U.S. v. Nixon

Decision Date16 January 1981
Docket NumberNo. 79-5509,79-5509
Citation634 F.2d 306
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Franklin Eugene NIXON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

G. Thomas Davis, Atlanta, Ga., for defendant-appellant.

James E. Fagan, Jr., Asst. U. S. Atty., Atlanta, Ga., John F. DePue, Atty., Appellate Sect., Crim. Div., U. S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before COLEMAN, Chief Judge, RONEY and GARZA, Circuit Judges.

RONEY, Circuit Judge:

Four years after counterfeit charges were voluntarily dismissed in response to a speedy trial motion, Franklin Nixon was convicted of perjury in denying to a grand jury any complicity with the counterfeiting. He asserts this denied him his right to a speedy trial, the perjury being but an extension of the counterfeit charge. We disagree. Finding no reversible error in his other points on appeal, we affirm.

In order to understand the speedy trial issue, the dates upon which certain events transpired are important.

On June 27, 1975, based on the testimony of an alleged accomplice, a complaint charging counterfeiting was filed against Nixon and he was arrested two days later. His home was searched pursuant to a search warrant, and a printing press, a paper cutter, a cloth wiper containing traces of green ink, and other evidence were seized. A search of his business premises revealed concealed above a room partition a quantity of paper of the type used for printing genuine currency.

Additional evidence against Nixon was not forthcoming, however. Divers searched the bottom of Lake Lanier where the accomplice indicated Nixon had disposed of counterfeiting paraphernalia. They were unable to locate any evidence. No other witnesses with compelling evidence against defendant were identified. Having only the accomplice's testimony and some physical evidence corroborating the story, the Assistant United States Attorney in charge of the case did not believe he could convince a jury Nixon was guilty beyond a reasonable doubt. Nixon was a wealthy man with a good reputation in the community and no apparent motive for engaging in counterfeiting. The prosecutor, recalling an earlier attempt to convict a prominent citizen of counterfeiting on the basis of the testimony of an alleged accomplice, concluded he could not convict in the face of a parade of character witnesses he expected Nixon to present. So, when on November 20, 1975, some five months after his arrest, Nixon filed a speedy trial motion, the prosecutor voluntarily dismissed the charge under rule 48(a) of the Federal Rules of Criminal Procedure instead of responding to the motion.

The record indicates that during 1976 and the first part of 1977 the Assistant United States Attorney considered the case still open and believed the Secret Service was still actively investigating it, although he had no expectation that any particular piece of additional evidence would be located. During that time there were several contacts between the United States Attorney and defendant's attorney involving efforts by defendant to persuade the prosecution to drop the case and return the seized printing press and other evidence.

Sometime around the middle of 1977, the Secret Service came up with what is termed in the record "another piece of evidence" and located an additional witness that had previously been overlooked. Seeking to revitalize the case, the Government asked a grand jury to look into defendant's alleged counterfeiting.

Two witnesses were called before the grand jury on August 16, 1977, another was called on October 10, and on December 6 the defendant himself was called. Defendant read a statement to the grand jury and then answered the Assistant United States Attorney's questions, denying all involvement in counterfeiting. It was the answers to these questions which formed the basis for the later perjury indictment. The prosecutor did not seek an indictment for counterfeiting from the grand jury. Shortly thereafter the Assistant United States Attorney resigned, the case was assigned to another prosecutor, and nothing further happened for a year.

Then, in December 1978, a college student walking along the shore of Lake Lanier found a plastic bag containing counterfeit bills and counterfeiting paraphernalia, previously described to the Secret Service. Defendant's and the accomplice's fingerprints were found on several pieces of this evidence.

As a result of this discovery, on April 18, 1979, a new grand jury indicted Nixon for perjury allegedly committed in his appearance of December 6, 1977, in which he denied all knowledge of or complicity in the counterfeiting alleged to have taken place in 1975. He was tried and found guilty of six counts of perjury and was given six concurrent two-year jail sentences from which he now appeals.

Speedy Trial/Due Process

Defendant contends the indictment should have been dismissed because the delay between his initial arrest for counterfeiting and his trial for perjury violated his rights to a speedy trial as guaranteed by the Sixth Amendment, and that the delay in bringing him to trial prejudiced his ability to defend himself and therefore is a violation of his right to due process under the Fifth Amendment.

Defendant relies heavily on United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). In that case, the Government arrested defendant on drug charges in Washington, D. C. and then dismissed the charges in what the Court of Appeals for the D. C. Circuit found was a deliberate attempt at forum shopping. United States v. Lara, 172 U.S.App.D.C. 60, 520 F.2d 460 (D.C.Cir.1975). Defendant was rearrested in Miami and tried. Reviewing his speedy trial claim, we held the applicable period for a speedy trial ran continuously from his arrest in Washington until his trial in Miami, even though there was a nine-month period between the Washington dismissal and the Miami arrest when he was not under arrest or indictment.

Avalos would control this case in defendant's favor had his second trial been for counterfeiting. A complaint and arrest is the type of public accusation that sets in motion the accused's right to a speedy trial, Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) (per curiam ); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Dismissing an indictment does not toll the speedy trial calendar when the next indictment is for precisely the same offense and the same transaction. United States v. Avalos, 541 F.2d at 1109.

It is clear from Avalos, however, as well as other cases, that "(f)or purposes of determining when the right to speedy trial attaches the basis for the arrest is critical." Gravitt v. United States, 523 F.2d 1211, 1215 n.6 (5th Cir. 1975) (emphasis in original). In Gravitt, petitioner was initially arrested on a state warrant charging armed robbery and assault. A search incident to the arrest revealed a large number of firearms. Some time later, a formal complaint and arrest warrant were filed by federal officials charging him with interstate transportation of firearms by a convicted felon. When the speedy trial question was presented, the Court focused on the basis of the arrest and held that the time was not to be measured from the time of the initial arrest but from the time the petitioner was accused of the crime he was then challenging. The cases of United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973), and United States v. Cabral, 475 F.2d 715 (1st Cir. 1973), also make it clear that the basis of the arrest is critical.

Of course, if the second charge is but a part of or only gilds the initial charge, the initial arrest would start the critical period for trial. As the Seventh Circuit observed in DeTienne :

(I)f the crimes for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision's applicability as to prosecution for all the interrelated offenses.

468 F.2d at 155.

Such is not the case here. The 1975 arrest was for counterfeiting. The conviction in 1979 was for perjury. While the perjury was related to the events of 1975, the actual offense of perjury for which defendant was indicted and convicted had not even occurred in 1975, nor would it occur for another two and a half years. The different accusatorial dates are thus very "reasonably explicable," and the perjury charge does not merely "gild the charge" underlying the original arrest. Even though proof of perjury must rely in part on the same facts as would support a counterfeiting charge, perjury is a distinct and separate offense. Even if the indictment for counterfeiting had been dismissed with prejudice on speedy trial grounds, the Government would still be permitted to use the underlying facts in that offense as the basis for a charge that the defendant committed the different offense of perjury. See United States v. Stricklin, 591 F.2d 1112, 1120 (5th Cir. 1979), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1980) (When a prior indictment is dismissed, "the government is not barred from using the underlying facts in that offense as the basis for a charge that he committed a different offense").

A speedy trial claim as to each separate offense must stand or fall on its own merits, based upon when the defendant was accused, by arrest or indictment, of that specific offense. Hence, just as perjury committed when one testifies falsely in self-defense during the trial for a substantive offense is separate and distinct from the underlying offense and may be subsequently prosecuted,...

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