United States v. Kaufman, 16016.

• Decision Date: 19 April 1968
• Docket Number: No. 16016.,16016.
• Citation: 393 F.2d 172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold KAUFMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

393 F.2d 172 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Harold KAUFMAN, Defendant-Appellant.

No. 16016.

United States Court of Appeals Seventh Circuit.

March 13, 1968.

Rehearing Denied April 19, 1968.

William C. Erbecker, Indianapolis, Ind., Harold Kaufman, in pro. per., for appellant.

K. Edwin Applegate, U. S. Atty., Edward F. Kelly, Asst. U. S. Atty., Indianapolis, Ind., for appellee.

Before HASTINGS, Chief Judge, KNOCH, Senior Circuit Judge and CUMMINGS, Circuit Judge.

HASTINGS, Chief Judge.

Harold Kaufman appeals from a judgment of conviction entered after a jury trial on an indictment charging him with robbery of a branch of the First Federal Savings & Loan Association of Indianapolis, Indiana on November 20, 1963, in violation of Title 18, U.S.C.A. § 2113 (a). Trial was held in the United States District Court for the Southern District of Indiana.

The indictment against appellant was returned on March 26, 1964, and he was brought before the district court for arraignment on May 21, 1965. Trial began on February 28, 1966.

Appellant contends the delay of approximately fourteen months between indictment and arraignment denied him his federal constitutional right to a speedy trial. Cf. United States Constitution, Amendment VI; Rule 48(b), F.R.Crim. P., 18 U.S.C.A.

He alleges that, during the entire period, he was in federal custody and available for arraignment. That during this time he was repeatedly approached by agents of the Federal Bureau of Investigation who attempted, by means of threats and promises, to induce him to plead guilty pursuant to Rule 20, F.R. Crim.P., 18 U.S.C.A.

He further contends that because of such delay he was unable to locate a key witness at time of trial and was unable to adequately prepare a defense of insanity.

These allegations and contentions were contained in a motion to dismiss the indictment, filed May 28, 1965. The motion was denied after a hearing. Twelve witnesses were heard, including appellant and the seven FBI agents who talked with him during his pre-arraignment confinement.

The court made the following findings of fact. Appellant remained at large until December 16, 1963, when he was arrested for robbery of a federal savings and loan association in Missouri. He was indicted in Missouri on the federal charges and ordered to the United States Medical Center at Springfield, Missouri for an examination to determine his competency to stand trial on the Missouri federal charge. Appellant remained at the Medical Center from January 28, 1964 until March 20, 1964.

Following return of the indictment in the instant case, the United States Marshal and the United States Attorney for the Southern District of Indiana sent copies of the Indiana indictment to their counterparts in the Eastern District of Missouri.

Appellant's trial in Missouri, originally set for May 4, 1964, was delayed for further psychiatric examination of appellant. He was brought to trial on August 24, 1964 and was convicted.

Following his conviction in Missouri, appellant was removed to New York, where state charges were pending against him. He was tried on those charges in New York and was convicted.

The United States Marshal for the Southern District of Indiana sent a copy of the Indiana indictment and a detainer against appellant to the marshal for the Southern District of New York.

On January 28, 1965, appellant was transferred to the United States Penitentiary at Atlanta, Georgia. A writ of habeas corpus ad prosequendum was issued, and appellant was returned to Indiana.

The court further found that at all times appellant had been advised of his constitutional rights by the FBI agents and that no threats or promises had been made in an attempt to induce him to plead guilty. It found that he had not lost contact with his key witnesses and that reports of his two psychiatric examinations in Missouri were available to him.

Based on these findings, the court concluded that there had been no unreasonable delay in arraigning appellant, that he had not been prejudiced and that his right to a speedy trial had not been violated.

We have examined the evidence before the court on appellant's motion to dismiss and have found ample support for the court's findings of fact.

Both appellant and appellee ignored the controlling authority in their briefs and arguments. The Supreme Court's most recent consideration of the Sixth Amendment's requirement of a speedy trial was two years ago in United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Defendants in that case had been indicted and convicted in December, 1962 for selling narcotics in violation of 26 U.S.C.A. § 4705(a). Their convictions had been vacated in early 1964 by the trial court in light of this court's prior reversal of a conviction in a similar case. They were promptly re-arrested and indicted for the same narcotics sales, although the charges were somewhat different. On defendants' motions, the district court dismissed the indictments on the ground that defendants had been denied their Sixth Amendment right to a speedy trial. The Government appealed directly to the Supreme Court, pursuant to 18 U.S.C.A. § 3731.

The Supreme Court reversed and restated the principles to be applied under the Sixth Amendment:

"We cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment\'s guarantee of a speedy trial. This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself * * *. `Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances * * *. The delay must not be purposeful or oppressive,\' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393. `The essential ingredient is orderly expedition and not mere speed.\' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041." 383 U.S. at 120, 86 S.Ct. at 776.

The Supreme Court expressly rejected the argument, which appellant here makes, that prejudice resulting from delay need not be shown: "Surely appellees could claim no automatic violation of their rights to a speedy trial if there had been no charges or convictions in 1962 but only the § 4704 indictment in 1964." 383 U.S. at 122, 86 S.Ct. at 777. To come within the protection of the Sixth Amendment's speedy trial requirement the accused must show not only that there was unreasonable delay, but also that the delay prejudiced him or was purposeful or oppressive. Fleming v. United States, 1 Cir., 378 F.2d 502 (1967); Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312 (1967); United States v. Sanchez, 2 Cir., 361 F.2d 824 (1966).

In United States v. Ewell, supra, the delay was pre-indictment, while here it was post-indictment. However, in both cases the delay was after arrest and the accused was incarcerated during the period of delay. If anything, post-indictment delay may be less harmful than pre-indictment delay, since the accused has notice of the specific charges against him and can begin preparing his defense. We hold Ewell controlling in this case.

The delay of fourteen months in arraigning appellant was not unreasonable under the circumstances. At the time of his indictment in Indiana, appellant was under federal indictment in Missouri, where he was held, and he faced state felony charges in New York. He was promptly tried in Missouri and New York and was returned to Indiana from the federal penitentiary at Atlanta within four months of his transfer from New York.

Neither has appellant shown prejudice resulting from the delay. He was aware of the charges against him in March, 1964, when the indictment was returned, and could have begun the preparation of his defense. The Government advised him months before trial as to the location of his witnesses or the means by which they could be located. Reports of the psychiatric examinations conducted in Missouri within a short time of the Indiana robbery were available to him.

Appellant's argument that he was denied his right to counsel in FBI interviews concerning the entry of a guilty plea, pursuant to Rule 20, is frivolous. He did not plead guilty. In any event, the evidence sustains the finding that he was not denied his right to counsel.

Appellant contends the trial court erred in denying his motion to suppress evidence. In his motion of February 7 and his amended motion of February 23 he asserted, as ground for suppression, the absence of probable cause for arrest. At the hearing on his motion and on appeal here he placed emphasis on the denial of right to counsel and right to remain silent as a ground for suppressing evidence. After a hearing on the motion, the trial court denied it from the bench. Through an apparent oversight findings were not entered.¹

The trial court's ruling is supported by the evidence. There was probable cause for the arrest. The Alton, Illinois police officer who apprehended appellant testified that he arrested appellant for reckless driving in the officer's presence, following a traffic accident. No contrary evidence was introduced. Furthermore, although appellant fails to specify the evidence he contends is inadmissible, we have examined the record and have found no evidence that would have been tainted had the arrest been unlawful.

Apparently the only real issue before us, in reviewing the trial court's denial of appellant's motion, is whether, as he charges, an oral admission used at trial was made before appellant was warned of his rights and after he had been refused permission to call his attorney. The FBI agent to whom the admission was made testified that he advised appellant of...