United States v. Griffin

• Decision Date: 09 August 1972
• Docket Number: No. 71-2940,71-2984.,71-2940
• Citation: 464 F.2d 1352
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles E. GRIFFIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rudy MONTANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

464 F.2d 1352 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Charles E. GRIFFIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rudy MONTANO, Defendant-Appellant.

Nos. 71-2940, 71-2984.

United States Court of Appeals, Ninth Circuit.

July 5, 1972.

Rehearing Denied August 9, 1972.

J. Michael Reed (argued), of Reed & Flickinger, San Diego, Cal., Howard E. Beckler (argued), Hollywood, Cal., for defendant-appellant.

James W. Meyers, Asst. U.S. Atty. (argued), Stephen G. Nelson, Asst. U.S. Atty., Harry D. Steward, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Before KOELSCH and TRASK, Circuit Judges, and BYRNE, Sr.,^* District Judge.

Rehearing Denied in No. 71-2984 August 9, 1972.

WILLIAM M. BYRNE, Senior District Judge:

At a jury trial, appellants Griffin and Montano were found guilty on one count of conspiracy to import heroin into this country, a violation of 21 U.S.C. § 174. Each appellant was sentenced to fifteen-year prison terms.

Appellants initially argue they were denied the right to due process and to a speedy trial because of the government's dilatory conduct in bringing their case to trial. The facts surrounding this argument are not in dispute. On June 10, 1970, the Grand Jury returned a one-count indictment charging appellants and six others with conspiring to import and bring heroin into the United States. The overt acts relating to appellants were alleged to have been committed in 1968. In September of that year, Agent Peter Fong of the United States Bureau of Narcotics and Dangerous Drugs arrested Lorenzo Rodriguez for violation of Federal narcotic laws. Subsequent to this arrest, Fong met with Rodriguez in March of 1969 at the latter's request. At this meeting Rodriguez stated that Maria Bueno de Macias, a resident of Mexico, was his source of narcotics. Rodriguez also implicated three men as being connected with his supply of narcotics. As a result of this conversation, Rodriguez secured his release on bail and was instructed by Agent Fong "to penetrate the organization in which he was involved, the smuggling of narcotics in Mexico."

The effort to "penetrate" the Mexican organization proved futile, and in September of 1969, Fong directed Rodriguez' attention to divulging the identities of his American contacts. At this time, Rodriguez named Montano as one such contact. In December of that year, Rodriguez indicated that "C.G." (later identified as appellant Charles Griffin) was another such contact.

Within the next three to four months, the remaining contacts were fully identified. Thereafter, Fong and his coagents submitted their case to the office of the United States Attorney which secured a secret indictment in June, 1970. Hoping that de Macias would return to the United States,¹ the government delayed the issuance of arrest warrants for the indicted defendants on the ground that such action would alert de Macias of the Grand Jury's charges and thus precludes her re-entry into this country. When the hoped for return of de Macias did not occur, the government finally issued arrest warrants for the remaining indicted co-conspirators on February 1, 1971. Two months later the trial court denied appellants' motion to dismiss for failure to prosecute.

The government's delay in seeking immediate indictments even though it had learned of appellants' alleged illicit conduct, and its further procrastination in seeking arrest warrants and in commencing its prosecution constituted in the appellants' view, denials of Fifth and Sixth Amendment guarantees. Specifically, appellants contend that the unjustified delaying tactics of the government seriously prejudiced their "ability to recall and to secure evidence of their activities at the time of the events in question."

Recently, the Supreme Court addressed itself to the very contention raised by the instant appellants. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), it was argued the defendants had been deprived of their rights to due process and a speedy trial because 38 months elapsed from the time the government learned of their alleged criminal conduct and the time an indictment was returned charging them with these crimes.

The court rejected both contentions. Firstly, it held that "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an `accused,' an event that occurred in this case only when the defendant was indicted 404 U.S. at 313, 92 S.Ct. at 459. Accordingly, the court stated that "the reach of the Sixth amendment does not extend to the period prior to arrest." 404 U.S. at 321, 92 S.Ct. at 463.

The ruling in Marion clearly disposes of appellants' assertion they were denied their Sixth Amendment rights. The thrust of their position is that the denial to a speedy trial commenced at the time the government was informed of their criminal conduct, but delayed upwards of eight months to secure indictments from the Grand Jury. Because the Sixth Amendment guarantees do not extend to persons who do not stand "accused" of any crime, the argument advanced must be rejected.

Secondly, the court acknowledged the possibility of a due process violation if the pre-indictment delay resulted in "substantial prejudice" to the defendant's ability to receive a fair trial and was employed as an "intentional device to gain tactical advantage over the accused." In so acknowledging, the court indicated that an indictment returned prior to the running of the statute of limitations was generally considered a safeguard against the prosecution of stale crimes. Additionally, the court ruled that real prejudice must be shown, and that mere possibilities "that memories will dim, witnesses may be inaccessible, and evidence will be lost" are not sufficient to establish a due process violation.

In the present situation, the indictment was returned within the statutory period as were the execution of the arrests. Although they claim to have been prejudiced by the delays, appellants have failed to set forth any specific examples of such prejudice. Although the appellants charge that the "delay in the case at bar was inordinate . . . and unjustified," they fail to set forth anything other than bald conclusions which might even approach the possibility that the government's purpose was to gain a tactical advantage over them. In short, the appellants' conclusory allegations are without persuasion that they have been denied the right to due process.

Appellants further contend that the trial court erred when it denied their motion to dismiss the indictment. The basis of this motion was improper joinder in that the indictment charged one conspiracy but the government's case-in-chief "indicated several separate conspiracies" were involved. In appellants' view, combining several conspiracies into one charge worked to their "serious" prejudice because associating them with the other defendants constituted a "guilt transference."

The basis of the contention that the evidence adduced by the government in its case-in-chief was at odds with the Grand Jury's single count indictment is the testimony of Rodriguez, described by appellant Montano as "a man willing to implicate anyone he believed necessary in order to curry favor with the Government on his own pending narcotics smuggling case." In his testimony, Rodriguez indicated that he had been careful to meet with only one contact at a time and that de Macias' policy was not to disclose the names of other contacts at these meetings. Rodriguez' adherence to this policy was such that two of the persons indicted with the appellants testified as to having no knowledge of their supplier's other contacts. Indeed, one of these defendants, Joseph Balfour, stated Rodriguez had told him that he was his only purchaser. Balfour believed Rodriguez' representation because his first purchase of six ounces of heroin indicated Rodriguez "wanted to make it worth while to come." In sum, the government attempted to prove the charges made in the one-count indictment by eliciting testimony showing that de Macias supplied the heroin to Rodriguez who then served as the Mexican connection, on an individual basis for several different purchasers.

Appellants liken the instant factual setting to the one in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). There, thirty-two persons were indicted for a single conspiracy to violate the National Housing Act by inducing lending institutions to make loans which could be offered to the Federal Housing Administration for insurance on the basis of false and fraudulent information. Of those indicted, nineteen were prosecuted, thirteen had their cases submitted to the jury which acquitted two, convicted seven and "hung" on four. The evidence proved at least eight different conspiracies consisting of several defendants whose only connection with each other was that all had their fraudulent applications handled by a broker named Brown. Quoting from the Court of Appeals, the court found this evidence to be at variance with the indictment in that several conspiracies had been proven:

"`Thieves who dispose of their loot to a single receiver—a single "fence"— do not by that fact alone become confederates: they may, but it takes more than knowledge that he is a "fence" to make them such.\'" 328 U. S. at 755, 66 S.Ct. at 1243.

The court determined that in the context of that case, the variance could not be deemed harmless error. Additionally, the court found the error to be compounded by the trial court's instructions which charged that only one conspiracy was the subject of the indictment and a finding of guilty depended upon the determination that "each of the defendants was a member of that conspiracy." 328 U.S. at 767, 66 S.Ct. at 1249.

In Rocha v. United States, 288 F.2d 545 (9th Cir.1961), this court held the evidence was at variance with the...