U.S. v. Stinson, 78-5145

• Decision Date: 26 March 1979
• Docket Number: No. 78-5145,78-5145
• Citation: 594 F.2d 982
• Parties: UNITED STATES of America, Appellee, v. Daniel C. STINSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 982

594 F.2d 982

UNITED STATES of America, Appellee, v. Daniel C. STINSON, Appellant.

No. 78-5145.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1979.

Decided March 26, 1979.

C. T. Neale, III, Newport News, Va. (Hudgins & Neale, Newport News, Va., on brief), for appellant.

Raymond A. Jackson, Asst. U. S. Atty., Norfolk, Va. (William B. Cummings, U. S. Atty., Alexandria, Va., on brief), for appellee.

Before BUTZNER and RUSSELL, Circuit Judges, and EDWARD DUMBAULD, Senior United States District Judge for the Western District of Pennsylvania, sitting by designation.

BUTZNER, Circuit Judge:

Daniel C. Stinson appeals his conviction of nine counts involving possession of unregistered firearms, dealing in firearms without a license, and transfer of firearms without paying transfer taxes. He assigns error to the following: (1) pre-indictment delay; (2) the district court's refusal to suppress evidence obtained through electronic surveillance; (3) the court's refusal to dismiss the indictment because of pretrial publicity resulting from statements of government agents; (4) citation of the wrong subsection of the criminal statute in one count of the indictment; (5) insufficiency of the evidence; (6) prejudice in exposing the jury to evidence relating to a count of the indictment that was subsequently removed from the jury's consideration; and (7) prosecutorial misconduct in the facts giving rise to the first and sixth issues. Finding no reversible error, we affirm.

Stinson was tried one year after the government's last purchase of weapons from him. However, the only significant delay not attributable to Stinson himself was an eight-month period between the government's last purchase of weapons and the indictment. ^* Stinson was not placed under arrest until after the indictment. Accordingly, the sixth amendment guarantee of a speedy trial is irrelevant. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The only issue is whether the delay violated Stinson's rights under the due process clause of the fifth amendment. Due process is not violated simply because the defendant is prosecuted after a substantial investigative delay. United States v. Lovasco, 431 U.S. 783, 796, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). This right is violated, however, if the delay actually prejudices the conduct of the defense and the government has "intentionally delayed to gain some tactical advantage" over the defendant or to harass him. United States v. Marion, 404 U.S. at 325, 92 S.Ct. at 466.

Applying the standards set forth in Marion and Lovasco, we find no denial of due process. The delay was neither lengthy nor purposeful, and it was justified by a need to continue the investigation by following leads for several months after the purchases. Indeed, two months after the purchases, the government seized a cache of weapons at Stinson's residence which required additional tracing. The government, therefore, is not to be faulted for refusing to seek an indictment immediately after the last purchase. See United States v. Lovasco, 431 U.S. at 795, 97 S.Ct. 2044.

Stinson's second claim involves the admission into evidence of the government's surreptitious recordings of Stinson's conversations with an informant and his conversation with a special agent. The informant and the agent were wired for sound and consented to the recordings. Stinson stresses the absence of any prior judicial authorization. The consent of a participant in each recorded conversation, however, makes this argument immaterial. 18 U.S.C. § 2511(2)(c); United States v. Bragan, 499 F.2d 1376, 1380 (4th Cir. 1974).

Several news reports quoting government agents regarding seizures of weapons caches and the strength of the government's case appeared in major newspapers serving the Newport News area where...