U.S. v. Stierwalt, 93-2512

• Decision Date: 09 February 1994
• Docket Number: No. 93-2512,93-2512
• Parties: UNITED STATES of America, Appellee, v. Melvin E. STIERWALT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 282

16 F.3d 282

UNITED STATES of America, Appellee, v. Melvin E. STIERWALT, Appellant.

No. 93-2512.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 12, 1993.

Decided Feb. 9, 1994.

Counsel who presented argument on behalf of the appellant was R. Bruce Kips, of Fairway, Kansas.

Counsel who presented argument on behalf of the appellee was E. Eugene Harrison, Assistant U.S. Attorney, of Kansas City, Missouri. Appearing on the brief were Marietta Parker, U.S. Attorney and D. Michael Green.

Before JOHN R. GIBSON, ^* BOWMAN, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Melvin E. Stierwalt was convicted in the District Court of possession of cocaine with intent to distribute, conspiracy to distribute cocaine, and use of a firearm during and in relation to a drug-trafficking offense. He was sentenced to two concurrent thirty-month terms of imprisonment on the drug counts, and a mandatory sixty-month consecutive term on the firearms count, to be followed by three years of supervised release. Stierwalt appeals. We find no merit in any of the eight issues raised and affirm the judgment of the District Court.

In January 1991, a confidential informant began working for the Jackson County, Missouri, Drug Task Force in exchange for immunity from prosecution on certain drug charges. On February 6, 1991, the informant talked by telephone with James Mishler who agreed to sell the informant one ounce of cocaine. Mishler told the informant he would have to go to Olathe, Kansas, ¹ to get the cocaine. Mishler did not show up at the appointed time and place, and later that evening told the informant that his supplier did not have any cocaine but probably would by Friday, February 8. On Friday, the informant and Mishler, by telephone, arranged for the informant to purchase four ounces of cocaine, and Mishler again said he had to go to Olathe before meeting with the informant to complete the deal. They agreed to meet that night in the parking lot of a restaurant in Kansas City, Missouri.

The informant arrived at the restaurant with Detective Ken Bergman of the Jackson County Drug Task Force. Bergman was driving a Ford Explorer and the informant was a passenger in the vehicle. Bergman backed the Explorer into a parking space. A four-door Dodge Omni pulled into an adjacent parking space. A woman was driving the Omni, Stierwalt was in the front passenger seat, and Mishler was in the back. The informant got into the back of the Omni on the passenger side, and was sitting behind Stierwalt.

During the attempted cocaine purchase, Stierwalt passed a zip lock bag containing a chunk of white powder to Mishler in the back seat. The informant asked for and received a small sample, and returned to the Explorer with it. At that time Bergman alerted marked police cars to converge on the parking lot. When the Omni attempted to leave, Bergman moved the Explorer to block the car's exit. Mishler and the driver attempted to flee on foot, but they were apprehended by the officers at the scene. Stierwalt threw the zip lock bag containing the white substance, later determined to be cocaine, out the open back door of the Omni into the parking lot. A loaded firearm was recovered from the floorboard of the front passenger seat. Stierwalt was arrested.

Stierwalt first argues that the District Court erred in denying his pre-trial motion to dismiss. He claims he was denied his right to a speedy trial, as the offenses with which he was charged occurred on or about February 8, 1991, but no indictment was issued until June 22, 1992. He contends that the delay was unreasonable and that his defense was prejudiced because he was unable to locate possible witnesses to the drug transaction.

Judging from their briefs and from oral argument, both Stierwalt and the government appear to be confused as to the constitutional basis for Stierwalt's claim. Both parties make their arguments based on the Sixth Amendment right to a speedy trial, and a portion of the District Court's order denying the motion for dismissal also addresses Stierwalt's Sixth Amendment right. ² It is apparent to us, however, as discussed below, that there could be no Sixth Amendment violation here, and that Stierwalt's only cognizable claim must be an alleged violation of his Fifth Amendment right to due process.

"[T]he Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused'...." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). The chief purpose of the Sixth Amendment speedy trial guarantee is not to protect the defendant from prejudice to his defense as a result of delay. United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982). Instead, Sixth Amendment protection "is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." Id. Although "the actual restraints imposed by arrest and holding to answer a criminal charge" will trigger Sixth Amendment speedy trial concerns, Marion, 404 U.S. at 320, 92 S.Ct. at 463, and Stierwalt in fact was arrested on February 8, 1991, he admits that he was released without being charged and "was not required to post bond, nor was he given a court date to appear and answer to any charges." Appellant's Brief at 14. Therefore, we hold that Stierwalt's Sixth Amendment right to a speedy trial was not implicated by the preindictment delay.

Stierwalt's right to a prompt indictment is protected by the appropriate statute of limitations and by the Due Process Clause of the Fifth Amendment. See Marion, 404 U.S. at 322, 324, 92 S.Ct. at 464, 465; cf. MacDonald, 456 U.S. at 7, 102 S.Ct. at 1501 ("Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause."). Although the parties' arguments and the order appealed from focus primarily on the Sixth Amendment, the record before us is adequate for us independently to decide the question whether Stierwalt's due process right was violated, as the due process analysis parallels the Sixth Amendment analysis in the relevant respects.

There is no dispute that Stierwalt was indicted well within the five-year statute of limitations applicable to the crimes charged. See 18 U.S.C. Sec. 3282 (1988). Nevertheless, due process would have required the District Court to dismiss the indictment if Stierwalt demonstrated "that the pre-indictment delay in this case caused substantial prejudice to [his] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." Marion, 404 U.S. at 324, 92 S.Ct. at 465.

The District Court concluded, in its Sixth Amendment analysis, that the preindictment delay did not result in prejudice, much less "substantial" prejudice to Stierwalt's defense. We agree. Stierwalt claims that, as a result of the delay, he lost the benefit of the testimony and knowledge of a waitress who was working in the restaurant the night of February 8, 1991. By the time counsel interviewed her, the waitress could not remember what, if anything, she saw from the restaurant window that night, and could not identify potential witnesses who were in the restaurant on February 8, 1991. We think it is broad speculation to suggest that, if interviewed earlier, she would have remembered anything that would be exculpatory to Stierwalt, much less that she could have identified anyone else who had exculpatory testimony. Even assuming such evidence would have been adduced, it is unlikely that the testimony of witnesses some distance away from the transaction, watching from a window at night and in the dark, would have successfully refuted the testimony of two eyewitnesses to the entire drug deal who were much closer to the action. Moreover, Stierwalt acknowledged that he had available to him a third eyewitness, the driver of the Omni, who happened to be Stierwalt's girlfriend.

Stierwalt also claims he was deprived of co-defendant Mishler's testimony...