U.S. v. Townley

• Decision Date: 11 January 1982
• Docket Number: No. 80-2295,80-2295
• Citation: 665 F.2d 579
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Ray TOWNLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 579

665 F.2d 579

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

No. 80-2295.

United States Court of Appeals, Fifth Circuit.

Jan. 11, 1982.

Floyd D. Holder, Jr., Lubbock, Tex., for defendant-appellant.

Paulina M. Jacobo, Asst. U. S. Atty., Lubbock, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before INGRAHAM and TATE, Circuit Judges ^*.

TATE, Circuit Judge:

The defendant-appellant, Michael Ray Townley, was tried and convicted of seven counts of criminal mail fraud, in violation of 18 U.S.C. § 1341. ¹ He received concurrent five-year sentences of imprisonment, with all but six months suspended. Townley raises only one point of error on this appeal. He contends that he was denied due process because of the substantial prejudice to him in presenting his defense resulting from a lengthy pre-indictment delay. Although actual prejudice did result from the lengthy pre-indictment delay, we find that, balancing the prejudice to the defendant against the government's reasons for the delay, the resultant prejudice was not so substantial as to require the conviction to be reversed for a denial of due process.

I

The claim of due-process prejudice is based upon the following skeletal facts: From April through June 1976, the defendant Townley and a partner engaged in a scheme to sell water-purification vending machines to investors. In June 1976, Townley withdrew from the scheme, convinced that his partner had diverted funds from the enterprise for personal use and had made changes in the plans of operation that made the enterprise unworkable. In early 1977, upon receiving complaints that none of the machines had been delivered, a postal inspector investigated the circumstances. In late 1977, he concluded that the scheme was fraudulent and involved violations of the mail fraud statutes. The inspector reported his findings to the United States Attorney's office in January 1978. In late November 1979 Townley was indicted, some three and one-half years after the conduct had occurred. He received his first notice of the criminal charges against him when he was arrested in California on April 14, 1980, some forty-six months after the conduct had occurred. After a continuance was secured from the initial trial date, his jury trial commenced on September 15, 1980.

A pretrial hearing was held on Townley's motion to dismiss for prejudice resulting from the lengthy pre-indictment delay and the subsequent post- indictment delay until the defendant's arrest, at which time he received the first notice that his conduct had subjected him to criminal charges. At the conclusion of the hearing, the district court reserved its ruling on the motion; at the conclusion of the evidence, the district court denied the motion.

The showings made at the pretrial hearing reveal: Townley at no time had attempted to conceal his whereabouts. When he left the Texas area in which the enterprise had been conducted, an area with which he had minimal pre-enterprise contact, he returned to a California area of employment. The postal inspector had made efforts to locate Townley, but with few leads to follow had made only somewhat desultory efforts to find him. (Townley's partner had disappeared and had not been located even at the time of the trial.) On the other hand, there is not the slightest intimation that the government's delay in indicting or arresting Townley was founded on bad faith motive to prejudice him. The delays occurred, rather, due to the press of other investigations and the seeming low-priority accorded to the present investigation, and because of changes of governmental prosecuting personnel.

II

The Supreme Court cases of 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), define the criteria to be applied in determining whether lengthy pre-indictment delay deprives a defendant of due process of law.

In Marion, in holding that no Sixth Amendment denial of speedy trial is occasioned by pre-indictment delay, the Court noted that the primary guarantee against bringing overly stale criminal charges is provided by the legislative limits provided by statutes of limitations, 404 U.S. at 322, 92 S.Ct. at 464, but that the Due Process Clause of the Fifth Amendment also has a limited role to play in protecting against oppressive delay that prejudices an accused's right to a fair trial, 404 U.S. at 324-26, 92 S.Ct. at 465-66. The Court accepted the government's concession that due process will require dismissal of an indictment where it is "shown that the pre-indictment delay caused substantial prejudice to (an accused's) right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 404 U.S. at 324, 92 S.Ct. at 465.

In Lovasco, the Court elaborated on the test. There, the accused was somewhat prejudiced for trial by an eighteen-month delay in indictment subsequent to the conduct charged. In reversing a dismissal on that account, the Court stated that "proof of prejudice is generally a necessary but not sufficient element of a due process claim," and that "the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." 431 U.S. at 790, 97 S.Ct. at 2048-49. The Court then balanced the prejudice to the accused against the prosecution's reason for the delay-a good-faith continuing investigation-and found that due process was not offended by the delay: i. e., the delay did not violate " 'fundamental conceptions of justice' ", 431 U.S. at 791, 97 S.Ct. at 2049, or "elementary standards of 'fair play and decency' ", 431 U.S. at 795, 97 S.Ct. at 2051. The Court thus found the eighteen-month delay in the indictment did not deprive the accused of his due process right to a fair trial, even though he may have been "somewhat prejudiced by the lapse of time." 431 U.S. at 796, 97 S.Ct. at 2052.

Thus, in evaluating an asserted due process violation based on pre-indictment delay, Lovasco and Marion require us "to consider both the reasons for the delay and the prejudice to the accused." United States v. West, 568 F.2d 365, 367 (5th Cir. 1978). Further, the accused bears the burden of proving the prejudice and, if the threshold requirement of proof of actual prejudice is not met, the inquiry ends there. Id. Once actual prejudice is shown, it is necessary to engage "in a sensitive balancing of the government's need for an investigative delay ... against the prejudice asserted by the defendant." United States v. Brand, 556 F.2d 1312, 1317 n.7 (5th Cir. 1977). The inquiry turns on "whether the prosecution's actions violated 'fundamental conceptions of justice' or the community's sense of fair play and decency." United States v. Shaw, 555 F.2d 1295, 1299 (5th Cir. 1977). "Inherent in the adoption of a balancing process is the notion that particular reasons are to be weighed against the particular prejudice suffered on a case-by-case basis." United States v. King, 593 F.2d 269, 272 n.3 (7th Cir. 1979).

In the case presently before us, the government's thirty-six month delay in securing the indictment was only partly occasioned by investigative reasons (eighteen months or so); the remainder was occasioned by the low priority assigned to this investigation and to the overload of other investigative and prosecutive responsibilities allocated to the available personnel. As we shall show, see III infra, the accused was actually prejudiced by the delay-whether "somewhat" (as we find) or "substantially" (as the defendant contends). The present due process issue relative to the deprivation of a fair trial by the lengthy delay thus turns upon whether the degree of prejudice thereby sustained by the accused is sufficiently balanced by the good-faith reasons advanced by the government; the latter, however, amount to excusing the delay because of inadequate numbers of processing personnel rather than to investigative or other needs relating to the proper preparation of the present case.

We should, at this point, briefly note a contention advanced by the government in brief but not urged at oral argument. Based on statements to that effect by way of dicta in some of our decisions, ² the government initially suggested that, even if actually prejudiced, an accused could not prevail upon his due process claim unless he also proves that the delay resulted from intentional tactical delay or harassment on the part of the government. To the contrary, an earlier decision of this circuit has noted, consistent with holdings in earlier decisions of this circuit, that Lovasco and Marion do not stand for the proposition "that governmental interests not amounting to an intentional tactical delay will automatically justify prejudice to a defendant." United States v. Brand, supra, 556 F.2d at 1317 (n.7). Here, the Lovasco balancing test would be reduced to mere words, if indeed the government's 41-month delay in bringing the indictment were excusable, whatever the prejudice caused the defendant, simply by a showing that the government was negligent, however grossly, and not bad-intentioned.

III

The government's theory of the case is that the defendant Townley, in conjunction with his partner Owens, knowingly and willfully devised a scheme to obtain money, by means of false and fraudulent representations, from persons who were induced to purchase and invest in then non-existent vending machines to purify and dispense water, and that this scheme used the United States mails in furtherance of its fraudulent ends.

The evidence shows that most of the initiative for the venture originated with Owens Townley's partner. However, Townley was a full partner in the scheme and an active and successful salesman for the machines during his three months of association with the...