U.S. v. Revada

• Decision Date: 27 April 1978
• Docket Number: No. 77-1834,77-1834
• Citation: 574 F.2d 1047
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Dennis H. REVADA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1047

574 F.2d 1047

UNITED STATES of America, Plaintiff-Appellant, v. Dennis H. REVADA, Defendant-Appellee.

No. 77-1834.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Feb. 15, 1978.

Decided April 27, 1978.

Brent D. Ward, Asst. U. S. Atty., Salt Lake City, Utah (Ramon M. Child, U. S. Atty., and Steven W. Snarr, Asst. U. S. Atty., Salt Lake City, Utah, on brief), for plaintiff-appellant.

Steven E. Clyde of Clyde & Pratt, Salt Lake City, Utah, for defendant-appellee.

Before BARRETT, BREITENSTEIN and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This appeal challenges the action of the trial court in granting a pretrial motion to dismiss an indictment charging Dennis H. Revada with illegally possessing a sawed-off shotgun in violation of 26 U.S.C. §§ 5841 and 5861(d). The basis of the motion was pre-indictment delay of approximately 21 months between the discovery of the weapon and the indictment by the grand jury.

The action of the district judge in the instant case must be measured by the legal principles enunciated in two Supreme Court decisions. The lodestar case on pre-indictment delay is United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). It was there held that the Sixth Amendment guarantee of a speedy trial does not commence until the indictment is entered. Also Fed.R.Crim.P. 48(b), treating unnecessary delay in presenting the charge to a grand jury or in bringing a defendant to trial, applies only to post-arrest delay. There appears no reliance upon either the Sixth Amendment or Rule 48(b) by defendant-appellee here. The motion for dismissal was heard and granted approximately 3 1/2 months after the indictment, and no arrest was made by federal authorities until the day after the April 20, 1977, indictment was issued.

As to due process rights under the Fifth Amendment Marion cited with approval the fact that the Government conceded dismissal would be required "if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 404 U.S. at 324, 92 S.Ct. at 465. It was found that although there was a 38-month delay, the accused had not "alleged and proved" actual prejudice nor shown that the Government intentionally delayed for tactical advantage or to harass. 404 U.S. at 325, 92 S.Ct. 455.

This Circuit has construed the Marion case as establishing a two-pronged due process test against which to measure pre-indictment delay.

(T)he rights of a defendant under the due process clause of the Fifth Amendment are not violated in the absence of a showing of actual prejudice resulting from the preindictment delay and that the delay was purposefully designed to gain tactical advantage or to harass the defendants.

United States v. Beitscher, 467 F.2d 269, 272 (10th Cir. 1972). Accord, United States v. MacClain, 501 F.2d 1006 (10th Cir. 1974); United States v. Redmond, 546 F.2d 1386 (10th Cir. 1977).

In the very recent case of United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) the Supreme Court confirms this interpretation and refines the principles announced in Marion.

Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.

. . . the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Judges are not free, in defining "due process," to impose on law enforcement officials our "personal and private notions" of fairness and to "disregard the limits that bind judges in their judicial function." Rochin v. California 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Our task is more circumscribed. We are to determine only whether the actions complained of here, compelling respondent to stand trial after the Government delayed indictment to investigate further violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions," Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935), and which define "the community's sense of fair play and decency," Rochin v. California, supra, 342 U.S. at 173, 72 S.Ct. (205) at 210 . . . .

431 U.S. at 790, 97 S.Ct. at 2049.

In the case before us the record is very meager, as the trial judge ruled on defendant-appellee's motion without an evidentiary hearing. After statements by counsel for defendant in support of the motion the judge announced that the case was dismissed. After objection by Government counsel the judge did allow brief statements by the prosecuting attorney before renewing his ruling. Thus we have only the allegations in counsels' memoranda and an affidavit by defendant-appellee Revada as to the prejudice to the accused and the reasons for the pre-indictment delay.

On the prejudice point Revada's affidavit states that he gave federal agents a statement, apparently incriminating, June 9, 1976, which he would not have given had he thought he might be prosecuted for the alleged firearms offense which occurred July 24, 1975. He also declares that because of the delay, the time he spent in jail and the many other charges he has had to defend, he cannot accurately reconstruct his activities or even his whereabouts prior to his arrest on July 24, 1975. He says he cannot recall the dates of his release from jail, the date he retrieved his car prior to the arrest nor who had access to his car, and because of the lack of government activity on prosecuting he made no notes or memoranda concerning the indictment, and did nothing to help retain and refresh his memory.

The record does not show us what kind of a statement was given to the government agents in that...