United States v. Davis

• Decision Date: 18 March 1974
• Docket Number: No. 72-1682.,72-1682.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Edward DAVIS, Sr., and Dennis Bates Fletcher, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 112 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Billy Edward DAVIS, Sr., and Dennis Bates Fletcher, Defendants-Appellants.

No. 72-1682.

United States Court of Appeals, Fifth Circuit.

October 16, 1973.

As Amended on Denial of Rehearing and Rehearing Denied November 19, 1973.

Certiorari Denied March 18, 1974.

COPYRIGHT MATERIAL OMITTED

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Ralph Elliott, Sherman, Tex. (court appointed) for Davis.

Mac Oyler, Oklahoma City, Okl., for Fletcher.

Roby Hadden, U. S. Atty., Dennis R. Lewis, Asst. U. S. Attys., Tyler, Tex., for plaintiff-appellee.

Before DYER, SIMPSON and MORGAN, Circuit Judges.

As Amended on Denial of Rehearing and Rehearing En Banc Denied November 19, 1973.

Certiorari Denied March 18, 1974. See 94 S.Ct. 1573.

SIMPSON, Circuit Judge:

Billy Edwards Davis, Sr. and Dennis Bates Fletcher appeal from judgments of conviction after a joint jury trial for conspiracy, bank robbery, and interstate transportation of stolen money. The jury found Fletcher guilty of bank robbery, in violation of Title 18 U.S.C. Section 2113(d), of interstate transportation of stolen money, in violation of Title 18, U.S.C., Section 2314, and of conspiracy, Title 18 U.S.C. Section 371, to violate Section 2113(a) and (d). Fletcher was sentenced to concurrent confinement terms of 18, 10 and 5 years respectively, all sentences being imposed under the indeterminate parole statute, Title 18 U.S.C. Sec. 4208(a)(2). The jury found Davis guilty under a bank robbery count, Count II, Title 18 U.S.C. Section 2113(d), and under the conspiracy count, Count IV. He was not charged under Count III, the interstate transportation count. Davis was sentenced to concurrent confinement terms of 20 and 5 years respectively. He was also sentenced under Section 4208(a)(2). Count I charged both appellants with violation of Section 2113(a) of Title 18 U.S.C., but was dismissed by the United States at trial. Appellants raise numerous contentions of error, but finding no prejudicial error demonstrated in the proceedings below, we affirm.

The Right to Speedy Trial and to be Free From Excessive Pre-Indictment Delay

Both Davis and Fletcher contend that the conduct of the government in causing or permitting delay of about twenty-four months between the commission of the offense and the commencement of their joint trial constituted either a denial of appellants' Sixth Amendment rights to speedy trial or pre-indictment delay violative of Fifth Amendment due process. An outline of the events preceding the trial and conviction below is necessary to put these contentions in proper focus.

On January 16, 1970, the First National Bank of Tom Bean, Texas was robbed. On March 27, 1970, the grand jury indicted Davis and Fletcher, appellants here, as well as Carl W. Dennie, Jr. and Charlene Hightower, charging bank robbery in violation of Title 18 U.S.C. Sections 2113(a), (c), and (d). Arraignment on June 1, 1970 brought forth not guilty pleas from all defendants and trial was set for November 30, 1970. Dennie's motion for severance was granted at that time.

On November 23, 1970, the court dismissed the original indictment at the government's motion, so as to permit a charge of conspiracy to be brought.

On April 16, 1971, the grand jury reindicted Davis and Fletcher, along with Dennie, with Robert Reno Schneider named as a co-conspirator but not indicted. On May 10, 1971, Davis was arraigned and pled not guilty. On that date Dennie entered a plea of guilty to the conspiracy count. On May 19, Fletcher pled not guilty, requested and was allowed 30 days for filing preliminary motions. On June 11, Davis moved to dismiss on grounds of the denial of speedy trial and Fletcher filed a similar motion on June 21. Trial was set for October 18, 1971, but was continued on Davis' motion for continuance therefor filed on September 16, 1971. Subsequently, after trial date was set for January 17, 1972, Davis' second motion for continuance was filed on December 15, 1972. Trial was then reset for the week of January 24, 1972. Actual taking of testimony commenced on February 4, 1972.

Appellants both assert that the delays involved, including the dismissal of the first indictment was unnecessary and prejudicial, and constituted a denial of their rights to speedy trial, or in the alternative prejudicial pre-indictment delay. Both contentions are rejected.

The right to a speedy trial as guaranteed by the Sixth Amendment and implemented by F.R.Crim.P. 48 does not arise until prosecution is instituted against the accused, either through arrest, indictment, or information. Absent a showing of extreme prejudice amounting to a Fifth Amendment denial of due process, the commencement of prosecution is controlled exclusively by the applicable statute of limitations. United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; United States v. Judice, 5 Cir. 1972, 457 F.2d 414. The following from Marion indicates the parameters of impermissible pre-indictment delay:

". . . it is appropriate to note here that the statute of limitations does not fully define the appellee\'s rights with respect to the events occurring prior to the indictment. Thus, the Government conceded that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellee\'s rights to a fair trial and that the delay was a purposeful device to gain tactical advantage over the accused." 404 U.S. at 324, 92 S. Ct. at 465, 30 L.Ed.2d at 480-481.

We have considered the pre-indictment delay in this case including weighing of the time of the second indictment and the action of the government in dismissing the first indictment against appellants. The requisite showing of prejudice is absent.

As regards the delay between the second indictment and trial, we apply the fourfold test of Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, in determining whether Sixth Amendment rights to a speedy trial were violated.

The elapsed time between the second indictment on April 16, 1971 and trial was nine or ten months. In Barker v. Wingo, supra, the Supreme Court adopted a balancing test for determining whether a defendant's right to speedy trial has been violated. Under that test the conduct of the prosecution and the defendant is balanced, on an ad hoc basis, giving particular attention to four factors: (i) length of delay, (ii) the reason for the delay, (iii) the defendant's assertion of his right, and (iv) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-117. We do not believe that the period that elapsed between indictment and trial constituted an unreasonable delay in the circumstances of this case. This modest delay of considerably less than a year is not inappropriate per se in a case of this type since preparation of a complex interstate conspiracy case involving multiple defendants may well require more time before trial than prosecution of a single street crime, Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-117. While both defendants made early demands for speedy trial as to the second indictment, Davis' counsel twice requested continuances: on September 16, 1971 as to the trial set for October 18, 1971, and again on December 15, 1971 as to a trial date of January 17, 1972. Each continuance was granted by the trial judge for other assigned reasons, the first until further order because Davis' co-defendant Dennie was scheduled to go to trial in the state court for murder on October 18, 1971, and the second for one week to permit the trial judge to sit as a member of a three-judge statutory court, neither motion for continuance was withdrawn by Davis' counsel. While Fletcher did not seek any continuance following his initial demand for speedy trial, he made no effort to reassert that demand or to seek severance of his case upon the trial court's granting of the continuances noted above.¹ The delay here was at least partially sought by the defendant Davis, and in any case is insignificant time wise.

We must examine finally both appellants' extensive claims of prejudice allegedly caused by the delay in this case.²

Fletcher alleges prejudice resulting from pre-trial incarceration, the stigma of being an accused, dimming of witness memory, and inability to locate key defense witnesses. We note Fletcher spent only 13 or 14 days in jail as a result of the charges involved here; whatever additional incarceration he endured during the pre-trial period was the result of a state conviction in Oklahoma. Incarceration on this state charge diminishes practically to the vanishing point his claim of stigma arising from failure to try him promptly on the charges in the instant case. Dimming of witness memory is not shown. Both Fletcher and his principal alibi witness Charlene Hightower vividly recalled and testified to details of events around the time of the alleged crime.

Davis also makes numerous assertions of prejudice resulting from the pre-trial delay here. Davis was never incarcerated prior to trial as a result of the charges in this case. His imprisonment during the pre-trial period was in consequence of other convictions.

Davis claims prejudice also as a result of a lost witness, Bob Beckles. His witness Richard Murray testified at trial that Davis had never told government witness Horton that Davis had robbed a bank. Both Horton's and Murray's testimony concerned Davis' statements to them when the three of them were incarcerated together at the Oklahoma City Jail. Davis' missing witness Bob Beckles would only have offered cumulative testimony on this point.

The missing witnesses Chitwood and Little would have testified cumulatively to facts brought out by Davis' witness Thomas concerning Davis' claimed presence at the May Ten Cafe at the time of the crime. Davis...