U.S. v. Page

• Decision Date: 23 November 1976
• Docket Number: No. 76-1612,76-1612
• Citation: 544 F.2d 982
• Parties: 1 Fed. R. Evid. Serv. 466 UNITED STATES of America, Appellee, v. Kenneth Wayne PAGE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 982

544 F.2d 982

1 Fed. R. Evid. Serv. 466

UNITED STATES of America, Appellee, v. Kenneth Wayne PAGE, Appellant.

No. 76-1612.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 13, 1976.

Decided Nov. 23, 1976.

John R. Hearn, Des Moines, Iowa, for appellant.

John M. Fitzgibbons, Asst. U. S. Atty., Des Moines, Iowa, for appellee; Allen L. Donielson, U. S. Atty., Des Moines, Iowa, on brief.

Before LAY, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Kenneth Wayne Page appeals from his conviction following a jury trial for interstate transportation of a stolen motor vehicle. In this appeal appellant contends that the district court ¹ committed error in failing to dismiss the indictment for pre-indictment delay and lack of speedy trial and also in admitting into evidence a lease agreement involving the stolen automobile. For the reasons stated below, we affirm.

Appellant Page was charged in a one-count indictment with transporting in interstate commerce a stolen motor vehicle from Mississippi to Iowa in violation of 18 U.S.C. § 2312. The offense was alleged to have occurred on or about December 8, 1974, at which time Page was arrested in Story County, Iowa, in possession of the stolen automobile by a local law enforcement official. Appellant admitted to one official that he had stolen the auto at knifepoint in Mississippi, and to another official that he knew the auto was stolen. Thereafter, appellant signed a waiver of extradition and was returned to Mississippi where he was imprisoned on unrelated charges. The government contends that its active field investigation continued until September 26, 1975, because the victim of the alleged offense could not be located previously. The indictment was filed on December 18, 1975. At the time the indictment was returned, Page was incarcerated in the Mississippi State Penitentiary on a state burglary charge. On April 22, 1976, while still in prison, Page filed a pro se motion to dismiss the federal indictment on the ground that he was denied his right to a speedy trial in violation of the Speedy Trial Act of 1974. On April 26, 1976, the government requested from the district court an order that would bring Page to the Southern District of Iowa from prison in Mississippi. Page was arraigned on May 3, 1976, and he entered a plea of not guilty to the instant charge.

The trial before a jury began on June 21, 1976. The evidence adduced at trial revealed that on the evening of November 22, 1974, Burl D. Coffelt was drinking in a cocktail lounge in Gulfport, Mississippi, when he was introduced to Kenneth Wayne Page. They proceeded to play pool and visit various drinking establishments in the Gulfport area. According to Coffelt, both men entered his rented 1975 four-door Ford automobile at some time later in the evening. Coffelt testified that Page then placed a gun to Coffelt's head, gave instructions to drive north out of Gulfport toward a desolate area of rural Mississippi, and ultimately stole Coffelt's cash, personal valuables, and automobile.

On December 8, 1974, a deputy marshal in Huxley, Iowa, came into contact with Page in a parking lot where Page was observed driving a 1975 green Ford automobile with Mississippi license plates. As a result of a license check on the vehicle, Page was arrested. Following his arrest, Page revealed to local law enforcement officials that he had stolen the car in Mississippi. Based on this and other evidence, the jury returned a verdict of guilty, and the trial court sentenced Page to five years imprisonment.

I.

We consider initially appellant's contention that the district court erred in refusing to dismiss the charge against Page because of pre-indictment delay between December 8, 1974, the date of arrest, and December 18, 1975, the date of indictment. The relevant delay in this case is slightly more than 12 months. The district court conducted pretrial evidential hearings and specifically found that the governmental pre-indictment delay was reasonable, as justified by a proper effort to locate a key witness. The trial court further found that the defendant had not made an adequate showing of prejudice.

In United States v. Marion, 404 U.S. 307, 324-26, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court recognized that governmental pre-prosecution delay may violate a defendant's right to due process under the Fifth Amendment. Under Marion the determination of improper delay involves a process of balancing the reasonableness of the delay against any resultant prejudice to the defendant. United States v. Quinn, 540 F.2d 357, 360-62 (8th Cir. 1976); United States v. Jackson, 504 F.2d 337, 339 (8th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). The test for determining prejudicial impact is whether the delay "has impaired the defendant's ability to defend himself." United States v. Golden, 436 F.2d 941, 943 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971). The trial court's finding as to the existence and extent of prejudice must stand unless clearly erroneous. United States v. Quinn,supra, 540 F.2d at 361.

After a thorough review of the record, we conclude that the defendant has failed to demonstrate a showing of prejudice sufficient to require dismissal of the indictment. Appellant's only claim of prejudice is that he was unable to locate a female bartender who allegedly worked at the cocktail lounge where Burl D. Coffelt first met Kenneth Page. Appellant claims that the witness could have testified concerning a conversation between Page and Coffelt during which Coffelt told Page that someone had stolen Coffelt's gun. In contrast, Coffelt testified at trial that Page used this same gun to commit the robbery. The district court, after considering Page's testimony about this apparent witness, stated:

I find that the Defendant has not made a sufficient showing of prejudice. First of all, there is some question as to whether or not the witness exists. If she does exist, the record is far from clear as to what her testimony would be if she could testify, and what it would be. And it would be speculative, at the best, as to what the evidence might be. Fourthly, if she did testify, as indicated during the hearing, its relevance is at least peripheral as far as the particular charges concerned. And in my opinion, balancing the reasonableness of delay with the resulting prejudice, it clearly weighs in favor of the Government.

The district court's finding with respect to the absence of prejudice is supported by the evidence. For example, Page testified that he did not know the bartender's name; she was not a good friend of his; and he had talked with her on only a few occasions. Moreover, it is clear that the existence of prejudice must be shown by more than the unavailability of any witness. See United States v. Quinn, supra, 540 F.2d at 361-62. Instead, the missing witness must be one who could have supplied material evidence for the defense. See United States v. Naftalin, 534 F.2d 770, 773 (8th Cir. 1976); United States v. Lovasco, 532 F.2d 59, 62 (8th Cir.), cert. granted, --- U.S. ----, 97 S.Ct. 233, 50 L.Ed.2d 164 (1976). There is no intimation in the instant case that the "unavailable witness" could have supplied any information which might constitute a defense or rebut any necessary element of the offense. See 18 U.S.C. § 2312.

In addition, the record reveals substantial evidence indicating that the government's delay of prosecution was reasonable. The 12-month delay in the instant case was the result of unsuccessful attempts by the FBI to locate the victim and key witness, Burl Coffelt, whose whereabouts were previously unknown. FBI Agent David Nunn testified concerning the extensive, although relatively unsuccessful, efforts made to locate Coffelt, who eventually was found and interviewed by the FBI on September 26, 1975. The facts underlying the instant case could have involved a number of serious crimes aside from the Dyer Act, 18 U.S.C. § 2312, such as assault and kidnapping. On the other hand, Coffelt's story, which inter alia indicated that there had been substantial drinking, was inherently suspect and it was prudent, if not compulsory, prosecutorial conduct for the government to delay the indictment until Coffelt could be located and interviewed. See United States v. Emory, 468 F.2d 1017, 1019 (8th Cir. 1972). In summary, the record does not disclose either unreasonable or prejudicial pre-indictment delay.

II.

Appellant also contends that the trial court erred in failing to dismiss the indictment because of the lack of a speedy trial. Page experienced approximately a four and one-half month delay between his indictment on December 18, 1975, and his arraignment on May 3, 1976. The trial court found that the delay was reasonable under the circumstances and that, in any event, defendant had not made a sufficient showing of prejudice.

The Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-34, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), recognized that a defendant's Sixth Amendment right to a speedy trial must be determined on an ad hoc balancing basis after consideration of such factors as the length of delay, the reason for delay, the defendant's assertion of his right, and prejudice to the defendant. See, e. g., United States v. Weber, 479 F.2d 331, 332 (8th Cir. 1973).

When the balancing test set out in Barker is applied to the facts in the instant case, we are convinced that appellant was not deprived of the right to a speedy trial. First, the four and one-half month period between indictment and arraignment, while undesirable, nonetheless was not an unusually long delay. This court has held on several occasions that delays longer than four and one-half months did not constitute denial of a speedy trial. See United States v. Rucker, 496 F.2d 1241, 1243 (8th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 181 (1...