U.S. v. Smith, 95-1440

• Decision Date: 05 April 1996
• Docket Number: No. 95-1440,95-1440
• Citation: 80 F.3d 1188
• Parties: 44 Fed. R. Evid. Serv. 276 UNITED STATES of America, Plaintiff-Appellee, v. William R. SMITH, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1188

80 F.3d 1188

44 Fed. R. Evid. Serv. 276

UNITED STATES of America, Plaintiff-Appellee, v. William R. SMITH, Jr., Defendant-Appellant.

No. 95-1440.

United States Court of Appeals Seventh Circuit.

Argued Oct. 26, 1995.

Decided April 5, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 286--Charles R. Norgle, Sr., Judge.

Barry Rand Elden, Chief of Appeals, Office of U.S. Atty., Crim. Appellate Div., Matthew D. Tanner, Office of U.S. Atty., Civ. Div., Chicago, IL, for Plaintiff-Appellee.

Gerald J. Collins, Chicago, IL, for Defendant-Appellant.

Before BAUER, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

A jury convicted the defendant of theft of an interstate shipment, interstate transportation of a stolen vehicle, and interstate transportation of stolen goods. He appeals his conviction on the grounds that the district court erred in denying his motion to dismiss the superseding indictment, admitting certain evidence over a FED.R.EVID. 403 objection, and allowing the government to cross-examine him regarding certain specific instances of conduct under FED.R.EVID. 608(b). We affirm.

I

On March 23, 1993, the defendant William R. Smith, Jr., was a driver-in-training with Born's Transfer, a small trucking company located in South Holland, Illinois. He had applied for the driving position the week before, and the company had not yet been able to confirm the validity of his Virginia commercial driver's license. That afternoon, Smith accompanied Jeff Bennett, a Born's driver, to pick up a load of food products from Active Warehouse in Hammond, Indiana. The shipment was bound for Foodland, a store located in Detroit, Michigan. After picking up the load, they returned to Born's facility in South Holland. Bennett left Smith in the truck while he went into Born's office to determine who would drive the load to Foodland. When Bennett came outside a few moments later, the truck, its load (which was valued at $16,000), and Smith were gone. Nobody had instructed Smith to take the load to Foodland. The truck and trailer were found on April 14, 1993, in the parking lot of a Dearborn, Michigan motel. The key was in the ashtray, and the trailer was empty. Foodland never received the shipment.

The government filed a criminal complaint against Smith on April 13, 1993, charging that he had violated 18 U.S.A. § 659 by stealing the Foodland shipment. Smith was arrested on July 27, 1993, and he made an initial appearance before the district court on July 28, 1993. On August 3, 1993, United States District Judge Brian Duff of the Northern District of Illinois revoked Smith's supervised release from a conviction for conspiring to steal an interstate shipment of copper in 1991. Judge Duff revoked Smith's supervised release, in part, because of Smith's arrest for the March 23 theft, and he sentenced Smith to one year of imprisonment. ¹ On August 5, 1993, the district court granted the government's motion, which was agreed to by Smith's counsel, to dismiss the criminal complaint without prejudice.

On March 18, 1994, a grand jury indicted Smith for the March 23, 1993, theft of the Born's Transfer truck and trailer and the Foodland-bound cargo. Count one charged him with theft of an interstate shipment in violation of 18 U.S.C.A. § 659, and count two charged him with transportation of stolen goods in interstate commerce in violation of 18 U.S.C.A. § 2314. The grand jury returned a superseding indictment on September 14, 1994, which, in addition to the original two counts, charged Smith with one count of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C.A. § 2312. The district court denied Smith's motion to dismiss the indictment for unnecessary delay after finding that Smith had failed to make the required showing of prejudice. Smith pleaded not guilty and was tried by a jury.

Prior to trial, the government filed a motion in limine for the admission of two pieces of evidence under FED.R.EVID. 404(b). The first was the testimony of Cathy Hayden, who had been romantically involved with Smith in October 1991. During that time, Hayden and Smith had traveled to different scrap yards selling the copper off a truck Smith had stolen. They had stayed in various hotels, and according to Hayden, Smith had told her to register them in her name because "the feds was [sic] looking for him." Smith had also told her that the copper shipment "wasn't the first truck" he had stolen. The second piece of Rule 404(b) evidence was Smith's conviction, pursuant to a guilty plea, for conspiring to steal the 1991 copper shipment. The district judge granted the motion in limine and admitted Hayden's testimony, along with evidence of the 1991 copper theft, under Rule 404(b) to allow the government to use that information to prove Smith's intent to steal the Born's Transfer shipment.

Smith testified on his own behalf, and the defense's case consisted solely of his testimony. He denied stealing the truck or its cargo. He testified that Mrs. Born, the owner of Born's Transfer, had told him to take the truck to Detroit and that he had ditched it after she refused to wire him money for various expenses. He denied telling Cathy Hayden that he had stolen other shipments.

Prior to trial, the government filed a notice of intent to cross-examine Smith pursuant to FED.R.EVID. 608(b) regarding three truck-related thefts for which Smith had neither been charged nor convicted. After Smith took the stand, the government followed through on its promise and cross-examined Smith regarding the thefts he had allegedly committed. The first theft concerned a shipment of steel that Smith had been hired to take from New Jersey to Michigan in June 1990. Smith admitted to transporting the steel but denied stealing the cargo. He testified that he left the truck and its cargo at a truck stop prior to reaching his destination. The second theft regarded a shipment of steel that Smith had been hired to take from Maryland to Pennsylvania in October 1990. Smith again admitted to transporting the steel but denied stealing the cargo, stating that he left the truck and its cargo at a truck stop short of his destination. Finally, the government questioned Smith regarding his failure to transport a load of cargo in November 1990 for which he had been paid a $100 trip advance. Smith denied ever working for the trucking firm or receiving the $100 advance. The government did not attempt to rebut Smith's denials through extrinsic evidence.

On October 13, 1994, the jury convicted Smith on all counts. On January 25, 1995, the district court sentenced him to twenty-one months of imprisonment on each count, to be served concurrently. Smith filed a timely notice of appeal.

II

A

Initially, Smith argues that the district court erred in denying his motion to dismiss the indictment for unnecessary delay. Smith based his motion to dismiss on the argument that the government's requested dismissal of the complaint following the revocation of his supervised release, and subsequent re-indictment immediately prior to the end of his revocation sentence, violated his right to due process by denying him the opportunity to "resolve" the revocation proceeding and the Foodland theft charges simultaneously. Smith alleges he suffered prejudice because, as a result of the delay, he was precluded from serving the revocation sentence and the sentence for the Foodland theft concurrently.

The Due Process Clause plays a limited role in protecting a defendant from undue prosecutorial delay. In order to prevail on a claim that a pre-indictment delay violated due process, a defendant must show that the prosecutorial delay caused him "actual and substantial prejudice." United States v. Canoy, 38 F.3d 893, 901 (7th Cir.1994). Once the defendant makes an adequate showing of prejudice, the burden shifts to the government to justify the delay. United States v. Sowa, 34 F.3d 447, 451 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995). We review a district court's decision to deny a motion to dismiss for prosecutorial delay for abuse of discretion. United States v. Fuzer, 18 F.3d 517, 519 (7th Cir.1994).

In order to make the requisite showing of actual prejudice, a defendant must show more than the mere possibility that the delay prejudiced him. United States v. Marion, 404 U.S. 307, 326-27, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971). "[T]he prejudice must be concrete and substantial; a defendant is not deprived of due process if he is only 'somewhat prejudiced by the lapse of time.' " Canoy, 38 F.3d at 902 (quoting United States v. Lovasco, 431 U.S. 783, 796, 97 S.Ct. 2044, 2052, 52 L.Ed.2d 752 (1977)). Thus, where a defendant cannot show that the harm underlying his claim of prejudice would not have occurred but for the delay, the alleged prejudice is too speculative to support a due process claim.

We touched on the requisite level of certainty necessary to support a due process claim in a similar context in Fuzer. In that case, the defendant's claimed prejudice from the pre-indictment delay was the denial of the opportunity to serve state and federal sentences relating to the same criminal conduct concurrently. Fuzer, 18 F.3d at 520. We rejected that argument, reasoning that since the defendant did not have a right to serve his state and federal sentences concurrently, he did not suffer actual prejudice when denied the opportunity for the district court possibly to cause his sentences to run concurrently. Id.; see also United States v. Hoslett, 998 F.2d 648, 659 (9th Cir.1993) (finding claimed prejudice from being unable to serve sentences concurrently too speculative); United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir.1989) (same), cert. denied, 506 U.S. 958, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992). Stated another way, the...