United States v. Golden

• Decision Date: 29 March 1971
• Docket Number: No. 20226.,20226.
• Citation: 436 F.2d 941
• Parties: UNITED STATES of America, Appellee, v. Freddie GOLDEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

436 F.2d 941 (1971)

UNITED STATES of America, Appellee, v. Freddie GOLDEN, Appellant.

No. 20226.

United States Court of Appeals, Eighth Circuit.

January 25, 1971.

Rehearing Denied and Rehearing Denied March 29, 1971.

Charles W. Anderson, Minneapolis, Minn., for appellant.

Neal Shapiro, Asst. U. S. Atty., Robert C. Renner, U. S. Atty., D.Minn., Minneapolis, Minn., for appellee.

Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.

Rehearing En Banc Denied and Rehearing Denied March 29, 1971.

HANSON, District Judge.

This is an appeal by defendant Golden from a jury conviction upon each of two counts of an indictment charging violation of 26 U.S.C.A. § 4704(a) and the resulting concurrent sentence of ten years imposed upon each count.

Count One charges in substance that defendant Golden on January 15, 1969, in the City of Minneapolis, Minnesota, sold, dispensed and distributed heroin other than in or from the original stamped package containing the same. Count Two makes the same charge with respect to a January 16, 1969, transaction.

The Government's evidence shows that each of the charged sales and distributions was made by the defendant to John Walker, a paid government informer, and Tyrone V. Yarn, an undercover narcotics agent. Walker was a narcotics addict and a previous felon.

The Government's case consisted of testimony by narcotics agents Yarn and Ripley on the sale issue and the testimony of the Government chemist to the effect that the specimens sent him for examination contained heroin. Yarn and Ripley testified in substance that on January 15, 1969, along with another special agent, Edgar Muhlhauser, they met a government informer, John Walker, who was to assist in a narcotics purchase from defendant Golden. Walker was searched to determine the presence of any drugs or money. No drugs or money were found. Walker was given $40 of government funds to purchase narcotic drugs from the defendant. The three special agents and Walker then drove to the vicinity of defendant's residence. Agent Yarn and the informant Walker were admitted to the residence and observed the defendant present. Golden asked the informer what he wanted. Yarn then gave Walker an additional $40 of government money in defendant's presence to make a purchase of "eight things". Yarn testified that he saw defendant give Walker eight capsules out of a pill bottle with no stamp in exchange for the money. Immediately after departing the residence, Walker gave Yarn the eight capsules which were properly identified and preserved and later found by the government chemist to contain heroin. Walker was again searched and found not to have any drugs.

On January 16, 1969, agents Yarn and Muhlhauser again met with the informer Walker and made arrangements for a second purchase of narcotics from defendant. Again the usual procedures of searching Walker were employed and Yarn accompanied Walker to the defendant's residence where defendant sold them ten capsules which were later found to contain heroin. Similar procedures were utilized in preserving the evidence as had been employed the previous evening.

Special Agent Yarn made an in-court identification of the defendant. The informer Walker did not appear as a witness.

Defendant urges that he is entitled to reversal and vacation of his conviction because his constitutional guarantee of due process was denied. Defendant predicates his denial upon the cumulative effect of the government's lack of prosecution and the government's failure to call as their witness the paid informant. We hold that the defendant was not prejudiced in any of the respects claimed and affirm the conviction.

The offenses for which defendant was convicted were committed on January 15 and 16, 1969. The indictment was returned on October 16, 1969, and defendant was arrested on November 24, 1969 at his home. Thus, some nine months elapsed between the commission of the offenses and the indictment. The arrest was made some ten months after the commission of the offenses and the trial was a little over one year from the time of the offenses charged. It is this delay that defendant challenges as violative of the right to due process guaranteed by the Fifth Amendment to the United States Constitution.

We start with the proposition outlined in Terlikowski v. United States, 379 F.2d 501 (8th Cir. 1967), that a delay between the offense and indictment, if prejudicial, can constitute a denial of due process. In determining the prejudicial effect of a pre-indictment delay, the governing standard is whether the delay has impaired the defendant's ability to defend himself. E.g., United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Hodges v. United States, 408 F.2d 543 (8th Cir. 1969); United States v. Deloney, 389 F.2d 324 (7th Cir. 1968); United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970); Bradford v. United States, 413 F.2d 467 (5th Cir. 1969).

It is well established law that a defendant claiming impairment of his defense by delay must show specifically and not by mere conjecture wherein his defense has been impaired. Hodges v. United States, supra; United States v. Ewell, supra; United States v. Hammond, 360 F.2d 688 (2d Cir. 1966). Thus, a mere claim of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice for reversal on denial of due process. United States v. Ewell, supra; Dancy v. United States, 129 U.S.App.D.C. 413, 395 F.2d 636 (1968); United States v. Hammond, supra. Nor may a defendant's claim of prejudice be insubstantial, speculative, or premature. Peculiar circumstances of the delay other than a general inability to recollect or reconstruct events must be shown. Dancy v. United States, supra; United States v. Hammond, supra.

In Hodges v. United States, 408 F.2d 543 (8th Cir. 1969), the Court speaking through then Judge Blackmun, now Justice Blackmun, concluded that to establish a claim of impairment, the defendant must point to specific evidence which has actually disappeared or been lost or witnesses known to have disappeared.

The indictment charged two offenses, one occurring on January 15th and one on January 16th, 1969. It is readily apparent in reviewing the trial transcript that defendant was in no way prejudiced as to recalling his activities on January 15, 1969. Defendant, his wife, and two sisters-in-law each testified that on that date a birthday party was being held in the Golden home. Each witness went into detail as to the particulars of the party and who was present. Defendant concedes in his brief that he incurred no prejudice from inability to defend himself in regard to the January 15th charge.

Defendant's contention of prejudice is more specifically directed to the evening of January 16th. Defendant on appeal asserts a general inability to recall his activities on that date and specifically points to his testimony at trial as establishing the requisite prejudice. We disagree.

Defendant was called and testified on his own behalf. Defendant's attorney on direct examination inquired as to defendant's whereabouts on the 16th:

"Q. Now, do you recall what you did the next day 16th?

A. Well, vaguely. I think I barbecued outside and had some beer and sit sic around and drink sic.

Q. You were at home?

A. Yes.

Q. Now, calling your particular attention to that evening, after supper, do you recall where you went or what you did or who you were with?

A. I went down to the pool room over on Plymouth and played some pool.

Q. Do you recall who you may have been with?

* * * * * *

A. Yes. I think it was Michael and Chuck. We were just sitting around, you know, playing pool, bank — and a bank game lasts a long time, you know, like 20 or 30 minutes for a game to go on, you know, especially if you play good."

On cross-examination the following exchange took place:

"Q. Mr. Golden, what did you say you did on the 16th of January?

A. I think I had a barbecue.

Q. Outside?

A. Yes.

Q. On the 16th of January?

A. Uh-huh.

Q. That would have been one year and three days ago.

A. No, not the barbecue outside. I am sorry. I was thinking about — during the 4th of July. I am sorry. That was my mistake there.

Q. You get January 3rd mixed up with July 4th?

A. Yeah."

It is highly questionable whether defendant has a plausible claim of prejudice based on an inability to recall events. Although he testified that he vaguely remembered what he was doing on the day of the 16th, which is irrelevant anyway, there is not the same hesitancy in regard to his activity on the evening of the 16th, the time in question. He clearly and unequivocably stated that he was paying bank pool on this evening although he was unsure of with whom.

Furthermore, even assuming a plausible claim of inability to recall events, defendant has failed to show the necessary specific impairment of his ability to defend himself such as actual disappearance of witnesses or other evidence. Hodges v. United States, supra; United States v. Ewell, supra. The informant Walker was available to testify. As to Sam and Jerry Parker, individuals who allegedly could testify as to defendant's activities on the evening of the 16th, defendant testified that Sam Parker was in a federal institution for drug addicts and that Jerry Parker was "around somewhere". Thus these possible witnesses had not disappeared and their actual unavailability is on this record mere supposition. Neither is there anything in the record to show that Chuck and Michael, defendant's supposed pool partners on the night of the 16th were unavailable or that defendant even wanted them as witnesses.

In short, the only specific claim made by defendant in respect to impairment of his ability to defend himself is the answer about barbecuing outside on January 16th in Minneapolis, Minnesota. We reiterate that a defendant must show more than a general inability to defend...