U.S. v. Radmall, 77-1878

• Decision Date: 06 March 1979
• Docket Number: No. 77-1878,77-1878
• Citation: 591 F.2d 548
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Annette Knotts RADMALL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 548

591 F.2d 548

UNITED STATES of America, Plaintiff-Appellant, v. Annette Knotts RADMALL, Defendant-Appellee.

No. 77-1878.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Aug. 9, 1978.

Decided Nov. 16, 1978.

Rehearing Denied March 6, 1979.

Ronald J. Rencher, U. S. Atty., Salt Lake City, Utah (James W. McConkie, Asst. U. S. Atty., Salt Lake City, Utah, on the brief), for plaintiff-appellant.

Craig M. Snyder, Provo, Utah (Howard, Lewis & Petersen, Provo, Utah, on the brief), for defendant-appellee.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

McWILLIAMS, Circuit Judge.

By an indictment returned on November 17, 1976, Annette Knotts Radmall, head teller of a federally insured savings and loan association, was charged in eight counts with embezzling some $5,330 from her employer in violation of 18 U.S.C. § 657. Each of the eight counts was based on a separate transaction, the earliest transaction occurring on or about January 7, 1972, and the last transaction occurring on or about October 4, 1972.

Shortly prior to trial, the defendant filed a motion to dismiss based on pre-indictment delay. The motion pointed out that the indictment was returned more than four years after the most recent offense charged, and nearly though not quite five years after the earliest offense charged. ^* This motion was supported by affidavits from both the defendant and her attorney. The latter based his declarations on his inspection of the Government files, and he concluded therefrom that the delay was caused by the Government's desire to obtain additional evidence and to also re-interview the defendant before submitting the matter to the Grand Jury, coupled with the additional fact that other cases awaiting submission to the Grand Jury were deemed to be of a more pressing nature. The defendant in her affidavit declared, in effect, that the delay of over four years had dimmed her memory as to the "thousands of transactions" she had handled.

The trial court declined to hear the motion to dismiss prior to impaneling the jury. However, after the jury had been sworn, and before any evidence was offered, the trial court, after hearing argument on the motion, granted the motion and dismissed the indictment. In the order of dismissal, the trial judge concluded that the Government's delay in prosecuting the matter was "intentional, continuous, unreasonable, and prejudiced the defendant and violates defendant's rights to due process of law under the Fifth Amendment of the United States Constitution." The Government now appeals the order of dismissal under 18 U.S.C. § 3731. We reverse.

On appeal the defendant does not claim that 18 U.S.C. § 3731 is inapplicable on the ground that the Double Jeopardy Clause of the Fifth Amendment would bar bringing her to trial again. Such an argument would appear to be foreclosed by United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Hence, the only issue is whether, under the record, the Due Process Clause of the Fifth Amendment mandated a dismissal of the indictment. We think it did not.

Both the Government and the defendant rely upon United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In that case the Supreme Court spoke as follows:

Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature.

This Circuit has applied the Marion rule in numerous cases. See, for example, United States v. Redmond, 546 F.2d 1386 (10th Cir. 1977); United States v. Villano, 529 F.2d 1046 (10th Cir. 1976); and United States v. Beitscher, 467 F.2d 269 (10th Cir. 1972). In those cases we have held that pre-indictment delay, where the indictment is nonetheless returned within the applicable statute of limitations, does not violate the Due Process Clause of the Fifth Amendment in the absence of a showing of actual prejudice to a defendant and a further showing that such delay was purposely designed by the Government to gain either a tactical advantage over a defendant or to harass him.

Applying the rule enunciated in the cases above referred to, the record in the instant case does not show that the pre-indictment delay was caused by a purposeful effort on the part of the Government to gain a tactical advantage over the defendant. To the contrary, it would appear that the delay was primarily caused by a desire on the part of the Government to be more certain of its case before submitting the matter to the Grand Jury, coupled with a belief that other cases were of a more urgent nature. Furthermore, the defendant's claim of prejudice is couched in very conclusory terms. Under Marion, a mere dimming of memory would not be sufficient to show prejudice. On the question of prejudice, see United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), where the Supreme Court held that to prosecute a defendant following pre-indictment delay does not deprive him of due process, even if his defense may have in fact been "somewhat prejudiced" by the lapse of time.

Judgment reversed, and case remanded with directions that the indictment be reinstated, further proceedings to be consonant with the views herein expressed.

BARRETT, Circuit Judge, concurring:

I fully concur in the opinion by Judge McWilliams.

Any assertion that the District Court conducted an "evidentiary hearing" on Radmall's motion to dismiss which brings into play the "clearly erroneous" rule upon review of that court's "findings of fact" is, in my view, without merit.

Judge McWilliams has noted that the trial court granted the motion to dismiss for pre-indictment delay After the jury was impaneled and "before any evidence was offered." The motion was granted based on oral arguments of counsel, the pleadings and two affidavits attached to the motion, one of which was executed by Radmall and one executed by her counsel.

In my view, the affidavits are both self-serving and conclusory. Neither affiant gave "live" testimony, subject to cross-examination. Thus, there was no way the trial court could assess the credibility of the affiants or determine the weight to be given their written statements. Direct, "live" testimony, subject to cross-examination, provides the trial court or the jury, as the case may be, with the Only true means of assessing credibility, taking into consideration the general demeanor and appearance of the witness and arriving at meaningful findings of fact on critical issues. United States v. Downen, 496 F.2d 314 (10th Cir. 1974), Cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); United States v. Sierra, 452 F.2d 291 (10th Cir. 1971). Affidavits serve various purposes under court rules. They do not serve as a substitute for direct "in-court" testimony where the burden of establishing Cause rests with the movant.

It is fundamental that if a claim is patently frivolous and without merit, on its face, a motion to dismiss should be granted absent an attached affidavit. By the same token, summary judgment may be rendered if the pleadings, affidavits, depositions and other documentary material clearly reveal that there is no genuine issue as to a material fact and the only issue is one of law. These rules do not apply to the case at bar.

In Jackson v. Griffith, 480 F.2d 261 (10th Cir. 1973) the late Chief Judge Orie L. Phillips, writing for this Court, stated that affidavits filed in support of a motion for summary judgment were not a substitute for a trial:

While the rule provides for the filing of affidavits, their sole purpose is to show whether any issue of material fact exists. The rule does not serve as a substitute for a trial and bona fide factual disputes may not be disposed of through the use of affidavits.

480 F.2d at p. 267.

See also : Machinery Center, Inc. v. Anchor National Life Ins. Co., 434 F.2d 1 (10th Cir. 1970); Hanley v. Chrysler Motors Corporation, 433 F.2d 708 (10th Cir. 1970).

In United States v. Revada, 574 F.2d 1047 (10th Cir. 1978), the trial court granted a motion to dismiss the indictment based upon allegations set forth in the motion, an affidavit executed by defendant Revada attached thereto, and a memorandum submitted by defendant's counsel. The Court entertained oral statements of defendant's counsel and brief statements by the Government attorney in resistance thereto before granting the motion. This Court reversed and remanded because the trial court's failure to conduct an evidentiary hearing resulted in a "very meager" record. Upon remand the trial court was directed to:

. . . provide an evidentiary hearing on the existence of actual prejudice to the defense And whether the reasons for the delay were improper under the Marion and Lovasco decisions. See United States v. Stoddart, 574 F.2d 1050 (10th Cir. 1978), filed this day. (Emphasis in original text.)

574 F.2d at p. 1050.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court reversed a dismissal of an indictment grounded upon a motion of the defendant based on constitutional due process grounds. The remand order concluded:

Events of the trial may demonstrate actual prejudice, but at the present time appellees' due...