U.S. v. Palmer, 73-1717

• Decision Date: 02 October 1974
• Docket Number: No. 73-1717,73-1717
• Citation: 502 F.2d 1233
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip Kent PALMER, Joseph Philip Silverman, Ernest Smith, Freddie Daniel Milton, Edward Earl Dillingham and Wayne Franklin Dean, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1233

502 F.2d 1233

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Kent PALMER, Joseph Philip Silverman, Ernest Smith, Freddie Daniel Milton, Edward Earl Dillingham and Wayne Franklin Dean, Defendants-Appellants.

No. 73-1717.

United States Court of Appeals, Fifth Circuit.

Oct. 2, 1974.

Michael N. Mantegna, Atlanta, Ga. (Court-appointed), for Palmer.

Gaines C. Granade, Atlanta, Ga., for Silverman.

Hugh Nations, Atlanta, Ga. (Court-appointed), for Smith and Milton.

William R. Gignilliat, III, Atlanta, Ga. (Court-appointed), for Dillingham.

John C. Pennington, Atlanta, Ga. (Court-appointed), for Dean.

Eugene A. Medori, Jr., Asst. U.S. Atty., John W. Stokes, Jr., U.S. Atty., Anthony M. Arnold, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before TUTTLE, WISDOM and GEE, Circuit Judges.

GEE, Circuit Judge:

The six appellants were found guilty by a jury under various counts of a fifteen-count indictment for their respective roles in an interstate automobile theft ring. ¹ Each comes to us with several points on appeal, none of which requires reversal. Indeed, after considering all contentions we have concluded that our opinion on only one point of law raised by one appellant would have precedential value. ²

Appellant Dillingham's right to a speedy trial

Edward Earl Dillingham was convicted on all fifteen counts. The evidence shows that he was instrumental in organizing the conspiracy, in promoting the thefts of the cars, and in effectuating their subsequent sale-- principally through his crucial role in obtaining fraudulent title documents.

Dillingham was arrested on April 6, 1970, on a warrant charging a violation of the Dyer Act. On May 28, 1970, he was released on a $1,500 bond. He was indicted along with fifteen other defendants on February 9, 1972, by a federal grant jury in the Northern District of Georgia. He was arraigned on October 20, 1972, brought to trial on January 22, 1973, and found guilty by a jury verdict on February 2, 1973.

1. Post-arrest pre-indictment delay.

Dillingham's most serious complaint is that the 22-month delay between his initial arrest, from which he was released on bond, and his indictment violated his Sixth Amendment right to speedy trial and his Fifth Amendment right to due process. ³

He argues that the delay should be evaluated according to the ad hoc standard discussed by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Our reply must be the same as in United States v. Smith, 487 F.2d 175 (5th Cir. 1973):

The contention of appellant is that approximately three and one half years elapsed between the time be came to be in federal custody and the time he was indicted for the above-mentioned offenses and such pre-indictment delay is in violation of his constitutional right to a speedy trial. Although appellant urges upon this court the test espoused by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1973), we find that test not to be applicable in this case. Here we are faced with a pre-indictment delay which, according to the Supreme Court, is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), Hoskins v. Wainwright (5 Cir. 1973), 485 F.2d 1186. Therefore, the only question facing this court is whether actual prejudice did occur.

487 F.2d at 177.

We most recently ruled on the subject of post-arrest pre-indictment delay in United States v. Zane, 489 F.2d 269 (5th Cir. 1973). There Chief Judge Brown preserved the distinction which we made in United States v. Smith between the broad Barker v. Wingo test applicable to post-indictment delay and the more narrow United States v. Marion test applicable to pre-indictment delay. As stated by Judge Brown:

While post-arrest pre-indictment delay is within the scope of the speedy trial guarantee, a substantial showing of actual prejudice is required to establish a Sixth Amendment violation in this situation.

489 F.2d at 270.

Therefore, in applying the Sixth Amendment to a post-arrest pre-indictment situation, our attention is focused on 'actual prejudice'-- and only peripherally on such factors as length of and reason for the delay. Also, in order for the Sixth Amendment protection to apply there need not be a finding that the prosecutorial delay was intentionally employed to disadvantage the defense. We have interpreted the Supreme Court's language in Marion, 404 U.S. at 324, 92 S.Ct. 455, to mean that the Fifth Amendment is concerned with intent. See United States v. Zane, 489 F.2d at 270. But, since here no contention or indication of prosecutorial intent to prejudice exists, we have no occasion to apply the Fifth Amendment beyond its overlap with the Sixth. ⁴

Subsequent to trial, a hearing was held on Dillingham's motion to dismiss his indictment ⁵ at which he was given the opportunity to show that the delay caused him substantial actual prejudice. This he was unable to do to the satisfaction of the trial court; and, upon reviewing the transcript of the hearing, we agree with that decision.

We do not review the evidence with a narrow concept of what constitutes 'actual prejudice.' Certainly, as pointed out in United States v. Smith 487 F.2d 175, 177 (5th Cir. 1973), the term includes impairment of the defendant's capacity to prepare a defense-- because, for example, of failure of memories or loss of records or disappearance of witnesses. ⁶ But, perhaps even more importantly, the term encompasses what we label personal prejudice as distinguished from prejudice to the defense. The adversities which follow an arrest were of uppermost concern to the Supreme Court in Marion.

Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.

404 U.S. at 320, 92 S.Ct. at 463.

Therefore, in our review of the record we have weighed Dillingham's evidence of personal hardship along with that of damage to his defense in determining whether 'substantial actual prejudice' was shown. We conclude that it was not.

Dillingham offered two witnesses, Mr. William Rogers and Mrs. Barbara Bennett, who were employees of Frank Vego Ford during the time he worked there and while he was making out-of-state runs for the stolen cars and obtaining title documents for them. They were called to prove the existence, but loss following Dillingham's arrest, of records from Vego Ford which he viewed as exculpatory: (1) Attendance records which would have reflected his presence on the job on days the government charged he was off on conspiratorial business, and (2) some indication of his power of attorney to obtain titles for cars sold by his employer.

At the outset, we note that Vego Ford went out of business in February or March of 1970 and Dillingham was arrested in April of 1970. Therefore, any records which vanished with shut-down of business were probably unavailable either before or soon after his arrest. Our only indication of their whereabouts comes from Mrs. Bennett's testimony that they were 'in storage' as far as she knew. Dillingham offered no testimony that he tried to locate these records at any time and gave no indication that such efforts would have stood more chance of success before indictment than after. ⁷

Mr. Rogers was new car sales manager during part of the time that Dillingham was a new car salesman. When called as Dillingham's first witness, he testified that he left Vego Ford in October of 1969. According to the prosecution, the only times Dillingham's conspiratorial business took him out of town were in December of 1969 and January of 1970. Also, the first theft did not occur until October 26, 1969. Thus Mr. Rogers was definitely not present on the days Dillingham was allegedly absent from work and was quite possibly not working at Vego Ford when the first overt act took place. Therefore, he made a poor witness to testify about Dillingham's presence on the job. Moreover, Rogers' testimony was essentially that Vego Ford's role-keeping and time records would not conclusively show that a particular car salesman was physically present at Vego Ford during the course of any particular day.

Mrs. Bennett, Dillingham's second witness, was office manager in charge of bookkeeping at Vego Ford during the relevant period of his employment. She testified that Dillingham did not have authority from Vego Ford, in the form of power of attorney, to pick up titles from the State of Georgia. She added that new car titles were mailed out, and that if Dillingham ever picked up a title to a used car it was done as a private favor to a customer and not for Vego Ford. This testimony hardly substantiates Dillingham's assertion that records reflecting his power of attorney existed and were lost during the period of delay. Also, it is not at all clear how evidence that he had such powers of attorney as he claimed would have refuted the government's charge that he obtained fraudulent title documents for stolen cars.

Indeed, the trial court observed at the close of the hearing: (1) That there was no showing that if such records existed they would have been available to Dillingham if he had tried to obtain them at the earliest possible opportunity; (2) that there was no showing that Dillingham made any effort at any...