U.S. v. Williams, 83-1877

• Decision Date: 18 June 1984
• Docket Number: No. 83-1877,83-1877
• Citation: 738 F.2d 172
• Parties: 15 Fed. R. Evid. Serv. 1530 UNITED STATES of America, Plaintiff-Appellee, v. Gary WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 172

738 F.2d 172

15 Fed. R. Evid. Serv. 1530

UNITED STATES of America, Plaintiff-Appellee, v. Gary WILLIAMS, Defendant-Appellant.

No. 83-1877.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1984.

Decided June 18, 1984.

George P. Lynch, George P. Lynch, Ltd., Chicago, Ill., for defendant-appellant.

Gillum Ferguson, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and WOOD and POSNER, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Appellant Gary Williams appeals his conviction on three counts of mail fraud. He raises constitutional arguments concerning the government's long delay before indicting him, the conduct of cross-examination, the labeling of certain testimony as hearsay, and the treatment of certain evidence. Although we have some concerns about the government's handling of this case, we affirm.

I.

Appellant, an attorney, was indicted and convicted along with a co-defendant, Charles Vervlied, on mail fraud charges for participating in a scheme to defraud an insurance company. The undisputed evidence showed that Vervlied sold appellant's car to an undercover federal agent, Robert Ford, for $800 in September of 1978. Vervlied also sold four or five other cars to agent Ford, who testified that he understood from Vervlied that these were "insurance jobs"; Vervlied conceded that he had called them "insurance cars." Several days after his car was in the government's hands, appellant reported to police that his car had just been stolen from an Orland Park department store parking lot. Appellant also reported the car as stolen to his insurance company, which mailed appellant a check to pay off the lienholder and $7680 for the remaining value of the car.

The government contended at trial that appellant and Vervlied had agreed that appellant would transfer his car to Vervlied, who then would sell it, while appellant would report the car as stolen and collect the insurance proceeds. Appellant did not testify. Through Vervlied's testimony, appellant tried to establish that Vervlied, part owner of an automobile repair shop, and his friend Bob "Whiskey Bob" Berrant (or Berent), an automobile mechanic who worked out of his home, carried out a scheme of which appellant was merely a victim. Vervlied testified that he did not know appellant at the time appellant's car was transferred to the government agent, and that he and Berrant had agreed that Berrant would steal his customers' cars and transfer the cars to Vervlied, who would fence them. Appellant claims he brought his car to Berrant for repairs, and Berrant stole it from him for resale through Vervlied.

Appellant concedes that he lied about the circumstances surrounding the theft of his car in his report to the Orland Park police. He claims that Berrant notified him that his car was stolen from the parking lot several days after Berrant transferred his car to Vervlied, to allow Vervlied time to dispose of the car. Appellant explains that he reported that the car was stolen from his possession rather than Berrant's in order to recover insurance proceeds for the car, because Berrant carried no theft insurance.

Vervlied sold appellant's car to the FBI agent on September 8, 1978. Nearly four years later, in August of 1982, the case was presented to a grand jury which returned a four-count indictment on August 9, 1982. In the meantime, the government had released appellant's car to the titleholder, the insurance company, on April 2, 1979, and "Whiskey Bob" Berrant had died on June 15, 1981. The joint trial of appellant and Vervlied commenced on March 15, 1983. Appellant and Vervlied were convicted on three counts each. At the sentencing, the judge noted that the crime had occurred five years earlier and sentenced both to four years probation and restitution.

II.

Appellant argues that the four-year delay between the occurrence and his indictment violated his fifth amendment right to due process of law and his sixth amendment right to a speedy trial. He claims actual and substantial prejudice to his defense due to the death of Bob Berrant and the government's release of his car to the insurance company, depriving him of his right to present evidence and confront the evidence against him. The government responds that neither of these factors substantially prejudiced appellant's case.

Appellant does not allege that the delay was intentionally caused by the government in an attempt to gain tactical advantage over him. Rather, appellant argues that the "immeasurable grievousness" of the prejudice must outweigh the government's reasons, albeit not tactical, for delay. The government explains that the delay was a "regrettable" oversight caused by case overload and administrative error. Apparently there was no continuing investigation over the four-year pre-indictment period. Rather, the case file sat untouched on the desk of one assistant United States attorney or another while the assistants pursued other trials and investigations and even while one was married and went on a honeymoon.

This is not a case of post-indictment, pre-trial delay; rather, it is a case of pre-indictment delay. Therefore, the sixth amendment right to a speedy trial and the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. (1982), are not directly applicable. The statute of limitations, the primary source of repose and protection from prosecutions based on stale evidence, had not yet run when appellant was indicted. See 18 U.S.C. Sec. 3282 (1982) (five year statute of limitations). The Supreme Court, however, has held that the due process clause of the fifth amendment provides some protection against pre-indictment delay that has caused such substantial prejudice to the defendant as to outweigh the government's reasons for delay. See United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971); see also United States v. Gouveia, --- U.S. ----, ----, 104 S.Ct. 2292, 2300, 81 L.Ed.2d 146 (1984). The Supreme Court did not establish a strict rule requiring dismissal of an indictment under specific circumstances, but left to the lower courts the "delicate judgment based on the circumstances of each case." Marion, 404 U.S. at 325, 92 S.Ct. at 466.

This court on occasion has tried to establish a formula for striking the delicate balance between prejudice to the defendant and the cause of delay. Two lines of cases have emerged; both require the defendant to prove actual and substantial prejudice resulting from the delay, but they treat the reasons for delay differently in the balancing process. ¹ We need not resolve the two lines of cases at this time because we hold that appellant has not met his burden of showing actual and substantial prejudice to his defense, a threshold requirement under either line of cases. ²

The question of prejudice to appellant's defense due to the death of Berrant is inextricably related to whose version of events is believed. Either, as Vervlied testified and appellant contends, Berrant was Vervlied's partner in crime and appellant was their innocent victim, or, as the government urges, Berrant is a conveniently unavailable scapegoat around whom appellant and Vervlied have fabricated a story to exculpate themselves from federal mail fraud charges. ³

We can look only to peripheral factors for guidance as to what role Berrant would have played in this prosecution and trial. Appellant curiously failed to offer other evidence linking Berrant to his version of events, such as evidence that appellant ever took his car to Berrant for repairs or even knew Berrant. Further, appellant did not mention Berrant in his motion to sever or in his first motion to dismiss for pre-indictment delay; it appears that appellant first mentioned Berrant in his second motion to dismiss, filed one day before trial. We do not know if the government was aware of Berrant prior to that date; at oral argument, counsel for the government said he did not know whether the government had interviewed Berrant before he died. Even if we accepted appellant's version of events, Berrant's death and consequent inability to testify on appellant's behalf would have prejudiced appellant's case only if we are convinced that Berrant would have testified, that his testimony would have withstood cross-examination, and that the jury would have found Berrant a credible witness despite his apparently well-earned nickname. In the absence of other evidence tending to support these possibilities, we would merely be piling speculation upon speculation to reach a finding of actual and substantial prejudice here, and this we cannot do.

Appellant also argues prejudice in the government's release of his car to the insurance company, because appellant could not examine it for repairs or identify it as his car. The government, however, retained and offered for appellant's inspection photographs of the car, the license plates from the car, and tape lifts of the vehicle identification numbers on the engine and transmission. Appellant does not indicate what else he would have wanted to see. Further, appellant has not indicated any effort to locate the car through the insurance company. In any event, the unavailability of the car, even if prejudicial, would not amount to substantial prejudice in this case.

Due to appellant's belated mention of Berrant and his failure to offer any evidence beyond Vervlied's testimony linking Berrant to the transfer of his car, we are not persuaded that his defense suffered actual and substantial prejudice from delay. Appellant's due process rights were not violated by this pre-indictment delay.

III.

Appellant claims a due process violation in the government's cross-examination of his character witnesses, ⁴ who were asked over defense counsel's imprecise objections ⁵ whether their favorable...