U.S. v. Perry

• Decision Date: 30 March 1987
• Docket Number: No. 86-1978,86-1978
• Citation: 815 F.2d 1100
• Parties: 22 Fed. R. Evid. Serv. 1089 UNITED STATES of America, Plaintiff-Appellee, v. Larry Dean PERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1100

815 F.2d 1100

22 Fed. R. Evid. Serv. 1089

UNITED STATES of America, Plaintiff-Appellee, v. Larry Dean PERRY, Defendant-Appellant.

No. 86-1978.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 2, 1986.

Decided March 30, 1987.

Gregory Collins, Collins & Flynn, Springfield, Ill., for defendant-appellant.

Patrick J. Chesley, U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before WOOD, and POSNER, Circuit Judges, and WILL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

On December 17, 1985, a three-count indictment was filed charging the defendant, Larry Dean Perry, with breaking into a post office in violation of 18 U.S.C. Sec. 2115 (1982), stealing mail from the post office in violation of 18 U.S.C. Sec. 1708 (1982), and receiving and possessing stolen mail in violation of 18 U.S.C. Sec. 1708. The indictment stemmed from a break-in which occurred at the Findlay, Illinois, Post Office sometime between 5:00 p.m. on May 22, 1984, and 5:30 a.m. May 23, 1984. A superseding indictment was filed March 24, 1986, charging Perry with the original three offenses and adding a fourth count charging defendant with breaking into a mail collection box in violation of 18 U.S.C. Sec. 1705 (1982).

Perry moved to dismiss the indictments for pre-indictment delay and to suppress evidence. The district court denied these motions.

After a jury trial, Perry was found guilty of counts I, II, and IV of the superseding indictment, ¹ and was sentenced to five years imprisonment for each of counts I and II, and three years imprisonment for count IV, all sentences to be served consecutively.

Perry appealed the judgment and sentence. We affirm.

I. FACTUAL BACKGROUND

The Findlay, Illinois, Post Office was burglarized sometime between 5:00 p.m. May 22, 1984, and 5:30 a.m. May 23, 1984. The front door, which was plate glass, was broken. The collection box in front of the post office also had been pried open. Mail had been stolen from each location.

Findlay Police Chief John Love arrived at the post office at about 5:30 a.m. May 23, 1984, and began to investigate the break-in. When he came to the rear of the post office, he saw the defendant Perry burning trash in the alley not far from the post office. Perry and his girlfriend, Debra Fairbanks, lived in a house four doors away from the post office. Postal Inspector Kenneth Cope soon arrived to investigate as well. Inspector Cope found footprints near the post office and shoe impressions on broken glass inside the door.

A witness reported to Chief Love that he saw Perry load his trash barrel into the trunk of Perry's car and drive away with it. When Perry returned, Chief Love, Inspector Cope, Shelby County Sheriff Robert Collins, and another county officer, Jim Giles, questioned him at his residence. The officers explained to Perry that they were investigating a break-in at the post office. When asked where he had taken his trash, Perry told the officers that he had dumped it in a creek southeast of Findlay. He agreed to take them to the location. Perry drove his car accompanied by Fairbanks and her daughter; the officers followed.

Perry stopped along the way to put gas in his car. As Perry knelt to pump gas into the rear of the car, Inspector Cope noticed that the tread on Perry's tennis shoes was very similar to the shoe impressions left on broken glass found inside the post office. Perry then led the officers to the spot where he had dumped the trash on a dead-end road. Contrary to what Perry had told the officers, the site was not near any water.

When the officers found partially burnt mail that did not belong to either Perry or Fairbanks, they advised Perry of his Miranda rights. Perry agreed to answer questions about the post office burglary. Inspector Cope showed Perry a piece of the glass with a shoe impression on it. The officers noticed that Perry, who was wearing shorts, had scratches on the back of his right leg. When asked about the scratches, Perry said that a cat had scratched him.

Perry and the officers returned to Perry's residence. Sheriff Collins questioned Fairbanks's nephew, Jimmy Minch, who was staying at the house, then the officers searched the house with Fairbanks's permission. Perry also consented to a search of his car, but neither search produced any evidence. While at the house, Perry changed into some long pants and gave his tennis shoes to Inspector Cope. Inspector Cope again asked Perry about the scratch on his leg, and Perry attributed it to a falling glass, then to his action in picking up the pieces of the glass after it broke. Perry agreed to accompany the officers to the Shelby County Sheriff's Office. On the way to the Sheriff's Office, Perry told Officer Love that the scratches on his leg were not from a cat but were instead from a piece of glass. At the Sheriff's Office, Inspector Cope gave Perry a receipt for his tennis shoes and took some pictures of Perry's leg.

Inspector Cope sent Perry's shoes and some of the broken glass to the Postal Inspection Service Laboratory in Washington, D.C. The lab reported that the tread pattern on Perry's shoes matched that found on the broken glass inside the post office, and glass fragments found in Perry's shoes were exactly like the glass that was broken at the post office.

Inspector Cope testified that he received the lab reports in November, 1984. He informed the United States Attorney's Office of his findings March 22, 1985, following up with a written report on April 12, 1985. Inspector Cope was called to testify before the grand jury on December 17, 1985, the date the indictment was returned, and he was the only person to testify. Although he said the delay in indicting Perry was not caused by his failure to investigate the case diligently, Inspector Cope was not able to give any reason for the delay.

After Perry was indicted, Dr. Jerry L. Boyd, a clinical psychologist, examined him to determine his competence to stand trial. Dr. Boyd found that Perry was competent.

The defense counsel moved to dismiss the indictment for pre-indictment delay and to suppress evidence, specifically, Perry's tennis shoes. The district court denied the motions, and Perry's trial commenced April 7, 1986.

Perry testified at trial that he did not break into the post office. He said that some friends came over to his house about 9:00 p.m. May 22, 1984, and stayed until 2:30 or 3:00 the following morning. Perry got up at 6:00 a.m. and, putting on a pair of tennis shoes he found, went out to burn his trash. He then dumped the trash in the country. Although he admits that he told officers several different stories about the scratches on his leg, Perry testified in court that his scratches were from an exposed spring in a couch. Fairbanks corroborated this testimony.

After a two-day trial, the jury convicted Perry of breaking into the Findlay Post Office and the collection box, and of stealing mail.

II. DISCUSSION

A. Pre-indictment Delay

Perry argues on appeal that because the government delayed unduly before indicting him, the district court should have dismissed the indictment. Perry was questioned on May 23, 1984, but was not contacted again until April of 1985, when he received a letter informing him that he was still under investigation. He was not indicted until December 17, 1985, nineteen months after the original investigation. Perry argues that this delay was for the government's tactical advantage only, and prejudiced him in his ability to present a defense.

Statutes of limitations are a defendant's primary protection against being charged for crimes committed in the too-distant past. United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 2299, 81 L.Ed.2d 146 (1984). The due process clause, however, also "has a limited role to play in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); see also Gouveia, 467 U.S. at 192, 104 S.Ct. at 2299; United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). When analyzing a defendant's motion to dismiss an indictment for pre-indictment delay, a court must look at the degree of prejudice the delay caused the defendant, and the government's reason for the delay. "Due process is violated when the government delays an individual's prosecution solely for strategic purposes and that delay substantially prejudices the defense." United States v. Jones, 808 F.2d 561, 567 (7th Cir.1986); United States v. Watkins, 709 F.2d 475, 479 (7th Cir.1983).

Defendants in other cases in this circuit have met with little success in trying to establish the requisite level of prejudice. "The actual prejudice to the defendant ... must be so substantial as to outweigh the preferable deference to legitimate prosecutorial priorities and bureaucratic realities." United States v. Williams, 738 F.2d 172, 175 n. 2 (7th Cir.1984). Clearly, the mere passage of time is not enough. See United States v. Brock, 782 F.2d 1442 (7th Cir.1986) (delay of more than four years); Williams, 738 F.2d 172 (four-year delay); Watkins, 709 F.2d 475 (sixteen months); United States v. Solomon, 688 F.2d 1171, 1179-80 (7th Cir.1982) (more than three years). Even the death of defense witnesses may not cause sufficient prejudice to outweigh the court's deference to the government's prosecutorial decisions. See Williams, 738 F.2d at 176 (death of defense witness did not cause "actual and substantial" prejudice to defense); Solomon, 688 F.2d at 1179-80 (death of two defense witnesses did not establish actual prejudice to defense).

Perry has argued that the nineteen-month delay in this case was peculiarly prejudicial to him because it aggravated his preexisting personality disorders. Dr. Boyd testified at the hearing on defendant's motion to dismiss the indictment that Perry suffered from a borderline personality disorder and that an organic personality syndrome had...