U.S. v. Sowa, 93-3833

• Citation: 34 F.3d 447
• Decision Date: 30 August 1994
• Docket Number: No. 93-3833,93-3833
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley SOWA, Jr., also known as Alfred Junior, II, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 447

34 F.3d 447

UNITED STATES of America, Plaintiff-Appellee, v. Stanley SOWA, Jr., also known as Alfred Junior, II,

Defendant-Appellant.

No. 93-3833.

United States Court of Appeals, Seventh Circuit.

Argued May 12, 1994.

Decided Aug. 30, 1994.

Barry R. Elden, Asst. U.S. Atty., Ronald Safer (argued), Office of the United States Attorney, Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Kenneth L. Cunniff (argued), Chicago, IL, for defendant-appellant.

Before BAUER, COFFEY, and MANION, Circuit Judges.

BAUER, Circuit Judge.

On September 8, 1988, Stanley Sowa and Jeffrey Scalfaro brutally bludgeoned Alexis Dodds and Larayon Thomas with baseball bats. The two were tried for attempted murder and aggravated assault in Illinois state court. Scalfaro was convicted on the aggravated assault charge, but Sowa was acquitted of both charges. On November 4, 1992, a federal grand jury returned an indictment against Sowa charging him with conspiring with Scalfaro to interfere by force with the rights of Dodds and Thomas to use the streets and sidewalks of Cicero because they were black, in violation of 18 U.S.C. Sec. 371, and with interfering with Dodds' civil rights by violence because of his race, in violation of 18 U.S.C. Sec. 245(b)(2)(B). A jury convicted Sowa on both counts. Sowa appeals various aspects of the government's prosecution, and we affirm.

I. Facts

On September 8, 1988, Dodds and Thomas were returning to their Chicago homes from a stop at the Oakbrook Mall. Their trip took them through Cicero. At the intersection of 60th Court and 16th Street in Cicero, the two men passed a group of adolescents and young adults who were standing on the corner drinking beer; Sowa and Scalfaro were in this group. Members of the group angrily accosted Dodds and Thomas with racial epithets and threatened them.

After this confrontation, Scalfaro joined Sowa in his car and drove after Dodds and Thomas. Unfortunately, Sowa's house lay on the route taken by Dodds and Thomas. As Sowa and Scalfaro drove past the two black men, Sowa said to Scalfaro: "Let's fuck these guys up." Then, Sowa and Scalfaro drove to Sowa's house, where each armed himself with a baseball bat. They then waited in a gangway between Sowa's house and another building.

As Dodds and Thomas passed the gangway, Sowa and Scalfaro assaulted them. Scalfaro hit Dodds first, but when Dodds fell to the ground, Scalfaro walked away. Sowa, however, was not finished; he continued to beat Dodds with the bat. Finally, Sowa stopped the beating, telling Scalfaro: "I think we killed the nigger." They left Dodds motionless in a pool of blood, returning to Sowa's house to order a pizza.

Two children witnessed the crime. In addition, Sowa admitted his crime to several of his friends, including his girlfriend and the grandmother of one of the child witnesses. He claimed to one friend that "hitting that nigger over the head was like splitting open a watermelon."

During the state prosecution for attempted murder and aggravated assault, the prosecution presented only three witnesses: Dodds, Thomas, and Craig Pesek, who was thirteen. All three identified Scalfaro as one of the assailants, but only Pesek could identify Sowa. Dodds and Thomas testified that they could not identify their second attacker because he had attacked them from behind. Sowa was acquitted of both charges, and Scalfaro was convicted of aggravated assault.

Once the verdict was delivered in the state court on February 15, 1990, the federal authorities began to investigate this crime. Because of the limited information available to investigators, the government agreed to immunize Scalfaro. Scalfaro testified before the federal grand jury. After encountering some red herrings and unproductive leads, the federal investigators finally located a worthwhile witness. The investigators interviewed this witness on December 17, 1991. The government was then able to piece together the events of September 8, 1988, despite reluctant (even hostile) witnesses, and the grand jury returned an indictment on November 4, 1992.

II. Analysis

Sowa's first issue on appeal is that the district court abused its discretion when it denied his motion to dismiss due to pre-indictment delay. Sowa argues that the government's delay in indicting him violated his Fifth Amendment right to due process. It seems that Sowa can no longer remember the events of September 8, 1988, because he has extensively and excessively abused drugs and alcohol since then. As a result of his memory loss, Sowa claims that he cannot help his attorney present a defense to the federal charges. Since he claims to have aided in the presentation of his defense to the state charges, he blames the government's delay in bringing the indictment against him for his inability to present a defense in the district court.

We have noted on many occasions that statutes of limitations are the primary safeguard of a right to a timely indictment. See, e.g., United States v. Ashford, 924 F.2d 1416, 1419 (7th Cir.1991) (citation omitted). The Due Process clause, however, plays "a limited role in protecting against oppressive delay." United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). The role of the Due Process clause is limited, indeed; we have never characterized a pre-indictment delay as a constitutional violation.

To establish that a pre-indictment delay violated due process, Sowa must prove that the delay caused actual and substantial prejudice to his fair trial rights, and there must be a showing that the government delayed indictment to gain a tactical advantage or some other impermissible reason. United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). With respect to the first prong, we require that allegations of actual and substantial prejudice be "specific, concrete, and supported by evidence." Pharm v. Hatcher, 984 F.2d 783, 787 (7th Cir.1993). Sowa put forth evidence that he remembered the events in question at the time of his state prosecution, that he extensively abused alcohol and drugs for much of his life, and that he can no longer remember what happened on September 8, 1988. The district court believed Sowa and his witnesses and found that Sowa had proved actual and substantial prejudice resulting from the delay. This case is highly unusual; we have never encountered a case of actual and substantial prejudice resulting from a pre-indictment delay. While we are unsure that, upon de novo review, we would find such prejudice in the case of a defendant who deliberately destroys his own memory to his detriment, we cannot say that the district court abused its discretion in reaching its conclusion in this case.

Sowa's claim, however, fails to meet the requirements of the second prong. With respect to the government's delay, due process is only implicated if the government purposely delayed the indictment to take advantage, tactically, of the prejudice or otherwise acted in bad faith. See United States v. Anagnostou, 974 F.2d 939, 943 (7th Cir.1992). That is not the case here.

As an initial matter, we must address what the district court noted as confusion regarding the question of whether the burden shifts to the government to explain its reasons for delay after the defendant has proven prejudice. This confusion exists because some of our recent cases have stated that we have two divergent lines of authority addressing this issue. See, e.g., Pharm, 984 F.2d at 786. For example, in United States v. Koller, 956 F.2d 1408, 1415 (7th Cir.1992), we described one line of cases as requiring the government to prove that the pre-indictment delay was necessary once the defendant demonstrated prejudice; we called it the King line, after United States v. King, 593 F.2d 269 (7th Cir.1979), and its progeny. We also noted in Koller that starting in 1983, another line of cases developed that assigns the burden to the defendant of proving both prejudice and an improper governmental purpose for the delay; we called this line the Watkins line, after United States v. Watkins, 709 F.2d 475 (7th Cir.1983), and its progeny. This misconception about whether the burden shifts to the government has propagated because we have not had to address this issue directly. Since Sowa has demonstrated actual and substantial prejudice, we are presented with our first legitimate opportunity to settle this issue and alleviate the existing confusion.

The seminal cases analyzing pre-indictment delay in the Due Process context are United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Our earlier "line of cases," the King line, is drawn directly from these Supreme Court cases. The other "line of cases" extends from a misunderstood statement in Watkins. In that case, we held that the defendant, by claiming that only the passage of time had prejudiced him, did not allege the actual and substantial prejudice necessary to support a Due Process violation. Watkins, 709 F.2d at 479. We further made our point by stating: "Watkins [the defendant] failed even to allege an improper government motive for the pre-indictment delay." Id. It is this imprecise language in Watkins that has served as the basis for the belief that we have two lines of authority on this issue.

That we have permitted this question to go unanswered is easy to explain. First, we have never before found actual and substantial prejudice. Without this threshold issue met, we have not needed to delve into the government conduct issue. Second, in cases in which we feel compelled to discuss the government's explanation for the pre-indictment delay, the record had quite clearly demonstrated that the government's reasons for the delay were entirely acceptable. The record in these cases developed when, in response to the defendant's motion to dismiss...