U.S. v. Weaver, 77-1357

• Decision Date: 31 October 1977
• Docket Number: No. 77-1357,77-1357
• Citation: 565 F.2d 129
• Parties: 2 Fed. R. Evid. Serv. 765 UNITED STATES of America, Appellee, v. James Darrell WEAVER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 129

565 F.2d 129

2 Fed. R. Evid. Serv. 765

UNITED STATES of America, Appellee, v. James Darrell WEAVER, Appellant.

No. 77-1357.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1977.

Decided Oct. 31, 1977.

W. R. Nixon, Jr., Little Rock, Ark., argued and on brief, for appellant.

Samuel A. Perroni, Asst. U.S. Atty. (argued), and W. H. Dillahunty, U.S. Atty., J. Eugene O'Daniel, Jr., and Robert L. Neighbors, Asst. U.S. Attys., Little Rock, Ark., on brief, for appellee.

Before STEPHENSON and WEBSTER, Circuit Judges, and MARKEY, ^* Chief Judge.

STEPHENSON, Circuit Judge.

James Darrell Weaver appeals from his conviction by a jury of aiding, abetting and counseling Debra Lynn Dossey ¹ in the commission of an armed robbery of a federally insured bank on February 27, 1976, in violation of 18 U.S.C. § 2113(d) and § 2. ² Numerous issues, including admission of other crimes evidence and sufficiency of the evidence, are raised on this appeal. We affirm.

On March 30, 1976, appellant Weaver and Debra Lynn Dossey were arrested in Las Vegas, Nevada, and charged with an armed bank robbery in Mesa, Arizona. On June 3, 1976, Weaver and Dossey were convicted of the Mesa bank robbery. On July 12, 1976, Dossey was indicted for the robbery of the Capitol Branch of the First National Bank in Little Rock, Arkansas. On December 7, 1976, appellant Weaver was indicted for aiding and abetting and counseling Dossey in the commission of the Little Rock bank robbery. Appellant Weaver contends that the government should have attempted to indict him in July of 1976 when Dossey was indicted. According to appellant Weaver, the delay in bringing charges against him was unreasonable and intentional and violated his Fifth Amendment right to due process. We disagree.

It should be noted that "the applicable statute of limitations * * * is usually considered the primary guarantee against bringing overly stale criminal charges." United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). The due process clause, however, does play a limited role in protecting the defendant against oppressive delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Our review of the record convinces us that the trial court properly balanced "the reasonableness of the delay against any resultant prejudice to the defendant," United States v. Jackson, 504 F.2d 337, 339 (8th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975), and we find that appellant Weaver's right to due process was not violated by any pre-indictment delay. See United States v. Constanza, 549 F.2d 1126, 1132 (8th Cir. 1977); United States v. Quinn, 540 F.2d 357, 360 (8th Cir. 1976).

At the time of Weaver's indictment on December 7, 1976, he was incarcerated in a federal prison at Terminal Island, California. On December 9, 1976, a writ of habeas corpus ad prosequendum was issued, directing Weaver's appearance for arraignment on December 21, 1976. Sometime during the week beginning December 13, 1976, the United States Attorney's Office in Little Rock, Arkansas, was informed by an Assistant United States Attorney in California that Weaver was being held in protective custody under another name as a witness in a California criminal case. The California authorities were reluctant to deliver Weaver to Arkansas until the California trial was completed. Apparently, the California trial was scheduled to begin during the first part of January 1977. On January 4, 1977, the trial court indicated that Weaver should be arraigned as soon as possible. A second writ was then issued and Weaver was arraigned on January 11, 1977. Appellant Weaver argues that the government's failure to promptly produce him for arraignment and trial violated the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and his Sixth Amendment right to a speedy trial.

18 U.S.C. § 3161(c) provides in part:

(c) The arraignment of a defendant charged in an * * * indictment with the commission of an offense shall be held within ten days from the filing date (and making public) of the * * * indictment, or from the date a defendant has been ordered held to answer and has appeared before a judicial officer of the court in which such charge is pending whichever date last occurs.

18 U.S.C. § 3161(j)(1) provides as follows:

(j)(1) If the attorney for the Government knows that a person charged with an offense is serving a term of imprisonment in any penal institution, he shall promptly

(A) undertake to obtain the presence of the prisoner for trial; or

(B) cause a detainer to be filed with the person having custody of the prisoner and request him to so advise the prisoner and to advise the prisoner of his right to demand trial.

In denying the appellant's motion to dismiss, the district court stated:

Neither 18 U.S.C. § 3161, et seq., nor the Plan for Prompt Disposition of Criminal Cases pursuant to the Speedy Trial Act of 1974 for the Eastern District of Arkansas provides any sanctions for failure to comply with the time limitations for arraignments. Under these circumstances, a motion for dismissal based upon the government's failure to arraign a defendant within the prescribed time limitation can only be maintained when there has been a delay of an unreasonable and prejudicial nature. In this case, the defendant was incarcerated for a conviction in another jurisdiction during the delay between his indictment and arraignment in the Eastern District of Arkansas. Thus, the defendant has failed to demonstrate how the delay was prejudicial.

In our opinion it would have been preferable for the government to file a motion requesting an extension during the period provided for arraignment under 18 U.S.C. § 3161(c). We conclude, however, that under the circumstances the delay was reasonable and the prejudice to the defendant was minimal. Furthermore, the appellant's trial was initially scheduled within the 60-day period prescribed by 18 U.S.C. § 3161(c). It follows that the district court properly denied appellant Weaver's motion to dismiss based on the delay. See United States v. Page, 544 F.2d 982, 985-86 (8th Cir. 1976).

On February 14, 1977, appellant Weaver's first trial began. During presentation of the government's evidence, the defendant moved for a mistrial because of an allegedly prejudicial statement made by one of the government's attorneys. The district court took the defendant's mistrial motion under advisement and granted the motion the following morning. On March 22, 1977, appellant Weaver filed a motion to dismiss the indictment with prejudice on the grounds that the double jeopardy clause barred his retrial. The trial court denied the motion. Weaver now contends that the trial court violated his rights under the double jeopardy clause of the Fifth Amendment through judicial overreaching. In essence, the appellant argues that a mistrial was declared because the district court had decided to reconsider some of its evidentiary rulings and wanted to permit the government to introduce previously excluded evidence at the retrial.

As we stated in United States v. Martin, 561 F.2d 135 at 138 (8th Cir. 1977), the double jeopardy clause generally would not stand in the way of reprosecution where the defendant has requested a mistrial. Only in limited circumstances, where the judicial or prosecutorial error that prompts the defendant's motion is intended to provoke the motion or is otherwise motivated by bad faith or undertaken to harass or prejudice the defendant, does the double jeopardy clause bar retrial. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 2148, 53 L.Ed.2d 80 (1977). Assuming arguendo the district court's action could be characterized as error, we find that it is not the product of the kind of overreaching which would bar the defendant's retrial. It follows that Weaver's retrial did not violate his rights under the double jeopardy clause of the Fifth Amendment.

On April 13, 1977, appellant Weaver's second trial began. A substantial portion of the government's case was based upon the testimony of witnesses to whom appellant Weaver and Debra Lynn Dossey had made admissions during the planning and preparation of a subsequent bank robbery in Arizona. For example, Ann Louise Jagow testified to her conversations with appellant Weaver in Mesa, Arizona, on March 12, 1976, and March 15, 1976, approximately two weeks after the instant robbery. On March 12 Weaver stated to Jagow that he had robbed banks in Minnesota and Little Rock, Arkansas. Weaver encouraged Jagow to join him in his future plans and assured her that "he always knew what he was doing, that he had just always planned the robberies."

Jagow further testified as to conversations with appellant Weaver which occurred at a meeting held on March 15. The meeting, which was held in a motel room, was called for the purpose of discussing a future bank robbery in Arizona. Dossey, David Winans, Jim Arnold, appellant Weaver, and Jagow were present at the meeting. Weaver stated to Jagow that he had committed a robbery in Little Rock with Dossey. He described a certain robbery where he had parked beside a wall while Dossey, disguised and wearing a wig, had gone into the bank. After the robbery, Dossey and Weaver had escaped in a car. Jagow also testified that appellant told her that the car used in the Little Rock robbery was an El Camino.

Jagow additionally testified that on March 16, 1976, appellant Weaver directed her and Dossey to buy identical blue shirts and two wigs to be used in the Arizona bank robbery. The three then drove to a street across from a bank in Mesa. Dossey and Jagow put on their identical shirts and wigs and Dossey entered the bank by herself. When Dossey returned, Jagow was pushed out of the car and Dossey and Weaver sped away in the car.

Appellant Weaver contends that the trial...