("TDPS") apparently learned of Pace's involvement in the amphetamine trade through surveillance of Metroplex Chemicals, a Dallas business that supplied chemicals and glassware to amphetamine manufacturers.

In June 1987, the government brought a forty-three count indictment charging thirty-one persons with various offenses arising out of their participation in Pace's amphetamine distribution ring. The case proceeded to trial in May 1989, but the district court declared a mistrial because of excessive publicity. In October 1989, the case again proceeded to trial, and the jury returned with its guilty verdicts in September 1990.

II

The Defendants first argue that their Fifth Amendment rights to due process were violated by the excessive delay between the occurrence of the last overt act taken in furtherance of the conspiracy and the bringing of the indictment. The Due Process Clause of the Fifth Amendment protects an accused against preindictment delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). To prove a due process violation, the Defendants must demonstrate both that the prosecutor intentionally delayed the indictment to gain a tactical advantage and that the Defendants incurred actual prejudice as a result of the delay. United States v. Delario, 912 F.2d 766, 769 (5th Cir.1990); United States v. Amuny, 767 F.2d 1113, 1119 (5th Cir.1985). Because the Defendants have not attempted to demonstrate that actual prejudice resulted from the delay, ³ and because the record does not support a claim of prejudice, we conclude that the pre-indictment delay did not violate the Defendants' due process rights. See United States v. Harrison, 918 F.2d 469, 474 (5th Cir.1990) (noting that vague assertions of lost witnesses, failed memories, and missing records do not demonstrate actual prejudice).

III

A

The Defendants next contend that the district court erred in denying their motions to dismiss based upon alleged violations of the Speedy Trial Act. The Act requires that a federal criminal defendant be tried within seventy days of his indictment or appearance in front of a judicial officer, whichever is later. 18 U.S.C. Sec. 3161(c)(1). If the Act is violated, the indictment must be dismissed. However, the Act provides for a number of exclusions--time that is not charged against the seventy-day clock. See 18 U.S.C. Sec. 3161(h); United States v. Williams, 12 F.3d 452, 459 (5th Cir.1994). It is the Defendants' burden to demonstrate that a violation of the Act occurred. 18 U.S.C. Sec. 3162(a)(2).

Here, the Act's clock began to run on November 16, 1987, the day the last defendant appeared before a judicial officer. United States v. Welch, 810 F.2d 485, 488 n. 1 (5th Cir.1987) ("[D]efendants who are joined for trial generally fall within the speedy trial computation of the latest defendant."). At that time, several Defendants already had filed pretrial motions, and pretrial motions of some type remained pending until May 3, 1989. ⁴ Thus, the trial clock was tolled during that entire time period. ⁵ See Walker, 960 F.2d at 414 ("Delays resulting from pre-trial motions will toll the trial clock indefinitely; there is no independent requirement that the delay attributable to the motions be reasonable.") (internal quotations omitted). Additional pretrial motions were filed on May 10 and were pending until May 15, when the trial began. Thus, from November 16, 1987 until May 15, 1989, less than one week ran on the Act's seventy-day clock.

On May 18, the district court declared a mistrial, thereby resetting the trial clock to zero. 18 U.S.C. Sec. 3161(e). On the same day, Jacky Pace filed a motion seeking an examination to determine his competency. Thus, the period from May 18 until August 25--when Pace was found competent to stand trial--must be excluded. 18 U.S.C. Sec. 3161(h)(1)(A). Moreover, pretrial motions filed by several Defendants were pending until September 20. Thus, only four days had run from the clock when the Defendants' second trial began on September 25. Consequently, no violation of the Speedy Trial Act occurred.

B

The Defendants also allege a violation of the Sixth Amendment. The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." The right to a speedy trial "attaches at the time of arrest or indictment, whichever comes first, and continues until the date of trial." United States v. Garcia, 995 F.2d 556, 560 (5th Cir.1993). In resolving a constitutional speedy-trial claim, we must examine: (1) the length of the delay, (2) the reason for the delay, (3) when the defendant asserted his speedy trial rights, and (4) any prejudice to the defendant resulting from the delay. ⁶ Barker v. Wingo 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Here, the government concedes both that the two-year delay at issue is "presumptively prejudicial" under the first prong of the test and that several of the Defendants asserted their speedy-trial rights "early and fairly often." Therefore, we must balance those factors against the remaining two factors of the Barker test.

In examining the reasons for the delay, we must heed the Supreme Court's warning that "pretrial delay is often both inevitable and wholly justifiable." Doggett v. United States, --- U.S. ----, ----, 112 S.Ct. 2686, 2693, 120 L.Ed.2d 520 (1992). This principle is particularly appropriate here, where much of the delay was occasioned by the Defendants' pretrial motions, requests for continuances, and motions for competency examinations. ⁷ See United States v. Jernigan, 20 F.3d 621, 622 (5th Cir.1994). Moreover, in light of the extremely complex factual nature of the case and the difficulties involved with such a large trial, ⁸ a sixteen month delay between indictment and trial--or twenty-four months between indictment and the start of the second trial--is not unreasonable. Finally, we must note that the Defendants have not demonstrated that "the [g]overnment ... intentionally held back in its prosecution ... to gain some impermissible advantage at trial." Doggett, --- U.S. at ----, 112 S.Ct. at 2693.

We also must weigh the fourth factor--whether the Defendants suffered any prejudice as a result of the delay--against the Defendants. Although affirmative proof of particularized prejudice is not essential to every speedy trial claim, id. at ----, 112 S.Ct. at 2692, the Defendants have alleged neither that they were subjected to excessive pretrial incarceration nor that they were anxious or concerned while awaiting trial. See Garcia, 995 F.2d at 561. Moreover, the Defendants--excluding Glen Pace--have not attempted to demonstrate that the delay impaired their defense. Thus, we reject the Defendants' contention that their constitutional right to a speedy trial was violated. See Doggett, --- U.S. at ----, 112 S.Ct. at 2692 (noting that a constitutional violation is not made out if the defendant cannot show specific prejudice and the government acted reasonably under the circumstances).

Glen Pace argues that, as a result of the delay, "he lost his opportunity to present evidence as two witnesses died and his army records were lost." Pace, however, has failed to demonstrate that the allegedly lost evidence impaired his defense to any significant degree. For example, he has not...