U.S. v. Quinn

• Decision Date: 18 August 1976
• Docket Number: 75-1851,Nos. 75-1850,s. 75-1850
• Citation: 540 F.2d 357
• Parties: UNITED STATES of America, Appellant, v. Noel QUINN, Appellee. UNITED STATES of America, Appellant, v. Lee WILSON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 357

540 F.2d 357

UNITED STATES of America, Appellant, v. Noel QUINN, Appellee.

UNITED STATES of America, Appellant, v. Lee WILSON, Appellee.

Nos. 75-1850, 75-1851.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 15, 1976.

Decided July 27, 1976.

Rehearing and Rehearing En Banc Denied Aug. 18, 1976.

Richard A. Heidenry, Asst. U.S. Atty., St. Louis, Mo., for appellant; Donald J. Stohr (former U.S. Atty., St. Louis, Mo., on brief.

James E. Reeves, Ward & Reeves, Caruthersville, Mo., for appellants.

Before HEANEY, ROSS and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

The United States appeals from two orders entered by the District Court dismissing the actions against appellees Noel Quinn and Lee Wilson because of preindictment delay. Jurisdiction is proper in this Court under 18 U.S.C. § 3731. ¹ For the reasons stated below, we reverse the orders of the District Court.

Appellee Quinn was charged in a ten count indictment with selling firearms on five occasions without maintaining records as required by law in violation of 18 U.S.C. § 922(b)(5). The remaining five counts charged that Quinn had knowingly sold the firearms to nonresidents of the State of Missouri in violation of 18 U.S.C. § 922(b)(3). The sales were alleged to have occurred between May 1, 1974, and June 4, 1974. Subsequent undercover investigation led to the issuance of a search warrant to search Quinn's barber shop, which was executed on September 17, 1974. The government contends that its active field investigation continued until November 6, 1974, and that, after acquisition of additional documentation, the investigative report was not filed with the United States Attorney's office until December 12, 1974. The indictment was then filed on August 8, 1975, and Quinn was arrested on August 14, 1975.

Appellee Wilson was charged in a single count indictment with dealing in firearms without a license in violation of 18 U.S.C. §§ 922(a)(1) and 924(a). The indictment was based on four alleged sales of firearms to undercover agents of the Bureau of Alcohol, Tobacco and Firearms in the Caruthersville, Missouri, area between April 1, 1974, and July 16, 1974. After attempts to trace the weapons were made and after further investigations were made with respect to other illegal firearms activity in the area, the formal case report was filed with the United States Attorney's office on March 10, 1975. The indictment was filed on August 8, 1975, and Wilson was then arrested on August 18, 1975.

At the suggestion of the District Court, the appellees made pretrial motions to dismiss the indictments for preindictment delay. A combined hearing on the motions was held on September 26, 1975. At that hearing, Quinn, Wilson, and Agent Joseph A. Patterson of the Bureau testified. Quinn, a barber and licensed gun dealer, testified that he kept no notebook or diary of dates and transactions other than the firearm records required by the government and had no means or ability to reconstruct the events of the dates of the alleged offenses. He stated that he could not recall any specific events which occurred in May or June of 1974, nor the identity of the persons who may have come into his place of business during that period. Finally, he testified that he had, since the execution of the search warrant, been living under stress and had been unable properly to carry on his business. Wilson, a laborer, testified that he had a fifth grade education and kept no notebook, diary, or other record from which he could reconstruct his activities during the time period in question. He stated that he had a short memory and could not recall the events on the dates of the alleged transactions.

Agent Patterson testified that he supervised the undercover investigations concerning Quinn and Wilson. He stated that the government employed a paid informant, one James Green, to assist in the investigations, but that no other such informants were used. He testified that Green's role in the investigation was solely to introduce the undercover agents who purchased the firearms to Quinn and Wilson. In response to a question as to Green's whereabouts at the time of the hearing, Agent Patterson testified that he did not know and that he had not been in contact with Green for approximately two months.

After the conclusion of the hearing, the District Court entered two orders dismissing the indictments. In Quinn's case, it stated:

In September, 1974, a search warrant was issued and returned, the record showing that defendant's records of firearms transactions and three firearms were seized. If investigation was theretofore continuing, it ceased almost a year before the indictment was returned. Defendant has been prejudiced by the delay by reason of the present unavailability of the government's informant and in other respects. We find the delay to be wholly unnecessary and unreasonable.

In Wilson's case, it stated:

It appears that the government bases its charge on four alleged transactions with undercover agents, the first on April 1, 1974 and the last on July 16, 1974. There being no evidence of a bona fide continuing investigation which might conceivably justify the thirteen months delay in presenting the charge to a grand jury, it is our view that the delay was unreasonable. Defendant has been prejudiced not only by his inability to reconstruct his activities on the dates in question and obtain exculpatory evidence but by the present unavailability to the defense of James Green, the alleged government informant.

Until very recently this Court, while recognizing that unreasonable preindictment delay coupled with prejudice to a defendant may violate the Fifth Amendment Due Process Clause, had not held in any case that the prejudice was sufficient to require dismissal. See United States v. Librach, 520 F.2d 550, 555 (8th Cir. 1975); United States v. Jackson, 504 F.2d 337, 339 n. 1 (8th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). The test which we have applied has been one of balancing the reasonableness of the delay against the resultant prejudice to the accused, if any. United States v. Jackson, supra, 504 F.2d at 339. In two recent cases, we have held that the demonstrated prejudice to the defendant outweighed any justification for delay in initiating prosecution and on this basis have affirmed the judgment of the district court dismissing the indictment for prejudicial delay. See United States v. Lovasco, 532 F.2d 59 (8th Cir. 1976); United States v. Barket, 530 F.2d 189 (8th Cir. 1976). In each case, we held that the ability of the defendant to prepare his defense was materially hampered by an unreasonable delay in initiating prosecution. ² It is apparent that this balancing process does not lend itself to a precise codification of circumstances constituting prejudicial preindictment delay and that each case must be carefully scrutinized on an ad hoc basis.

I. Circumstances of Delay

The government contends that the reason for the delay in bringing the indictments was that other undercover activity in the area relating to illegal firearms would have been jeopardized had prosecutions been immediately initiated following completion of the investigations of Quinn and Wilson. The government stated to the District Court that active undercover investigations of these defendants were completed by September, 1974; and Agent Patterson testified that the testing of the guns to establish that they were in fact operable firearms had been completed by November, 1974. There was no showing in this record that further deferral of prosecution of these defendants was necessary to protect the identity of undercover agents then engaged in other continuing investigations. On the other hand, there was no showing that the delay was the result of an intentional effort on the part of the government to impair by such delay the defendants' ability to defend themselves. The question here is whether the government's delay of prosecution beyond the time needed to protect ongoing undercover investigations is, without other justification, unreasonable. Couched in these terms, the delay must be regarded as unreasonable, but the burden of proving substantial prejudice remained with the defendants. See United States v. Jackson, supra, 504 F.2d at 339 n. 2.

II. Prejudice to Defendants

The District Court found that Quinn was "prejudiced by the delay by reason of the present unavailability of the government's informant and in other respects." It found that Wilson was "prejudiced not only by his inability to reconstruct his activities on the dates in question and obtain exculpatory evidence but by the present unavailability to the defense of James Green, the alleged government informant." For lack of further amplification, it is assumed that the "other respects" in which Quinn was found to have been prejudiced would be the same inability to reconstruct his activities that the District Court found in Wilson's case. These findings must be sustained unless clearly erroneous. United States v. Barket, supra, 530 F.2d at 193; United States v. Jackson, supra, 504 F.2d at 341.

A. Unavailability of Informant Green

We found prejudicial delay in United States v. Barket, supra, where because of a delay of 47 months the defendant was prejudiced by the loss of witnesses to the circumstances of the transaction either by death or inability to recall. In United States v. Lovasco, supra, we affirmed the dismissal of three of four counts and held the defendant to have been prejudiced by a delay of 17 months during which a material witness died who was the person from whom the defendant claimed to have received guns and who the defendant testified would have supported his claim that he did not know that the guns were stolen from the United States mails.

The factual circumstances of this case are substantially different. The record shows that the missing witness, James Green,...