U.S. v. Roberts

• Decision Date: 02 February 1977
• Docket Number: 76-2092 and 76-1669,Nos. 76-1670,s. 76-1670
• Citation: 548 F.2d 665
• Parties: 1 Fed. R. Evid. Serv. 1306 UNITED STATES of America, Plaintiff-Appellee, v. Michael ROBERTS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles WILLIAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stanley YELARDY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 665

548 F.2d 665

1 Fed. R. Evid. Serv. 1306

UNITED STATES of America, Plaintiff-Appellee, v. Michael ROBERTS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles WILLIAMS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Stanley YELARDY, Defendant-Appellant.

Nos. 76-1670, 76-2092 and 76-1669.

United States Court of Appeals Sixth Circuit.

Argued Dec. 9, 1976.

Decided Feb. 2, 1977.

Arthur James Rubiner, Southfield, Mich. (Court-appointed CJA), for defendant-appellant in No. 76-1669.

H. David Soet, Pinsky & Soet, Grand Rapids, Mich. (Court-appointed CJA), for defendant-appellant in No. 76-1670.

Thomas J. Plachta, Grand Rapids, Mich. (Court-appointed CJA), for defendant-appellant in No. 76-2092.

Frank Spies, U.S. Atty., Robert C. Greene, Grand Rapids, Mich., for plaintiff-appellee.

Before McCREE, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

The appellants were jointly indicted, tried and convicted of armed robbery of the University Branch of the Michigan National Bank in East Lansing. The bank was robbed by three masked bandits at about 3:15 p.m. on August 27, 1973. Neither Roberts nor Williams questions the sufficiency of the evidence, and we have concluded that Yelardy's contention that there was not sufficient evidence of his guilt is without merit. The evidence will be detailed only as necessary to deal with the issues to be discussed.

I.

All defendants made motions to limit the scope of the evidence by excluding all references to the fact that they were inmates of the Milan Federal Correctional Institute at the time of the bank robbery. The appellants were taking part in a "work release" program under which they were transported daily from Milan to Ann Arbor to attend classes at the University of Michigan. The driver of the bus which took them back and forth to Ann Arbor and several security guards at Milan were government witnesses. The motion to limit testimony required the district court to weigh the probative value of the evidence offered against the possible prejudice of revealing the fact that the appellants had been previously convicted of some crime. Rule 403, Fed.R.Ev. The jury is entitled to know the "setting" of a case. It cannot be expected to make its decision in a void without knowledge of the time, place and circumstances of the acts which form the basis of the charge. There was no direct evidence of other misdeeds by the defendants, and the fact of their incarceration at the time of the robbery was not unduly emphasized by the government. The district court cautioned the jury that it should infer nothing about the bank robbery charge from the fact that the defendants were inmates. There was no abuse of discretion in the denial of the motions.

II.

The appellants contend that the indictment should have been dismissed because of the delay in indicting them and bringing them to trial. All appellants were arrested the day after the robbery, August 28, 1973, and formally charged on September 7, 1973. However, these charges were dropped on motion of the government on October 9, 1973. Thereafter all three men were transferred from Milan and all were eventually paroled. All were again taken into custody on bank robbery charges following the return of the indictment in May 1975.

Since appellants were arrested on August 28, 1973 their right to a speedy trial under the Sixth Amendment accrued at that time rather than on the date of their indictment. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). The trial commenced approximately 26 months after the first arrest and this delay was sufficient to require further inquiry. The district court held a pre-trial hearing on the motions to dismiss and all appellants testified. The court denied the motions, but reserved final decision of the question until the evidence in the trial had been heard. At the conclusion of the trial, he again denied motions to dismiss for delay in bringing the case to trial, finding that the appellants had not demonstrated actual prejudice by reason of delay and noting that the case was "a complex one with a large amount of circumstantial evidence which had to be scientifically tested and analyzed, certain witnesses who changed their stories, and confidential informants whose identity was to be kept secret requiring a prosecution judgment as to the feasibility of their use."

The record supports the finding of the district court that prejudice by reason of delay was not established. In addition to the considerations noted by the trial judge in his final order, at least two of the appellants were involved in other court proceedings during the pre-indictment period and this may have contributed to delay in bringing the charges in the present case. Applying the "balancing test" mandated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude that the district court did not err in holding that the appellants were not deprived of their Sixth Amendment right to a speedy trial. United States v. Mulligan, 520 F.2d 1327 (6th Cir. 1975).

The appellants also argue that they were deprived of due process of law by reason of the government's delay in seeking indictments after its investigation of the robbery was complete. The Due Process Clause of the Fifth Amendment requires dismissal of a charge if the government intentionally delays criminal proceedings to gain a tactical advantage and the defendant suffers substantial prejudice by reason of such pre-indictment delay. United States v. Marion 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Swainson, 548 F.2d 657 (6th Cir. 1977); United States v. Alred,513 F.2d 330 (6th Cir.), cert. denied, 423 U.S. 828, 96 S.Ct. 47, 46 L.Ed.2d 45 (1975). The general allegations of the appellants fall short of establishing either of the requirements for invoking the Fifth Amendment. There was no showing that the delay was intentional and devised to gain a tactical advantage. As noted in discussion of the Sixth Amendment claim, the allegations of prejudice were not sustained. There was no indication that proposed alibi witnesses would have been more helpful if the trial had been held sooner. The inconclusive testimony of those who did testify appears to have resulted more from a lack of any identifiable relationship with the defendants than from a dimming memory.

III.

The appellants made motions to quash search warrants and suppress evidence seized in the search of three residences. One of the FBI agents who obtained the warrants conceded that the affidavit for each warrant contained some erroneous statements. This court recently dealt with the problem of inaccuracies in affidavits for search warrants in United States v. Luna, 525 F.2d 4 (6th Cir. 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976), and concluded as follows:

There are two circumstances which we believe authorize the impeachment of an affidavit which on its face is sufficient probable cause for issuance of the warrant. The first of these consists of knowing use of a false statement by the affiant with intent to deceive the court. This is true even if the statement can be said to be immaterial to the issue of probable cause. In our judgment such perjury must lead to suppression of the evidence in order to prevent fraud upon the judicial process.

The second circumstance arises when a law enforcement agent recklessly asserts a statement essential to establishment of probable cause and the charge is subsequently made that the statement is both false and recklessly made.

On the other hand, we do not believe that good faith error in a carefully prepared search warrant affidavit should be held to require suppression of evidence even where the erroneous allegation was essential to establishment of probable cause. Id. at 8-9.

In the present case the district court conducted a hearing on the motions to quash and suppress. The appellants did not claim that the errors in the affidavits were intentional. They contended that the false statements were made recklessly, but failed to establish that " . . . when made the affiant did not have reasonable grounds for believing (them)." Id. at 8. The district court found that the misstatements were not material to the issue of probable cause and resulted from good faith error, noting the pressures of time involved. There was no error in denial of these motions.

IV.

All appellants argue that there was prejudicial error in the failure of the district court to declare a mistrial. It is charged that the prosecutor commented in his closing argument on the failure of the defendants to testify and made false statements and misleading arguments. We have examined the closing arguments of all defense counsel and of the prosecuting attorney. Two of the defense attorneys argued that they had advised their clients not to testify because two and one-half years had elapsed between the robbery and trial, and little or no corroboration could be developed for their versions of how they spent the day of August 27, 1973. Addressing the jury, one defense attorney said, "Indeed, you might ask yourselves, what were you doing at 3:15 on August 27, 1973?" The Assistant United States Attorney, speaking in rebuttal, said to the jury, " . . . my question to you, or the Government's question to you is, do you think you would remember when you were arrested for bank robbery?"

Since defense counsel had reminded the jury that their clients had not testified and had attempted to explain why this had occurred, the prosecutor was entitled to answer their arguments. Two appellants who were not represented by the defense attorney who made the argument quoted above, contend that they did not "bait" the prosecuting attorney and were prejudiced by his reply to their co-defendant's argument. No one objected to the prosecutor's remarks when they...