U.S. v. Nichols, 90-2398

• Decision Date: 11 September 1991
• Docket Number: No. 90-2398,90-2398
• Citation: 937 F.2d 1257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherman NICHOLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1257

937 F.2d 1257

UNITED STATES of America, Plaintiff-Appellee, v. Sherman NICHOLS, Defendant-Appellant.

No. 90-2398.

United States Court of Appeals Seventh Circuit.

Argued June 18, 1991.

Decided July 23, 1991.

Rehearing and Rehearing En Banc

Denied Sept. 11, 1991.

John F. Hartmann, Brian W. Blanchard, Crim. Div., Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Sheldon Nagelberg, Michael B. Nash, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, COFFEY and RIPPLE, Circuit Judges.

BAUER, Chief Judge.

A jury found Sherman Nichols guilty of: 1) use of a firearm in relation to a drug-trafficking crime, 18 U.S.C. Sec. 924(c); 2) possession of cocaine, 21 U.S.C. Sec. 841(a)(1); and 3) possession of a firearm by one previously convicted of a felony. 18 U.S.C. Sec. 922(g)(1). He was sentenced to 20 years in prison. In this direct criminal appeal, Nichols challenges his conviction.

I. BACKGROUND

A. Facts

On the evening of March 11, 1989, two plainclothes police officers received a call regarding a man with a gun at 2447 East 79th Street in Chicago. As they approached that building, the officers observed a man and a woman speaking to each other in the doorway--the man had a gun with a wooden handle protruding from the waistband of his pants. When the officers identified themselves as the police, the man ran into the building and up some stairs, entered an open apartment, and slammed the door shut. The officers broke down the door, ran down the hallway, and found Nichols in the kitchen. One officer testified that he saw Nichols with his arm through the burglar bars and heard a "thud." The other officer testified that he saw Nichols drop the gun through the bars. The officers found a loaded Smith & Wesson .357 Magnum blue steel revolver with a wooden handle on the back porch.

The officers arrested and searched Nichols. They found a leather pouch strapped around his waist containing a plastic Tylenol bottle with nine individually wrapped tin foil packets of a mixture of low purity cocaine weighing a total of .83 grams. They also found $605 in five, ten, and twenty dollar bills.

B. Procedural History

Nichols has been in custody since his arrest. After the local charges against him were dismissed, he was immediately arrested by the United States Marshals. A federal indictment was returned on December 6, 1989 on the charge of possession of a firearm by a previously convicted felon. Nichols was tried on that count on February 7, 1990. A mistrial was declared when the jury was deadlocked in an eleven to one split in favor of finding Nichols guilty. The government then brought a superseding indictment in which it added two more charges: possession of cocaine and use of a firearm in drug trafficking. On April 6, 1990, a jury found Nichols guilty of all three charges.

Nichols moved for a new trial on the basis of discrimination in the jury selection on April 18, 1990. The court denied his motion. Nichols then asked the court to reconsider that denial until a transcript of the jury selection could be procured. On May 31, 1990, the court heard further argument on the merits of the motion for a new trial, which it denied on the same day.

On appeal Nichols contends that he was denied due process by: 1) the government's delay in charging him; 2) the government's bringing additional charges in retaliation for his exercising his right to a trial; and 3) the government's exercise of its peremptory challenges to eliminate all black females from the jury.

II. ANALYSIS

A. Delay in the Charge

The government did not charge Nichols for almost nine months after the events in question occurred. The superseding indictment was brought more than 11 months after his arrest. Nichols argues that the delay in charging him denied him due process by preventing him from effectively defending himself and by giving the government a tactical advantage. Nichols failed to raise this argument before the district court and thus has waived it on appeal. See Fed.R.Crim.P. 12(b)(1) (objections to untimely prosecution are to be brought before trial by motion). This court may review this issue only if Nichols establishes that the government committed plain error in failing to bring charges at an earlier date. Fed.R.Crim.P. 52(b); see also United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982) (appellate courts may correct "particularly egregious errors"). There is plain error where a conviction results when, but for the error, the defendant would have been acquitted. United States v. Felton, 908 F.2d 186, 188 (7th Cir.1990).

Although a statute of limitations is the primary guarantee against prosecutorial delay, the due process clause also plays a limited role in protecting defendants against "oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). To determine whether the due process clause requires the dismissal of an indictment on the basis of undue pre-indictment delay, a court must engage in a two-step inquiry: 1) the defendant must prove actual and substantial prejudice; and 2) the court must weigh the prejudice to the defendant against the reasons for the delay. United States v. Antonino, 830 F.2d 798, 804 (7th Cir.1987). The mere passage of time in itself is not enough to show prejudice. United States v. Perry, 815 F.2d 1100, 1103 (7th Cir.1987).

At the time of Nichols' arrest, there were three or four other people in the apartment. They were patted down to make sure that they had no guns. An officer testified that he had other officers interview those people, but there are no police records of any interviews or of the identity of the individuals. Nichols' defense was that the gun was not his and that it was there before he entered the apartment. Nichols argues that the delay between the arrest and the indictment prejudiced him because he had no opportunity to locate, interview, and subpoena the individuals who were at the apartment at the time of his arrest. He further argues that the failure on the part of the Chicago police to memorialize the identification and prospective testimony of these people created a presumption that their testimony would have been favorable to Nichols. See United States v. Mahone, 537 F.2d 922, 926 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976) (citing Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893)).

In support of his contention, Nichols cites a case that this court remanded because the investigation by the Chicago police was so "sloppy" that, by the time the federal authorities took the case, "it was too late to conduct a reasonable investigation." United States v. Morales, 902 F.2d 604, 607 (7th Cir.), amended on other grounds, 910 F.2d 467 (1990). There, too, the Chicago police followed a man into a building, found a gun, and charged him with possessing a firearm. There, too, the defendant denied that he had put the gun there. However, that is where the comparison ends. The issue in Morales was sufficiency of the evidence. The issue here is pre-indictment delay, and prejudice caused by such delay is difficult to prove.

A defendant's showing of prejudice must be "concrete, not speculative." United States v. Doerr, 886 F.2d 944, 964 (7th Cir.1989). Nichols does not know who those people in the apartment were. He does not know whether they lived there or whether they had been there for just a few minutes before he arrived. Nor does he know if any of them would have testified that the gun was on the back porch before he arrived. While it is true that it would have been useful had the Chicago police kept a record of its interview with these potential witnesses, "[a] defendant must do more than allege that a particular witness is no longer available and that the witness's testimony would have helped the defense." Antonino, 830 F.2d at 895. There is no way of knowing if those present in the apartment would have presented exculpatory testimony, would have withstood cross-examination, or would have been found credible by the jury. Doerr, 886 F.2d at 964. Nichols has failed to make the requisite showing of actual and substantial prejudice and, consequently, has not shown plain error.

B. Retaliation

Nichols also argues that the government's superseding indictment after the mistrial was an act of retaliation for Nichols' not having been convicted the first time around. Because Nichols did not object to the superseding indictment or raise the issue of prosecutorial vindictiveness below, he has also waived this issue on appeal. United States v. Whaley, 830 F.2d 1469, 1475 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988) (citing Fed.R.Crim.P. 12(b)(1), (f)). An exception to the waiver rule is where "exceptional circumstances demand more flexibility." Id. at 1476. The threat of a much greater penalty is an "exceptional circumstance" that warrants appellate review of the possibility of a vindictive motive in bringing the new indictment, but under a plain error analysis. Id. Here, Count Two of the superseding indictment required a mandatory increased sentence of five years consecutive to the sentence imposed on Count Three. ¹

Due process prohibits vindictiveness against a defendant for having exerted his constitutional rights. North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). There is a presumption of vindictiveness when the prosecutor brings a superseding indictment with increased charges after a defendant has exercised his right to a trial de novo. Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 2102-03, 40 L.Ed.2d 628 (1974). However, this presumption does not apply in the pretrial setting, where the prosecutor has broad discretion in charging a defendant. United States v. Goodwin, 457 U.S. 368, 382, 102 S.Ct....