United States v. Banks

• Decision Date: 02 December 1966
• Docket Number: No. 10628.,10628.
• Citation: 370 F.2d 141
• Parties: UNITED STATES of America, Appellee, v. Berry BANKS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

370 F.2d 141 (1966)

UNITED STATES of America, Appellee, v. Berry BANKS, Appellant.

No. 10628.

United States Court of Appeals Fourth Circuit.

Argued November 1, 1966.

Decided December 2, 1966.

COPYRIGHT MATERIAL OMITTED

J. Robert Broudy, Norfolk, Va. (Court-appointed counsel) Broudy & Broudy, on the brief for appellant.

Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on the brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.

HAYNSWORTH, Chief Judge:

Berry Banks appeals from his conviction of a Dyer Act offense, complaining that he was denied a speedy trial and that the evidence was insufficient to support the Court's finding of guilt. We find no merit in either contention.

Until sometime in September, 1964, Banks had been living in the District of Columbia. On September 11 of that year a Chevrolet automobile was stolen in the District of Columbia. The proof showed that on September 20, 1964, Banks was in possession of the stolen vehicle in Southampton County, Virginia. At that time it was in a damaged condition, and he sought assistance in moving it. Witnesses were produced who testified that, at about that time, they had inquired of Banks where he got the automobile and had been told by him that he had purchased it in the District of Columbia. At that time the vehicle carried District of Columbia license plates, though those were later replaced with Wisconsin tags.

At the trial, the defendant testified in his own behalf that he had been picked up in Virginia by two sailors. He met them, he said, in a bar in Portsmouth, Virginia, and rode with them in the Chevrolet automobile from Portsmouth to Southampton County. During the ride, he testified, the two sailors told him that the automobile was stolen. Upon arrival in Southampton County, he testified that he dropped the two sailors at some tavern and he took the Chevrolet automobile on to a party. He was supposed to have returned to pick up the two sailors, but did not do so. He could furnish no information about the sailors or their names.

A warrant was issued for the defendant's arrest for the interstate transportation of the stolen Chevrolet on October 21, 1964. Banks could not be located for a number of months, however, and the warrant was not executed until March 5, 1965. On that date, Banks was interviewed by an F.B.I. agent in the Portsmouth City Jail where he was being held under an assumed name on a conviction for petty larceny and robbery. He denied that he was Berry Banks, but later admitted to the F.B.I. agent that he was. He denied all knowledge of the Chevrolet automobile and, of course, made no reference to the sailors whom he later testified had stolen it.

During the interview on March 5, 1965, Banks was told of the arrest warrant, and it was left with the jailer as a detainer. On May 3, 1965, Banks was indicted for interstate transportation of the vehicle, but Banks was not informed of the finding of the indictment until his discharge from a prison camp in Isle of Wight County on February 28, 1966.

On March 17, 1966, Banks, by court-appointed counsel, filed a motion to quash the indictment on the ground that he had not been accorded a speedy trial. That motion was denied and later, on May 3, 1966, he was tried and convicted.

The delay from September, 1964, when the interstate transportation of the stolen vehicle occurred, until May 3, 1966, when Banks was tried, is not insubstantial, but clearly the Government is not responsible for all of that lapse of time. Banks could not be located until March, 1965, and he was then being held under an assumed name. The indictment issued slightly less than two months later, when Banks had a little less than ten months remaining to be served on his state sentence. After his release from the state sentence on February 28, 1966, the trial was delayed by the pre-trial motion to dismiss the indictment which required a full evidentiary hearing on April 12, 1966. The only period of delay attributable to the Government, which could be thought either unnecessary or unreasonable, was the ten month period following the indictment, during which Banks was held in state custody and during which the Government made no effort to bring him to trial.

Imprisonment in a state institution has been held an acceptable reason for delay in bringing a defendant to trial on Federal charges.¹ The rule, however, is subject to very substantial qualifications.

A short period of confinement elsewhere, indeed, may justify delay in bringing a defendant to trial on other charges. On the other hand, if the defendant has a number of years to serve in his present confinement, no substantial delay in the initiation of efforts to obtain custody of him for purpose of trial would be warranted.² The dividing line is a variable, depending, in each case upon a number of factors. The Supreme Court has said,³ "the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances." The length of the prospective incarceration elsewhere is the most important single factor, but the prosecuting authorities are entitled to give consideration to the probable difficulty and the cost of obtaining custody of the defendant for the purposes of trial and of his return to his original place of detention. A period of delay which would be unreasonable if the defendant is held in the same area in which the trial is to be had, if officials are cooperative and writs of habeas corpus ad prosequendum readily obtainable, might be quite reasonable if all of those factors were at the opposite pole.

The prosecuting authorities should act with reason. Their endeavor should be to bring the defendant to trial as soon as that may reasonably be done. Incarceration elsewhere, then, is not an excuse for inaction over a substantial period of months, but it does have an immediate bearing upon the reasonableness of the interval between the charge and the trial. The greater the difficulty and cost of obtaining temporary custody of the defendant, the longer the interval retains its reasonableness.

The record here contains no suggestion of any appreciable difficulty in obtaining temporary custody of Banks for purposes of a trial. His state conviction was had in...